I. Overview

The United States is the only one of 36 members of the Organisation for Economic Cooperation and Development (OECD) to not guarantee new mothers access to paid maternity leave and one of a few not to guarantee paid parental leave to non-birth parents (OECD, 2019). The United States is also one of few OECD countries to not guarantee workers access to paid leave for a personal illness or health condition (Raub et al., 2018).

Until the COVID-19 pandemic spurred Congress to enact a temporary paid sick and family leave policy limited to COVID-19 quarantine or self-isolation, diagnosis and child care, the only federal law in the United States that was explicitly designed to help workers and their loved ones manage the complex and often conflicting demands of work, health, and family is the Family and Medical Leave Act (FMLA) of 1993, which covers less than 60 percent of private-sector workers (Brown et al., 2020; Kamerman & Kahn, 1997; Klerman et al., 2012). The FMLA provides an entitlement to up to 12 weeks of unpaid, job-protected leave to eligible employees for addressing a serious health condition or for caring for a new child or for a seriously ill or injured parent, spouse, or child, and up to 26 weeks for the care of a wounded service member or veteran.¹

The FMLA was passed after years of intricate political negotiations within and across partisan coalitions and interest groups, and it represented an important milestone in the development of American family policy (Wisensale, 2001). A 1996 report by the federal Commission on Family and Medical Leave estimated that the 1993 law led to workplace policy changes in about two-thirds of businesses covered by the policy. Following the law’s implementation, substantial numbers of employers expanded the reasons for which employee leave was available, increased the length of time that employees could take leave, and provided for job protections during periods of leave (U.S. Commission on Family and Medical Leave, 1996). Others have noted the law’s symbolic significance in terms of pushing employers to recognize the family and medical needs of workers (Vogel, 1995).

About 15 percent of private-sector workers report taking leave for an FMLA reason each year (Brown et al., 2020).² The majority of these workers do so to address a personal health condition (51 percent), but many (25 percent) use FMLA leave to care for a new child, many others (19 percent) use FMLA leave to care for a sick or injured parent, child or spouse covered by the law, and some (6 percent) report taking an FMLA-type leave to care for another family member with a serious health issue (Brown et al., 2020).³ The FMLA touches the lives of tens of thousands of people each year – both workers directly and the loved ones for whom they care.

However, the FMLA includes limitations that affect its utility and impact. Importantly, the FMLA’s eligibility conditions require that an individual has worked at least 1,250 hours for the same employer for at least 12 months and that their employer has 50 or more employees within 75 miles of the employee’s worksite, which leaves an estimated 44 percent of workers ineligible (Brown et al., 2020).

Even when workers meet the FMLA's eligibility requirements, the unpaid nature of the FMLA’s leave entitlement can make it difficult or impossible for people to take time away from work. This is particularly true for low-wage and part-time workers, who are least likely to have access to paid time off through their employers (Mathur et al., 2017). A 2018 survey found that over 60 percent of low-income workers received no pay while taking necessary leave, compared to about 20 percent of non-low-income workers (Brown et al., 2020). As compared with the results of a similar survey conducted in 2012, a slightly larger share of workers reported having an unmet need for taking leave in 2018 (5 percent in 2012 compared to 7 percent in 2018) (Brown et al., 2020). According to the same survey, about two-thirds of eligible workers in 2018 reported not taking needed leave because they could not afford to do so – a substantial increase from those who said the same in 2012 (46 percent) (Brown et al., 2020; Klerman et al., 2012).

In many cases, workers have no choice but to take leave from work to address a critical family and medical situation. Workers who take FMLA leave but do not have access to adequate paid leave through their employer may be forced to rely on savings that were intended for another purpose, borrow money, put off paying bills, or even go on public assistance to make ends meet (Brown et al., 2020; Klerman et al., 2012). A lack of access to paid leave and the high cost of child and family care can also lead workers – particularly women of color – to face economic insecurity or leave the workforce entirely (National Partnership for Women & Families, 2018; U.S. Department of Labor, 2015). As a result, inequalities in access to paid leave build on and contribute to existing income, gender, and racial inequalities in the United States (Grant et al., 2019; Jorgensen & Appelbaum, 2014; National Partnership for Women & Families, 2018).

Over the past two decades, states have worked to fill the gaps left by the FMLA. As of September 2020, five states (California, New Jersey, New York, Rhode Island and Washington) and the District of Columbia had paid family and medical leave insurance programs in place; three additional states are in the process of implementing programs that will begin making benefits available in January 2021 (Massachusetts), 2022 (Connecticut) and 2023 (Oregon). The existing state paid leave programs provide partial wage replacement to workers who take leave for FMLA reasons; each is funded through small payroll deductions. All of the state leave programs that are currently in place have expanded on the FMLA in terms of the family members for whom one can take leave to provide care, and several have included additional circumstances for which one may take paid leave (Shabo, 2020b).

