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Build Back Better and the Future of the Biden Administration: An Interview with David Dayen

David Dayen is an American political journalist who currently serves as Executive Editor of The American Prospect. He has previously written as a freelance journalist and blogger, and his writings have been featured in publications such as The New Republic, The Intercept, and The Fiscal Times, among others. Dayen is the author of  Chain of Title: How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud (2016) and Monopolized: Life in the Age of Corporate Power (2020). He is currently based in Los Angeles

PS: The 2021 election came as Biden’s approval rating has dropped into the low 40s. What steps can Biden take to help his cratering approval rating recover?

DD: The main step to get the Build Back Better bill passed, but it’s also to make every effort and take every opportunity to fulfill the promises that he made to voters when he was elected. Now we have a vaccine approved for children up to as young as age 5. Biden’s approval ratings were never higher than in June when he was saying, “You’re gonna have a normal life again by the 4th of July.” The path to success politically seems to me to be able to fulfill that promise with respect to fixing the pandemic and getting people to some semblance of normalcy. Unfortunately, the supply chain issue based on years of bad policy with respect to logistics and monopolies and globalization is coming to roost on Biden’s watch, and that’s gonna probably be there through the midterms. That’s gonna be difficult to manage, but if he gets the pandemic under control and then takes whatever action he can take to make progress, then he’ll be in a good place.

In 2019, we wrote the Day One Agenda, which was a series of executive actions based on current law that the President could take that would make a real difference. The example everyone knows about is canceling student debt, which they can do at the Education Department under current authority. Another good one is drug prices. There was this huge wrangling among Democrats, some of them really bullied by the pharmaceutical industry. For what kind of Medicare price negotiation would be allowed, what they got is really, really modest; it’s 10 drugs per year, I think. This doesn’t even start till 2023, and it’s not going to do a whole lot. The executive has a lot of power, particularly on drug treatments that the US government paid to support through research and development. They can assess whether those patents and drugs are being provided under “reasonable” terms, which could include affordability, and if they don’t think that they are, they could seize the patents for a reasonable compensation, like an eminent domain for a patent, and then they could provide them to distributors who would be willing to distribute those drugs affordably. Even doing that once would make a real difference because it would show the industry that they mean business, that they’re going to do this. This administration needs to be more creative, determined, and diligent when it comes to executive action.

PS: Why is the Biden administration so reluctant to use the full scope of its executive authority? 

DD:. Biden is an institutionalist; he is a creature of the Senate and believes in law-making. It’s very bizarre because when you’re the president, the literal job definition is to take care that the laws are faithfully executed. Your role is to not come up with policy and pass it, that’s Congress’s role. Your role is to execute the laws and there’s a lot of laws over 200+ years that have not been used to their fullest ability which could be used to make progress for the American people. It is not tyrannical to do that; it’s simply using the constitutional authority granted to the executive. Biden is a little out of step here. He’s not thinking enough about these issues. 

Biden’s done some things which have been good; one of these items was creating a public option for banking at the post office. Postal-banking would promote financial inclusion and it would deal with the quarter of US households who have little or no access to financial services and who use alternative financial services providers that charge them exorbitant rates for use: payday loans or pawn shops or cheque cashing operations. The initiative would lower costs for very low income people while also raising a modicum of revenue for the postal service, and more importantly, connecting commerce around the country, which is Postal Service’s mandate. There’s no way to really know about it. It’s in an area of the Bronx that is fairly well to do, relatively speaking, and doesn’t have the kind of people who would need this service that the rest of the Bronx does. This is an example of how it’s not enough just to say, “We’re going to do this program”; we have to follow through.

PS: What is your opinion of the Afghanistan withdrawal? How do you think it reflects on Biden more broadly?  

