Don’t look now, but Congress is passing laws again

Congress is hopelessly gridlocked — or so we’ve been told for years now. Some toxic brew of political polarization, gerrymandering and our cumbersome constitutional structure has left us with a legislature that is institutionally incapable of doing anything more than lurching from crisis to crisis, usually (but not always!) avoiding disaster at the last minute.

{mosads}I have been a skeptic of this conventional narrative of congressional dysfunction for some time (see here for the scholarly version and here for an extended interview with National Review’s Reihan Salam). But I certainly never claimed that the 112th and 113th Congresses (2011 to 2015) got a lot done. My claim, instead, was that their failure to do so was not an indication of any particular institutional dysfunction, but rather a manifestation of a larger politics in which there simply was not adequate public consensus over which laws to pass.

Recent congressional activity lends further support to the notion that claims of institutional dysfunction were indeed premature. After all, we still have the same constitutional structure, and we still have divided government. There hasn’t been an infusion of new members of Congress since last January. And yet the national legislature has suddenly sprung into action.

Consider what has happened since John Boehner (R-Ohio) announced, less than four months ago, that he was resigning the Speakership. First, Boehner “cleaned the barn” for his successor by pushing through a two-year budget resolution and a suspension of the debt ceiling through March 2017, largely removing the specter of fiscal crisis for the rest of the 114th Congress (and for the rest of the Obama administration).

Then Congress went on something of a tear: between Paul Ryan’s swearing in as Speaker on Oct. 29 and the end of the session on Dec. 18, Congress passed 42 new laws. Some of these were truly major accomplishments: The zippily named FAST Act was the first long-term legislation funding transportation infrastructure since a 2005 law that had expired in 2009, and it reauthorized the Export-Import Bank, to boot. The Every Student Succeeds Act was the first major federal K-12 education bill since the 2001 No Child Left Behind Act, and it repealed or modified many of the most unpopular elements of its predecessor. Then, just before adjourning, Congress passed a bill funding the government for the next fiscal year, extending certain tax breaks for another year and making others permanent. The bill contained several notable policy breakthroughs, including good news for the oil industry, the renewable power industry (and therefore the environment) and low-income Americans. Additionally, some experts are optimistic that, by making some of the most important tax breaks permanent, the bill paves the way for allowing the rest to quietly expire next year. Each of these major laws passed with strong bipartisan majorities.

Of course, many of the 42 new laws are smaller-bore: post office naming bills, an act to establish a “Social Media Working Group” in the Department of Homeland Security, and the like. But some of those new laws are more important than they look: microbeads in cosmetics are an environmental disaster, and the Microbead-Free Waters Act bans them. And the fact that ordinary, smaller bills can get through is evidence that partisan polarization and acrimony are not paralyzing Congress: After all, such bills are nothing if not the ordinary functioning of democratic politics.

To be sure, no one thinks that any of these 42 new laws is perfect. But that’s exactly the point. In the absence of consensus as to what constitutes a “perfect” bill, the two options are compromise, which leaves everyone at least a little unsatisfied, or holding out. The latter, of course, results in inaction — the “gridlock” of which we’ve heard so much in recent years. At least for the last couple of months of 2015, Congress seems to have decided that the public wanted to see compromise. And so, they began to act.

Chafetz is professor of law at Cornell Law School, where he writes on legislative procedure, the separation of powers and constitutional history. His first book, “Democracy’s Privileged Few,” was published by Yale University Press in 2007. His second book, “Congress’s Constitution,” will be published by Yale University Press. Follow him on Twitter @joshchafetz.