The implementation of paid leave in U.S. states and in other countries has been shown to improve health and economic outcomes, particularly for women and children. A great deal of research associates paid leave with positive public health outcomes including lower child mortality rates, reductions in infants born with low birthweights, a higher likelihood of breastfeeding among mothers, and even increased rates of child immunization (Burtle & Bezruchka, 2016; Van Niel et al., 2020). Studies of the implementation of state laws in California and New Jersey also suggest that the availability of paid leave can increase women’s labor force attachment and wages, and can increase rates of caregiving among men (Appelbaum & Milkman, 2011; Byker, 2016; Jones, 2020; National Partnership for Women & Families, 2019; Rossin-Slater et al., 2013; Saad-Lessler & Bahn, 2017). Increasing the formal participation of women in the labor market through providing access to paid leave and other work-family supports also has the potential to grow the economy by as much as $500 billion per year (U.S. Department of Labor, 2015).

There is also broad support among the American public for expanded access to paid family and medical leave. A 2017 Pew Research Center survey found that a majority of Americans support access to paid leave for addressing a serious medical condition (85 percent), caring for a new child (82 percent for a mother, 69 percent for a father), or caring for an ill family member (67 percent) (Horowitz et al., 2017). In line with public opinion and the enactment of state-level programs in the “laboratories of democracy,” an ideologically diverse group of scholars from AEI and Brookings concluded in their 2017 working group report that a federal paid family leave policy is necessary for workers in the United States – although there was disagreement about the scope and structure that such a program should take (Mathur et al., 2017).

Federal policymakers have taken some limited recent action. In 2017, as part of the Tax Cuts and Jobs Act, Congress adopted a time-limited tax credit to businesses for offering limited paid leave, which expired in 2019. And, in 2019, Congress granted 12 weeks of paid leave to new parents within the federal workforce as part of the National Defense Authorization Act, beginning October 1, 2020. In response to the COVID-19 pandemic, in March 2020, lawmakers enacted a time-limited national paid sick days and paid family leave guarantee through the end of 2020, which covers up to 10 days of personal and family care needs related to COVID-19 and up to 10 additional weeks of paid leave for parents whose children are out of school or unable to access child care. It provides reimbursement to employers for the cost of employees' leave and to self-employed people who must miss days of work (Shabo, 2020c). However, the law applies to only half of the workforce at most and – with exemptions by business size and job type – as few as one quarter may be able to use the coverage (Glynn, 2020). More expansive provisions providing for 12 weeks of paid family and medical leave for COVID-related personal or family health issues were stripped from the original bill.

In addition to these legislative enactments, several diverse paid leave proposals have been put forward by policymakers to make paid leave more available to private sector workers on a temporary or permanent basis. The Family and Medical Insurance Leave (FAMILY) Act (sponsored by Sen. Kirsten Gillibrand (D-NY) and Rep. Rosa DeLauro (D-CT), would create a national social insurance program to permanently provide paid family and medical leave to the vast majority of the U.S. workforce for all FMLA-covered reasons; it currently has support from the vast majority of the Democratic caucus in the House (214 Democrats and one Republican) and Senate (36 Democratic co-sponsors).

Other proposals focus on new parents, rather than all FMLA circumstances, and offer income but do not guarantee job-protected leave. The Advancing Support for Working Families Act (sponsored by Sens. Bill Cassidy (R-LA) and Kyrsten Sinema (D-AZ) and endorsed by President Trump during his 2020 State of the Union Address) would establish a pilot program to allow parents $5,000 in income support upon the birth or adoption of a child; this proposal would be funded by reducing the money that parents who opt for this advance receive through the Child Tax Credit for the next 10 years. The proposed CRADLE Act (sponsored by Sens. Joni Ernst (R-IA) and Mike Lee (R-UT)) and the New Parents Act (sponsored by Sen. Marco Rubio (R-FL) and Rep. Ann Wagner (D-MO)) would each give new parents the option of drawing on Social Security benefits for up to three months after the birth or adoption of a child; this would be funded by a delay in recipients' eligibility for Social Security retirement benefits and, as a result, would provide them with lower lifetime Social Security benefits. None of these approaches have secured substantial support beyond a handful of members of Congress.

