Randy Barnett excerpts Cushman’s piece in the Green Bag:
It is widely recognized that support for the major bills enacted during the 111th Congress was far from bipartisan. For example, the first stimulus bill, also known as the American Recovery and Reinvestment Act of 2009, garnered the support of only three Republican Senators, one of whom, Arlen Specter, would soon become a Democrat, and not a single Republican member of the House. The Dodd-Frank Wall Street Reform and Consumer Protection Act passed the House with the support of only three Republicans, and likewise received the support of only three Republican senators. The Affordable Care Act passed the House by a vote of 220-215, with only one Republican voting in favor, and in the Senate without any Republican support.
Compare the votes on major pieces of recovery and reform legislation during the New Deal. The Emergency Banking Act of 1933 passed the House by a voice vote and the Senate by a margin of 73-7, with 22 Republicans voting in favor and only five opposed. The Glass-Steagall Banking Act passed the Senate by a voice vote and the House by a vote of 262-19. The Federal Emergency Relief Act of 193320 passed the Senate by a voice vote, and the House by a vote of 331-42, with 74 Republicans voting in favor. The Securities Act of 1933 was passed by a voice vote in both houses of Congress. The Securities Exchange Act passed the House by a vote of 281-84 with the support of 22 Republicans, and the Senate by a vote of 62-13, with 14 Republicans in the yes column, one Democrat voting no, and eleven Democrats not voting. The National Industrial Recovery Act passed in the House by a vote of 325-76, with Republicans voting in favor by a margin of 54-50 and 25 Democrats voting no, and in the Senate by a vote of 58-24, with the support of nine Republicans, while four Democrats voted no and nine did not vote. The Agricultural Adjustment Act of 1933 passed the House by a vote of 315-98 with the support of 39 Republicans, and the Senate by a vote of 64-20, with fifteen Republicans voting yes while four Democrats voted no and seven Democrats did not vote. The National Labor Relations Act was passed by a voice vote in the House, and by a vote of 63-12 in the Senate, with 12 Republicans voting in favor while four Democrats voted no and fifteen members of FDR’s party did not vote on the measure. The Social Security Act was passed by a vote of 372-33 in the House, where Republicans supported the measure by a margin of 79-18, and by a vote of 77-6 in the Senate, where Republicans voted in favor by a margin of 15-5 and eight Democrats did not vote. And the Fair Labor Standards Act was passed by a vote of 314-97 in the House, with the Republicans voting in favor by a margin of 46-41 and 56 Democrats defecting. The Senate passed the bill by a vote of 56-28, with Democrats casting fully half of the negative votes while nine members of their party did not vote.
Such lopsided, bipartisan majorities also characterized congressional support for many of the lesser-known New Deal initiatives. The following bills were passed by voice votes in both houses of Congress . . .
The past three years of the Obama Administration inevitably have elicited comparisons between the present day and the era of President Franklin D. Roosevelt’s New Deal. While frequently illuminating, such comparisons often overlook an important point that many may have forgotten: compared with the major reform initiatives undertaken during President Obama’s tenure, a review of the roll call votes reveals that the measures enacted by the New Deal Congresses enjoyed a remarkable degree of bipartisan support. In addition, the Democrats enjoyed large majorities in the House of Representatives from 1933 forward, and a filibuster-proof majority in the Senate after 1934.
These dual luxuries of bipartisan support and electoral dominance had two important implications for the durability of New Deal legislation. First, they guaranteed that in the near term there would be no significant movement within Congress to repeal that legislation. Second, they ensured that if the Supreme Court held such legislation unconstitutional, Congress would get a second bite at the apple. In several instances in which the Hughes Court held that a legislative attempt to address a particular problem did not pass constitutional muster, the New Deal Congresses would have, and would take, the opportunity to reformulate the program to achieve the desired end through means consistent with prevailing constitutional doctrine.
Neither of these conditions obtains today. Congressional Republicans are committed to substantial modification or outright repeal of the Affordable Care Act, and if the Court were to declare all of portions of that Act unconstitutional, there is virtually no chance that it would be enacted in anything like its current form by the present Congress. Moreover, polling data suggest that popular support for the Act is not nearly as strong as it was for programs challenged before the Court in 1937. Court decisions invalidating either the minimum wage or the Social Security Act would have frustrated both the legislative and the popular will. By contrast, polls show the American people favoring repeal or judicial invalidation of all or part of the Affordable Care Act, and the Act as a whole does not enjoy the support of the present Congress. A Court decision striking down the individual mandate therefore would be flouting neither the current congressional will nor present popular preferences. We should bear such important differences in mind when contemplating the extent to which the 1930s provide an illuminating analogy to our present circumstances.
Just collecting stuff for a popular constitutionalism article, if I should ever write it.