Lifewatch: The Art and the Perils of Legislation

Almost 20 years ago, the Bishops’ Committee for a Human Life Amendment was a whirl of activity, and in the middle of that whirl, in the Washington office, one could find on any day a boyish figure with a cardigan sweater, treading softly through the office in slippers. That was the estimable Mark Gallagher. His apparently relaxed state managed to sustain a persisting, clear focus of mind, and an intensity that was preserved at all times, either at a high or low flame. Now, years later, he still has that youthful appearance, but he has become ever more seasoned as a lobbyist on pro-life issues, for the National Conference of Catholic Bishops. Last summer, he managed to pull off the surprise of the season, with the redoubtable Henry Hyde. Together, they preserved the Hyde Amendment, with its restraints on the public funding of abortion, and won with a margin of 8o votes.

I posed to Mark the question I raised in this column about the Modest First Step: What limited, precise, disarming measure might pro-lifers invite a politician to endorse in a campaign, as a point of beginning, with the understanding that he will talk about it, and defend it, in the course of the campaign? Of course, Gallagher has been so deeply immersed in the business of legislation that he cannot take in a question of that kind without imagining the road maps through the maze of institutions: In what committee? Who can get it out—and under what rule? What comes into view for him, instantly, are the layers of committees, the barriers of rules and procedures, shaped now for years by the adversaries of the pro-life cause.

What he sees, that is, is what he has come to know every day for the past several years: The gateways, in and out of committees, are tightly controlled by a liberal leadership that is not embarrassed by the flexing of power; and in a Congress managed in this way, the pro-life movement has virtually lost the capacity to initiate any legislation. What it may do, with telling effect, is bring in amendments, especially to bills on appropriations. And within the elaborate structure of a legislature with two chambers, it may command enough leverage to block legislation.

Thanks to that structure, and to the resourcefulness of the pro-life staffers, the Freedom of Choice Act, and the bill to clamp down on pro-life demonstrators, have been shelved now, perhaps for good. There were also reports, in the Washington Post, that the President’s advisers have done the hard reckoning, and they expect that they will have to remove abortion from the coverage of the medical plan if Mr. Clinton’s scheme is to have any chance of passing.

Neither Mark Gallagher, nor any other lobbyist on the pro-life side, has been willing to rest serenely on these reports. Still, there is no doubting what has been accomplished by people like Gallagher and Douglas Johnson (from the National Right to Life Committee), and many artful supporters on Capitol Hill, deploying their wit in a mean setting. But it was evident that Gallagher had to move, in his imagination, through layers of institutional barriers, past several congressional versions of the Wicked Witch of the West, before he could even get his mind around a Modest First Step. And in that reflex, he was quite right: This sober, exact reading of the landscape must be kept in mind in describing the setting in which these proposals will have to make their way.

In one sense, of course, the proposal for a Modest First Step is meant to get around this problem. Even experienced political men have a hard time latching on to the possibility that a proposal, put forth by a candidate, may have the purpose of churning the waters, compelling conversation—and breaking out facts that the public would regard as “news.” The proposal may have a lively effect as education, even if there is little immediate prospect for enacting it into law. When Ronald Reagan made his remark about fetuses feeling pain, he did not have in hand a bill requiring anesthetics for fetuses during abortions. Nor did anyone stop to ask just which committee would have jurisdiction of such a bill. But Reagan’s remark was widely reported, and it brought forth a torrent of discussions and arguments.

If a candidate for President proposed, say, to require a pregnancy test before an abortion, or to save the life of the child who survived the abortion, it is hard to imagine how the reporters would restrain their curiosity. They probably could not keep themselves from asking questions about proposals of this kind, which evidently carry levels of hidden meanings that the reporters would take it as a minor challenge to unlock. And as they are unlocked, each proposal would establish a critical point in principle, or convey some novel facts to the public (e.g., that it is not at all clear, under Roe v. Wade, that we can legally save that child who survives the abortion).

