Assessing Congressional Productivity: Getting it Right

The Washington Post’s Wonkblog had a write up on congressional productivity not long ago. Its central thesis is Congress is more productive in election years than in non-election years. This is a good counter-intuitive point. Many pundits discuss congressional productivity only in terms of major bills passed. However, Congress often passes laws that fly under the radar.

There are a lot of reasons why Congress is more productive in election years than in off-years. Each new Congress must start over from scratch. Therefore, bills that failed in the previous Congress must be re-introduced, committees must re-hold hearings, and the process of reconciling differences between the two chambers must also begin anew. Basically, the first year of a Congress is filled with preliminary steps in the legislative process. In the second year of a Congress, many bills require fewer steps to become law. Also in election years, many bills are passed for campaign fodder. The Senate’s attempts at equal-wage and minimum wage legislation the past few weeks are perfect examples of this strategy.

However, while Wonkblog’s central argument – that the House and Senate pass more bills in election years – is correct, there are a bevy of problems with the article.

First, it uses the wrong metrics. It employs the number of public and private bills “enacted into law” for each chamber. This is a pretty big problem since a single chamber cannot pass a law. So what does this line in the Resume of Congressional Activity actually measure? This line reports the number of laws that originate in the House (bills beginning with H.R.) or Senate (S.) that eventually became law. So really this piece is not capturing productivity in either chamber. Instead, it is measuring how many bills originally introduced in each chamber actually became law. The measure used doesn’t capture productivity–it captures bill origination.

This is hugely problematic for a few reasons. Bills that originate in one chamber are many times merely vehicles for the other chamber’s bill. For example, according to the House’s reading of the constitution, all revenue and spending bills must originate in the lower chamber. However, there are several revenue and spending measures the Senate would like to consider and pass. So rather than wait for the House to initiate the spending bill the Senate would like to pass, it will substitute its text on an old House bill and claim that the constitutional requirement has been met. The same is true vice-versa. A situation like this happened this past February when a Senate bill originally naming a Nashua, NH air traffic control tower after Patricia Clark turned into a bill raising the United States debt ceiling. The House changed the title of the bill to reflect the change.

Chamber productivity should be analyzed by the number of bills passed in the chamber per session of Congress. Or, it should capture the total number of laws. (See below)

bills and laws

As these numbers show, the trend described in the piece holds but not to the same degree. Bills passed in each chamber increases during election years, but only modestly. The number of laws passed, however, is nearly double in election years rather than in non-election years, suggesting that one chamber is likely finishing the work of the other in the second year of the Congress. Regardless, stating that “the volume of bills passed during election years nearly doubles, in both House and Senate” falls well short of reality.

These numbers also fail to distinguish between significant and non-significant bills, which is a big distinction. When discussing congressional productivity abstractly most people are not referring to inconsequential bills such as renaming Post Offices. Yet, to a large extent these numbers capture exactly that. In any given year, most bills are passed with little to no fanfare. The overwhelming majority of bills (over 88% from 1891 to 1994 according to Clinton and Lapinski (2008)) do not even receive a roll call vote in either chamber. In any given Congress the overwhelming majority of bills are passed under super-majority procedures such as unanimous consent or suspension of the rules (which requires 2/3rds majority to pass the House). Just because there are more bills “passed” does not mean Congress has been productive on any substantial front. In this Congress, the notion that Congress will get nothing done of much substance in this election year holds true.

Another problem is that the article includes the passage of private laws. Private laws are fundamentally different from public laws (note: the above chart graphs measured passed in each chamber minus private laws). Public laws apply to all citizens, states, etc. Private laws are bills that directly affect one or a few private citizens. These bills often deal with immigration cases or claims against government. In the more distant past private bills were the means used to dole out government benefits (Jenson 2003). Private laws frequently bestowed disability benefits to wounded veterans and their widows as far back as the Revolutionary War.

private laws

Over the past several decades the practice of passing private bills has declined dramatically. Some of the functions private bills served have been automated through programmatic legislation. Other research suggests new avenues of constituent service emerged, making private bills an antiquated means for representatives to address constituents’ problems. Regardless, conflating public and private bills can overestimate the “productivity” in many of the mid-20th century Congresses. However, the general trend that Congress is passing fewer laws still holds.

The article was an interesting and counterintuitive look into congressional productivity. However, this is one instance in which the thesis was not resting on the right evidence.