Policy creates politics

Policy creates politics. It’s not a new observation, but it is a somewhat counterintuitive one. Normally, we think of the causation as running the other way: Politics is often conceived of as the process of competing for the authority to determine policy. Politics, as we normally think about it, causes policy.

But as political scientist E.E. Schattschneider first observed in the 1930s, the causal arrow runs the other way, too. In his study of tariff legislation, Schattschneider noted that tariffs “stimulate the growth of industries dependent on this legislation for their existence, and these industries form the fighting legions behind the policy”; conversely, they wound other industries, which must either adapt or perish. In both cases, the policy — a tariff — has altered the political power of various actors, which will, in turn, shape the policy-making landscape going forward. “Is this not true, in varying degrees, of nearly all other policies also?” Schattschneider asked. Indeed, in the intervening decades, numerous studies have been devoted to tracing this dynamic in other areas.

So the observation is not new, but it does bear emphasizing, because it has been largely overlooked as both the right and the left contemplate post-Obama politics. From the right, former Sen. Phil Gramm (R-Texas) and Michael Solon penned a Wall Street Journal op-ed headlined, “Cheer Up, Obama’s Legacy Can Be Erased.” From the left, Jonathan Cohn, noting that President Obama “has already accomplished a great deal in his second term,” worried that, “The question is how much of that progress will last beyond 2017, when somebody else is in the White House.” Jamelle Bouie didn’t even regard it as an open question: “[I]f a Democrat isn’t elected this year, much of Obama’s legacy is lost.” Democratic presidential candidate Hillary Clinton has picked up on this concern, warning that the winner of the 2017 election will “decide whether we defend and build on the progress we’ve made under President Obama — or tear it all away.”

Each of those claims presupposes that politics is symmetrical: what one administration can easily do, another can easily undo. In short, they presuppose that the politics has not changed. But they’re wrong.

Consider the Affordable Care Act (ACA). Republicans have, for years, promised to repeal it at the first opportunity. And one could certainly imagine their having that opportunity in 2017: If a Republican were to win the White House, then they would likely retain control of both houses of Congress, as well. Through either reconciliation or filibuster reform, they would have the opportunity to repeal the ACA. So, would they?

Obviously, it’s impossible to say with certainty, but, as an analogue, consider Matt Bevin, the newly installed governor of Kentucky. The Tea Party-backed Republican campaigned on a promise to eliminate the state’s Medicaid expansion. Instead, he quietly announced — in the week between Christmas and New Year’s — that he would not seek to eliminate the expansion, but rather (in some as-yet unspecified way) “transform” it. Indeed, 31 states and the District of Columbia have expanded Medicaid under the ACA. No state has repealed an expansion.

Why not? One obvious answer is that Medicaid expansion creates a large constituency of people — both patients and medical professionals — who are receiving a tangible benefit. Once people enjoy a benefit, they come to value it more highly; taking it away would risk enraging its recipients and their friends and families. In short, taking Medicaid benefits away is much harder than never granting them in the first place. If Medicaid had never been expanded in Kentucky, Bevin could very likely have withstood the political pressure to expand it himself. But Bevin’s predecessor, Democratic Gov. Steve Beshear, changed the politics when he changed policy, and it is now much harder for Bevin to go back to the no-expansion status quo ante.

Of course, Bevin can still “transform” it in certain ways, just as Republicans, were they to control the House, the Senate and the presidency, could transform the ACA in various ways. (This is, presumably, the as-yet-unspecified “replace” prong of “repeal and replace.”) But their degrees of freedom will be much more limited than if the ACA had never been passed: Any changes that significantly reduce the number of beneficiaries or the scope of their benefits will be politically very difficult to enact.

Or consider environmental policy. The 2009 stimulus bill invested roughly $90 billion into renewable energy and other green projects. Some of that investment helped create the economies of scale that began bringing wind and solar power close to cost parity with electricity generated from coal. This, of course, creates a virtuous cycle: as prices fall, more wind turbines and solar panels are ordered, which creates additional economies of scale, which causes the prices to fall further. Additionally, energy efficiency measures — both those mandated by various government agencies and those paid for with stimulus and other funds — have kept total electricity use nearly flat, even as the economy has recovered. At the same time, the fracking boom produced large amounts of relatively inexpensive natural gas.

As a result, coal is rapidly dying as a source of American electricity. And that, in turn, changes climate politics: While coal companies will still lobby against many environmental measures, their diminished economic clout makes them a less imposing adversary. At the same time, there are now large corporations lobbying for the other side. The solar power industry can now claim to employ more people than coal mining in America. The lobbying battle is no longer Big Coal vs. the Sierra Club. It’s now Smaller Coal vs. the Sierra Club and an increasingly powerful renewables industry.

And that partially policy-driven change in politics has begun to feed back into policy. Everything from the Clean Power Plan to American leadership at the Paris Climate Conference to the renewal of tax credits for renewable energy has been facilitated by the changed political dynamics. And those policy changes are unlikely to be undone: A Republican who won the White House might rescind the Clean Power Plan, but doing so would not reopen shuttered coal-fired electricity plants, nor would it increase the cost of renewable energy.

Of course, this doesn’t mean that it doesn’t matter who wins in 2016. Changed politics makes certain policy results easier to achieve and others harder, but it rarely takes policy options off the table entirely. Republican victories in the elections might mean, for instance, substantially less of an emphasis on environmental policy generally. Energy policy might be friendlier toward natural gas and other fossil fuels than toward renewables. And this would, of course, change the politics going forward. In short, who wins in 2016 will determine who sets the policies that, in turn, affect politics long into the 2020s.

But one thing that the 2016 winners cannot do is “erase” Obama’s legacy, as Phil Gramm and Michael Solon promised. Hillary Clinton’s fear that a Republican victory will “tear it all away” is overstated. The policy changes of the last seven years have changed our politics in ways that will continue to ramify, no matter who wins.

Chafetz is professor of law at Cornell Law School, where he writes on legislative procedure, the separation of powers and constitutional history. His first book, “Democracy’s Privileged Few,” was published by Yale University Press in 2007. His second book, “Congress’s Constitution,” will be published by Yale University Press. Follow him on Twitter @joshchafetz.