Politics for Middle Children
The Do-Nothing Branch
This post is the first of a three-part series on the branches of government.
Way back in July, 1948, the 80th Congress adjourned for the year accomplishing very little. President Harry Truman, worried about his re-election chances because of his 36 percent approval rating, used his Constitutional power to reconvene the two houses for a special session. He urged the Republican-controlled Congress to make good on their promises to deliver legislation on health care and Social Security.
At the end of the 11-day “Turnip Day” session, the 80th Congress sent only two bills to Truman. Disappointed, Truman lambasted the legislators’ inaction in the press. “I would say it was a do-nothing session,” he said. “I think that’s a good name for the 80th Congress.”
That group of representatives has gone down in history as the “Do-Nothing Congress,” but in reality, their inability to act pales in comparison to the gridlock we’ve seen in the legislative branch over the last 50 years. According to GovTrack, a company that provides data for congressional transparency sites, less than 10 percent of introduced legislation has been signed into law since 1974. The lowest passage rates tend to come when party lines are split—such as during the Obama administration, when Republicans held majorities in both the House and the Senate but a Democrat in the White House. Both the 112th and 113th Congresses managed to pass only 3 percent of proposed legislation1.
The public has certainly taken notice. An ongoing Economist/YouGov poll shows almost 62 percent of Americans disapprove of the work Congress is doing—a figure that’s remained relatively unchanged since the beginning of the Obama era.
Over the years, the role of legislator has transformed from the initial Constitutional vision of giving citizens a voice to that of a performance artist, largely abdicating authority in the name of raising funds for re-election. Efforts to kick-start legislative production—like President Trump’s promises to “drain the swamp”—have largely resulted in a treacherous power imbalance among the three branches of government. Much of Congress’ previous power—such as the decision to declare war—has been transferred to the executive branch, and its inaction has resulted in an increase of potent executive orders.
How can we move past the era of Do-Nothings?
The founding fathers modeled Congress after British Parliament, creating a “lower” House of Representatives elected by the people and an “upper” house of senators chosen by state governments. This formal bi-cameralism was in the hopes the “better men'' of the Senate would provide greater stability and not fall prey to the populism and sway of special interests they assumed would plague their colleagues in the directly-elected House. Founders like John Adams and Alexander Hamilton feared too much power in the hands of the people would lead to demagoguery and anarchy.
Congress continued to operate this way throughout the 19th century, but in the early 1900s, significant concerns repeatedly arose concerning the fairness of the Senate appointment process. Senators were accused of paying off state officials to earn their appointments—like in the case of William Clark, whose appointment as a Montana senator was rejected after it was determined he bribed members of the state legislature to obtain it. Clark resigned, nullifying the appointment2.
Fueled by a scathing newspaper campaign by notorious yellow journalist William Randolph Hearst, public opinion began to shift for senators’ direct election, and by 1913, 36 states ratified the 17th Amendment to make it so. The idea was that states could now focus more on their own business rather than national affairs, but critics of the amendment—like former Arkansas Governor Mike Huckabee—suggest that direct election allows senators to act against their state’s will, which disregards the provisions of the 10th Amendment.
The issue that’s most historically stalled legislative action is party allegiance. The notable instances of Congressional productivity—during the administrations of Abraham Lincoln and Franklin Roosevelt, for example—were the result of super-majorities in both houses. Whenever the chambers of Congress are closely divided along partisan lines—as they are currently in the Senate3—a lower percentage of bills are voted into law.
Over time, an increase in political polarization hampered lawmakers’ ability to get things done. “The parties began to separate in the 1980s, and the trend really escalated throughout the 1990s,” Ohio State University professor Jack Wright said. “Where there used to be quite a few legislators in the middle—conservative Democrats, for example, or liberal Republicans—that is no longer true. Legislators of both parties are voting the party line with greater regularity, making cross-party coalitions much harder to form.” Often, these outliers were regional—Republicans in the Northeast tended to be more liberal, and Southern democrats more conservative. Now, the parties are fairly homogeneous.
Similarly, representatives are less likely to support legislation—even banal bills with bipartisan support—because they fear the majority party may be able to take credit for it. Kentucky Sen. Mitch McConnell (R), for example, recently told reporters 100 percent of his focus was on blocking President Joe Biden’s agenda.
Even when bills CAN be passed, they’re mostly innocuous. Policymakers are increasingly unwilling to address the larger issues plaguing our nation: abortion, war powers, or the environment. The smaller, economy-focused issues get more debate because they’re easier to manage.
The way bills are debated and voted upon has changed as well. Rather than hold an open debate in a committee, it’s now more common for a few key representatives to write up a large omnibus bill, drop it on the desk of a freshman lawmaker without any expectation they’ll have the time to read it, and tell them how to vote.
The calcification of party lines and erosion of committee debate has certainly slowed legislative progress, but another growing trend among senatorial debate has ground it nearly to a halt: the filibuster.
A filibuster is a tactic where lawmakers prolong debate on a bill in order to delay or prevent it from coming to a vote. Politicians will often invoke a filibuster when they know they don’t have the votes necessary to swing the results their way. Contrary to some social media historians, the filibuster is not mentioned in the Constitution—it became possible in 1806 when Vice President Aaron Burr accidentally removed the rule allowing Senators to end debate with a majority vote because he felt it wasn’t necessary. Because there was no way to automatically end debate on a bill, it could continue indefinitely if senators still had more to say. This practice was ended in 1917, when the Senate passed a cloture rule (see below).
