Consensus Building Case Studies

Congressional Consensus Building Case Studies

The Civil Rights Act of 1964

The Supreme Court unanimously ruled that segregation in public schools was unconstitutional in its Brown v. Board of Education (1954) decision. The Court’s ruling was met with a wave of organized “massive resistance” in the South that impeded the desegregation of schools over the next decade. The civil rights movement continued to expose the injustice of segregation with the Birmingham marches and the March on Washington in 1963. Congress began to consider a civil rights bill that would require overcoming Southern opposition and force its supporters to forge a broad consensus.

Proponents of the bill understood clearly that they would have to overcome a Senate filibuster, which is a tactic of using speeches to stop business and block a bill. Senators could take a vote of cloture to end a filibuster, but it required a two-thirds majority. Rather than attempt to change Senate rules, bill proponents wanted to build a broad coalition to support cloture and then vote on the bill.

Senate Majority Leader Mike Mansfield (D-MT) helped guide the bill and sought to persuade conservative Midwesterners to join many Republicans and liberal Democrats in supporting cloture and the bill. Notably, he also reached out to Southerners who opposed the bill to work with them by taking a moderate stance rather than demonizing and trying to steamroll them. To that end, he collaborated closely with civil rights opponent Richard Russell (D-GA).

In the House of Representatives, the bill was introduced in the House Judiciary Committee. After the first attempt was defeated, the committee approved a bipartisan bill by a vote of 23–11. Rep. Howard Smith (D-VA) chaired the House Rules Committee that would establish debate rules. Smith urged an amendment banning sex discrimination in employment that he likely hoped would kill the bill, but this effort failed, and it was included in the bill. The bill was reported out of committee by an 11–4 vote allowing for broad debate.

Meanwhile, civil rights supporters representing various constituencies and groups lobbied Congress to pass the bill. In February 1964, the efforts to build a large coalition in the House bore fruit when the bill passed by a vote of 290–130.

The bill faced an even greater challenge in the Senate with the filibuster. Even as a group of senators pledged to filibuster the bill, Senator Mansfield continued to guide the bill through the Senate with moderation and respect for his colleagues. He worked with Republican Everett Dirksen (R-IL) to bring along hesitant Midwestern conservatives by offering humbly to share credit for advancing equality for all. Mansfield also resisted pressure to bring the national media into the Senate to apply pressure to opponents. He wanted to maintain the dignity of the Senate and said, “This is not a circus sideshow.”

Perhaps most surprising of all, Mansfield shared his strategy with Senator Russell. Mansfield would avoid the Senate Judiciary Committee chaired by committed segregationist, James Eastland (D-MS), because it would encounter hostility. Mansfield chose to respect those engaging in the filibuster and resisting cloture. The lengthy 75-day filibuster of the civil rights bill in the Senate ended with a marathon 14-hour speech by Sen. Robert Byrd (D-WV). On June 10, the Senate voted for cloture with a 71–29 vote. The Senate passed the civil rights bill. President Lyndon Johnson signed the bill into law—the Civil Rights Act of 1964—that banned segregation in public accommodations. The passage of the Civil Rights Act illustrates a functioning Congress in which compromise, moderation, negotiation, humility, and consensus resulted in successful lawmaking in the name of a law advancing justice and equality.

Immigration Reform

In the mid-twentieth century, congressional committees and political parties helped to forge compromises and build consensus in lawmaking. After reforms that strengthened subcommittees and decentralized Congress, new models of lawmaking under strong leaders developed. These leaders were primarily interested in winning elections, getting media and social media attention, and performing for the public rather than governing. This impaired the ability of Congress to create broad consensus.

When Barack Obama was elected president in 2008, he promised to tackle comprehensive immigration reform on a bipartisan basis in Congress. After addressing other important issues during the first two years of his administration, President Obama urged Congress to focus more on the issue.

Unfortunately, Senate Majority Leader Harry Reid (D-NV) pursued a dubious strategy to win widespread bipartisan support for an immigration bill in Congress. He attached the DREAM Act—a promise of education and a path to citizenship for the children of immigrants—to a defense authorization bill. He had included it to benefit children who were brought without a choice as minors to the United States by their parents. Republicans were opposed to the substance of the measure and what they saw as Reid’s parliamentary sleight-of-hand.

The Republicans enjoyed gains in the 2010 midterm elections and won a majority in the House of Representatives, which strengthened their resolve and ability to block the president’s proposed legislation. In March 2011, President Obama asserted on television that he would like to follow normal constitutional powers and let Congress pass the measure, but he hinted that he might resort to an executive order if he deemed it necessary.

In June, the president told the Immigration and Customs Enforcement agency not to enforce provisions of immigration law. A year later, the Department of Homeland Security announced a policy of ending enforcement of immigration law for children of undocumented immigrants and letting them work. The policy was labeled Deferred Action for Childhood Arrivals (DACA) and substituted executive action for congressional consensus-building.

After President Obama was reelected in 2012, Congress again attempted to achieve reform. In the Senate, a “Gang of Eight” tried to craft a bipartisan approach that satisfied different sides. It included the DREAM Act, a path to citizenship for undocumented immigrants, and increased border security, among other provisions. The Senate Judiciary Committee reported the bill to the floor, where it avoided a filibuster. The Senate voted for the bill by a margin of 68–32.

However, House Republicans distrusted the Obama Administration and refused to bargain or compromise with Democrats. Speaker John Boehner (R-OH) refused to hold a vote on a bill not proposed by a Republican. Democrats labeled their opponents “obstructionists,” and the president called them “anti-immigrant” and divisive. Public posturing and partisanship on both sides, instead of congressional bargaining, ruled the day.

The Obama Administration appeared to confirm its opponents’ fears when President Obama again acted through executive power rather than the legislative process. In June 2014, he announced that “America cannot wait forever” for Congress to act, and as president he would exercise his discretion not to enforce immigration laws and deport undocumented parents of American citizens. Obama called this policy Deferred Action for Parents of Americans (DAPA). While this policy was constitutionally controversial, it was held up in the courts. Eventually, though, DAPA was rescinded by the succeeding Trump Administration, which launched its own controversial immigration policies.

The failure of Congress to build a consensus and negotiate immigration reform left millions of immigrants in limbo, and Americans greatly divided. It also left the executive branch in control of immigration policy and did not necessarily represent a broad public consensus. Moreover, successive administrations would produce contradictory policies, further exacerbating heated public disagreement. The states also developed their own web of policies to try to govern their own borders in the absence of reliable federal action. – 4 Congressional Consensus Building Case Studies When Congress fails to act in a responsible and productive manner working toward the common good, the public loses trust in the representative branch of government. The failure of immigration policy reflects the unwillingness of Congress to address a controversial issue meaningfully and of the president attempting to rule unilaterally.