A 2021 Policy Primer: Federal Level

Part 1: Some expectations and hopes for policy and legislation in 2021.

Good news: 2020 a year that felt like it’d never end, is in our rearview mirror. Sláinte to you and yours.

Not-so-good news: The next 11 months will not be the reprieve from political vitriol we’d like. Heck, the first few days of 2021 were just an extension to the 2020 election cycle, with the Georgia runoff elections like sequels no one requested, and the terroristic culmination of misinformation and far-right extremism at the U.S. Capitol.

That said, this year will be a mixed bag of reruns from years past and new problems to solve. Let’s look at some expectations and hopes for 2021, some that will likely move forward and others that will could remain stuck in legislative limbo.

Please note: An analysis of Joe Biden’s newly proposed American Rescue Act will be posted separately.

New White House and Congress, who dis?

The newly minted 117th Congress is notably different than the last. It’s more diverse, the Democrats flipped the Senate, and Republicans picked up a chunk of seats to cut into the Dem majority in the House.

While it’s a victory for Democrats and loss for Republicans, the switch in the Senate does not mean liberal and progressive legislation will sail through Congress on its way to the Resolute Desk. Vice President-elect Kamala Harris will probably spend a lot of time in the chamber to break ties, and conservative and centrist Democrats like Joe Manchin (W.V.) are tough sells on eliminating or reforming the Senate’s cloture and filibuster rules. (I.e., requirement of at least 60 yes votes to pass legislation and use of debate to block or delay a vote on a bill.)

In the House, the slim majority for Democrats will likely prompt renewed Republican pressure that could manifest as as obstruction on legislation and stronger bargaining positions when negotiating bills. The new landscape will also likely embolden progressive Dems who have been yearning to put a hand on the wheel for some time. This will be most prevalent in debates on health care, climate change, and gun access policies.

Let’s turn to the specific issue areas.

Addressing the January insurrection

Following the events on January 6, there will be several moves to improve how our democracy works and how we confront domestic terrorism following the riot at the Capitol.

  • The House already impeached President Donald Trump. A trial will likely happen sometime after he leaves the White House.
  • Meanwhile, there’s talk of how to address members of Congress who stoked or otherwise supported the riots, with chatter on censuring or even expulsion of those members. However, the longer members of Congress wait to follow up on this, the less likely we’ll actually see any kind of article that would do either of these.
  • To address claims of mass voter fraud (which are baseless), Republicans in the House and Senate will most likely push for investigations into the 2020 cycle, much like Trump’s commission on voter fraud after 2016 that found no evidence of any such thing. We can also expect steadfast opposition to any expansion voter access on the grounds that it would invite further fraud or because “states’ rights.” (Election systems are handled at that level, after all.)
  • That Democrat-led expansion of voting access could take several forms, but it will likely mean reupping House Resolution 1 from the previous Congress. If passed, this would enact automatic voter registration, redistricting reform, and refurbishment of the Voting Rights Act that was gutted in the 2013 Supreme Court case Shelby County v. Holder. I’m not sure how likely this would pass in the evenly split Senate; Democrats would need to peel off at least 10 Republican senators in order to pass such a bill.
  • To directly address the riot and the growing threat of domestic terrorism, Congress will likely open investigations into the events leading up to the insurrection as well as the mob’s breach of the Capitol itself. Expect legislation that would direct the Department of Homeland Security to focus more on white supremacist and far-right groups. The Intercept has a good piece on this here.

Fingers crossed: My personal hope is that the 2020 election circus will keep pressure on Congress to abolish the Electoral College. The act itself isn’t likely to happen this year—it would take a constitutional amendment to do so, and the current system heavily favors one party that shows little sign of support for reform—but an ongoing movement to follow through could pick up steam with the new Congress and the previous election fresh in our minds.

Expectations with much certainty

The most certain thing is another economic stimulus package. I’ll have more on this in a separate piece, specifically Biden’s proposed plan. In the meantime, here are two developments we’re (almost) certain to see in Congress this year.

  • Large-scale health care reform – To create the federal public option he wants, Biden will need to strengthen the existing Affordable Care Act. Doing so might require reimplementing the individual mandate penalty that is currently set at $0, although the pending Supreme Court case regarding the ACA might change this. House members on the left will most likely introduce their own bill that, if passed, would establish something closer to universal coverage. (Passage of this in either chamber is unlikely.) In any case, there will be sharp opposition from Republicans.
  • Immigration reform – Biden included this in his top priorities as a candidate, including stabilizing the citizenship status of DACA recipients. The Supreme Court made this easier when it rejected the Trump admin’s plan to dismantle the program and deport the 700,000 “DREAMers.” Biden also said he’d like to improve the system in which we admit refugees and asylum seekers. He’s made much ado about working with the legislative branch; we’ll likely see some type of bipartisan bill that will both increase immigrant admissions and “strengthen” our southern border to appease both sides of the aisle. Still, if this fails, his office has a great deal of authority over immigration and could act unilaterally.

Conditional expectations

Biden’s two-part stimulus plan will include a slew of progressive agenda items, some of which could be negotiated out of the final legislation. Here are three that, if removed from the stimulus, would most likely pop up again as separate legislative plans.

