What if Congress isn’t hopelessly locked in partisan gridlock? What if it’s getting a lot done?
On paper, productivity at the Capitol is up
We all know, for a fact, that Congress can’t get much done. It’s always deadlocked, gridlocked, locked in a partisan fight, each party marching in lockstep, ready to lock horns once more to block the other side from destroying America.
But what if all that’s just a story we tell ourselves to make sense of politicians’ incessant bickering and a steady stream of negative headlines? What if Congress is actually getting stuff done?
“Congress is not in gridlock,” said Frances Lee, a political science professor at Princeton University.
If you look just at the number of bills enacted, Congress’ productivity has been slowing down for some time now, from passing an average of around 828 bills per two-year meeting in the 1950s to less than half that — merely 339 — in the past decade.
But if you look at a different metric, the number of pages of public laws enacted, the prevailing narrative changes. According to statistics from the Brookings Institution and CQ Roll Call’s own calculations, the 116th Congress was actually the most productive since the 80th in 1947–48, the farthest back Brookings’ data goes.
The 117th Congress has continued this trend toward longer, presumably more substantive bills. While the average length of enacted bills in the ’50s was just 2.3 pages, the 89 new bills enacted so far have averaged 29 pages, the longest since 1947. (The 116th’s average of 24.5 was the second longest.)
Raw page numbers may seem like a crude measure, similar to other simple counts like how many hours Congress spends in session or how many votes it takes. But as lawmakers pack more and more into fewer but increasingly bigger bills, it gives an arguably clearer view of legislative productivity.
Lee credits COVID-19 for keeping the government printers busy. Thanks mostly to coronavirus-related additions, the fiscal 2021 appropriations package weighed in at 2,126 pages, more than double the prior, pre-pandemic year’s relatively skimpy combined 933 pages. The current Congress kicked off with the American Rescue Plan Act, another 243 pages of coronavirus relief provisions, and passed a hate crimes bill in the wake of attacks aimed at Asian Americans triggered by the pandemic.
After that, Congress passed a $1.2 trillion infrastructure bill. A bill with hundreds of billions in subsidies to help U.S. firms compete with China also passed both chambers but still has to go to conference — the Senate version is 2,300 pages long.
There’s plenty more on the way. In February, Congress banned pretrial arbitration for employee sexual harassment claims, which President Joe Biden is expected to sign. The Senate also appears poised to pass a major Postal Service overhaul and may act on a reauthorization and revamp of the Violence Against Women Act, which lapsed in 2019. Both have already passed the House by overwhelming margins.
There are also realistic hopes for bills that would overhaul the Electoral Count Act, ease the potential for financial mayhem when the benchmark LIBOR interest rate stops publishing next summer, and change U.S. monopoly and competition statutes that could upend the last half-century of antitrust law.
The question of whether Congress gets to those issues is one of logistics as much as will. The typically slower-moving Senate — which already needs to pass a spending package for the current fiscal year, possibly with an emergency supplemental for supporting Ukraine, and then begin work on next year’s appropriations bills — now also has the Supreme Court nomination of Ketanji Brown Jackson to address.
Majority Leader Charles E. Schumer took to the Senate floor last month to crow about all the bipartisan achievements under his watch. “As I have always said, from my first day as majority leader, we will work in a bipartisan way whenever we can,” he said. “We did it in our first year, with things like the anti-Asian hate crimes legislation, the competition bill, and the bipartisan infrastructure package, and these two weeks now represent a productive continuation of that commitment.”
Republicans welcomed what they described as a shift away from more divisive issues, like Biden's social safety net and climate bill, dubbed “Build Back Better,” and an elections and campaigns overhaul. “We focused on a lot of left-wing liberal priorities for a year or so, and there’s a pipeline of commonsensical, mainstream initiatives that have not been worked on,” said Sen. Todd Young of Indiana. “So, I’m really encouraged that we’re doing this now.”
That doesn’t mean they were ready to sing Schumer’s praises, though.
