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Women and Elective OfficePast, Present, and Future$

Sue Thomas and Clyde Wilcox

Print publication date: 2014

Print ISBN-13: 9780199328734

Published to Oxford Scholarship Online: April 2014

DOI: 10.1093/acprof:oso/9780199328734.001.0001

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Representing Women’s Interests in a Polarized Congress

Representing Women’s Interests in a Polarized Congress

Chapter:
(p.162) 10 Representing Women’s Interests in a Polarized Congress
Source:
Women and Elective Office
Author(s):

Michele L. Swers

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199328734.003.0010

Abstract and Keywords

What does it mean to represent women’s interests in a polarized era? This chapter explores how gender affects the policy activities of legislators in a polarized Congress. In the chapter a theory is developed of how the politics of women’s rights in a sharply partisan era shapes the policy priorities and political opportunities for women in the Democratic and Republican parties. This theory is illustrated with case studies of the confrontation over President George W. Bush’s lower court judicial nominees and the fight for the Lilly Ledbetter Fair Pay Act, the equal pay legislation that became the first piece of legislation signed by President Barack Obama. The chapter concludes by demonstrating how the “war on women” frame in the 2012 elections reflects the new politics of women’s rights and by exploring the future dynamics of gender politics within the Republican and Democratic congressional parties.

Keywords:   Senate, Polarization, Judicial nominations, Lilly Ledbetter, War on women

The 113th Congress elected in the 2012 election cycle is the most diverse Congress in history. A record 20 women will serve among the 100 senators. For the first time, white men will be a minority of the House Democratic Caucus with women and racial minorities constituting the majority of the Democratic House members (Helderman 2013). Nancy Pelosi (D-CA), the first female Speaker of the House (2007–2010) and current Minority Leader, has helped lead the Democratic caucus since her election as minority whip in 2001 (Peters and Rosenthal 2010). While the contemporary Congress is more diverse than in the past, it is also highly partisan and polarized. Tracking the ideological views of members of Congress since the founding, Poole and Rosenthal (2007) note that the contemporary Congress is the most ideologically polarized since Reconstruction.

In this chapter, I explore how gender affects the policy activities of legislators in a polarized Congress. The chapter first reviews the literature on the impact of gender on the policymaking behavior of members of Congress and state legislatures. I then develop a theory of how the politics of women’s rights in a polarized era shapes the policy priorities and political opportunities for women in the Democratic and Republican parties. I illustrate this theory with case studies of the confrontation over President George W. Bush’s lower-court judicial nominees and the fight for the Lilly Ledbetter Fair Pay Act, the equal pay legislation that became the first piece of legislation signed by President Barack Obama. Finally, I conclude by demonstrating how the “war on women” frame in the 2012 elections reflects the new politics of women’s rights, and I explore the future dynamics of gender politics within the Republican and Democratic congressional parties.

(p.163) Understanding the Policy Impact of Electing Women to Congress

Research on the policy effects of electing more women to Congress and state legislatures demonstrates that gender affects policy priorities and the nature of deliberation on issues. Gender has the greatest impact on policy activity on women’s issues, variously defined. These issues generally incorporate feminist policies expanding women’s rights in the public sphere such as reproductive rights and equal pay and social welfare policies that reflect women’s traditional role as caregivers such as health care and education. Gender differences are most prominent in the agenda-setting phase where problems are defined and policy alternatives are proposed—as illuminated by Osborn and Kreitzer in Chapter 11. Studies of bill sponsorship and cosponsorship activity and surveys of legislators’ policy priorities demonstrate that female legislators are more likely to promote social welfare and feminist initiatives (Bratton and Haynie 1999; Dodson 2006; Gerrity, Osborn, and Mendez 2007; MacDonald and O’Brien 2011; Osborn 2012; Reingold 2000; Swers 2002, 2013; Thomas 1994). Gender differences are particularly pronounced on the women’s rights policies that can be directly connected to consequences for women as a group such as women’s health and workplace equity.

These differences hold when other important influences on legislative activity are accounted for such as party affiliation, committee position, and constituency characteristics. For example, comparing House members who served the same districts over time Gerrity, Osborn, and Mendez (2007) and MacDonald and O’Brien (2011) found that the female representatives sponsored significantly more legislation on women’s issues than the male legislators who served the same constituents. In comprehensive studies of legislative activity on women’s issues from bill sponsorship to committee consideration and floor debate in both the House and Senate, Swers (2002, 2013) found that women are more aggressive advocates for legislation related to women, children, and families than are their male colleagues of the same party (Democratic men compared with Democratic women and Republican men compared with Republican women).

These gender differences persist even after accounting for constituency characteristics and important institutional factors such as committee position and freshman status. Some scholars suggest that women are broadly more prolific legislators than their male colleagues. For example, Anzia and Berry (2011) assert that because of the difficulty women face in getting elected to Congress the women who get elected are on average higher quality candidates than their male colleagues. As a result, they find that women as a group are more active legislators sponsoring and cosponsoring more bills and bringing home more federal money to their districts than their male counterparts.

(p.164) The elevation of more women to legislative office also affects the nature of deliberation on issues because women are more likely to bring a distinctive perspective as women or mothers to deliberation over policy proposals. Explaining the importance of her election and expanded diversity in Congress, newly elected Wisconsin Senator Tammy Baldwin remarked, “When you’re not in the room the conversation is about you. If you’re in the room, the conversation is with you” (Cirilli 2012). Research demonstrates that women are more likely to advocate for women’s interests in committee, to speak about women’s issues on the floor, and to invoke their authority as women and mothers in committee and floor debate (Berkman and O’Connor 1993; Cramer Walsh 2002; Dodson 2006; Levy, Tien, and Aved 2002; Norton 2002; Osborn and Mendez 2010; Pearson and Dancey 2011a, 2011b; Rosenthal 1998; Shogan 2001; Swers 2002, 2013). Female legislators are more likely to view women as a distinct element of their constituency and to feel a responsibility to represent the interests of women as a group (Carroll 2002; Dodson 2006; Reingold 2000; Rosenthal 1998; Thomas 1992). There is also evidence that the inclusion of women changes the behavior of men. Examining the evolution of discourse in congressional debates over abortion, Levy, Tien, and Aved (2002) found that the way female legislators talk about abortion has influenced the substance and style of their male colleagues’ floor speeches.

