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Flag Since the Senate is so closely divided, bipartisan and more moderate Members (with some exceptions) have been taking the lead in negotiating major legislation during the second and final year of the 117th Congress. Here are the key Senators, and what potential strategies they could take on issues of:

I) Voting rights and institutional reform, and

II) The central provisions in the recently stalled Build Back Better Act, which was to be passed through the budget reconciliation process.

Primary focus is given to members of the U.S. Senate since legislation can pass the House of Representatives with a simple majority vote, unlike in the Senate which requires a 60-vote supermajority to override a filibuster, which President Biden is now open to carving out. With a more unified caucus, the Democratic majority in the House faces far fewer hurdles in passing widely impactful legislation, and thus the fate of most bills rests with the Senate.

An interesting point to note is that many of the Senators discussed also negotiated the Bipartisan Infrastructure Bill that the President signed in November. They also negotiated a hotly-contested Covid-19 relief package that was passed at the end of 2020.

I: Voting Rights, Elections, and Institutional Reform

On Jan. 3., Senate Majority Leader Chuck Schumer (D-NY) stated that he plans to bring two bills to the floor that concern protecting the right to vote and the fair administration of elections, as well as open debate on modifying the Senate filibuster in order to pass these bills. This announcement came in the wake of a passionate speech on the Senate floor by Sen. Raphael Warnock (D-GA) on the immediate threat to voting rights in the states, in conjunction with consistent pressure by activist groups and members of Congress alike.

As of now, two voting rights bills have passed the House and face an uncertain future in the Senate. The John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. In a nutshell, the John Lewis Act requires states or jurisdictions with a history of racial discrimination to receive preclearance by the Department of Justice before enacting any new voting laws. The Freedom to Vote Act was negotiated between Sen. Joe Manchin (D-WV) and Sens. Warnock, Tim Kaine (D-VA), Amy Klobuchar (D-MN), and Jeff Merkley (D-OR). The bill establishes a sweeping federal standard on how elections are administered and expands access to the vote. Both bills were filibustered by Republicans when they were introduced on the Senate floor.

There are three remaining options to pass any voting rights legislation.

First, find 10 Republicans to vote with all 50 democrats on some modified form of either of these bills. So far, the only Senate Republican to support any voting rights legislation was Lisa Murkowski (R-AK), who voted with all 50 Democrats to proceed with the John Lewis Act.

The second option is for Senate Democrats — or theoretically any simple majority of Senators — to make an exception to the filibuster rule for voting rights legislation. However, both Sens. Manchin and Kyrsten Sinema (D-AZ) have repeatedly voiced their opposition to this strategy.

Several Senators have been negotiating with Manchin and Sinema to discuss this potential carveout of the filibuster. In addition to Kaine, Warnock, Merkley and Klobuchar, Sens. Jon Tester (D-MT), Angus King (I-ME), and Alex Padilla (D-CA) have jumped in on these negotiations.

Finally, there is the prospect of abandoning all previous voting rights bills and instead pass an updated version of Electoral Count Act (ECA), to which some Congressional Republicans have recently indicated potential support. An updated ECA from the original 19th century version would address present day concerns of contested electoral college votes in the states. Sen. John Thune (R-SD) has reportedly said that there is “some interest” in passing a revised ECA among his caucus. This was followed by a Politico report that Senate Minority Leader Mitch McConnell (R-KY) is also considering it. In the House, Republicans Liz Cheney (R-WY, At Large) and Adam Kinzinger (R-IL, 16) have already voiced support for the act.

Most recently, Axios reported that Sen. Susan Collins (R-ME) led a Zoom call with various Senators on the prospect of reforming the ECA. She was joined by Sinema and Manchin, as well as Sens. Thom Tillis (R-NC), Jeanne Shaheen (D-NH), Mitt Romney (R-UT) and Roger Wicker (R-MS).

II: Build Back Better Act provisions: Expanding the Social Safety Net and Combating Climate Change

Since Manchin announced his opposition to President Biden’s Build Back Better framework that passed the House at the end of 2021, it appears the only way forward may be to significantly modify, cut, and potentially break up the key components of BBB. Below are the Senators who have expressed some measure of support for individual components of the bill, thus paving the way for a prospective compromise.

Childcare: In February, Romney proposed the Family Security Act, a bill that would provide a monthly cash benefit for families with children. The Build Back Better Act’s investment in childcare is much more expansive but includes similar themes.

Healthcare: Sen. Bernie Sanders (I-VT) has been leading a charge to expand Medicare to cover hearing, dental, and vision in BBB, which was then negotiated to just cover hearing. However, it is unclear if this even has the support of all 50 Democrats. There have also already been attempts to pass piecemeal healthcare reforms through the normal congressional process, which could face renewed interest if the provisions in BBB were to be cut. Sen. Mark Warner (D-VA) has introduced S.245, S.352, and S.999, while Klobuchar has introduced S.833, which would all expand Medicaid and Medicare to varying degrees.

Climate: If Democrats were to continue with the reconciliation process, Manchin has said he would be willing to negotiate on the issue of combating climate change above all the other provisions in Build Back Better. In addition, there are 14 Senators who comprise the bipartisan Senate Climate Solutions Caucus who could take a leading role in negotiating and drafting relevant legislation if BBB were broken up and advanced through the standard legislative process. These members are Chris Coons (D-DE), Mike Braun (R-IN), Shaheen, Romney, King, Murkowski, Michael Bennet (D-CO), Lindsey Graham (R-SC), Debbie Stabenow (D-MI), Marco Rubio (R-FL), Tammy Baldwin (D-WI), Collins, Jacky Rosen (D-NV), and Rob Portman (R-OH).       

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