Narrow path forward for Build Back Better

When I warned last Saturday that progressives’ insistence on postponing a deal on the Build Back Better reconciliation bill might eventually threaten the survival of the legislation itself, I did not anticipate that that threat could emerge the next morning. Sen. Joe Manchin’s (D-W.Va.) statement that he cannot support the bill has sown great confusion. Some apparently believe the legislation is now dead and have moved directly to vilifying Sen. Manchin; others seem to expect someone to find a magic trick to bring the senator to his senses and allow the legislation to pass. The legislation is not dead yet, but tricks will not revive it.

Obscuring all this analysis is progressives’ persistent failure to understand who Joe Manchin is and who he is not. Much progressive commentary treats him like a wayward child who is somehow obliged to support the progressive agenda but does not seem to realize it. As long as progressives think that way, there is no path forward. 

Sen. Manchin is a Democrat, but a moderate-to-conservative one. He would have plenty of company in the Democratic Party of the 1980s, when West Virginia was so blue it supported presidential candidate Michael Dukakis almost as strongly as his home state of Massachusetts. Since then, the Party has moved away from Sen. Manchin — much more than he has moved away from it. I like the direction the Party has taken, but his views can hardly be categorized as outlandish or corrupt.

Sen. Manchin is by no means a Republican. Not only do his views depart from today’s extremist Republican Party, but they also clash with the Republican Party of the 1980s. If he switched parties, his tenure would be secure, and he surely could garner a wealth of inducements. His refusal to do so can only be explained by principle. He does take money from business interests many of us find distasteful, but in all likelihood he would support them anyway. He is not a pauper — any more than the rest of the Senate.

Indeed, although generally conservative, Manchin sometimes shows greater sensitivity to low-income workers than progressives do. He was right to support stronger unemployment benefits in coronavirus relief legislation as being better-targeted on those most in need than the higher refund checks Sen. Bernie Sanders (I-Vt.) preferred. Behind the scenes, Manchin also imagined and pushed for key measures to prevent coronavirus relief funds from going to affluent people who do not need them.

But Sen. Manchin is someone who disagrees with progressives on some important issues. In other countries, he might serve as part of a separate, centrist party with whom it was obvious progressives would need to negotiate. His divergence from progressive Democrats is not as visible in our two-party system, but it was plain enough for anyone paying attention.

Although Manchin is probably more conservative than others who’ve played the role of swing Democrat, he also has more integrity than some of his predecessors. He is smart, engaged, and willing to listen. He goes out of his way to avoid blindsiding colleagues when he is inclined to oppose their positions. Conversely, he does not inform Republicans of his intentions, which could ease Sen. Mitch McConnell’s (R-Ky.) task in assembling the necessary votes. And, for a senator, Manchin’s ego seems remarkably under control: He does not stage regal spectacles at which suitors may kiss his ring in search of favor.

When progressive Democrats failed to win a Senate majority, they lost the ability to dictate the terms of legislation. Their paths forward were to persuade Manchin on some of the issues where he disagrees or to negotiate with him, giving up some valued provisions in exchange for him tolerating others that he dislikes.

Some serious, concerted efforts have been made to persuade him, in some instances successfully. And he did negotiate legislation with President Biden, Senate Majority Leader Chuck Schumer (D-N.Y.), and sometimes Speaker Nancy Pelosi (D-Calif.). The framework released in September reflected those negotiations. It omitted several items important to progressives and scaled back others. But it also contained several items that Manchin clearly does not like, his concessions toward reaching an agreement.

Unfortunately, it soon became apparent that those with whom Manchin was negotiating were not willing to commit to the concessions they were purportedly making.

Progressives treated the September framework as a starting point, demanding further large concessions without offering any in return. Many progressives mistook Manchin for someone who ought to be bludgeoned into compliance. That was a mistake.

Progressives never had much leverage over Manchin — and now that they have effectively ended his political career, they have even less. Although progressive votes are not sufficient for Manchin to carry West Virginia, they are necessary. After all the vitriol directed at him over the past year, he cannot hope to get enough progressive turn-out for re-election and will be duly replaced in 2024 with a loyal adherent of Mitch McConnell.

From Manchin’s perspective, negotiations appeared futile because the other side would not stand by its concessions. As long as the process continued, his choices appeared to be capitulating completely or continuing to be vilified indefinitely. Not liking those choices, he shut down the process. His statement Monday supports this interpretation. 

I disagree with Sen. Manchin on almost all points in contention on this legislation. I therefore would prefer that he capitulate. But once one respects his right and duty to pursue his vision of what is best for the nation, it becomes clear that the process as it was working was untenable.

After the holidays, once tempers cool, President Biden, Sen. Schumer, and Speaker Pelosi need to ask Manchin to negotiate the best possible deal — and commit to him that the version agreed upon will promptly move to passage. They should ask for his commitment to oppose any amendments that would weaken the legislation and likewise commit that they will not entertain proposals to strengthen it.

The result of this process will fall far short of what progressives have been seeking and what this country needs. It will leave some vulnerable people out completely. But it also will make historic advances in the areas it does address. That is well worth doing.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities. Follow him on Twitter @DavidASuper1