As we look past the looming off-year election—which at this writing seems certain to produce significant gains for Republicans in both houses of Congress—it is plain that major legislation addressing long-term problems will have to have bipartisan support to pass. This is in vivid contrast to the 111th Congress, in which major legislation—the February 2009 stimulus package, the March 2010 health care legislation, the July 2010 financial regulation bill—was passed almost entirely with Democratic votes. Oscar Wilde said that he could resist anything but temptation. Just so with Barack Obama and the Democratic congressional leaders, who couldn’t resist the temptation represented by large Democratic majorities in both houses of Congress.1
Things did not have to be this way. Models for bipartisan approaches were there for the taking: the health care proposal sponsored by Democratic Senator Ron Wyden and Republican Senator Bob Bennett; the financial regulation proposals of Republican Senator Bob Corker. But these were brushed aside either by the Obama White House or by Democratic congressional leaders. This has not been the post-partisan era we were promised.
Since the summer of 2009, no seasoned political observer has expected the Democrats to emerge from the November 2010 elections with majorities of this magnitude, if they end up with majorities at all. And if Republicans gain majorities in one or both houses, they will have to get the signature of Barack Obama if their bills are to become law. Bipartisanship, at long last, would seem to be the order of the day—not by design but by necessity.
Necessity, however, is not always inventive. Bipartisanship has not been among the habits of the heart of recent members of Congress, Republicans as much as Democrats. Some bipartisan legislation has passed over the past decade, to be sure. The No Child Left Behind education bill, on which the lead legislators were Democrats Edward Kennedy and George Miller and Republicans Judd Gregg and John Boehner, is one example. But that bill was passed in 2001, nearly ten years ago; Kennedy is dead, Gregg is retiring, and efforts at reauthorizing the bill have foundered. There was a serious if stillborn bipartisan pension bill, sponsored by then-House Democrat Benjamin Cardin and Republican Rob Portman; the former is now in the Senate and the latter is campaigning to get there. The Iraq War resolution won the support of most Democratic Senators and nearly half of Democratic House members in October 2002, but most came to regret and renounce that vote by January 2007, when, ironically enough, George W. Bush ordered the successful surge strategy.
The most recent major bipartisan initiative was the TARP legislation in fall 2008, passed after Federal Reserve Chairman Ben Bernanke and Treasury Secretary Henry Paulson warned congressional leaders that there was a serious chance the financial system would collapse if the bill were not passed. The bill failed in the House on its first try on September 29, sending financial markets into turmoil. A similar version of the bill passed the Senate on October 1, and that version was approved by the House on October 3. Markets recovered, but only somewhat.
The difficulties of passing the TARP bill showed how rusty congressional and Administration leaders were in building bipartisan coalitions. House Republicans, who could be ignored on most legislation because they had little power, needed to be brought into discussions when Speaker Nancy Pelosi indicated she couldn’t pass the bill with Democratic votes alone. But neither the Democratic congressional leaders nor the Administration negotiators brought them in; nor did they insert themselves into the discussion. Everyone’s bipartisan muscles had atrophied, and they have not grown stronger in the ensuring two years.
Are we therefore living in an era when bipartisan legislation is all but impossible? Further, does that spell gridlock and stasis in the absence of unlikely supermajorities? Are the politicians of both parties too beholden to their left- and right-wing true believers to make accommodations acceptable to some on the other side of the aisle?
The answer to all these questions is, in a word, “no.” The evidence suggests that partisan polarization in the absence of supermajorities does not cause gridlock. What can and has caused it on so many important domestic policy issues has been electoral volatility. From the TARP example to a raft of others, it is clear that as long as enough congressional members with safe seats are prepared to hammer out deals across party and ideological lines, significant legislation can pass. Not only will this be true for the next Congress, it has been true for most recent ones, as a little historical review shows.
