Executive Summary

Among high-wealth countries, the United States stands out as the only one to not guarantee new mothers access to paid maternity leave, one of a handful not to guarantee non-birth parents access to parental leave, and one of only a few to not guarantee access to medical or sick leave benefits (OECD, 2019; Raub et al., 2018). The Family and Medical Leave Act (FMLA) of 1993 – which provides for up to 12 weeks of unpaid, job-protected leave to address a personal health condition or to care for a new child or seriously ill family member – covers less than 60 percent of private-sector workers, and the unpaid nature of this leave makes the benefit inaccessible to many (Brown et al., 2020; Klerman et al., 2012).

In the absence of a federal paid leave law, several states have adopted paid family and medical leave programs over the past 18 years, creating a growing body of evidence that paid leave has myriad health, economic, and labor force benefits (Shabo, 2020a).¹ Prior to the COVID-19 pandemic, this momentum – spurred by decades of hard work by advocates – created growing receptivity among private-sector leaders and members of Congress towards advancing a national-level paid leave program.

The COVID-19 pandemic has only underscored the broader public health implications of the status quo. For the first time, Congress guaranteed access to paid leave for some private-sector workers, but only for a limited period of time and for pandemic-specific purposes. At the beginning of the pandemic, Congress included a COVID-related paid sick leave benefit for employees in covered workplaces as a part of the Families First Coronavirus Response Act (FFCRA). Congress also considered a longer duration of family and medical leave for COVID-19 purposes but only adopted an extended paid leave benefit for parents who are unable to access child care or whose children are out of school as a result of the pandemic. Even as the devastating consequences of the spread of COVID-19 make the necessity of widely accessible paid leave increasingly clear, significant barriers to the passage and implementation of a national paid family and medical leave program remain.

This report analyzes the key features of six legislative efforts from the late 1980s to 2018 and the strategies that contributed to their success or failure, in order to guide the development of future legislative campaigns and, more specifically, efforts to advance national paid family and medical leave legislation. We rely on a diverse set of case studies to identify common factors that helped proposals through to passage and factors that were obstacles to legislative success. The cases cover a variety of policy areas from different modern political eras: the Medicare Catastrophic Coverage Act of 1988; the Medicare Catastrophic Coverage Repeal Act of 1989; the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003; the failed 2009 cap-and-trade effort; the Healthy, Hunger-Free Kids Act of 2010; and the FIRST STEP Act of 2018.

Informed by foundational and contemporary work in the fields of political science, public policy and sociology, we analyzed the role that 1) government actors, 2) individuals and organizations outside of government, 3) the broader political and policy context, 4) contextual factors and focusing events, and 5) policy frames played in the passage or failure of each legislative effort. We present key takeaways for each category of analysis to present lessons that may be applied to future legislative efforts. Although our analyses were conducted with an eye towards the enactment of a national paid family and medical leave proposal, we believe these insights and lessons may also help advocates and practitioners interested in pursuing other legislative policies.

This report illustrates the importance of relationship building, strategic thinking, flexibility in seizing unexpected opportunities, deliberate marketing, and creativity in pursuing legislative objectives. It also provides advocates and policymakers with tangible examples of how these dynamics can help create incentives among members of Congress and other key stakeholders to reach agreement on legislation.

Our case study analyses suggest:

• Political actors’ investment in the consideration and passage of legislation is critical. Having well-placed congressional champions who are deeply invested in an issue and able to build coalitions within Congress is extremely important. The support of party leaders and the president as well as bipartisan buy-in, particularly during the committee phase, can also improve the chances of legislative success; this is especially true when Congress is divided but is also applicable even when one party controls Congress.
• Advocacy groups can play an instrumental role in educating and mobilizing key political actors and the public. Effective strategies for gaining the support of influential actors and stakeholders within and outside of government include: building political momentum; demonstrating the policy and electoral benefits of legislation; identifying policymakers whose personal experiences enhance their commitment to policy reform; sharing policy expertise and amplifying success stories from local and state-level initiatives; translating research into products that support policy arguments and refute opposition claims; and designing effective public mobilization campaigns.
• Advocates should consider the benefits and risks of building coalitions that represent a range of ideological perspectives. Doing so may amplify mobilization efforts and help to facilitate bipartisan support for a proposal, but can also contribute to the development of weaker legislation that is less likely to garner enthusiastic support from strong partisans and activists. Being strategic about the timing, scope and purpose of developing multi-stakeholder or “unusual ally” coalitions is essential to achieving legislative goals.
• Advocates should continuously evaluate how political and policy considerations within Congress and the broader social, political and demographic environment can affect the trajectory of a legislative campaign. Developing strategies for moving a bill through each chamber of Congress is critical, as is assessing the overall feasibility of a proposal and the quality of its substantive content as economic, political, electoral and social conditions shift. Compromises that would have been considered unacceptable during a policy’s development may become realistic concessions under certain conditions, and unexpected events may open doors to new ideas previously thought to be out of reach.
• Shifts in the partisan control of Congress – especially the impending shift in control of a congressional chamber from one party to the other – can provide unique action-forcing opportunities for bipartisan agreement. In three of our case studies, a shift in partisan power within Congress created new pathways for political actors to exert leverage over the content of a proposal and new incentives to bring a proposal to a vote.
• Messaging campaigns are critical to the successful passage and implementation of legislative proposals. Messaging is most likely to be effective when framed around a proposal’s fiscal benefits, its protection of vulnerable and sympathetic populations, and its relationship to proven state-level policy successes. Messaging campaigns should also be flexible, responding to new opportunities as well as to challenges and attacks from legislative opponents.

In Part I, we discuss the need for paid family and medical leave and provide an overview of our legislative case studies, the political science and sociology theory that ground our analyses, and the methodology that we use to study each case.

In Part II, we report the findings of our case study analyses for each of the five categories of influential factors that we studied.

In Part III, we apply the findings from our case study analyses to national paid family and medical leave legislative advocacy and policymaking, framing this section around conclusions for advocates. Advocates who are steeped in paid leave policy and strategy may well see other applicable lessons as well.