The 118th Congress Hasn't Really Done Much

Hyperpartisanship Has Made It Difficult to Legislate

Recently, I attended a convening of organizations that work in a specific policy area. During a break, a colleague and I chatted about the general uselessness of Congress. I mentioned that as of that date, which was December 12, only 22 bills passed by Congress had been signed into law and that Congress was on track to be the least active since the 1950s. The colleague encouraged me to put together a chart with the data. I decided to do just that. Since that conversation, Congress is now up to 30 bills signed into law. It’ll soon be 31 when the National Defense Authorization Act for FY 2024 is signed.

Let me get a few things out of the way before I go further. By “bills,” I’m referring to actual pieces of legislation. This would mean House and Senate bills (for example, “H.R. 1234” and “S. 123”) and joint resolutions (“H.J.Res. 123” and “S.J.Res. 123”). I don’t include general resolutions (“H.Res. 123” and “S.Res. 123”) and concurrent resolutions (“H.Con.Res. 123” or “S.Con.Res. 123”) in this because these don’t require the signature of a president.

Most of my friends lean libertarian to conservative. I have a very free-market view when it comes to economic issues, but I have a “live and let live” view when comes to most social or cultural issues. I view government as, at best, a necessary evil. I’d rather Congress not pass many laws. Historically, I haven’t gotten my way.

Between 1951 and 2022, an average of 777 bills have become law in each Congress (two-year period). Since 1981, an average of 477 bills have become law in each Congress. That number has dwindled over time, for different reasons.

Increasing partisanship in Congress is one major reason. I think that’s pretty evident. It has become harder to work across the aisle. Bipartisanship is a liability in a primary. When then-Rep. Doug Collins (R-GA) ran for Senate in 2020, he was frequently attacked by Sen. Kelly Loeffler (R-GA), who was appointed to the seat, for his working relationship and personal friendship with Rep. Hakeem Jeffries (D-NY). Jeffries would eventually become the Democratic leader in the House and will likely be Speaker when Democrats reclaim the majority. Bipartisanship also doesn’t motivate voters, particularly primary voters who want red meat all day, every day. This is why grifters have become so commonplace inside Congress.

Congress.gov has data available dating back to the 82nd Congress, which began in January 1951, to now, the 118th Congress. So, I went through those data to see how many bills passed by Congress became law. I didn’t include bills that were vetoed or successfully overridden by Congress, nor did I include resolutions or concurrent resolutions since those aren’t signed into law.

Through the 117th Congress, seven of the top ten least productive Congresses have occurred since 2009. Those seven encompass every single Congress since then. The rest of the top ten were in the 1990s and early 2000s.

The current Congress—the 118th Congress—is on a record-breaking pace to be the least productive in modern history. Now, you may say, “Pye, who cares? I want Congress to do less.” Hey, I get it. I tend to agree. The lack of productivity in this Congress, though, has less to do with a purposeful intent not to pass laws and more to do with the inability of either party to govern under very thin margins or compromise. Other issues have come with this, including the removal of Speaker Kevin McCarthy (R-CA), the inability of either chamber to finish the appropriations process ahead of the beginning of FY 2024, and hyperpartisanship on steroids. We’re well past dysfunction. There’s not a word that properly describes this Congress.

As you can see in the chart below, the pattern goes in the direction of Congress doing less. That’s not necessarily a bad thing. I don’t necessarily want Congress to pass 300 new laws each year, or 600 every Congress. I’ll also note that this doesn’t capture the proclivity of Congress to pass omnibus bills that set funding levels for a fiscal year but are also loaded up with unrelated legislation.

As I mentioned, since January 2023, only 30 bills passed by Congress have become law. Another eight were vetoed by President Biden. Seven of those were disapproval resolutions under the Congressional Review Act (CRA). These disapproval resolutions, colloquially known as “CRAs” on the Hill, have privilege in the Senate and aren’t subject to the three-fifths threshold for cloture to limit debate. Of course, Congress will send more bills to President Biden. Most of those will be signed into law, but Congress isn’t likely to crawl out of the historically bad place in which it finds itself.

The House is scheduled to be in session for 111 days next year. More may be added, but let’s assume the schedule stays that way. To reach the worst-performing Congress since 1951, roughly 1.6 bills would have to be signed into law per legislative day. Folks, it’s hard to see that happening.

We should also look at those bills that have become law in the current Congress. Few of them would be considered major or consequential legislation. Of the 30 bills that have been signed into law, only five were subject to a roll call vote in the Senate. The other 25 passed by voice vote or unanimous consent. Fourteen received roll call votes in the House. Nine of those passed with at least 400 votes. So, generally, we’re talking about bills that aren’t particularly controversial. Sure, some are, but those are the exceptions.

Divided government has been the rule rather than the exception. It’s not inherently a bad thing. Let’s take the 106th Congress. In those two years, 1999 and 2000, 604 bills became law. Although traditional budgets are concurrent resolutions and not presented to the president, Congress passed balanced budgets in both years of 2.3 percent and 1.2 percent of gross domestic product (GDP) and reduced debt to GDP from 38.3 percent in FY 1998 to 31.5 percent in FY 2001. The House and Senate were controlled by Republicans. A Democrat, who was impeached in December 1998 and acquitted by the Senate in February 1999, was in the White House.

These data represent 37 different Congresses. The federal government was divided in 23 Congresses. Democrats had complete control of government in ten. Republicans had complete control in four.

Of course, it doesn’t necessarily mean much when one party has control of the federal government. Majorities may not be very large, which exposes intraparty disagreements on legislation. The filibuster can also make it incredibly hard to legislate in the Senate. Cloture motions to limit debate have become so common. That’s why the Senate tends to operate on unanimous consent. Floor time is prioritized for “must-pass” bills and nominations. Granted, most cloture motions are for nominations.

This Congress appears unique because of the thin margins for the majorities in both chambers. That being said, it’s hard to see a return to big majorities for either party in both chambers in the next few cycles. We may see more legislative activity in the 2nd Session, but I’m skeptical because of the calendar and the 2024 election cycle. Really, though, not much is going to change until the incentives change. Believe me, I want the incentives to change. Not because I want Congress to pass more laws. Rather, so Congress can function the way it was intended. Changing the incentives means that voters—specifically, those who consider themselves politically homeless, have change their behavior to stop rewarding bad actors by sending them to Washington, DC.