Before the mid-1970s there was the appearance of much bipartisan action on Capitol Hill because the parties themselves were made up of uneasy coalitions. Most Southern Democrats voted with most Republicans on most issues, even as some liberal Republicans vied with Democrats to see who could be most liberal. The Reagan budget and tax cuts were passed in 1981 by nominally bipartisan coalitions that were actually just the latest version of the majorities made up of most Republicans and many conservative Southern Democrats. This is the majority that had prevailed in roll calls on many pieces of major legislation since the 1938 off-year elections. In March 1983, Congress passed changes in Social Security recommended by the Greenspan Commission by bipartisan majorities made up of most members of both parties in each house. While individual members’ votes may well have represented their principled convictions, these majorities seem to have been made up primarily of members perceived as holding safe seats. With experts advising them that a major Federal program faced collapse if they did not act, and with a reasonable assurance that any negative popular response would not be electorally fatal, such members were much more likely to support these changes than members perceived as being in danger of defeat.
This period came to an end about a quarter-century ago. In the House, Speaker Tip O’Neill fashioned legislation to maximize support from his increasingly liberal Democratic Caucus and did not try, as his predecessors had, to make alliances with the dwindling number of liberal Republicans. In the Senate, liberal Republicans from Massachusetts, New York and New Jersey were defeated in 1978 and 1980, even as Republicans around that time replaced conservative Democrats in about half the seats in the South. In the three decades since, it has been a general rule that it is easier to assemble bipartisan coalitions to pass major legislation when political voting patterns are stable and most members have reason to believe their seats are reasonably safe. It seems to be much more difficult to assemble such coalitions when voting patterns are volatile and very many more members than usual have reason to fear that their seats are in peril.
As the 1980s went on, it became apparent that the violent oscillations in and changing patterns of partisan preference observed in the late 1960s and throughout the 1970s were, for a moment at least, suddenly in the past. Most Americans were voting Republican for President and Democratic for the House of Representatives. Senate elections, which produced many upsets and new members in 1976, 1978 and 1980, produced few surprises in 1982 and 1984. And in any case, since the rules of the Senate give party leaders much less control over legislative outcomes than the rules of the House, the identity of the majority party was not a matter of as great a moment within the Senate as it was within the House.
In 1985 and 1986, in that relatively placid political environment, with the Republican President re-elected and ineligible for another term, and with Democrats maintaining a majority in the House and with a small Republican majority in a Senate in which the majority’s leaders have very limited control of proceedings, Congress produced bipartisan majorities for major legislation on two important issues, taxes and immigration. Both were inherently compromises. The tax bill lowered tax rates and eliminated many if not all tax preferences. The immigration bill provided for legalization of many illegal immigrants and imposed sanctions on employers hiring illegal workers.
As it happened, neither of these 1986 measures turned out to be permanently effective. Subsequent Congresses enacted new tax preferences and increased some tax rates. Employer sanctions proved largely unenforceable because of lack of reliable identification cards. Nonetheless they were major legislative achievements that produced significant changes in public policy. Both resulted in large part from bipartisan bicameral cooperation. The chairmen of the tax-writing committees, Democratic Congressman Dan Rostenkowski and Republican Senator Bob Packwood, worked hard to seek agreement (with the help, on one critical occasion, of several pitchers of beer). So did the chairmen of the two immigration subcommittees, Democratic Congressman Romano Mazzoli and Republican Senator Alan Simpson. These bills were eventually passed with large bipartisan majorities.
Major bipartisan legislation was much rarer in the 1991–95 period, which saw an upending of political verities. A nation in which Republicans supposedly had a lock on the presidency elected a Democrat to that office in 1992. A nation in which Democrats supposedly had eternal control of Congress elected a Republican Congress in 1994. And on two occasions, in spring 1992 and fall 1995, in a nation with a supposedly permanent allegiance to two-party politics, voters in public opinion polls expressed a preference that there be a third party candidate for President.
This period saw a showdown over the budget and spending bills between President Bill Clinton and Speaker Newt Gingrich, a showdown that has been generally taken as a defeat for Gingrich’s Republicans. But they obtained one policy goal—essentially a one-year freeze in Federal spending, which helped make possible the balanced budgets later in the decade—and did not lose their House majority in the next election. Rather, the partisan pattern for 1995–2005 was set: an almost even balance between the parties at both the presidential level (the winners of the three elections in this period won 49 percent, 48 percent and 51 percent of the popular vote) and in congressional elections (Republicans won the popular vote and a majority of seats in five straight elections for the House, but never got more than 51 percent of the popular vote or more than 235 of the 435 seats).
