We have always emphasized, however, that the BPI is not meant to account for all of a member’s actions. There are additional factors that are relevant to bipartisanship, such as committee votes, approval of a rival party’s nominations, avoidance of inflammatory statements, etc. Members with positive Bipartisan Index scores will occasionally act in a partisan manner, and vice versa.
The partisanship of individual votes is usually in the eyes of the beholder. But the votes on January 6, 2021, challenging the presidential electoral vote certificates provide an extreme and unequivocal example of partisanship. In these votes, Republicans were not parrying a Democratic agenda item, defending legitimate congressional prerogatives, or advancing a policy of their own. Rather, they were attempting to politicize the final, routine election procedure by challenging results duly certified by various states.
Pro-Trump lawmakers had targeted six states won by Joe Biden (Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin). In all but Nevada (which has a legislature controlled by Democrats), election results were confirmed by Republican state legislatures. The President’s legal team had provided only debunked vote fraud theories and unverified affidavits in support of their claims, while law enforcement, including President Trump’s own Justice Department and investigative authorities in the six states had found no signifiant evidence of fraud.
President Trump and his allies raised more than 60 legal challenges against the results in these six states, almost all of which were dismissed unceremoniously or with harsh admonitions by judges, many of whom were appointed by Trump and other Republican presidents. In the end, no court — including the Supreme Court — found that any significant fraud had occurred.
Finally, the congressional votes challenging Arizona and Pennsylvania happened after the attack by a pro-Trump mob on the Capitol earlier in the day, when the dangerous consequences of the months-long attempt by President Trump and his backers to overturn valid election results were graphically apparent.
The congressional challenges to the electoral vote certificates were cynical appeals to voters, incited by President Trump, who were hoping that the largely ceremonial Congressional process of counting Electoral College votes could be used to overturn an election result they did not like.
Given the unique gravity and partisan clarity of the votes, it is instructive to examine how well the BPI predicted voting behavior in this extreme situation. Did most of those Senators and Representatives who voted for President Trump’s position have highly partisan scores in the BPI? And did many, or any, members with highly positive scores, indicating strong bipartisanship, also vote to negate the election results?
The answer: the BPI’s rankings correlated extremely well with the votes, but there were Republicans at both ends of the BPI spectrum who did not fit the pattern.
In the Senate, eight Republican Senators voted “yes” on at least one of the two resolutions to throw out the votes in Arizona and Pennsylvania. Three were freshman and thus weren’t scored in the latest BPI rankings, which covered 2019. (Full results for the 116th Congress, 2019-20, will be available in a few weeks.) Four of the five remaining were in the bottom quarter of the BPI ranking with strongly negative scores: Josh Hawley of Missouri, #75; Rick Scott of Florida, #81; Ted Cruz of Texas, #88; and Cindy Hyde-Smith of Mississippi, #89. On the other hand, the two most partisan Republicans in the BPI rankings, Ben Sasse of Nebraska, #94, and Richard Shelby of Alabama, #97, voted against the President. Sasse, in particular, was outspoken against the vote.
The outlier among the “yes” voters was Sen. John Neeley Kennedy of Louisiana, who ranked #46 with a modestly positive bipartisan score. The relatively small number of Senators who voted with President Trump is consistent with the BPI’s finding that the Republican-controlled Senate had become more bipartisan in recent years—in the 2019 rankings, 58 Senators, a clear majority, had positive bipartisan scores above the historical average.
In the Democratic-controlled House, the situation was quite different. The 2018 midterm elections that swept the Democrats back into power with a net gain of 41 seats saw the defeat or retirement of a number of bipartisan Republicans, skewing the GOP caucus in a more partisan direction. (The Republicans regained some of those seats in 2020.) It also ushered in some liberal Democrats. The result: a solid majority of the House, 250 members, had negative BPI scores in 2019.
Perhaps not surprisingly then, 139 Republican Representatives voted to overturn the election — two-thirds of the House Republican caucus of 211. Most of the GOP members in the lower BPI tiers, those that are considered the most partisan, voted to throw out the electoral votes. (Many GOP members were newly-sworn freshmen without BPI rankings.) The average BPI score of the “yes” Republicans was -.277, firmly in partisan territory. By contrast, the Republicans who voted against the president had an average score of +.477, a huge swing. In fact, only 21 of the Representatives who voted “yes” (15%) had positive bipartisan scores, indicating the BPI was a reasonably good predictor of how a member would vote in this extraordinary case.
At the top of the Bipartisan Index, Republicans were solidly against challenging the election results. Twelve of the fifteen Republicans who voted on January 6th and scored above the +1.00 threshold on the BPI, voted against challenging the election results. This included the six highest scoring Republicans who voted on the measure: Brian Fitzpatrick (Pennsylvania) #1, John Katko (New York) #2, Don Young (Alaska) #5, Chris Smith (New Jersey) #6, David McKinley (West Virginia) #10, and Steve Stivers (Ohio) #11. Also among the top 15 Republican BPI scorers who voted against challenging the results were Adam Kinzinger (Illinois) #18 and Fred Upton (Michigan) #24, both of whom voted for Trump’s impeachment on January 13, 2021.
Interestingly, two of the lowest scoring House Republicans, Tom McClintock of California, #433, and Chip Roy of Texas, #435, voted against challenging the election results. And Liz Cheney, #420, not only voted against the resolutions on January 6, she voted for impeachment on January 13, despite being a member of the House Republican leadership.
The three members among the top 15 Republicans in the BPI who voted to challenge the electoral certificates were Lee Zeldin (New York) #12, Elise Stefanik (New York) #14, and freshman Jeff Van Drew (New Jersey) #20. Van Drew is an unusual case because he switched to the Republican Party in January 2020 — just a year into his first term. Thus, his #20 score for 2019 was earned as a Democrat. Now that he is a Republican, it will be interesting to see whether his 2019 score was the result of his conservative leanings or whether he will repeat his strong BPI performance in the current Congress by combining with Democrats on legislation.
However, Zeldin and Stefanik are unquestionably outliers. Both compiled high BPI scores not only in 2019 but also in the previous two Congresses. Neither has ranked outside the BPI’s top 50 in any of the three Congresses in which they have served. There is no doubt that both are working frequently with Democrats on legislation. But both also have been strident in challenging the certified election results in highly partisan ways — including signing on to an amicus brief to the suit filed in December by the Texas Attorney General.
That case, which was derided by numerous election law experts and constitutional scholars, asked the Supreme Court for the absurd remedy of disenfranchising tens of millions of voters in other states. Also, Stefanik and Zeldin did not just vote to overturn the election on January 6th, they delivered House floor speeches echoing unproven Trump claims of fraud and illegal activities in other states that had been dismissed in court multiple times.
The cases of Stefanik and Zeldin demonstrate that legislators are not automatons who can always be slotted neatly into a category. It is possible for a member to be devoted to crossing the aisle to work with the other party on, say, pocketbook legislation, while simultaneously making highly partisan choices in their rhetoric and posture on high profile national issues.