Growing bipartisan interest in Congress on the issue of paid leave has not yet manifested in bipartisan coalescence around a permanent national paid family and medical leave program or approach. Getting to that point will require a combination of inside-the-Beltway work, coalition-building, and public pressure, deployed strategically in the right political and policymaking moment to create incentives for lawmakers to reach agreement. This report seeks to uncover and apply key lessons from other federal legislative initiatives to assist advocates in their ongoing efforts to advance a well-designed, sustainable approach to national paid family and medical leave.

Although every legislative effort is shaped by the unique political, economic and social context in which it is developed, close examination of prior policy initiatives – both those that succeeded and those that have not – has the potential to reveal important lessons for building relationships and coalitions, designing legislative strategies, responding to internal and external political pressures, and framing issues in ways that contribute to legislative success.

This report considers five large-scale policy initiatives (six pieces of legislation) across a range of political contexts and issues. All gained at least some bipartisan support within Congress. Each case was chosen with the goal of extracting big-picture lessons that can guide the development of successful legislative strategies for paid family and medical leave legislation based on key policy and political factors. The cases selected were not intended to be, and are not, representative of all legislation. They come from diverse policy areas touching on health care, international development, energy and the environment, food and child nutrition, and law enforcement that span a 30-year period between 1988 and 2018:

• The Medicare Catastrophic Coverage Act of 1988 (MCCA) and the Medicare Catastrophic Repeal Act of 1989
• The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the legislative vehicle for the President’s Emergency Plan for AIDS Relief or PEPFAR)
• The American Clean Energy and Security Act of 2009 (H.R. 2454) / The Clean Energy Jobs and American Power Act (S.1733) (failed attempt to pass Cap & Trade legislation that died in 2010)
• The Healthy, Hunger-Free Kids Act of 2010 (HHFKA)
• The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act of 2018 (FIRST STEP Act)

A brief snapshot of each of the five case studies that are included in this report follows to provide a summary of the policy content and an overview of some of the key political dynamics that were at play during the proposal’s consideration. More details about relevant aspects of the case studies are also included throughout the report where illustrative of important lessons learned.

The chart below provides an overview of the partisan composition of the legislative and executive branches of government during the Congress in which each of our case study bills passed or failed to advance (U.S. House of Representatives, 2020; U.S. Senate, 2020a; U.S. Senate, 2020b).

A. Medicare Catastrophic Coverage Act of 1988; Medicare Catastrophic Coverage Repeal Act of 1989

The Medicare Catastrophic Coverage Repeal Act of 1989 (P.L. 101-234), passed in December 1989, repealed the Medicare Catastrophic Coverage Act (MCCA) of 1988 (P.L. 100-360). Both the 1988 law and its 1989 repeal are part of this report’s analyses. The 1988 law passed with bipartisan support, 86-11 in the Senate and 328-72 in the House; it represented the first significant expansion of the Medicare program since 1973, when Medicare began covering individuals with disabilities (CBO, 1988; Aaron et al., 2008; U.S. Congress, 1988).

The MCCA expanded Medicare benefits to cover outpatient prescription drugs, lowered some copayment caps, removed the time limit on coverage for inpatient and hospice care, increased the maximum amount of home health and skilled nursing care covered, and added coverage for mammograms and in-home personal services (CBO, 1988; Aaron et al., 2008). The law also expanded Medicaid benefits for low-income senior citizens by increasing the asset limit for individuals with a spouse in long-term care (Christensen & Kasten, 1988). To cover the cost of increased benefits (an estimated $30.8 billion in 1988 dollars), the 1988 law established a monthly fixed premium on Medicare’s optional Part B coverage as well as a new income-based supplemental premium (CBO, 1988; Morreale, 1991).

Most of the MCCA’s key provisions were repealed by the Medicare Catastrophic Coverage Repeal Act of 1989, also with overwhelming bipartisan support, fewer than 18 months after the enactment of the 1988 MCCA law (Himelfarb, 1995; Aaron et al., 2008; U.S. Congress, 1989). Congress spared from repeal only provisions related to Medicaid eligibility for seniors with spouses in long-term nursing home care (Rice et al., 1990; Moon, 1990).

The passage and subsequent repeal of the MCCA illustrates the challenges and complexities of bipartisan negotiations over expansions to social insurance programs. President Reagan had laid the groundwork for the development of the MCCA when he directed his secretary of Health and Human Services, Dr. Otis Bowen, to study catastrophic health care costs in his 1986 State of the Union address (Himelfarb, 1995). Democrats seized on Reagan’s interest in health care, and they became better positioned to exert control over the substance of a bill in 1987 when a change in party control of the Senate strengthened their bargaining position; the looming 1988 presidential election created incentives for Republican compromise so that the Reagan-Bush team could claim success.

