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PRESENTED BY

BY JOHN BRESNAHAN, ANNA PALMER AND JAKE SHERMAN
WITH MAX COHEN AND CHRISTIAN HALL

THE TOP

Happy Friday morning.

It’s difficult to imagine an uglier end to 2021 for Democrats on their top legislative priority.

→ The Build Back Better Act is stalled, with no new deadline for the Senate to finish work on the massive $1.7 trillion package. President Joe Biden made it official Thursday night when he said he was unable to come to an agreement with Sen. Joe Manchin (D-W.Va.), who is opposed to critical elements of BBB. 

Biden: “My team and I are having ongoing discussions with Senator Manchin; that work will continue next week. It takes time to finalize these agreements, prepare the legislative changes, and finish all the parliamentary and procedural steps needed to enable a Senate vote. We will advance this work together over the days and weeks ahead; Leader Schumer and I are determined to see the bill successfully on the floor as early as possible.”

You’ll notice Biden’s statement doesn’t say anything about bringing BBB to the floor in January. Just “as early as possible.” This is a recognition that legislating is hard and unpredictable. And a bill of this magnitude is especially difficult to get across the finish line.

→ The Democrats’ fall-back immigration proposal – a so-called “parole” program that would give legal status to millions of undocumented immigrants without a pathway to citizenship – was knocked out of the BBB by the Senate parliamentarian. This leaves Democrats without the ability to include an overhaul of immigration into the reconciliation package.

It’s the third time Parliamentarian Elizabeth MacDonough has ruled against Democrats, and a number of them – including Senate Majority Whip Dick Durbin – have grown openly critical of her decisions. Pro-immigration groups and House Democrats are calling for their Senate colleagues to overrule MacDonough. That’s not going to happen, though. Here’s the parliamentarian’s ruling, if you’d like to read it.

→ Voting rights legislation is absolutely nowhere in the Senate. Manchin has said for months he won’t change the filibuster rule without GOP buy-in. Sen. Kyrsten Sinema (D-Ariz.) also isn’t going to get rid of the 60-vote threshold. And Senate Minority Leader Mitch McConnell said Republicans are adamantly opposed to any Democratic initiatives on voting rights and definitively will not join in talks to change the chamber’s rules.

→ House Democrats are upset with their Senate colleagues. Progressives took a leap of faith by voting for the $1 trillion bipartisan infrastructure bill before the BBB, believing that Schumer and Biden would be able to reach an agreement with Manchin and Sinema. That hasn’t happened, and House progressives feel left out to dry.

→ On top of that, Senate Democrats are very unhappy with Manchin and Sinema. They also seem somewhat frustrated with Biden and White House officials. The White House seems frustrated with Senate Democrats. 

→ The omicron variant is raging. As is inflation.

To be honest, we didn’t have much faith that Senate Democrats were going to make this deadline, despite their protestations otherwise. Manchin is moving at his own pace – and it’s in his political interest to do so given his home state’s politics. The BBB still hasn’t been fully scrubbed by the parliamentarian. Legislative text hasn’t been released yet. The Democratic fight over the state and local tax deduction hasn’t been resolved.

The real question now is can Democrats pick up the pieces? How do they do it?

There’s one reality Democrats need to get comfortable with when they turn back to this in January: This is now Joe Manchin’s bill. We knew this all along, but Manchin controls the fate of the BBB. If and when the BBB comes out of the Senate, it seems likely to be watered down to reflect Manchin’s priorities, much to the frustration of the progressive wing of the party. Can the Squad and House Progressives back such a bill? It depends on what they think of the party’s prospects heading into November.

There will be a lot of analysis in the coming days and weeks of how Biden, Schumer and Speaker Nancy Pelosi handled the BBB debate. Much of that judgment is likely to be unfavorable.

In this latest instance, Biden has provided Schumer with some badly needed political cover that allows Senate Democrats to leave town for the Christmas holiday with the BBB unfinished. In the House, Biden did the same for Pelosi at one point. Yet Biden also came to the Hill to rally with House Democrats on the BBB in late October and never asked progressives to vote for the accompanying infrastructure bill, which led to an embarrassing setback. 

