Editor’s Note: This is the first article in our two-part series on Congress. This part discusses the issues currently causing the problems. Part II discusses how we got to this point.
What’s Going On in Washington?
“The founders envisioned Congress as a deliberative body in which outcomes are discovered. We are fast approaching the point, however, where Congress exists as little more than a formality to legitimize outcomes dictated by the president, the speaker of the House, and the Senate majority leader.”
These were the words of Justin Amash (L-MI), first printed in a Washington Post opinion piece on Independence Day of 2019. In that article, he contended that American politics were in a “partisan death spiral,” and that recent trends had led to “the consolidation of political power and the near disintegration of representative democracy.” With that article, he announced his departure from the Republican Party.
A little over a year later, Amash, a five-term representative from Michigan, would announce that he was leaving Congress altogether.
In his dissatisfaction with the American legislative branch, he is not alone. In a 2018 piece titled “How Congress Stopped Working,” ProPublica and the Washington Post cited the criticisms of a number of then-current and former legislators, including former senators Tom Coburn (R-OK) and Tom Daschle (D-SD)—once the Senate Majority Leader—who predicted that Congress was “going to evolve, or devolve, into irrelevancy very quickly” if trends continued. But perhaps the most prominent chorus of critics assembled yet came with the 2020 release of The Swamp, an HBO documentary following the journeys of House Representatives Matt Gaetz (R-FL), Thomas Massie (R-KY), and Ken Buck (R-CO) through a tumultuous year in Congress, which also featured interviews with Ro Khanna (D-CA), John Sarbanes (D-MD), and prominent congressional reform activist Lawrence Lessig. None of those involved, it seemed, were happy with the way things were.
The sentiment is echoed among the general public as well, if Gallup polls are any indication. Over the past decade, average approval for Congress has been less than 20%, falling even as low as the single-digits. The June 2021 poll saw 26% approval compared to 71% disapproval, a relative improvement that still leaves congressional favorability far lower than even Trump’s lowest numbers, and at less than half of what the generally popular Supreme Court received in recent polling.
This critical view of Congress goes beyond the feelings of a few disaffected members, however. The contentions of Amash and so many others—that our Congress is unproductive, that it is hampered heavily by the state of partisan politics and by its own convoluted structures and procedures, and that it is filled with incentives dangerous to the health of our democracy—are quantifiable. It is possible to look at how the members of our Congress have presented, discussed, and voted on legislation in recent years, at how they have raised funds and won or lost elections, and at how the executive branch, Washington lobbyists, and even their own leadership have influenced pivotal decision-making. And it is possible to do tangible analysis of what can be seen.
These data, as we will see, paint a stark picture of an institution deeply corrupted by flawed processes and twisted incentives, of a lawmaking body denied the opportunity for productive debate, where loyalty to the few—and not faithful service to the many—drives electoral success and even personal gain, and where these few—most notably the leaders of our two major parties—continue to accumulate power as a result. It has reached the point where even good lawmakers, with the most noble of intentions and efforts, can be utterly overwhelmed by systemic pressures, and where effective reform is no easy task. It is indeed a broken branch, and any hope of repairing it rests upon realizing both the extent of the problems and their underlying mechanisms.
“It’s so exhausting to run in place and to get nothing done. That’s the most frustrating thing for me.”
The notion of an inefficient and ineffective Congress first entered the contemporary popular mindset under President Harry Truman, who coined the term “Do-Nothing Congress” to describe his legislative adversaries, and rode that message to reelection victory in 1948. Today, the sentiment is as popular as ever. During 2013 Gallup polling, respondents who disapproved of the job Congress was doing (78% of all those polled) were asked to give their primary reasons for disapproving. By a comfortable margin, the first and second most popular of over twenty options provided were “Party gridlock/Bickering/Not compromising” and “Not getting anything done/Not making decisions.” But how best to measure this?
A clear downward trend can be seen when one observes the bills passed by Congress throughout history. Throughout the 1970s and 1980s, congressional terms would routinely see over 700 bills passed over a two-year period. Since 2009, that number has climbed past 400 only once, with the combative 112th Congress of 2011-2013 setting a record low with only 284 successful acts of legislation.
These numbers may not tell the full story, however. Totals of bills passed are skewed somewhat by the trend towards omnibus bills, which make singular acts out of what would otherwise be many pieces of legislation. The more recent downward trend in congressional productivity may also have something to do with a 2011 earmark ban, which limited acts featuring discretionary spending. If we examine the process resulting in passage of so few bills and the powerful incentives that have distracted Congress from legislative productivity, however, a clearer picture develops. Our legislative branch has indeed strayed far from the deliberative body the founders envisioned.
