Washington Monthly - September/October 2020 - 115

on political books
cally unified, are far more likely to repeal
the legislative achievements of the opposing party than they are their own, and
newer bills are at greater risk than older
ones. Ragusa and Birkhead's research suggests that unless Biden can get Republicans to support his reforms, the laws will
likely be subject to intense opposition for
roughly ten years after their passage.
So how can Biden's bills survive this
window? There are several critical steps.
Democrats will need to guarantee that
their laws create large, supportive coalitions of beneficiaries that will fight to
keep these policies alive. The party must
make sure that Americans see the upsides of their laws as soon as they possibly can. And, whenever feasible, it has to
design policies in ways that divide opposition interests-including the Republican
Party itself.

hat motivates members of Congress to allocate political capital to
repeal efforts? Under what conditions do
such efforts succeed? Until fairly recently, these questions received little scholarly attention. Most political scientists have
treated repeals as no different than the
enactment of other laws. The implicit assumption is that all laws emerge from the
same institutional context.
Over the past decade, however, political
scientists have begun to study what might
be called "post-passage" politics-what
happens to laws after they are enacted. A
central finding of this research is that law
creation and law death are fundamentally
different. Laws are often passed when the
media and activists focus the political
system's attention (a precious commodity) on new problems. But once laws are on
the books, the cost of reversal becomes
high. Laws generate constituencies who
organize to protect their vested interests.
The public often accepts them as immutable facts of American policy. Little wonder that even politicians who believe that
a previously enacted law is obsolete or has
a baleful impact may choose to focus their
energy on actions other than repeals.
But not always. As Ragusa and Birkhead
show, there are many significant repeal
attempts that do succeed. Through impressive data gathering, the authors iden-

tify and analyze some 111 notable repeals tive majorities have to "confront the fact
that occurred between 1877 and 2012, that the compromises needed to actually
from the 1887 repeal of the Tenure of Of- govern [are] anathema to their underlyfice Act (originally passed to constrain, ing philosophy."
That may offer some comfort to Demand then impeach, President Andrew
Johnson) to the 2010 repeal of "don't ask, ocrats. But any legislation Biden passdon't tell." They investigate a variety of es will still be at heightened risk if it's
possible motivations for these repeals, in- passed on a partisan basis. Even biparcluding lawmakers' personal policy pref- tisan accomplishments (if there are any)
erences and their interest in fixing policy will be at greater risk simply because they
errors. While Ragusa and Birkhead find will have been passed recently. Raguthat both preferences and errors carry sa and Birkhead show that a "significant
some weight, rollbacks are ultimately mo- law's likelihood of repeal increases from
tivated by partisanship. Their core thesis the moment it is signed by the president
is that significant repeals are most likely until about ten years after passage." After
when parties are "ideologically cohesive" a decade passes, "the risk of repeal drops
and "when the majority party wins con- dramatically." One reason the Affordtrol of Congress after a long stint in the able Care Act ran into early sustainabiliminority." When Republicans gained uni- ty trouble is that only some of its benefits
fied control of Congress in 1994 for the were front-loaded; many of its core provifirst time in a half a century, for exam- sions did not take effect until four years
ple, they passed a number
of significant repeals-
including eliminating
AFDC and defunding the
Office of Technology Assessment, Congress's inhouse technology think
tank. One of the many
interesting questions the
authors explore is whether repeals are a distinctly conservative phenomenon. There are after the law's passage. It settled enough
reasons to believe they are. Barry Gold- to survive repeal, but only thanks to dewater, the 1964 Republican presidential fections from a small handful of Repubnominee, wrote, "My aim is not to pass licans.
laws, but to repeal them." Between 1953
and 2017, conservative lawmakers spono how can Biden repeal-proof his legissored an average of 42 percent more relation? First, it's critical that he adopt
peal bills per Congress than their liberal policies that generate what scholars call
counterparts.
"policy feedback": new political facts on
But that difference is not only driven by the ground that help protect the law from
ideology. It's also driven by political incen- threats and unleash forces that promote
tives. Republicans sponsor more repeals further political reform. This can happen
than Democrats while in both the majori- in a variety of ways. For example, policies
ty and the minority, but Ragusa and Birk- can build and empower clienteles, lower
head find that conservatives sponsor far the costs to their democratic engagement,
more bills than liberals while in the mi- and stimulate people and organizations
nority. It's easy and electorally rewarding to invest in the system. Social Security is
for conservatives to rail against govern- incredibly resilient because every elderly
ment spending in the abstract. But when person in America has a stake in its existhey hold majority power, they have to tence and is mobilized to protect it.
face the political consequences of withSome of Biden's policy proposals are exdrawing benefits and undoing programs. cellent bets to generate positive feedback
As Ragusa and Birkhead write, conserva- effects. For example, Biden's proposal to

Eliminating the individual
mandate in the Affordable
Care Act has helped increase
the uninsured rate, just in
time for the pandemic.

Washington Monthly 115

Washington Monthly - September/October 2020

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