—Senate Minority Leader Harry Reid (D-Nev.), remarks on the Senate floor, Dec. 2, 2015
The Fact Checker is always pleased when lawmakers refer to our Pinocchio scale.
But our interest was especially drawn to Reid’s claim that the current Senate was “the most unproductive Senate in the history of the country, and there are facts and figures to show that.”
Reid was responding to what he described as constant legislative crowing by Mitch McConnell (R-Ky.), the new Majority Leader, who he said “comes to the floor virtually every day and talks about this great new Senate.” In Reid’s view, the current Senate is simply passing legislation now that had been previously blocked by Republicans when they were in the minority.
Often, it appears that Democrats and Republicans are not even operating in the same chamber, given their divergent views about what is happening on the Senate floor. Still, Reid said he had “facts and figures” to back up his claim. So what’s his evidence?
It turns out that Reid’s staff only had data going back to 1987, drawn from a report by the Congressional Research Service. The notion that this is the worst Senate in U.S. history was apparently the result of overenthusiastic, extemporaneous speaking. We try not to play gotcha at the Fact Checker, but it’s hard to see how just 28 years of data can be so easily stretched to two centuries, unless you’re Donald Trump.
Nevertheless, let’s look at the evidence. Reid is focused on two facts—number of bills passed and number of nominations confirmed. Those are supposedly the “products produced over time” by the Senate. His staff asked the CRS to compare those metrics for the first year of each Senate, up to Dec. 5. The details are in the graphic below.
The first thing you see is that McConnell already has improved on the last three Senates in terms of bills passed. As of Dec. 5, the 114th Senate has passed 157 bills, compared to 99 in the 113th, 112 in 112th and 156 in 111th (when Reid had a filibuster-proof majority.)
But in term of confirmations, the McConnell Senate certainly lags. As of Dec. 5, confirmations have totaled 136 (though another three took place on Dec. 7), compared to 213 for the 113th, 279 in the 112th and 426 in the 111th (the start of Obama’s first term). So that’s a total of 293 for the 114th Congress, slightly lower than 312 for the 113th Congress—and well below the average of 569 over this time period.
But experts we consulted were not impressed by Reid’s combined metric. First of all, it treats every bill equally, when they says it’s silly to equate huge pieces of legislation that change the course of the economy with a run-of-the-mill renaming of a post office. As for confirmations, a lot depends on how many nominees are submitted by an administration—and we are in final two years of President Obama’s term.
Yale Professor David Mayhew, who wrote numerous books on Congress, was blunt in his dismissal of counting bills—and skeptical of nominations. He wrote in an email:
- “Number of bills passed” is a terrible comparative measure. That is for two reasons, at least. 1) Some bills are vastly more important than others. Enacting TARP [Troubled Assets Relief Program] in 2008, e.g., is in a different league from approving a resolution to build a post office or to establish national petunia week. It is not even apples and oranges. It is mice and buffalo. 2) Since the 1940s, Congress has drifted toward grouping provisions into thick omnibus bills. That is true of budget measures but also otherwise. So comparisons of “N bills passed” with especially past decades like the 1940s or 1950s are probably worthless. Think of the big stimulus bill passed in early 2009. Somebody has written a whole book about the various stuff included in that. My guess is that those various stimulus provisions would have been enacted as maybe a dozen separate enactments in the 1940s or 1950s.
- Nominations? Maybe that is more promising. At least there we have a sure denominator. Only the executive branch sends up nominations. It makes sense to look at the proportions of them that are approved. Does it make sense to look at the absolute number of nominations that are approved, as an addition or an alternative? Well, maybe. Note that nominations are different from bills. With bills, we do not have any sure denominator. The president proposes things, but so do the congressional parties, individual members of Congress or coalitions, interest groups, the whole society in a sense.
If we look at confirmations as a percentage of nominations, as Mayhew and other experts suggested, then Reid has a point. According to statistics from Reid’s staff, confirmations are running well behind recent years. Just 39 percent of nominations submitted by the Obama administration have been confirmed thus far in the 114th Congress, compared to 58 percent in the 113th, 77 percent in the 112th, 81 percent in the 111th and 67 percent in the 110th. That’s a significant difference. The 110th Congress, for instance, was the last two years of a presidential term (George W. Bush)–when the Senate was held by the opposing party.
But recall that the Democrats moved to the “nuclear option” in the last Congress to speed through nominations—and then infuriated Republicans by confirming a slew of lifetime judicial appointments after the midterm elections in which they lost control of the Senate. Small wonder that there’s been some slow-rolling on nominations by the new majority.
Are there any better metrics? Unfortunately, not really.
The Brookings Institution publishes “vital statistics” on Congress and has data on recorded votes going back to 1947. Recorded votes would indicate whether the Senate is not only passing bills and confirming nominees but also whether it is considering amendments on a regular basis, helping to shape legislation. By that measure, as of Dec. 5, the current Senate had 331 recorded votes—already well ahead of the 291 recorded votes in the 113th Congress over its entire two-year period.
Mayhew said the number of amendments “is an interesting and important statistic” but he had doubts about relying on recorded votes. “Having a lot of recorded votes, as with having a lot of deliberation, can contribute to the public interest even if it doesn’t have much or anything to do with ‘productivity’ in the sense of the actual generation of new laws,” he said.
Another problem with counting recorded votes is that the minority often determines whether or not a measure gets a vote on the Senate floor. Democrats claim that they have been more willing to permit votes—something Republicans dispute—and it’s going down in a rabbit hole to determine who might be right.
Sarah Binder of the Brookings Institution pointed to a series of metrics designed by the Bipartisan Policy Center that looked at the “health” of the Congress as another possible measure. This measures such items as working days and amendments considered, and bills ordered by committees. The current Senate thus far “has increased the number of days working in Washington and considered a high number of amendments on the floor,” compared to previous Congresses, the center concluded. But some might say “health” is not the same thing as “productivity.”
Ultimately, experts said, there is no good measure of productivity for the Senate. “In the case of legislating, we would see a Congress that enacts nothing at all is not doing its job, but we would probably also see a Congress that uses as its standard ‘the more laws the better’ as being crazy,” Mayhew said. “In the sense of serving the public interest in a heterogeneous society where different views exist and solutions to problems are unclear, a Congress may be doing its job by deliberating about a matter, considering it, and then adding nothing at all to the statute books.”
As Norman Ornstein of the American Enterprise Institute put it, “The famous do-nothing 80th Congress that Harry Truman railed against enacted the Marshall Plan. If that was all it did, it would have been an extraordinarily productive Congress.”
The Pinocchio Test
Reid may have a point on the slow percentage of nominations confirmed in the current Senate, but his counting of bills as “productivity” is pretty nonsensical. It’s really not valid to treat all legislation as one-size-fits-all sausage. So jumbling together bills and nominations as a single figure is even less logical, according to the experts we consulted.
On balance, we’d say his claim would be worthy of Two Pinocchios—but then Reid gets another Pinocchio for asserting this is the “most unproductive” Congress in U.S. history. That’s a pretty extreme statement, given there are other metrics that indicate this Senate is operating at a better or faster pace than the last Senate when Reid’s party headed the majority. Reid needs to be more careful with his rhetoric.
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