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David Dayen on Rail Contract Bill, Respect for Marriage Act, Debt Ceiling & What a GOP Congress Means

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With a new Congress being sworn in next month, Democratic lawmakers have a busy lame-duck session during which they will try to pass as many bills as possible before losing their majority in the House of Representatives. The Senate has just passed the historic Respect for Marriage Act in a 61-36 vote that protects marriage equality, and lawmakers are also moving to impose a controversial contract on the freight rail industry to avert a possible strike by thousands of rail workers who are demanding sick days and other improvements. Meanwhile, a fight is looming over a funding bill to avoid a government shutdown. For more, we speak with journalist David Dayen, whose recent piece for The American Prospect is headlined “Reconciliation Is Available to End Debt Limit Hostage-Taking.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, as we look now at what could happen in these final weeks of the current Congress, which will be a very busy lame-duck session as Democrats try to pass as many bills as possible before losing their majority in the House and control of Congress is divided.

Wednesday already saw a major changing of the guard in the House, when Democrats unanimously elected Hakeem Jeffries of New York as their new leader, making him the first African American to lead a political party in Congress as he succeeds Nancy Pelosi, who led Democrats there for two decades.

Amidst concerns the Supreme Court may overturn current same-sex marriage protections, the Senate voted Tuesday to pass the historic Respect for Marriage Act in a 61-to-36 vote, which will require the federal government and states to recognize same-sex marriage.

On Wednesday, the House passed legislation to block a nationwide rail strike by imposing a contract rejected by unions representing the majority of freight rail workers. It also passed a separate bill by a much narrower margin to give seven days of paid sick leave to railroad workers, but it remains unclear if the provision will pass the Senate.

Democrats also face an uphill battle in passing a long-term government funding deal to keep federal agencies operating.

To discuss all this and more, we’re joined by David Dayen, executive editor of The American Prospect, who’s been following all of this closely, his recent piece headlined “Reconciliation Is Available to End Debt Limit Hostage-Taking.”

Before we go to that, let’s talk about what they did do this week, David. Let’s first talk about the same-sex marriage Respect for Marriage Act that was passed by the Senate, many Republicans joining with Democrats. Talk about what was accomplished in this and what was compromised in this.

DAVID DAYEN: Yeah, well, as you said, this is a bill that comes out of the Dobbs ruling at the Supreme Court, which was about abortion, but in that, in a footnote in the concurring opinion, Justice Clarence Thomas said that the same logic could be used to take down Obergefell, which is the same-sex marriage ruling that allowed for those marriages to be conducted in the United States.

So, this bill, as you say, got 12 Republicans in the Senate. An earlier version got 47 House Republicans to vote for it. And it requires — if there is a same-sex marriage that is legally performed in one state, it requires other states to accept that marriage.

The one thing that it does is it adds a sort of conscience protection that says that this doesn’t force any vendor to engage in anything that violates their religious beliefs. There’s actually a Supreme Court ruling — or, Supreme Court case based on a situation in Colorado with a graphic designer that is going to adjudicate this even further and say whether that forcing — or, you know, saying that that person must create designs for a same-sex wedding violates her First Amendment rights. But certainly, this bill will not stand in the way of that. However, it is certainly an advance to codify the protections of Obergefell into federal law.

AMY GOODMAN: I mean, you had the powerful speech by Tammy Baldwin, the first openly LGBTQ senator elected. I wanted to play a clip of the Wisconsin senator.

SEN. TAMMY BALDWIN: I want to recognize the millions of same-sex and interracial couples who have truly made this moment possible by living their true selves and changing the hearts and minds of people around this country. Many of these same-sex and interracial couples are fearful. They’re worried that the rights, responsibilities and freedoms that they enjoy through civil marriage could be stripped away.