DD: There was no other way to do what we ended up doing in Afghanistan; there was no ultimate way in which we could have ameliorated that situation. I think Biden was courageous. It took someone who had the credibility — or actually just sort of fancies himself as having the credibility — to defy the generals who didn’t want to leave. What we found is that there’s no greater friend to the neo-conservative establishment that wants us to be in endless wars than the Washington-centric media. They worked hand in glove to make that a political liability for Biden. That was a really disgusting scenario. Ultimately, I don’t think that was responsible for his poll slide, but it was an accelerant of it. Once it played into the resumption of the Delta variant and then all this dysfunction in Congress, it painted a picture of incompetence, even though Afghanistan is probably one of the more competent things that Biden has done.

We were never going to make a go of it in Afghanistan because we were the avatars of brutality in Afghanistan. The reason former defenders of the war were so upset with Biden’s withdrawal is that it forced them to reckon with the failure that they created 20 years ago, and it was a side of themselves they didn’t want to see. As a result, they decided to lash out, and it was very successful. It will be a message to future presidents, and that’s sad to say, but it will be a message to future presidents about the political downsides of any withdrawal. I don’t even know that I would call this one messy. There was one tragic incident that ended in a suicide bombing and a death. Other than that, hundreds of thousands of people got out of the country without loss of life, and it was as orderly as any chaotic end to a war could be. I just think that the level of propaganda coming out of the traditional media was really disgraceful.

PS: What do you expect of the Biden administration’s foreign policy going forward? Will they refrain from future interventions? 

DD: What we’re seeing out of Biden administration is a commitment to non-interventionism in sort of a big footprint military context, but not necessarily so in a light footprint, night raid, over-the-horizon bombing context, which I think he would be fully willing to do if circumstances arose. We still have this gargantuan military budget, we still have the ability to conduct those kinds of operations and the willingness to conduct them, and so pacifism has not broken out in Washington to any degree appreciably. Biden, I think, showed remarkable courage in standing up to the generals on Afghanistan, but that doesn’t necessarily mean that we’re going to see any kind of broader principle raised about non-interventionism.

PS: How much of a disaster was election day 2021 for the Democrats, looking at the 2022 midterm elections? 

DD: It was a foreseeable disaster. It’s pretty well known that 11 of the last 12 Virginia governor’s races have ended with the winner being of a separate party than the party in the White House. At the same time, Virginia is a much more blue state than it was. There was some reason to believe that that streak had ended and that it was more safely in the Democratic column; it clearly wasn’t. New Jersey is perhaps even more of a surprise for how close that race was because that is a pretty safe blue state, but Phil Murphy is the first Democrat to be re-elected in the State of New Jersey as governor in 50 years.

A thermostatic election is where the party in power loses their popularity and the opposition party returns to the fore. One thing that some people thought would break that cycle was the riot at The Capitol in January, and this was seen as something that would tarnish the Republicans for a successive election. The electorate had short memories as far as that’s concerned, and we ended up where we are. The main headlines for the last two or three months with respect to the national Democratic Party were really about dysfunction. Joe Manchin has been the most recognisable Democrat in America, and that’s not good if you want Democrats to be excited about going to the polls.

But also, Glenn Youngkin ran a pretty good campaign, separating himself from Donald Trump while also pushing a lot of the hot buttons. It was almost the reversion to Republican campaigns that actually make the dog whistle a dog whistle rather than making the dog whistle into a megaphone. They were able to play upon fears and some actually legitimate issues with respect to education — the frustration and anger that a lot of parents faced with no school for a year and a half in various communities and trying to deal with their kids— in addition to very coded arguments around Critical Race Theory. 

There are areas, however, where Democrats and even progressives did quite well in ways that will have long-lasting impacts for the future, including Michelle Wu in Boston and Justin Bibb in Cleveland. This has happened before, and it doesn’t necessarily say much about 2022. We’re just gonna have to wait and see. 

PS: How do you think Democrats should address the issue of “Critical Race Theory,” which was a key part of Youngkin’s gubernatorial victory. 