Looking at case studies of specific policy areas, Dodson (2006) found that female House members played pivotal roles in placing issues like domestic violence and women’s health on the congressional agenda. Women lobbied their male colleagues to prioritize the Violence Against Women Act and a comprehensive women’s health research bill that created an Office of Women’s Health, and they helped persuade colleagues to move these bills through committee and onto the floor (see also Swers 2002). Studies of welfare reform indicate that Democratic and Republican women were instrumental in getting enhanced child support enforcement and greater childcare subsidies included in the final bill (Dodson 2006; Johnson, Duerst-Lahti, and Norton 2007; Norton 2002; Swers 2002). Moreover, women of color were uniformly opposed to the bill and joined together to offer alternative legislation and to denounce the bill on the floor as promoting racial stereotypes of welfare queens and as punitive toward women of color (Hawkesworth 2003; Johnson, Duerst-Lahti, and Norton 2007).

Moving beyond women’s issues, in a study of the Senate Swers (2007, 2008, 2013) found that women bring a distinctive perspective to policy deliberations on defense policy. Female senators were more likely than their male counterparts to pursue policies that expand social welfare benefits for active duty troops and veterans. Women were more likely to engage policy debates related to the role of women in combat and other policies that uniquely affect women in the military such as sexual harassment and access to women’s health services, particularly abortion. Similarly, looking at judicial nominations, Swers (2013) found that women were more likely than male senators to focus on issues of women’s rights in their deliberations over judicial nominees (see also Swers and Kim 2013).

(p.165) Examining the Influence of Gender in a Partisan and Polarized Era

While the influence of gender on legislative behavior is well documented, partisanship and ideological polarization are dominant features of the contemporary Congress and state legislatures. How do gender preferences affect legislators’ policy decisions in an era of extreme partisanship? In Chapter 11, Osborn and Kreitzer note that Republican and Democratic women legislators have different definitions of women’s interests, which leads them to advocate markedly different policies regarding women’s issues. In a study of two state legislatures, Reingold (2000) found that partisanship generally trumped gender as a predictor of legislators’ priorities. Swers (2002) demonstrates the importance of majority–minority party status as a determinant of which policies a member chooses to advocate. Thus, she found that both Republican and Democratic women responded to their elevation to majority party status (Democrats in the 103rd Congress, 1993–1994; and Republicans in the 104th Congress, 1995–1996) by increasing their activism on social welfare issues. However, when Republican women achieved majority status in the 104th Congress, they reduced their advocacy of feminist issues like abortion because these issues would conflict with the Republican agenda and could alienate the party base and colleagues, harming their chance to achieve success on other priorities.

Beyond these institutional dynamics, it is clear that much of the gender differences in policy advocacy stems from activity of Democratic and moderate Republican women. However, since the 104th Congress (1995–1996), the parties have become increasingly homogeneous and polarized from each other with fewer moderates in their ranks (McCarty, Poole, and Rosenthal 2006; Poole and Rosenthal 2007). Like their male colleagues, Democratic women in the House and Senate have become more liberal over time, while polarization among Republican women has lagged that among Republican men. However, with the election of more Republican women from the South and West, the ideological positions of Republican men and women in the House converged by the 108th and 109th Congresses from 2003 to 2006 (Elder 2008; Frederick 2009, 2010). Yet in the Senate Republican women remain more moderate than their male counterparts (Frederick 2010, 2011; Swers 2013). However, two recently elected female Republican senators, Kelly Ayotte (R-NH) and Deb Fischer (R-NE), received the coveted endorsement of conservative and Tea Party icon Sarah Palin to demonstrate their conservative bona fides in contested Republican primaries (Landrigan 2010; Walton 2012).

Because the number of Republican women in Congress remains small—four in the Senate and twenty in the House for the current 113th Congress (Center for the American Woman and Politics 2013)—it is difficult to systematically analyze the policy priorities of Republican women to determine if they will advocate women’s issues from a conservative and antifeminist perspective or if they will ignore these issues in favor of other policy concerns such as lowering tax rates and reducing (p.166) federal regulations. However, disentangling gender differences in the policy beliefs and activities of conservative Republicans is an area ripe for future research.

Focusing on the effects of polarization on women’s legislative behavior, Volden, Wiseman, and Wittmer (2013) find that in a polarized Congress women’s more consensual leadership style allows them to forge greater success when they are in the minority party but harms their effectiveness as majority party legislators. Analyzing bill sponsorship activity from 1973 to 2008, the authors find that when women are in the minority they are able to keep their bills alive through later stages of the policy process. However, as a result of their more consensual style, majority party women have become less effective as Congress has become more polarized. These women are introducing more legislation, but their bills are less likely to see action than the bills of their majority party male counterparts.

Polarization and the Politics of Women’s Rights

A distinct feature of polarization is that homogeneity of issue preferences increases within the parties and the parties become increasingly distant from each other in their policy beliefs. I maintain that over time issues of women’s rights have become a key element of distinction and polarization for the electoral coalitions of the Democratic and Republican parties. Social conservatives are pivotal to the base of the Republican Party, while feminist organizations are a central component of the Democratic base. As a result, it is increasingly rare to find pro-life Democratic members of Congress and pro-choice Republicans. The realignment of the parties on the abortion issue and other questions of women’s rights and family values means that the reputations of the parties on women’s issues have become more distinct in the minds of the voting public (Adams 1997; Sanbonmatsu 2002; Wolbrecht 2000).

