What should we expect of a separation-of-powers regime interlaced with tough checks and balances? What should we expect of a legislature representing a heterogeneous public that seems to be growing more heterogeneous, not to mention more fractious, all the time? To think about these matters, it may pay to reach for historical perspective.
Grousing about Congress is an ancient American tradition. The presidents can’t win the policies they ask for, it is said. The congressional parties are weak reeds. Big problems stay addressed. Filibustering, grandstanding, gerrymandering, endless squabbling, and grubbing for campaign money are the familiar images today. There is gridlock. Why does Wyoming deserve two senators?
Rave reviews for the institution are rare. In opinion surveys, Congress’s performance is a turn-off. Across the last eight decades, the ratings show a low average, a good deal of volatility, and no long-term down-slope you would want to take to the bank (even if recent years have brought some especially low figures). It is an old, continuing pattern. The country’s intellectual class—academics, journalists, etc.—is probably even less keen on Congress than the general public. That is not new. Mark Twain used to weigh in. Back in 1885, Woodrow Wilson set the critical standard in his early-career Congressional Government, a smart, classic trash job that still finds an audience. Young journalists cut their teeth on Congress.
Yes, this criticism often has a sound basis. Yes also, a ratcheted-up discourse during the last couple of decades seeing “dysfunction,” as government shutdowns and the rest have come upon us, has something of a basis, too. But we need to be careful. What should we expect of a separation-of-powers regime interlaced with tough checks and balances? What should we expect of a legislature representing a heterogeneous public that seems to be growing more heterogeneous, not to mention more fractious, all the time?
To think about these matters, it may pay to reach for historical perspective. That kind of reach is rare as we experience each new day of public affairs, and as the country’s journalists, our chief sources of illumination each day, need to perform for deadlines without having much slack to look back. It is a structural problem. The result can be a rather now-centered, unanchored understanding of what is going on.
I offer four exercises of thought. In each case, I take up a grumble about Congress that the media, the politicians, and the general public itself have been voicing in recent times. Why are things going so badly? Fine. Some of the four, maybe all of them, have least some warrant. But to take stock of them it helps to administer some doses of history, not to mention, in some cases, logic.
The 100 days yardstick
This idea was a media trope in the days of the Donald Trump administration in early 2017, but it isn’t new. In terms of legislative achievement, what should we expect of a new presidency in its early days? Everybody’s favorite record, and for understandable reason, is Franklin Roosevelt’s legendary hundred days in 1933. The economy was a mess. The banks were imploding exactly as he took office. The result: Deft leadership and a quick run of major enactments that helped right the economy and restore confidence.
But how about since then? We have seen ten freshly elected presidents since 1933 who needed to get a new administration up and running. What should the standard for legislating be? Let’s aim high. Let us key on drives at the high level of media attention accorded to, say, the Trump administration’s efforts in 2017 to repeal and replace the Affordable Care Act (ACA), and to reform the tax system. What is the history? Since 1933, Congress has enacted only one such high-publicity measure during a freshly elected president’s first one hundred days. That was Barack Obama’s $787-billion stimulus measure in February 2009 to jump-start the sagging economy, the American Recovery and Reinvestment Act (ARRA). Note the similarity to 1933. ARRA was an emergency measure. Absent such an emergency, the 100-days enactment record since 1933 is a zero.
TODAY’S CONGRESS HAS GONE TO SLEEP. WHY IS THAT?
At what times have the various novice presidents actually won their high-publicity legislative aims (when they have won them at all)? Jimmy Carter signed his high-drive energy plan on his 659th day in office, Ronald Reagan his key tax and spending measures on his 206th day, Bill Clinton his controversial budget on his 203rd day, George W. Bush his tax cut on his 139th day, Obama his Affordable Care Act on his 427th day, Trump recently his major tax reform on his 336th day.
We should deep-six the “100 days” standard. Emergencies aside, big complicated measures take time on Capitol Hill. Who should be surprised? The media say: why can’t they get their act together? What is the problem? But we should learn to relax.
How should we think about Congress’s “production,” “productivity,” or “achievement”? In recent times, many journalists have seized on a particular measure and used it to draw comparisons across time, sometimes across adjacent Congresses, sometimes across the last seven or eight decades. Again and again, the figures have been used to lacerate Capitol Hill for being unproductive.
The measure is of “numbers of bills passed.” In its own terms, there is no reason to doubt the accuracy or integrity of this per-Congress measure. Public officials calculate it, and they are good at what they do. The problem is the index’s journalistic usage—its deployment to signal “productivity” or some such term in a family of cognates. The now ingrained custom is to point to the relatively low annual totals of bills passed and cry alarm. Busier were the days of Truman and Eisenhower, it is said. Today’s Congress has gone to sleep. Why is that?
As a use of numbers, this is a silly enterprise. Two objections will suggest why. First, however we think about production, achievement, content, importance, and the rest, all enactments are not equal. There is the Affordable Care Act. There is a new law setting up a post office somewhere. Each counts as one. It is not even a matter of apples and oranges. It is a matter of buffalo and mice.
Second, for better or worse, Congress has changed its customs of legislating during the last half century or so. Committees used to send up issue-specific bills and get them enacted one by one. Then came the Budget and Impoundment Act of 1974, which encouraged a crowd-up of items into omnibus enactments, each counting as one bill. Also, since the 1970s or so, as Congress’s party leaders have drained power from the committees, lawmaking has come to center in late-session mega-deals among leaders that blend virtually everything into monster single bills. That has become a norm. That monsterizing behavior doesn’t even require the pressure of a late session. Consider some instances. Obama’s stimulus bill included a huge variety of policy initiatives; back in the 1950s or 1960s, probably ten or fifteen of them would have won enactment as free-standing bills. Take Trump’s tax reform of December 2017. It included a repeal of the ACA’s individual mandate and an opening up of oil drilling in Alaska. What were those items doing in there? In earlier decades, they might have passed (if at all) as free-standing bills.