One has to wonder whether Biden and Democratic leaders erred back in the spring when they combined the American Jobs Plan and American Family Plan into one mammoth, $4 trillion-plus package. By aiming to do everything, they risk now getting nothing. In addition, Democrats and the White House allowed Republicans to get a political advantage, seizing on inflation and supply chain problems. This may prove a costly blunder.

Yet Biden and Democratic leaders got some major wins with historically small margins. The American Rescue Plan and the $1 trillion bipartisan infrastructure bill are huge impactful pieces of legislation. It seems stunning right now that Congress passed either, much less both.

FLASHING WARNING LIGHTS

What Democrats’ BBB backstop now?

Senate Majority Leader Chuck Schumer’s Christmas deadline for voting on the Build Back Better Act was always somewhat unrealistic. Yet despite that, it also served an important purpose – it gave senators a target date to work toward with the holiday recess as a backstop.

The real question now is this: What will force Democrats to act?

We aren’t passing judgement on the BBB itself. What we mean is that senators often don’t decide how they’re going to vote on an issue until they’re forced to decide. It’s the secret of being a senator. It’s why the Senate always wins showdowns with the House.

But here’s the important point – the longer they wait, the harder it will be for Senate Democrats to act on BBB. The history of the Obamacare debate in 2009 and 2010 proves this, and a number of Senate Democrats are veterans of that era. They remember how bad things got in the first quarter of 2010 as the Obamacare debate dragged on and on, and how that helped fuel the huge GOP victories in those midterm elections.

Another factor – the enhanced Child Tax Credit implemented under the American Rescue Plan expires on Dec. 31. This impacts millions of low-income American families, and Schumer and other senior Democrats made much of this fact during the last few weeks. This should lend added urgency to the debate.

Yet the most important lesson of 2009 and 2010, or even the failed Obamacare repeal efforts by Republicans since then, is that if you can’t get what you want legislatively, move on. Letting the BBB debate drag out interminably during the first quarter of next year chasing a deal that may never happen is the worst possible outcome. If Democrats can’t pass BBB this by a certain date, they need to say so and cut their losses, or significantly scale back the ambition of the bill. 

So here are a few options for Senate Democratic leaders might consider timing-wise:

→ Another arbitrary date in January: The Senate is scheduled to return to Washington on Jan. 3. The Senate committees, legislative counsel and parliamentarian will all continue to work during the recess. Schumer and his office will work, as will White House staff. Significant progress may be possible once the political klieg lights of the last few months are turned off so Americans can celebrate Christmas and the New Year. Senators could come back rested and ready for a final push toward a deal by the middle of the month. This would be the best possible outcome for Democrats.

→ State of the Union: There’s no date yet for the State of the Union. But if you look at the House and Senate calendars, there are several Tuesdays in mid-January or early February that would make good candidates for that speech. Setting that date and then ramping up pressure on senators to have a deal in place before Biden heads to the Hill for his big speech is a good tactic. One thing the White House has been wrestling with is the fact that the Winter Olympics in Beijing start in early February, so they have to work around that.

→ Before the government funding bill expires. Remember, funding for federal agencies expires Feb. 18. There’s an argument to be made that Democrats should finish on BBB before Feb. 1 to give themselves time to fund the government without interference.

Note: Democrats have other priorities in the first few months of 2022. Namely, Dems want to get USICA done. The Jan. 6 select committee will be ramping up its efforts as that bloody first anniversary passes. Democrats want to hold more Big Tech oversight hearings.

NOMS, NOMS, NOMS

Senate has no deal on nominations — yet

As if the staring contest over the Build Back Better Act isn’t enough, the Senate is currently in the middle of an impasse over a deal to pass a slate of Biden administration nominees.

Senate Majority Leader Chuck Schumer filed cloture on 22 executive branch nominees this week. He’s been trying to cut a deal with Republicans since then  – namely Sen. Ted Cruz (R-Texas) – to clear a slate of them, but to no avail. Cruz is seeking a vote on a bill to sanction the Nord Stream 2 pipeline, but at the moment, an agreement seems elusive. Absent some accord, Senate Democrats will have to stay through the weekend to get cloture and pass the nominees.

The first vote is this morning at 10 a.m. on Atul Gawande – yes, the former New Yorker staff writer – to be assistant administrator of USAID. 

