Unless both Senate runoff elections in Georgia go Democrats’ way, President-elect Joe Biden will face divided government from the start of his presidency. Many observers foresee years of unremitting legislative deadlock, with Senator Mitch McConnell (R-KY) leading his party in obstruction, just as he did under President Obama. The emerging conventional wisdom is that the only chance for policymaking is to get a handful of GOP moderates, such as Senators Susan Collins (R-ME) and Mitt Romney (R-UT), to work with Democrats on small-ticket items.
Our new book, The Limits of Party, finds that this Beltway wisdom misses the mark. Divided government is not as devastating for a party’s legislative accomplishments as is usually thought. In today’s polarized Congress, legislation generally passes by large, bipartisan majorities — or not at all. Regardless of unified or divided control, Congress enacts very few laws on party-line votes.
Paradoxically, party polarization may create the need for even broader bipartisanship. Today a House or Senate majority party will likely find it impossible to bargain for the bare minimum number of minority party votes needed to pass a bill. With party cohesion in today’s Congress so high, negotiations typically feature a most-or-nothing prospect for bringing along opposing-party lawmakers. “It’s hard to calibrate the difference between what will get you eight Democrats or 30 Democrats,” one veteran Republican staffer told us. “It’s hard to figure out. Members tend to go in groups.” Given the decline in the number of centrists in both parties, majority party leaders generally find it necessary to negotiate for votes directly with minority party leaders. The result is either gridlock or legislation that commands broad bipartisan support. To achieve anything on Capitol Hill, the parties almost always have to take a bipartisan approach.
Legislation: still bipartisan
Congress today is no more likely than in the 1970s to enact laws on party-line votes, with a majority of one party in support and a majority of the other party in opposition. Despite the rise in partisan conflict overall, roughly 90 percent of laws still pass the House with majorities of both parties in support, and upwards of 95 percent of laws receive the support of more than 10 percent of the minority party. In the Senate, too, minority party support for new laws remains high, with more than half of minority party senators typically concurring.
Bipartisanship remains the norm for important legislation, no less than for routine and minor legislation. Fully 90 percent of the laws included on Yale political scientist David Mayhew’s list of landmark enactments since 2010 received support from most minority party members in one or both chambers. Bipartisanship is still how legislation normally gets done, just as in the less-polarized past.
Success in divided and unified government
Divided government matters much less for parties’ success than one might expect. In our book, we take stock of each congressional majority party’s policy agendas from 1985 through 2018. We tracked 265 policy goals in all, recording for each agenda priority whether a party succeeded in enacting a law that achieved at least some of what it wanted to do, or whether it failed to pass any new policy at all.
Unified control of national government only modestly improves a party’s agenda success. Parties failed outright on 43 percent of their agenda priorities in unified government, as compared to a 49 percent failure rate in divided government. There was no difference between the two parties’ success rates, and there was no trend in parties’ success or failure rates over time.
In short, unified government usually underperforms expectations. The filibuster causes much of that disappointment, given that a determined minority party can block most legislation if it controls at least 41 Senate seats. But unified government doesn’t mean that the majority party is, in fact, unified on the details of policy. We find that majority parties frequently struggle to reach internal agreement. Every majority party controlling unified government in our study failed on at least one of its highest legislative priorities due to disagreement within its own ranks. Congressional Republicans’ inability to coalesce on a plan to repeal and replace Obamacare in 2017 reflects a common pattern: Parties with unified control often fragment internally when they seek to legislate on controversial issues, even on issues central to their campaign messages. The list of high-profile failures stemming from intraparty disagreement during unified government is telling, including Clinton’s health plan in 1993-1994, George W. Bush’s Social Security reform in 2005-2006, and Obama’s climate change initiative in 2009-2010.
At the same time, congressional majority parties achieved success on just over half (51 percent) of their agenda items during divided government. These successes are usually watered down in some way, but both parties have made meaningful progress on their priorities under divided government. Classic examples of major policies successfully negotiated in divided government include the historic 1986 tax reform, the Clean Air Act Amendments that successfully addressed the problem of acid rain (1991), the welfare reform effort that abolished AFDC and created TANF (1996), the Gramm-Leach-Bliley major deregulation of the financial industry (1999), and No Child Left Behind (2001). Both Democrats and Republicans have notched successes in divided government since 2019, even amid an atmosphere of toxic partisanship. Congress most recently coalesced to pass the behemoth CARES Act providing $2.2 trillion of stimulus in response to the COVID-19 pandemic. The 116th Congress (2019-20) also agreed to restructure trade policy with Canada and Mexico, protect millions of acres of wilderness, permanently extend the September 11th Victim Compensation Fund, and de-schedule some cannabis products from the Controlled Substances Act. Even the record of recent episodes of divided government belies a narrative of total gridlock.
