Five reasons why you can't judge a Congress by counting laws

For the past six weeks, the media has bid a raucous good riddance to the 113th Congress. They have trashed it for its hyper-partisanship, for shutting down the government and for being in session so seldom. They also point to Congress' 14 percent public approval rating. But most of all, the 113th is trashed for being “unproductive.”

While the disdain for the 113th Congress is understandable, critics err when they tar Congress based on a bogus metric: the number of laws passed.

The Associated Press’ Alan Fram was among those to note that the roughly 200 bills that became law during the past two years were "the fewest since at least 1947 and 1948, when what President Harry Truman dubbed ‘the do-nothing Congress’ enacted over 900 laws.”

Fram, for sure, was not the first to level this charge. Way back in September 2012, Roll Call’s Jonathan Strong and Humberto Sanchez dumped on Congress for not passing enough statutes.

But Congressional productivity cannot and should not be measured by laws enacted. As pointed out by Dr. Jacob Straus of the nonpartisan Congressional Research Service, “there is no agreement [among scholars of Congress] on what quantitative measures might be best for understanding the legislative process and evaluating congressional output over a 2-year period.”

There are at least five reasons why counting laws is a lousy measurement of congressional productivity.

1.  It makes no consideration of the substance of the laws, ludicrously treating post office naming bills and other trite legislation as numerically equivalent to hugely substantive public policies, like the Patriot Act.

2. Much of the legislation enacted by Congress today is in omnibus form. One law will make policy in disparate issue areas, or will be a package into which separate bills are folded. In December, Congress passed the 1,600-page “CRomnibus” that comprised thirteen appropriation acts. It counted as only one law enacted. Had Congress moved the spending bills separately, it would have scored 13 statutes. A few years ago, Dr. Straus points out, Congress rolled 160 bills into a single Omnibus Land Management Act.

3. Congress has changed its practices in ways that purposely reduce the number of laws it enacts. For example, Congress used to pass private laws---bills that benefit a single person---all the time. The 59th Congress (1905-1906) passed 6,249 of them, with the House of Representatives once moving 320 such bills in an hour. Additionally, Congress also delegated to agencies the authority to do things that used to require the passage of a law. Today, most agencies are free to acquire land and erect facilities. During the 80th or “do-nothing” Congress, bill after bill was introduced for purposes such as the building a high school in Roosevelt, Utah. Finally, Congress also has established internal rules that greatly limit the number of commemorative bills it passes. The 110th Congress passed 109 post office naming bills. The 113th Congress enacted 75 percent fewer of these laws because it decided they were a waste of valuable time.

4. The metric produces politically biased results. A Congress that passes few statutes is damned for being a do-nothing legislature, while a busybody Congress that enacts hundreds of laws is deemed highly productive. Even fans of big government cannot say unequivocally that more laws would be better than fewer laws. Would the left cheer the productivity of a Congress that passed hundreds of laws to jail nonconformists, conscript all 18-year olds into the military and create a 21st-century version of Sparta? Of course not.

5. Most fundamentally, counting laws fails to account for all the other duties and functions of our national legislature. Congress’ constitutional duties are many, and lawmaking is just one of them. The Senate must approve treaties and consider executive and judicial appointments. Congress as a whole has a duty to oversee the executive branch; amend or abolish failed or anachronistic policies; safeguard liberties from encroachment by the executive branch; and, of course, represent the public. Hence, accurately measuring congressional productivity requires fashioning a metric that encompasses all the duties and functions of Congress.

It is time to retire counting laws as a measure of Congress. It is a crude, biased, and meaningless metric.

Kosar is the director of the Governance Project and a senior fellow at the R Street Institute, a libertarian think-tank in Washington.