Most are familiar with the idea of a “speaking filibuster,” such as Jimmy Stewart’s performance in Mr. Smith Goes to Washington, but modern Senate rules allow for a “silent filibuster,” where lawmakers are only required to notify their floor leader of an intent to filibuster. A filibuster can only be halted by a cloture vote, which requires a three-fifths majority of 60 votes—a near-impossible feat with a split Senate voting mostly along party lines.
Filibusters were rare until the 1950s and 60s, when Southern Democrats began using it to hold up civil rights bills like the elimination of the poll tax and anti-lynching legislation. It became progressively used more as a tool to squash a bill’s passage. Congress does not track the number of filibusters, but it does track cloture votes. Under the 113th Congress (2013–14), there were 218; during the 115th session (2017–19), there were 168, a Congress the conservative R Street Institute called “more dysfunctional than ever.” The 115th Senate only passed 52 pieces of legislation.
Much of this unwillingness to yield the party line comes as the result of gerrymandering, where district lines are drawn to stack the deck for one party or another. When this occurs, it forces candidates of the same party to separate themselves by establishing more radical platforms, and when they do get elected, they’re unwilling to reach across the aisle. If you put both the Freedom Caucus and the Progressive Caucus in a room with each other and asked them to reach a consensus on four pieces of legislation, they couldn’t.
Endless Election Cycles
Another thing that promotes Congressional inaction are elections. House members are up for reelection every two years, which puts them in an endless campaign cycle. And because of a decline in party financial support, most Congressmen have become independent contractors, forced to raise their own campaign money. This means that rather than fostering relationships with colleagues in Washington, the majority of their year is spent in their home districts canvassing and fundraising.
When seeking higher office, lawmakers also downshift their productivity for political reasons. Rather than focusing on finding compromise through reasoned debate, aspirational legislators dig in their heels for the sake of spectacle. Take, for example, the antics of Missouri Sen. Josh Hawley (R), who pundits say opposed every one of President Biden’s cabinet appointments in order to lay groundwork for a 2024 presidential run. Or Sen. Kyrsten Sinema (D–AZ), who’s pushing back against her Democratic colleagues and going after mainstream Republican donors for her own shot at the White House. Meanwhile, bills languish and die at their feet.
Because of the grueling need for these policymakers to constantly raise campaign funds, running for a position has become such a pain that more qualified candidates are unwilling to throw their hat in the ring. This has largely resulted in a decline in candidate—and representative—quality. Many officials are now motivated by something other than public service.
No Easy Solutions
Unfortunately, there are no easy or short term solutions to our legislative woes. While proposing something like ending the filibuster would surely improve bill pass rates, its success is unlikely. It’s a paradox—lawmakers would have to pass legislation to make passing legislation easier.
As I’ve mentioned in previous articles, measures such as enacting term limits, instituting open primaries and rank choice voting could help to increase lawmaker accountability, as could more transparency regarding campaign finance.
There are some legislators who are trying to make a difference. The Problem Solvers Caucus, a group of 58 House representatives sponsored by a non-profit called No Labels, claims to be dedicated to fostering bipartisan cooperation on key issues. The group was responsible for pushing through a stalled bill on asylum-seekers funding in 2019, though some have claimed it’s nothing more than a centrist, corporate-minded organization working against Democratic Party ideals.
If history is any indication, the logjam won’t be cleared until there’s a supermajority of representatives willing to work across party lines sitting in both houses. There is hope for that—but not for anyone over 40. The Baby Boomers and Generation Xers are content with yelling at each other, but incoming generations are increasingly politically minded and pro government. According to a Pew Research study, 70 percent of Generation Z members surveyed said they expected the government to do more, compared with 49 percent of Baby Boomers. Many are optimistic newer generations will look at the system the same way our founders came together to examine the broken Articles of Confederation and find solutions across party lines.
Ultimately, it’s up to the constituency to make a difference. Congressmen are elected to office by citizen vote—they’re only in power because we put them there. A bottom-up movement from regular citizens is the only true way to transform the Do-Nothings in Congress to Do-Somethings.
Until then, we’ll continue to see episodes like New Hampshire Governor Chris Sununu (R), who decided not to run for his state’s Senate seat this year after meeting with top Republicans. “They were all, for the most part, content with the speed at which they weren’t doing anything,” he said.
What’s Your Take?
I’ve shared my perspective on the legislative branch, and I want to hear yours. How can we hold legislators accountable?
It’s not completely fair to use the number of bills passed as a measuring stick of Congressional productivity. As David R. Mayhew, Sterling professor of political science at Yale, pointed out in a 2013 Politico article, Congress has more recently turned to omnibus bills, which package many smaller provisions into a single vote. More on this later.
Interestingly enough, a new crop of Montana legislators were completely unfazed by Clark’s malfeasance. They appointed Clark the very next year, and he served as a Montana senator from 1901–1907.
The Democrats currently hold a one-vote majority over Republicans in the Senate; the tie-breaker is Vice President Kamala Harris.