You Take That Back! A Look at the Challenge of Repealing Federal Law

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Republican leaders in Congress have started the debate about repealing the health care overhaul legislation, and plan to vote on the repeal on Wednesday. In advance of the vote, It's A Free Country takes a look at how other repeal efforts in American history have fared.

Don’t Ask, Don’t Tell, Do Repeal.

Under President Obama and a lame-duck Congress, history was made when this repeal was passed last month, clearing the House 250-175 and the Senate 65-31.

Being gay had been grounds for dishonorable discharge from military service for decades, forcing tens of thousands of military personnel out of service. In 1992, presidential candidate Bill Clinton promised to repeal the ban, but once in office he faced such pressure from conservatives that instead of lifting it entirely, he created what he hoped would be a compromise. The legislation was called Don’t Ask, Don’t Tell, Don’t Pursue, better known as Don’t Ask, Don’t Tell, or DADT. 

Clinton himself called for an end to DADT in 2003. In 2006 the Supreme Court heard from universities who wished to bar military recruiters from their campuses because the universities found the policy put recruiters in violation of the schools’ nondiscrimination policies. The Court unanimously ruled to allow the federal government to withhold funding for the schools if the schools blocked recruiters, forcing the schools to accept them and essentially reinforcing the legality of the ban on gays and lesbians in the military. 

Attempts were made to introduce other legislation that would override DADT and replace it with a policy of nondiscrimination, such as the Military Readiness Enhancement Act of 2005, sponsored by Congressman Marty Meehan (D-MA), which failed to advance. Subsequent attempts were made in 2007 and 2009.

In 2008 presidential candidate Barack Obama made a campaign promise to fully repeal DADT and the original Department of Defense ban on gays in the military. Yet in 2010 the repeal failed to advance twice in the Senate. In November, a Pentagon study found that allowing gays and lesbians in the military would not compromise troop safety, yet just weeks before the repeal passed, many thought it would fail again. Even now, despite repeal, implementation will not go into effect immediately, as more studies are conducted and protocols are decided.

Prohibiting Prohibition.

In 1917, Congress moved to amend the Constitution to call for a ban on the manufacture, sale, and transportation of alcoholic liquors. The bill was sent to the states, where three-quarters of them had to ratify it within seven years in order to pass. In just 13 months, states passed that threshold, and on January 16, 1920, the eighteenth amendment went into effect.

The amendment, implemented by the Volstead Act, followed nearly a hundred years of attempts to curb alcohol consumption, including the formation in 1826 of the American Temperance Society.

At first, the new law seemed a success, as alcohol consumption decreased and the price of illegal liquor grew. Soon, however, it became evident that enforcement was difficult and disobedience of the law increased. Speakeasies and bootlegging became rampant — in New York City alone an estimated 30,000 to 100,000 underground speakeasy establishments appeared on the scene. Organized crime quickly took over the lucrative black market, and violence and crime surged. 

As prohibition became increasingly unpopular the pressure increased for a federal repeal. In 1932, repealing the 18th amendment was even made part of the Democratic Party’s platform. In his second week as President in 1933, President Franklin Roosevelt made his famous remark, "I think this would be a good time for beer," and signed an amendment to cancel the Prohibition ban on beer of greater than 0.5% alcohol by volume. 

The repeal still did not happen easily. Though the Constitution allows amendments to be ratified either by state legislatures with three-quarters of the states in support (as with the instatement of Prohibition) or by a state convention, in practice the latter method had never been used before. Concerns that legislators might be swayed by the powerful temperance lobby made Congress leary of the normal ratification process, so instead they chose to ratify by conventions for the first time. The ratification was successful, and the 21st amendment to this day remains the only amendment ratified by a series of state conventions instead of through the state legislatures.

In 1966, Mississippi became the last state to repeal prohibition, and "21st Repeal Day" officially lives on as an obscure holiday. There are even 21st amendment celebration e-cards available, so you can invite your friends to celebrate the repeal with you!

