Repeal-Proofing the Biden Administration

As Democrats design their policy agenda, they must think about not just how to get new laws passed, but how to make them durable. 

In an effort to build enthusiasm among progressives, Joe Biden is promising a series of ambitious policies to tackle problems like economic inequality, racial bias in the criminal justice system, and climate change. Biden is calling for a government-run health insurance option, an end to cash bail and mandatory minimum sentences, and the instillation of 500 million solar panels across the country over the next five years. In his recently released climate plan, he proposed spending $2 trillion to make the U.S. power sector carbon free by 2035.

Congress in Reverse:
Repeals from Reconstruction to the Present
by Jordan M. Ragusa and
Nathaniel A. Birkhead
University of Chicago Press, 184 pp.

If he wins the election, Biden will face fierce resistance from Republicans in his efforts to carry out most of these policies. He will probably encounter some opposition from moderate Democrats, as well. Yet if his party captures both houses of Congress as well as the White House, it’s likely that some—if not all—of these promises will become realities.

But that doesn’t mean all of them will stay realities. At some point, Republicans will have power again, and they will target Biden’s biggest achievements, just as they did Barack Obama’s. During the first two years of the Trump administration, for example, the GOP successfully managed to repeal the Affordable Care Act’s individual mandate and roll back some of the banking regulations contained in the Dodd-Frank financial reform bill (the latter with support from some Democrats). 

The consequences of repeals can be far-reaching. Eliminating the individual mandate has not led to the collapse of the ACA’s markets, as some feared (or hoped) it would, but it has helped increase the uninsured rate, just in time for the pandemic. Repeals passed with cross-party backing can have equally significant impacts. The federal government’s response to deep poverty in the face of the COVID-19 recession would likely have been faster and more reliable if Congress had not repealed Aid to Families with Dependent Children (AFDC) and replaced it with Temporary Assistance for Needy Families (TANF) in 1996. Whatever AFDC’s defects as a program to encourage labor market participation, its entitlement design ensured that safety net spending went up automatically as demand for assistance climbed. By contrast, TANF’s block grant funding is much less responsive to increases in economic need. 

The risks of repeals mean that as Democrats design their bills and policies, they’ll have to think about not just how to get them through Congress and past the courts, but also how to make them durable. To do that, they would be wise to read Congress in Reverse, by the political scientists Jordan M. Ragusa (College of Charleston) and Nathaniel A. Birkhead (Kansas State University). The book provides valuable insights into what kinds of laws are most fragile, and when. As the authors show, the two key factors in driving repeal attempts are partisanship and recency. Parties, especially when ideologically unified, are far more likely to repeal the legislative achievements of the opposing party than they are their own, and newer bills are at greater risk than older ones. Ragusa and Birkhead’s research suggests that unless Biden can get Republicans to support his reforms, the laws will likely be subject to intense opposition for roughly ten years after their passage.

So how can Biden’s bills survive this window? There are several critical steps. Democrats will need to guarantee that their laws create large, supportive coalitions of beneficiaries that will fight to keep these policies alive. The party must make sure that Americans see the upsides of their laws as soon as they possibly can. And, whenever feasible, it has to design policies in ways that divide opposition interests—including the Republican Party itself.

What motivates members of Congress to allocate political capital to repeal efforts? Under what conditions do such efforts succeed? Until fairly recently, these questions received little scholarly attention. Most political scientists have treated repeals as no different than the enactment of other laws. The implicit assumption is that all laws emerge from the same institutional context. 

Over the past decade, however, political scientists have begun to study what might be called “post-passage” politics—what happens to laws after they are enacted. A central finding of this research is that law creation and law death are fundamentally different. Laws are often passed when the media and activists focus the political system’s attention (a precious commodity) on new problems. But once laws are on the books, the cost of reversal becomes high. Laws generate constituencies who organize to protect their vested interests. The public often accepts them as immutable facts of American policy. Little wonder that even politicians who believe that a previously enacted law is obsolete or has a baleful impact may choose to focus their energy on actions other than repeals.

