By: Darren Samuelsohn and David Nather
January 22, 2014 05:01 AM EST
Everybody knows that Congress can’t do anything big any more – but it turns out Capitol Hill is equally hapless about getting the small stuff done as well.
All the dysfunctional partisan gridlock keeping the House and Senate worlds apart on the transcendent issues of the day also means little progress on the no-brainers, like technical corrections and minor fixes to Obamacare and the Dodd-Frank Wall Street reform law. Revamping the nation’s energy policies with low-hanging fruit proposals championed by both Democratic and GOP lawmakers are stuck, too.
It’s a broken government with messy consequences. Absent action from Congress, the Obama administration is stuck navigating a maze of murky statutes and crafting regulations ripe for lawsuits. A glance at recent Supreme Court and federal appellate court dockets underscores what happens when inertia rules in the House and Senate.
Sure, there are exceptions — Congress just passed a $1.1 trillion spending bill to fund the government for the rest of the year, and it even managed to adopt a modest budget blueprint last month. But don’t be fooled. Funding the government is the bare minimum in lawmakers’ job description, and the overall pattern is unchanged: even the things that should be a breeze have suddenly become very hard.
Lawmakers hit a new low in 2013, passing the fewest number of laws in modern history, easily besting even the “Do Nothing” Congress that President Harry S. Truman famously assaulted. Typically, the second year of a congressional session picks up the pace, as the two chambers catch up with each other and a flood of bills pass surrounding the next election.
But this isn’t your typical Congress. Senate Majority Leader Harry Reid has become an expert at blocking floor votes on politically tinged amendments offered on both big bills and the benign ones. House Speaker John Boehner has declared that his legacy shouldn’t be measured by how many laws make it to President Barack Obama’s desk.
“It’s become almost a caricature,” Senate Majority Whip Dick Durbin told POLITICO. “We soldier on with unauthorized programs and we have for a long time. But there’s no escaping the obvious. And that is, this divided government we have is divisive government. And that’s not in the best interest of managing great democracy.”
Take Obamacare. One section says subsidies are available to help people buy coverage in state health insurance exchanges, but it doesn’t say anything about the federal exchange — which serves 36 states. That could be cleaned up in two minutes, but Democrats are convinced that Republicans would never go for it, because conservatives are too busy suing to try to stop those subsidies.
There’s also unclear language about health coverage for members of Congress and their staffs, which led to the huge blowup over whether they should get subsidies to join Obamacare exchanges, and a section that says health coverage has to be affordable to workers but doesn’t say anything about their families.
Former President Bill Clinton has personally called out the so-called family glitch as an error that should be fixed.
But with Democrats and Republicans at each other’s throats over whether the law should even exist, a simple fix promises to be anything but simple. In some cases, the Obama administration has just opted to interpret the law in a certain way.
It’s providing the federal exchange with subsidies, for example, even as a lawsuit to stop the subsidies is working its way through the U.S. District Court for the District of Columbia. And the Office of Personnel Management declared that, yes, members of Congress and their staffs can get subsidies for their Obamacare coverage, just as most workers get contributions from their employers.
The solution works for now, but it picks new fights with Republicans who don’t think the administration has the authority to do that — and it doesn’t guarantee that any of the patches will survive after the Obama administration ends. But for Democrats, that’s less risky than reopening the law and giving Republicans a chance to gut it.
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“It’s frustrating, especially since there’s never been as complex a piece of legislation like the Affordable Care Act that didn’t have a follow-up bill to correct some of the problems,” said Rep. Henry Waxman (D-Calif.), the former House Energy and Commerce Committee chairman and a lead Obamacare author.
Congress remains gridlocked on making health care fixes “because the only thing the Republicans will entertain is a bill to repeal the whole law, which is not going to happen,” Waxman added. “So we’ll have to wait to a time when Republicans want to work on a bipartisan basis to be sure this law succeeds rather than just make points politically against it.”
It’s a similar story for Dodd-Frank. Multiple bipartisan proposals circulating on both ends of the Capitol would tweak the 2010 law, but the same fear exists among Democratic leadership that critics would just go gangbusters trying to unravel the whole thing.
Sen. Sherrod Brown, an outspoken Wall Street critic, wants a small carve-out so that the Federal Reserve has flexibility when conducting oversight of many state-regulated insurance companies. Another plan, from Sens. Mike Johanns (R-Neb.) and Jon Tester (D-Mont.), clarifies an exemption for energy and agriculture interests — after all, the companies had nothing to do with the Wall Street meltdown — that use derivatives to hedge commodity price fluctuations. While Dodd-Frank’s authors said it was not their intent to apply all the requirements aimed at banks to commercial producers, business groups have continued to push for stronger language.
But Obama administration officials and many of their Hill allies maintain that financial regulators should be given time to implement Dodd-Frank before Congress makes any fixes. Sizing up the politics of the battle, Brown said he’s also trying to send a signal to regulators that they will need to fix the unintended consequences of the law because Congress can’t.