DD: Critical Race Theory, which was a coded way of talking about race, played off a real discontent that a lot of parents have with the way that schooling has gone during the pandemic. Democrats need a way to talk about that. Obviously, there’s a balance that had to be drawn between education and safety, but a lot of parents didn’t want to hear that. Most students are back now in classrooms, and, especially now with the vaccines, I think you’re gonna see this be less and less of a problem with fewer classrooms shut down because of outbreaks. 

It’s difficult to be the party in power when these kinds of things take place. You’re going to be blamed for something that at some level is a little bit beyond your control, but I think that I would just stick to the idea that Democrats have to do everything possible that they can do to make a tangible difference in people’s lives, not just for the electoral reasons, but because that’s the reason you’re in government. The reason you’re in politics is to improve people’s lives.

PS: How can congressional Democrats position themselves for a better showing in the 2022 midterms?

DD: Well, they’ve already started; they passed the Infrastructure Bill and put themselves on the path to pass the reconciliation package. I do believe that it’s better, all things being equal, to actually have a record to run on rather than no records. Some some of these important things — expanding the child tax credit and continuing that through so parents are getting between $300 and $360 every month to care for their kids, subsidies for child care, universal pre-kindergarten, lowering the price for prescription drugs — are pretty popular and sound pretty good as bumper stickers. If Democrats deliver on those promises, they may be rewarded, but the devil’s in the details. The problem is that Democrats didn’t really prioritize their vast suite of legislative options, and they tried to stick them all into this one bill. Even to this day, they’re trying to add things like paid leave back into the bill, and it’s only diluting the impact of them because you have this fixed amount of total funding, and you’re trying to throw all these things into the bill, and some of them aren’t going to be around for more than one year, or three years, or six years; practically nothing in the bill is permanent. 

There are other aspects that have been cut back so that they won’t have the same impact; they have means testing or other requirements that make them a very big hassle, and it’s going to be a problem for the party. A good example is in the Infrastructure Bill that passed, there is a $15 billion line item on drinking water that the administration continues to say, “We’ll eliminate every lead pipe in America.” It won’t. It’s probably a $60 billion enterprise. First of all, we don’t even know where the lead pipes are. You have to figure out a lot of things within that because you can’t just cut off a service line outside of the home and then connect a non-lead pipe onto it, that actually is worse because you’ve cut the lead pipe from the non-lead pipe and the lead can leach into an otherwise pristine system. So you have to figure out, are you gonna do eminent domain to go into people’s houses to get rid of the lead portion of the service line? There’s a whole host of issues that have to be figured out, and you just can’t do that on the cheap. The Biden bill initially asked for $45 billion; the bipartisan process gave them one third of that, $15 billion. It’s not nearly enough, and yet they’re using the same talking point and saying, “We’re gonna get rid of all the lead pipes in America.” Well, what happens when you don’t? The only thing worse than promising something and failing to deliver is claiming that you fixed that thing and then not having fixed it.

The implementation of both the Infrastructure Bill and the Reconciliation Bill are going to be really, really important here to actually follow through on these ambitions that were promised in the legislative process. Unfortunately, we sometimes don’t see a lot of follow-through from the Biden administration on these matters. A good example is back in April, to much fanfare, they announced that they would support a process to distribute vaccines and eliminate the intellectual property restrictions that were stopping other countries from manufacturing Pfizer and Moderna vaccines. This was the promise, and it was a big deal; it was the first time that Biden was crossing the pharmaceutical industry. The administration never followed through on it. To this day, there is no IP waiver at the World Trade Organization for vaccines. That lack of follow-through is almost as alienating as not doing the thing at all. That’s a really dangerous place for the administration to be, and they should know that it’s dangerous such that they actually have to deliver.

PS: What are some issues of implementation the bipartisan infrastructure bill faces?

