Action in Polarized Times: Understanding the Legislative Strategy of the Congressional Black Caucus

During the 2016 presidential campaign, Donald Trump asked of the African American community, “what have you got to lose?” in supporting him for president. In response, the Congressional Black Caucus (CBC) published We Have a Lot to Lose, outlining to the new administration the need to strengthen voter protections, reform the criminal justice system, and “commit to basic principles of humanity and decency.”1Congressional Black Caucus (115th Congress), We Have a Lot to Lose: Solutions to Advance Black Families in the 21st Century (Washington, DC: 2018), 3. The Caucus leadership first met with President Trump in March 2017, but has since declined any further meetings. CBC chair at the time of the initial refusal, Rep. Cedric Richmond (D-LA), stated that the organization was interested in good-faith policy actions, not superficial photo ops. According to Theodore Johnson of the Washington Post, such snubbing of the president was not showboating, but a shrewd action in keeping with previous strategies used by the CBC with other presidents.

As part of its legislative approach, the CBC develops an annual agenda that is published and updated during each congressional session. The reports are designed to inform the public about the CBC’s role and what has been accomplished in any given year. Through their agenda for the 116th Congress (2019–2020), titled Engagement, Equity, and Economic Empowerment, the Caucus seeks to inform communities on the actions and/or inactions of Congress and the Trump administration, and how these impact their lives. Additionally, the CBC continues its mission of fighting for voting rights, reforming the criminal justice system, strengthening labor protections, defending public education, and preserving the Affordable Care Act. These goals, however, disappear in the mire of congressional polarization.

As of September 2019, the US Congress has an approval rating of 18 percent according to a recent Gallup poll. The twenty-first-century Congress is characterized by party polarization and an inability to pass legislation. Within this context, the CBC has been able to navigate the legislative process, with varying degrees of success, to focus on the interests and needs of a broad array of constituents across the United States. For over nearly 20 years and two and a half presidential administrations, the CBC has advocated policies and negotiated legislation consistent with its mission of using the “Constitutional power, statutory authority, and financial resources of the federal government to ensure that African Americans and other marginalized communities in the United States have the opportunity to achieve the American Dream.” Considering the Caucus’s almost 40-year history, this essay aims to examine the strategies used by the CBC to achieve its goals in the face of intransigent executives and a polarized legislature.

The evolution of the CBC

Though the CBC has had some successes in legislating policies beneficial to its constituencies since its founding in 1971, since 2000 it has had to negotiate in an environment that is less functional and more toxic. From the original 13 members, the organization has grown to its current membership of 55, including two nonvoting members of Congress from Washington, DC, and the US Virgin Islands, out of the 235 house Democrats and accounting for 23 percent of all Democratic votes. While in 1971 the group was relatively homogeneous, representing primarily majority-minority districts, by January 2019 its members represented a diversity of districts, from rural to largely Latinx to nonminority, making the CBC a more politically diverse group. Coming with this increase in numbers is greater influence, clout, party leadership, and most significantly, the power of the gavel for five members through committee chairs. However, it is now considered a loose coalition of members with divergent political and economic views that sometimes conflict, and the organization has become more complex over time. With the 2018 midterm victories, the CBC is experiencing growing pains, with generational challenges between influential elder statesmen and rising stars.2Kareem Crayton, “The Changing Face of the Congressional Black Caucus,” Southern California Interdisciplinary Law Journal 19, no. 3 (August 2012): 473–500.

As of January 2019, more than half of CBC members have served eight or fewer years and never in a Democratic majority. The first generational battle came with when two CBC members chose to seek the role of Democratic Caucus Chair, Rep. Barbara Lee (California) and Rep. Hakeem Jeffries (New York). With Lee, at age 72, Democrats would get the old guard. With Jeffries, at age 48, a generational passing of the torch. Lee focused on her years of negotiating through the ranks and using her experience to bring others along. Jeffries saw himself as creating an opportunity for the next generation of Democrats to rise up and take on leadership roles, not wait.