The bipartisan bill that was introduced in the House by Reps. Pete Stark (D-CA) and Bill Gradison (R-OH) was an attempt to balance competing partisan demands: the president’s requirement that the proposal not increase the deficit and Democrats’ desire to make the financing mechanism progressive and to provide more comprehensive benefits than had been initially proposed (Aaron et al., 2008; Diamond, 2011; Milius, 1988; Oliver et al., 2004). Some suggest that the result was a confusing “Christmas tree bill” that did not have strong supporters in Congress or among the general public, many of whom were unhappy with the modest scope of the law’s benefits and its front-loaded costs (Moon, 1990, p. 380; Morreale, 1991). Opposition to the law’s funding structure, seen by many as a violation of the Social Security social insurance principle of universal contributions, also activated sustained negative campaigning. Numerous advocacy organizations helped to mobilize opposition from seniors – particularly from affluent seniors who were slotted to pay more than they would receive in benefits under the law – and contributed to the law’s repeal (Cox, 1993; Moon, 1990; Morreale, 1991).

B. United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (The Leadership Act) of 2003 (P.L. 108-25), which was enacted in May 2003, authorized funding for the President’s Emergency Plan for AIDS Relief (PEPFAR) and established the Office of the Global AIDS Coordinator within the State Department (CRS, 2007). Announced during President Bush’s 2003 State of the Union Address, he envisioned PEPFAR as a “medical version of the Marshall Plan” to combat HIV/AIDS, tuberculosis, and malaria globally (Boonstra, 2003; Friedman, 2012). It passed with overwhelming bipartisan support in the House (375-41) where it originated and by voice vote in the Senate several weeks later, before being signed into law by President Bush on May 27, 2003 (GovTrack, 2003; Sorrells, 2003a).

The Leadership Act authorized $15 billion in funding for research, treatment, care, education, and local capacity building for the period 2004 through 2008 in 15 countries significantly affected by HIV/AIDS (CRS, 2007).⁴ The law allocated the largest share of funding ($9 billion) for HIV/AIDS, tuberculosis, and malaria programs in the 15 target countries, $5 billion for additional research and programming, and $1 billion for the Global Fund to Fight AIDS, Tuberculosis, and Malaria, an independent multilateral organization established in 2002 through a founding donation by the United States (KFF, 2019b; CRS, 2012b). The Leadership Act prioritized the use of programming funding for treatment services (55 percent) and prevention initiatives (20 percent) (Boonstra, 2003). PEPFAR has been reauthorized three times since the passage of the Leadership Act (in 2008, 2013, and 2018) and represents the largest single bilateral global health initiative in the world (CRS, 2012c). Research suggests that PEPFAR has been successful in building health-aid networks within and between countries as well as increasing access to antiretroviral medications and reducing mortality rates in the program’s focus countries (Bendavid, 2016). 

The passage of the Leadership Act and continued support for PEPFAR represent the success of a major new initiative that started with, and continues to have, strong Republican and Democratic champions. President George W. Bush’s prioritization of the issue during his 2003 State of the Union address and his sustained public pressure on Congress boosted the issue’s profile, made the initiative politically safe for Republicans to support, and accelerated negotiation efforts across chambers (Anglin, 2007; Boonstra, 2003; Sorrells, 2003a; 2003b). Early supporters of the bill were also effective in leaning on a diverse set of influencers outside of government, from faith-based organizations to celebrities to academic researchers, and framing the bill’s contents around an appeal to "Christian values" and an urgent need to protect vulnerable populations such as women and children (Boonstra, 2003; Kreps, 2018; Loconte, 2003a). The law’s passage ultimately required concessions from members of both parties: faith-based organizations eventually dropped their push to include a global gag rule that would have made organizations that perform abortion care ineligible for funds, while Democrats were forced to accept the House Pro-Life Caucus’ demand that a portion of prevention funding be reserved for abstinence-only programming (Anglin, 2007; Boonstra, 2003; Sorrells, 2003b, 2003c).⁵

C. The American Clean Energy and Security Act of 2009 (H.R. 2454) / The Clean Energy Jobs and American Power Act (S.1733)

The American Clean Energy and Security Act of 2009 (H.R. 2454), introduced on May 15, 2009, would have amended the Clean Air Act of 1963 to establish a cap-and-trade program for greenhouse gas (GHG) emissions (U.S. Congress, 2009). The proposal built on the 1990 Clean Air Act amendments, which established a cap-and-trade system to curb acid rain for emissions of sulfur dioxide and nitrogen oxides. It would have allowed the government to issue a gradually-decreasing number of emission allowances for carbon on which companies could bid, thereby generating revenue for the government and reducing emissions over time (CRS, 2009; CRS, 2019a). The proposed legislation was intended to reduce carbon dioxide emissions 17 percent below 2005 levels by 2020 and would have increased federal revenue by an estimated $846 billion between 2010-2019 (CBO, 2009; Bartosiewicz & Miley, 2013). The proposal would also have established a refundable energy tax credit and rebate program for low-income consumers to offset the estimated increase in the costs of energy and consumer goods associated with the cap-and-trade elements of the bill (CBO, 2009).