But not always. As Ragusa and Birkhead show, there are many significant repeal attempts that do succeed. Through impressive data gathering, the authors identify and analyze some 111 notable repeals that occurred between 1877 and 2012, from the 1887 repeal of the Tenure of Office Act (originally passed to constrain, and then impeach, President Andrew Johnson) to the 2010 repeal of “don’t ask, don’t tell.” They investigate a variety of possible motivations for these repeals, including lawmakers’ personal policy preferences and their interest in fixing policy errors. While Ragusa and Birkhead find that both preferences and errors carry some weight, rollbacks are ultimately motivated by partisanship. Their core thesis is that significant repeals are most likely when parties are “ideologically cohesive” and “when the majority party wins control of Congress after a long stint in the minority.” When Republicans gained unified control of Congress in 1994 for the first time in a half a century, for example, they passed a number of significant repeals—including eliminating AFDC and defunding the Office of Technology Assessment, Congress’s in-house technology think tank. One of the many interesting questions the authors explore is whether repeals are a distinctly conservative phenomenon. There are reasons to believe they are. Barry Goldwater, the 1964 Republican presidential nominee, wrote, “My aim is not to pass laws, but to repeal them.” Between 1953 and 2017, conservative lawmakers sponsored an average of 42 percent more repeal bills per Congress than their liberal counterparts.  

But that difference is not only driven by ideology. It’s also driven by political incentives. Republicans sponsor more repeals than Democrats while in both the majority and the minority, but Ragusa and Birkhead find that conservatives sponsor far more bills than liberals while in the minority. It’s easy and electorally rewarding for conservatives to rail against government spending in the abstract. But when they hold majority power, they have to face the political consequences of withdrawing benefits and undoing programs. As Ragusa and Birkhead write, conservative majorities have to “confront the fact that the compromises needed to actually govern [are] anathema to their underlying philosophy.” 

Eliminating the individual mandate in the Affordable Care Act has helped increase the uninsured rate, just in time for the pandemic.

That may offer some comfort to Democrats. But any legislation Biden passes will still be at heightened risk if it’s passed on a partisan basis. Even bipartisan accomplishments (if there are any) will be at greater risk simply because they will have been passed recently. Ragusa and Birkhead show that a “significant law’s likelihood of repeal increases from the moment it is signed by the president until about ten years after passage.” After a decade passes, “the risk of repeal drops dramatically.” One reason the Affordable Care Act ran into early sustainability trouble is that only some of its benefits were front-loaded; many of its core provisions did not take effect until four years after the law’s passage. It settled enough to survive repeal, but only thanks to defections from a small handful of Republicans. 

So how can Biden repeal-proof his legislation? First, it’s critical that he adopt policies that generate what scholars call “policy feedback”: new political facts on the ground that help protect the law from threats and unleash forces that promote further political reform. This can happen in a variety of ways. For example, policies can build and empower clienteles, lower the costs to their democratic engagement, and stimulate people and organizations to invest in the system. Social Security is incredibly resilient because every elderly person in America has a stake in its existence and is mobilized to protect it.

Some of Biden’s policy proposals are excellent bets to generate positive feedback effects. For example, Biden’s proposal to make Section 8 housing vouchers an entitlement so that all eligible low-income households would receive them (currently only 25 percent of households who meet the eligibility criteria get assistance) could build a massive new constituency. The proposal of the Biden-Sanders unity task force to automatically enroll low-income Americans in the federal health insurance option should also build a robust base of support.

But to safeguard laws, policy feedback needs to begin before opponents have repeal openings. This means that people will need to see tangible benefits from Biden’s new legislation quickly, ideally before the 2022 midterms. Passed early, labor reforms—such as an increase in the minimum wage and the creation of a hotline for workers who believe their rights have been violated—are good proposals for generating robust, fast-acting support. As Andrew Schrank of Brown University argues, such reforms would quickly make workers more economically secure and more inclined to use their political voice to demand additional protections. This seems like a more effective strategy for improving labor market outcomes than mounting a frontal attack on Taft-Hartley provisions that allow states to impose right-to-work laws (which Biden says he wishes to repeal).

