What does the failed Senate vote on a Republican COVID-19 relief bill on Thursday have to do with an unsuccessful amendment put forward by Democrats in the Alabama state Legislature to criminalize vasectomies?
When lawmakers are seen as willing to play politics on matters of life and death, faith that the government has voters’ best interests at heart and can be relied on to solve problems diminishes.
Beside the fact that neither one will become law — indeed, because of that fact — they both do much more than take up public time and attention. They are both examples of what is often referred to as messaging or symbolic legislation: when politicians use the lawmaking process to signal to key voters and donors their commitment to certain issues, or to rally their base in support or opposition to an issue.
Symbolic legislation can have a profoundly negative impact on voters’ trust in government. It’s particularly problematic when the issue is as serious as a national pandemic, and the consequences so directly affect Americans in need. When lawmakers are seen as willing to play politics on matters of life and death, faith that the government has voters’ best interests at heart and can be relied on to solve problems diminishes.
During this year’s stimulus negotiations, Democrats and Republicans have accused each other of posturing, either by holding out support for or introducing legislation meant to generate publicity, not provide relief. In the spring, the Democratic House passed the HEROES Act, a $3 trillion relief package that included a second round of stimulus checks, including for immigrants, a $600 extra weekly boost to unemployment benefits and hazard pay for essential workers. The party-line vote led House Republican Leader Kevin McCarthy to call it a “political messaging bill” with little to no chance of passing. Democrats, in return, called GOP delays on a Senate vote akin to holding Americans hostage for political gain.
While it’s possible to fault the Democrats for overplaying their hand and being unwilling to make concessions, the Republicans deserve a disproportionate share of the blame for waiting until four months later, long after the first stimulus plan expired, to schedule a vote on a measure that had no hope of bridging the partisan divide and in fact was roundly defeated Thursday.The $500 billion GOP measure had only a $300-per-week supplemental jobless benefit and didn’t include any stimulus checks.
Indeed, the Senate finally held a vote largely because Majority Leader Mitch McConnell realized that the GOP grip on the chamber is at risk in November given the lack of a GOP counter for coronavirus help after the House passed its bill. Vulnerable Republican senators needed to be on record as voting in favor of COVID-19 relief to tell constituents they had tried something — and to attempt to shift blame for failure back to Democrats.
The measure McConnell finally did allow to be considered was too slim for Democrats and still too expansive for some conservatives. Senate Democratic Leader Chuck Schumer called it “a cynical exercise to try and check a box without getting anything done,” while McConnell was quick to call out Democratic votes against the bill on Twitter.
There’s an even more nefarious form of symbolic legislation, however, than what’s happened with the stimulus legislation. This subset of messaging bills is called “outrage legislation,” and its intention is to create a strong emotional reaction, either for your own or the opposing side. And that brings us to the effort to criminalize vasectomies in Alabama. Last year, Democrats attempted to add an amendment to a bill that would outlaw the procedure and then, when that didn’t succeed, introduced a separate unsuccessful bill mandating a vasectomy for men upon reaching 50 or after their third child was born.
Granted, outrage legislation is one of the few tools in the arsenal of permanent political minorities like Democrats in the Alabama state Legislature — Alabama Republicans have had a trifecta in state government since 2011, and a veto-proof supermajority in both legislative chambers since 2014.
As such, outrage legislation can be both useful and, in a limited sense, effective. With no hope of stopping bills introduced by the majority or of actually passing bills of their own — in this case, against Alabama HB314, the Human Life Protection Act, which would make almost all cases of abortion a felony — politically outnumbered legislators like the Alabama Democrats can introduce outrage legislation to help draw public and media attention, generate energy in their base that may lead to electoral victories down the road, and possibly create national pressure on the majority through the activation of allied interest groups.
Abortion supporters in Alabama have to hope for a positive outcome from the courts (the abortion legislation has so far been blocked from taking effect by a federal judge) and, possibly, negative pushback on a national scale. That’s what happened in the case of HB2, the infamous “bathroom bill” in North Carolina that attempted to prevent transgender individuals from using bathrooms that correspond to their gender identity. It led to a widespread public outcry, boycotts of the state, a not insignificant economic loss and, ultimately, the election of a Democratic governor.
However, there are significant downsides to using outrage legislation, and in the long term, its effects on the political process can be more detrimental than beneficial. Engaging in what many voters might perceive to be an arms race of polarized and polarizing legislation catering to the respective party bases can feel alienating to more moderate voters, who in turn might withdraw from the political process.
And while activating the base might seem like the best — or in some cases only — possible reaction to base-activating legislation from one’s opponents, it stands to reason that further polarization of the political debate will make governing and finding compromises harder, not easier.
Additionally, reliance on outrage legislation can signal to voters that elected officials see politics more as a game than as the business of governing. The effect may be a cheapening of the political process in the eyes of many voters, the relegation of politics from a serious business worthy of care and sincerity to something akin to reality TV.
It should be noted that outrage legislation such as the mandatory vasectomy bill is usually a reaction to polarizing and base-activating legislation such as the abortion ban. So while outrage legislation might very well play a role in polarizing the discourse, solidifying ideological positions and hindering consensus-building, it is rarely the opening act. Instead, it is usually a reaction by a political minority that feels powerless and does not see any other avenues for registering its opposition in a vocal and visible way.
Granted, outrage legislation is one of the few tools in the arsenal of permanent political minorities like Democrats in the Alabama state Legislature.
The best way to prevent symbolic legislation and its potential negative fallout may therefore be for political majorities to reduce the amount of base-activating legislation and allow minorities other ways to meaningfully register opposition and input in the lawmaking process. In the case of Alabama, for example, the vasectomy ban almost certainly wouldn’t have been proposed without the anti-abortion bill’s stringent language. The doomed Democratic efforts to block the bill were ramped up after Republican lawmakers stripped a provision from the abortion legislation allowing for an exception in cases of rape.
It takes two to tango — and it takes two to moderate.