AMY GOODMAN: And you have the conservative Wyoming Republican Senator Lummis who gave a powerful speech on the floor, also supported the Respect for Marriage Act, and said she had been vilified and received enormous amount of hate mail for supporting this act. But I wanted to ask you, David, why we don’t see the same kind of passage of a sort of a Roe v. Wade law passing the Senate.

DAVID DAYEN: We wouldn’t get 12 Republicans for it in the Senate, I think, is the answer to that question. Clearly, there was enough of a coalition built on same-sex marriage to get the necessary support. That necessary support was probably there before the election.

There was some question as to whether Democrats should have put that vote in beforehand so that people like Ron Johnson, who was up in a close race where he only won by one point in November, would have had to vote on a pretty controversial position that he held against same-sex marriage, which, you know, he did in this vote this week. But, you know, ultimately, they went with going ahead and putting it off ’til after the election.

There isn’t a coalition of 60 votes right now in the U.S. Senate on codification of Roe. In fact, there isn’t 50 votes. Joe Manchin does not support codifying Roe at this time. And they held that vote before the election, and he didn’t support it.

AMY GOODMAN: Can you talk about the vote on the banning of rail workers to strike and the significance of this? I mean, the Biden administration, of course, loves to tout themselves as the most pro-labor administration, now going against the majority of unionized workers in passing this in the House.

DAVID DAYEN: Yeah, certainly. And, you know, the House did pass a second bill that adds seven sick days, but that would, of course, also need to cross a 60-vote threshold in the Senate. And all —

AMY GOODMAN: And why would it be a separate bill? I mean, the fact — we’re coming out of this pandemic — that they do not have paid sick leave?

DAVID DAYEN: Yeah, it’s quite distressing that you have, essentially, on-call-all-the-time scheduling if you’re a rail worker in the United States.

The reason that Congress is involved in this at all is based on a 1926 law called the Railway Labor Act, which allows Congress to insert itself into a labor-management situation in the case of transportation unions where shutting them down would affect the nation’s commerce. That law might have made sense in 1926, but I don’t think it makes sense now in 2022. Unfortunately, it’s the law of the land.

Yeah, I mean, certainly, separating those two pieces of legislation — now they go to the Senate — allows the Senate to approve the tentative agreement, reject the additional sick days and pass that on to the president. This is certainly a kind of a no-win situation. Nobody wants to see working people, who would not be able to get their medicine or not be able to get food, suffer as a result. But at the same time, certainly, workers in the rail industry, effectively, have no recourse, when Congress can step in and insert the terms of a contract that they rejected.

There is one recourse that the president has, and I hope he takes it. There is an executive order that mandates that all federal employees give seven sick days to their workers, and it was passed in 2015 under President Obama. And inexplicably, the president at that time exempted the rail industry from that requirement. And Biden could simply redo that executive order and say the rail industry is not exempted, and you need to give these seven sick days to your workers.

AMY GOODMAN: Can you talk about the significance of Hakeem Jeffries being elected to replace Nancy Pelosi? I mean, not as House speaker at this point because it looks like it will be a majority Republican House. But the significance, the first African American to head a party in Congress, also his politics?

DAVID DAYEN: Well, certainly, that’s notable, not just because it’s the first African American to head a political party in the House, but it’s a new generation of leadership. Combined, the three new leaders — and that includes both Jeffries, [Katherine] Clark, and —

AMY GOODMAN: Pete Aguilar.

DAVID DAYEN: — Aguilar — yeah, Pete Aguilar — they’re a combined 93 years younger than the three outgoing leaders in the Democratic Party. So this is a generational change.

On policy, I’m not sure it is very much of a change. You know, Jeffries has been outspoken against progressives. He actually put together a PAC with Josh Gottheimer, maybe the most conservative member of the House of Representatives on the Democratic side, to — it’s called a Team Blue PAC, and it was designed to protect incumbents from progressive primary challenges. Certainly, he’s taken tons of money from the financial services sector. He’s a former corporate lawyer. From Amazon, there is a number of pieces of donations to Jeffries. So, on policy, I’m not sure there’s going to be a whole lot of change. Certainly, you know, in terms of generational change, it’s a big move.

