The Substance of Lawmaking and the 112th Congress

Much of the recent hand-wringing regarding the current “do nothing” Congress derives from historical comparisons of a rather basic and probably inadequate measure of congressional productivity – a count of laws enacted. In a previous blog post we demonstrated that conclusions about productivity will vary depending on whether counts or pages of laws are the metric. (Other scholars have developed comprehensive measures of law importance based on expert judgments etc.,12 but to our knowledge have not made those measures available for recent Congresses.)

Here, we dig a bit deeper into the substance of congressional output. In the 1970s, political scientist Jack Walker (1977) distinguished between issues that Congress “must” address and issues that lawmakers want to address. Attention to the former displaces attention to the latter. Our new book systematically examines whether such a distinction helps to explain patterns of congressional policymaking. (We also further distinguish legislation addressing issues of minor importance.)

Our central finding is this: Congressional policymaking is driven to a large degree by endogenously imposed deadlines (as well as exogenous shocks).  The graphs that follow begin to illustrate this point with reference to recent Congresses (103rd to 112th [1993 to 2012]).

A Typology of Laws

Minor Laws. Many laws passed by Congress do not redirect the ship of state – they name post offices, authorize commemorative medals, make technical corrections to existing laws, address public land issues that are primarily of local concern, etc.

Compulsory Laws.  Nothing actually compels Congress to take up tax reform during a lame duck session, but few would disagree that the expiration of the Bush tax cuts on December 31 of this year has altered lawmakers’ calculations about their legislative priorities. Appropriations laws as well as a broad range of statutes with periodically expiring authorizations create a similar added sense of urgency for legislative action.

Discretionary Laws. We assign other non-minor laws to a residual category we label “discretionary.” Many laws in this category undoubtedly reflect longstanding policy priorities of individual lawmakers or political parties. However, others are undoubtedly motivated by a sense of urgency due to external events (such as a devastating hurricane or a financial crisis), and in this respect might arguably be viewed as more compulsory than discretionary.

In terms of counts, most of the laws passed by Congress are minor or discretionary in nature (Figure 1). However, when assessed in terms of pages of legislation enacted – an improved metric in our view – compulsory laws (appropriations and reauthorizations) constitute the plurality of lawmaking activity (Figures 2 and 3).

Reauthorizations and appropriations also represented the bulk of successful lawmaking during the first 20 months of the 112th Congress (Figure 4). Although there is nothing truly compulsory about an expiring law or appropriations, such internally imposed deadlines do appear to foster cooperation even among lawmakers who have significant difficulty cooperating under other circumstances.

Furthermore, the fact that our metric is pages of laws, not counts of laws, indicates that the highly partisan 112th Congress is not just passing brief extensions of expiring programs and appropriations;  it is also passing substantively important updates (for example the Defense and FAA reauthorizations).  Further, such reauthorization efforts often serve as the pretext for policy changes that go well beyond the stated purpose of the legislation.  For example, Title I of the 102 page Middle Class Tax Relief and Job Creation Act of 2012 (P.L. 112-96) extended the payroll tax reduction (less than one page), while seven other Titles reformed unemployment compensation law, Medicare payment rates, and authorized spectrum auctions, among other things.

As “policy focal points,” compulsory issues create opportunities for policy change that would not otherwise exist. Their consequences for legislative agendas and policy change deserve more attention. The fact that a number of important programs are scheduled to expire before the end of the year (e.g. the Farm bill and the Violence Against Women Act, not to mention the Bush tax cuts and the fiscal cliff) should be an important variable in assessments of how productive the 112th lame duck session is likely to be.