At the same time, in this period of tight electoral competition when each election has the possibility to elevate a new majority party in the House and Senate, Republicans and Democrats view the mobilization of particular subgroups of women as key to electoral victory. Over the last several election cycles, Democrats wanted to increase turnout among single women, minority women, and college-educated women. Republicans targeted white, suburban mothers, a group that has been characterized as soccer moms, security moms, and Wal-Mart moms (Brownstein 2012a; Dolan, Deckman, and Swers 2011; Seelye 2012). When reaching out to voters, parties try to emphasize issues that are “owned by the party” (Petrocik 1996; Pope and Woon 2009; Sellers 2010). Thus, Republicans are viewed as more capable stewards of tax policy and national security, while Democrats are favored to handle social welfare issues like health care and education that are associated with the gender gap in public opinion. Indeed, Winter (2010) notes that voters increasingly perceive Democrats as the “feminine party” and Republicans as the “masculine party.”

(p.167) A Theory of the Influence of Gender on Women’s Rights Policy in a Polarized Congress

I argue that the dynamics of increased party polarization on women’s rights issues and electoral competition for various subgroups of the women’s vote have changed the politics of women’s rights within Congress. For Democratic women, engagement of women’s rights issues is almost universally positive. Democratic women can achieve action on policies that are important to them while appealing to important elements of the Democratic base that mobilize donors and voters. Advocacy for these issues in the media increases their own public profile and enhances the reputation of the party on a set of issues that the public associates with Democrats.

By contrast, for Republican women, activism on women’s rights presents both benefits and pitfalls. For the dwindling ranks of moderate Republican women, activism on women’s rights enhances their reputation for independence and solidifies their individual electoral coalitions. However, taking a public stand on women’s rights issues such as equal pay and public funding for Planned Parenthood can alienate the Republican colleagues these women need to support their initiatives on other issues and helps the Democratic opposition by allowing them to claim proposals are bipartisan. Moreover, since the position of moderate Republican women on women’s rights issues is in opposition to core elements of the Republican base, these women risk inviting a primary challenge in the next election.

For conservative women engagement of women’s rights debates can provide opportunities for advancement in the caucus. Republican leaders seek out like-minded conservative women to push back against the Democratic narrative of a Republican war on women and to diversify the public face of the party. Taking on this role for the party allows conservative women to curry favor with the caucus and leadership while raising their public profile. However, women’s rights issues are not core issues for the Republican Party. Therefore, engagement of women’s rights can divert scarce resources of time and staff from conservative women’s efforts to distinguish themselves on other more prominent Republican priorities such as advocating tax cuts and reigning in government spending. Moreover, conservative women are subject to heightened media scrutiny as women acting against the interest of women.

Finally, I maintain that the level of influence female members of Congress wield over party policy and strategy on women’s rights is affected by their numerical presence within the party caucus. In her work on group dynamics in corporations, Kanter (1977) found that in male-dominated organizations, where women comprise less than 15 percent of the group, the “token women” feel pressure to conform and downplay gender differences. However, as women increase their numbers in an organization, they will feel more able to express distinctive views. Applying this theory to legislatures has yielded mixed results. Some scholars find greater activism on women’s issues as women increase their presence in state legislatures and (p.168) Congress (MacDonald and O’Brien 2011; Saint-Germain 1989; Thomas 1994). However, other scholars note that business organizations are different from the political arena where legislators seek to define a policy niche and attract the media spotlight. In politics, women may be more inclined to work on women’s issues when there are fewer women in the chamber (Bratton 2005; Crowley 2004). Moreover, as women increase their numbers, their presence will affect the behavior of men minimizing differences between the two groups (Bratton 2005). Finally, other scholars criticize such theories for focusing on numbers and not accounting for other factors that determine influence such as holding a party or committee leadership post that yields institutional power (Childs and Krook 2006; Dahlerup 2006; Grey 2006).

I argue that the fact that women make up a larger proportion of the Democratic than the Republican caucuses in the House and Senate combines with a Democratic Party culture that emphasizes diversity to allow women to help shape the dimensions of women’s rights policy and to influence party messaging strategies on these issues. Indeed, women constituted a key part of the coalition that elevated Nancy Pelosi (D-CA) to leadership when she first ran for minority whip in 2001 (Peters and Rosenthal 2010). By contrast, the continued small numbers of women in the Republican House and Senate caucus, their diverse ideological views in the Senate, and a Republican Party culture that is less responsive to demands for increased diversity limit the ability of Republican women to leverage their numbers to gain influence over development of women’s rights policy or drive party strategy. (For more on Republican leadership see Rosenthal 2008; Swers and Larson 2005).

I illustrate the new dynamics of women’s rights policy in a polarized era with case studies of women’s rights debates including the fight over confirmation of controversial lower-court judicial nominees during the George W. Bush Administration and the struggle to enact the Lilly Ledbetter Fair Pay Act during the Bush and Obama presidencies. The case studies are developed from analysis of media coverage of these debates, examination of the Congressional Record of floor debate, and interviews with Senate staffers and interest group leaders that were conducted between 2004 and 2011 as part of a larger project on gender and policymaking in the Senate (Swers 2013).1 I then discuss the future role of Democratic and Republican women in shaping the politics of women’s rights by illustrating the parts congressional women played in the war on women dynamic that shaped the 2012 election and beyond.

Judicial Nominations and the Politics of Women’s Rights

The lower federal courts play a pivotal role in determining the scope of women’s rights in areas ranging from abortion to employment discrimination. Moreover, the parties compete to diversify the bench by appointing more women and minorities to the U.S. Circuit Courts of Appeals and the District Courts. President George (p.169) W. Bush made the appointment of more conservative jurists a key focus of his agenda escalating the partisan conflict over nominations. In response, Democrats took the unprecedented step of filibustering 10 appellate nominees. Reacting to Democratic obstruction, Republicans sought to deploy the “nuclear option,” a plan to eliminate filibusters on judicial nominees. The crisis was averted when the Gang of 14—seven Democrats and seven Republicans—forged an agreement to preserve the filibuster while advancing some of Bush’s most controversial appellate nominees (Binder and Maltzman 2009; Goldman, Schiavoni, and Slotnick 2009; Scherer 2005; Steigerwalt 2010).

