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Learning from the Past: How Prior Federal Legislative Efforts Can October 2020 Learning from the Past: How Prior Federal Legislative Efforts Can Inform Future Legislative Strategies Implications for National Paid Family and Medical Leave Legislation Kelly Rolfes-Haase & Vicki Shabo Acknowledgments We are grateful to the former administration officials and advocates who were generous in sharing their ideas and insights with us, to Roselyn Miller with New America’s Better Life Lab for reviewing the report, and to Joe Wilkes, Maria Elkin, and Joanne Zalatoris with the New America communications team for their assistance with design and publication. We have made every effort to consider information and analyses 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. We also gathered information from interviews with a small number of individuals who had direct knowledge of the proposals considered within this report. The conclusions drawn throughout 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. newamerica.org/better-life-lab/reports/learning-from-the-past-for-paid-leave/ 2 About the Author(s) Kelly Rolfes-Haase is a research assistant at New America’s Better Life Lab and a PhD candidate in political science at Georgetown University. She holds a B.A. from Rollins College and a joint M.P.P.-M.A. from Georgetown University’s McCourt School of Public Policy and Walsh School of Foreign Service, where she wrote her thesis on the impact of women’s representation in government on social policy outcomes. Her dissertation research is focused on the determinants of the legislative consideration of innovative state-level social policies like paid family and medical leave. Vicki Shabo is Senior Fellow for Paid Leave Policy and Strategy at New America’s Better Life Lab. She has testified before Congress and state legislatures about paid family and medical leave and other workplace policy issues, and has been involved in paid leave policy victories at the federal, state and local levels affecting tens of millions of workers. She has a law degree from the University of North Carolina at Chapel Hill, a M.A. in Political Science from the University of Michigan and a B.A. from Pomona College. About New America We are dedicated to renewing the promise of America by continuing the quest to realize our nation’s highest ideals, honestly confronting the challenges caused by rapid technological and social change, and seizing the opportunities those changes create. About Better Life Lab The Better Life Lab works in solidarity with the movement for work-family justice to transform culture so that people across race, class, ethnicity and gender thrive across the arc of their lives. newamerica.org/better-life-lab/reports/learning-from-the-past-for-paid-leave/ 3 Contents Executive Summary 5 I. Overview 9 1. Paid Family and Medical Leave in the United States 9 2. Legislative Case Studies: Learning from the Past to Design and Advance Legislative National Paid Family and Medical Leave 12 3. Theoretical Underpinnings 19 4. Methodology 22 II. Key Drivers of Legislative Campaigns: Components of Winning Strategies & Core Challenges 24 1. Government Actors 24 2. Individuals and Organizations Outside of Government 45 3.Political and Policy Context 64 4. Contextual Factors and Focusing Events 78 5. Policy Frames 86 III. Case Study Implications: Opportunities and Challenges for National Paid Leave 96 1. Government Actors 96 2. Individuals and Organizations Outside of Government 101 3. Political and Policy Context 107 4. Contextual Factors and Focusing Events 111 Contents Cont'd 114 5. Policy Frames 118 IV. Concluding Thoughts s 120 Works Cited newamerica.org/better-life-lab/reports/learning-from-the-past-for-paid-leave/ 4 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. newamerica.org/better-life-lab/reports/learning-from-the-past-for-paid-leave/ 5 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 newamerica.org/better-life-lab/reports/learning-from-the-past-for-paid-leave/ 6 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.
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