Living Legislation: Durability, Change, and the Politics of American Lawmaking

Living Legislation: Durability, Change, and the Politics of American Lawmaking

by Jeffery A. Jenkins

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Politics is at its most dramatic during debates over important pieces of legislation. It is thus no stretch to refer to legislation as a living, breathing force in American politics. And while debates over legislative measures begin before an item is enacted, they also endure long afterward, when the political legacy of a law becomes clear.

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Politics is at its most dramatic during debates over important pieces of legislation. It is thus no stretch to refer to legislation as a living, breathing force in American politics. And while debates over legislative measures begin before an item is enacted, they also endure long afterward, when the political legacy of a law becomes clear.
Living Legislation provides fresh insights into contemporary American politics and public policy. Of particular interest to the contributors to this volume is the question of why some laws stand the test of time while others are eliminated, replaced, or significantly amended. Among the topics the essays discuss are how laws emerge from—and effect change within—coalition structures, the effectiveness of laws at mediating partisan conflicts, and the ways in which laws interact with broader shifts in the political environment. As an essential addition to the study of politics, Living Legislation enhances understanding of democracy, governance, and power.

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Editorial Reviews

Robert C. Lieberman

“Jenkins and Patashnik have brought together a first-rate collection of scholars to address the too-often-neglected question of what happens to American public policies after the passage of legislation. The result is a compelling work that raises many deeper questions about legislation as a developmental force in American politics. Living Legislation will make an extremely important contribution to the study of American politics and public policy.”

Eric Schickler

Living Legislation offers an important new perspective on policy making in the United States. In bringing together leading scholars from a variety of research traditions, this agenda-setting book shifts our attention from the enactment of landmark bills towards the broader question of what leads some legislative achievements to endure while others are reversed or fade away.”
Frances E. Lee

“The questions addressed by this diverse and formidable group of scholars are of such obvious importance that it is amazing so little work has been done on them until recently. Readers will come away impressed both with the progress made in understanding what happens to laws and policies after they are enacted as well as the pressing need for future work on the topic. Living Legislation is sure to be a high-impact volume.”

"This collection of essays pushes the frontiers of knowledge about lawmaking in the US."
Perspectives on Politics

“In this illuminating volume, Jenkins and Patashnik bring together an all-star cast of American politics scholars to analyze the origins and development of legislation over time. . . . The essays make a strong case for looking ‘beyond legislative productivity’ to the broader politics of agenda-setting and programmatic evolution that bracket the formal lawmaking process. . . . [This is] an admirable volume that extends our understanding of how public policies emerge and evolve. . . .  The chapters are uniformly excellent, showcasing a diverse array of ingenious approaches to answering important questions about the policy process. Both quantitative and qualitative scholars will find much to ponder and debate within its pages.”
Journal of Legislative Studies

“Jenkins and Patashnik have assembled an ambitious volume that seeks to take American legislative scholarship beyond its typical focus only on the making of laws to consider what happens to laws over the course of their ‘lives’. . . . An impressive array of scholars from law, economics, public policy, and especially political science wrestle with various aspects of this broad topic. . . . The timely focus on understudied and underappreciated facets of legislation make for an interesting, insightful read.”

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University of Chicago Press
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Living Legislation

Durability, Change, and the Politics of American Lawmaking


Copyright © 2012 The University of Chicago
All right reserved.

ISBN: 978-0-226-39645-3

Chapter One

Living Legislation and American Politics

Jeffery A. Jenkins and Eric M. Patashnik

On November 4, 2008, Barack Obama was elected president of the United States. Senator Obama ran on a campaign of "hope" and "change," generating a wave of optimism in the face of multiple wars and economic recession that had bogged down the final years of the George W. Bush administration. A key component of Obama's domestic agenda was the promise of universal health care for all Americans.

Once elected, President Obama sought to make health-care reform a reality. Progress on health legislation was slow through the early months of 2009, however, as President Obama—seeking to avoid the mistakes made by President Bill Clinton in 1993—encouraged Democratic leaders in Congress to craft the bill. Following the enactment of a $787 billion economic stimulus package, a conservative groundswell, dubbed the Tea Party movement, emerged to protest against government expansion, including health-care reform. But Speaker Nancy Pelosi (D-CA) marshaled her troops and pushed through HR 3962, the Affordable Health Care for America Act, over strong GOP opposition. The House bill provided for a "public option," a government-run insurance plan to compete with those offered by private insurance companies. The Senate, however, went in a different direction. Needing the votes of all 60 Democrats in the Senate to override Republican filibuster attempts, Majority Leader Harry Reid (D-NV) was at the mercy of moderate members of his caucus. In the end, the public option was dropped, and Senate centrists extracted additional concessions. The Senate bill, HR 3590, the Patient Protection and Affordable Care Act, passed 60–39 on a straight party-line vote.

But then events intruded. Liberal stalwart Senator Edward Kennedy (D-MA) died and was replaced in a special election by Scott Brown, a Republican. The Democrats lost their filibuster-proof majority and the ability to pass a new bill. Thus, Democratic House leaders chose to adopt the Senate bill and fix some of its problems later. After contentious debate, the House passed HR 3590 by a vote of 219–212, with 34 Democrats and all 178 Republicans voting against it.