The first problem of process is the lack of fruitful debate in the halls of Congress, which can be gauged by examining the frequency of bill amendments, a hallmark of active legislative discourse. According to the Hill, the US Senate considered 159 of these amendments in 2017. A decade prior, that number was over 1,000. For many of these bills, amending was simply not allowed, as they were advanced under suspension of the rules of Congress, a procedure whereby legislation can bypass the usual formalities to move more quickly through the voting process, invoked for nearly two thirds of all legislation considered by the 115th Congress (2017-2019). For numerous other acts, productive discussion was simply a logistical impossibility.
In 1948, the average length of a bill making its way through Congress was two and a half pages. By 2013, that number had risen to over twenty. At the top end of the range, health care and spending bills have stretched well into the quadruple digits. Bill Clinton’s 1993 health care plan tallied 1,342 pages. George W. Bush’s 2007 budget counted 1,482. A 2018 omnibus bill clocked in at 2,232 pages. Then, in recent years, these numbers soared even higher. The 2020 National Defense Authorization Act, which passed in late 2019, reached 3,488 pages. And in late 2020, all previous records were shattered by an omnibus COVID relief bill 5,593 pages in length.
That last piece of legislation was particularly frustrating to Amash, then in his last month in office. As he expressed during a Clubhouse chat on February 14th, 2021, “they just packed everything into it, and all of the interest groups that want something, they get their stuff in that bill. And the leadership team put it together, not individual members of Congress. We have no say on it. We haven’t been able to amend legislation freely since May 2016. And then, the saddest part of all, then the media [will] be proclaiming this a great day that this bill was passed, and it shows that Republicans and Democrats can still work together. That’s what they’ll say. ‘Isn’t it wonderful that these members of Congress had one day to read 5,600 pages, and they worked together and they passed it overwhelmingly. Isn’t that wonderful?’” Other lawmakers were similarly frustrated by the complete inability to do their job, citing a literal impossibility of reading the bill before being required to vote on it, and how this process allows the corruption of the lawmaking process.
While there are good reasons to not allow a completely uncontrolled debate and/or amendment process, such as non-germane amendments (which themselves may serve a purpose), allowing none stifles compromise.
But perhaps even more concerning than what Congress is not doing is what Congress is spending its time doing, and why. Before that COVID omnibus and the rush of pandemic-related lawmaking, the 116th Congress was on pace for the lowest number of passed bills in history. The reason? Because it was consumed by dueling spectacles of political theater. One one side, an impeachment inquiry by Democrats that most every prognosticator foresaw would not result in any conviction. On the other, a performance of outrage by House Republicans and the House Intelligence Committee over the Russiagate inquiry.
Because while performative drama ultimately did nothing to affect the lives of average Americans, and while it may have distracted from the sort of legislation that could have, it did raise gobs of money and media attention for those involved, left and right. The real trouble is not that it was unproductive, or that it was a distraction from more pressing issues, or that it was the sort of political theatre to which it seems Congress has regressed too often of late. The real trouble is that it worked.
“What we’re told right off the bat is, ‘look, this is about getting wins for our political party, and if you work with a Republican then that’s going to hurt the party, especially if you work with a Republican that the Democratic Party is trying to take out.’”
With so much legislation and so little time given to read through or discuss it, it is little wonder that few in Congress actually do. In such an environment, the sort of legislature to which the founders aspired—that deliberative body in which new ideas can be introduced and properly assessed—is an impossibility. The politicians who would embody that style of governance—who would introduce innovative thinking into our lawmaking process—are doomed in turn to fail within the present system, their bills unread and their ideas ignored.
Instead, the sort of politics poised to thrive are those of hyperpartisanship and division. Within this paradigm, the Capitol stage becomes little more than a theater, with parties maneuvering endlessly for financial and tactical advantage, knowing that sheer numbers, complemented by a membership that falls neatly in line, are often the only way to push through desired legislation and gain or maintain political power.
