Updated

This is a rush transcript of "Special Report" on November 4, 2021. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

NANCY PELOSI, (D-CA) HOUSE SPEAKER: I was really very unhappy about not passing this last week. I really was very unhappy because we had an October 31st deadline. So now we are going to both bills, but in order to do so, we have to have votes for both bills.

SEN. JOE MANCHIN, (D-WV): I truly believe that we need to slow down. I truly believe that we need to wait and see if inflation is transitory, see how much worse it may get. Hopefully it doesn't.

SEN. LINDSEY GRAHAM, (R-SC): The Democratic Party is shoving a massive expansion of government down the throat of the Republican Party, down the throat of the American people, and I will do everything I can to stop this.

(END VIDEO CLIP)

BAIER: Well, here is the up to the minute update from Chad Pergram on Capitol Hill. There is less than a 20 percent chance of things happening tonight on either or both bills. It's not three percent, but it's 20 percent and getting more narrow. It's possible the House, he says, could just vote on the infrastructure bill, but it doesn't seem like progressives are going to let that happen.

Let's bring in our panel, Bill McGurn, columnist for "The Wall Street Journal," Mara Liasson, national political correspondent of National Public Radio, and Ben Domenech, publisher of "The Federalist."

Mara, we know that Speaker Pelosi doesn't put things on the floor unless she has the votes.

MARA LIASSON, NATIONAL POLITICAL CORRESPONDENT, NATIONAL PUBLIC RADIO: That's right. She doesn't have the votes so it's not going on the floor. And moderates don't want to go forward with the Build Back Better bill. They do want the infrastructure passed. And this is the mess that they found themselves in before the Virginia election where there seems to be a consensus forming that it would have helped, maybe not made the difference, but it would have helped if Terry McAuliffe had been able to campaign on the infrastructure bill, the hard infrastructure roads and bridges bill. So they don't have it yet. And I think at this point Joe Manchin gets to dictate the schedule.

BAIER: Ben, how does this get easier instead of harder after Virginia and what we saw in New Jersey and around the country?

BEN DOMENECH, PUBLISHER, "THE FEDERALIST": Well, it doesn't, Bret. At a certain point, you are running out of legislative days. You are running into all matter of scheduling issues as we head to the holidays. And I think that the big mistake that Nancy Pelosi made earlier in this process was thinking that I think she could just barrel through all of the different objections that existed within the party. And, unfortunately now, she is in this circumstance where there is just a very slim period of time here even as you have these continued concerns from the Senate side and a level of distrust among Democrats that is only increasing as moderates wish that they were dealing with this process in a slower and a more deliberative manner, and as progressives are saying, look, we have an opportunity here to maybe get some big things forward. But they don't trust anybody on the other side either. Unfortunately, I think Democrats are in a real mess of their own making in this circumstance.

BAIER: Just in, and I just mentioned New Jersey, but the Republican candidate Jack Ciattarelli released a video on Twitter moments ago, Bill, saying he is not conceding. He believes there are votes out there. A.P. called the election for incumbent Governor Phil Murphy. We ran with the A.P. call. But he says there are more votes to be counted, and he is not conceding as of yet. So, again, New Jersey where Joe Biden won by 16 points a year-and-a-half ago.

BILL MCGURN, COLUMNIST, "THE WALL STREET JOURNAL": Look, I'm a citizen of the people's republic of New Jersey-stan. So no one was more surprised than I was by his performance. He just campaigned solely on the tax issue.

And it shows you all the focus on Virginia and Donald Trump and so forth, there is a broader base rebellion going on. And that reflects some of the Democratic skittishness. What you were talking about before, this is an uneven fight because the moderate, who I think have no treason vote for this now, their problem is they are not really so much moderates as people in swing districts. They are worried about their seats. And they are worried about the seats if the Build Back Better bill does go through, right?

Where the progressives, by and large, they are in safe seats. It doesn't matter to them whether it passes or fails in terms of keeping their seats. And what they see is a window that is going to close on them probably next year with the congressional elections, so they want to get a big, ambitious agenda through right now.

BAIER: Now, this story about paying illegal immigrants separated from their families $450,000, whatever the number is, the DOJ working on that, has really gained and not helped Democrats in their pitch going forward. Take a listen to the payment blunder back and forth over the last day.

(BEGIN VIDEO CLIP)

PETER DOOCY, FOX NEWS CORRESPONDENT: There were reports that were surfacing that your administration is planning to pay illegal immigrants who were separated from their families at the border up to $450,000 each, possibly $1 million per family. Do you think that that might incentivize more people to come over illegally?

JOE BIDEN, (D) PRESIDENT OF THE UNITED STATES: If you guys keep sending that garbage out, yes. But it's not true.

DOOCY: So this is a garbage report.

BAIER: Yes, $450,000 per person, is that what you are saying? That's not going to happen.

KARINE JEAN-PIERRE, WHITE HOUSE DEPUTY PRESS SECRETARY: This is something that the Department of Justice is going to handle.

That's how we got here because of the last administration. This is what we're trying to deal with here in this administration.

(END VIDEO CLIP)

BAIER: So the White House today tried to say, Mara, that the president is fine making these payments. The DOJ is going to make that assessment. But he was just specifically saying it's garbage to say $450,000. Now, the ACLU puts out this statement last night, and says "President Biden may not have been fully briefed about the actions of his very own Justice Department as it carefully deliberated and considered the crimes committed against thousands of families separated from their children as an intentional government policy. But if he follows through on what he said, the president is abandoning a core campaign promise to do justice for thousands of separated families."

Here's the issue with this. The ACLU feels bold enough to put out a statement in kind of opposition to the president of the Democratic Party. And that sends its own signal out there.

LIASSON: Yes. Well, the ACLU is representing these families in court. The $450,000 that were talked about was a potential settlement to settle a court case. This is not an administration policy that says we are going to give you money.

BAIER: Right, but you heard the president. He sounded dismissive about the whole story and called it garbage.

LIASSON: Yes, yes. But if a judge rules in favor of the ACLU and says the United States has to pay these families something.

BAIER: Yes.

LIASSON: The United States can appeal it. But this is not an administration policy.

BAIER: Right, but it was, Ben, a clean-up on aisle four today.

LIASSON: Yes, there's no doubt that the president said $450,000, no I'm not for that. He might be forced to pay somethings less, but that's up to a judge.

BAIER: Ben?

DOMENECH: It was absolutely a clean-up situation. And I think what we are learning as we learn more about this situation is whatever that amount ends up being, it's going to be something that is going to be hung around the neck of this administration in terms of what is negotiated and a what they are willing to do when it comes to trying to make these families whole from the perspective of the ACLU, something that could be very costly and certainly is going to be a campaign issue headed into the midterms. I can see Republican consultants across the land just licking their chops at trying to make this a major issue going into the next year's campaign.

BAIER: Bill, whatever the settlement this is, whatever the dollar amount is, you are paying someone who got into the country illegally, separated from their family because of administration policy, and they get more than the average American makes in a year?

MCGURN: Yes. Look, it's ridiculous. What struck me, reading the ACLU's statement is this may be the next "Let's go Brandon." The president wasn't fully briefed. I could see that being the answer for a lot of things when Joe Biden contradicts his own administration. It was an extraordinary statement to me. And I think it shows the diminishing acceptance of people just accepting what he says.

BAIER: Right. And the ACLU's statement also suggests something there, and we'll divine what that is up on Capitol Hill, I'm sure. Panel, thank you.

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