DD: It will certainly not do the job that they’re vowing it would do. A big problem is going to be how much money gets tied up in consultants and reviews and white papers. Right here in California, the high speed rail project has been decimated because consultants stage-managed the whole thing and allocated a lot of the funding to themselves rather than actually building out the project. The United States is a terrible nation when it comes to bang for your buck for infrastructure. It costs much more to build these things here than in other parts of the world, and one of the reasons for that is these layers of bureaucracy and the layers of consultants. We don’t have a specialized public workforce for a lot of these bigger projects, and so they hire a ready-made consulting firm to do all of the design bid and build work themselves, and I think it’s a terrible model because that private agency is interested primarily in accessing profits for themselves, rather than getting value. This is another huge problem with the Infrastructure Bill. 

Another problem is whether or not it’s going to empower incumbents in a particular industry. A really good example of that is the broadband piece of the bill. There is $65 billion in this bill that’s supposed to build out broadband to every man, woman, and child in the United States. We have given, over the previous decade and a half, probably close to $50 billion to incumbent telecom companies, some of the most hated companies in the world. Comcast, AT&T, Frontier — we’ve given them all of this money to build out broadband, and they’ve taken it, and they haven’t really built out broadband. One of the initial ideas for this bill is to introduce some competition here to actually get this done, prioritizing co-ops and municipal programs and giving them the resources they need so they can compete with the telecom companies who will then get off their rear ends and actually deliver good service. 

In the end, what was written into the bill offers no prioritization whatsoever. It does not ban the laws that we already have on the books in about 20 states that restrict or prohibit municipal broadband companies or co-ops from participating in providing broadband to people, which just keeps the dominant telecom monopolies in control. The one thing it does prioritize in the bill are so-called un-served areas, areas that have no broadband speed whatsoever, and it only authorizes a level of a very low speed —something like three megabits per second— and claims that that constitutes broadband. No additional funding is going to be put forward to break down the telecom monopolies who have not distributed good service around the country. They are going to be more likely to hoover up these grants from the state and not deliver on the promises that they make. That’s another key sort of hinge point of this: is that money going to actually go to something useful or is it going to disappear? 

PS: The Biden administration’s climate agenda has been especially prescient in relation to the recent COP26 summit. Will the administration’s climate pledges and the commitments made at the COP26 have any tangible climate impacts? 

DD: Well, it depends. The agenda at large would; the bipartisan infrastructure bill would not. There’s one study that showed that under current policy, we are on track to reduce greenhouse gas emissions by something like 29% from 2005 levels by 2030. With the bipartisan infrastructure bill, we would reduce greenhouse gas emissions from 2005 levels by 30% by 2030: 1% more. Though there are provisions towards climate mitigation and resilience in the package, there’s also fossil fuel infrastructure built in, things like roads and bridges and highways and things like that. There are no guard rails to say that when we give this road and bridge money to a state that they have to use it to reduce greenhouse gas emissions. The Build Back Better Act not only has a lot more climate elements — basically all of the climate elements have been pushed from the Infrastructure Bill into Build Back Better — but it will have a feedback effect so that some of the benefits climate-wise in the Infrastructure Bill will be unlocked.

One of the only things that’s in the infrastructure bill that really is climate-related is money for electric vehicle charging stations around the country; different automakers have made proprietary plugs for charging stations. It’s like if you rolled up to a gas station and they said, “Oh, we’re only for Toyotas.” This obviously would not make you want to buy an EV, other than maybe the one that has the plug near your house. It would not give you confidence that, if you were on a 400 mile trip, that you could find a charging station that would actually be compatible with your specific automobile. One thing that needs to be done is some standardization around that. That’s not in the bill, but that’s something where potentially the government could say, “Look, there’s one plug, this is the plug that we use for the electric cars, and every automaker, if you wanna use our system, you have to conform.”

PS What’s next on the Biden administration’s agenda after the Build Back Better Act, assuming it gets passed?

DD: Yeah, that’s a really good question in this 50-50 Senate. The Republicans seem completely dedicated to continuing their process of obstructing any bill that they don’t like. There hasn’t been very much in a way of bipartisan cooperation. There’s one Senate bill they call the China Bill; it’s really more of an investment for domestic manufacturing that did pass the Senate and the House has sort of been sitting on it. I would expect that that will be a major initiative; it’s personally important to Chuck Schumer, so I would just expect that to move.

