The 113th Congress may well become the least productive Congress in modern history based on the number of bills signed into law. That is the measure many observers use to assess the institution’s productivity. But it does not provide the most complete or accurate picture.
As of Aug. 1, only 142 bills have been enacted into law, of which 118 or 83 percent have been non-controversial and bipartisan in nature. For that latter category, I look at public laws that initially pass the House under the suspension of the rules process that allows only 40 minutes of debate, no amendments and requires a two-thirds vote for passage. The most notorious suspension bills, accounting for 14 percent of all suspension laws in this Congress, are those naming (or renaming) post offices, federal buildings, court houses and veterans’ facilities after notable constituents.
Other suspension bills strike gold coins, designate memorials, monuments or historic sites, convey federal lands or buildings to localities, or deal with national parks, wilderness areas or Indian tribes. A few suspensions reauthorize expiring agencies and programs, usually without major changes. I once presented a paper on the increasing use of suspension bills, “Suspended Partisanship in the House: How Most Laws Are Really Made,” which a noted political scientist later cited as evidence Congress is not totally partisan.
A three-dimensional look at the changing numbers, size and content of laws over the last three decades (1983-2012) reveals the following: the number of public laws has dropped 62 percent, the number of pages per statute has increased by 52 percent and minor laws (suspensions) have jumped from 35 percent to 79 percent of all laws. Put another way, Congress is shying away from more substantive, controversial legislation today in favor of passing home crowd pleasers.
Divided party government and the fierce competition for control of both chambers every two years are largely responsible for the discrepancy between legislative input and final output as both parties use legislation more for campaign messaging than actual policymaking. This is evident in the number of measures passed versus those enacted as of Aug. 1. The House passed 509 bills, including 39 measures from the Senate, while the Senate passed 224 bills, including 116 from the House.
When one subtracts the 106 House originated bills and 36 Senate bills that have become law, there remain 354 House passed bills still pending in the Senate and 72 Senate passed bills pending in the House (including comprehensive immigration reform).
The disequilibrium is further illustrated by the Senate’s failure to pass any of the 12 regular appropriations bills, even though the House has passed and sent over seven of the measures and the Senate appropriations committee has reported eight.
It was once a joke among House members that the Senate is the place where good House bills go to die. That observation no longer evokes even a chuckle from the lower body. Senators of both parties have also expressed frustration about the paltry number of bills considered and amendments they have been allowed to offer over the last several months. The exceptions are the scores of amendments the majority leader has offered to “fill the tree” and block others’ amendments.
The majority blames the inaction on minority obstruction in the form of threatened filibusters and politically toxic amendments while the minority blames majority trepidation about taking any action that might have political consequences. The problem is, Congress is supposed to be the place where politically consequential actions are taken, not a safe house for the politically faint of heart. Past Congresses cast tough votes and let the electoral chips fall where they may. Today, members are apparently counting on voters not calling in their chips for lack of sufficient active players.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.