The Federal Estate Tax Law, or, as Opponents Like to Call It, the Death Tax, or, as Supporters Call It, the It-Will-Only-Affect-the-Wealthiest-Two-Percent Tax.

The estate tax as we know it was passed by Congress in 1916 as a means to reduce inequality by making it harder to pass wealth down from generation to generation. The income tax had been introduced three years earlier, and the estate tax was widely viewed as yet another progressive-era reform. The tax, which only applies to estates valued at $675,000 or more for individuals or twice that amount for married couples, affected only the wealthiest two percent of Americans. 

The bill had its opponents, and the first attempt at repeal came in the 1920s, led by then-Secretary of the Treasury Andrew Mellon (of Gulf Oil fame). A repeal was attempted again in the 1940s, and the term “death tax” was born, but the attempt was also unsuccessful. In the 1980s conservatives again pushed for repeal, claiming the tax hurt small businesses, but again the repeal failed.

In 2001, George W. Bush signed a 10-year tax law that reduced the estate tax from 55 percent to 45 percent in 2009 and then to zero for 2010. The law was due to expire in 2011, but in the tax compromise worked out by President Obama and Senate Republicans, the tax was reinstated on estates valued at one million or more for individuals, or twice that for couples. Though the tax was originally set for 55 percent, the new tax exempts the first $5 million of an estate and limits the tax on the rest to 35 percent. Democrats have called for a 45 percent tax on estates of more than $3.5 million for individuals or $7 million for couples, while conservatives want to eliminate it altogether, so expect further struggles and repeal attempts in the future.   

Repeal of Glass-Steagall

In 1929, one out of every five banks in the the country failed, sending the country tumbling into a long economic winter.

Market speculation in banking had been on the rise, creating serious conflicts of interest for the banks. Banks began to profit more from promoting stocks to benefit themselves than from helping individual investors, and banking customers were led to make poor investments.

In 1933, Senator Carter Glass (D-VA) and Congressman Henry Steagall (D-AL) introduced a bill calling for stronger regulation and forcing banks to choose between being a lender or an underwriter. The act also established the Federal Deposit Insurance Corporation (FDIC), which insures bank deposits. In 1956, the Bank Holding Company Act was also passed, restricting bank holding companies that own two or more banks from any non-banking activity, and from purchasing banks in other states.

Needless to say, the banks and financial companies didn’t like being restricted, and in 1999, after 12 attempts in 25 years, they were able to successfully lobby Congress to repeal Glass-Steagall. (Days after the Clinton administration announced its support of the repeal, Treasury Secretary Robert Rubin accepted a top job at Citigroup.)

Elizabeth Warren, who refers to Glass-Steagall as the “Banks Won’t Do Crazy Things” regulation, blames the recent recession and economic crisis on the repeal of Glass-Steagall. Without it, she says, we are doomed to a cycle of “boom and bust, boom and bust, boom and bust. And good luck with your 401k.”

Attempts have been made to reintroduce Glass-Steagall or similar legislation, especially in the wake of the recent near-collapse of so many financial institutions, most notably by Paul Volker and by the unlikely alliance of Senators Maria Cantwell (D-WA) and John McCain (R-AZ). To date, all have been unsuccessful. A Newsweek article from 2009 quotes an unnamed senior Treasury official explaining the opposition to reinstating the act as saying "I think going back to Glass-Steagall would be like going back to the Walkman." That prompted The Huffington Post's Jason Linkins to quip, "you'd go back to your Walkman too, if everytime you put your iPod on shuffle, it blew up the [expletive] planet."

So in Conclusion?

History shows that while repeals are possible, they are never quick and easy, even when they have enormous popular support. At least this time around, any repeal of the health care overhaul legislation faces long political odds, with a Demoratic majority in the Senate and President Obama wielding the veto pen. While an AP/GfK poll released on Monday indicates that 30 percent of Americans disapprove of the health care reform, that number includes both those who think the reforms went too far, and those who think they did not go far enough. 

The votes are scheduled to be counted on Tuesday in the House, but history has already told us one thing — whatever happens, it surely won't happen easily.