Can We Let the Legislators Legislate?

Creating good programs that are affordable, accessible and promote economic justice should take time--so why are Democratic voters and the media so impatient?

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President Lyndon B. Johnson signs the 1964 Civil Rights Act, legislation that took almost a year to negotiate, on July 2, 1964. Photo credit: Cecil Stoughton, White House Press Office (WHPO)/Wikimedia Commons

Last Friday, Washington Post columnist Jonathan Capehart addressed a pressing question about the infrastructure bill. Why is President Joe Biden's economic package struggling to pin together the unified Democratic support needed? 

Capehart gave us two ways to think about this. The first is a new kind of time pressure imposed by the nationalization of politics and a campaign season that never ends. "I think it's so hard to get done," he reflected, "because Democrats understand that, even though the presidential term is four years, the way the presidency is these days, it's really just one year." He continued:

Nothing is going to get done in Washington, on Capitol Hill, come 2022 because of the 2022 midterms and the fact that the House majority, Democratic House majority, hangs in the balance in 2022. Maybe even also the Senate majority hangs in the balance.

And so what's happening is, Democrats are trying to cram in every policy priority that they have into that reconciliation bill. And right now, no one seems to want to give up their pet project. But we're getting down to the wire here, where folks are going to have to decide, what's your number one priority? You can't have everything. What's your number one priority? And how can we get to yes?

And you call it a mess, and it is a mess. But I think we're so unused to legislating that this is what's happening. 

In other words, the current state of play in Washington is to emphasize haste because Democrats must pass legislation before Republicans potentially return to power. By taking his party out of legislative play, Mitch McConnell slows Biden and the Democrats down in a way that heightens their internal disagreements. 

But it also reflects a subtle change in what partisanship accomplishes for the minority party. Republicans temporarily cede to one-party Democratic rule as a bet against a 2022 or 2024 future when Republicans return to one-party majority rule. At the same time, they impede Democrats from delivering economic relief that will inevitably be popular among their voters, as Social Security and Obamacare have been. "Usually, [these negotiations are] between Democrats and Republicans," Capehart noted. "It's kind of hilarious that it's Democrats negotiating with Democrats. But that's what's happening here." The bonus round for Republicans is to force intra-party differences within the Democratic caucus into public, differences that hopefully produce "gotcha!" sound clips that the GOP will then deploy in Congressional campaigns.

I consider Jonathan Capehart to be my more successful political media twin in many regards. So, when I think, "How brilliant and incisive!" it is never a surprise since I would say the same thing were I in his chair. 

But I also wish I were in his chair since what needed to be said, ever so briefly, is that having fundamental differences internal to a political party and expressing those differences is how everyone did politics until very recently. It's healthy to have internal debates, especially when a country has only two viable political parties. The expectation that a president could say: "Let my will be done!" and steer his party to passing a significant piece of legislation regardless of what individual members think is undesirable in a democracy.

That pundits, much less politicians, and voters, even think like this is also an artifact of very recent history.

One place to begin thinking about this long past is the package of laws, passed serially, that we call Reconstruction, most of which passed over the objections of President Andrew Johnson and his allies in the Republican Party. Beginning with the successful passage of the 13th Amendment, abolishing slavery, on January 31, 1865, the scaffolding of Black freedom was built step-by-step over four years, including passage of the Freedman's Bureau Bill and the 14th and 15th amendments. In each case, the Radical Republican faction persuaded moderates that theirs was the proper path to rebuilding the union based on Black male suffrage. This idea was not universally popular in places as far north as New York, Connecticut, and New Jersey. In this negotiation, Radicals dealt away the principle of universal suffrage, which would have included votes for white and Black women.

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In other words: something so crucial to democracy as being legally entitled to cast a vote was delayed for over a half-century if you were white, and almost another century for millions of Black women. It makes means-testing to access federally-funded college and childcare look a lot less crucial.

Perhaps the moment that the expectations for speedy passage of legislation changed dramatically was Franklin Roosevelt's New Deal. Beginning the day of his inauguration, Roosevelt's flurry of legislation (which mirrored programs he had already implemented as Governor of New York) went almost straight from the president's desk to become law in three months. It is here, not inconsequentially, as political media coverage was transformed by radio and the president's use of the medium to connect to voters battered by the collapse of the world economy, we get the concept of the "first hundred days" as a gauge of president's effectiveness.