The bill was backed by President Obama and passed the House by a narrow margin in June 2009 (219-212, with eight Republicans joining Democrats to vote in favor and 44 Democrats joining most Republicans to vote against) (U.S. Congress, 2009). However, the Senate companion bill (S. 1733) was never brought to the floor for consideration, despite months of intense bipartisan negotiations. At the time, many environmental advocates believed cap-and-trade legislation to be the most politically feasible approach to addressing climate change and carbon emissions (Broder, 2010a). However, despite substantial concessions made by Democrats to incorporate industry demands into an-already moderate proposal, neither chambers’ bill garnered significant Republican support (Bartosiewicz & Miley, 2013; Lizza, 2010; Samuelsohn, 2010).

Several political factors likely hurt the proposal’s chances of success. Its failure may be primarily attributed to a lack of bipartisan leadership during the development of the legislation in the House, a lack of support from party leaders in the Senate, and the decision of President Barack Obama and other policymakers to prioritize stimulus legislation and health care reform (Bartosiewicz & Miley, 2013; Goodell, 2010; Lizza, 2010). The proposal also floundered due to powerful opposition from grassroots Tea Party activists as well as from industry groups, many of whom had a double-say in policymaking due to their involvement with the U.S. Climate Action Partnership (USCAP), a coalition of environmental and business groups that had published the report upon which the House proposal was based (Bartosiewicz & Miley, 2013; Goodell, 2010; Loewentheil, 2013). In addition, opponents were effective at framing the proposal as a tax, and without grassroots public support to pressure policymakers, early bipartisan momentum in the Senate failed to yield legislative results (Bartosiewicz & Miley, 2013; Goodell, 2010; Lizza, 2010; Loewentheil, 2013; Skocpol, 2013).

D. The Healthy, Hunger-Free Kids Act of 2010

The Healthy, Hunger-Free Kids Act of 2010 (HHFKA) (P.L. 111-296) was the most recent reauthorization of the Richard B. Russell National School Lunch Act and the Child Nutrition Act, the major pieces of legislation that govern the child nutrition programs administered through the U.S. Department of Agriculture’s Food and Nutrition Service (USDA-FNS) (CRS, 2012a).⁶ Although due for reauthorization in 2009, congressional disagreement over funding sources for programmatic expansions led to a one-year funding extension to allow additional time for policy negotiations (CRS, 2012a). Bipartisan cooperation in the Senate contributed to the 2010 bill’s success, which passed through unanimous consent (Black, 2010). It also passed the House (264-157), albeit with little Republican support but with the tacit agreement to proceed from the then-current House Minority Leader (and incoming House Speaker) John Boehner (R-OH), before being signed into law by President Obama on December 13, 2010 (GovTrack, 2010).

The HHFKA made the most significant changes to national child nutrition programs since the 1970s (CRS, 2019b). Among its major provisions, the law gave the USDA-FNS purview over regulating the nutritional content of non-meal foods and beverages served in schools, increased funding for school meals contingent on providers implementing new nutrition standards, expanded access to meals during and outside of school hours, established minimum prices for “priced” school lunches for paying students, and expanded direct certification options to streamline application processes for low-income students and low-income schools (CRS, 2012a).⁷

The passage of the HHFKA can be attributed to strategic bipartisan cooperation during the committee phase in the Senate as well as the concerted efforts of a diverse set of influencers outside of Congress that included First Lady Michelle Obama, a long-standing coalition of several hundred public health, health-professional, and consumer organizations (National Alliance for Nutrition and Activity), and a group of retired military leaders (Black, 2010; Bottemiller, 2010; Confessore, 2014; Lincoln, 2010; Schwartz & Wootan, 2019). Although the proposal encountered unexpected intra-party conflict in the House related to its proposed offsets, targeted presidential engagement and the sustained involvement of activists helped to maintain a strong coalition of support for the legislation (Haberkorn et al., 2010; Paulson, 2010; Phillip, 2010). Momentum from prior legislative efforts, as well as the impending partisan change in the House following the 2010 midterm elections, additionally put pressure on House Democrats to act (Schwartz & Wootan, 2019). Finally, the case of the HHFKA reveals the importance of framing – around cost concerns, vulnerable beneficiaries, and federalism issues – and highlights the ways in which the implementation and regulatory enforcement of a law can activate new opponents and require advocates to design reactive mobilization and media strategies (Confessore, 2014; Schwartz & Wootan, 2019).