As Amash put it in a Clubhouse discussion on February 13th, 2021: “If you have this system where you don’t really vote on a whole bunch of amendments, and every vote is take-it-or-leave-it, just one big bill … you can imagine how that plays out in exacerbating partisanship. What ends up happening is instead of having a variety of options when you vote on legislation, like ‘I can amend it this way, I can add this piece, I can yes on this and no on that’ and we have a whole bunch of variations which allow … legislators to express themselves on behalf of their constituents. Instead of that, everything is take-it-or-leave-it, so you end up more and more with votes that are Republicans vote this way, Democrats vote that way.”
Here, again, we have an assertion that can be quantified. If we look at the frequency of party unity votes—votes in which a majority of Democrats voted one way, and a majority of Republicans voted the other—over time, then we can gauge just how great an impact this trend towards division has had upon legislative outcomes.
Jalan’s lines of best fit help make sense of the picture here. While the individual data points jump around considerably based on the political questions of the day, the ultimate upward trend is clear. More and more, votes are falling cleanly along party lines.
According to congressional reform activist Lawrence Lessig in The Swamp, “If you look at the number of bills that [Congress] has passed in a cross-partisan way, it’s gone in the 1970s from a very significant cross-partisan institution to an institution now that just literally cannot do anything in a cross-partisan way.”
“Compromise, since Ronald Reagan,” Lessig continues, “has had this framing of weakness or duplicity. So, if you compromise, as a member of Congress, it’s like you’re lying to your base. And that’s the dynamic that [former House Speaker] Newt Gingrich encouraged. He knows that the way you raise money is to trigger the hatred of the other side in your favor. Politics of hate is the most productive technique for fundraising we have.”
And indeed, it is spectacularly productive. Among the top 2020 fundraisers within the House of Representatives were some of its most outspoken and divisive members, including Justice Democrat Alexandria Ocasio-Cortez (D-NY), controversial Intelligence Committee member Devin Nunes (R-CA), and impeachment trial notables Adam Schiff (D-CA), Jim Jordan (R-OH), and Elise Stefanik (R-NY). Each one raised upwards of ten million dollars that year.
In the 13 February Clubhouse discussion, Amash laments,“The incentives are so messed up right now that it attracts a certain type of person. Like, look at the crop of freshman representatives now. I mean, it’s stunning the kind of theatrics and sort of entertainment model that you have … they’re not in it for legislating at all.”
“More and more legislative authority is delegated to the executive branch every year. Both parties do it. The legislature is impotent. The legislature is weak.”
As Congress becomes increasingly less capable of deliberating effectively, and increasingly more mired in partisan bickering and political theater, its inability to act upon critical issues means one of two things will tend to happen. One, these issues are left with no satisfactory resolution, with Congress incentivized to make a show of unviable legislation rather than to work through reform in a bipartisan manner (this was the case with the issue of qualified immunity in the summer of 2020, as Amash explained in a recent podcast interview). Or two, the Executive swoops in, ready to absorb more power for itself.
The growing power of the executive branch is not a new development, but twisted incentives in Congress have allowed it to accelerate in recent decades, evidenced by a recent uptick in the use of the executive order, with little resistance offered by what should be a counterbalancing force of Congress. A strong executive, it would seem, can offer a simple path to popularity and fundraising ability for members of Congress all too driven by such things.
With the presidency of Donald Trump, this phenomenon reached new heights. As Ken Buck explained in The Swamp, “This president has presented budgets that are huge. Typically, the Freedom Caucus would be leading the charge to criticize an executive branch proposal that costs that much money. Now, that’s just not the case. And it’s not the case because when Freedom Caucus members look at their political base, they realize that so much of their base are Trump lovers—where nothing this President [referring to Trump] does can possibly be wrong—that they can’t criticize the president.”
The growing power of the president also provides an easy escape from responsibility on potentially polarizing issues. On the issue of war, for example, Buck noted the powerful allure of allowing the Executive’s power to grow: “As long as the president is engaging in wars, we don’t have to vote on a war. And if some American Soldier, a Marine, Airman dies, we don’t have to accept the blame for that. We can point a finger. So all the tough decisions are pushed off to the executive branch, and power has shifted as a result.”
This trend, of course, creates a dangerous imbalance within a government structure predicated on three branches being able to effectively check each other. And yet, this is what naturally follows from the needs and incentives of our modern legislature. Far from resisting this power shift, they are encouraged to support it.
It now behooves us to ask: how did we get here, and how do we get out? These questions, and more, will be answered in part two of this story.
Editor’s Note: This is the first article in a two-part series on Congress. Part II can be read here.
Editors: Craig Carroll; Stacia Wilson Peer Review Completed By 5 Individuals