03-09-2002
CONGRESS: Action Versus Inaction
Lightning can indeed strike twice. But as lawmakers on both sides of the
aisle watch the latest steps toward compromise by Washington's oddest new
power couple-George W. Bush and Edward Kennedy-many are hoping that it
won't strike the second time before Election Day 2002.
The first thunderbolt struck last spring when Kennedy, the top Democrat on
the Senate Health, Education, Labor, and Pensions Committee, negotiated a
deal with the White House that led to passage of a bipartisan education
bill substantially giving the Democrats what they had wanted for years-but
also effectively stamping Bush's credentials as the "Education
President." Now Massachusetts' unabashedly liberal senior Senator and
the conservative Republican White House are playing Let's Make a Deal on a
patients' bill of rights.
The outcome of their discussions will say a lot about who's winning the
ongoing tug-of-war in Washington. On one side are Republicans and
Democrats who want to accentuate policy differences that they can use as
partisan campaign issues. On the other side are Republicans and Democrats
who want to narrow policy differences so that legislation can actually
become law.
The tension is not new, of course. But with Congress so evenly divided
between the two parties, the tension has become more obvious. Lawmakers
weigh issue after issue based on whether it could give one party or the
other a chance to win more seats in the next election. Both Democrats and
Republicans justify gridlock on the grounds that in the next Congress,
they'll be in a better position to pass legislation to their
liking.
Thus, many congressional Democrats are viewing the Kennedy-Bush talks on a
patients' bill of rights "with alarm," said Rep. Robert T.
Matsui, D-Calif. Many worry that last year's high-profile compromise on
education cost the Democratic Party its long-standing advantage with
voters on that issue. And, especially now that the Republican President is
tremendously popular, those Democrats are deeply suspicious of any
bipartisan deal that might chip away at whatever edge they still have on
such issues as health care and the environment.
Congressional Republicans are equally nervous about any potential
compromise that might alienate their traditional contributors or their
base of voters, because midterm elections often hinge on which party can
most effectively turn out its core supporters. Rep. John A. Boehner of
Ohio, the House Republicans' key negotiator on last year's education
package, observes, "It is an election year, which bring its own set
of dynamics to the legislative process, mostly all negative."
In Matsui's view: "There is the desire to highlight ... differences
between the two parties going into the general election. And I suspect we
will see more of that in the House and on the Republican side in the
Senate."
Kennedy, in a recent interview on CNN marking his 70th birthday, was asked
about Democrats' concerns that their party could suffer politically
because of the education compromise.
"Have you somehow unwittingly given the President a leg up, and the
Republicans, on this issue?" Judy Woodruff asked.
"We ought to take it as a badge of honor that we have been able to
work this out," Kennedy replied. "Otherwise," he continued,
"there's not a great deal of reason for being. Otherwise you're just
another-you're a party that has a label without a
commitment."
Will the dynamic that produced an education bill prove to be the exception
in the 107th Congress? Or can it be replicated on other issues-such as a
patients' bill of rights, energy legislation, and post-Enron business
reforms?
For there to be any bipartisan deals this year comparable to the education
breakthrough, Bush would undoubtedly have to make striking a bargain a
priority. For lawmakers of both parties, the perceived political price of
resisting a Bush-backed compromise might then outweigh their qualms about
losing a promising defining issue for the fall campaign.
The Education Experience
Before Bush's election, partisan attempts to pass a major education bill
had failed two years in a row. Sen. Judd Gregg of New Hampshire, who was
the GOP's top negotiator in the Senate, likens the attempts to pass an
education package in 1999 and 2000 to running into a brick wall. "It
was part of the education experience of the education bill," he
recalls. In a closely divided Congress, neither side had enough clout to
ram through its education priorities.
When a compromise pushed by centrist Democrats Joe Lieberman of
Connecticut and Evan Bayh of Indiana reached the Senate floor in May 2000,
it won only 13 votes. An aide to one moderate Democrat says: "We had
a lot of members come up to us and say, `I really like what you're doing,
[but] we can't give the Republicans a win in an election year,' or, `The
education groups don't like it, and we're afraid to bump them when we're
in [an election] cycle.' "
Once the 2000 election was over, lawmakers felt considerable pressure to
pass an education bill, largely because Bush had made education a
cornerstone of his campaign. Had Democrats not gone along, they'd quickly
have been painted as obstructionist. "Bush came out of the election
with a big head of steam on education," says Rep. George Miller,
D-Calif. "He wasn't going to sit around and do nothing because we
didn't want to play."
