Counting Congressional Productivity

The 113th Congress has thus far passed 57 bills that President Obama has signed into law. With the passage of a budget deal, the total should reach 58 before long. The following is a summary of the number of laws enacted since 1999:

113th Congress (2013 – 2015)	57*
112th Congress (2011 – 2013)	284
111th Congress (2009 – 2010)	385
110th Congress (2007 – 2009)	460
109th Congress (2005 – 2006)	483
108th Congress (2003 – 2004)	504
107th Congress (2001 – 2002)	383
106th Congress (1999 – 2000)	604
Total	3,159
*The 113th Congress is at the end of its first session.
Data compiled from govtrack.us.

At this rate, the 113th is on pace to shepherd 114 laws, which is about 25% of the 443-law average over the past 6 Congresses. With respect to the meager count, although Democrats and Republicans are divided over blame, both sides seem united in using the law tally to gauge congressional productivity (see here, here, and here).

But measuring the effectiveness of Congress by the number of bills it passes is troublesome. This is true for two reasons. First, it obscures the much more meaningful underlying policy debates. Second, it perpetuates a ministerial state that (a) alienates people from the rules to which they are subject and (b) impedes economic growth with costly regulations.

            Numerousness Is A Clumsy Proxy For Good Policy

Article I of the United States Constitution confers on Congress all federal lawmaking power, most of which is enumerated in Article I, Section 8. There is no provision that compels Congress to maintain a lawmaking quota; for example, the 6th Congress, from 1799 to 1801, was responsible for passing 6 laws (from govtrack.us). Congress’s only obligation is to address the concerns of citizens. Our lawmakers should be judged by how well they do that job. Arguments about policy are more productive than are complaints about gridlock because it is policy not politeness that facilitates prosperity. 

The charge that Congress is failing because it’s beset with acrimony only serves to discredit a political party, a political body, or a proponent of a political position while eschewing debate on the merits.  Such posturing reflects either (a) a lazy reluctance to do the hard work advocacy entails or (b) a calculated effort to eliminate dissent from discussion. 

Take the Senate immigration bill (here), for example, which includes enhancements to border security, increased visa numbers for skilled workers, and a pathway to citizenship for the country’s illegal aliens. Immigration reform is often listed as a casualty of Congress’s lameness. Supporters who bemoan congressional inaction on immigration have a responsibility to persuade people that the bill, with its border provisions, visa increases, and citizenship pathway, is good for the country. The bill should succeed or not depending on the strength of the advocates’ arguments.

Congress should be judged on its ability to mind the people’s business. Fixating on counting bills frustrates the ability to properly make that important assessment.

Law, Liberty & Liberality

Using the bill count as a metric of Congress’s effectiveness is corrosive because it encourages exponentially more lawmaking. There is virtue in recognizing and, more importantly, halting the annual torrent of legislation. In 1788 James Madison warned about the perils of too many and overly complex laws:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.

The Federalist No. 62.  

Since 1999 Congress has passed 3,159 bills that the President signed. At an average of 3,105 words per measure (see here), about 9.8 million words of law have been added in the past 14 years. The Patient Protection and Affordable Care Act alone, for example, is approximately 314,000 words long.

During the debate prior to the ACA’s enactment, critics used the bill’s enormity as a basis for opposition. In a revealing defense, Ezra Klein of the Washington Post explained (here) that the ACA’s length and complexity aren’t problematic:

10 health-care staffers could read 210 pages each and tell you what's in the bill pretty exactly. That's what they're paid to do, presumably. . . . And it isn't clear why legislation affecting millions of Americans should necessarily be shorter than something I had to read in college. . . . But it isn't just the formatting inflating the word count. It's the words themselves. Legislation is written for lawyers, not for people.

Witness alienation and an implicit repudiation of Madison.