Paths to policymaking success
For all cases where majority parties passed legislation to advance an agenda item, we examined the means by which those enactments were achieved. We identified four pathways to success. Legislation can take more than one pathway, but most follow just one. These pathways are:
- Steamroll: The majority proposes a policy that is strongly opposed by the minority party, but the majority is able to bludgeon the other side into submission or otherwise pass the bill in spite of clear opposition.
- Bipartisan logroll: The majority logrolls with the minority, combining the priorities held by each party on an issue in order to secure enough votes for passage. Each party gets a win, but neither can pass things that would be a poison pill to the other.
- Seek broad support: The majority party seeks to pass a policy that is broadly popular and/or has substantial bipartisan support. The minority party is not opposed to what the majority wants to do and / or controversial ideas are excluded from the effort.
- Back down: The majority starts out by making a strong, partisan proposal. But as the process unfolds it backs down on controversial provisions in order to secure bipartisan support.
The steamroll represents the kind of aggressive, one-party policymaking most partisans have in mind, but this kind of outcome is very rare, occurring on just 19 party agenda items across the past 35 years. Steamrolls have not become more common in recent years, notwithstanding a handful of celebrated cases, such as the Affordable Care Act of 2010 and the Tax Cuts and Jobs Act of 2017. Even in unified government, steamrolling was the pathway to success only 26 percent of the time. In all congresses, bipartisan pathways to success were more common. Given that steamrolling is generally not feasible, majority parties usually achieve successes through one of the three bipartisan pathways. Backing down was the means by which majority parties achieved success 60 percent of the time during divided government and 38 percent of the time in unified government. In other words, the majority had to give up the more controversial or far-reaching features of its legislative proposal in order to defuse opposition. Even so, the ultimate accomplishments could be substantial. These include successful efforts to address gender pay inequity (Democrats, 2009-2010), institute across-the-board-tax cuts (Republicans, 2001-2002), pass the No Child Left Behind education reforms (Republicans, 2001-2002), and welfare reform (Republicans, 1995-1996).
Another substantial share of successes — 46 percent during unified government and 34 percent during divided government — saw the majority party pass something popular by seeking broad support from the outset. Some of these accomplishments were rather milquetoast, with the majority setting a low bar for victory. But others were more significant or addressed long-standing goals. For instance, in 2018, both parties found success on criminal justice reform, passing the FIRST STEP Act by overwhelming bipartisan margins. In 2007, congressional Democrats gained bipartisan support for a bill that cut college student loan interest rates and expanded federal grants to needy students. In 2006, Republicans succeeded in a long-standing goal to reform federal pension policy by working with Democrats. In 1995-1996, Republicans passed a number of their Contract with America planks, including unfunded-mandates reform and a line-item veto, by advancing proposals that could generate support on both sides of the aisle.
Although they are less common, bipartisan logrolls have accounted for a number of important policy wins for each party over the years. In 2016, Democrats and Republicans worked together to pass the 21st Century Cures Act, which greatly expanded federal spending on health research (a Democratic priority) and streamlined FDA approval processes (a Republican priority). In 2012 and 2013, Democrats and Republicans worked together to resolve the fiscal cliff standoff and subsequently pass a long-term budget deal (Bipartisan Budget Act of 2013) that gave each party some of what they were fighting for on federal budgetary policy. In 2007, congressional Democrats were able to increase the federal minimum wage for the first time in a decade by agreeing to also pass some small-business tax breaks requested by Republicans. One of the most important social policies of the past 30 years, the State Children’s Health Insurance Program, was part of a logrolled budget agreement during the divided government under President Clinton in 1997.
Bipartisan pathways remain the most likely paths to success in Washington. Party polarization has not changed this. If anything, it has created a need for even broader bipartisan coalitions. These days, with each party more ideologically coherent than in the past, there are fewer moderates for either party to pick off in any efforts to construct minimum winning coalitions.