Cast in this form, Gallagher thought that any of those Modest First Steps might be quite useful: the move to save the child who survives, the restrictions on abortions late in term, or after “viability”—with moves to keep pushing back, ever further, the point at which the child is protected under the law. But here we arrive at the enduring “peril of legislation,” or the dilemma that has vexed the pro-life movement: To impose, through the law, any restrictions on abortion would be a dramatic gain. But every move of that kind carries the danger of confirming, by indirection, the right to an abortion in all of those instances that are not restricted in the statute. A law that restricts abortion in the third trimester would still leave 90 percent of the abortions performed in the country—and codify that policy in the statutes of the United States.

On the other hand, the move to legislation also has the effect of removing the “right to an abortion”

  • The five states with the highest test scores and graduation rates rank in the bottom half of per- pupil spending. By way of comparison, Utah ranks lowest in per-pupil expenditures, at $3,128, and has the highest pupil-to-teacher ratio (13.8), and ranks fourth in SAT scores. The District of Columbia spends $7,967 per student, has the lowest pupil-to-teacher ratio (11.9), and ranks forty-ninth in SAT and fifth in graduation rates.

Something here is amiss. Americans have been conditioned to believe that public schools need more money and more teachers. Only then will students learn more. “If there is one myth that deserves to be buried deep beneath the avalanche of accumulated evidence presented in the Report Card, it is that improving education requires massive increases in education spending,” writes William Bennett. “There is no correlation between increased spending on education and higher student achievement.”

Quentin L. Quade, director of Marquette University’s Blum Center for Parental Freedom in Education, puts it another way, targeting the educational finance monopoly wherein “the public schools sheltered by these monopolistic financing methods are deprived of the normal human incentives to excel; and parents who want to choose independent educational alternatives are forced to pay a large and often impossible financial penalty for such a choice.”

If not more money, what is the solution? Bennett and others have thrown their full support behind school choice, arguing that, by offering vouchers, state and local government will be able to ensure competition between public and private schools. This competition will then improve public schools and benefit the consumer in the usual market-oriented ways. Opponents use several arguments; public schools, they say, would lose money, a two-tier system would develop, and the least-capable students—who can’t get into private schools—would end up in poorer-financed and poorer-equipped schools than they are in now.

The Wisconsin Strategy

In Wisconsin, state legislators took a different approach from California’s Prop. 174. In fact, while the California campaign was mostly a movement of conservatives and libertarians, it was an African-American Democratic legislator on the front line in Madison.

Polly Williams is the godmother of the school choice movement in Wisconsin, a program wholeheartedly embraced by a popular conservative Republican governor, Tommy Thompson. The bipartisan appeal of Williams’ work may have been the biggest factor in its success, and the biggest lesson for others with similar ambitions.

If the suburbanites in California liked their schools and didn’t see a need for the sweeping reform of Prop. 174, Milwaukee’s inner-city parents were another story altogether. Williams’ legislation targeted the voucher program toward those who needed it the most. The Wisconsin plan, in effect since 199o, puts about 1,000 low-income students in the private, non-sectarian school of their choice, with a subsidy of about $2,700. Current enrollment is 742 students in it different schools. Wisconsin also has a private voucher program that offers $1,000 scholarships to about 1,700 low-income students. They can attend whatever school they want, without the strictures of the state-run program. More than 1,000 other students are on a waiting list for these grants.

Polly Williams summed up the success school choice has had in Milwaukee, and sheds a new light on the stereotypes many have grown up with. “We want to be empowered, and that is what the choice program has done,” she said in a 1992 Heritage Foundation speech. “It has empowered low-income families to take control and decide for themselves what they want for their children.”

This is a far cry from the voices of other black leaders in the nation, who with money and influence have fought against school choice.

Maxine Waters, a congresswoman from Los Angeles, ignores the role liberal Democrats such as Williams play in the call for choice. She calls it a “smoke screen that diverts attention and resources from our nation’s poorest ‘at-risk’ students.”

The Wisconsin school choice plan had to fight for its existence all the way to the state Supreme Court, which backed choice in a landmark March 1992 ruling. According to one study of the program, parents and students are more satisfied and more involved in their schools. Student behavior and attendance are improved, as are test scores, though only slightly. But since the program is still new, test scores will take longer to work their way up.