Built into this assessment is the necessity of paid congressional staffers, a stark indication that our lawmakers themselves are unable to keep apace with the workload of lawmaking. It bodes poorly for the American citizenry that legislators need help merely to understand what’s in a bill, and it is evidence that Congress should tackle fewer rather than more legislative initiatives. More troubling still is the proclamation that laws are written for lawyers. If correct it’s more likely a vice than a virtue; requiring reliance on lawyers to understand our laws erodes the essence of liberty by disconnecting the individual from the rules of governance.

Congress should be judged on its ability to mind the people’s business.  More laws of ever growing complexity and opacity constitute a disservice to democracy.

            Laws Beget Regulations That Beget Expensive

And the laws themselves are just the beginning. Executive Branch officials promulgate regulations to accompany any new piece of legislation, often for the purpose of defining vague legislative pronouncements. Thus, much policymaking is relegated to government personnel who (a) were never elected and (b) work mainly outside of public scrutiny. If Congress outsources this task because it is otherwise preoccupied with lawmaking, it would do better to focus more thoroughly on fewer laws. If Congress outsources this task because it cannot find consensus enough to be clearer, it would do better to continue to argue until consensus is reached.  

Also, regulations, particularly if voluminous, are burdensome irrespective of their purported value. Businesses expend costs just on compliance. If a business is forced to follow a new regulation, the cost to that business is one part substantive and one part administrative. At best, the regulation’s advocates who extol the former should worry about the latter.   

In 2012 the Executive Branch published 3,714 regulations, accounting for 80,050 pages in the Federal Register. Following is a summary of the number of laws, regulations, and pages of regulations since 1999:

Year	Number of Regulations Published	Number of Laws Enacted (Average)*	Average Number of Regulations per Law	Pages of Regulations Added to the Federal Register
2012	3,714	142	26.2	80,050
2011	3,781	142	26.6	82,415
2010	3,563	192.5	18.5	82,480
2009	3,456	192.5	18.0	69,643
2008	3,820	230	16.6	80,700
2007	3,594	230	15.6	74,408
2006	3,730	241.5	15.4	78,724
2005	3,978	241.5	16.5	77,777
2004	4,174	252	16.6	78,852
2003	4,283	252	17.0	75,798
2002	4,171	191.5	21.8	80,332
2001	4,136	191.5	21.6	67,702
2000	4,490	302	14.9	83,294
1999	4,672	302	15.5	73,880
Total	55,562	3,103	17.9	1,086,055
*Congressional session divided by half.
Number and pages of regulations compiled from federalregister.gov.

These regulatory costs constrain economic productivity.

In a study conducted by the Competitive Enterprise Institute (here), regulations cost an estimated $1.8 Trillion in 2012. The Small Business Administration found (here) that regulations cost about $1.75 Trillion in 2008. The SBA also estimated that in 2008 the cost to businesses was about $8,086 per employee, or about $10,585 per employee for businesses with fewer than 20 workers.

The Executive Branch, through its Office of Management and Budget, produces an annual estimate of the economic impact of its regulations. In its most recent survey of 115 of the 536 “major rules” promulgated between 2002 and 2012 (here), the OMB approximated costs of between $56 and $83 Billion and benefits of between $192 and $799 Billion. So the OMB determined that regulatory costs are relatively modest and justified by much higher benefits.

These competing assessments are all susceptible to scrutiny. But the OMB numbers attest to a minimal regulatory cost of our administrative state. That alone should underscore the importance for laws and regulations to be enacted and promulgated sparingly and under scrutiny. 

Congress should be judged on its ability to mind the people’s business. More laws require more regulations that hinder economic growth.

As Alexander Hamilton wrote, “The essence of the legislative authority is to enact laws.” But Congress is not beholden to a fixed amount of rulemaking. The best benchmark with which to measure congressional productivity is the extent to which legislation facilitates flourishing. Without examining each and every proposed rule through that prism, the better default is fewer rather than more laws.

Motivated by purpose, united in spirit. Viva PRPR!