Can Elizabeth Warren legislate?

If Dems do well, she’ll have to put policy ahead of politics

DURING HER FIRST four years representing Massachusetts in the Senate, Elizabeth Warren has become the chamber’s leading progressive voice. Hillary Clinton considered her for the vice presidential slot and, while Warren didn’t get it, she’s become a valued surrogate, with her Twitter war with Donald Trump and her ability to rally the supporters of Clinton’s chief primary opponent, Vermont Sen. Bernie Sanders, to Clinton’s side.

But come January, if Democrats do as well in the election as they hope, Warren will face a new challenge: Can she shift from progressive lightening rod to successful lawmaker?

Making the switch will require a significant change in direction. Since the beginning of the current election cycle—really since the beginning of the current Congress in January 2015—she’s focused on politics first, and policy second.

It was telling, for example, when Warren told Boston Globe reporter Annie Linskey in July that she was going to “put every ounce of her energy” into electing Clinton president and winning a Democratic Senate majority.

What Warren hasn’t done is demonstrate an ability to legislate. If she has designs to fill the role that Ted Kennedy once did for Massachusetts, she’ll have to show that she’s able to go on the attack, but also do something that’s harder, compromise. And January, when a new president and new Congress are seated, is the best time to do it.

Democrats always figured they had a good shot at taking back the Senate this year and now they are thinking the unthinkable, that the House is in play as well. If Democrats complete the sweep, Warren will have a chance to pursue some of the policy goals she’s had to defer while the Republicans have been in charge. On a few issues, she’s shown some appetite for bipartisan brokering, but Warren has yet to face a real test of her legislative chops.

“I’m still fighting for the same things I said I would fight for when I ran for the Senate,” she says in a brief interview. Those things, she adds, include “leveling the playing field for middle class families” and “making sure Wall Street doesn’t roll over the rest of the economy.”

Specifically, she’s talked about wanting to overhaul the tax code, to eliminate the debt burden on college students, and to expand the jurisdiction of the Consumer Financial Protection Bureau, which was her brainchild and which Congress created in the 2010 Dodd-Frank financial regulatory law. Those are tough sells, even if Democrats are in charge, but Warren says she’s hopeful. “You don’t get what you don’t fight for,” she says.

She’s also keen to raise the minimum wage and to increase funding for the National Institutes of Health, which funds basic science research at universities and clinical trials at teaching hospitals.

It’s not clear where she plans to go with other items on her agenda, but they are just as grand: regulation of gig economy firms like Uber and Airbnb and increased enforcement of antitrust laws.

Republicans don’t believe Warren has either the ability or the desire to be a true lawmaker. “Her inclination, her history, and temperament are much more on the side of advocacy and drawing lines rather than crossing lines,” says Frank Micciche, who ran then-Gov. Mitt Romney’s Washington, D.C., office from 2003 to 2006.

Still, Warren was probably wise to write off the final weeks of the congressional session. By summer’s end, the appropriations process had broken down and Congress had kicked over the final decisions into a lame duck session that will meet after the election. Beyond that, the period before a national election is usually a dead zone for policy.

Most likely, even if there’s a Democratic tidal wave in November’s election, Warren will have to curb her ambitions. No one is giving the Democrats a shot at the filibuster-proof Senate majority they enjoyed for several months in 2009 and 2010. Unless the Democrats change the filibuster rules, they’ll have to win over Republicans to get anything done.

In the House, if Democrats pick up the 30 seats they need for a majority, it’ll be just barely. And the group of moderate, pro-business Democrats will surely grow.

So Warren will probably have to cross off her list any expansion of the Consumer Financial Protection Bureau’s authority. Warren has broached giving it new powers to police loans from car dealers, but she’ll have to be happy with no longer having to fend off GOP attacks. There’s no way Republicans approve an expansion.

The other items on Warren’s to-do list are plausible, though it’s unlikely she’ll get anything as far-reaching as she’d like.

Take tax reform. Warren last year laid out her principles for an overhaul but they didn’t track the formula that most reform proponents have suggested could be enacted.

That’s a simplification of the code in which tax breaks go away and rates go down. For Republicans, the changes must be revenue neutral. Warren said she would insist that any overhaul raise revenue.

Nonetheless, Warren is bullish: “This is an example where progressives and conservatives have clear ideas that differ sharply but where there is a real possibility of movement.”