Real Diversity

Looking at what went wrong in California and what’s going right in Wisconsin, and understanding the ailments of public education, it is easier to understand the importance of choice in education and how best to advance it.

The first principle behind school choice is undeniable: private education is a necessary contributor to American life. The fact that our president chose a private school for his daughter shows that at least he and his wife agree. This principle makes an important assumption, and leads to a few corollaries. It assumes that public education is not sufficient to do the job itself. The citizens need something public education, as it is now defined, cannot offer. It is remarkable that many of the same people who cry for diversity and multiculturalism would enslave all students to one single, and restrictive, education program. What follows is even more intriguing: the state should encourage private education, and stands to gain when citizens take advantage of it.

Beyond these are other principles that must be conceded.

First, school choice must guarantee quality education, especially for the poor or otherwise marginalized. If the state has any role in education, it is in helping those who need the extra hand. Just as the Clinton health plan seeks to bring health care to the uninsured by altering health care for everyone, so, too, for better or worse, the California voucher plan would alter the way even good public schools function. Wisconsin’s program fulfills this rule by targeting those who stand to gain the most, and, practiced elsewhere, it would draw more bipartisan support.

Second, school choice must strike a balance between regulation of private schools and respect for their independence in philosophy and method. If the taxpayers are investing in private schools, there must be a way to guarantee quality education through standardized testing of some sort. But school choice’s attractiveness lies in its ability to embrace diversity of education. Single-sex, boarding, home, and religious schools should not suffer but benefit as well, to offer as much choice as possible.

There needs to be a proper response for those conservatives and libertarians who oppose school choice on philosophical grounds. As one Reason magazine letter to the editor put it, “Why don’t we just send all our money to the government, and they can send us back a coupon book? That will really increase our choices!”

It is natural to be skeptical about government expansion, and school choice does, by definition, expand government. This is the most serious objection to be raised about school choice, and one which requires resolution. Grover Norquist, president of Americans for Tax Reform, is a leading school choice advocate. He argues the opposite—that the state would actually lose power. “The more kids you have in private school, the less able government will be to take over,” he said. “Every kid in private school is an ally in the fight.” The expansion of private education to a larger proportion of children would give it more power, not less, just as the French embraced school vouchers but stormed the streets of Paris to oppose nationalization of private schools, Norquist relates.

After vouchers are used in all states, and if they prove to be successful, would complete privatization of public education follow?

The Status Quo Must Go

In the end, the success of school choice will depend on the recognition of most Americans that the status quo must go, that the people behind American public education as it now exists—who stoutly attack school choice—are not on the side of the parents and students.

The teachers unions, of course, are on the top of the list. For example, according to a 1981 National Education Association bulletin, “The major purpose of our association is not the education of children, it is or ought to be the extension and/or preservation of our members’ rights.” In 1985, American Federation of Teachers President Al Shanker was even more blunt. “When school children start paying union dues, that’s when I’ll start representing the interests of school children.”

To succeed in the legislatures and the polling places, school choice plans must be written to appeal to the lowest common denominator—the need for thorough reform, the need for better education for the most underprivileged, and the need for fiscal responsibility. Choice plans must also proceed cautiously. A series of solid, productive regional or citywide programs would lay the groundwork for the school choice revolution to come, even though some want to move quicker.

“What you have to do is kick the tables over,” said Prop. 174 strategist Khachigian. “If an idea is right, we shouldn’t be timid about it.”

Norquist sees 1994 as a watershed year for school choice. The few examples of Wisconsin and the like will garner more publicity, he said, when school choice comes to Jersey City through the work of Mayor Bret Schundler and New Jersey Governor Christine Todd Whitman—both of whom are new, bright, and popular, and seem destined for long political futures.

After Jersey City, Norquist says, New York City is next. “The kids are only a 10-minute bus ride from the New York press,” he says. “New York City school kids will see this and ask, ‘Why not us?’ ”

But beyond all this, school choice can succeed only if parents themselves become more informed and more concerned about—and more committed to—their children’s education. This may be the hardest task of all, but choice is meaningless unless the right choice is made.


  • Hadley Arkes

    Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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