

Congress in hindsight. (Photo: Sarah Binder)

Amid the end-of-year reviews of Congress’s legislative performance, Tyler Cowen challenges prevailing views of Congressional deadlock. Where others see paltry output (with Congress and the president in 2013 enacting one of the slimmest legislative records in recent years), Cowen instead sees a Congress that follows a pattern of surge and decline:

Lunging and lurching forward with big changes, then enduring periods of backlash, consolidation and frustration, is often a better description of our political system than is “gridlock,” which is too unidimensional a concept to capture the reality.

Is Cowen right? Have we underestimated Congress’s legislative performance by holding it to the wrong standard of continued legislative output? To close out 2013, I offer a few thoughts about measuring congressional productivity and Cowen’s specific claims.

First, I’m not a great fan of judging Congress based on the number of laws enacted. To be sure, that approach credits a Congress for its legislative successes. But it treats minor post office naming and major budget deals the same, and it fails to recognize Congress’s appetite for omnibus bills that has been growing since the 1980s.

Moreover, although such measures capture legislative accomplishments, they ignore legislative failure. If we are interested in measuring Congress’s capacity to tackle pressing problems, we need a measure that examines new laws in relation to to the salient national issues of the day. In other words, we ought to juxtapose a numerator that captures what Congress accomplished against a denominator of what Congress might have done. (Making that judgment in an odd-numbered year — with a second session of Congress still to come — strikes me as a tad unfair to a Congress that may yet turn itself around or even get worse.)

With a more nuanced measure of legislative performance, we can put Congress’s legislative record into perspective. Below, based on data that I developed here, I chart the proportion of big-ticket issues successfully tackled by each Congress between 1947 and 2012. As we might expect, Congressional productivity peaks in the mid 1960s with the arrival of unified Democratic Party control. Productivity sinks to record lows in the 112th Congress (2011-2), when Republicans regained control of the House but left the Senate and White House in Democrats’ hands. Granted, we can’t judge the current 113th Congress by this method until it adjourns for good in 2014. But with barely a quarter of the big issues tackled in the 112th Congress, it’s hard for the current Congress to perform much worse.

Graph by Sarah Binder

The measure provides some support for Cowen’s claim of congressional surge and decline. The zig-zag shape we see in the chart might capture what Cowen describes as lurching forward, followed by consolidation and backlash. But the zig-zag pattern is limited, making up fewer than half of the congressional transitions in the postwar period. Additionally, Cowen implies that the system is essentially self-correcting. Peaks are followed by valleys, followed by more peaks and valleys. The inference is that Congress never becomes measurably more productive or less productive over time. But the trend line in these data is a gradual, downward slide in legislative capacity.

My strongest objection to Cowen’s argument is that the lunge-and-retrench picture doesn’t help us to explain why Congressional productivity varies so much over time. Lurching and consolidating is description more than explanation. In fact, once we control for key forces that drive lawmaking in the postwar period (as outlined in “Stalemate“), there might not be much variation left for lunge-and-retrench to explain. First, unified party control typically yields more productive congresses, while divided government dampens legislative performance. Second, partisan polarization complicates Congress’s capacity for major policy change. The parties find themselves with little ideological common ground between them and little political incentive to come to the table to negotiate deals. Bicameral disagreements also throw a wrench in the works when the two chambers’ policy views are misaligned.

Changes in those three factors likely drive what Cowen describes as lurch and backlash. Unified Democratic control in 2009 and 2010 paid real legislative dividends for the majority party, even in a period of polarization. But similarly polarized parties two years later — splitting control of Congress and the branches — proved ill suited for securing major policy gains. As a result, with split party control and polarized parties in 2013, we might expect that a slew of liberal and conservative policy targets will end up on the cutting room floor in 2014, from reforming entitlements and the tax code, to addressing climate change, housing finance and NSA surveillance, to name just a few.

Cowen is certainly correct. Congress and the president might surprise us in 2014. If so, I suspect that we will credit Republicans, who might yet decide that their party image requires them to legislate rather than to block every initiative they oppose. Still, with partisan and ideological decks stacked against a resurgent Congress in 2014, a turnaround in congressional performance remains possible, but would be surprising indeed.