As the CBC moves into a new phase, it remains to be seen how the organization will use its growing power and influence. With 55 members, Jeffries as Democratic Caucus Chair, Rep. James Clyburn (D-SC) as Majority Whip, and five committee chairs,3At the beginning of the Congress, these included: Rep. Maxine Waters (D-CA), House Financial Services Committee; Rep. Robert C. Scott (D-VA), Education and Labor Committee; Rep. Elijah Cummings (D-MD), Government Oversight Committee; Rep. Bennie Thompson (D-MS), Homeland Security; and Rep. Eddie Bernice Johnson (D-TX), Science, Space and Technology Committee. However, Rep. Cummings passed away in October 2019. the CBC has moved to another level. Yet, the polarization and toxic environment persists in Washington, possibly stronger than ever. For example, Trump has targeted Rep. Maxine Waters (D-CA), a leading critic of his, as well as the late Rep. Elijah Cummings (D-MD), who had the power to investigate him. He described Waters as “a low IQ person” and Cummings as a “brutal bully” whose Baltimore district “is a disgusting, rat and rodent infested mess.” These actions were highly criticized by the CBC and the members themselves, but it is increasingly difficult to negotiate in an environment with such hostilities.

Legislative strategies

When President Richard Nixon refused to meet with the CBC in 1971 after repeated requests, members boycotted his State of the Union address. A visible show of defiance and show of force, it brought national attention to the infant organization and led to a meeting with Nixon. The CBC presented its policy agenda and recommendations, forcing Nixon’s hand to address those concerns. In presenting him with over 60 policy recommendations, the CBC stated that it did so as representatives for African American and poor people across the United States, not just their respective districts. A similar standoff happened with President George W. Bush, who ignored Caucus requests for meetings, and when the members showed up at the White House, he sent Black officials—Secretary of State Colin Powell and National Security Advisor Condaleeza Rice—to meet with members. When they refused to leave, President Bush eventually had to meet with the group. Introducing the Caucus and its legislative agenda to new administrations has proved an effective strategy so far, the exception being the Trump administration with whom the CBC has no relationship, a situation unlikely to improve in the current political climate.

Since 2000, polarization has increased in Congress, reducing the capacity of members to legislate as well as shape policy outcomes. This inability of legislators to effectuate policy has caused unprecedented gridlock, which has far-reaching implications for social policy.4Michael Barber and Nolan McCarty, “Causes and Consequences of Polarization,” in Report of the Task Force on Negotiating Agreement in Politics, ed. Jane Mansbridge and Cathie Jo Martin (Washington, DC: American Political Science Association, December 2013), 19–53. Given that the CBC has dedicated much of its policy agenda to influencing social and economic policy, polarization and gridlock may well have had repercussions for the organization in meeting the needs of its constituents, many of whom are minorities. Michael Barber and Nolan McCarty point out that Congress has become so polarized that it has changed the way members are able to deliberate, compromising its policymaking capabilities and procedure. Further, there is a breakdown in negotiations where legislation often fails and where, if there is success, the legislation lacks quality.5Barber and McCarty, “Causes and Consequences of Polarization.” Barber and McCarty point to the compromise on the Bush-era tax cuts that were set to expire during the Obama administration. Republicans wanted to make the cuts permanent. Democrats, faced with a lame-duck session and having suffered serious losses in the 2010 elections, were concerned about unemployment insurance and other efforts to stimulate the economy. President Obama did not push for allowing the tax cuts to expire, but sought a compromise instead, seeking to give each side what it wanted most. Republicans got an extension on tax cuts for two years and a favorable deal on the estate tax. Democrats got fiscal relief and stimulus funds for low-income and unemployed workers. However, the employee contribution to social security was reduced for a year with the savings redirected to unemployment benefits. Opposition to the compromise came from the ideological extremes of both parties. The compromise increased the deficit by nearly $900 billion and merely postponed the decision on tax cuts.

According to Rep. Donald McEachin (D-VA), despite the gridlock and polarization, one must look for opportunities to accomplish objectives. The First Step Act was one such opportunity in the area of criminal justice reform, a key agenda item for the CBC. Although not introduced by the Caucus, members had input into the eventual outcome of the legislation. The bill was introduced by Rep. Doug Collins (R-GA), with the purpose of providing “for programs to help reduce the risk that prisoners will recidivate upon release from prison.”6First Step Act of 2018, H.R. 5687, 115th Cong. (2018). Although it is not a perfect piece of legislation, it had components that were considered “common ground” issues.7Congressman Donald McEachin (D-VA), in interview with the author, June 7, 2018. On December 20, 2018, in a press release issued on behalf of the CBC, Chairman Cedric Richmond (D-LA) stated that the First Step Act was just that, a first step. It was not comprehensive criminal justice reform. However, the legislation included many issues supported by the Caucus, such as $75 million for reentry programs, pregnant prisoners not being shackled, a reduction in the disparity between crack and powder cocaine sentences being made retroactive, and the early release of 4,000 prisoners.