Given these narrow margins and the uncertainty attendant to just about every election, there was a surprising degree of bipartisan legislation. Some of it was the result of partisan jousting, like the first Clinton-Gingrich budget, or of partisan maneuvering, as when congressional Republicans passed bills vastly changing the welfare system. Bill Clinton vetoed two of these bills, but in August 1996 he signed the third, producing a major change in public policy. In 1997, with Clinton re-elected and Republicans holding on to their congressional majorities, Clinton and Gingrich hammered out agreement on long-term budget issues and Medicare adjustments. By 1998, the way seemed clear for bipartisan changes in both Medicare and Social Security.
The Clinton-Gingrich agreement on Medicare included the creation of a bipartisan Medicare commission headed by Democratic Senator John Breaux. And on Social Security several Democrats on the Senate Finance Committee—Daniel Patrick Moynihan, Bob Kerrey and Breaux—voiced support for an individual investment component in the program. The stars seemed aligned for such entitlement reform, with a lame-duck Democratic President issuing sympathetic statements, leading congressional Democrats in support, and a Republican congressional majority willing to go along. But the impeachment issue intervened. It helped prevent Republicans from making the gains many expected in the 1998 House elections, and Gingrich was ejected as speaker. And the loud and loyal support Bill Clinton received on the issue from liberal Democrats evidently made him less inclined to take stands on issues like Social Security and Medicare that they opposed, particularly since that would mean allying with the Republicans, almost all of whom had tried to remove him from office. Clinton made it clear by March 1999 that he would not support bipartisan measures, and the stars fell out of alignment.
The close and bitterly contested presidential election of 2000 made bipartisan coalition building difficult, though not impossible. George W. Bush was able to attract significant Democratic support for his 2001 tax cuts, which never would have passed in the Senate without it, and the education bill passed by Congress in 2001 and signed by Bush in January 2002 was a textbook example of bipartisan cooperation over a hitherto polarizing issue. More remarkable still, it had been worked out in committees that had been among the most partisan in Congress since the battles over labor union law in the 1950s.
In addition, the Medicare prescription drug bill passed by Congress in 2003 won a significant number of Democratic votes. Indeed, it too would not have passed without them, since it was stoutly opposed by a significant minority of Republicans. These bipartisan achievements came at a time when it was not clear which party would prevail in each presidential and congressional election, because of the excruciatingly close divide between the two parties. But the persistence of this close divide over a period of ten years—with partisan preferences more stable than at any time since the 1880s—also meant that most individual members were reasonably sure they were headed to re-election.
That ceased to be the case after 2005, when support for Republicans dropped sharply. In that atmosphere, Democratic congressional leaders had no compunction in resisting George W. Bush’s calls for adding an individual investment component to Social Security, particularly since it was apparent that House Republican leaders had little appetite for addressing the issue. Bush’s efforts to pass a comprehensive immigration bill containing legalization, enforcement and guest worker provisions fared somewhat better. A bipartisan coalition led by Republican John McCain and Democrat Edward Kennedy was able to get a bill through the Senate in June 2006. But House Speaker Dennis Hastert, aware that many more of his members were threatened with defeat than had been the case in recent elections, and aware that most of them opposed, often vehemently, a comprehensive bill, refused to bring the issue forward in the House.
The stars seemed more in alignment for a comprehensive immigration bill in 2007. Democrats had won majorities in both houses in the 2006 election. McCain, running for President, would not take the lead on the issue, but he was replaced by his Arizona colleague Jon Kyl, who had great credibility among conservatives skeptical about any legalization provision. But the bill foundered in the Senate in May and June 2007 as the new Majority Leader Harry Reid failed utterly to find a parliamentary path to passage. The election of a Democratic President has not revived the prospects of such legislation. House Speaker Nancy Pelosi has consistently declined to raise the issue until the Senate acts, and as of September 2010 the Senate has not done so.
