As the demand for widgets increases, the widget factory expands its production line to keep up. Likewise, Congress is expanding its legislative production capacity to feed Members’ growing demand for legislation.
In February, Speaker Nancy Pelosi (D-Calif.) approved additional office space for the legislative counsel, the office that drafts about 98 percent of the legislation handled by Congress. The additional space will allow the office to expand from its current roster of 39 attorneys to its authorized level of 44, according to Pope Barrow, legislative counsel in the House.
Senate Legislative Counsel Jim Fransen said his office also has been expanding to meet demand, increasing from 27 to 30 attorneys since 2000.
At the rate Congress is producing legislation, there is little doubt the office needs the extra help.
Members of the 109th Congress introduced more legislation than any other Congress since 1982, and the combined total for the House and Senate (13,074 pieces of legislation) was a 64 percent increase over the 104th Congress (7,991).
“I can’t tell you why the increase [in legislation] has occurred,” Fransen said. “We have noticed the increase, but don’t know why.”
On the other hand, the 109th passed fewer pieces of legislation than most of its predecessors, and no Congress since the 94th (1975-76) has had a lower ratio of bills introduced to bills enacted.
Congressional experts say this crude measure does not say much about the overall productivity of Congress or the impact of the bills that passed. With earmarks, omnibus appropriations bills and the familiar practice of larding up must-pass bills with unrelated provisions, a Member can achieve the intended goal even if the stand-alone bill goes nowhere. In addition, one enacted bill may encompass hundreds of ideas that were introduced as separate measures.
What the numbers do appear to indicate is that Members are introducing legislation for reasons other than actually legislating, said Sarah Binder, a senior fellow at the Brookings Institution who has studied Congressional productivity. Binder speculates that as partisanship has increased and control of the legislative calendar has been more strictly enforced, introducing a bill may be the only available avenue for a rank-and-file Member to establish a profile on an issue.
“It is possible that this is a stretching of wings — Members trying to find avenues of participation given that substantive avenues of participation are quite limited,” Binder said.
Steven Smith, professor of political science at Washington University in St. Louis, said this fruitless legislating is easy for the Member, but “isn’t actually free, because Congress has to pay for these people who draft the bills, they are printed, and they are put in the Congressional Record.” In addition, “these bills have to get referred, the committee staff have to document action on these bills … it’s a fairly costly enterprise.”
Barrow is hiring up to meet demand, but it won’t be easy. It takes about 10 months to recruit someone to join the “ghost-writers to the Congress,” and new hires spend 18 months in apprenticeship before being hired as a full-time member of the counsel’s office.
In testimony prepared for the House Administration Committee, Barrow wrote, “There is no doubt that we are currently understaffed in terms of the services we are called upon to perform.”
Fransen and Barrow both said that raw numbers of bills introduced is a poor measure of the workload of their offices. Many bills simply may be reintroductions of bills from a previous year or a simple piece of legislation to name a post office, which can be handled quickly by one attorney in the counsel’s office. On the other hand, a major bill with many components rolled into it or a raft of amendments prepared for an omnibus appropriations measure may occupy most of the staff for several weeks.
The growth of these omnibus bills also has stretched the technological capacity of the counsels’ offices. Barrow said the previous highway bill had an enormous list of projects that crashed the office software; the system since has had a $250,000 upgrade which should be able to keep up with larger and larger bills.
Fransen and Barrow agree their offices process about 98 percent of the legislation, amendments and resolutions offered in Congress. The only major categories in which legislative counsel has no role are bills that are introduced by a Member of Congress on behalf of the White House, and appropriations bills, which are drafted by those committees.
“We are an on-demand service,” Fransen said. Members request legislation for almost any purpose, and legislative counsel drafts it, without passing judgment on the likelihood of adoption or the merits of the proposal.
Several states restrict the ability of legislators to introduce bills, mostly to manage the workload of legislatures that have tight restrictions on how many days they can be in session, said Brenda Erickson of the National Conference of State Legislatures. For instance, the Colorado Legislature limits each member to five introduced bills in each session, she said.
Rep. Robert Andrews (D-N.J.) offers a strategic explanation for his legislative outpouring. In the 109th Congress, Andrews introduced 128 pieces of legislation, none of which are listed in the Congressional Record as having been enacted.
Andrews said, “Our technique is to come up with ideas, refine them, get them into legislative form and introduce them,” knowing that they are unlikely to pass as stand-alone bills. At that point, the ideas are “sitting in the warehouse, ready to be added as amendments to a larger bill” or negotiated into a markup or conference report, Andrews said. The original bill Andrews drafted will not be listed as having passed, but the idea becomes law as part of another measure, he said.
“I don’t believe hardly any of them are going to be enacted as free-standing bills as written,” he said.