Over the last two years, those of us engaged in legislative fights in Congress repeatedly saw the Senate either water down the decent bills passed by the House (such as the stimulus, the housing bill, health care) or just block those bills entirely (such as the energy bill, or the series of measures collectively known as the second stimulus).
There was, however, one time when the Senate actually passed a stronger version of a piece of major legislation than House: the financial reform bill. Even with all of the shortcomings of the financial reform bill kept in mind, passing a stronger, more progressive version of a major piece of legislation through the 60-vote threshold of the Senate is a remarkable achievement.
As such, with Republicans about to take control of the House, and see their numbers significantly increase in the Senate, it's time for a review of the tactics that allowed for this success. There are many lessons we can learn from these tactics that will be of use in all legislative fights to come.
Here were the five keys to success:
- A major primary challenge at the right time. Before the financial reform bill was sent to the floor of the Senate in April, it's two major parts of it were written separately by the Senate Banking Committee (chaired by Chris Dodd) and the Senate Agriculture Committee (chaired by Blanche Lincoln). The Agriculture Committee had jurisdiction over the portion of the bill relating to derivatives trading--a several hundred trillion dollar annual market--since much of that trading dealt in futures on foodstuffs.
Before the Agriculture committee was finished with its portion of the bill, Arkansas Lt. Governor Bill Halter had announced his primary challenge against Blanche Lincoln. The result of this very serious primary challenge, backed heavily by labor and netroots organizations, was that Blanche Lincoln wrote and passed shockingly strong language on derivatives trading through the Agriculture committee (shocking mainly because it came from her). The language was projected to cost the largest, most powerful financial institutions who had caused the financial meltdown, and who were still running wild in their control of Capitol Hill, at least $10 billion per year.
The language was so harsh that it was opposed by Chris Dodd, who was appointed to manage the bill for Senate Democrats. The night of the Arkansas primary, Dodd was ready to strip the language through a weakening amendment. However, when Halter forced a run-off, Dodd withdrew the amendment, so that Lincoln could keep using the bill in her ads. Even though Halter ended up losing the primary, a version of the derivatives language ended up in the final bill, now that Blanche Lincoln had largely tied her re-election messaging to it.
The lesson here is that even unsuccessful primary challenges can have a direct impact on how a member of Congress behaves. Granted, we already knew that, from the Joe Sestak’s primary challenge against Arlen Specter and from earlier primary challenges in 2007-2008. What was significant about this particular case is that the primary challenge actually changed the behavior of the entire Democratic leadership, which closed ranks support Lincoln’s derivatives language until Halter was out of the way.
It stands to reason that if the Arkansas primary had been in August, Lincoln would have gotten all of her derivatives language included. Also, it would seem that with enough serious primary challenges, we can actually improve legislation that is passed into law. In 2012, with new congressional boundaries being drawn and 23 Senate Democrats up for re-election, we will have more chances than ever to make that happen.
- Forcing Republicans to repeatedly take unpopular votes. After the two constituent parts of the financial bill were merged, the overall bill was sent to the floor in late April. At this time, it did not have enough support clear the 60-vote cloture threshold.
However, instead of just negotiating with a couple of moderate Senators behind closed doors, Harry Reid did something unusual: he made Republicans block the bill in public for three consecutive days. Republicans blocked the motion to proceed on the 26th, 27th, and 28th of April. As terrible news headlines for them mounted up around the country, most of them some variation on “Republicans again block Wall Street reform bill”, on the 29th they finally relented and unanimously allowed the motion to proceed to pass.
Sensing blood in the water after the rare Republican cave, many Democratic Senators employed the same tactic during the debate and amendment phase. Dozens of Democrats offered up multiple strengthening amendments, and kept pressing Harry Reid to extend debate time so they could offer even more. While Republicans did not cave on all of these amendments, they did cave on quite a few. The victories kept piling up, and the bill got stronger and stronger as Republicans were suddenly afraid of defending Wall Street in public. Had the Senate not been running out of time on the bill because of the need to pass an extension on unemployment benefits, there would have been even more amendments and an even stronger bill. Further, after their successes in using transparency as a tactic to strengthen the bill on the Senate floor, Democrats televised the conference committee with the House, which helped strengthen their hand during negotiations.
The lesson here is that you can actually embarrass a sufficient number Republicans into taking progressive votes if you make them repeatedly do it in public and if the opponent of the measure is unpopular enough. For example, on something like health care, the White House and Max Bacuus should not have been holding secret, backroom negotiations with GOP Senators like Olympia Snowe and Chuck Grassely. Instead, Democrats should have quickly moved the bill to the floor, and repeatedly made those Senators take unpopular votes defending the insurance industry. It is far more likely you will get Republicans and ConservaDems alike to cry uncle using this tactic then by letting them engage you in bad-faith negotiations that are really just meant to delay.
Democrats can still do this in the Senate over the next two years, since they still have a majority there. Even in the House of Representatives, Democrats will be able to do this on motions to recommit.
- An actual left-right coalition. A third major tactic that was employed during the financial reform fight, but which was scantly seen elsewhere in 2009-2010, was an actual left-right coalition. In the version of financial reform that passed the House of Representatives, Ron Paul and Alan Grayson shepherded through an amendment to audit the Federal Reserve. The purpose of the provision was find out which financial institutions had received bailout money from the Fed.