There are also things that have to pass. The end of the year is gonna be like a four car pile-up because you have the Defense Authorization Bill which passes every year. You have year-end funding — they extended the government funding out to December 3rd, so there’s a deadline there. You also have the debt limit that needs to be extended after December 3rd and you have Build Back Better, so they have to figure out all of that. I think nobody is looking much further than that into what the 2022 agenda will be, and my suspicion is it won’t be very robust.

The Democrats have literally put all of their eggs into the Build Back Better basket. There is one additional opportunity that Democrats would have to do another Reconciliation Bill next year. That could have whatever else that they feel is important and that they might have missed in this particular bill, but considering the ringer that Congress went through in getting this Build Back Better Act even close to over the line, there’s probably gonna be some reluctance among the Democratic party to go through that process all over again.

Peter Swope: Do you see any way that a Democratic voting rights bill gets done, or is that just a lost cause? 

David Dayen: It really comes down to the filibuster. They had two votes in the last few weeks in the Senate: one on the Manchin-lead version of HR1 for the People Act, which got 50 votes exactly, and another on the extension that they call it the John Lewis Voting Rights Advancement Act, the extension of Voting Rights Act to restore the things that Shelby County, the court ruling, took away.  They got 51 votes; they got Lisa Murkowski for it, but nobody else. You either want to improve the situation and the ability for everybody to vote in this country or you want to maintain the filibuster; there really is no Plan C here. That’s the choice that people like Manchin and Sinema and whomever else are making.

I’ve heard rumors about them using a carve out to the filibuster and say it’s only for voting rights, but as soon as you do that carve out, it isn’t only for voting rights I think that Manchin and Sinema know that if they relent on one thing, they’re going to be induced to relent on all of it, and they clearly don’t wanna do that. It is that stark of a choice; it’s really just about the filibuster.

PS: What are the political stakes of altering or removing the filibuster? 

DD: It’s kind of a crazy situation Mitch McConnell is putting up. He’s saying, “Don’t get rid of that, or I’ll do something crazy, like hold up the Senate,” which is what he already does. The difference is that Republicans don’t really need the filibuster to achieve their goals. They have made it such that all of the things that they really, really want are available under a 50 vote Senate, the first being judges and the second being tax cuts, which they can do through reconciliation. It’s an uneven playing field. The fact that you can give a giant tax cut to millionaires with 50 votes, but you can’t get everybody the guaranteed ability to vote in this country without 60 should really be problematic to the people in the Democratic party making these decisions, but it never seems to be that way. There’s this defensive crouch of, “We have to stop their agenda,” but their agenda can’t be stopped if they have any majority, so it’s a bizarre situation.

Peter Swope: If the Democrats are unwilling to alter or remove the filibuster while controlling the White House and both houses of Congress, how could legislation in areas like voting rights — or anywhere else outside budget reconciliation — ever get passed? 

DD: Well, that’s a million dollar question, isn’t it? I’ve been talking about and writing about the filibuster for well over a decade. I remember talking to Jeff Merkley, who was one of the leading voices on filibuster reform, in 2009, his first year in the Senate. I remember him saying to me, “I was a Senate aide back in the ’70s, and I would watch. There were actual debates and there were actual arguments made, and it’s just a completely different institution, nothing goes on there.” When you watch C-SPAN and you see a Senator making a speech, what you don’t see is the rest of the gallery. There’s no one else there; there are no debates happening in the world’s greatest deliberative body. You essentially can send an email to the Senate Leader saying, “I’m going to filibuster,” and that’s the end of the story. It’s a huge, debilitating problem for democracy. I would certainly prefer a model where there would be no Senate. Parliamentary procedure is far preferable. When we go into other countries and depose their governments, we don’t institute a system as dumb as ours; we institute a parliamentary democracy.

