We need a better measure of ‘congressional futility’

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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A recent Washington Times story carried this headline: “Congress logs most futile legislative year on record.” The subhead forecast “scant accomplishment for ’12 session.”

The Times’s futility finding has nothing to do with the content of legislation. Rather it is based on six empirical factors: amount of time in session, number of bills passed, number of floor votes taken, pages added to the Congressional Record, number of conference reports written and number of bills signed into law by the president. Low scores on each of these is a sign of futility, while high scores evidence productivity.

In any human endeavor, futility is associated with failure. It means you are not achieving your mission or purpose. So what do The Times’s futility metrics suggest about Congress’s mission?

Passing laws is clearly the top priority. Congress gets credit for passing a bill in either chamber and double credit if both chambers agree and the president signs it into law. They even get triple credit if a conference report preceded the law’s passing. So that means that the second session of the 111th Congress, which passed 258 laws signed by the president, including the Patient Protection and Affordable Care Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act, was less futile, or more productive, than the recently concluded first session of the 112th Congress, which passed only 62 laws signed by the president.

With passing laws the primary objective, you would think that only floor votes advancing or approving a bill would count, but apparently this criteria serves as a sort of legislator’s time clock — a way of encouraging members of Congress to put in their hours, since missed votes are always a negative in campaigns for re-election.

Finally, more hours in session are better than fewer hours, and you get double credit here, as well, since the number of pages added to the Congressional Record correlates directly with member verbosity.

So there you have it. Lots of talk and written reports followed by lots of new laws is considered productive. Little talk and few laws is futility. Unfortunately The Times is not alone in equating legislative performance with lots of legislation. And if that’s the way members of Congress (and their constituents) evaluate their own performance, it’s little wonder the country is buried in regulations, taxes and subsidies — notwithstanding the “futility” of the recently completed session.

Unfortunately, the individuals and special interests who fund congressional campaigns have bought into the more-laws-is-better measure of congressional performance. Of course most supporters only demand that their favored laws are enacted, but everyone understands that if members of Congress want to get re-elected, they better be able to show that they brought home the bacon. And that means passing enough laws to satisfy diverse constituencies.

Escaping from this vicious cycle will not be easy, but one place to start is for the small-government folks to insist on a different measure of congressional futility. That means supporting candidates who promise not to bring home the bacon — whether in the form of direct subsidies, tax breaks or government programs. In other words, that means supporting candidates who pass fewer laws.

It isn’t good enough to claim opposition to earmarks and subsidies but insist that so long as others are getting them we better be sure to get our share. If re-election depended on adherence to the principles of smaller, less interventionist government, members of Congress would quickly see that The Times has its performance measure upside down. Futility would no longer mean that few laws were passed. It would mean that Congress had continued to do what it has done for decades — pass ever more laws to bring home the bacon, and thus enable big government.

So we should hope the prediction of “scant accomplishment in ’12” is accurate. There’s nothing like a little legislative futility, as defined by The Times, to slow the growth of government and give the real job creators in this country a little breathing room.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.