Who said bipartisanship is dead?

(I did, for one. But I spoke too soon)

The sifting out of America's political parties during the last half-century has made it harder for congressional bills to win bipartisan support.  With all the conservatives in the Republican party, and all the liberals in the Democratic party, the ideological overlap that allowed liberal Republicans to vote for Social Security in the 1930s and civil rights reform in the 1960s, and conservative Democrats to vote for welfare reform and immigration reform in the 1980s, no longer exists. The failure of Barack Obama to win a single Republican vote for the Affordable Care Act in 2010 seemed a sign of the death of bipartisanship.

This matters because the absence of bipartisanship enables the opposition party to campaign vigorously against laws they had no role in passing. They can say that the legislation and the programs created represent merely the temporary influence of one party and not the sentiments of the American people. By contrast, laws passed with bipartisan support are more difficult to plausibly attack. 

Some of the worst laws in American history have been passed on strict party lines. The Federalist party of the 1790s rammed through the Alien and Sedition Acts, which egregiously violated the First Amendment. Thomas Jefferson's Republicans returned the favor with the 1807 Embargo Act, cutting off America's commercial nose to spite its political face. Democrat Stephen Douglas took advantage of the demise of the Whig party in the 1850s to pass the Kansas-Nebraska Act, which sparked a small civil war in Kansas that blew up into the larger Civil War. After the 1946 elections returned Republican control of Congress for the first time in more than a decade, the GOP approved the Taft-Hartley Act, reversing signal gains made by organized labor under the New Deal.

Not every law passed on party lines is misguided or doomed to fail. The Affordable Care Act has proved surprisingly resilient. The Republicans have managed to nibble away at it, but they have failed to achieve their long-stated goal of repeal, principally because essential features of Obamacare—especially a ban on the denial of coverage on account of pre-existing conditions—are stubbornly popular.

Which brings us to Joe Biden. The current president had no luck early this year in getting Republicans to support his counter-covid stimulus package. But when he went back to Congress for an infrastructure bill, he managed to persuade 19 Republican senators and 13 Republican members of the House of Representatives to sign on. The White House immediately re-labeled the infrastructure investment bill as the Bipartisan Infrastructure Law, and the president went out of his way to note the Republican support.

No one should expect a return to the 1960s or even the 1980s in terms of the prospects for bipartisanship. The battle lines between the parties are as clear and well defended as ever. And given the hold of the zealots within each party on the primary process, incumbents take their political lives in their hands when they cooperate with a president of the other party.

Even so, the Infrastructure Act suggests areas where at least portions of the parties can come together. One hesitates to say, in this age, that any topic is inherently not partisan. But roads, bridges and power lines are about as close to nonpartisan as things can be.

And an infrastructure bill lends itself to the give-and-take that was long an essential part of the legislative process. The sponsors of a bill would propose special provisions, called earmarks, that would deliver benefits to the congressional districts of those who voted for the bill. A wavering legislator would be promised a new bridge or airport runway. The favor would provide cover when constituents complained about the bill; the lawmaker would have a ready answer to the perennial political question: What have you done for us lately?

About a decade ago both parties took steps toward ending the earmark process. They claimed to be cleaning up the politics of lawmaking. But earmarks were too useful to abandon. And the Biden infrastructure act shows that it still works. The pile of money is big enough– $1.2 trillion–and the projects are dispersed widely enough that nearly every congressional district will get something.

Which is the way politics is supposed to work, more or less. In a democracy, no individuals or groups get everything they want. They have to compromise, cut deals, spread some pork around. The process isn’t pretty, which explains the old adage that one should never ask to see sausage or laws being made. But it works.

Not on every topic. Some issues—immigration, for example—are too valuable to the parties as base-mobilizers to yield to the log-rolling process. And some—abortion—are rooted in moral positions that are largely beyond compromise.

Yet such issues are relatively few. For the rest, a bit of old-fashioned cloakroom dealing might be just the ticket for greasing the gears of politics. Hands get dirty, but the business of politics gets done.