Published on December 27, 2021
West Virginia Sen. Joe Manchin killed President Joe Biden’s signature “Build Back Better” package just before Christmas — at least for now. But a slimmer version of the bill may yet be resurrected in 2022, which very well could include federal support for child care and prekindergarten, given that Manchin is reported to have told the White House he’d support a pre-K push in the bill.
There is still time for congressional leadership to go back to the drawing board, possibly by working to pass a fiscally sustainable and administratively simple child benefit as proposed by Utah Sen. Mitt Romney earlier this year. But that would require the Democrats to learn from their mistakes.
A major reason the bill failed this year is that congressional Democrats tried to fit as many policy areas as possible into a behemoth of a social and environmental spending bill, rather than picking certain policies to do well. And the predictable result is that many of their policy efforts were half-baked, and some downright harmful.
A prime example of this is how the version of the “Build Back Better” package proposed this past summer would have treated faith-based child care providers. As we wrote last month, the legislative text that passed the House implicitly relegated faith-based providers to the back seat, and in some cases explicitly discriminated against them.
A set of grants aimed at expanding child care capacity, for example, barred grants from going to buildings “used primarily for sectarian instruction or religious worship.” The bill described providers as receiving “Federal financial assistance,” which had the potential to put them on the hook for abiding by a suite of antidiscrimination laws that could force religious providers to change the way they operate or be at a severe disadvantage in the marketplace.
Most concerning, faith-based providers who participated in the program would have been subject to Section 654 of the Head Start Act, which prohibits discrimination based on “race, creed, color, national origin, sex, political affiliation, or beliefs.” This likely would have made it illegal for religious providers to, for example, give hiring preferences to applicants who share their religious beliefs.
Senate Minority Leader Mitch McConnell was a stalwart voice against these proposals, and there was a chorus of voices calling for fixes to protect faith-based child care — including Manchin, who was reported to have expressed concerns over the impact “Build Back Better” would have on faith-based child care.
Just before Manchin announced his decision on the bill, the Senate Health, Education, Labor and Pensions committee released its own version of the legislation. Thankfully, it included some changes sought by religious groups and faith-based child care providers. Most importantly, the Senate text explicitly designated BBB funds as being “indirect” financial assistance to child care providers, borrowing the same language that allows Child Care and Development Block Grant funds to flow to religious providers without triggering federal civil rights violations. Crucially, it also dropped the Head Start nondiscrimination language.
But the grants for expanding or renovating child care facilities still excluded facilities primarily used for worship or sectarian instruction, which could have hit Catholic preschools or religious programs co-located in a space that doubles as a sanctuary. This was still unnecessary discrimination against religious providers, presumably out of the fear that some group, somewhere, will steal child care funds and use them to buy a new pulpit. Ideally, if some version of “Build Back Better” is resurrected in 2022, Democrats will strike this provision entirely, rather than rely on the good will of the executive branch to interpret the provision in a generous way.
The bill also still specified that participating institutions would be subject to Title IX without explicitly mentioning that religious organizations are currently eligible to claim a religious exemption. Merely adding a line to the next bill indicating that existing protections still apply would help some faith-based providers rest easier that a future lawsuit would not change the playing field.
All in all, the Senate’s changes were a step forward, though sure to rankle hard-line progressives in the House, who had previously promised to dig in their heels against “any effort to remove or change the non-discrimination provisions” in BBB. But the bill, of course, had other fundamental flaws. It was not a unified approach to expanding parents’ choices, but a ramshackle product of interest-group politics and congressional spending rules.
For example, the text was ambiguous over whether families with a stay-at-home parent would be eligible for the child care subsidies. Obviously, many families that choose to make the sacrifice of having a parent at home likely wouldn’t be interested in having their child in full-time child care. But some might be interested in having their child participate in part-time care — after all, it will be heavily subsidized — in order to run errands or volunteer in an older child’s classroom. Progressives wanted to have their cake and eat it too by requiring parents to work to be eligible but defining “work” so broadly to encompass virtually everything except for raising children at home (progressive policy analyst Matt Bruenig has made a similar point). It was a conceptual muddle.
It is far from certain that “Build Back Better” is dead for good. A replacement bill with a more focused intent could win Manchin’s vote and pass both chambers of Congress. Congressional Democrats would be wise to drop the child care portion altogether and put that money toward something like Romney’s Family Security Act.
But the scattershot approach to supporting families, and the poorly thought-through potential impact on faith-based providers, suggests an opening that Republicans, who have talked about becoming a “parents’ party,” should take full advantage. Rather than writing a child care bill beholden to special interests, Republicans should begin suggesting ways to improve child care by helping the market function more efficiently.
A parent-first agenda would support families both economically as well as culturally, most especially by prizing, not penalizing, the kinds of faith-based institutions that provide crucial services and a sense of belonging for millions of American families.
Patrick T. Brown (@PTBwrites) is a fellow at the Ethics and Public Policy Center. Brad Wilcox is director of the National Marriage Project at the University of Virginia, senior fellow of the Institute for Family Studies and a Deseret News contributor.