In the Senate, Bernie Sanders and a number of anti Federal Reserve Republicans led the fight on this provision. It was a truly transpartisan alliance, as there were a large number of supporters and opponents in each party. There was also more organizing done on this provision than on any other amendment . That organizing was in opposition to the White House, which was working with the Federal Reserve to defeat the audit. Eventually, Sanders and the White House reached an agreement to a one-time audit, and the provision ended up in the final bill.
The media and organizing focus on unusual alliance allowed the main dynamic in financial reform fight to appear as inside vs. outside and populist vs establishment, rather than the more usual, and unhelpful, dirty left-wing hippies versus the serious, reasonable center-right. It is something that we should revive in 2011-2012, as cuts in corporate subsidies could well become the next successful left-right coalition.
- Progressives withholding their votes as part of negotiation. If there is one complaint I have heard progressive activists make ad nauseum during 2009-2010, its that progressives are supposedly lousy negotiators. The basic idea behind this complaint is that we come out in support of proposals that are already too compromised, and that we never threaten to withhold our votes. As such, we tend to get the short straw in all legislative negotiations.
Personally, while sympathetic, I think this view is often stated in overly simplistic terms. In addition to staking out a strong position at the start of negotiations, you also to have to stake out a credible one that people know actually has a chance of being included in the final legislative package. Further, you can’t threaten to withhold your vote on something without severe blowback unless that is something your base actually wants you to do. It isn’t as easy as just saying “I’m going to vote against this unless you give me a huge list of demands.”
During the financial reform fight, however, Senator Maria Cantwell showed how it was done. Cantwell voted against the financial reform bill when it first passed the Senate. However, she stayed engaged with the leadership during the whole process, making it very clear that she had specific demands around the enforcement of derivatives. She ended up receiving most of those demands in the conference committee when the Democratic leadership needed to find a couple of new votes. A Republicans who had previously supported the bill--Charles Grassley--withdrew his support during the conference. Because Cantwell had held out, and because she had specific, deliverable demands, the Democratic leadership did not have to make further concessions to Grassley. Instead, they could cave to Cantwell, and make the bill stronger in the process.
Would that have only been the case with Senator Russ Feingold (for whom I have the greatest respect). Before the conference committee, Feingold also voted against the Senate financial reform bill. After the conference committee was over, Republican Scott Brown flip-flopped and withdrew his support for the bill, demanding further concessions. If Feingold had chimed in that that moment and offered his support with one or two deliverable demands, the Democratic leadership could have made the bill stronger and given into Feingold. However, Feingold never offered much for his vote expect a list-minute, far too enormous, undeliverable list of demands. In the end, it was easier for the leadership to give into Brown.
We need progressives to negotiate better and hold out for concessions. Maria Cantwell did this successfully on financial reform and as Bernie Sanders did on health reform. When a few progressives hold out, it helps us because then progressives stay at the negotiating table under the end of the process. As long as we hold even one chamber of Congress—and we currently hold the Senate—it is a process that is absolutely repeatable. However, when we hold out, we need to have deliverable demands, or else we lose that place at the table to the Ben Nelsons, Scott Browns, and Olympia Snowes of the Senate.
- Pressuring the White House. Like any major piece of legislation, the fight on financial reform was not over even after it passed into law. New regulations are only as good as the people who enforce them, which means the champions of reform need to become the new regulators. That a former Wellpoint executive is running the new health insurance exchanges is not a good sign for the health reform bill, for example.
Enter Elizabeth Warren, a true champion of financial reform. Pushed by the PCCC and CREDO, over 200,000 people signed a petition asking President Obama to nominate Professor Warren as the first head of the new Consumer Financial Protection Bureau. While this effort did not result in Warren’s nomination, it did result in the White House creating a new position for Warren in the executive branch to oversee the formation and development of the CFPB. It was a very positive move by the White House, which Warren was satisfied with, which avoided a lengthy and uncertain nomination process, and which allowed her to get to work right away.
The White House was likely responsive to pressure in this instance because by this time the 2010 elections were coming up, and they probably decided that they needed all of the help they could get in the midterms. Throwing a bone to the base could only help them, in addition to helping the cause of financial reform (which could also only help them).
In 2011-2012, with Republicans in control of the House, progressive activists will need to go through the executive branch in order to enact strong public policy. At the same time, President Obama will be facing re-election, and need progressive groups to deliver activism on his behalf. This could make for a mutually beneficial partnership, where progressive activists and the executive branch scratch each other’s backs to get what they want.
The result of this confluence was the almost unthinkable accomplishment of the Senate passing a stronger version of a major piece of legislation than the House. While the final bill was still flawed,
there is a helluva lot of good in it. Also, polls also show it to be
by far the most popular piece of major legislation passed over the last two years. Perhaps most importantly, every single one of the tactics and organizing techniques to pull off this victory can be replicated even when Republicans control the House of Representatives.
For full disclosure, I should note that I worked on passing the financial reform bill through the Senate in a paid capacity for the New Organizing Institute, Americans for Financial Reform, BlogPac and Progressive Strategies (it was my gig between the Sestak campaign and coming to Daily Kos). As such, it is possible that my pride results in a overly positive assessment of the fight. Still, I think even more neutral observers can see that we successfully used almost every major legislative tactic that progressive activists called for over these past two years: a primary challenge, a real left-right coalition, holding tough votes and daring Republicans to vote no, better negotiation from progressive members of Congress, and successful pressure on the White House.
It all came together in the financial reform fight. And by proving that all of these tactics work, we can do even better in the future.