Warren argues that big corporations, and hence Republicans in Congress, are ready to deal because the overseas tax havens that companies use are drying up and they’re going to need to bring money back home. The European Union bid to recoup Apple Computer’s Irish tax breaks is an example.

On her other agenda items, Warren has indicated some flexibility. She’s said she wants an increase in the minimum wage, for instance, but hasn’t insisted that it be any particular number.

On college debt, Republicans rejected her effort to reduce interest rates on student loans. The 56-38 vote failed to clear the 60-vote threshold to overcome a filibuster in 2014, even though three Republicans voted for it.

But her latest proposal—which would tie an increase in federal funding to the states to their efforts to set affordable tuition rates—sounds more like something Republicans might embrace. It’s a similar formula to the one that led to Kennedy’s deal with President George W. Bush on the 2002 overhaul of K-12 education and Warren says that, like that deal, it will require some give from both parties.

“We can do it if Republicans admit that we will never have affordable college without investing more resources in education and if Democrats admit that we will never have affordable college without demanding real accountability in exchange for those investments,” she told the American Federation of Teachers in introducing the plan last year.

On NIH funding, Warren turned heads by lining up support for her push to increase the government’s funding for basic research from former House Speaker Newt Gingrich, a Republican who during his time in Congress championed that cause.

Warren says she can work across the aisle, as she did with Newt Gingrich.

Warren says she can work across the aisle, as she did with Newt Gingrich.

Indeed, Warren is capable of reaching across the aisle. “I picked up the phone and I said, ‘Hi, Mr. Speaker. This is Elizabeth Warren. Do you want to work together on this?’ And he said, ‘Absolutely,’” she told an audience at the Washington Ideas Festival last year.

Warren has found common cause with her Republican colleagues in the Senate, too, on occasion. Last year, they helped to pass her bill to require disclosure of the terms of settlements that federal agencies reach with corporations accused of violating regulations.

Warren contends that the deals often give companies a pass. Her chief co-sponsor, Republican James Lankford of Oklahoma, believes that agencies during the Obama administration have used settlements to bypass the laborious rulemaking processes they otherwise have to follow, and imposed new regulatory burdens on companies.

In June, Warren teamed with Republican Sen. Steve Daines of Montana on a bill that would permit companies to invest assets in retirement plans that former employees have left behind and forgotten about, in investments that will bring a higher return, such as target-date mutual funds or Treasury bonds.

Such small potatoes bills won’t fire up Warren’s progressive fans, but they build up goodwill for larger endeavors. And they indicate that Warren does have legislative ambitions.

Still, it will be easy for Warren to slip into another, more familiar role, that of the progressive pushing the deal-makers in Congress in a more liberal direction.

“She’ll call out Hillary Clinton from the left and continue to speak out on behalf of the financial interests of the average American,” says Kenny Ames, a longtime aide to US Rep. Barney Frank when Frank was a senior Democrat on the Financial Services Committee.

If that’s the case, Warren may prove a deal-breaker, rather than a deal-maker during a Clinton administration. Before the current campaign, Warren had criticized Clinton for her ties to Wall Street and for Bill Clinton’s deregulatory approach to the financial services industry.

But Warren says Clinton has run a progressive campaign. “My job is to help her get elected with that progressive agenda and then to help her enact that progressive agenda,” she says.

Last year, Warren led the successful effort to derail the nomination of Antonio Weiss of the bank Lazard to a Treasury Department post overseeing domestic finance issues. It was an extremely rare instance in which an Obama nomination fell because of Democratic opposition. Warren said she objected to the revolving door between Wall Street and the Treasury and that Weiss’s experience didn’t match with the responsibilities of the job.

Asked if she’ll continue to block similar Wall Street appointments in a Clinton administration, Warren says, “yes, yes, yes.”

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Shawn Zeller

Washington Correspondent
“She’s the Democratic version of what John McCain used to be, the senator who is always willing to break with his party and break with his president,” says the Boston-based pollster Brad Bannon, referencing the Arizona GOP senator. Of course, McCain, in addition to sometimes criticizing his GOP colleagues, also cut deals with Democrats.

All this speculation about the path Warren will pursue is predicated on the Democrats winning in November. If they don’t, and it’s President Trump taking office in January with a Republican Congress to work with, expect Warren to continue on as she has for these past several months as Trump’s most outspoken critic on the left. And look for her progressive fans to start urging her, again, to run for president.