Why Congress Blows (in brief)

The passage of Trump’s ‘One Big Beautiful Bill’ (OBBB) in the last few days has made me want to give a brief survey of what Congress’ lawmaking process actually looks like in the United States at this time. I will do so by attempting to clarify the main legislative implement in the modern Congress’ toolkit, the reconciliation bill. Because of Constitutional roadblocks—particularly the Senate filibuster—the only bills that can seemingly become law these days are special, expedited pieces of budgetary legislation, proposed when one party holds the House, Senate, and Presidency. This picture is a far cry from an effective legislature capable of meeting the demands of a rapidly evolving world.

If you grew up in the United States and encountered the public school system, you will undoubtedly recall some of the meager attempts at civic educations. We all remember the Schoolhouse Rock song, “I’m Just a Bill,” featuring that anthropomorphized scrap of paper fantasizing about being signed into law. The song encapsulates the common understanding of how most of the legislative process works, or perhaps should work: citizens call their congresspeople to raise an issue, the congresspeople get together to write a law, the law is debated in committees, if it makes it out of committee it goes to a vote by the full body, if that vote succeeds it goes to the other chamber of Congress where it is reconsidered, and if that succeeds it finally goes to the President. ¹

However, there are additional, salient stipulations within this process that can obstruct this process completely, particularly the filibuster in the Senate. The Constitution imposes no limit on debate in the Senate, meaning that an impassioned senator can prevent a vote on a piece of legislation for as long as they are able to talk. 

The threshold to end a filibuster, known as cloture, is typically sixty votes.² In the 1970s, various factors brought about a change to the filibuster system. Most importantly, Mike Mansfield introduced a new framework for dealing with congestion in the Senate that would benefit both the group filibustering and those being filibustered. In brief, Mansfield’s “two-track system” enabled work to be done around a blocked piece of legislation while simultaneously shortening the amount of time a senator would have to spend speaking in opposition. This new system created a perhaps unintended consequence: “It created the silent filibuster—a senator could filibuster an issue without uttering a word on the Senate floor.” This new ‘stealth filibuster’ effectively “eliminate[d] the distinction between a filibuster and a threat to filibuster.”³

These changes and their compounding consequences have occurred against a backdrop of increasing polarization in Congress. In 2022, Pew Research Center gathered data to find that “on average, Democrats and Republicans are farther apart ideologically today than at any time in the past 50 years.”⁴ Since the 1970s, congressional delegations of both parties have moved towards more ideological cohesion with members of their party and away from the so-called ‘center.’ The middle-ground “has vanished.” There could be several reasons for this; perhaps the entrance of more money into politics, competitive primaries, or shifting media environments. Whichever the culprit, the cause is less important for our present discussion than the effect. 

Given this increasing ideological polarization of members and their parties, obstructionism has become the name of the game for the minority. Even when one party controls the House, Senate, and Presidency, countermajoritarian mechanisms meant to prevent a ‘tyranny of the majority,’ can be used for partisan purposes. In the House, there are few tactics to employ to meaningfully stop the chamber’s work—we saw this past week how House Democrats demanded Trump’s OBBB be read aloud, line by line. In the Senate, however, the silent filibuster has become par for the course: “A credible threat that forty-one senators will refuse to vote for cloture on a bill is enough to keep that bill off the floor.”⁵ Because parties very rarely have a filibuster-proof majority—and simultaneous control of the House and Presidency—the Senate has become a graveyard for the legislative agenda of the party in power, even when they ostensibly control every step of the process. 

Given this almost insurmountable obstacle crippling a united House-Senate-Presidency, much of the country’s legislative policy now has to take place through a process called reconciliation. In brief, reconciliation bills are employed when one party controls all the legislative bodies, but don’t have the votes for cloture. As defined by the Congressional Budget Act of 1974, these bills may include alterations to “spending, revenues, and/or the federal debt limit.” In practice, this means they may make changes to mandatory and discretionary spending, raise the debt limit, and adjust tax rates.⁶ Examples of reconciliation bills in the recent past are the Tax Cuts and Job Act (2017), the American Rescue Plan (2021), and the Inflation Reduction Act (2022). Besides a few high profile bills passed under Biden, these reconciliation bills are the only major laws passed by Congress in the last ten years, or thereabout.

While my commentary here is more to point out a procedural nightmare in Congress’ lawmaking process, I would be remiss to not point out some of the worst parts of the bill, at least in passing. According to the Washington Post, more than seventeen million Americans could lose their health insurance under this plan.⁷ The bill also shifts some of the financial responsibility for food stamps to the states, a move that will likely end up with some states deciding not to contribute funding at all.⁸ All of these changes to try and mitigate the damage to the deficit brought by a new tax cut that overwhelmingly benefits the most wealthy people in this country.⁹

In summary, Congress now appears to act as a group of disjointed political ideologues capitalizing on antiquated rules to jam up the lawmaking process. Even when the other party controls each phase of the legislative track—the House, Senate, and Presidency—the opposition may use political levers to prevent any major change from occurring. Their success, after all, is all but guaranteed by the text of the Constitution—a document adorned with minoritarian principles with historical roots in bargains made with slave states. The growing political toxicity of bipartisanship, brought both by siloed media environments and exorbitant amounts of money in politics, has meant that lawmakers very rarely cross over to the other side, even when a bill seems like a shoo-in.¹⁰ This regime has produced an inability to make meaningful changes to the country’s laws and left us lethargic in responding to new issues. The only major legislation that has a chance of passing are reconciliation bills—and this is only when the stars align in electoral success for one party or the other. 

