JDI IN THE NEWS - 2005

Kal Raustiala, The New Bipartisanship, The New Republic Online, July 7, 2005.

It is commonplace to claim that bipartisanship is dead--or at least dying. Last week, on The New York Times op-ed page, Norm Ornstein argued that political polarization is at a 50-year high in Congress. Ornstein showed that only 8 percent of the House can be considered centrist today, compared to 33 percent in 1955.

In light of Ornstein's findings, the first meeting of the National Prison Rape Elimination Commission, which took place in Washington last month, is puzzling--and noteworthy. Senators from both sides of the aisle spoke, and the commission heard testimony from activists, Justice Department officials, and rape survivors. The panel was created by the Prison Rape Elimination Act of 2003, which sailed through Congress two years ago with unanimous bipartisan support and was later signed by President Bush.

How, at a time when bipartisanship is said to be dead, did a bill addressing American prisons--a topic not lacking in ideological overtones--pass unanimously? The answer illustrates an important fact about bipartisanship in polarized times. The absence of centrists in Congress certainly fosters conflict rather than cooperation on many, probably most, issues. But there are also issues where the most liberal Democrats and the most conservative Republicans can find common ground. To be sure, that politics makes strange bedfellows is not news. What is news is that the rising power of the religious right is leading to some unexpected victories for progressive causes. Deep political polarization makes traditional centrist bipartisanship treacherous. But, paradoxically, it can also produce unexpected cooperation between the core of the right and the core of the left. In other words, bipartisanship isn't dead; it has simply abandoned the political center for issues where it was once nowhere to be seen.

The Prison Rape Elimination Act (PREA) is a good example of this phenomenon. Sexual assault, sometimes by guards but more often by other prisoners, is a fact of life behind bars. Research shows that nearly 1 in 10 male inmates has been raped, gay men disproportionately. The problem of prisoner rape is not new, but the issue had no traction for decades. Starting about five years ago, however, prisoner rape began to get attention.

In 2001, Human Rights Watch released a report on rape behind bars that was prominently featured on the front page of The New York Times. At the same time, the survivor-founded group Stop Prisoner Rape initiated a campaign that forced 7UP to pull a television commercial making light of the issue. Many conservative groups signed on to the campaign, including the evangelical Prison Fellowship Ministries, led by Watergate-era figure Chuck Colson. The media attention to both events dovetailed with ongoing work on the issue at the conservative Hudson Institute and coverage in publications such as Christianity Today.

Conservative religious groups, many of which minister in prisons, witnessed the problem firsthand. More traditional conservatives recognized a law-and-order problem they could attack. And the fact that much of the sex in question was male-on-male surely added to the right's indignation. For the left, prison conditions have long been a concern--and a losing cause. But once Christian conservatives joined forces with groups like Amnesty International, the topic went from a political loser to a political winner. On conservative talk radio, advocates still faced hostile questions. But on Capitol Hill, few wanted to come out against a campaign that had garnered support from both the NAACP and Focus on the Family. Ted Kennedy and Rick Santorum suddenly were on the same team.

The PREA is an important story, one in which an appalling problem is finally addressed by Congress. But it is also part of a trend. In recent months, for example, the unusual convergence of the religious right and environmentalists has received increasing attention. "Creation care" is the new phrase du jour for environmentally minded Christians who think there is a scriptural duty to protect the Earth and all its inhabitants. Christian conservatives have also aligned with the left to campaign against the international sex trafficking trade. Conservatives are increasingly in line with liberals on the need to aggressively challenge and prevent religious and racial persecution in places like Darfur. And perhaps most significantly, national security hawks and climate change advocates are suddenly on the same page with regard to fossil fuel consumption--since, in addition to creating greenhouse gases, American consumption of oil also enriches Saudi Arabia, birthplace of fifteen of the 9/11 hijackers.

It's easy to argue there is nothing new in these coalitions. Prohibition is frequently said to have had two chief political supporters: Baptists who hated demon drink and bootleggers who smuggled it to everyone else. Whether or not that particular story is apocryphal, alliances of convenience--that is, "Baptist-bootlegger" coalitions--are hardly unusual in American politics. But the prison sexual assault issue pushes beyond these traditional kinds of arrangements. Rather than linking advocates of conscience (Baptists) to those seeking private gain (bootleggers), it connects advocates of conscience from opposite ends of the political spectrum. And in doing so, it reaches much further across the aisle than bipartisan efforts generally have.

This unusual brand of bipartisanship stems as much from the creation of gerrymandered electoral districts as it does from the rising power of the religious right. Congress lacks a center because the public, divided into ever-more homogenous and safe districts, no longer elects centrists.

The implications of this shift for congressional politics are significant. Our constitutional structure has a status quo bias that forces compromise if new initiatives are to move forward. Bipartisanship used to be more or less synonymous with the political center, where those compromises were forged. But the alliances that have formed around prison rape, the environment, and Darfur suggest that today it is less the center than the poles that are most likely to be areas of common cause. When Christian conservatives such as Chuck Colson can partner with Amnesty International to push through a bill, bipartisanship is not so much dead as transformed. In a sense, this is unsurprising: The center, as Ornstein tells us, has withered away. Bipartisanship has nowhere to go but out. This may make strange-bedfellow arrangements hard. But it can also make very-strange-bedfellow arrangements surprisingly easy.

Kal Raustiala is a professor of law at UCLA.