Women’s rights became a central feature of the confirmation wars because several of Bush’s most contentious nominees had controversial records on issues from abortion to employment discrimination. For example, 5th circuit nominee Priscilla Owen, who served on the State Supreme Court of Texas, was criticized for several rulings on parental notification and access to abortion. William Pryor, 11th circuit nominee, declared in his confirmation hearing that Roe v. Wade is “unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children” (Kaplan 2003).

In addition to the substance of women’s rights, the level of diversity on the courts became a focus of the conflict when Democrats filibustered some of the president’s minority and female nominees. Indeed, among the 10 appellate nominees filibustered by Democrats during the 108th Congress (2002–2003), four were women or minorities: one Hispanic male, Miguel Estrada (D.C. Circuit); Janice Rogers Brown (D.C. Circuit); an African American woman; and two white women, Priscilla Owen (5th Circuit) and Carolyn Kuhl (9th Circuit). Since the Jimmy Carter years, the parties have sought to expand the representation of women and minorities on the federal bench. Each party wants to take credit for appointing the first member of a minority group to a specific federal court or to have appointed more women and minorities than the previous president (Goldman 1997; Scherer 2005). Research on the impact of race and gender on nomination politics confirms that the parties raise the public stakes over female and minority nominees to characterize the opposition party as unfairly blocking qualified women and minorities (Bell 2002; Solowiej et al. 2005).

In their quest to move the courts in a more conservative direction and expedite the confirmation of Bush’s judicial nominees, Republicans elevated the public battle over his female and minority nominees. Republicans held the most cloture votes (a parliamentary procedure for ending a debate and taking a vote) on the D.C. Circuit nomination of Miguel Estrada, a Hispanic nominee who was viewed as a possible future U.S. Supreme Court pick. They also held multiple cloture votes on Texas State Supreme Court judge Priscilla Owen (5th circuit). To highlight the unprecedented obstruction of Democrats’ decision to filibuster 10 lower-court nominees, Republicans staged a 40-hour marathon debate over the use of the filibuster dubbed “Justice for Judges.” They scheduled cloture votes on three female nominees—Owen, (p.170) Brown, and Kuhl—as the catalyst for the all-night debate (Binder and Maltzman 2009; Goldman et al. 2009; Steigerwalt 2010). A Republican leadership staffer who helped organize the event confirmed that the Republicans deliberately chose these women as “sympathetic figures who would embarrass the Democrats as unfair bullies in the public eye.” To further elevate the unjust treatment of these women, Bush staged a Rose Lawn press conference with these three female victims of the Democratic filibuster strategy. Finally, when Republicans prepared to stage their final showdown, they chose to schedule a fifth cloture vote on Owen’s nomination, as the vehicle for eliminating filibusters on judicial nominations. Owen, Brown, and Pryor were among the first nominees cleared for a vote when the Gang of 14 forged a deal on the use of the filibuster (ibid.).

Examining the involvement of women in the confirmation wars, Republican women played a very limited role in the party’s efforts to paint Democrats as unfairly obstructing the confirmation of qualified women and minority nominees. Generally, party leaders and Judiciary Committee members are most engaged in confirmation politics. To date, there has never been a Republican woman on the Judiciary Committee. However, Republicans leadership and Judiciary Committee staffers reported that they wanted Republican women to take a more prominent role in the public fight over judicial nominees, and the Republican women were reluctant to engage the issue. Thus, one Republican staffer complained, “The Republican women in the Senate were MIA when it came to trying to push judges; Elizabeth Dole only went to one event. They tried to have a woman’s event about opposing Kuhl, Brown, and Owen, and they had to bring women over from the House. The Republican women House members walked to the Senate steps for a press conference.”

In sum, conservative women did not want to expend their political capital defending Bush’s judicial nominees, preferring to focus their efforts on other issues. The moderate women were uncomfortable with the nominees’ stances on women’s rights and tried to avoid engaging the issue altogether. When the moderate women did object, it was behind the scenes, registering their reservations with party leaders as the leaders sought to build support for bringing individual nominees up for a vote. Thus, a Republican staffer explained that the leadership and committee staff would call meetings to respond to senators who had concerns about specific nominees and that the women spent more time studying some of the nominees with issues related to their record on women’s rights before they would agree to schedule a vote. Once the votes were scheduled, the senators almost always supported the president’s nominees. Thus, only moderate Lincoln Chafee (R-RI) voted against Owen; Chaffe, Susan Collins (R-ME), and Olympia Snowe (R-ME) opposed nominee Pryor, who was a strident opponent of Roe v. Wade.

While Republican women played a very limited role in the battle over Bush’s judicial nominees, Democratic women were heavily engaged in the development of Democratic strategy over which nominees to filibuster, and they participated (p.171) actively in the public battle to define the issue. Dianne Feinstein (D-CA) and Maria Cantwell (D-WA) both served on the Judiciary Committee during the showdown over the use of the filibuster. Staff reported that women outside the committee, particularly Barbara Boxer (D-CA), Debbie Stabenow (D-MI), and Hillary Rodham Clinton (D-NY), were active participants in the effort to build a public case against the nominees.

According to Democratic leadership and Judiciary Committee staff, for a nominee to be filibustered, the members of the Judiciary Committee needed to unanimously support a filibuster. The committee members would then bring the case to the full Democratic caucus. Supporting a filibuster was a hard choice for the caucus because members feared being portrayed as overly obstructionist. Moreover, conservative interest groups were running ads pressuring senators to stop obstructing the president’s nominees, an attack that particularly worried Democratic senators from red states.