  • Addressing climate change – Biden is likely to include part of his clean energy economy in part two of his economic stimulus proposal; if this doesn’t happen, he and Congress will look to take steps through separate legislation. In either case, it’ll be a hard sell to some moderate Dems and most Republicans who are skeptical of the federal government’s role in the fight outside of environmental regulations …or simply skeptical of climate science itself. Still, there were some signs of interest from last year. In addition to a funding boost for nuclear energy infrastructure, the Senate did introduce the American Nuclear Infrastructure Act that would further boost nuclear energy production, something we’ll need in order to transition away from fossil fuels. Meanwhile, the auto industry has showed its willingness to (maybe even excitement for) developing better electric vehicles.
  • Raising the federal minimum wage – If this is taken out of Biden’s existing framework, congressional Dems will likely pursue raising the minimum separately. Remember, public support for increasing the minimum is high and includes a large chunk of Republicans, and the House passed a sweeping bill in 2019 that would have raised it to $15 per hour by 2025 and tied increases to the national median wage (called “indexing”). However, unless the filibuster in the Senate is removed, this would very likely die again in the upper chamber.
  • Student loan forgiveness – Right now, Biden supports forgiving up to $10,000 in student loans for borrowers. This could be included in part two of his stimulus plan, but there’s a good chance such a provision would be taken out during negotiations. If When this pops up separately, expect debate among Democrats. Progressives want a larger forgiveness program while moderates and policy experts have pointed out a larger program would not be targeted for the most needy but instead heavily benefit higher income Americans. (Whether or not this completely discounts a program like this is another matter.) Still, Biden has implied he could be convinced to increase forgiveness amounts—he just doesn’t want to go as far through executive action. If Congress can sort out a plan and include it in budget reconciliation (a complicated filibuster workaround), Biden would likely sign off.

The other stuff we’ll likely see

Here’s a rundown of other stuff, a menagerie policy issues separate from economic stimulus and the pandemic.

  • There’s been significant hubbub on both sides of the aisle regarding drug pricing. If you remember, Trump signed an executive order last year that would address the exorbitant cost of prescription drugs. This move doesn’t actually do anything but, coupled the overwhelming number of bills proposed during the last Congress, it does show an overall appetite in Washington for passing something.
  • While not exactly certain, this could be the year for fully legalized marijuana. The House passed a bill that would have decriminalized the drug and expunged criminal records tied to the drug and several states went ahead with doing so themselves last. Biden has softened significantly on this, and Senate Majority Leader Mitch McConnell (R-Ky.), who opposes this and has stalled legislation on the subject, will transition into Senate Minority Leader. With growing public support, this could pick up steam and sail through Congress this year—if Washington can juggle it with other things.
  • There’s also more to do in federal criminal justice reform, from prompting states to shrink jail and prison populations to setting national policing standards. Here are three best guesses: Congress will try to build off the First Step Act, for instance by expanding recidivism-reducing programs, since it’s easier to work with an existing plan instead of introducing a new one; expand expungement of criminal records to tamp down on discrimination towards returning citizens, since this could help address unemployment; and abolish the death penalty after a grossly busy year for the practice. Last year was a watershed for justice and equity, something could translate into meaningful policy changes. The Brennan Center for Justice has a 2021 criminal justice agenda here.
  • In another “strike while the iron’s hot” example, Congress and the executive branch might want to continue intensifying its attention on Big Tech. Last year, we saw congressional hearings, reports, and lawsuits covering the reach and business practices of those companies, including Apple, Google, Facebook, and Amazon. Enough of those developments were bipartisan—the antitrust suits against Facebook and Google, the huge report from the House Judiciary Committee on Big Tech’s monopolistic activities—for us to assume this will carry over to 2021 with some results. However, if the federal government wants to take a big swing at stronger antitrust policy, its first step will need to be addressing the Federal Trade Commission’s budget woes.

There are also issues that should and could be addressed, but probably won’t be. That would include gun access laws and Senate filibuster reform. The former got little attention last year. Democrats might shy away from a debate on this, as the issue is polarizing and they won’t want to alienate swing voters that could erase their slim majorities in either chamber. The latter, the primary barrier for much of the stuff listed in this piece as well as admitting DC as a state, reforming the Supreme Court, and virtually any “big legislation,” simply does not have enough support in the Senate to be fully addressed.

Finally, there are pet issues of mine, a few smaller-but-important policies worth pursuing this year.

  • Congress should (don’t yawn) put together a commission to explore the 2020 Census mess (i.e., complications from the pandemic and the Trump Administration). The fallout from this Census could have a damning impact on determining federal funds to each state, congressional apportionment, and redistricting. We can’t afford to overlook this.
  • It’s high time we started a federal baby bond program. (With one, every person would receive a savings account at birth; the federal gov would add to it every year until a person turns 18.) Doing so would provide a lifeline to individuals and families that cannot afford things that were once much more commonly so, such as homeownership or affordable higher ed. While a race-neutral program, this would also go far in addressing the racial wealth gap. Senator Cory Bush (D-N.J.) and Congresswoman Ayanna Pressley (D-Mass.) are hoping to include this in the next stimulus package. Congress should pursue this if that doesn’t happen.

That’s a lot to keep in mind for 2021, and it’s not an exhaustive list. It excludes some obvious ones, like legislation on infrastructure, broadband access, housing, and universal paid family leave. I don’t mean to write these off—we just don’t know how and when they’ll pop up since Biden’s stimulus package will likely include each of these and others.

It will be interesting to see how far off the mark these expectations will be a year from now. If you disagree with the likelihood of any of the issues mentioned, or if you would like to share other policy problems you expect to see this year, leave a comment or shoot me an email at 101policycorner@gmail.com.

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