A Historically Unproductive Congress Inches Toward Finish Line

Any burst of big-ticket legislation after the August recess looks unlikely.

House Speaker John Boehner and Senate Majority Leader Harry Reid.
National Journal
Billy House and Michael Catalini
Billy House Michael Catalini
Aug. 4, 2014, 1 a.m.

This Con­gress began with brag­gado­cio about what it would ac­com­plish.

But what came in roar­ing like a le­gis­lat­ive li­on is on track to go out like a lamb, bar­ring an un­likely burst of law­mak­ing in Septem­ber or a lame-duck ses­sion.

A prom­ise to en­act a tax-code over­haul re­mains an empty shell of a bill, left for some fu­ture Con­gress. Op­tim­ism that reg­u­lar or­der had re­turned to budget­ing, and to the 12 an­nu­al spend­ing bills, has been aban­doned. And oth­er le­gis­la­tion de­pic­ted as es­sen­tial — be­cause of ex­pir­ing pre­vi­ous ver­sions or oth­er sig­ni­fic­ant needs — is also now be­ing kicked down the road or left un­ad­dressed, like com­pre­hens­ive im­mig­ra­tion re­form, which the Sen­ate passed in 2013 but the House is not tak­ing up.

There’s still time to do some of these things — but not much.

When they re­turn to Wash­ing­ton in Septem­ber, there are just 12 sched­uled le­gis­lat­ive days (and that num­ber may be cut) be­fore the Nov. 4 midterm elec­tion. A po­ten­tially tu­mul­tu­ous post-elec­tion ses­sion, es­pe­cially if Re­pub­lic­ans win con­trol of the Sen­ate for the next Con­gress, may not be a re­li­able fall­back for mov­ing items that have been stuck.

Much of the un­re­solved le­gis­la­tion in this Con­gress is sig­ni­fic­ant, in­clud­ing dozens of tax breaks that ex­pired in Decem­ber and the full ar­ray of ap­pro­pri­ations bills for the new fisc­al year start­ing Oct. 1. Already, House Speak­er John Boehner is tee­ing up ac­tion in Septem­ber on a stop­gap spend­ing meas­ure so that the gov­ern­ment does not run out of money after Septem­ber.

De­cisions are also needed on mis­cel­laneous tar­iffs, ter­ror­ism risk in­sur­ance, the Trade Ad­just­ment As­sist­ance pro­gram, re­char­ter­ing the Ex­port-Im­port Bank, and per­haps re-up­ping long-term un­em­ploy­ment-in­sur­ance be­ne­fits.

“We’ve not had a pro­duct­ive Con­gress,” said Sen­ate Ma­jor­ity Lead­er Harry Re­id. “We can’t push everything back to the so-called lame duck.”

Ad­ded House Minor­ity Whip Steny Hoy­er, who is serving in his 17th two-year ses­sion: “It’s the least pro­duct­ive Con­gress in which I have served.”

House Re­pub­lic­ans were par­tic­u­larly vo­cal about their plans to come up with an al­tern­at­ive to the health care law. That aim was made seem­ingly even more def­in­ite in Janu­ary at their con­fer­ence re­treat in Mary­land, when then-Ma­jor­ity Lead­er Eric Can­tor said, “House Re­pub­lic­ans will rally and pass an al­tern­at­ive to Obama­care this year.”

But Can­tor is no longer ma­jor­ity lead­er, fol­low­ing his stun­ning Vir­gin­ia primary de­feat in June, and House Re­pub­lic­ans still have not done what he said they would do.

But the poster child for in­ac­tion may be the prom­ises at the start of 2013 that re­do­ing the na­tion’s tax code was the top aim. In the House, Boehner even re­served the prime le­gis­lat­ive real es­tate of “H.R. 1” for such a pack­age.

“Fix­ing our tax code is one of my highest le­gis­lat­ive pri­or­it­ies for this Con­gress,” Boehner said in speech to the Cred­it Uni­on Na­tion­al As­so­ci­ation. “It’s time we shift the bal­ance of power from the tax col­lect­or to the tax­pay­er.”

The House Ways and Means Com­mit­tee, and its re­tir­ing Chair­man Dave Camp, did a great deal of work on tax re­form, as did former Sen­ate Fin­ance Com­mit­tee Chair­man Max Baucus, who is now an am­bas­sad­or. But Boehner’s early en­thu­si­asm, and in­dic­a­tions from Camp that his pan­el would write, mark up, and pass ma­jor tax-re­form le­gis­la­tion, nev­er trans­lated in­to an ac­tu­al bill. The pro­pos­al that Camp did re­lease got a tep­id re­cep­tion from his own lead­er­ship. And any ma­jor tax-re­form ef­forts are be­ing left to an­oth­er Con­gress.

Stat­ist­ic­ally, there is no dis­pute that the pro­ductiv­ity of this con­gres­sion­al ses­sion has been ex­cep­tion­ally low — at least in terms of his­tor­ic­al com­par­is­ons of the num­ber of bills passed (though cur­rent House lead­ers ar­gue this does not ac­count for the sub­stance of the bills, and that they have cut back on com­mem­or­ative or feel-good le­gis­la­tion).

Con­gress has passed just 142 pub­lic laws since this two-year ses­sion began in Janu­ary 2013 — in­clud­ing 70 that be­came law this year. And that puts this House and Sen­ate, as of Au­gust, on a tra­ject­ory to be the least-pro­duct­ive Con­gress for mak­ing laws since at least 1947, as far back as num­bers go in the of­fi­cial “Re­sume of Con­gres­sion­al Activ­ity,” up­dated monthly in the Con­gres­sion­al Re­cord.