In this contentious atmosphere, staff reported that Democratic women played a key role in convincing the caucus to support filibusters against some of the female nominees. While the hurdles were high for initiating a filibuster on a judicial nominee, the decision to filibuster a female or minority nominee required even more discussion within the caucus. As one Democratic leadership staffer explained, “The senators would take their lead from the [Judiciary] Committee Democrats. While it was not a formal requirement, all the Democrats on the committee had to oppose a nominee for a filibuster to be considered. The standard would get higher for decisions to filibuster women and minorities. Other caucus members will listen to the women more and take their cues from them when they are deciding to filibuster a woman or minority, the women have a special role.” For example, in Owen’s case, a Democratic staffer maintained, “Democrats were scared to oppose Owen because she is a woman and they had already been accused of being anti-immigrant and anti-Catholic. The Democrats were scared of their own shadow at the time. Cantwell wanted to see if she could get the women to lead the charge to get the Democrats to support a filibuster of Owen. They needed someone to drive the process and get buy in. The Democratic women sent a letter to Daschle opposing her [Owen] because of her position on a range of issues like parental notification, worker’s rights, and the environment. Owen had something for everyone so they did not need to focus on choice to oppose her. She was not going to be filibustered without the women stepping forward because the Democratic men did not want to be perceived as anti-women.”

In addition to building support for filibustering specific female nominees, Democratic women were also active participants in party messaging efforts to shape public opinion on the issue. Female senators attended press conferences regarding specific nominees, and they were active participants in the floor debate to eliminate filibusters and in floor debates regarding specific nominees, particularly the female nominees. For example, when the Senate debated Brown’s nomination, Democrats (p.172) called on Boxer, Feinstein, Clinton, and Mary Landrieu (D-LA) and on two minority senators, Ken Salazar (D-CO) and Barack Obama (D-IL), to help counter the Republican picture of a sharecropper’s daughter who worked her way up from humble circumstances to become a justice on the California Supreme Court (see Congressional Record June 6, 2005 S6075-S6094; June 7, 2005 S6129-S6146; June 8, 2004 S6176-S6207).

In sum, the showdown over Bush’s judicial nominees focused public attention on jurisprudence on women’s rights and expansion of diversity on the federal bench. In the effort to move nominees forward and define the debate in the public eye, Republican women played a limited role generally choosing to prioritize other issues. Individual conservative women would occasionally defend the party’s position and specific nominees; however, the party leadership staff expressed disappointment that the Republican women were not more engaged. Moderate Republican women tried to avoid the debate, expressing reservations about specific nominees behind the scenes and largely voting with the party and supporting the president’s nominees. By contrast, Democratic women were heavily engaged in both planning strategy over which nominees to filibuster and delivering the party message that the filibustered nominees were too extreme, particularly on issues of women’s rights.

Lilly Ledbetter, Equal Pay, and Electoral Advantage

The two-year fight over the equal pay bill, the Lilly Ledbetter Fair Pay Act, which extends the statute of limitations for filing an equal pay lawsuit regarding pay discrimination, similarly illustrates the increasingly partisan and polarized dynamic driving the politics of women’s rights. For Democratic women, the debate allowed them to pursue policy changes they supported, raise their media profile, and burnish the party’s image as a champion of women’s rights. For Republican women, the legislation created a host of dilemmas. Support for the bill risked angering the business community, a core Republican constituency. Spearheading the opposition would help the party push back against the Democratic frame that Republicans are anti-woman and support discrimination but would also subject them to criticism and heightened media scrutiny as women acting against the interest of women.

Lilly Ledbetter spent 19 years working for the Goodyear Tire and Rubber Co. in Alabama. Just before she retired, she received an anonymous note showing that, as the lone female supervisor, she was being paid substantially less than her lowest paid male counterpart. Ledbetter sued, and the case went all the way to the Supreme Court. In their 2007 decision, the justices agreed that Ledbetter was a victim of gender discrimination. However, the majority maintained that Ledbetter could not sue because she had not filed the claim within the 180-day time frame required by (p.173) Title VII of the Civil Rights Act, regardless of whether she knew about the discrimination. Outraged by the court’s decision, Justice Ruth Bader Ginsberg, then the lone woman on the court, called on Congress to correct the court’s mistake (Barnes 2007a, 2007b).

Ledbetter put a human face on a cause Democrats, particularly Democratic women and their allies in the feminist community, had been pushing for years. The Democratic House majority under Pelosi’s leadership quickly passed the Lilly Ledbetter Fair Pay Act in July 2007, and in July 2008 the House passed the Paycheck Fairness Act, a bill that still has not been enacted. The legislation would make it easier for women to file discrimination claims by among other things putting the burden on employers to demonstrate that pay gaps between men and women are caused by reasons other than gender. Once Obama won the presidency, the House paired the two bills and passed them both in January 2009 (DeLauro 2008, Pear 2009). In the Senate, Democrats first brought the bill to the floor on Equal Pay Day, April 22, 2008, a day that marks on average how far into the next year a woman has to work for her salary to catch up to what a man earned in the previous year (Montgomery 2008a). Despite the symbolism of the day, Democrats failed to get enough votes to invoke cloture. In 2009, with Democrats controlling the House and Senate, the bill quickly passed the Senate and was the first law Obama signed (Stolberg 2009).

Democratic women were instrumental in pushing the bill through the legislative process and keeping the public spotlight on the issue. As one male Democratic senator explained, “The party believes in it [the Lilly Ledbetter Fair Pay Act]. With no women in the caucus we would have taken up the issue but the women were more aggressive on it. They were more outraged by the Ledbetter decision and more aggressive in pushing hard for something to get done on it. It is natural for Boxer and Stabenow to care about discrimination and unfairness; they were probably treated that way themselves over the years.” Thus, the personal connection the Democratic female senators felt with the issue of employment discrimination made them prioritize the legislation and devote the time and political capital necessary to move it from a political issue to legislative action.