AMY GOODMAN: And the significance of the Republicans taking over the House? They have already laid out some of the things they’re going to do. They’ve told the January 6th committee they have to preserve all of their documents — not as if they’re going to destroy them — so they would be investigating the investigators. The whole issue of immediately empaneling a group to investigate Biden, possibly impeach him, go after his son, Hunter Biden. Can you talk about what all of this means?

DAVID DAYEN: Certainly, investigations are going to be the major work product of the Republican Congress. It’s going to be Benghazi all day every day. There doesn’t seem to be much even interest in putting together a set of policies.

However, there are these leverage points that Republicans are going to have over the next two years, whether it’s when there’s a need to fund the government or a need to raise the nation’s debt limit, which is a cap on spending and — borrowing, I should say. It’s a cap on borrowing that the government can undertake. Those are going to be the moments when legislation and policy changes could happen, because Republicans are going to hold out on passing those must-pass bills unless they get some ideological change that they require.

They’ve been very open about this. Just this week, John Thune, who is number two in the Senate Republican leadership, has said, “We’re going to use the debt limit as leverage to try to make changes specifically to entitlement programs, to Social Security and to Medicare.” And Democrats are kind of sleepwalking through this. They believe they can win that fight later, since it would be very unpopular to make changes like cuts to Medicare and Social Security. But, you know, if Republicans are taking hostage, essentially, the full faith and credit of the U.S. government and saying, “You have to cut Social Security in a grand bargain, or else we’re going to default on the nation’s debt,” that’s something we should take extremely seriously.

And it’s something Democrats should make all efforts in this lame-duck session to prevent that possibility from happening. And there’s a way to do it using the reconciliation function that was used to pass the Inflation Reduction Act with only Democrats in the Senate. You could use that again to raise the debt limit to such a number that Republicans would not have the opportunity to use it as a hostage-taking situation.

AMY GOODMAN: And finally, on McCarthy, is he going to win for House speaker, and the battle within the Republican Party around his speakership?

DAVID DAYEN: I mean, he doesn’t have the votes right now, and I think he would even acknowledge that. You need 218 votes in order to be elected speaker, and there are several hard-right Republican members who have said that under no circumstances they would vote for McCarthy. The problem is they don’t have an answer as to what they would do in that circumstance. There doesn’t seem to be 218 votes for anybody. And so, if this drags on and there are multiple ballots, you could see eventually McCarthy getting forward. It’s really McCarthy versus nobody. And so, you would think that eventually McCarthy would win that battle, although there could be a compromise candidate put forward, someone like a Steve Scalise, who’s number two in the House Republican leadership. I think —

AMY GOODMAN: Or even someone who’s not a current congressman, right? House speaker could be Donald Trump.

DAVID DAYEN: That is available; I don’t think it’s going to be Donald Trump, especially after this week. But that is potentially something that could be done, although it would be fairly unprecedented in recent history. I think that McCarthy is busy right now trying to make concessions to the far right so that he can capture those 218 votes. There were a series of House rules that were voted on among Republicans yesterday that gave them more power, gave more power to block bills or make sure that they have a voice in those bills. And so, McCarthy is right now doing this grand search for 218, and who knows what he’s going to give away in order to get that power?

AMY GOODMAN: David Dayen, I want to thank you for being with us, executive editor of The American Prospect. Your book, Monopolized: Life in the Age of Corporate Power.

Coming up next, we’re going to look at what’s happening here in New York, as rights advocates are alarmed that the mayor, Eric Adams, has announced police will start hospitalizing people with mental illness against their will, even if they pose no threat to others. We’ll get response.


AMY GOODMAN: “Over and Over” by Fleetwood Mac. Fleetwood Mac’s Christine McVie passed away Wednesday at the age of 79.

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