Crayton argues that more recent members of the CBC employ different styles than their predecessors as they may have aspirations beyond the House, either for state or nationwide office, which pushes them toward more moderate politics to reach future broader voter bases. Similarly, these members have greater political and institutional experience, having come up through state legislatures.8Crayton, “The Changing Face of the Congressional Black Caucus,” 484. As a newer member, elected in 2016, Congressman McEachin subscribes to what Crayton calls the “insider” norms of persuasion and negotiations as tools of the trade to move forward substantive goals of legislation.9Crayton, “The Changing Face of the Congressional Black Caucus,” 484.

Negotiation is crucial to the process of criminal justice reform, explained Rep. Robert C. “Bobby” Scott (D-VA), in the current dysfunctional environment. However, he added, “you can’t negotiate common sense.”10Congressman Robert C. “Bobby” Scott (D-VA), in interview with the author, June 1, 2018. Flawed legislation happens when the CBC seeks to reduce mandatory minimums and the legislation ultimately expands the number of individuals ending up in jail, increasing mass incarceration. Does this constitute negotiation, he asked? For Congressman Scott, this is not a matter of negotiation, but simply accepting nonsense to get over a line when it makes more sense to draft and pass a bill to address the issues and concerns raised by the CBC. If one uses The First Step Act as an example, although the CBC supported the legislation, ultimately it was flawed in that every dollar spent on mass incarceration makes minority communities less safe and the bill does not address the issue. Further, the act did not address life without parole for juveniles, families destroyed by the War on Drugs, or police accountability. Some good parts were able to be negotiated into the act, but much remained that would lead to the comprehensive criminal justice reform sought by the CBC. Congressman Scott’s assessment aligns with Barber and McCarty’s notion that in a polarized environment the breakdown in negotiations is such that legislation lacks quality.

Another successful strategy used has been having CBC members take the lead in negotiations for legislation and working with other caucuses. That was the case with the 2015 Every Student Succeeds Act (ESSA). The Congressional Tri-Caucus (Congressional Black Caucus, Congressional Hispanic Caucus, and Congressional Asian Pacific American Caucus) worked in tandem to oppose the initial proposals for the bill. Congressman Scott, as ranking member of the House Committee on Education and the Workforce, became the top Democrat to negotiate on behalf of the CBC. As point person, he had to navigate the Democrats’ discord between various organizations, labor unions, education reform groups, and the Republican majority. The Tri-Caucus was concerned about testing, constraints on opting out of exams, and states’ ratings of schools, which were raised in discussions about the bill.

To negotiate a solution, Scott had to bridge the gap between civil rights principles and the Republicans’ desire to return education to local control. He proposed (1) the federal government could mandate the specific circumstances under which states and districts could intervene in schools; and (2) the federal government would give states greater flexibility in rating schools’ performance and in determining how to help struggling schools. After some give and take, the House Committee chair agreed as did the Senate to what would become the ESSA, signed by President Obama in December 2015. In its Year in Review of the 114th Congress, the CBC lists the ESSA conference report as one of its major legislative accomplishments. In addition to citing the importance of the legislation as a key priority of the organization and how ESSA will give every student an equal chance to succeed, Congressman Scott was noted for his role in helping to negotiate the agreement.11Congressional Black Caucus, 114th Congress in Review (Washington, DC: 2016), p. 9.

Conclusion

In its 48-year history, the Congressional Black Caucus has developed many strategies and negotiating tools to become an effective organization within the halls of Congress. Growing from its original 13 members to its current 55, the CBC reflects geographic and demographic diversity that allows for deliberative negotiation and strategic partnerships to meet its mission of empowering marginalized communities. The CBC has met with successes and faced roadblocks, but has used its collective power to move a policy agenda, both domestic and global, that is determined to move minority communities forward. Despite facing an increasingly polarized environment for the past 20 years, CBC members have formed alliances with other caucuses and worked in a bipartisan way to keep alive the words of founding member Congressman William L. Clay, Sr., of Missouri who stated that “Black people have no permanent friends, no permanent enemies, just permanent interests.”