The coming Biden administration
Our research should make clear that unified or divided government is not a dealbreaker for the incoming Biden administration. Divided government does not mean that the administration will be unable to pass anything. The progressive wing of the Democratic party will surely chafe under the limitations of divided government, but past experience suggests that the outcome for the party’s hard-liners would not have been dramatically better even with unified control. When it comes to legislation, bipartisanship will rule the day most of the time regardless.
There are likely a number of things Democrats and Republicans can try to build bipartisan agreement around. The contours of the recent negotiations over a COVID-19 stimulus package suggest that while Democrats will not be able to enact a version of their $3 trillion proposed Heroes Act, they can probably work with Republicans to pass a more modest-sized package. A bipartisan deal on immigration reform seems possible. The 2013 framework that gained 68 votes in the Senate may serve as a reasonable starting point for negotiations on a bill that could pass another Republican-controlled Senate and (this time) a Democratic-controlled House. A bipartisan policing reform bill may also be doable. Democrats certainly won’t be able to pass their wish list, but bipartisan interest in at least some policy changes has existed since summer.
Spending bills may provide a vehicle for other accomplishments that we cannot yet anticipate. In recent years, Congress has passed a number of significant policies by attaching them to must-pass spending bills, ensuring bipartisan support on the floors of the House and Senate. In 2019, both parties achieved some long standing priorities in this manner, despite a contentious partisan environment. These provisions included: federal funding for research on gun violence; boosts in spending for Head Start and other education programs; a raise for federal workers; repeal of two Obamacare taxes, one of which — the so-called “Cadillac tax” on high-cost employer-sponsored health plans — was very unpopular with labor unions; stabilization of pensions for tens of thousands of miners about to lose their benefits; increased taxes on inherited individual retirement accounts; and an increase in the age for tobacco purchases to 21. It is likely that few of these measures could have passed Congress as standalone bills, but they did not have to. We may well see Congress enact more policies achieving Democratic or Republican goals in this manner over the next few years.
Progressives in the Democratic Party had hoped that the Democrats would sweep into power this November, giving them the votes needed to legislate their dreams into realities. But the hard truth about our political system is that parties rarely succeed in legislating without bipartisan support. The public sniping that has taken place in recent days between the progressive and centrist flanks of the Democratic Party should remind us that even with unified control Democrats would have struggled to coalesce behind specific legislative proposals on a number of issues.
No matter what happens with the Georgia runoffs, Democrats’ ability to legislate is not dead. During the Democratic primaries, Biden angered progressives when he said that Republicans and Democrats would need to work together in 2021. “The fact of the matter is,” he said, “if we can’t get a consensus, nothing happens except the abuse of power by the executive. Zero.” Our data confirm that candidate Biden was simply right. To succeed in Washington policymaking, building bipartisan coalitions behind broadly supported legislation — as enormously hard as it is — offers a party its best and usually its only chance at success.
James M. Curry is an associate professor and Director of Graduate Studies in the Department of Political Science at the University of Utah, and co-director of the Utah Chapter of the Scholars Strategy Network. Curry’s research focuses on U.S. politics and policymaking, especially the U.S. Congress. Specifically, he analyzes how contemporary legislative processes and institutions affect legislative politics, with a particular focus on the role of parties and leaders in the U.S. Congress. His book, Legislating in the Dark (2015, University of Chicago Press), examines how congressional leaders leverage their unique access to legislative information and resources to encourage their rank-and-file to support leadership decisions, and how rank-and-file members of Congress are often in the dark as the legislative process unfolds. Legislating in the Dark was selected as the recipient of the 2016 Alan Rosenthal Prize.
Frances E. Lee is jointly appointed in the Department of Politics and the Princeton School of Public and International Affairs where she is Professor of Politics and Public Affairs. Lee has broad interests in American politics, with a special focus on congressional politics, national policymaking, party politics, and representation. She is author of Insecure Majorities: Congress and the Perpetual Campaign (2016) and Beyond Ideology: Politics, Principles, and Partisanship in the U.S. Senate (2009). She is also coauthor of The Limits of Party: Congress and Lawmaking in a Polarized Era (2020), Sizing Up The Senate: The Unequal Consequences of Equal Representation (1999) and a textbook, Congress and Its Members (Sage / CQ Press). Her research has appeared in the American Political Science Review, American Journal of Political Science, Perspectives on Politics, Journal of Politics, Legislative Studies Quarterly, and other outlets.
Photo Credit: Office of the Speaker, Public domain.