Climbing the Hill

So, what, if anything, could a president Kerry get through Congress?

It's beyond question that a President Kerry would inherit a Congress that, for the past half-decade, has been spiraling into an ever deeper dysfunctionality. During the past two years, under the control of the Bush administration and the leadership of Republicans Tom DeLay in the House and Bill Frist in the Senate, many of the hallmarks of legislative democracy -- the right to bring bills to the floor, offer amendments, and iron out differences in conference committees -- have been suspended. This has happened mainly because the Republican leadership is a bunch of thugs, but also because on a number of key issues, the Democratic position already commands majority support, which George W. Bush and Co. have managed to thwart only through the abuse of their power.

Unless the forthcoming election holds more surprises than anyone has yet imagined -- such as a total Democratic landslide or the toppling of the GOP's legislative leaders by their own members -- President Kerry would likely take office facing a near-fanatical Republican leadership. And yet, he'd still have an opportunity for significant legislative achievements. Obviously, it would matter hugely which party controls each house. But even in the cheeriest scenarios, Senate Majority Leader Tom Daschle and Speaker Nancy Pelosi would command no more than small majorities, and, in Daschle's case, far less than the 60 votes required to break a filibuster. And even in the worst scenarios -- for it is inconceivable that John Kerry could win without Hill Democrats making some modest gains -- many leading congressional Democrats, liberal lobbyists, and Kerry intimates believe that he could still score some real legislative victories.

Clearly, Democratic control of Congress would make a huge difference. “It means you control the hearings, you can set the context of debate, you can reinforce the president's speeches and press conferences,” says Massachusetts Representative Ed Markey, whom Kerry has designated as his liaison to Hill Democrats during the campaign. “It ensures that the agenda will be set in a way that puts the Republicans on the defensive. In the first year of an administration, when the president has a clear agenda, it can ensure that a very good percentage of that agenda will be passed.”

Even if the Republicans retain a narrow control of Congress, however, Markey notes that a Kerry presidency would change the dynamics of congressional life. “The veto is a highly civilizing tool for fixing a Republican Congress,” Markey observes. “A president can say that if Republican leaders refuse to negotiate with Democratic leaders, he will refuse even to consider dignifying that bill with a signature. You only need one-third in each House to sustain a veto.”

The Democrats have no illusion about their Republican colleagues. “The likelihood is that they will be as partisan as they were under [Bill] Clinton,” says one senior Democratic Hill staffer. “They'll dig in right away.” No matter how Kerry frames the issues, says Illinois Democratic Senator Richard Durbin, “It won't make a difference with Republicans in the House. They'll still want to cut taxes and starve government.”

Yet Democrats are genuinely of two minds about Kerry's -- and their -- capacity to navigate the GOP's minefield. Though all believe that DeLay is DeLay is DeLay, they also believe that a President Kerry would be better able to handle Congress than the last two Democratic presidents, Jimmy Carter and Bill Clinton, who took office as strangers to Capitol Hill. They believe that Democrats in both houses are far more unified today than they were when Clinton took office -- indeed, than they've been in many decades. And they believe that the very dynamic of a Kerry victory would shake loose some stray moderate Republicans to vote with the Democrats on issues like drug affordability, more funding for education, and measures to discourage outsourcing of jobs.

“Clinton came in disorganized and was vulnerable from the start to Republican attacks over gays in the military,” says one leading congressional Democrat. “He was on the defensive from the very beginning.” Kerry, the member continues, is not likely to enter under any such self-imposed handicaps. “He can go over [the Republicans'] heads to the American people.” Kerry's congressional intimates also note that the Massachusetts senator is close to several of his Republican colleagues (most famously, Arizona Senator John McCain) and has worked cordially for years with a number of GOP stalwarts. “If a president isn't already a regular,” says Durbin, “it takes awhile to bond with members of Congress.”

But an even greater difference than the one between Kerry and Clinton is the difference between the congressional Democrats of 2005 and their predecessors in 1993. In the first two years of the Clinton presidency, when Democrats had sizable majorities in both houses, they could not resolve their differences over Clinton's signature health-insurance proposal, split bitterly over the North American Free Trade Agreement, and lost control of both houses as a result. Today, with their conservative wing greatly reduced by Republican victories in the South and with members of all tendencies marginalized by the DeLay steamroller, congressional Democrats have finally learned the joys of unity.

