Photo-Illustration: Intelligencer; Photos: Getty Images
the national interest

Why Biden Is Getting More Bipartisan Laws Than Anyone Expected

I was skeptical he could convince Republicans to support anything. I was wrong.

Photo-Illustration: Intelligencer; Photos: Getty Images

One seemingly safe assumption at the outset of Joe Biden’s presidency was that the primary avenue for legislative progress rested on its narrow Democratic majorities. Bipartisanship was a nice fairy tale for the voters, but everybody knew the Republican Senate would never give Biden any real wins.

The Biden presidency has seen many surprises, most of them negative. But one positive surprise has been the Republican Senate’s willingness to work with the administration on areas of common ground. The recently announced gun-safety bill, which has the support of ten Senate Republicans, is only the most recent example of what has become a pronounced surge in bipartisan productivity.

Less than a year and a half into Biden’s presidency, the list of bipartisan measures includes:

—Investing more than half a trillion dollars in infrastructure, which includes funding not only for traditional bipartisan categories like roads and bridges, but also broadband and green priorities like public transit and rail, electric vehicles, and electricity transmission.

—The U.S. Innovation and Competition Act, which creates new technology hubs and invests more than $100 billion in advanced technologies including artificial intelligence, quantum computing, semiconductors, and biotechnology. (This bill has passed the Senate, but not the House, a peculiarity that serves to highlight the phenomenon — Democrats, after all, control the House and could pass the bill with a straight majority vote.)

— A ban on companies using forced arbitration to bury sexual-harassment claims.

— The creation of a national holiday to commemorate Juneteenth.

— Reform for the Postal Service that eliminated its burdensome requirement to prefund employee pensions for 50 years.

—An updated renewal of the Violence Against Women Act. Republicans stripped a provision from this law that would have restricted gun sales to domestic partners convicted of stalking or domestic abuse (the “boyfriend loophole”). But the gun-safety compromise agreed to by the Senate would restore that provision.

Assuming Congress passes the gun-safety compromise that ten Senate Republicans have agreed to support, this would add to an impressive record of bipartisan accomplishment. The cumulative impact of all these laws would still be relatively modest, and would not make up for the disappointment of Biden’s domestic agenda withering in the Senate. But it is not nothing.

And the willingness of Senate Republicans to hand Biden a series of policy wins is a notable development in its own right. Before last year, most realistic observers believed polarization had made bipartisan legislation rare and minor. Senate Minority Leader Mitch McConnell explained the dynamic with brutal frankness a decade before:

“We worked very hard to keep our fingerprints off of these proposals. Because we thought — correctly, I think — that the only way the American people would know that a great debate was going on was if the measures were not bipartisan. When you hang the ‘bipartisan’ tag on something, the perception is that differences have been worked out, and there’s a broad agreement that that’s the way forward.”

McConnell did not merely reserve this tactic for issues in which the two parties had philosophical disagreement. He consistently created partisan conflict even in areas where Republicans and Democrats had theoretical agreement.

To some extent, the rise in bipartisan legislating reflects a trend that has been quietly happening for several years. Beginning at the tail end of the Obama era, and continuing through the Trump era, Congress has passed a number of important bills that have flown under the radar. Simon Bazelon and Matthew Yglesias called the phenomenon “Secret Congress.” The pattern is that the two parties negotiate the bills almost entirely in private, avoiding both media attention and partisan conflict. The product of the negotiation is brought onto the floor of Congress and approved with little public notice or debate.

But there is more happening during the Biden administration than a mere continuation of the Secret Congress phenomenon. The bills are bigger, and the subjects they cover are less obscure. Infrastructure is a revealing window into the change. President Obama pleaded with Republicans to pass infrastructure upgrades that their business allies were begging for, to no avail. Republicans blocked all these investments by insisting they be paid for and then refusing to compromise on the funding. Under Biden, Republicans simply permitted the spending to be financed with a series of budget gimmicks and deficit spending.

Last summer, I believed Senate Republicans were merely stringing Democrats along, using the infrastructure negotiations to stall out Democrats’ efforts to pass progressive social legislation without intending to pass a bill. But the Senate confounded that pessimistic assumption by passing the bill (only for the social legislation to fall apart on its own).

The gun-safety bill provides an even stronger example. Its success is almost the complete opposite of the Secret Congress model: The bill concerns a policy that lies close to the nerve center of the culture wars, and it never would have come together if not for an intensive wave of national press coverage. And while its provisions are quite modest, most observers would have predicted that no bill at all would pass.

In 2013, Senate Republicans killed a modest gun-control measure in the wake of an equally horrifying school massacre at Sandy Hook. This time, McConnell decided passing something made more sense for him than passing nothing.

So what has changed? I have a few theories, which are not mutually exclusive.

McConnell wants to keep the filibuster

McConnell wants to preserve the Senate’s current rules, which he helped shape and which benefit his agenda, because they allow his highest priorities (tax cuts and judges) to pass on a majority basis while forcing bills he generally opposes to clear a supermajority threshold. He believes that showing Senate Democrats they can still legislate under these rules will persuade them to preserve the current order.

McConnell wants to block Biden’s social agenda

McConnell believes that giving Democrats some wins on bipartisan bills undercuts the liberal argument that their only legislative avenues run through passing budget-reconciliation bills by a majority vote. By giving them some smaller bipartisan wins, he sates their appetite to pass partisan bills.

(Another way of framing this theory, and the previous one, is that Democratic pressure to eliminate the filibuster, which did not exist under previous presidents, is forcing McConnell to compromise on more legislation than he would otherwise permit.)

McConnell hated Obama and likes Biden

Barack Obama was a young, Black intellectual with little patience for hypocrisy and senatorial self-importance. Biden is an old white guy who reveres the Senate. McConnell wanted to do anything to humiliate Obama, but he doesn’t mind handing Biden some wins.

A backhanded response to Trump

McConnell and his allies loathe Trump but are reluctant to do anything to stop him. Unable to bring themselves to impeach Trump, endorse his Democratic opponent, or even to support the January 6 committee, they have instead channeled their institutionalist impulses into proving that the system works. Passing a series of bipartisan bills will prove democracy can still function and undercut the appeal of angry populists like Trump.

One notable thing about the larger bipartisan initiatives is that they have drawn at least some opposition on the right. The pattern of Republican support for the gun-safety bill is indicative. Of the ten Republicans who endorsed, four are retiring, five do not face reelection in either of the next two elections, and the tenth is Mitt Romney.

This pattern suggests McConnell is sending his allies who are safest from a conservative primary challenge to handle the negotiations, and he is willing to accept at least some small risk in order to get something done.

Biden also deserves some credit here. He promised during the campaign that he could turn down the temperature in Washington and that his Senate experience would make him a more effective negotiator. That has not always proven true when it comes to negotiating with his own party, but it very much has when it comes to negotiating with Republicans. Many of us dismissed Biden’s claim that he could bring the parties closer together as delusional. To an extent we didn’t expect, he’s managed to do it.

Why Biden Is Getting More Bipartisan Laws Than Expected