Democrats Are Finally Fighting in the Legislative Trenches. Good.

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A moment comes, in any endeavor, when you have a last chance to take a shot, and when taking that shot is the only possible route to success. Looked at from the other direction, it’s a situation so desperate that it doesn’t matter if you fail, because failure is also the price of inaction. It also doesn’t matter how you fail; there’s no longer a need any half-measures, because the worst outcome stays the same. The safety net is gone. In such circumstances, you might as well go for broke.

That’s where Democrats find themselves in 2020. Lose the midterms, and Republicans control both chambers of Congress, and the best-case scenario is that Biden keeps the presidency in 2024 and we maintain the status quo, which is a slow stalemate that leads to ruin. But how do you lose the midterms? Three ways:

1. Inaction. The president’s party routinely struggles in midterms, and doing nothing, whether because of Republican obstructionism, Senate rules designed to handcuff the ruling party, or the constant rebellion of Joe Manchin types, leads to one place: Annihilation in 2022.

2. Watered down compromise material. If, in order to lure the Manchin/Sinema “moderates” (or worse, to suffer the delusion that you might sway actual Republican), Biden and the Democrat Senate and House turn in feckless pieces of legislation whose benefits are difficult to explain and harder for people to understand, full of means testing and compromise measures, you will lose the midterms. We saw it happen with Obama; it will happen again.

3. Go for broke and fail. Try to get everything you want, by hook or by crook, even if it means setting up the circumstances for the other party to do the same when they take power. Try to show the American people that you’re serious about doing something for them, but get blocked by Manchin/Sinema or the parliamentarian or Republicans or just bad luck. In that case, you also lose.

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Here’s the key point, though, and it hearkens back to that first paragraph: We’ve reached the point of no return. If you fail now, in any way, it doesn’t matter what the fallout looks like, because you’ve failed for good. The sheer amount of people who came out to vote for Trump, even though he lost, was our first indication that even as bad as things get in this country, seemingly nothing will steer us off course from the polarization that leads to a near 50/50 split. If you can’t change that now, at least to gain a slight edge through smart, beneficial policy, it’s likely that it will never happen. We cannot afford a stalemate—not with climate change and its promise of pending catastrophe—and we certainly can’t afford Republican control.

In short: A loss looks the same no matter how you achieve it. A loss is catastrophe. Given that, which of the three options above would you choose? The answer, of course, is no. 3: If you’re going to lose, you might as well shoot your shot.

Luckily, that seems to be exactly what the Democrats are doing. Chuck Schumer, who hasn’t exactly inspired confidence with his past leadership, seems hellbent on passing Joe Biden’s infrastructure bill through Congress using budget reconciliation. Per Politico:

Schumer has asked the Senate parliamentarian, the upper chamber’s official adviser on procedural matters, for her OK to essentially recycle the same reconciliation process used to pass Biden’s pandemic aid package earlier this month. But his request, if granted, would further stretch a legislative tool that wasn’t designed for the sorts of policy goals that both parties have used it to pursue.

You may remember the Senate parliamentarian, whose arbitrary ruling during the COVID relief package screwed Americans out of a $15 minimum wage. It’s an open question whether this parliamentarian, Elizabeth MacDonough, will grant the request, but if she does, it will open the door for Democrats to pass almost anything they want using reconciliation. As it stands now, 60 votes are needed to overcome a Republican filibuster, and with just 50 senators on the side of the Democrats, that is an impossible number. If this reconciliation tactic works, 50 votes will be the new threshold for almost any piece of legislation.

Because this is the Senate, it comes with complications. These include voting marathons, compulsory time spent on the floor in both Houses, and the highlighting of potential Democrat infighting—mostly involving, yes, Joe Manchin—that would otherwise not emerge in the world of an effective filibuster. It’s ugly, and it’s mind-numbing, and it could lead to the parliamentarian killing whole chunks of Democratic policy if they don’t follow every arcane rule in the book. Should it work, it also paves the way for Republicans to do the same thing when and if they retake power.

It’s also, at the moment, the only way. As nice as it would be to kill the filibuster once and for all, if that proves impossible, resting on your laurels is not an option. The fact that Democrats are picking their way through the rule book in an attempt to find a loophole is a very good thing—their time is now, and they can’t afford to waste it.

Some of the quotes from legislators are hilarious:

“My reading of the text of that section [of the law] seems like it’s perfectly okay to do it,” the House Democratic lawmaker said. “I didn’t know it was ever in there.”

Between the infrastructure bill and a voting rights bill that emerges at a crucial time when red states are passing laws to restrict voting, there are some massive pieces of policy on the agenda. The infrastructure bill raises the corporate tax rate, and the voting rights bill…protects voting rights…which means that Republicans will be fiercely opposed to both. Passing them will require an incredible effort by Democrats, even just to get their own team on side. And outlets like the New York Times will continue to be fixated on why they can’t work, or the obstacles that stand in the way. It will be hard.

Still, when there’s nothing to lose, you might as well try to pass the laws of your dreams. There will be flaws in every piece of legislation, but for the first time in my lifetime, a Democratic president is actually taking progressive steps in the right direction, and he has the support of Congress. It’s an opportunity wasted by Barack Obama, but Joe Biden seems to know better. At this point, you have to capitalize on your advantage, or die trying. The Democrats are pulling out all the stops, and it’s stunning to witness for a country that has watched them engage in a decades-long shoulder shrug leading up to this administration. They must keep going, come hell or high water, and if failure is the result, at least fail grandly. Nothing is worse than knowing you didn’t try everything.