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
Michael Catalin and Billy House
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Michael Catalin Billy House
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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