One last point before concluding—no matter how much they exude frustration at this process, I have a sneaking suspicion that members of Congress prefer legislative impasse to solving the problem. The filibuster has been done away with in some aspects of government; the Senate needs only fifty-one votes to confirm federal judges to their lifetime positions. Both parties—Democrats in 2013 and Republicans in 2017—have employed the so-called ‘nuclear option’ of ending the filibuster, but neither side seems willing to dispose of it when it comes to actual lawmaking, the primary prerogative of Congress. This system benefits the individual members. If ever accused of ineffectiveness, members might simply point out the procedural hurdles and say that passing legislation is impossible in this political climate. They can focus their energies instead on their various committee assignments, farming clips for social media to boost their profile, perhaps with an idea of running for higher office or securing a high-paying job in the private sector or as a lobbyist upon their leaving government. They also avoid any personal responsibility for policies gone awry. 

Because of this congestion within Article I, the other branches of government have become, enthusiastically at times, policy makers. On the executive side, presidents attempt to stretch their existing statutory authority and the administrative state continues to handle much of the regulatory burden in light of the insurmountable impotent Congress. This has led to more confrontations with the judiciary, as businesses wishing to shirk regulation file lawsuits to stop new inventive regulations that attempt to keep pace with the world. Because “[i]t is emphatically the province and duty of the Judicial Department to say what the law is,” the opinions of judges which limit or expand the scope of regulatory authority or capacity, their writings appear as a kind of lawmaking.¹¹ The reactions of the other branches to the ineffectiveness of Congress deserve more attention that I hopefully will be able to dedicate in the near future. 

As it stands, the lawmaking process in this country is fundamentally incapable of providing meaningful relief to the large swath of Americans looking for systemic-level change. 

1. Obviously there are intricacies and formalities in this process; either chamber can revise a piece of proposed legislation—in which case it would bounce back and forth until a final text is agreed upon—budget bills must begin in the house, etc. ↩︎
2. In 1975, a rule change brought the requisite number of votes down from sixty-six, or two-thirds of the chamber. ↩︎
3. Catherine Fisk & Erwin Chemerinsky, “The Filibuster,” 49 Stanford Law Review 181-254 (1997), 203. ↩︎
4. Pew Research Center, Congressional Polarization Graphic. ↩︎
5. Catherine Fisk & Erwin Chemerinsky, “The Filibuster,” 49 Stanford Law Review 181-254 (1997), 203. ↩︎
6. Mandatory/entitlement spending refers to money doled out by the government that is not subject to the year-over-year renewal process. Examples of such are Medicare, Medicaid, Supplemental Nutrition Assistance Program (SNAP; food stamps)—the law specifically bans making changes to Social Security in this process. On a separate note, while researching this topic, I found certain sources saying that reconciliation is not meant to make changes to discretionary spending, which is properly addressed by the annual appropriations process. Others said that discretionary spending was fair game, or that there were methods to make finagle loopholes into any prohibitions. Whatever the case, the OBBB contains many changes to discretionary spending, supplementing the budgets of the agencies such as the Department of Defense and the Department of Homeland Security. ↩︎
7.  Washington Post. ↩︎
8.  Unlike the federal government, state governments cannot run a budget deficit. This means that “states will need to find millions or even billions of extra dollars in the budgets or be forced to leave the SNAP program entirely, potentially cutting off millions of Americans from this vital assistance.” ABC News. ↩︎
9.  New York Times. ↩︎
10. For example, the Respect for Marriage Act, a non-reconciliation law that passed in 2022, barely overcame the cloture hurdle by attracting twelve Republican senators out of the caucus’ forty-eight. The apparently controversial law repealed the Defense of Marriage Act—a 1996 law allowing states to disregard same-sex marriages by issuing a narrow definition of marriage as between one man and one woman—and established that states must recognize the marriage licenses of same-sex couples that were legitimately obtained in other states. Notably the law did not go so far as to demand that other states perform such ceremonies; it also explicitly said that the law could not be used to end the tax-exempt status of organizations with different views on marriage, protecting religiously-affiliated entities. Despite its uncontroversial subject matter, the caveats in the text, and its general restraint, it still could barely get beyond the filibuster. Senate Vote. ↩︎
11. Marbury v. Madison, 5 U.S. 137 (1803). ↩︎