Worst Congress Ever? Too Soon to Tell.

E. Scott Adler and John Wilkerson

It seems to have become common knowledge that this is the least productive Congress in history. The lead statistic cited is the small number of public laws passed by the 112th Congress compared to previous congresses. However, there are important drawbacks in how this statistic has been used. The first is that observers have compared the number of laws passed by this Congress so far to the total number of laws passed by previous congresses. This creates the impression that the 112th was only half as productive as other recent congresses. The second is treating all laws as being of equal importance when the reality is that laws vary dramatically in their legislative significance. A law to designate the postal facility in Hartshorne, Oklahoma, as the “Warren Lindley Post Office” (1 page in length) is not the equivalent of the Food and Drug Administration Safety and Innovation Act (140 pages).

Figures 1 and 2 compare the productivity of the 112th Congress to the 103th-111th congresses for the first 20 months of the congressional term after excluding minor public laws and appropriations enactments (including continuing resolutions). Figure 1 presents a simple count of public laws while Figure 2 assesses productivity in terms of pages of those laws. According to these measures, so far the 112th has been about as productive in total laws as the 104th (1995-96) or the 107th (2001-02), or in page productivity of legislation about the same as the 108th (2003-04) and even more productive than the 106th (1999-2000) and 108th (2003-04) congresses.

What can we expect over the next 4 months? The 112th Congress has some significant legislative challenges waiting in the wings (the expiration of the Bush tax cuts and the looming budget sequestration, to name just two), and many doubt that it is up to the task. Nevertheless, the data suggest a different possibility. Figures 3 and 4 compare lawmaking during recent periods of unified and divided government (again, counts of laws and pages of laws after excluding minor laws and appropriations). Compared to unified governments, divided governments tend to be less productive in their first sessions and accelerate their productivity in their second sessions. Furthermore, the productivity gap narrows most dramatically in the final three or four months of a congressional term.

Of course, as they say, past performance is no guarantee of future success. Some argue that the current Congress is different in ways that make such comparisons suspect. That said, the data do raise questions about the conventional wisdom and offer reason to think that, once Congress and the President get past [J1] the November elections, they will get back to the business of problem solving.

E. Scott Adler and John Wilkerson’s most recent book is Congress and the Politics of Problem Solving (Cambridge 2012)