Beyond that, I certainly think that a party that gets elected and put in an office should be able to, through a majority vote, put forward their agenda and see if the public likes it or not. If the public doesn’t, then they can make a change. Right now, the filibuster protects both parties. It protects the minority party that doesn’t want to see the majority party do anything, it protects the majority party by giving them someone else to point to as the reason why they can’t get everything done. This is one reason why I think there was such a sapping of the Democratic brand and the Biden approval rating with respect to Build Back Better: they didn’t have anybody to blame but themselves. 

Peter Swope: Shifting to the judiciary, what do you expect to happen in the realm of the Supreme Court in the next couple years? Is there any real possibility of a major alteration to the structure of the Court? 

DD: Biden put together this independent commission to talk about changes to the court and really has done nothing. This commission does not look to be recommending the kinds of changes like court expansion that some people want. Biden can actually do a whole lot of good by expanding the lower courts, which is something that Jimmy Carter did in the late 1970s. It was the last major expansion of the judiciary, but Biden has not come through on that either to this point. Although he has nominated a lot of judges, he has certainly not expanded either the lower courts or the higher courts, and I see no reason why he would at this point.

The real question, as far as the composition of the Supreme Court is concerned, is whether Stephen Breyer is gonna actually retire before the Democrats lose the Senate, which could potentially happen next year. That would be fairly disastrous if Breyer were to remain on the Court and Republicans received the Senate. The experience of Merrick Garland shows that Republicans would have no problem holding that seat open for as long as they want. You could not just see a 6-3 Court; you can see a 6-2 Court for a while if Breyer doesn’t retire this summer, which he could.

We’re one heartbeat away from Republicans being in charge of the Supreme Court. It’s ghoulish to say it, but there are a lot of old senators out there, some of them Democrats in states that have Republican governors. Just look at Ted Kennedy in 2008 and 2009 to the possibility of a seat flipping. In this case, that would mean control of the Senate. Biden is certainly trying to fill the vacancies he has, but he’s not doing anything out of the status quo.

PS What major cases will the Court be deciding soon, and what kind of reaction do you expect these cases to elicit? 

DD: There are two cases about abortion. There’s the Texas case which was heard on November 1st and it does appear that that case might be a bit too far for the justices. It’s a road map to how blue states, for example, could deal with gun control laws. They could do the same kind of vigilante justice, where private citizens can sue gun manufacturers or people with a gun or people intending to get a gun; I think the justices won’t wanna go there. However, there’s the Mississippi case, which I feel is going to lead to, if not a wholesale throwing out of Roe v. Wade, something that reduces it to the part of negligibility and creates a situation where we have some states that have a legal right for women to make their own medical decisions and we have other states that don’t. Functionally, we have that right now, in Texas and many other states; in terms of the actual access, there’s one abortion clinic in all of Mississippi, one clinic in all of Alabama. 

We don’t have an appreciation for how abortion is already a two-tiered system in the United States, and that will just worsen with the expected ruling. We did a piece earlier this year about the younger pro-abortion generation — they very distinctly use that term, pro-abortion — and younger people who have never lived in a world where abortion was restricted at the legal level, and what they’re doing to join a movement to stop that. I think it’ll be interesting to see how particularly young women react to this and what they end up doing.

Peter Swope: What do you think will happen if Roe v. Wade is overturned? Will it have immediate political consequences for the 2022 midterms?

DD: The right to an abortion will persist because there are a lot of trigger laws in the states that say, “If the ruling in Roe V. Wade is overturned, we will legalize abortion in the State of California,” or vice versa, “If Roe V. Wade is overturned, we will make sure that it’s illegal in this red state.” You’re gonna see a very rapid bifurcation in the event of that ruling. I think that it’s possible that there could be some level of backlash, but I think people are gonna go to the polls on the basis of the economy, and the pandemic, and largely that.

This interview has been edited for length and clarity.