The next-least pro­duct­ive? Well, a search does not have to too go far, be­cause that is the pre­vi­ous, 2011-12 Con­gress, with a total of 238 pub­lic bills passed and signed in­to law. The next low­est is the 280 pub­lic bills passed in the 1995-96 Con­gress — the product of the 1994 wave elec­tion that gave con­trol of the House to Re­pub­lic­ans.

Boehner and oth­er Re­pub­lic­ans point to how many one-cham­ber bills they have passed — that is, those which the Demo­crat­ic-led Sen­ate have not taken up.

“There are 352 bills passed by the House sit­ting in the United States Sen­ate. Al­most all of those bills passed the House on a bi­par­tis­an basis, so go take your com­plaints to Harry Re­id,” said Boehner.

But oth­ers say there is noth­ing im­press­ive about a House GOP ma­jor­ity that passes one-sided bills without more ef­fort at bi­par­tis­an out­reach.

“It’s as­ton­ish­ing what they haven’t done,” said House Rules Com­mit­tee top Demo­crat Louise Slaughter of New York, who ar­gues Demo­crats are typ­ic­ally not con­sul­ted in le­gis­la­tion, and even giv­en only el­ev­enth-hour no­tice of some bills headed to floor ac­tion.

“They haven’t done any­thing. When you look at this eco­nomy — it could be roar­ing if they’d done a stim­u­lus bill, an in­fra­struc­ture bill,” she said. “And the high­way bill is use­less. Nobody can plan a road in six months; there’s not enough money in there, any­way.

“So, everything’s un­der­fun­ded, starved to death, and we’re just let­ting the coun­try get moldy, is really what we’re do­ing,” Slaughter said.

The Sen­ate has passed few­er bills in part be­cause of dis­agree­ment between Re­id and the Re­pub­lic­ans over amend­ments. Re­id routinely pre­vents the GOP from of­fer­ing amend­ments on le­gis­la­tion. That spurs Re­pub­lic­ans, who have the power to stop Re­id’s agenda through fili­busters, to block bills from passing.

It also in­flames par­tis­an pas­sions. Sen. John Mc­Cain of Ari­zona, for ex­ample, de­livered a fiery speech Thursday night when it was clear Re­id would not al­low GOP amend­ments on the sup­ple­ment­al ap­pro­pri­ations bill.

“I want to have some amend­ments de­bated. I want to be able to tell the people of my state that are be­ing flooded by im­mig­rants — I want to be able to tell them that I had a pro­pos­al rep­res­ent­ing them here in the United States Sen­ate, that I wanted it de­bated and I wanted it voted on,” Mc­Cain said. “Is that a hell of a lot to ask here?”

Re­id, though, steers his cri­ti­cism in two dir­ec­tions: One is that Sen­ate Re­pub­lic­ans are ob­struc­tion­ists. The oth­er is that House Re­pub­lic­ans are ex­trem­ists. It may be polit­ic­al theat­er, but they’re the ideas that in­fuse Re­id’s script.

“If they keep up the sue-and-im­peach show, we’ll stay right here work­ing un­til they fi­nally get ser­i­ous about giv­ing the Amer­ic­an people a fair shot,” Re­id said.

When they re­turn, Sen­ate Demo­crats, mean­while, have out­lined a pre­dict­able path for­ward: a mix of must-pass le­gis­la­tion — bills to keep the gov­ern­ment run­ning, for ex­ample — and a dose of mes­saging bills that they cal­cu­late will help them in Novem­ber.

Re­id sketched the Septem­ber sched­ule be­fore law­makers split town, and a cent­ral part of his mes­sage to sen­at­ors was: We’ll be work­ing for two straight weeks, Fri­days and week­ends in­cluded.

The ma­jor­ity lead­er has threatened work­ing week­ends and Fri­days (sen­at­ors usu­ally take off after Thursday) be­fore, but rarely fol­lows through. In fact the Sen­ate has not worked a week­end since the gov­ern­ment shut­down, when Con­gress worked for three week­ends in a row in late Septem­ber and early Oc­to­ber, ac­cord­ing to the Lib­rary of Con­gress.

But Re­id is in­sist­ing Septem­ber will be dif­fer­ent.

The tar­get date for the Sen­ate to re­cess for the elec­tion is Sept. 23. Bol­ster­ing his calls for longer work weeks, Re­id held a lunch­eon with com­mit­tee chair­men this week dur­ing which their mes­sage to him was that sen­at­ors should work the week­ends, the ma­jor­ity lead­er said.

“No one can say you need to give us no­tice. You have no­tice,” he said.

Re­id’s To Do list in­cludes ap­pro­pri­ations bills to keep the gov­ern­ment from shut­ting down; the In­ter­net Tax Free­dom Act; the Ex­port-Im­port Bank; the Na­tion­al De­fense Au­thor­iz­a­tion Act; a con­sti­tu­tion­al amend­ment from Sen. Tom Ud­all of New Mex­ico on cam­paign fin­ance re­form; and the Demo­crat­ic Caucus’s pas­sel of mes­saging bills: col­lege af­ford­ab­il­ity, the min­im­um wage, Hobby Lobby, and stu­dent debt.

As­sist­ant Ma­jor­ity Lead­er Dick Durbin, stopped out­side the Sen­ate cham­ber be­fore re­cess­ing, was asked how sen­at­ors could pos­sibly get through the full sched­ule con­front­ing them when they re­turn.

Durbin answered im­me­di­ately: “We’re gonna work through the week­ends if we have to.”

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