E. The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person (FIRST STEP) Act of 2018

The FIRST STEP Act of 2018 (P.L. 115-391) was a bipartisan effort to improve the treatment of federal inmates and reduce the number of individuals incarcerated in facilities operated by the federal Bureau of Prisons (BOP). Despite initial disagreement within and across party lines about an early bill draft’s exclusion of sentencing reform provisions, a law including some of these measures ultimately passed both chambers with substantial bipartisan support (87-12 in the Senate, 358-36 in the House) and was signed into law by President Trump on December 20, 2018 (GovTrack, 2018).

The FIRST STEP Act authorized $50 million in appropriations annually (for 2019-2023) to create a new risk and needs assessment system to match incarcerated individuals with recidivism-reduction program opportunities that allow participants to earn credit towards prerelease custody (CBO, 2018; CRS, 2019c).⁸ It also reduced mandatory minimum sentences for certain drug convictions,⁹ allowed for retroactive application of the Fair Sentencing Act of 2010 (which reduced the disparity between sentences for powder and crack cocaine possession), reauthorized the Second Chance Act of 2007 (which authorized a number of offender reentry grant programs), and included provisions to improve the care of inmates, for example by barring restraints on inmates who are pregnant, and requiring inmates to be incarcerated within 500 miles of their home addresses when possible (CRS, 2018b; CRS, 2019c). As a result of shortened sentences and predicted reductions in recidivism rates, the FIRST STEP Act is estimated to lead to a net reduction in discretionary costs of about $342 million between 2019 and 2028 (CBO, 2018).

Although initially proposed in the House as a moderate prison reform bill, the draft that emerged following negotiations in the Senate was a more comprehensive piece of legislation that also included significant sentencing reform provisions, largely because of bipartisan cooperation within committee in both chambers as well as strong Republican leadership on the issue both inside and outside of Congress (Berman, 2018; Dolven, 2018; Grassley & Durbin, 2018a; Lopez, 2018; Restuccia et al., 2018). Also critical to the legislation’s success were the persistent efforts of White House senior adviser Jared Kushner, who had a personal interest in the issue due to his own family’s interaction with the criminal justice system (George, 2017; Karni, 2018; Kushner, 2019). Kushner’s engagement, along with the influence of prominent Republican lawmakers as well as celebrities such as Kim Kardashian, contributed to President Trump’s willingness to prioritize the issue despite intra-party opposition from Senate Majority Leader Mitch McConnell, former Attorney General Jeff Sessions, and Sen. Tom Cotton (Diamond & Collins, 2018; Diamond & Rogers, 2018; George, 2017; Grawert & Lau, 2019; Karni, 2018; Schor, 2018a). A diverse coalition of faith-based organizations, racial justice and civil rights advocates, and libertarian organizations were also crucial in putting pressure on members of Congress to pursue criminal justice reform (Ball, 2015; Head, 2018; LCCHR, 2018; McFarlan Miller, 2018). The framing of the bill as an opportunity to build on policy successes in conservative states and around the concept of redemption also played an important role in maintaining the legislation’s bipartisan support (Cornyn, 2018; Fandos, 2018; Malcolm & Seibler, 2018; McCammon, 2018; NGA, 2018a; 2018b; Nwanevu, 2018).

Making federal policy in the United States was never supposed to be easy. The framers designed a system of checks and balances to ensure the formation of a government that was forced to constrain itself. The distinct authorities granted to each branch of government, not only through the Constitution, but also by way of legislative and legal precedent, place numerous barriers in the way of radical change.

In an age of increasing legislative gridlock, we often wonder at how so little gets done (Binder, 2014). However, we may just as readily ask why significant legislation is ever able to overcome the many obstacles that stand in the way of passage. In fact, political scientists and sociologists have long wrestled with the ways in which various actors, institutions, and conditions can overcome structural inertia. Scholars have identified multiple elements that affect policy change, including the role that individual legislators, the president, parties, interest groups, social movements, the media, public opinion, external events and conditions, and framing efforts play in supporting or impeding the policymaking process.