Bush, who borrowed from the Lieberman-Bayh proposal in crafting his
education package, secretly planned to cut a deal with the Senate's 13
centrist Democrats and then push for something similar or more
conservative in the House. But Kennedy caught wind of the White House
discussions with his more centrist colleagues and inserted himself into
the debate, offering to accept a watered-down version of the GOP's beloved
private-school voucher proposal. Kennedy said he would back a bill
allowing children enrolled in failing public schools to use federal funds
for private, after-school tutoring. Republicans were happy to bargain with
Kennedy, if he could deliver. He did: All but six Senate Democrats voted
for the final version of the bill in December.
On the House side, Boehner had to overcome the resistance of his own
party's leadership, which wanted the bill to include such Republican
priorities as block grants and private-school vouchers. Just before the
bill was to be voted out of committee, Bush met with Boehner and House
Republican leaders to make it clear that he backed Boehner's drive to pass
a bipartisan bill. Ultimately, the Bush-backed measure sailed through the
House, 381-41, in December. And 33 of the "no" votes were
Republican.
Who won? Democrats concede that Bush got much of the political credit. And
Democrats, including Kennedy, have called Bush's education budget for 2003
inadequate. Yet privately they say that they extracted more money for
education from a Republican White House-$4 billion above Bush's original
request-than they had thought possible. And Bush, who has repeatedly
praised Kennedy for his help, ended up signing a largely Democratic
bill.
The President pushed through his student testing requirements, but most of
the GOP's other education priorities were dropped or significantly pared
back. Even so, Republican Senate negotiator Gregg says, "It isn't
everything I would have wanted, but it's a pretty big step."
Simply signing an education package was a major feather in Bush's cap,
because it gave him a victory in traditionally Democratic territory. As
one Senate Democratic aide puts it, Democrats "who really, really
wanted the bill know they gave a huge gift to Bush." Yet Bush had
gained considerable ground on education even before taking office. Back in
1996, the Voter News Service exit poll found that voters who declared
education was their top priority favored Democratic President Clinton over
his Republican challenger, Sen. Bob Dole of Kansas, 78 percent to 16
percent. But in 2000, education voters much more narrowly favored
Democratic nominee Al Gore over George W. Bush-52 percent to 44 percent.
So, arguably, compromising on education last year may have been wiser for
Democrats than bucking the self-styled Education President would have
been.
Patients' Rights
If Democrats and Republicans forge a compromise this year on the scale of
the 2001 education package, their deal might well involve protecting
patients of health maintenance organizations. But although lawmakers are
weary from four years of wrangling on the issue and think that they should
be able to finally strike an agreement, the political currents may be
running too swiftly to let them bridge their differences in an election
year.
When Clinton called on Congress to enact a patients' bill of rights late
in 1997, many Republicans accused him of trying to resurrect a portion of
his national health care plan, which had died in 1994. Nevertheless, by
October 1999, 68 House Republicans had turned their backs on their party's
leaders, and a bipartisan patients' bill of rights-crafted by Reps.
Charlie Norwood Jr., R-Ga., and John D. Dingell, D-Mich.-passed by a
healthy 275-151 vote. The next year, the Republican-controlled Senate
passed a more modest measure. But House-Senate negotiators failed to
resolve the bills' differences, and the legislation expired at the end of
the session.
Then, less than a month after the Democrats took control of the Senate
last June, newly empowered Majority Leader Thomas A. Daschle, D-S.D.,
secured passage of a bipartisan patients' rights bill on a 59-36 vote.
Bush persuaded Norwood to back a GOP plan that would provide patients a
much more limited right to sue. That plan passed the House, 218-213,
largely along party lines.
After Bush cut his deal with Norwood, opponents in the business community
cringed and braced for an eventual bill signing. But when the events of
September 11 turned the nation's attention away from patients' rights, the
effort to kill the legislation appeared likely to succeed-until Bush
opened a dialogue with Kennedy.
Some Republicans are angry at Bush for again coming to the table with the
Massachusetts liberal. They fear that congressional Democrats will be the
primary beneficiaries if patients' rights legislation becomes law.
Moreover, Republican lawmakers worry that their business allies will
punish them by cutting back on campaign contributions if patients win new
federal rights.
Robert J. Blendon, a professor of health care policy at Harvard
University, says Republican lawmakers "don't think they'll get a lot
of thank-you notes," if a patients' rights bill becomes law.
