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The Untrained Bipartisan Deal-Makers

The senators negotiating the infrastructure package don't have
expertise in infrastructure, and it's showing.

 

Sen. Susan Collins (R-ME), one of five Republican senators negotiating
the bipartisan infrastructure bill, speaks to reporters as she leaves
the Capitol, July 22, 2021. (Jose Luis Magana/AP Photo)

 

****

**** The best indication of the state of play on the by-now-comical
bipartisan infrastructure framework came over the weekend, when two
separate reports crossed the wires. On one end, members of the team of
senators negotiating the bill were on the Sunday shows touting that
their work was "90 percent done
"
and would be ready for viewing
within 24
hours. On the other was a source close to the talks telling a

**Hill** reporter
that the
outstanding issues included transit, broadband, water funding,
prevailing wages for construction projects, offsetting the price tag
with unspent COVID relief money, and even "highways/bridges."

In other words, except for everything, the bill was in good shape.

This has been the trajectory of these talks throughout, with continual
happy talk punctuated by ever-widening gaps between negotiators on the
actual substance. Though the White House and the senators announced
their endorsement of the tentative agreement on June 24
,
a month has now passed and they're no closer to a deal.

The latest drama came when Democratic negotiators delivered a "global
offer" on all outstanding issues in the package, and on Monday morning
Republicans rejected it
, claiming that
it "goes against" previously agreed-to terms. "If this is going to be
successful, the White House will need to show more flexibility," relayed
a GOP source
to multiple
reporters.

It's first worth noting that Republicans didn't mention an actual
policy that Democrats were trying to renegotiate. But even if the Dems
were renegotiating, it's rich for Republicans to complain about it,
seeing as they have already demanded a Simone Biles level of flexibility
on issues that were long settled decades ago.

Take the Davis-Bacon Act, which requires that all public-works projects
pay workers the prevailing wage in a particular region. This dates back
to 1931, enacted under Herbert Hoover while Franklin Roosevelt was still
governor of New York. Details are scant, but Republicans apparently want
to create an exemption to an 80-year-old statute that was designed to
cover precisely this kind of infrastructure spending.

**Read all of our infrastructure coverage here**

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The Republican position on transit is a bit more obscure but just as
norm-shattering. The best explanation for what's going on was in Roll
Call

last week. The important context here is that the bipartisan bill is
actually two bills. One is a bunch of new spending on various "hard"
infrastructure projects, with offsetting revenues that cover their
costs, ensuring there's no impact on the budget. The second is the
surface transportation reauthorization, a vehicle for routine spending
on transportation projects that gets renewed roughly every five years.
These costs are already partially funded through the gas tax; what
changes with each reauthorization are various policy matters and the
funding ratios.

Since 1983, one ratio has held firm: New funding into the Highway Trust
Fund has been sent out with an 80/20 split between highways and mass
transit. Democrats would like to harmonize this across all gas tax
revenues, not just from post-1983 increases. Republicans resist that,
and argue that because transit will be getting a $48.5 billion infusion
from new spending, the 80/20 split doesn't have to be adhered to. In
fact, Republicans want to roll it back to 82/18. (Because of the lack of
an 80/20 ratio on older gas tax funding, the real split is more like
88/12 in favor of highways.)

It should be noted at this point that 80/20 is a ridiculously low ratio
in the face of climate disaster. Highway projects that reinforce fossil
fuel infrastructure (unless you think we're electrifying the auto
fleet anytime soon) make no sense in world that is simultaneously
flooding and burning. Yet even this bare minimum of an 80/20 split is
triggering a fight.

The reason is that transit is the only major part of the surface
transportation bill that the Senate didn't resolve prior to this
bipartisan negotiation. The Senate Commerce Committee and the
Environment and Public Works Committee reported out their parts of the
reauthorization. The Banking, Housing, and Urban Affairs Committee has
jurisdiction over mass transit, however, and there a dispute engineered
almost entirely by retiring Sen. Pat Toomey (R-PA) has derailed things.

Toomey has consistently objected to the 80/20 split, arguing that
transit has gotten enough

from COVID relief funding. It's a nearly 40-year-old precedent that
Toomey is trying to usher out the door.

Toomey, we should note, is not among the 11 Republicans who have said
they'll vote for the bipartisan bill if the five GOP negotiators
approve it-but all those 11 have pledged to adhere to Toomey's
demand. Worse yet, none of the five Republican senators negotiating the
bill-Rob Portman, Mitt Romney, Lisa Murkowski, Susan Collins, and Bill
Cassidy-are on the Banking Committee
, and therefore have no
jurisdiction or (likely) familiarity with the transit funding issue.
None of them are on the Environment and Public Works Committee
either, and
that's also true of the five lead Democrats doing the negotiating
(Kyrsten Sinema, Joe Manchin, Mark Warner, Jeanne Shaheen, and Jon
Tester; Sinema, Warner, and Tester are Banking Committee members,
however).

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It's through this tortuous channel that the bipartisan bill has run
aground. You have a bunch of freelancers-with next to no familiarity
with the infrastructure matters on which other Senate committees
work-hammering out an infrastructure bill. That's what led Portman
and even some Democrats to suggest

that transit could be "left out" of the bill and picked up later.
That's a classic Washington trick, to set the contentious piece aside
and move forward with everything else. Except leaving transit out of an
infrastructure bill makes no sense, and the idea that you can just pick
it up in reconciliation is simply incorrect
.
Reauthorizations of existing statutes cannot be done in reconciliation;
you'd need to redo the surface transportation bill all over again
through regular order, in just as fraught a process.

As noted, transit isn't even the last outstanding issue. The
bipartisan group has also hacked away at a water bill that passed the
Senate 89-2, generating a lower level of funding. The specific numbers
on revenue include a piece on pharmaceutical rebates that Bernie Sanders
had grabbed for his reconciliation bill, so there's a fight over
pay-fors. The initial agreement seems to have been the kind of thing
where you say to a friend, "Let's have lunch sometime," without
agreeing to when or where or what kind of food or literally anything
else.

As I've said previously
,
Democrats really need to know what the deal is on the bipartisan bill
before the move forward with the reconciliation process, because they
have to set a spending figure for that package and cannot estimate it
without knowing whether they have to fold in the hard-infrastructure
elements. Some Democrats have suggested just moving on to reconciliation
,
though that would strand the surface transportation reauthorization.

It's hard to wait out the interminable bipartisan process-many would
argue the interminability is intentional-without wondering why it's
still being discussed. With Trump firmly on the side of no deal

and holding sway over the entire Republican Party, the odds of actually
striking an agreement have always been slim, and the endless delay plays
right into Mitch McConnell's hands. Despite Nancy Pelosi's continued
vow

to hold up all infrastructure bills until they pass the Senate, thereby
ensuring a big reconciliation package, that completely sidelines the
House from the substance of the legislation, adding to growing
frustration
.

Things could change rapidly; in Washington, they often do. But so far,
it seems the only thing the bipartisan talks have accomplished is
angering everybody. In fact, at least from the Republicans'
standpoint, that looks to be the point.

 

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