In the Senate, during the first debate on the bill in 2008, Barbara Mikulski (D-MD), who is widely regarded as the dean of the Democratic women, organized Democratic women to wear red on Equal Pay Day and speak on the floor in favor of the bill. When the bill passed into law in 2009, Mikulski was the lead sponsor. She shepherded the bill to passage by helping to negotiate the amendments that would be considered, leading press conferences to get out the Democratic message, and serving as the bill manager during floor debate where she argued passionately for passage and rebutted Republican amendments to weaken the bill. While Mikulski was the most active Senate proponent, across the two Congresses 11 of the 13 Democratic women serving in either or both the 110th and 111th Congresses spoke during one of the floor debates held on the legislation.2

(p.174) Similarly, in the House women were aggressive advocates for both the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. When the bills were first considered in the 110th Congress (2007–2008), Democratic women comprised 22 percent of the Democratic caucus. These women constituted 36 percent of the speakers in favor of the Lilly Ledbetter Fair Pay Act and 52 percent of the speakers in favor of the Paycheck Fairness Act. When the bills passed the House in the 111th Congress (2009–2010), women remained 22 percent of the Democratic caucus. Forty-eight percent of the Democratic speakers advocating the Paycheck Fairness Act and 45 percent of the Democratic members promoting the Lilly Ledbetter Fair Pay Act were women.3 Clearly, relative to their numbers in the caucus, Democratic women played an outsized role in pressing for equal play legislation.

In addition to their personal commitment, through advocacy of equal pay legislation, Democratic women reinforced the Democratic Party’s reputation with voters in a presidential election year as the party committed to advancing women’s rights. The issue galvanized the Democratic base including women’s groups, civil rights organizations, and labor unions. Democrats also used the issue to attract swing voters, particularly independent women (Barnes 2007b; Kellman 2008). Thus, Senate Democrats originally brought the bill to the floor on Equal Pay Day in April 2008 to sharpen the contrast between their leading presidential candidates, Clinton and Obama, and the likely Republican nominee, John McCain (R-AZ) (Hulse 2008; Kellman 2008; Montgomery 2008b).

To keep the focus on women’s rights after the Senate failed to invoke cloture, Democratic women kept the issue alive for the elections by organizing press conferences, writing editorials, and promoting the issue on television news shows. They even held a joint rally with the Democratic women of the House and Senate that included Ledbetter, Pelosi, and Clinton (U.S. Senate Democratic Steering and Outreach Committee 2008).

Similarly, in the 2012 presidential election, Democrats again focused on the issue of equal pay to help Obama and Democratic congressional candidates attract women voters. Senate Democrats brought the Paycheck Fairness Act to the floor to try to force Republican presidential candidate Mitt Romney (R-MA) to take a stand against equal pay and to help Democratic Senate candidates in tough races. Thus, Elizabeth Warren, the Democratic Senate candidate in Massachusetts (now senator) used the vote to demonstrate that Republican senator Scott Brown was not a moderate and did not fully support women’s rights (Kim 2012; Sargent 2012). After Republicans defeated the cloture vote, the Democratic women of the House and Senate held a joint press conference denouncing Republicans for hurting women in tough economic times (Kim 2012).

In contrast to the Democratic women, who reap both policy and political benefits from championing equal pay laws, Republican women face multiple dilemmas as they consider how to vote and how deeply to engage the issue. The Lilly Ledbetter bill and other equal pay legislation are strongly opposed by the business (p.175) community because they fear that these initiatives will lead to more frivolous lawsuits. Thus, for the more moderate women, equal pay legislation pits their commitment to women’s rights against core Republican principles of reducing regulation on business. The business community vigorously lobbied against the bill (Langel 2009a). Moreover, support for the bill would also boost Democratic efforts to use the legislation against the Republican presidential and congressional candidates.

For conservative women, opposition to the legislation aligns with their ideological views; however, these women also have to contend with Democratic efforts to portray them as women working against women’s rights, and the media echoes that sentiment in their coverage. Indeed, after the failed cloture vote in 2008, the Washington Post reported that Senator Kay Bailey Hutchison (R-TX) was among those who were “clearly uncomfortable with the vote” and quoted Hutchison as saying, “I’m sure [the vote] will be spun as anti-equal pay, [but] there’s definitely something I could have voted for” (Montgomery 2008b). Furthermore, Republican leaders turn to Republican women to push back against Democratic criticism by demonstrating that Republican policies are not anti-women.

Balancing these multiple goals, the Republican women in the House and Senate followed divergent paths in the fight over the Lilly Ledbetter Fair Pay Act. In the House, which has a much more conservative contingent of Republican women, all the Republican women voted against the legislation, including moderates like Ileana Ros-Lehtinen (R-FL) and Judy Biggert (R-IL). Among the women, only Ros-Lehtinen, along with thirteen other Republican men in 2008 and nine Republican men in 2009, supported the Paycheck Fairness Act. When the Ledbetter bill was first debated in 2007, five of the twenty Republican women in the House—Marsha Blackburn (R-TN), Biggert, Virginia Foxx (R-NC), Kay Granger (R-TX), and Michele Bachmann (R-MN)—spoke on the floor to defend the party against the claim that Republicans were condoning discrimination (See Congressional Record July 30, 2007 H8940-H8950; July 31, 2007 H9219-H9222). For example, Biggert proclaimed, “I know what it is like. I sat in law school class and was told by my professor that I was taking up the place of someone who belonged there, a man. As a woman who has felt discrimination, I understand her [Lilly Ledbetter’s] frustration…. If this bill were an anti-discrimination bill I would be happy to vote for it and would encourage others to support it. But this bill is not about discrimination. It is about the statue of limitations…” (Congressional Record, July 30, 2007 H8945-H8946). Thus, Biggert and the other Republican women were trying to push back against the Democratic message that Republicans support wage discrimination. Once Obama won the presidency and it was clear the legislation would become law, the Republican women did not participate in the floor debate, leaving three Republican men to defend the party position as 31 Democrats came to the floor to laud the importance of the bill. The Republican women again all voted against the legislation (See Congressional Record, January 9, 2009 H113-H124).

(p.176) In the Senate, where the small contingent of Republican women remains on average more moderate than their male Republican counterparts and media scrutiny is more intense than in the House, the four Republican women, including moderates Snowe and Collins, and the more conservative Lisa Murkowski (R-AK) and Hutchison all ultimately voted in favor of the legislation. However, each varied in how publicly they supported the bill and how much they tried to defend the party. Snowe was the most consistently supportive of the legislation. She was the only Republican to cosponsor the Democratic bill across the two Congresses and to speak in favor of the bill on the floor both times it was debated, emphasizing her long history of activism on the issue dating back to the Ronald Reagan years and her work in the House of Representatives (Congressional Record, April 24, 2008 S3395-3396; Congressional Record, January 22, 2009 S 769).