The election in November 2008 of a Democratic President and Democratic supermajorities in Congress lessened the interest, perhaps understandably, in bipartisan legislation. The prospect that those Democratic majorities will be less than super or will be wiped out in the 2010 election may naturally increase interest. Certainly there are major problems looming that seem incapable of solution by nonpartisan legislation but on which some bipartisan compromise is intellectually imaginable.
One is the fiscal gap, amounting to something on the order of 5 percent of gross domestic product. Presumably, this problem will be addressed by the bipartisan commission headed by Democrat Erskine Bowles (one of the key negotiators of the 1997 Clinton-Gingrich agreements) and Republican Alan Simpson (of the 1986 immigration act). And perhaps they will also address the tax system, which abounds with dysfunctional features like the world’s second highest corporate income tax rate and the unindexed-for-inflation Alternative Minimum Tax, which threatens to subject tens of millions of modest earners, most of them in Democratic-leaning states, to sharply higher income tax rates.
Another looming problem is the peril facing entitlement programs like Social Security and Medicare as promised benefits outstrip revenues and threaten to absorb increasing percentages of the gross domestic product. A fourth is health care: Many Republicans want to repeal what they refer to as Obamacare, while in summer 2010 Democratic candidates, noting its continuing unpopularity, said they wanted to improve it. At least minor adjustments may be needed to address problems unanticipated by the law’s hasty drafters.
Then there is, still, immigration. The recession and more vigorous enforcement have reduced the illegal immigrant population, but it is still more than ten million—even as our laws make it difficult for high-skill immigrants to be admitted. And there is trade: This Democratic Administration and Democratic Congress seem unable to approve already negotiated free trade agreements with South Korea, Panama and Colombia—a vivid contrast with the Clinton Administration and his Democratic Congress, a bipartisan majority of which approved the vastly more consequential free trade agreement with Mexico.
One problem here, if the safe-seat explanation for the success of bipartisanship adduced here is accurate, is the current volatility of the electorate. Voters’ preferences tended to remain stable and steady from 1995 to 2005. They have been unstable and volatile ever since, with a sharp trend away from Republicans in 2006 and 2008 and, if polls are correct, a sharp trend away from Democrats in 2010. If many Republican members of Congress had reason to fear defeat from 2006 to 2008, so too do many Democratic members have reason to fear defeat in 2010. It’s possible that members of both parties will have reason to fear defeat in 2012.
As already suggested, the essence of most bipartisan compromises is that they contain provisions unpopular with constituencies of both parties and often provisions that are unpopular with a majority of voters. That’s why such measures tend to be passed by bipartisan coalitions of members with safe seats. The most recent example of that, TARP, is unsettling to those who hope to see bipartisan legislation in the years ahead; some members who voted for TARP have seats considerably less safe than was generally thought. One example is Republican Senator Saxby Chambliss, who failed to get 50 percent of the popular vote in November 2008 and so, under Georgia law, was forced into a runoff. He won that contest, but other TARP supporters have not been so fortunate, as with the aforementioned Bob Bennett of Utah. And it has been cited by challengers to both Democratic and Republican incumbents in many states.
In such an unsettled political environment, it may be difficult—maybe impossible—to round up the votes needed for bipartisan legislation. Politicians will not be inclined to take on additional and avoidable risks. And that difficulty means that legislators in a position, whether because of expertise or committee membership, to cobble together such legislation may just conclude that it’s not worth the trouble. The Obama White House’s minimal interest in accommodating Republican ideas and initiatives, perhaps understandable in light of the temptation exerted by the existence of Democratic supermajorities, is not a positive indicator either. Policy experts can make a strong case for bipartisan legislation on major issues, but it is not clear that political actors are prepared to pay much heed to, much less act on, such arguments.
Absent large congressional majorities, therefore, it looks like we are stuck for a while—not only, or mainly, because of ideological polarization and party sorting, but because of electoral volatility. When you think about it, this suits the definition of irony. Why are voters so willing to “throw out the bums”? Because they think they can’t get much of anything done. Why can’t they get much of anything done? Because they’re afraid that bipartisan compromise will get them thrown out of office.