January 25, 2021

DCTRS

Damascus Center for Theoretical and Civil Rights Studies

Michael Hiltzik: A Democratic mandate and what it could mean

All the I’s may not be dotted and the T’s crossed, but judging from the returns on both Georgia Senate races as of Wednesday morning it looks as if the Democratic Party will regain control of both houses of Congress.

The outcome would give Democrats at least two years, before the 2022 midterm election, to put in place a program that they’ve been talking about for the four years of President Trump, if not even longer.

This won’t be an exhaustive list, because there’s too much on the table to cover completely. Also, some major ventures such as Medicare for all and expanding the Supreme Court to spike the guns of its conservative majority remain difficult lifts.

Measures that significantly increase federal spending also remain in question, as they would require 60 votes in the Senate. Assuming that Jon Ossoff’s victory over David Perdue in Georgia is secured, the Senate will be split 50-50, with Vice President Kamala Harris empowered to cast a tie-breaking vote.

That leaves in doubt President-elect Joe Biden’s plan for substantial infrastructure spending, as well as any effort to repeal the 2017 tax cuts, a handout by a then-GOP Congress to corporations and rich taxpayers.

The Democrats’ narrow majority could be undone by a single conservative Democrat. (Progressives keep a nervous eye on Sen. Joe Manchin of West Virginia.)

That said, the latest results seem to place the legislative agenda in Democrats’ hands, both through their control of congressional committees and their ability, lost under Senate Majority Leader Mitch McConnell (R-Ky.), to bring legislation to the Senate floor.

GOP opposition to some of Biden’s appointees, including Neera Tanden for the Office of Management and Budget and California Atty. Gen. Xavier Becerra as secretary of Health and Human Services, will have no weight.

And then there’s Biden’s appointment of Merrick Garland, the federal appeals court judge whose nomination to the Supreme Court was infamously blocked by McConnell, as attorney general. The appointment was announced Wednesday.

The most powerful tool placed in Democratic hands by the apparent Georgia outcome is the Congressional Review Act of 1996. The act, which was signed by President Clinton, allows Congress to review regulatory initiatives made effective within 60 legislative days before a change of administration. Rules can be rescinded by simple majority votes in both chambers.

The Congressional Review Act was used by Trump to roll back numerous Obama administrative rules implemented before Trump’s accession in January 2017, while there was GOP majority control of Congress.

The act’s time frame covers Trump actions dating as far back as mid-August and possibly back to May, depending on the nature of the rule and how one counts.

That would cover a raft of Trump rollbacks of environmental protections. Among them are his loosening of the National Environmental Policy Act to limit scrutiny of construction of power plants, pipelines and other infrastructure that have negative environmental impacts.

Trump in recent months has also continued his dismantling of the Endangered Species Act. His efforts are now, well, endangered.

Another egregious Trump initiative, a rule limiting scientific research that can be used to set environmental regulations, was made final Wednesday. As we’ve written, this rule has been described by the administration as a way to promote “transparency,” but is really a handout to polluters. It’s likely to be on the chopping block.

Sadly, one other act of Trumpian vandalism, the rollback of Obama-era auto emissions standards, may be just out of reach of the Congressional Review Act, as it was made final in March. That action, along with Trump’s effort to rescind the waiver allowing California to set its own emissions standards, is under court review.

Both actions are almost certain to be reversed by Biden after he takes office as president Jan. 20, as part of his ambitious climate change policies.

Also evidently subject to CRA repeal include rules loosening labor standards and school meal nutrition rules.

Now to proactive Democratic initiatives. On the agenda will surely be stepped up coronavirus relief, supplementing the cheeseparing measure passed in December, which cut previous relief payments in half — to $600 per adult in stimulus checks and $300 a week in enhanced unemployment benefits.

Democrats called for checks of $2,000 per adult, an idea that won the support of Trump and rhetorical support of the GOP candidates in Georgia, but was blocked by McConnell.

Another imperative involves shoring up the Affordable Care Act by fixing long-simmering flaws and inoculating the law against a red-state lawsuit now before the Supreme Court, asserting that the Republican zeroing out of the individual mandate penalty effectively rendered the whole law unconstitutional.

That lawsuit could be rendered moot by a simple one-line amendment of the ACA specifying that the law’s provisions are separable, so that invalidating one provision doesn’t kill the whole law.

The ACA provisions crying out for repair include the so-called family glitch, which makes households ineligible for premium subsidies if only one adult member has access to health coverage at work.

Also needing an upgrade is the subsidy formula, which as written cuts off all aid if household earning exceed the limit of 400% of the federal poverty limit ($104,800 this year for a family of four) by even a dollar. Increasing the subsidy and expanding its reach on a sliding scale were part of Hillary Clinton’s platform in her 2016 presidential campaign.

The Democratic agenda must also include the DREAM Act, which was first introduced in 2001 to give immigrants who entered the U.S. illegally as minors the right to work and a path to permanent residency and citizenship.

Congress’s failure to pass the act led to Obama’s DACA program, or Deferred Action for Childhood Arrivals, which has been kicked around as a political football for eight years. Passage of the DREAM Act would make DACA unnecessary.

Democrats must also take steps to safeguard the electoral process, which has been undermined by Republican gerrymandering and voter suppression across the South. A proper first step would be passage of the so-called John Lewis Voting Rights Advancement Act, named for the civil rights icon and Georgia congressman who died in July.

The act would supplant the provision of the Voting Rights Act of 1965 gutted by the Supreme Court’s 2013 Shelby County decision.

There are many more items on Democratic and progressive wish lists — eliminating the Social Security tax cap, statehood for Puerto Rico and the District of Columbia, for instance. All will be subject to debate, but the best thing about the apparent Georgia electoral outcome is that now they will get debated, not asphyxiated in their crib by McConnell. That work starts now.