“We may be moving a little bit away from paralysis, but we’re still dysfunctional,” said Sen. Kevin Cramer of North Dakota.
Cramer said he’d like to see the Senate return to “regular order,” meaning bills come up through committee and are brought to the floor with ample opportunities for amendments. He lamented that even on broadly bipartisan legislation, like the infrastructure bill and the forthcoming postal service overhaul, so-called “gangs” of senators hammer out a deal behind closed doors.
“I’ve come to realize that what others call regular order is just history, unfortunately,” he said.
The ability to pass big name bills didn’t start when Democrats took control of both chambers and the White House after the 2020 elections. With a Democratic House majority and Republicans in charge of the Senate and White House, the 116th Congress enacted a series of significant laws besides the COVID-19 packages, including a permanent authorization of the 9/11 victim compensation fund, a revamp for retirement plans, a ban on surprise medical bills, and billions for restoring and upgrading America’s national parks.
Lee also noted the passage of a new trade deal that replaced the North American Free Trade Agreement. “NAFTA had been strongly opposed by organized labor, but this new trade agreement actually got support [from] organized labor,” said Lee. “So, there was policy movement that changed the politics of North American trade.”
Looking back to the 115th Congress, a series of landmark bills passed to little fanfare, including a major copyright law update, a package aimed at combating opioid abuse, a farm bill in 2018 that legalized hemp, the First Step Act’s criminal justice changes, and the creation of the Cybersecurity and Infrastructure Security Agency.
Notably, all of the bills mentioned above — except for the American Rescue Plan — passed with bipartisan support, and most by wide margins.
Most of them also passed with relatively little media coverage. “When this stuff happens, it’s typically buried in the back pages of the A section of the newspaper,” said Lee. “If it happens in a bipartisan way, it doesn’t get very much coverage.”
It’s the more partisan measures with uncertain chances for passage that get the most attention. This Congress, that has meant the Build Back Better Act and, to a lesser extent, proposals for policing and election revamps. In the 115th Congress, the media’s tunnel-visioned spotlight was similarly focused on the GOP’s attempts to repeal the 2010 health care law.
When these bills fall short, it feeds the prevailing narrative of a do-nothing Congress. Everyone was watching when the BBB talks went bust because Democratic Sen. Joe Manchin III of West Virginia walked away and when the idea of repealing the health care overhaul got the thumbs-down from the late Arizona GOP Sen. John McCain; not many noticed when major revisions and additions to the nation’s anti-money laundering regime were successfully tucked into the fiscal 2020 defense authorization bill.
If you Google “infrastructure investment and jobs act,” you’ll get millions of results. Google “build back better act,” and you’ll get billions.
The inherent drama in tight, partisan legislative battles drives the coverage, said Lee. “If it’s a bipartisan deal that passes, what are you going to write about? You gonna write about the policy?” Lee said. “The only people who’d be interested in that are the people who’d be interested in that specific policy issue, whereas a story about conflict, regardless of what it's about, involves the larger stakes of who is winning and who is losing.”
According to Lee, most political news audiences are partisans rooting for a team and they’d rather watch a hard-fought match than see the two sides working together. While they obviously want their team to win, they’ll stop watching if the vote is heading to a 98-2 blowout.
Lawmakers also lamented the disparity in attention between bipartisan wins and polarizing battles.
“The top-tier issues that get most of the press, that’s where most of the division is,” said Republican Sen. Roger Wicker of Mississippi. “The second tier — including a number of issues that come before [the Senate Commerce] Committee with Sen. [Maria] Cantwell and me — are issues that are done with virtual unanimity.”
“There’s a lot of consensus that goes on even at a time when the more visual issues make us seem too partisan,” he added.
It’s not just the media's flair for the dramatic that drives the do-nothing narrative, said Lee. It’s true that America has grown more divided in recent years, so stories about bipartisan cooperation in Congress don’t jive with our preconceptions.
“We know that Congress is really partisan and that the parties are very polarized,” Lee said. “People have trouble processing information that doesn’t mesh with other things they know to be true.”