Presidents have been held to this hundred-day standard ever since, even though it is entirely meaningless. But it is part of what has created the view among modern pundits that if a president cannot accomplish life-changing legislation in three months, their presidency has already stalled or failed. But it is also worth noting that compromise was the only reason it passed at all. Roosevelt's first New Deal, and even more so, a second New Deal," which put in place the welfare state as we know it, required significant concessions to the party's powerful white supremacist Southern caucus. Thus, for example, union legislation did not include protections for Black workers, housing legislation left residential segregation in place, and social welfare legislation—including Social Security—excluded agricultural and domestic workers. 

It isn't easy to pass legislation that moves the nation decisively towards justice. It has become more difficult since a conservative faction in the GOP cohered in the post-New Deal period around the following principles: supporting corporations with federal dollars, opposing economic equality measures for ordinary people, and restricting access to voting. The Civil Rights Act of 1964 took over a year to pass, not just because Democratic Southern segregationists were committed to one-party rule in their states but because they knew that Black votes would be liberal votes. 

Promised by Lyndon Johnson in the aftermath of President John F. Kennedy's assassination, this bill required the president to negotiate with members of both parties, and it took time. The result was that this path-breaking bill—which included the protection of women's rights under Title VII, introduced as a poison pill by a Virginia segregationist—took a year to get to the president's desk

This history leads us to another point about our current situation. Democrats are negotiating with Democrats at this point, not because the party has no history with brokering deals with the party's center-right. It is because they can't publicly negotiate with Republicans. Republicans refuse to go on record as people who make bipartisan deals over anything—even when they want significant elements of the legislation to pass. Which many in the Senate, and the House, do and have done since Democrats introduced the bill.

But remember: the Republicans are on the clock here too, and they want to bring home the bacon before 2022 as well. Eventually, many of their voters will tire of screaming about critical race theory, transgender girls trying out for the softball team, whether it is ok to say Merry Christmas, and whether a fetus is a person. Instead, they will want protection from catastrophic weather events, affordable tuition, and child care, just like everyone else. 

And paradoxically, as Amanda Marcotte explained at Salon last summer, this may be the real reason Democrats must negotiate the best possible bill within their caucus. Whatever they agree on will hurt the GOP in 2022 because Republicans fear passing legislation that helps their voters.

So, collapsing the timetable for legislation with the timeline for elections is the problem, not the negotiations and compromises that life-changing legislation has always required to pass. And finally, tempting as it is to insist on all or nothing at a moment when Democrats are finally entirely in charge, the Progressive Caucus must give things away. Whether you are an incrementalist by nature or not, the arc of history regarding social welfare legislation is definitively incrementalist. 

We may not be able to change that now, so can we just let the legislators legislate?

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Short takes:

  • At Popular Information, Judd Legum and Rebecca Crosby note that the hysteria about towering crime rates in the United States emanating from the GOP is….a fiction. Of course, one cannot always assume that Republicans are lying for political gain (although the odds are in your favor if you do), so they assembled the research for those of us who wish to stay well-informed. (October 6, 2021)

  • In case you wondered if Mike Pence is an empty suit, he is. Also, he is running for president. For what other reason did he travel to Columbia, South Carolina this week and tell supporters that the real reason for Democrats' investigation of January 6 is to demean Donald Trump's 75 million voters? (Donna Cassata, Washington Post, October 5, 2021)

  • At Time magazine, Amy Vesoulis points to one of the reasons that reasonable people are skeptical about the efficacy of government spending: federal money is not solving their problems, even though it could. Vesoulis takes on the question of the money dedicated to housing vouchers in Joe Biden's pending legislation. The purpose of these vouchers is to defray the cost of fair market rents. But having a housing voucher can be a stigma: it doesn't get you housed if a landlord can refuse to accept you as a tenant because you are part of the program. So it points to a critical weakness of federal spending: it is an alternative to changing things that are more politically fraught, even for Democrats: federal action to control free market behaviors. (October 4, 2021)