The best-kept secret in Washington
Gridlock is lifting. Here’s why no one is talking about it.
Conventions have wrapped and peak campaign season is upon us. Candidates at all levels will soon traverse states and districts. Many will rally their audiences with a familiar message, affirming and confirming the public’s low opinion of Congress. Both party will cry obstructionism. Incumbents will cite good fights fought. Challengers will compile lists of shortfalls. But one of the best kept secrets in Washington will get nary a mention: The legislative record of the 114th Congress is one of the most productive in recent years. And neither party wants you to know it.
Significant Legislative Productivity in the 114th
Longstanding issues have been resolved and major bipartisan policies have been enacted over the past two years under GOP control, with Democratic cooperation, signed by President Obama. The list ranges from repealing the Medicare physician payment system that required a temporary “doc fix” for seventeen years, to repealing No Child Left Behind (which expired in 2007), repealing the NSA bulk data surveillance program while reauthorizing the PATRIOT Act, passing the first long-term transportation bill in a decade, updating FOIA for the 21st Century, and passing a new toxic chemicals bill. However you feel about the substance of these bills, they are hardly the work of a do-nothing Congress.
So why is no one talking about it?
Celebrating or owning up to the legislative productivity of this Congress means sharing credit or blame, and both sides are reticent to do either.
For Republicans with a majority in the House and Senate, legislative victories that required making deals with Democrats are not a popular message for the base. For Democrats who want to re-take the legislative branch, there is no incentive to emphasize that significant milestones have been reached under GOP control.
Parties and politicians are in a classic Catch-22: incumbents can’t claim credit for accomplishments that required compromise without offending supporters; yet both parties suffer from the lack of public confidence in the institution of Congress.
[This] leads to an interesting electoral paradox. While U.S. voters have been selecting increasingly partisan representatives for 40 years, public opinion of the U.S. Congress has been steadily declining…Elected representatives are increasingly unable to cooperate at a national Congressional level but are re-elected at least 90% of the time… — The Rise of Partisanship and Super-Cooperators in the U.S. House of Representatives.
According to separate Pew polls:
(1) Americans think that gridlock is a big problem, and
(2) Significant numbers in each party thinks their side should get everything they want in a negotiation.
Talk about a no-win situation for a lawmaker! “Get something done but give nothing away.”
That’s the zero-sum calculus of gridlock and it’s not new. What is new is that the 114th Congress has figured out a way to pass significant bills working across party lines and keep the public focus on obstructionism and gridlock.
How the 114th is getting it done
In some ways, divided government (with the White House and Congress controlled by different parties) can make some controversial policies more possible to address, since the two parties are forced to “hold hands and jump together” and no one party or leader bears the brunt of difficult choices. That has been true for decades, but now it seems that both parties are content to go a step further: get the hard stuff done and not talk about it.
The Conference Come-Back
Many compromises are happening far from the “smoke-filled back rooms” of yore, through the most mundane of Congressional processes: the conference committee. This regular order process for resolving differences fell out of practice for a few Congressional sessions, as members opted for more informal negotiating processes. (I was there.)
However, legitimate conferences are still regarded as a sign of a functioning legislative process and they are seeing a comeback in the 114th Congress. Seven have convened and issued reports so far; and two (Energy and Defense Authorization) were appointed just before Congress left for recess.
As a staffer for the newly appointed Energy conference committee, described to an industry publication:
The last time Congress passed a bipartisan energy deal (in 2007), there was an informal deal-making version of reconciliation. That means legislators have not conferenced on an energy bill since 2005… A lot of the staff and some of the members have never been through the process. It will be really interesting to see how it unfolds because it won’t be familiar to a lot of the people in the room.
Procedural Gymnastics: Trade Promotion Authority
Not all of the bipartisan compromises have been so open. Some have employed procedural gymnastics to shield vulnerable members from tough votes, as with the controversial “Fast-Track” Trade Promotion Authority (TPA) giving the President the power to negotiate trade agreements (which then come back to Congress for an up-or-down vote). The approval was packaged with customs reform and assistance for workers as it passed the Senate. The House then “split the question,” allowing for a separate vote on each piece and used a “self-executing rule” to deem the whole bill passed if each section passed, and sent back to the Senate for a final vote.
If you are looking to track down vote totals for who approved TPA in the House, good luck. The actual TPA vote was on “concurring in the matter preceding title II of the Senate amendment” to the “Ensuring Tax Exempt Organizations the Right to Appeal Act.” The roll call vote is hard to find in the record but not impossible. BUT, you can’t just look there. You have to look deeper, to the rule that made this procedure possible, which passed by an overwhleming 392–37. That is an example of bipartisan “holding hands and jumping together.”
The Motherlode: Budget, Omnibus, and Tax Extenders
The TPA vote was not even the biggest example of bipartisan dealmaking this Congress. The policy motherlode came at the end of 2015 with departing Speaker John Boehner’s commitment to “clean the barn” before leaving his post. Boehner negotiated a 2-year bipartisan budget deal with Congressional leaders and the White House to raise sequestration limits for two years, raise the debt ceiling through March 2017, and forestall a 20% cut to Social Security Disability Insurance. Notably, the deal put the kibosh on brinksmanship around the debt limit through the Presidential election cycle.