The Bush Administration wants to forge ahead nonetheless. "The
President wants to move beyond political pressures to get things
done," said Mark B. McClellan, a member of Bush's Council of Economic
Advisers and his top health adviser in the White House. Of course, while
the President is scoring high points on his anti-terrorism endeavor,
passing patients' rights legislation would help negate any charges that
he's ignoring domestic problems, a perception that bedeviled his father
after the Persian Gulf War.
Some Democrats, meanwhile, are unhappy with Kennedy, because they dread
the prospect of Bush's basking in the limelight of a patients' rights
victory. "They want to be able to say that the President has no
domestic agenda in 2002, so they don't want any signing of anything in the
Rose Garden," according to Harvard's Blendon.
Democrats who are struggling to find ways to deflate the popularity of a
wartime President and to throw his party on the defensive in the midterm
elections are reluctant to remove a major health care issue from their
arsenal.
Matsui says that he and many of his colleagues remember another deal that
the Massachusetts Senator had a hand in and that Clinton blessed: the 1996
Kennedy-Kassebaum legislation that guaranteed the portability of health
insurance for workers who change jobs. "Essentially, that was seen as
our solution to health care in America, and [Democrats] basically lost the
opportunity [in the `96 election] to talk about the uninsured and those
who lacked coverage," Matsui recalls. "I think unless we win,
it's not worth taking the issue off the table. And by `win,' I mean
[enacting] the Dingell-Norwood bill."
But these days, Kennedy pays less attention to maintaining partisan
advantages than many of his colleagues do. While Daschle has yet to
appoint Senate conferees to work out the differences between the House and
Senate patients' rights bills, he has said that he will give Kennedy some
leeway to negotiate with Bush.
Still, the chances for a Bush-Kennedy health care compact appear slim. The
Administration and Kennedy remain far apart on allowing patients to sue
their health plans, and the White House isn't expected to give in to
Democratic demands for a broad right to sue. "A lot of the country is
very worried about health care costs," said Bush health adviser
McClellan, suggesting that the President is sensitive to the fears of
business and the insurance industry that some Democratic provisions would
raise the cost of providing health coverage.
And that is a key factor distinguishing the Bush-Kennedy talks on
patients' rights from their earlier education negotiations. On education,
Bush quickly jettisoned private-school vouchers, which were anathema to
the teachers' unions, a key Democratic constituency. But the President is
less likely to abandon the corporate community and give in on patients'
right to sue-a right vigorously sought by the trial lawyers, who are also
prime Democratic allies.
Meanwhile, despite Bush's popularity, Democrats are in a position to drive
a harder bargain on patients' rights than they did on education. From the
start of his presidential campaign, Bush put education front and center.
He has much less of a reputation as someone keenly interested in patients'
rights, and so Democrats have less reason to fear opposing him on the
issue.
ENERGY
The election-year tensions between making deals and highlighting partisan
differences also threaten to prevent passage of energy legislation. Senate
Democratic leaders know that enacting an energy bill would blunt
Republican charges that they are presiding over a "Do-Nothing"
Senate. On the other hand, if Congress does pass a comprehensive energy
package and the President signs it into law, Democrats would lose much of
their ammunition for attacking Bush's environmental record-which appears
to be the closest thing he has to an Achilles's heel at the
moment.
Energy-industry lobbyists say that the perfect political solution for
Senate Democrats would be to pass a pro-environment bill so different from
the House's pro-industry bill that any hope of enacting energy legislation
this year would die in a stalemated conference.
Leading Senate Democrats want to toughen fuel-efficiency standards for
cars and to block Republican attempts to allow oil drilling in Alaska's
Arctic National Wildlife Refuge. The House-passed energy bill barely
tightens fuel-efficiency standards at all, and it embraces drilling in the
Alaskan refuge.
Senate Republicans, like their Democratic counterparts, are also torn
between two strong, divergent political impulses. The Republicans, their
staffers say, are being pressured by the Administration to get an energy
bill to the President's desk so that he can sign one into law. But GOP
Senators are loath to give the Democratic leadership a victory, and they
oppose many of the environmental provisions championed by Daschle and by
Energy and Natural Resources Committee Chairman Jeff Bingaman,
D-N.M.
The Energy Committee's ranking Republican, Sen. Frank Murkowski of Alaska,
is a leading advocate of opening the arctic wildlife refuge to oil
drilling. He's running for governor in Alaska, and new oil exploration
would result in additional royalties for the state. Facing a $1 billion
budget deficit, Alaska might have to reinstate its income tax, which was
dropped in 1979 when oil began to flow from the state's North
Slope.
