The New Republican Congress’s Governance Challenge: Sweating the Small Stuff

When it comes to passing legislation the 112th and 113th Congresses were among the least productive in American history. This often-noted fact is often followed by a litany of laws not passed in policy areas that seem to be crying out for new legislation: overdue reforms of Fannie Mae and Freddie Mac, No Child Left Behind, immigration laws, and the tax code. But beyond these headline failures lies a problem harder to identify with great clarity but no less urgent: America’s huge body of federal statutory law requires constant maintenance to remain applicable to a changing world, as well as incorporating lessons learned about what parts of laws have been working well in practice and which have not. This work lacks glamor but it is indispensable to the smooth functioning of the nation’s public and private sectors. In short, this is the nitty-gritty of governance, and the combination of the Republican House and Democratic Senate over the last four years fell down on this job. However one wishes to apportion blame, the 114th Congress must do better.

To get a better sense of what this work entails, we can take a look at what the 113th Congress did manage to accomplish, which—historic futility or no—is a good deal more than nothing. In 2013 and 2014, Congress passed (and the President signed) 296 laws (84 of which were purely ceremonial). This figure, which includes a remarkable 101 laws passed in the lame duck session after the November 2014 elections, is up a tick from the 112th, which passed a historically low 283 laws (75 purely ceremonial). Both of these figures are extremely low by historical standards—see Table 6-4 in Brookings’ Vital Statistics on Congress, which shows that the average laws passed by post-WWII Congresses through the 111th Congress was 639, more than twice as high a number. (Pew provides a good chart for the last fifteen years.) But 212 substantive laws is not nothing. What did they accomplish?

With some quick and dirty counting that could surely be disputed (I am happy to share my categorizations with anyone who wants them), I count 16 laws related wholly to foreign affairs. Then, 31 relate to federal land management issues, including making various conveyances or authorizing projects on federal land. Various laws take care of administrative matters where Congress is responsible: 4 for the Smithsonian Institution, 3 for D.C. government, 1 for U.S. Pacific islands, 2 for the federal judiciary, 1 for Congress itself. Another 13 relate to veterans’ benefits. Another 19 laws covered appropriations, continuing resolutions, and matters related to the debt ceiling and shutdown. That covers 90 laws. I then count 25 laws that strike me as basically new enactments (though the vast majority of new laws are of course closely integrated into already existing authorities and bureaucratic structures). These include a few that are well known (e.g., Superstorm Sandy Relief bill, Bipartisan Student Loan Certainty Act), a few under-the-radar but clearly quite important bills (e.g., Helium Stewardship Act, Hydropower Regulatory Efficiency Act, law authorizing cell phone users to unlock their phones), and a good number dealing with narrower matters (e.g., Permanent Electronic Duck Stamp Act, School Access to Epinephrine Act, etc.). Many of these laws addressed issues that surely merited congressional attention, but they don’t cover the work of maintaining existing statutes.

That leaves just under 100 laws that take up the ho-hum tasks of trimming, altering, tweaking, and mending existing laws to make them better fit our current circumstances. The stuff that Congress’s “work horses” occupy themselves with, leaving to the “show horses” the topics that garner more attention. In total, 32 laws are reauthorizations or extensions of existing programs—which provide obligatory moments of review for existing programs, and often include helpful updates. Of the remaining 64, quite a few make marginal adjustments to the tax treatment of various expenditures (Fallen Firefighters Tax Clarification Act, Philippines Charitable Giving Assistance Act). Some streamline or eliminate paperwork requirements. Some adapt old statutes to what are essentially new technological innovations (Designer Anabolic Steroid Control Act, Sunscreen Innovation Act) or to developing matters ripped from the headlines (Adding Ebola to the FDA Priority Review Voucher Program Act). A few amend recent enactments as problems with them have come to light (two that amend the Dodd-Frank Act are the Examination and Supervisory Privilege Parity Act and the Insurance Capital Standards Clarification Act).

There is no avoiding that most of this work will strike most people as obscure and tedious. And yet it is absolutely crucial that the legislature, which is the branch of government best equipped to make tradeoffs and compromises reflecting the values of the public, perform this duty. When they do not, the executive branch ends up compensating with all sorts of legally awkward stopgaps, leaving the rule of law in tatters. Passing 100 of such seemingly minor laws over two years is not enough; to realize the American ideal of government of the people the Congress must do much more.

When the new Republican majorities promise to show they can govern, then, it is worth thinking of what that may mean beyond the headline issues of the day. Both parties’ leaderships could do far worse than to set a goal of passing more little laws that adjust things at the margins. Any one of these may be relatively inconsequential, but together they have a great deal to do with whether our extensively regulated economy can flourish.