As with the 100-days yardstick, it would be good to abandon the “number of bills passed” yardstick. As deployed, it makes little sense. Laziness and herd behavior seem to be keeping it going. Also, what is the real basic history? Taking the complexities into account, which isn’t easy, there doesn’t seem to be any good reason to believe that Congresses of recent times have on average been “doing less” in the volume of significant content than those of earlier allegedly busier times.
Now routinely applied to Capitol Hill, the “gridlock” term seems to have originated in traffic jams. It is a vivid idea. For traffic jams, the metaphor has a double face. It describes—nothing is moving—and it implicitly deplores. There isn’t much good to say about traffic jams. You can comb your hair in the car mirror, but that’s about it.
Carried over to Congress, the term works well enough as a descriptor of not moving. As political forces jam up, legislative action is being aimed at but not won. The intuition is obvious. So far so good. Yet beyond that, “gridlock” as commonly used raises difficulties for anyone trying to understand congressional processes, once those processes are placed in decent perspective, or to evaluate any record of congressional action or non-action.
IN GENERAL, THE MORE LAWS THE BETTER IS AN INSANE STANDARD FOR ANY SOCIETY.
There are two distinct difficulties. One has to do with historical comparison. Gridlock is not a new thing. It clouds the mind to suppose that it is. From the White House standpoint alone, consider some major legislative drives that have failed. FDR couldn’t get Congress to reform the Supreme Court to his taste, or Truman to repeal the Taft-Hartley Act, or Kennedy to enact federal aid to education, or Clinton to act on health care, or George W. Bush to part-privatize Social Security, or Obama to buy into “cap-and-trade” as an environmental reform, or, recently, Trump to repeal and replace the Affordable Care Act. It can be hard to legislate. Consider immigration reform, a hot current issue. The clashing triangular demands of nationality groups, nativists, and the business community are making for trouble. But that script has rolled out many times since the 1880s. Legislative drives in the area have normally come up short. It seems to have taken impulses of transnational scope (that is, peer countries also acted) to press Congress into its two historically major settlements on immigration, one tightening the constraints and the other loosening them: a fear of refugee inflow in the wake of World War I, and a deracializing of immigration criteria during the civil rights era of the 1960s.
The second difficulty has to do with evaluation. “Gridlock” on the highways may be annoying, period, but that blanket verdict doesn’t fit Capitol Hill. In Congress, to end up not moving may be an understandable, even a wonderful, result. In general, the more laws the better is an insane standard for any society. In a divided or irresolute society, it should cause no surprise at all that a representative body often glitches. It is a matter of judgment which congressional actions or non-actions are in the public interest, and judgments will differ.
Fractious congressional parties
The decade of the 2010s has brought rough reviews for congressional leaders and their parties. House Speaker John Boehner couldn’t control his renegade Tea Party faction, it was said. He must be incompetent and should give up his job. In 2017, the Senate Republicans couldn’t unite to repeal the Affordable Care Act. They kept hemorrhaging dissidents. What was wrong with them? At the least, this showed that Mitch McConnell was clueless as a party leader. In 2018, both Nancy Pelosi and Charles Schumer, the Democrats’ House and Senate leaders, came under fire when their parties broke apart on the question of whether to shut down the government over immigration issues. What was wrong with these Democrats? Why couldn’t they unite? Perhaps it was Pelosi’s and Schumer’s fault?
A surprising ideal-type of a congressional party seems to have invested the minds of today’s chattering class, notably some of the media. Tight party unity is the imagined norm. Anything else is a sign of oddity, misbehavior, and dysfunction. This is a remarkably ahistorical take on the nature of congressional politics. For the House and Senate parties, unity problems are not a new thing. President Jefferson had an awful time with his party’s purist faction. The late-nineteenth-nineteenth-century Democrats had to live with their high-tariff Pennsylvanians. All the Republican presidents from Taft through Hoover earned headaches from their party’s Progressive faction. From FDR through Lyndon Johnson, dissident southern Democrats leaned toward the Republicans on many domestic issues (although they operated on their own plane on civil rights). Ask Eisenhower about his abrasive McCarthyite faction in the Senate, or Clinton about his Blue Dogs.
Granted, today’s context of party-versus-party polarization in the overall society makes for unusually unified parties in Congress. No question about it. But to expect perfect unity in the congressional parties on the order of, say, the French Communist Party in the 1950s, is not a good bet. It remains the case that the American public elects 435 House members individually, and 100 senators individually, and that these politicians go to Washington, D.C. and jangle. They cohere into two parties on Capitol Hill, but they also make marks as individual representatives. Often they sort themselves into factions like the Blue Dogs or the Tea Party. That is the way of the system. It makes little sense to expect more of the parties, or to blame their leaders for the fractiousness.
The American Congress was built to supply representation to a heterogeneous society, and to balance against presidents who can be rambunctious or sectarian. Those are not the only services a society could ask of its national legislature. But they are services. Capacity for streamlined action is another service, and there the overall system can fall short. But it is well to grasp the logic of the system, and for that the two centuries of history can be a help.
David R. Mayhew is Sterling Professor of Political Science emeritus at Yale University. He is the author, most recently, of The Imprint of Congress (Yale University Press, 2018).