In this report, we sort those components seen as critical to the legislative process into five groups of forces that political scientists and sociologists have identified as important: government actors; individuals and organizations outside of government; factors related to the political and policy context at the time a policy is being considered; external economic, social and demographic contextual factors and focusing events; and policy frames. By examining these areas for each of our case studies, we are able to identify the components that most helped and hindered past legislative efforts. Our goal is to use these insights to inform a legislative strategy designed to lead to the enactment of a national paid family and medical leave program. A summary of these five categories of study and why they are relevant to the aims of this report follows below.

A. Government Actors

As the core of the legislative branch, members of Congress are the primary agents of the legislative process. Political scientist David Mayhew’s (1974) classic study posits that legislators are “single-minded seekers of reelection” who are motivated to take credit for policies they believe will improve their electoral prospects. The ever-present question that most members of Congress must confront is, what kinds of policy positions and legislative efforts will help them to be reelected? Political scientists have also homed in on the important influence that other members of Congress, committees, parties, and the president can all have on the actions that members of Congress take as legislators (Cox & McCubbins, 2005; Fenno, 1978; Kingdon, 1989; Maltzman, 1997; Neustadt, 1990). Politicians are, themselves, complex individuals with personal experiences, identities, and relationships that may shape which ideas, constituents, and political actors they follow, and thus which policies they choose to prioritize and support (Minta, 2009; Reingold, 2000; Swers, 2013). In Part II.1. of this report, we consider the roles that various government actors played in shaping the case studies that we examined including committee leaders, party leaders, other engaged members of Congress, partisan congressional teams, the president, and government actors who have the president’s ear.

B. Individuals and Organizations Outside of Government

Individuals and organizations outside of government can shape the behavior of those who operate inside of it. Their actions help to set agendas, develop key pillars of policy proposals, create outside pressure as legislation moves or stalls, and influence legislative outcomes. Research suggests that interest groups, economic elites, advocates and their coalitions, and thought leaders may all have opportunities to place policies on the agenda, lobby members of Congress, and influence the content of legislation (Amenta & Elliott, 2019; Amenta et al., 2010; Gilens & Page, 2014; King et al., 2007; Noel, 2013; Schattschneider, 1960). Individuals and groups outside of government may also work together to form “issue networks” to advocate for certain policies within a shared policy subsystem (Heclo, 1978).

Such coalitions may be comprised of any number or combination of interest or advocacy groups, think tanks, private industry representatives, and even specific researchers who may shape narratives around given policy ideas. In this report, we look at both individual actors outside of government and formally established, named coalitions of multiple actors. Some of the coalitions mentioned were established specifically to advance the policy in question, while others were already-existing networks that became activated as a given policy proposal made its way through the legislative process. By evaluating the involvement of key actors and coalitions outside of government, Part II.2. examines how our case studies provide a more holistic perspective on the effectiveness of the strategies utilized by different policy players as well as the dynamics of the interactions between them.

C. Political and Policy Context

An early trailblazer in the field of political science, E.E. Schattschneider, famously wrote that “modern democracy is unthinkable save in terms of parties” (1942). Parties serve a variety of functions in our political system because they organize the ideological and policy platforms upon which we orient our political thinking (Key, 1942). Not only are partisanship and ideology strong determinants of the voting behavior of individual legislators, but the benefits of having majority status can also drive party organizations to make policy decisions based on their perceived electoral impact (Cox & McCubbins, 2005; Poole & Rosenthal, 2007). Recent work finds that the growing partisan divide can further exacerbate partisan gridlock as members of Congress perceive the risks of working across party lines to outweigh the benefits of passing bipartisan policies (Binder, 2014; Lee, 2016; Mayhew, 2005). Therefore, we closely considered partisan demands, including the timing of elections and the strategic consideration of legislative pathways in analyzing the strategies employed by key actors and coalitions for each piece of legislation.

Even beyond the pressures of partisanship, no policy is drafted or negotiated in a vacuum. Instead, legislative success often depends on the ability of key actors to choose the right political moment and legislative vehicle to present their proposal as a necessary solution to a problem that is viewed as pertinent at the time (Kingdon, 1995). Research also suggests that policymaking is often rooted in “path dependent” processes, defined as the idea that certain policy proposals are inherently less costly due to the civil, administrative, and budgetary infrastructure formed out of prior legislative efforts (Pierson, 2000; Hacker, 2002). In other words, the extent to which new proposals build on existing legislative ideas and policy content may also explain why the strategies utilized by key political actors, coalitions, and party agents carry a bill through to passage (or not). In Part II.3., we therefore consider the ways in which a policy’s trajectory was influenced by its timing and content within the broader political and policy context.