Thus, health-care reform was a reality. But the law did not enjoy wide public support, and its enactment helped energize the Republican base for its repeal. Several features of the health reform law create political sustainability risks. First, the law passed without a single Republican vote in either chamber. This is not the usual way landmark welfare state expansions have been enacted in the United States. The Social Security Act of 1935 was supported by a strong majority of Republicans in the House and Senate on final passage. The final votes on Medicare in 1965 were closer, but that law still won the support of a narrow majority of House Republicans and almost half the GOP senators. Second, the law failed to deliver large, visible benefits to the 85% of Americans who already had health insurance. It remained unclear whether the program would build a strong constituency or come to be viewed as a broad middle-class entitlement. Third, Congress back-loaded many of the subsidies and benefits to 2014 for budgetary reasons. As a result, the most generous provisions of the law were not scheduled to kick in until after the 2012 presidential election. Finally, the law relies heavily on state authorities for its implementation, but many Republican state officials viewed the law as a federal overreach and challenged its constitutionality. It seemed likely that the issue would end up before the Supreme Court—with no certainty about the outcome.

The November 2010 midterm elections were not kind to the Democratic Party. Damaged by continued high unemployment and flagging support by key voting groups from their 2008 victory, the Democrats lost sixty-three seats and their majority in the House and six seats in the Senate. Emboldened by their party's resurgence and pushed by leaders of the Tea Party, Republican leaders took aim at the health-care law. Knowing they lacked the votes to repeal the law outright, they began to devise ways to derail its implementation.

As this book went to press, it remained an open question whether the law would become a durable part of the American policy landscape or if Republicans would ultimately succeed in their rear-guard efforts to unravel the measure in whole or part. The enactment of the Patient Protection and Affordable Care Act was a contentious, high-visibility event—but it did not settle anything. Rather, the moment of legislative enactment was merely the first round in an unfolding political and legal battle, and what federal health reform legislation looks like when the dust finally settles is anyone's guess.

* * *

Legislation is a living, breathing force in American politics. Laws enacted by the U.S. Congress, if entrenched, determine the boundaries of the political community, establish the rights and duties of citizens and officeholders, and provide the vehicle through which campaign promises, party platforms, and ideological programs are translated into policy outputs. Because the stakes for democracy and governance are so high, legislation also shapes the ground on which political battles are fought and the political commitments that tomorrow's officeholders inherit and sometimes seek to abrogate or unravel.

Scholars of American politics have devoted considerable intellectual energy to examining certain aspects of the lawmaking process. A sophisticated empirical literature has developed that seeks to explain legislative voting in committees and on chamber floors. This literature has given us much insight into the influence of constituency interests, ideological preferences, public moods, and partisan pressure on the outcome of roll-call votes in Congress. In addition, political scientists have uncovered the factors that shape the rules and procedures by which the Congress debates and acts on proposed legislation.

Despite these impressive research accomplishments, scholars have left important questions about legislation unaddressed. Why do some ideas remain on the legislative agenda for years and even decades while other ideas quickly drop off of it? Why do some laws, once added to the statute books, persist for decades in their original form while other laws are repealed or substantially modified soon after enactment? How can major policy reforms, which challenge the privileges of powerful clientele groups to promote diffuse interests, survive the legislative process and significant amending activity and become embedded in governing routines? In short, what happens before legislative adoption and what happens after the dramatic moment of legislative enactment? These questions go beyond a concern with the fidelity of bureaucratic implementation or the technical competence of public administration. They speak to the broader role of legislative coalitions, partisan forces, and policy commitments in remaking the American polity.

As the brief overview of health-care reform at the beginning of this chapter illustrates, a law's enactment is often simply the opening move in a larger political drama. A preoccupation on enactment—and only enactment—runs the risk of directing attention away from critical features of the lawmaking process. The objective of this volume is to explore how public laws are born, how they live, how they remake or fail to remake politics, and how they mutate and die. To address these questions, the standard view of legislation as a fixed end point is inadequate. We need to look at lawmaking developmentally, to see it not as a static act in which a piece of legislation is conjured up in a brief moment of political deal making or policy inspiration, and then put into immediate and permanent effect, never to be modified, but rather as a complex process of governance in which the policy content and societal impact of legislation unfolds over time. Laws have a life before adoption, when they are merely proposals advancing on the agenda, as well as after enactment, when they may generate durable legacies that channel the political possibilities of the future. While a legislative measure may not carry the imprimatur of the state prior to enactment, it may embody policy ideas that have been the objects of political deliberation, gestation, and contestation for many years. And the rules, incentives, and expectations contained in legislation are given tangible meaning and effect as they intersect with and refract the evolving political process. Lawmaking is not merely the culmination of a struggle among rival interests, values, and ideas; rather it is the very medium through which this political struggle plays out.