To safeguard Biden’s laws, voters will need to see the tangible benefits quickly, ideally before the 2022 midterms.

Biden and the Democrats should also try to design policies that minimize political backlash. Doing so will be difficult, given how ideologically extreme the GOP has become. But laws that don’t impose visible taxes or create a perceived threat to people who rely on existing arrangements are less likely to incur blowback. Biden’s proposal to lower the Medicare eligibility age from 65 to 60 (with the expansion paid for with general revenues), for example, seems well designed to reduce backlash risks. It is unlikely to unsettle senior citizens who believe they have an “earned right” to their Medicare benefits, since the newest beneficiaries will also be of an older age. If this proposal wins adoption and survives early tests, it might generate momentum for the subsequent adoption of a Medicare expansion that lowers the eligibility age to 55 or 50. 

But to truly minimize blowback, Democrats must actively work to fracture opponents. In the area of climate policy, for example, Biden is proposing aggressive methane pollution limits for new and existing oil and gas operations. This might seem destined to incur the wrath of most energy companies, but methane emissions vary greatly by type of oil and gas and across producers, processors, and shippers. Some companies may then actually support these limits, realizing that they could undercut more methane-dependent competitors. Rolling the petroleum lobby is a daunting task, but Biden’s plan is a strong attempt to divide and conquer. 

Finally, Biden and the Democrats must help citizens understand how they benefit from social provisions. As Suzanne Mettler of Cornell University argues in The Government-Citizen Disconnect, many American recipients of generous social policies do not believe that their assistance comes from government. As a result, they do not think public policy makes a positive difference in their lives and are unlikely to defend government programs. To boost public trust and civic participation, Mettler argues, policymakers should provide information to citizens about the value of their benefits, use transparent delivery mechanisms, and pay greater attention to program marketing. One of Biden’s campaign pledges is to invest $50 billion in workforce training, including high-quality apprenticeships. Can this worthy plan be explained to younger Americans and employers as effectively as was the GI Bill? Without a supportive constituency, this initiative may not survive.

None of these actions, of course, will eliminate the impact of today’s toxic partisan environment. As Ragusa and Birkhead show, “partisan laws are more likely to be repealed by future Congresses, irrespective of how many lawmakers voted for the bill in the aggregate.” A law that passes narrowly but with a mix of Democratic and Republican backing is more likely to stick than one that passes with the same number of votes all from one party.

For their biggest proposals, Democrats will have no choice but to go it alone. It’s unrealistic to expect that Republicans will endorse progressive goals like higher taxes on the wealthy, stronger regulations on business, or new social entitlements for the working class. Yet as the political scientists James M. Curry and Frances E. Lee have shown, there is still significant legislation that garners bipartisan support in Congress. The 21st Century Cures Act (designed to help accelerate medical product development), the First Step Act (criminal justice reform), and this spring’s coronavirus relief packages all had bipartisan backing. A few of Biden’s major initiatives also have some chance of gaining support from free market conservatives, including proposals to reduce onerous zoning regulations. He should pursue these plans, while being mindful of the political risks.

Deciding how vigorously to court GOP support, and how to otherwise design legislation so it proves difficult to repeal, may seem premature. Joe Biden, after all, has not yet won a single electoral vote. As the administrations of Bill Clinton and Barack Obama demonstrate, however, reform-minded presidents may be able to pass only a limited amount of legislation before they face backlash in the midterms. Presidential transition teams are usually so focused on the first 100 days that they don’t consider the political sustainability of legislative priorities. They ignore this issue at their peril.

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Eric Patashnik

Eric Patashnik is Julis-Rabinowitz Professor of Public Policy and Political Science at the Watson Institute at Brown University. His books include Reforms at Risk, Unhealthy Politics, and Putting Trust in the U.S. Budget.