Two key Senate Democrats also have personal ambitions entangled in the
energy debate. Potential 2004 presidential candidates John F. Kerry of
Massachusetts and Joe Lieberman of Connecticut have vowed to filibuster
any energy legislation that includes drilling in the refuge. Kerry is also
taking the lead in pushing to increase fuel-efficiency standards for cars
and light trucks.
Senate Majority Leader Daschle, another possible presidential candidate,
won kudos from environmentalists for bypassing the Senate Energy Committee
and sending the Democratic energy package directly to the Senate floor.
Had the measure taken the normal route, a majority of the largely
pro-industry committee likely would have voted for the new Alaska
drilling.
Murkowski has blasted Daschle's end run, charging that crafting
legislation that can actually make it through Congress will be much more
difficult if it is not "debated within the committee so that we
formulate positions and vote out the amendments ... on the basis of a
support group of both Republicans and Democrats coming
together."
Pressures From Above
Murkowski's complaint about Daschle's bypassing a committee is hardly a
new one on Capitol Hill. Until recent years, it was common for a committee
chairman to work with the panel's ranking minority member in crafting
legislation on which they shared expertise and could find ways to
compromise. Now, the process is more overtly partisan-with the Senate
Majority Leader and House Speaker taking stronger roles in setting the
agenda and even drafting legislation.
"When I was in Congress, the chairmen and ranking members had a great
deal of power to move legislation they thought was important. And the
leadership gave them much more leverage to work the legislation out,"
recalls former Rep. Leon Panetta, D-Calif. "Today, it is a much
different situation."
And Panetta, who also served as Clinton's White House chief of staff,
laments that change: "The [House and Senate] leadership is viewed
much more today as kind of battlefield commanders who have to run the war
and win the battles. And if they aren't winning the battle and fighting,
they're viewed as failures, as opposed to, are they helping to govern the
county? And governing is not [viewed as] as important as
fighting."
For the Democrats' congressional leadership, pension reform will provide
one real test of how it will respond to the tension this year between
governing and preserving campaign issues. In the wake of the Enron Corp.
scandal, Rep. Rob Portman, R-Ohio, has teamed up with Rep. Benjamin
Cardin, D-Md., to introduce legislation that would give employees more
flexibility in managing their 401(k) retirement accounts. The two
lawmakers have worked effectively across party lines on pension issues in
the past.
But with many Democrats hoping to use Enron to tar the Bush Administration
as being too close to Big Business, some Republicans say they don't expect
much progress this year on changing pension rules. "There are
Democrats who are interested in doing something reasonable, but on the
other hand, it's not in Daschle's or [House Minority Leader Richard A.]
Gephardt's interest," says one GOP lawmaker.
Democrats counter that the real test of bipartisan leadership in 2002 will
be Bush's. And they doubt that he will pass the test. As evidence that
Bush is not serious about bipartisanship, they cite the attack ads that
the National Republican Senatorial Committee launched against five
Democratic Senators immediately after they voted against an economic
stimulus package.
"The fact that the NRSC went on the air sent a message to Democrats
that the White House isn't going to take anything into account except
their own short-term political goals," contends a Daschle adviser.
"If [Bush and his team] are willing to make some compromises which
would put them at odds with the right wing of their party, they can get
some things done."
When it comes to striking deals, Daschle has his own problems-with
liberals in his Caucus. "He does have a vocal minority that doesn't
want to find common ground because of their ideological stands," a
veteran Democratic lobbyist says. "But if Bush really wants a deal,
Daschle has to deal."
And as long as Bush's job-approval ratings remain in the stratosphere, if
the President sees a deal he likes, congressional Republicans will almost
certainly have to fall into line behind him. "It's a huge advantage
for us to be identified with the President today," observes Portman,
who is the House Republican leadership's liaison to the White House.
"This is not something that members are blind to."
Yet unless the White House shifts into an aggressive matchmaking mode,
neither the Democratic nor the Republican combatants on Capitol Hill are
likely to overcome the election-year forces that work against cutting
significant legislative deals. As former House member Panetta points out,
"When you're used to fighting in the trenches, it almost becomes more
comfortable to jump back in than try to get out of them."
Staff Correspondents Margaret Kriz and Marilyn Werber Serafini and
Reporter Siobhan Gorman contributed to this report.
James A. Barnes
National Journal