“Sometimes legislation itself and the public debate that swirls around it gets the regulators to look at it more seriously,” the Ohio Democrat said.
Energy and environmental legislation also remains stuck in Congress, as lawmakers are a long way from agreement on a fix to the Clean Air Act that would clear the Environmental Protection Agency from requiring greenhouse gas pollution permits from very small sources like farms, restaurants and schools. Those are sites that EPA says it has no intention of regulating, but a lawsuit challenging the agency’s interpretation nonetheless may be part of a Supreme Court ruling in a larger climate-related case. Oral arguments are scheduled for late February.
“In a functional Congress, Congress would have set a different standard for major sources” of carbon dioxide, as it did for other forms of air pollution, said a senior House Democratic aide.
Even the easy stuff on energy is proving to be hard. Sens. Jeanne Shaheen (D-N.H.) and Rob Portman (R-Ohio) have been trying for almost three years to pass a package of largely noncontroversial incentives for energy efficiency. Reid tried to get the bill through the floor last fall but backed away after Sen. David Vitter (R-La.) insisted first on an Obamacare-related vote.
“In a better-functioning Senate from the old days, I think that would be sort of an easy lift,” said Frank Macchiarola, a former GOP staff director who worked on energy and health issues.
Rep. Bob Latta (R-Ohio) faces his own uphill climb on a proposal aimed at eliminating a decades-old Clean Air Act requirement that auto dealers certify that new vehicles comply with pollution standards. It’s seen as an outdated provision because vehicles today have their emission control systems installed at the factory.
Two weeks ago, Latta’s bill passed unanimously in the House, 405-0. But he isn’t guaranteed a win given the Senate’s paralysis and penchant for tacking on unrelated amendment votes. “It’s about one of the shortest bills I’ve ever introduced in my life,” Latta told POLITICO. “Let’s not Christmas tree it.”
Not everything has stalled, of course. Congress has passed the spending bill and agreed to a budget for the first time in years, mostly by lowering the bar almost to the ground. Obama also signed laws last year that kept the nation’s helium reserve flowing and named an Interstate 70 bridge near St. Louis in honor of both military veterans and baseball legend Stan Musial.
But even with modest breakthroughs, the level of partisan tensions, combined with other factors, like the breakdown of the normal appropriations process, has turned even easier tasks into monumental challenges.
There are nearly 60 tax breaks, for example, that are supposed to be extended each year, including popular breaks like the research and development tax credit. This time, they were all expected to be hitched to the big tax reform effort being promoted by House Ways and Means Committee Chairman Dave Camp and Senate Finance Committee Chairman Max Baucus.
Now, however, House Republicans are backing away from tax reform and Baucus is packing his bags to become the next ambassador to China. So the tax “extenders” have lost their vehicle, and there isn’t another one at the moment, even though the tax breaks expired on Dec. 31.
Boehner doesn’t apologize for the slow pace, telling CBS News last summer that Congress “should not be judged on how many new laws we create, we ought to be judged on how many laws that we repeal.”
The bigger issue, though, is that there just aren’t as many bills moving through Congress that can be turned into vehicles for minor fixes.
In the first session of the 113th Congress, Obama signed a modern-day low of just 72 laws. Only the opening year of the 104th Congress, when Clinton and Newt Gingrich were forced to partner up, comes even close in comparison, passing 88 laws. Obama’s 2013 total is a dramatic drop from the Great Society heyday of the mid-1960s and still far down from the 180 laws that George W. Bush signed in 2007 when he worked with a Democratic-controlled House and Senate.
“It’s impossible to make any changes, large or small, because there are no vehicles for it,” said former Republican Congressman Steve LaTourette. The annual appropriations bills can be good places to add minor fixes, but since the funding of the government keeps getting wrapped into larger omnibus spending bills, those vehicles have disappeared too, he said.
Nothing is quite as stuck as the health care law, though. Because of the way it passed in 2010 — without the House-Senate conference committee that usually works out a final bill — there was no time to fix minor drafting problems, like the failure to mention the federal health exchange in the section about who can get health insurance subsidies.
It’s not that the law has been completely untouched since it passed. Congress has knocked out a few pieces along the way, like an unpopular tax reporting requirement, and the Supreme Court made its expansion of Medicaid optional for the states. And the House has passed a bill, with a veto-proof majority, that would make the administration tell customers if their personal information has been compromised — a bill 67 Democrats decided they couldn’t say “no” to.
But other fixes that could simply clear up confusion in the law are stuck. Some Obamacare supporters are in such a defensive posture that they’re not even convinced it’s a good idea for Democrats to attempt a fix to the subsidy language.
“Not if there’s a price” that Republicans would demand in return for supporting a fix, said John McDonough, a former Senate Democratic aide who worked on the law. Any Democratic attempt to push for a legislative fix “kind of concedes that there’s a problem, which I don’t think they want to do,” he said.
Zachary Warmbrodt contributed to this report.