D. Contextual Factors and Focusing Events

Much of policymaking is characterized by incrementalism, or the process of “muddling through” complex problems in a piecemeal fashion (Lindblom, 1959). However, this is not always the case. Comprehensive policy change does occur, as evidenced by five of the six pieces of legislation selected for this report (although one of the successful efforts was later repealed). The consideration and passage of large-scale policies is theorized to be driven by a collective shift in perspectives among the public and policymakers regarding the importance of a given problem and proposed solution (Baumgartner & Jones, 1993). Shifts in the country’s political mood could be due to the release of new information; economic, demographic or social dynamics; fluctuation in public attention; international or domestic crises; or other kinds of dramatic happenings. This vein of research suggests that so-called “focusing events” may help to move forward significant legislation when supporters of a policy are able to effectively use these events symbolically to highlight institutional flaws inherent within the status quo (Birkland, 1998; Kingdon, 1995).

Although focusing events do not necessarily lead to collective shifts in the national mood or guarantee substantive policy change, there is evidence that these kinds of factors may open the door for the consideration of proposals that may otherwise not have made it onto the policy agenda (Birkland, 1998). In contrast, external events can also create new barriers to achieving policy goals. Therefore, in Part II.4., we examine potential contextual factors and focusing events that appear to have contributed to a given policy’s legislative outcome.

E. Policy Framing

At the core of our democratic process is the belief that what the public thinks matters to those who hold positions of political power. In the candid words of an early scholar of public opinion, V.O. Key Jr., “unless mass views have some place in the shaping of policy, all the talk about democracy is nonsense” (1961). In line with this perspective, a great deal of scholarship suggests that the views of the public influence the policy preferences held by politicians (Canes-Wrone, 2006; Erikson et al., 2002) and that this can have an impact on policy formation, bill introduction and movement through a legislature, and legislative outcomes (Burstein, 2003; Fassiotto & Soule, 2017; Soule & King, 2006). On the other hand, it is also possible that many voters follow the lead of political actors in developing their views on policy (Brody & Page, 1972; Jacobs & Shapiro, 2000; Lenz, 2012). If this is the case, it follows that the ways in which politicians and the media frame policy can meaningfully affect the public’s perception of those issues (Chong & Druckman, 2007; Iyengar & Kinder, 2010). With this theoretical grounding in mind, we consider in Part II.5. the possible interactions between political framing, media coverage, and the public mood that proved to be potential determinants of legislative outcomes in our case studies.

This report relies on qualitative case studies of large-scale policy proposals that received bipartisan support over a portion or the entirety of their consideration and is grounded in theories drawn from the political science, public policy and sociology literatures. The five cases, which include six legislative efforts, were selected to capture key policy and political parallels that may be useful when developing features of a legislative strategy or strategies for a national paid family and medical leave proposal; they are not intended to be representative of all legislation. Our five cases represent a diverse set of policy areas that span a thirty-year period between the late 1980s to 2018:

• The Medicare Catastrophic Coverage Act of 1988 (MCCA) and the Medicare Catastrophic Repeal Act of 1989
• The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the legislation implementing the President’s Emergency Plan for AIDS Relief, or PEPFAR)
• The American Clean Energy and Security Act of 2009 (H.R. 2454) / The Clean Energy Jobs and American Power Act (S.1733) (“cap-and-trade” policy)
• The Healthy, Hunger-Free Kids Act of 2010 (HHFKA)
• The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act of 2018 (FIRST STEP Act)

Data for the case studies in this report come from a wide variety of published sources including official government reports, bill texts, and congressional documents; peer-reviewed articles and other scholarly work; news articles, published interviews conducted by journalists, and op-eds; and publications by think tanks, advocacy organizations, and other interest groups. Additional information for this report came from filmed news reports, campaign materials available online (e.g., pictures, videos) and interviews with a small number of individuals with direct knowledge of the proposals and their legislative trajectories.

To identify relevant government-related sources, keyword searches were conducted using a comprehensive set of platforms including: Congressional Research Service, Congressional Budget Office, Congressional Quarterly Weekly, the Congressional Record, and Google searches for relevant reports and press statements. We located peer-reviewed articles and books using online search engines and university library search tools, and news materials from Google and Lexis key-word searches targeted to specific time frames before and during the consideration of a given proposal. The reports and materials from think tanks, advocacy or interest groups, and coalitions included as sources for this report were primarily those mentioned in government, academic, or news sources, although some were located using Google searches. The analyses and conclusions in this report were made based on the sources studied. Despite the care that was taken to examine resources from a holistic range of sources, it is possible that important themes, events, and statements were overlooked that could alter our findings.