While Snowe strongly supported the bill and often served as the lone Republican advocate, the other women tread more carefully as they balanced their interest in women’s rights and their desire to remain loyal to the Republican caucus. Thus, Collins did not cosponsor the legislation and never spoke in favor of the bill on the floor, while the most conservative of the women, Hutchison, helped develop an alternative Republican bill and advocated for it on the floor. According to Democratic and Republican staffers, Republicans knew that they needed to develop an alternative bill that business groups would support, and they needed to market it in a way that would show that Republicans are for women’s rights. Therefore, the party needed a Republican woman to serve as lead sponsor and spokesperson for their bill. A Republican staffer confirmed the party’s strategy, explaining:

Republicans do want a spokesperson to put a good public face on an issue and deflect the criticism of Republicans as anti-women. [Mike] Enzi [(R-WY), the ranking member on HELP] was writing the Ledbetter alternative, but Republican leaders knew they did not want a middle-aged white guy—that won’t help make their case. We needed to find a woman we can get to agree to be the leader on the Republican alternative. We went to Murkowski [who was on the HELP committee] first, but she knows she will have a race [in 2010] and she did not want to be the public voice on this. [Murkowski did cosponsor the Hutchison alternative.] She does not want to be out there in a public forum on a controversial issue. We thought about Collins. Hutchison is in leadership. She agreed, and it would help her in her governor’s race. [Hutchison was planning to challenge Republican Governor Rick Perry (TX) in the primary and needed to demonstrate her strong conservative principles for primary voters]. Enzi’s staff helped Hutchison’s staff draft the amendment. She told the leaders that at the end of the day if the alternative fails she will vote for the Democratic bill because she and the other women do not want to be viewed as against women in the workplace.

(p.177) Hutchison actively advocated for the Republican alternative on the floor. The amendment, which was supported by the Chamber of Commerce, would reinstate the six-month clock for filing a complaint after the woman knew or should have known about the discriminatory action. Thus, a woman would need to affirmatively prove that she did not know about the pay disparity before she filed the lawsuit (Langel 2009a, 2009b). On the floor, Hutchison sought to blunt Democratic criticism of the Republican position by noting, “I have certainly been a person who has known discrimination. I want everyone who believes they have a cause of action to have that right. I have also been a business owner. I know how important it is that our businesses know what their potential liabilities are…” (Congressional Record, January 15, 2009 S 588-589). Ultimately, Hutchison, Collins, and Murkowski all voted in favor of the Republican alternative and then joined Snowe to pass the Democratic bill, allowing them to show their support for the Republican position and demonstrate their commitment to women’s rights.

The fight over equal pay legislation demonstrates the contours of the contemporary politics of women’s rights. Drawing on their personal commitment to women’s rights, Democratic women worked to get equal pay legislation on the agenda, and they played a pivotal role in developing the Democratic message and selling it to the public. Because women’s rights issues are central to the Democratic electoral base, championing equal pay legislation helped Democratic women reach out to voters and solidify the party’s reputation as the protector of women’s rights. By contrast, pay equity legislation puts Republican women in a difficult position. They must balance their ideological views and the opposition of the business community, a key Republican constituency against their own perspective on women’s rights and their aversion to being portrayed as women acting against women’s interests. Republican women varied in their strategic calculations over how to engage the equal pay debate, with some women in the House simply voting the party position and others vocally defending their party against Democratic efforts to paint Republicans as anti-women and supportive of wage discrimination. Meanwhile, the female Republican senators tried to both defend the party position and take a stand in favor of women’s rights.

Looking to the Future: The Politics of Women’s Rights in a Polarized Era

Research on the policy impact of women in Congress has clearly established that gender affects legislators’ policy priorities and the perspective they bring to the policymaking table. However, the polarization of the parties has changed the dynamics of policymaking in women’s interests. The Democratic Party is increasingly perceived as dedicated to advancement of social welfare policies and women’s rights, which provides more opportunities for Democratic women to legislate on (p.178) these issues and raise their media and legislative profile. The increasing importance of the gender gap in a competitive electoral environment enhances the value of Democratic women as spokespersons who can mobilize women’s groups and other elements of the liberal base and can turn out the women’s vote. Moreover, the increasing number of women in the Democratic Party allows them to leverage their numbers and seniority into positions of power. Because women and minorities constitute key voting blocs within the party, Democrats are more responsive to calls for diversity in their leadership ranks.

In the 2012 electoral cycle, Democratic women held key leadership positions that allowed them to drive party strategy: Pelosi as House minority leader; Debbie Wasserman Schultz (D-FL) as Democratic National Committee Chair; and Patty Murray (D-WA) as chair of the Democratic Senate Campaign Committee. These three women were key proponents of the war on women frame that was a central component of the Democratic message in the 2012 elections at both the presidential and congressional level (Feder 2012; Kurtz 2012; McCarthy 2012a, 2012b).

Individually, and joining together in groups of House and Senate women, Democratic women held press conferences, wrote editorials, organized floor speeches, and went on television news shows to denounce Republican policies as a coordinated war on women. Republican efforts to cut funding for Planned Parenthood as part of a budget deal and their opposition to contraceptive coverage in Obama’s health-care plan were denounced as a war on women’s health with Republicans seeking to take away women’s access to cancer screenings and affordable contraception (Shaheen, Boxer, and Murray 2012; McCarthy 2012b, 2012c; Sanger-Katz 2012). Democrats used their control of the Senate to bring up bills on equal pay and violence against women to further highlight the Republican war on women (Kim 2012; Weisman 2012).