“It's taken the Democrats 10 years in the minority to figure out it takes discipline and focus to get into the majority,” says Bill Samuel, the AFL-CIO's chief lobbyist. Under House Minority Leader Pelosi, who wins acclaim across the House caucus for crafting positions that take account of all wings of the party, House Democrats are voting together more often than in any session since 1960. And such famously divisive issues as trade seem less divisive now, with free trader Kerry and fair trader John Edwards in accord that subsequent agreements need to make labor and environmental standards far more enforceable.

This new unity augurs well for the Kerry agenda. “Vice President Edwards would work closely with the Blue Dogs,” says Skip Roberts, chief congressional lobbyist for the Service Employees International Union. “They would be a bloc of support for the administration. So they'd have to pick up just 10 to 15 Republican votes from across the aisle.”

Markey concurs with Roberts' head count. “We don't have to turn around more than 10 or 15 votes on a very high percentage of issues that come before us,” he says. A number of Democrats point out that they've had these 10 to 15 votes on key issues all throughout the session, but that the Republican leadership has managed to bully members into changing their votes, or has simply ignored these votes when they've gone to conference committees. “We won on Medicare reform; we had a majority for three hours,” says Connecticut Representative Rosa DeLauro, referring to the roll call that DeLay kept open one morning from 3 to 6 a.m. until White House blandishments and pressure, abetted by DeLay's enforcers, persuaded a number of Republicans to change their votes.

Democrats have also assembled majorities in favor of extending unemployment benefits, scrapping the Department of Labor's new rules for reducing the number of workers eligible for overtime pay, and enabling Americans to buy drugs at Canadian prices -- only to see these votes overturned in conference committees. Some are optimistic that under a President Kerry, no matter who controls Congress, such measures would be enacted. “On environmental issues, or energy, or health care especially,” says Markey, “Kerry will be in a position to pick up 30 to 40 Republican House members who come from districts that expect their members to support the progressive position on those issues.”

But are there that many districts fitting that description? Or has partisan-controlled reapportionment reduced such districts to a bare handful? The answer varies issue by issue: It's hard to imagine that any Republican member from a district in the industrial Midwest, for instance, wouldn't feel compelled at least to consider Kerry's proposal for ending tax breaks to companies for outsourcing jobs. On the other hand, says the AFL-CIO's Samuel, “We rarely get [Republican] votes on the budget” and tax issues.

Democrats are counting on a Kerry victory to undermine the Republicans' frequently forced solidarity. “If John Kerry brings down the Bush presidency, there will be a lot of second-guessing [about the GOP's hard-right politics] on the Republican side,” says DeLauro. Both as a matter of strategy in the current campaign and as a formula for getting bills through Congress, Kerry, Pelosi, and Daschle are all vowing to include Republicans in their work. “You can see what Kerry's thinking by [publicly courting] McCain, by saying he's thinking about bringing Republicans into his administration, by saying he'd govern from the center,” says one source close to Kerry. For their part, Pelosi and Daschle have announced that they'd allow minority amendments and bipartisan conference committees should they win their respective houses. “We're going to reach out and not do to them what they've done to us,” says California Representative Henry Waxman, updating Kant's categorical imperative for the age of Tom DeLay.

But there's no one-size-fits-all formula for Kerry's legislative agenda. Herewith, then, an issue-by-issue tout sheet on the John Kerry program -- where he could cut deals, and where he should plan to use the issue as a club against Republicans in the 2006 midterm elections:

Taxes. With the fall of communism, no issue so energizes and unifies the Republicans as opposition to tax increases. But Kerry is certain never to fall into the trap of proposing to raise taxes in vacuo. Rather, he would present rolling back the tax cut on the wealthiest Americans as the way to fund an expansion of health coverage, the No Child Left Behind program, the continuing presence of U.S. forces in Iraq, and a reduction in the deficit. He could present it, much as Clinton opposed tax cuts, as the way to save the funds for Social Security. And by this tack, he could win the support of Republicans who wish to vote for those programs, along with some ancien régime budget balancers who really do want to cut the deficit.