To assemble this volume, we invited a diverse set of contributors—including quantitative political scientists, political development scholars, historians, and economists—to address some underexamined aspects of lawmaking. We have made no attempt to force our contributors to use identical theoretical frameworks or methodologies or even to define their inquiries in precisely the same terms. The contributors thus deploy a variety of concepts and approaches and stress different causal mechanisms. As a result, there are both intellectual synergies and intriguing tensions among the chapters. We believe that the juxtaposition of these competing and complementary perspectives will provide a greater stimulus to scholarship than if we imposed an artificial and premature consensus on this emerging line of research.

Changing Perspectives on Lawmaking: The State of the Literature

Lawmaking is, and has always been, at the heart of American democracy. One reason why lawmaking has been so deeply woven into the American political tradition is the durability and resilience of the Constitution itself. As William N. Eskridge Jr. and John Ferejohn point out, the difficulty of using the formal process of constitutional amendment to undertake policy commitments, declare new rights, and address injustices has long channeled political energy into the crafting and adoption of statutes. The result of this ongoing process of public lawmaking has sometimes been to change baseline understandings of constitutional norms themselves.

While lawmaking has been integral to the American Republic since 1789, the prisms through which scholars and practitioners have viewed the legislative enterprise have changed signifi cantly over time. As political historian William J. Novak observes in chapter 2, a critical transformation in both the theoretical and pragmatic understanding of American lawmaking occurred in the late nineteenth century. With the rise of a modern administrative state, legislation came to be seen less as an end in itself, a reflection of abstract sovereignty or the embodiment of the people, and increasingly as a human construction developed for the efficient management, organization, and control of the nation's business. This conception of legislation as both an evolving and instrumental activity could be found in the writings of leading progressives such as Woodrow Wilson, who sought to make the legislative enterprise more potent and responsive to the challenges of the day. In his 1885 book Congressional Government, Wilson argued that lawmaking was not an authoritative act that settled political controversies once and for all but rather one step in an ongoing process of political deliberation and social experimentation, in which the adoption of each new law yielded a reaction:

Legislation unquestionably generates legislation. Every statute may be said to have a long lineage of statutes behind it; and whether that lineage be honorable or of ill repute is as much a question as to each individual statute as it can be with regard to the ancestry of each individual legislator. Every statute in its turn has a numerous progeny, and only time and opportunity can decide whether its offspring will bring it honor or shame. Once begin the dance of legislation, and you must struggle through its mazes as best you can to its breathless end,—if any end there be.

Wilson's point was not that new laws are invariably superior to old ones, for he recognized and decried the many obstacles to wise and effective lawmaking in a representative democracy. Rather, Wilson's claim was that laws, once enacted, create effects that future legislators must address one way or another. As he wrote, "It is not surprising, therefore, that the enacting, revising, tinkering, repealing of laws should engross the attention and engage the entire energy of such a body as Congress." Yet if Wilson possessed a keen understanding of the developmental and pragmatic nature of the legislative enterprise, his arguments were largely unsystematic and did not establish a research agenda for twentieth-century American political science.

After World War II, the study of Congress as a lawmaking body became less prescriptive and more social scientific. Many studies of Congress took on a sociological flavor that reflected the dominant intellectual currents of the age. Influential political scientists such as David Truman and Donald Matthews analyzed Congress as an autonomous institution whose members were governed by the norms, folkways, and role expectations internal to each chamber. The focus of research shifted from a study of lawmaking as a constructive human enterprise to a detailed examination of the politics of legislative representation. Patterns of lawmaking were understood primarily for what they revealed about how the Congress maintained its political legitimacy and organizational boundaries in a complex, pluralistic society.

With the rise of the rational choice revolution of the 1970s, scholars began exploring lawmakers' goal-seeking behavior. While congressional scholars continued to study legislation, they did so primarily as a vehicle for understanding the intentions and incentives of individual lawmakers. 13 Committees and parties increasingly became the hot areas of study, and while scholars sometimes spoke of these institutions in the context of generating "policies" or "legislative outputs," the major focus was on the procedural and structural design of Congress. Key questions included whether committees traded authority across issue jurisdictions, whether information and expertise was valued, and whether partisanship shaped legislative behavior independent of members' constituency interests or ideological preferences. Moreover, for reasons of tractability and parsimony, these works were confined to a study of Congress (and often only one chamber); the role of other institutional actors, specifically the president, who might have an effect on the legislative process was typically downplayed or ignored.

The publication of David R. Mayhew's seminal 1991 book Divided We Govern rejuvenated the study of lawmaking within congressional studies. Mayhew's central question was whether divided party control of government affects legislative productivity. Mayhew operationalized legislative productivity in terms of the number of "major laws" enacted and found that productivity was not lower under divided government than under unified party control. Although Mayhew's counterintuitive finding did not go unchallenged, the overall impact of his study was considerable. First, it persuaded quantitatively oriented political scientists that lawmaking was an exciting and analytically tractable object of study. Second, it stimulated research on related topics including congressional delegation, veto politics, and unilateral presidential action.


Excerpted from Living Legislation Copyright © 2012 by The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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