Democratic women will continue to increase their policy influence in the 113th Congress. Pelosi decided to remain as Democratic leader in the House, asserting that there must be a woman among the top party leaders in the House and Senate meeting with Obama to resolve the fiscal cliff and long-term budget and entitlement issues (Rogers 2012). For the first time, Democratic women hold key leadership positions on the most prestigious committees dealing with the country’s fiscal challenges: Barbara Mikulski (D-MD) chairs the Senate Appropriations Committee, Murray chairs the Senate Budget Committee, and Nita Lowey (D-NY) is the ranking member on the House Appropriations Committee (Wasson 2012; Wong 2012).

By contrast, women’s issues are not central to the reputation of the Republican Party. Instead the Republican brand focuses on messages of lowering taxes, reducing regulation on business, and strengthening national security. Therefore, women cannot leverage their connection to women’s interests and women voters into power and authority within the Republican caucus as easily as Democratic women can. Moreover, for the dwindling number of moderate Republican women, the focus on feminist issues like reproductive rights alienates the social conservative base of (p.179) the Republican Party and puts these more moderate women in an uncomfortable position. Conservative women must decide if they want to champion the conservative view on social issues like abortion or if they prefer to focus on issues of cutting taxes and regulation on business that form the core of the Republican Party’s identity. Furthermore, because the number of women in the Republican caucus remains small and the political culture of the Republican Party focuses on individualism and is not responsive to identity-based policy claims, it is more difficult for Republican women to demand more seats at the leadership table for women.

Yet Republicans do want to push back against the Democratic narrative that the Republican Party is anti-women, and they recognize that they need to attract more women and minority voters because these groups constitute a growing share of the electorate (Brownstein 2012b). Therefore, Republicans are increasingly turning to their women members, particularly the ideologically compatible conservative women in the House, to rebut the Democratic frame of a Republican war on women and to explain how Republican policies benefit women from a female perspective. As Cathy McMorris Rodgers (R-WA), the vice chair and future chair of the Republican conference, explained, “Republicans who only talk about finances are not going to attract women voters. Let’s talk about healthcare choices…families, raising children and trying to find a job in a tough market. These are women’s issues and Republican issues” (Ferraro 2012). Thus, conservative Republican women, many of whom were elected in the 2010 election that swept Republicans back into the majority, held press conferences and organized a colloquy on the floor describing “Why I Am a Republican Woman” to rebut Democratic claims that Republican policies are a threat to women’s health and to lay out how Republican economic policies will help women (Cogan 2011; Kellman 2011; Kim 2012b). The House Republican women even formed their own “Women’s Policy Committee” to showcase Republican women and to demonstrate how Republican policies improve women’s lives (Cohn 2012). In the Senate, Kelly Ayotte (R-NH), who was elected in 2010, was a lead spokesperson against the contraceptive rule in Obama’s health plan. Serving as the lead cosponsor on a Republican amendment to eliminate the rule, Ayotte took to the Senate floor and the news talk shows to explain that this was not a women’s health issue but an issue of religious freedom because the Obama mandate forces employers to provide contraception even when it is against their religious beliefs (Ayotte 2012a, 2012b; McCormack 2012).

The experience of the 2012 election and the success of the war on women elevated the importance of increasing Republican outreach to women voters. The desire to project a more diverse public face for the Republican Party was an important factor in the decision of Republicans to elect Rodgers as their conference chair, the number four leadership position in the Republican caucus (House 2012). Republicans also chose Lynn Jenkins (R-KS) as conference vice chair and Foxx as conference secretary, thus including three Republican women in the House leadership (Raju and Sherman 2012). Clearly, Democrats and Republicans are poised to (p.180) craft divergent policy positions and messages as they compete to represent women’s interests and attract their votes.

Notes

Notes:

(1) . I interviewed 50 Senate staffers associated with 44 senators including 19 Republicans and 25 Democrats. I also interviewed one Republican and two Democratic senators. The staffers interviewed included chiefs of staff, legislative directors, legislative assistants with special responsibility for particular issues such as defense policy or health care, and campaign managers. In addition to staff, I also interviewed liberal and conservative interest group leaders who took an active role in the confirmation battles over President Bush’s nominees to the Supreme Court and the lower federal courts.

(2) . Kirsten Gillibrand (D-NY) is not included in the count of Democratic women serving across the 110th and 111th Congresses because she was sworn in after the bill passed (CAWP 2011b). Democratic women who spoke during floor debate on the bill in the 110th Congress are Barbara Mikulski (D-MD), Patty Murray (D-WA), Claire McCaskill (D-MO), Maria Cantwell (D-WA), Hillary Rodham Clinton (D-NY), and Debbie Stabenow (D-MI). Democratic women speaking on the bill in the 111th Congress are Mikulski, Barbara Boxer (D-CA), Dianne Feinstein (D-CA), Blanche Lincoln (D-AR), Kay Hagan (D-NC), Amy Klobuchar (D-MN), and McCaskill. Among Democratic women, only Mary Landrieu (D-LA) and Jeanne Shaheen (D-NH) did not give floor speeches on the legislation. According to her office’s press release, Shaheen attended a press conference to promote the bill while it was being considered on the floor. The press conference included Lilly Ledbetter, Marcia Greenberger (the president of the National Women’s Law Center), Mikulski, Murray, Lincoln, Stabenow, Klobuchar, and Shaheen (http://shaheen.senate.gov/news/press/release/?id=5312db94-d995-4560-af65-faa45b0768f9).

(3) . Author’s analysis. See Congressional Record, July 30, 2007 H8940-H8950, July 31, 2007 H9219-H9222; Congressional Record January 9, 2009 H113-H124 for House debate on the Lilly Ledbetter Fair Pay Act. For House debate on the Paycheck Fairness Act, see Congressional Record, July 31, 2008 H7681-H7681-H7704; Congressional Record, January 9, 2009 H124-H138. I counted all members who spoke on the floor or inserted remarks and divided by the total number of speakers. I then compared the number of women as a proportion of the Democratic caucus with the proportion of Democratic women speakers on the bills. The number of women in the Democratic and Republican caucuses in the 110th and 111th Congresses was drawn from the Center for American Women and Politics Fact Sheet “Women in the U.S. Congress 2013.”