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It's a cliché to call an election-year Congress do-nothing. The history doesn't match

President Joe Biden signs the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 into law on Thursday.
Anna Moneymaker
/
Getty Images
President Joe Biden signs the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 into law on Thursday.

President Biden's State of the Union address gave a lift to his poll numbers, especially on his handling of Ukraine. But while that crisis continues to occupy center stage, the White House is hoping some of the spirit of unity it has instilled can also help revive his domestic agenda.

That means restarting the engines on a convoy of major bills now stalled shy of passage in the Senate.

And it means overcoming the sense that Congress cannot get much done – or at least cannot take big or politically risky steps – in an election year.

It's easy to point to examples of past efforts that proved fruitless as members turned their attention all but exclusively to their reelection. The variables affecting what happens in an election year are more complicated than in non-election years.

But there's no law against making laws in an election year. There are special challenges, to be sure, but the hurdles may loom larger in lore than in reality.

Here's some of what's on the to-do list

Members in both chambers in both parties are distracted by primaries, fundraising and the demands of campaigning. Congress typically decamps for much of the fall prior to the general election in November.

For now, in the latter half of the 117th Congress, the Democrats' main problem is overcoming their weakness in the Senate, where resistance from one or two of their 50 members has deprived them of a working majority. It's not just a Senate problem, however, because the House would have to approve any attempts to please those Senate holdouts by scaling back the agenda.

That would apply to elements of Biden's Build Back Better package addressing climate change, child care, prescription drug prices and the minimum wage. All of these measures poll well among the middle-class and non-college voters Democrats are desperate to woo back.

Democrats would also dearly love to use this election year, and the suddenly elevated level of voter interest, to complete action on their voting rights bills. These, too, fell short in the Senate due to a wall of Republican resistance and the defection of one Democrat.

Election-year laws include the Affordable Care Act and Dodd-Frank

Consequential legislating usually requires a lot of compromise, which means some degree of good faith bargaining and willingness to accept some political risk. Asking lawmakers to do this gets harder as a primary approaches and members feel pressure to please their own party's voters. Primary voters tend to be more partisan than those who vote only in November.

Finally, there is the often well-founded fear of change, especially change that generates clear winners and losers. Those who like any given change often get complacent when it happens, while those opposed to it get angry and energized.

That was a major factor in Obama's reversal of fortunes after being elected in 2008. The Affordable Care Act and the Dodd-Frank deregulation of Wall Street were finished in the midterm election year of 2010, and Obama's party got clobbered. The "Tea Party" midterm in 2010 cost Democrats more than 60 seats (and the majority) in the House.

"The conventional wisdom is that a chamber's majority party gears the election-year legislative agenda to the election," says longtime congressional scholar Steven S. Smith, a professor of political science at Washington University in St. Louis.

"The motivation is to give its members better chances in the election by avoiding difficult votes," Smith adds, "thereby enhancing the party's odds of retaining majority control."

Smith says that usually translates to "avoiding controversial bills," but not always. And when a party chooses to go boldly, things can go well or things can go very, very badly — as 2010 proved.

Still, these dynamics do not make the challenge insuperable. Smith says there can also be occasions where the election dynamic "justifies passing popular legislation and improving a reputation for competence at governing."

Some election-year achievements are held up as examples of Congress at its best

A salient example of the latter dynamic would be the election year of 1996. Bill Clinton was running for a second term as president. Both the House and the Senate were controlled by Republicans, and it was the first time the House had a GOP majority to protect since the mid-1950s.

One might have expected a donnybrook, with little or nothing getting done. After all, the Republicans had won their majorities in Congress largely by opposing Clinton, who was running for another term largely by vilifying Republican ideas about budget cuts.

But the warring parties still managed to get together and enact several major pieces of legislation. Perhaps the biggest was a long-debated overhaul of the welfare system that Clinton called From Welfare to Work. But there was also major interest in law allowing employees to maintain their health insurance when changing jobs.

Extending the bipartisan consensus still further, Clinton and the Capitol Hill leadership passed the first update to telecommunications laws in 60 years, strengthened the Safe Drinking Water Act and raised the minimum wage.

While each of these measures generated friction within and between the parties, the ensuing election was generally good to incumbents in both. Clinton dominated in the Electoral College and the Republicans held their majorities on the Hill.

Lawmakers watch as President Ronald Reagan signs into law a landmark tax overhaul in October 1986.
Bob Daugherty / AP
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AP
Lawmakers watch as President Ronald Reagan signs into law a landmark tax overhaul in October 1986.

There have been other examples, both before and since. In 2002, despite the rancor over the Florida vote count that nearly upended the 2000 presidential election, Congress and President George W. Bush put together the Help America Vote Act, largely modernizing the voting system nationwide.

In 1986, President Ronald Reagan was facing his second midterm election cycle in office and trying to hold on to a narrow Republican majority in the Senate. But he did not shrink from big projects on the way. His support and a great deal of maneuvering in a divided Congress brought home an immigration bill that granted amnesty to millions of longtime residents who had entered the country without documents. A similar dynamic of cooperation between the branches and the parties carried home the Tax Reform Act, the most sweeping rewrite of the tax laws in generations.

Those achievements have often been held up as examples of Congress at its best. But they did not do much to help Reagan's party that November. His GOP lost a net of eight seats in the Senate and fell into the minority for the next eight years.

It's not easy to pass a bill regardless of election-year pressures

On the numbers, it must be said that it's hard to pass bills in an election year because it's always hard, whether the year has an odd or an even number. Most bills never make it through the committee process to floor consideration, let alone final enactment into law. Many that do (nearly a third of the total in 2019-20) are considered "ceremonial," naming post offices and parks and commemorating this or that.

Most bills are introduced in the first year of a biennial Congress. The process usually takes months. So most bills that do get enacted into law make it through in the second year, which is always an even-numbered year that brings elections for all the seats in the House and one-third of those in the Senate. Every four years, it also brings a presidential election.

It is true that many landmark laws have been enacted in the year immediately following an election. That was true for Franklin Roosevelt's New Deal and Lyndon Johnson's Great Society. It was true for Reagan's tax cuts and reordering of budget priorities, and George W. Bush's big tax cut and No Child Left Behind legislation.

Ruling out game-changer legislation of this order in election years would mean sidelining the Congress half the time. But could history-making of this magnitude ever get through in an election year? Smith notes that measuring such a thing reliably would require a firm and defensible definition of what is a "major bill."

Don't sleep on the lame duck

Moreover, he adds, the scorecard can get confused because of "lame duck" sessions. These are held in the weeks after the election, when campaign season is over but the newly elected folks will not be sworn in until early January.

Such sessions often belie their name. Clinton was impeached by one such session in December 1998, and there were dramatic confrontations over spending bills after the election of 2012 (the so-called "fiscal cliff" crisis) and after the midterm election on 2018 (which resulted in a five-week partial shutdown of the federal government).

The last lame duck, in late 2020 and the first week of 2021, was the most productive in half a century, according to congressional data analyzed by the Pew Research Center. Of the 344 bills that became law in that Congress, 151 (44%) were passed in the final two months — after the election of 2020. It should be noted that any bill not passed when a Congress ends, dies with that Congress, so the lame duck represents productivity under pressure.

To some degree, the expanding importance of these sessions reflects the human tendency to procrastinate and delay until absolute necessity takes over. But it also demonstrates that, even when enough consensus exists to make laws, it can be easier to do so when election tensions may have eased and the heat is off.

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