With a budget deal in place, incoming Speaker Paul Ryan’s first act was to shepherd a colossal bipartisan Omnibus appropriations resolution through the legislative gamut (to spend the money that the budget deal authorized.) The 2,009-page bill contained new spending levels and requirements for all federal agencies, with few “policy riders”(unrelated provisions that are frequently inserted into spending bills to allow a controversial policy to “hitch a ride” with must-pass legislation). But, some of the bills that did ride in the Omni included reauthorizing the James Zadroga 9/11 Victim Compensation Fund, tightening restrictions on use of the visa waiver program for people who have traveled to certain countries, and the Cybersecurity Information Sharing Act (CISA), codifying an information-sharing framework between private industry and government.
A separate bill, still part of the Omnibus negotiations ended the annual “tax extenders” circus, where provisions were repeatedly authorized for one to two years, requiring a lobbying bonanza each time they expired. The 2015 Tax Extenders deal made many of these permanent (including the largest, the Research & Development credit), removing uncertainty and providing a more accurate baseline for federal budget projections.
It didn’t happen all at once
The 2015 Boehner-Obama budget deal, which took a debt ceiling revolt off the table and paved the way for the Omnibus and Tax Extenders deals was a second act after similar effort in 2011 famously crashed and burned. In his recent article “How American Politics Went Insane” Brookings scholar Jonathan Rauch describes the importance of that event:
Sometimes I’ve been grateful for gridlock, which is an appropriate outcome when there is no working majority for a particular policy. For me, however, 2011 brought a wake-up call. The system was failing even when there was a working majority.
We’ll never know, but I believe that the kind of budget compromise Boehner and Obama tried to shake hands on, had it reached a vote, would have passed with solid majorities in both chambers and been signed into law. The problem was not polarization; it was disorganization. A latent majority could not muster and assert itself.
As we have noted, the very scenario that Rauch describes took place four years later. And while the lawmaking did not end with Boehner’s curtain call, the Omnibus and tax packages that followed had the (intended) effect of addressing hundreds of issues in one fell swoop, giving Congress the breathing room to go into election year without too many issues looming overhead.
In the past few months, the Ryan/Pelosi/McConnell/Reid/Obama combination has continued to turn bills into law, including:
- H. R. 644: Trade Facilitation and Enforcement Act (& Internet Tax Freedom Act)
- H. R. 1428: Judicial Redress Act of 2015 (Reciprocal privacy rights)
- H. R. 1831: Evidence-Based Policymaking Commission Act of 2016
- H. R. 2576: Frank R. Lautenberg Chemical Safety for the 21st Century Act
- S. 337 FOIA: Improvement Act
- H.R. 5278/S. 2328: Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA)
- H.R. 636: FAA Extension, Safety, and Security Act
- S. 524: Comprehensive Addiction and Recovery Act (CARA)
*Bipartisan compromise is no longer “rare”
Except for the sleep-deprived Capitol Hill press corps who report on the day-in-day-out minutiae, very few in the media have the resources to follow Congressional progress without a press release to tout it. And, as we have seen, very few lawmakers have an incentive to share. The safer and easier tack for most is to just stick with the “Congress doesn’t do anything” line and hope no one notices any different. And so far, few have.
Much of the reporting that does happen seems to have to couch bipartisan bills as “rare,” no matter how many times they occur (whether on Puerto Rico, energy, toxic substances, education, the budget, taxes, and a host of other issues.) But here’s the thing: the 20+ major bills that have become law this Congress are all a product of bipartisan compromise. They could not have achieved cloture or been signed by the President otherwise. Bipartisan compromise is no longer rare.
That’s not to say that all issues are being addressed nor should it be surprising that the areas of greatest disagreement are not. What should actually be surprising is the broad field in which members are finding common ground in this continued partisan environment.
Why does it matter?
If politicians, parties, and even most in the media don’t want to talk about what is really going on in Congress, why should the rest of us care?
- When we look away, we lose our power: If we accept the “Congress doesn’t do anything” line we cede our voice to those who know better.
- It’s an election year: As we got to the polls, it’s important that we make decisions about our representatives based on complete information.
- Focus on the right problems: Just because Congress is legislating doesn’t mean there aren’t big problems to be addressed. (There are.)
As the campaigns heat up and the rhetoric takes its predictable turn, we can challenge the notion that “Congress doesn’t get anything done” or that bipartisan compromise is rare. They do, and it isn’t. And it’s up to all of us to pay attention and make our voices heard about how that process is playing out.
Marci Harris is co-founder and CEO of POPVOX, an online platform for legislative information and civic engagement. Sign up for our weekly POPVOX updates on votes and happenings in Congress.
A version of this post originally appeared on the New America blog and on the POPVOX blog.
