How election could force bipartisanship as sole path to legislative success

According to conventional wisdom, the lack of bipartisanship in Congress and the unwillingness of Democrats and Republicans to compromise is what’s preventing legislation from getting passed. Up to a point, that’s true.

But, despite the standoff on tax legislation and changes in entitlement programs, bipartisan legislation has moved ahead in Congress in recent weeks.

Consider, for example, the farm bill the Senate is debating this week, the product of a partnership between Agriculture Committee chairwoman Sen. Debbie Stabenow, D-Mich., and ranking member Sen. Pat Roberts, R-Kansas.

“The Agriculture Committee historically has been the least partisan committee in the Congress,” Roberts told C-SPAN on Sunday. He lavished praise on Stabenow, saying, “What’s the number one thing you hear back home: ‘Why can’t you all back there (in Washington) work together?’ Why can’t we get along and actually produce something – and we have.”

Consider also the FDA/drug shortage bill that Senate Health, Education and Labor Committee chairman Sen. Tom Harkin, D- Iowa, Sen. Mike Enzi, R-Wyo., shepherded to passage done a few weeks ago.

Although such smaller-scale bipartisanship might not impress people looking for the alluring “grand bargain” on taxes and spending, it’s important to those directly affected by it: in the case of the farm bill, not only farmers, but food processors, farm equipment manufacturers, the people who run food banks, etc.

But bipartisan compromise isn’t the only way to accomplish things.

There’s an entirely different model for passing big legislation, one which worked for Democrats on both the 2009 stimulus and the Affordable Care Act, two of President Barack Obama’s signature accomplishments. The formula: Win a really big majority in an election and then pass significant bills with the votes of just the members of your party – even if you run the risk that voters might boot out members of the majority at the next election.

Of the Democratic House members who voted for the Affordable Care Act in 2009, and who represented Republican-leaning districts, 14 were defeated in the 2010 elections – although another 14 voted “no” and that still didn’t save them from defeat. Nine who voted “no” survived, but only two who voted for the ACA won re-election in 2010.

In contrast, take the 1994 crime bill.

The House – in a bipartisan way – handed President Bill Clinton a stunning rejection of a first version of the bill on Aug. 11, 1994.

The opposition was a coalition of 58 Democrats and 167 Republicans: African-American Democrats who argued against the bill’s death penalty provisions, white Southern and rural Democrats from conservative districts who opposed the bill’s gun restrictions, and Republicans from all parts of the country.

Senate Republican Leader Bob Dole of Kansas derided the bill as “bloated” and “soft on crime.” And when Democrats argued that Republicans spitefully just wanted to deny Clinton a major victory, Rep. Dick Armey, R-Texas, said, “Your president is just not that important to us … .”

But bipartisanship prevailed again ten days later. After the bill’s first defeat and his angry initial reaction, Clinton worked to woo House members to back the legislation.

 “With his presidency on the line, President Clinton spent the day on the line, pressing Democrats and Republicans by telephone to support his crime bill,” The Associated Press reported on the day the House voted to approve the legislation. "This is the way Washington ought to work and I hope it will work this way in the future," Clinton said after the vote in which 46 House Republicans joined 188 Democrats to pass the bill. 

The Republicans who switched from “no” to yes” said they had persuaded Clinton to strengthen the measure.

“It was a tremendous compromise, and I think what we gave the American people last night is a crime bill that has a lot less spending – over $3 billion, mostly removed from social programs, a lot more money put into building prisons,” Rep. Susan Molinari, R-N.Y., told CNN on the day the House OK’d the bill. “We came up with a series of very tough legislative initiatives, such as the community notification of sexual predators, prior rules of evidence in rape and child molestation cases being admissible in courtroom trials … a whole series of initiatives … that make this bill an awful lot tougher for the American people.”

Another Republican who switched from ‘no’ to ‘yes’, Rep. Steve Horn of California said, "I am delighted to say that this is the first major bipartisan effort I have seen since NAFTA. I think it bodes well for the country …  (Clinton) is at a crossroads in his presidency. We want him to be a successful president."

There are some lessons here:

• First, despite Armey’s taunt (“Your president is just not that important to us”), there were at least a few Republicans 18 years ago who were willing to say that they wanted Clinton to be a successful president. Quite rare to hear any Republicans saying that today about Obama.
• Second, districts and political alignments have changed: many of the centrist Republicans in Democratic-leaning districts who ended up voting for the crime bill in 1994 have been replaced by Democrats – for example the two Republican House members from Massachusetts, as well as Rep. Jim Kolbe of Arizona, Rep. Jim Leach of Iowa, and Rep. Mike Castle of Delaware. 
• And, third, the Southern and rural Democrats who voted against the first version of the crime bill – such as Rep. Ike Skelton of Missouri – have since been ousted by Republicans.

 The biggest change since 1994 is that conservative-leaning districts tend to be represented by Republicans and liberal-leaning districts tend to be represented by Democrats – which wasn’t always true in 1994.

Like the Affordable Care Act, the 1994 crime bill was challenged in the Supreme Court and part of it was struck down by the high court in 2000: the provision in the law that gave victims of gender-motivated violence a right to sue their attackers in federal court. The court ruled that the Commerce Clause – the same part of the Constitution at issue in the ACA litigation –does not give Congress to power to create such a right.

And as with ACA and the 2010 election, many of the Democrats who voted for the crime bill were swept out in the wave election of 1994.

“It probably helped to cause my defeat,” recalls Dan Glickman, who represented a Wichita, Kansas district from 1977 until he was beaten in the 1994 GOP wave.

“I lost my election probably for a myriad for reasons but one of them was clearly my vote on the crime bill because it irritated part of my historic base which was blue-collar working people,” he said.

“I remembered at the time some of the conservative Democrats wondered if this could become a problem,” but Clinton and party leaders such as then-Sen. Joe Biden, chairman of the Senate Judiciary Committee, wanted the bill “and it probably cost us the majority or at least was one of the big factors.”

Glickman, who is now vice president at the Aspen Institute in Washington, recalls that he thought going into the 1994 election that his work in passing a bill to protect aircraft manufacturers from frivolous litigation – vitally important to Cessna and other firms in Wichita – would “insulate me” against damage on the crime bill.

But he saw something was afoot when he went door to door before the election and a union worker told him, “Great job on the airplane bill, Glickman, thanks so much, it helps our jobs – but I can’t vote for you.” His reason: the crime bill – especially its gun provisions. “The intensity of feeling on the gun bill trumped anything I did on the jobs side,” Glickman said.

But at least Glickman and his colleagues did get major legislation passed.

Regardless of who the winners are on Nov. 6, it appears unlikely either party will enjoy the super-majorities needed to get something done on their own; that means that any far-reaching bills will have to be the product of the same type of across-the-aisle cooperation that produced the ’94 crime bill and other pieces of lasting legislation.