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The 109th Congress...So Far

The conventional wisdom about the 109th Congress, now at the end of its first session, has largely emphasized Republican division and a derailed agenda. This is an interesting theory -- and there are two ways one could look at it. On the one hand, one could examine start-of-session expectations and then examine end-of-session assessments of how Congress has met those expectations -- placing it in the context of the congressional soap opera. This is the usual method of assessing congressional performance.

There is, however, another way to evaluate congressional performance. One could compare this session with the average legislative output of other congressional sessions to see how the 109th thus far compares to congressional history. I have seen no attempts at this latter method. This is surely valuable, as it gets beyond the influence of start-of-year expectations, which are almost always unrealistic.

David Mayhew's Divided We Govern serves as a good starting point for this second line of analysis. Mayhew, examining end-of-year session write-ups in The New York Times and The Washington Post (in addition to miscellaneous supplementary material, and what he calls "retrospective judgments" written by experts at a future date) from 1946 to 1990, finds that, on average, when the same party controls the presidency and Congress, Congress produces 12.8 "major" acts per two-session Congress. That would work out to 6.4 acts per session under unified government. This gives us some perspective: if we find about six to seven major pieces of legislation, we can tentatively conclude that this session was average.

Actually, we might expect a little bit less than six to seven. As I mentioned, Mayhew uses newspaper write-ups as a "first sweep" to see what contemporary observers thought were important. He then examines retrospective judgments -- comments by policy experts who evaluated certain pieces of legislation -- to see if the journalists missed anything.

So, how does the first session of the 109th stack up? Fairly well, as it turns out. Looking at the The New York Times' assessment of what Congress did, there seem to be six major pieces of legislation Congress has passed. Quoting Sheryl Gay Stolberg:

ENERGY -- The first comprehensive energy bill in years sets rules to increase the reliability of electrical supplies, encourage construction of nuclear power plants and finance research into alternative energy sources.

CENTRAL AMERICA FREE TRADE -- Most trade barriers between the United States and six small Central American countries are removed.

HIGHWAY SAFETY -- More stringent safety measures are instituted, including the first performance standards intended to reduce rollovers. States can now receive additional federal money if they enact laws allowing the police to pull over drivers for not wearing a seat belt.

BANKRUPTCY OVERHAUL -- The first major overhaul of bankruptcy laws in 27 years disqualifies many families from erasing their debts and getting a ''fresh start.'' Significant new costs are imposed on those seeking bankruptcy protection, and lenders and businesses get new legal tools for recovering debts.

CLASS ACTION LAWSUITS -- The ability of people to file class-action lawsuits against companies is sharply limited, and many such cases will now be transferred to federal courts from state ones.

TORTURE -- Cruel, inhumane and degrading treatment of prisoners in American custody is banned in a bill sponsored by Senator John McCain, an Arizona Republican and a former prisoner of war, that was originally opposed by the White House.

This is just a rough estimate -- as Mayhew has sources other than the NY Times write-up on one session of a given Congress (and the write-ups in the period he studied were more elaborate than the 2005 write-up I found). This does not amount to a repetition of Mayhew's method, by any stretch of the imagination. For instance, I had to estimate that several of the pieces of legislation mentioned by Stolberg, e.g. $3.9 billion to prepare for bird flu, would not find their way into the kind of write-ups Mayhew found, and therefore would not count as an "important" piece of legislation. But it seems, as rough as this data is, that this session has not been unproductive. The average session produces six to seven pieces of important legislation, and this session seems to have produced six.

Unfortunately, this method does not evaluate the extent to which the President led Congress. Obviously, Bush did not get everything he wanted -- notably Social Security reform and an extension of the Patriot Act. Further, the torture law was something he had to compromise upon. So, it seems fair to say that Bush's presence was not felt as strongly as it could have been in this session (though it is difficult to judge how Bush stacks up against other presidents who enjoyed a Congress of the same party).

However, this should not detract from the fact that the 109th is, thus far, on par with previous Congresses. So, when pundits are discussing how unproductive this legislative session has been, they are not really doing so with much historical perspective. For a Congress that is controlled by the same party as the President, this session seems to have been normal.

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