Here’s a handy cheat sheet on the nominations that Schumer has filed cloture on. This is in the order of how they will be considered, absent an agreement with Cruz and Republicans.

→ Linda Lopez to be district judge for the Southern District of California.

→ Jinsook Ohta to be district judge for the Southern District of California.

→ David Herrera Urias to be district judge for the District of New Mexico.

→ Maame Ewusi-Mensah Frimpong to be district judge for the Central District of California.

→ Jane M. Beckering to be district judge for the Western District of Michigan.

→ Shalina D. Kumar to be district judge for the Eastern District of Michigan.

→ Jennifer L. Thurston to be district judge for the Eastern District of California.

→ Katherine Marie Menendez to be district judge for the District of Minnesota.

→ Mary Katherine Dimke to be district judge for the Eastern District of Washington.

→ Julissa Reynoso Pantaleon to be ambassador to Spain.

→ Rahm Emanuel to be ambassador to Japan. 

→ Jack Markell to be representative to the OECD.

→ Bathsheba Nell Crocker to be the representative to the UN and other international agencies in Geneva.

→ Mark Gitenstein to be ambassador to the EU.

→ Denise Campbell Bauer to be ambassador to France. 

→ Claire Cronin to be ambassador to Ireland.

→ Marcela Escobari to be assistant administrator for USAID.

→ Marc Evans Knapper to be ambassador to Vietnam.

→ Rufus Gifford to be chief of protocol.

→ Gabriel Sanchez to be circuit court judge for the ninth circuit.

Warnings: 

→ Some of these nominees may be dropped as part of a potential pre-Christmas time agreement with Republicans.

→ If Democrats stay in session to confirm these nominees next week, they don’t need any Republicans to stay in town to vote. But all 50 Democrats have to be present for the entire time, just in case. That’s the toughest part of being in control of a 50-50 Senate. A time agreement is therefore in Democrats’ interest.

But we expect the Senate to figure this out today and leave for the month. Senate Minority Leader Mitch McConnell is going to survey tornado damage in Kentucky, and all senators are eager to get out of town. 

Well, this is interesting. Bernie Moreno, a Republican running for Senate in Ohio, has a new ad running on conservative TV, saying the election was stolen. Check it out here.

But a source points out he was saying something much different right after the election.

FRONTS

MOMENTS

6:50 a.m.: President Joe Biden will leave the White House for Joint Base Andrews, where he will fly to Columbia, S.C. Biden will arrive at 8:35 a.m. Jen Psaki will gaggle aboard Air Force One.

9 a.m.: Biden will leave Columbia for Orangeburg.

10 a.m.: Biden will deliver the commencement address at South Carolina State University.

12:55 p.m.: Biden will leave Orangeburg for Columbia, and he’ll fly to Philadelphia. 

3 p.m.: Biden will leave Philadelphia for Wilmington.

CLIP FILE

NYT

→ “How Ashley Biden’s Diary Made Its Way to Project Veritas,” by Adam Goldman and Mike Schmidt

→ “Biden asks the Supreme Court to revive vaccine mandate for health care workers.” by Adam Liptak

WaPo

→ “House Jan. 6 committee subpoenas retired Army colonel who worked for Trump’s outside legal team,” by Jackie Alemany and Tom Hamburger

→ “GOP agrees to pay up to $1.6 million of Trump’s legal bills in N.Y. probes,” by Josh Dawsey and David A. Fahrenthold

→ “Judge overturns deal giving Purdue Pharma’s Sackler family civil immunity from opioid claims,” by Meryl Kornfield

CNN

→ “’A 50-50 Senate sucks’: Dejected Democrats fret over agenda failure amid grim 2022 outlook,” by Manu Raju

NBC

→ “McKinsey worked with Chinese government despite assurances to senator, document indicates,” by Dan De Luce and Yasmine Salam

WSJ

→ “CDC Recommends Pfizer, Moderna Covid-19 Vaccines Over J&J’s,” by Peter Loftus

AP

→ “COVID-19 fears dash hopes for the holiday season — again,” by Michael Rubinkam, Jennifer Peltz and Ali Swenson

→ “Biden back in South Carolina to address HBCU, honor Clyburn,” by Meg Kinnard

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Editorial photos provided by Getty Images