This Friday, the 113th Congress will end its 2013 session with a less-than-distinguished title: one of the least productive ever.
Halfway through its term, Congress has passed 56 laws. By comparison, 10 years ago, the 108th Congress passed 504 laws between 2003 and 2004. A decade before, the 103rd passed 473 laws, according to GovTrack, a site that monitors legislation.
The current Congress’s predecessor, the 112th — thought to be the least productive ever — managed to pass 284. The 113th Congress is on track to underperform even that cohort.
The anemic legislative output is brought to you by an unprecedented confluence of divided government, partisan polarization, and bicameral policy differences.
“If we look back five or six decades, these are the forces that have mired Congress in a stalemate,” says Sarah Binder, a professor of political science at George Washington and a senior fellow at the Brookings Institution who studies Congressional gridlock. “And they’ve all come to a head in this Congress.”
A divided government doesn’t automatically hinder lawmaking. In 1986, for instance, Republicans controlled the Senate, and Democrats held the House yet it still managed to pass comprehensive immigration reform.
But in the 113th, the divided government hurdle has been exacerbated by partisanship and disagreement between chambers that have reached new extremes. In the 1960s and ’70s, the average Democrat was just left of center and the average Republican was just to the right, says Binder, who has studied Congressional voting records. Today, thanks in part to the evolution of the South, conservative Democrats and moderate Republicans are all but extinct, says Binder. That has set the stage for not just ideological differences between the parties over the proper role of government, but strategic ones that cause one party’s members to disagree with the other’s simply out of fear of angering their voter base.
“If that’s the landscape, it’s really hard to legislate,” Binder says. And should a bill slip through the partisan cracks, it’s often dead on arrival in the other chamber. “There are always differences between chambers — big and small,” says Binder. “In this Congress, they’re huge. “
Short of enrolling all 535 members of Congress in group therapy (we’d pity the shrink), there are some possible remedies.
Redistricting and open primaries are often suggested as ways to produce more moderate voters, but that wouldn’t necessarily produce more moderate candidates, says Binder. And making it easier for members to negotiate in private prior to a bill’s announcement could also help, though so-called sunshine rules passed in the 1970s require Congress to do most of their work in public and the media and constituents expect as much. Fast-tracking legislation — a process often employed with free trade agreements where members of Congress agree to pass an initiative in its entirely or not at all — could also result in more laws, though neither party — at this point — is willing to give up the ability to amend legislation.
Heidi Gardner, professor of business administration at Harvard Business School, offers a more theoretical suggestion that starts with trust, which, she says, is “an absolute precondition of collaboration.” To work well with another person, Gardner says, you have to believe that they are intelligent and that their intentions are pure — the sort of trust that, in Congress’s case, would sprout from relationships formed away from the negotiating table and out of the limelight.
With that prerequisite met, there’s a better chance that members of Congress would work for the collective — the nation, in this instance — instead of focusing only on their own goals.
That sort of high-minded strategy has worked in smaller, more independent groups. For example, Gardner studied the structural changes put in place at the Dana Farber Cancer Institute that encouraged scientists who normally competed against one another for lab space, grants, and tenured professorships to work together. The result was highly personalized oncology treatments.
Ideally, Congress should tackle the big issues by coming to a cliff on an issue, holding hands, and jumping together. “That would insulate them all from public blame,” says Binder. But in such a polarized climate, Binder says, “the incentive now is to come to the cliff and push the other party over the edge.”