A Historically Unproductive Congress Inches Toward Finish Line

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."

(Image via Frank L. Junior / Shutterstock.com)