One piece of leverage that Kerry could have is that a number of Bush's tax cuts expire in 2011. Kerry could thus force even a GOP majority to accept concessions in order to extend some of their pet issues.

Health Care. Kerry's health-care plan, his top domestic-policy priority, is crafted in a way that could put pressure on some Republicans to support it. The centerpiece is a proposal to have government pick up the cost of the catastrophically and chronically -- and expensively -- sick, thereby taking a major cost burden off employers. “This has a lot of appeal in the business community, whose health costs are soaring and who could push Republicans to move in this direction,” says Waxman. Others think that giving the government the power to negotiate drug prices would be hard for Republicans with large numbers of seniors in their districts to oppose. Durbin adds that AARP CEO Bill Novelli, who backed Bush's unpopular Medicare changes, “is doing everything he can think of to win back his reputation on Capitol Hill, so he'd be eager” to help Kerry reduce drug costs.

Education. “[Massachusetts Senator Ted] Kennedy will move to see that No Child Left Behind is fully funded,” says one source close to both Kennedy and Kerry. “That will happen.”

Jobs and Income. “We want to assist American manufacturing and curtail outsourcing,” says DeLauro, who chairs the subcommittee drafting the platform at this summer's Democratic convention. Kerry's proposal to change the tax code to that end would likely win some Republican support. Other tax-code changes to create jobs in clean energy, retrofitting, and the like would probably be a harder sell to GOPers.

Labor is encouraged that California Representative George Miller's Employee Free Choice Act -- enabling workers to form unions by signing cards rather than endure coercive anti-union campaigns from management -- currently has 204 co-sponsors in the House, including seven Republicans, and Kerry's backing as well. Given union members' pro-Democratic voting patterns, nothing would do more to enhance the party's long-term prospects than to enable unions to grow again. Partisans are optimistic it could pass the House under Kerry, but agree with Durbin that “it would be a hard thing to get 60 votes for [it] in the Senate” unless the number of Democratic senators rises into the mid-50s.

Trade. The news here is the emergence of a near consensus on the Democratic side. Now that Bush's trade representative, Robert Zoellick, has negotiated the Central America Free Trade Agreement, which dismisses labor and environmental standards as secondary concerns, a President Kerry could well send it back to stiffen its provisions. In a Kerry presidency, trade wars seem more likely to occur between the two parties than among the Democrats.

Energy. Increasing renewable energy and conservation has long been a cause that John Kerry has fought for. Markey says Kerry would be “respectful” to the fossil-fuel agenda (which, says Miller, doesn't mean a tax break for oil companies making $40 a barrel), but only if the overall bill shifts national policy toward renewables. “He'll put a lot of chips on that agenda,” says Markey. Democratic solidarity hasn't really been tested on this one.

Homeland Security. Kerry would want more money for first responders, port security, and the like. Kerry would get it.

Iraq. Irony of ironies, Kerry “would get more support than Bush for the same appropriation request,” says one senior congressional Democratic staffer.

Judges. “My guess is that a President Kerry will do one thing George Bush has never done: sit down and work with Democrats and Republicans” on judicial appointments, says People for the American Way's Ralph Neas. A president needs 60 senators to approve a judge, and Kerry would have to deal -- not with the Republican leadership but with moderates like Lincoln Chaffee and Olympia Snowe, and such institutional (meaning they care about preserving the Senate) rather than movement (meaning they care only about building the right) conservatives as Dick Lugar, Chuck Hagel, and Pete Domenici. Kerry, says Durbin, would probably need to appoint some moderate Republicans early on to be able to appoint mainstream Democrats without incurring unbeatable filibusters.

Of course, if the Republicans are unmovable on judges or anything else, Kerry could always do in the 2006 midterm elections what Harry Truman did in the campaign of 1948: Send the Congress a slew of popular measures that the GOP would never pass, then run against the Republican “do-nothing Congress.”

Remember, the Republicans have spent much of the past two years using their control of Congress to avoid having to vote. On their worst days, a President Kerry and his Democratic cohorts should compel Republicans to be Republicans. If John Kerry is suitably adept, Tom DeLay won't be the GOP's secret weapon; he'll be the Democrats'.

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