The global health crisis has derailed congressional operations for months. Dozens of representatives and senators were quarantined, while at least eight tested positive for the virus. More important, though less often appreciated, is that scores of Capitol workers also tested positive. The pandemic’s severity crested as members of the House of Representatives were dispersed throughout the country for what was supposed to be a week-long period of district work in mid-March. With a return to Washington too great a risk, the House was forced to rely on unrecorded votes so that it could operate with only a small number of members present. “The coronavirus pandemic,” wrote Claudia Grisales and Audrey Carlsen in May, “brought much of the daily work of Congress to a halt.”
Despite the unprecedented severity of these disruptions, Congress passed four major pieces of legislation that directly responded to the emergency and its economic fallout. In March alone it provided emergency supplemental funds; passed the Families First Coronavirus Response Act, which offered free testing, paid sick leave, and increased funding for the Supplemental Nutritional Assistance Program; and the CARES Act, the single largest economic stimulus and economic relief package in US history. In late April, it enacted the Paycheck Protection Program and Health Care Enhancement Act, replenishing the small business loan program. While none of these measures was free of partisan disagreement in their drafting, they belie standard accounts of an institution paralyzed by polarization. In the face of a significant crisis, and despite massive disruptions to its normal routines, Congress responded with near unanimous support for measures that would have been unthinkable only weeks earlier.
With Congress now fully back in session, one might think it would be in an even better position to respond to the new crisis that has followed the mass uprising against police violence across the country. Democratic representatives have introduced a moderately ambitious proposal, almost certain to pass the House, to limit police violence. Prospects are dimmer in the Senate, but one pivotal Republican senator is marching with protestors and both the lone African American GOP senator and a recent author of what was rightly called a “fascist op-ed” are urging action of some kind or another.
Nonetheless, it seems likely that Congress’s response to the pandemic of police violence will be inadequate, possibly to the point of triviality.
Congress’s contrasting responses to these twin crises cast into light a political dynamic that has become increasingly central to national lawmaking over the last decade, the almost routinized cycle of what some scholars have called crisis lawmaking. Crises, it seems, are among the most effective mechanisms for overcoming congressional gridlock.
Perhaps the most important thing to know about Congress is that it was deliberately deprived at the founding of much of its capacity for authoritative and unilateral action, through the appendage of a distinctly composed second chamber – whose concurrence is required to do almost anything of consequence – and the prohibition on legislating without the support of either the president or an overwhelming coalition of members.
One consequence of this is both a status quo bias and a conservative bias to America’s governing institutions: change is difficult, but even when it does happen, it tends to be less than a majority would have preferred. Most well-established policies – such as health care, policing, or unemployment insurance – have sufficient support from at least one so-called veto player (a committee chair, the Speaker, the majority party leader, the 218th member of the House, the 60th senator, the president, etc.) to rule out anything but the most modest or piecemeal reforms. Even these are frequently blocked by someone who both prefers the status quo over the proposed change and whose consent is needed to get anything done.
Another consequence is that members are unlikely to be held individually accountable for the (in)action of such a fragmented institution. Other than on a small number of usually minor issues for which they can credibly claim to have been influential, members of Congress are punished or rewarded primarily for the public positions they take rather than for the public policies they collectively produce. And they are accordingly more active in taking positions that will help cultivate this support than with producing the policy gains they promise.
Enter crisis lawmaking. Crises do not eradicate the status quo or conservative biases, nor do they make members more concerned with results than position taking. What crises do is disrupt the perceived adequacy of existing policies. Unemployment insurance, stingy in benefits and spotty in coverage, was in February 2020 seen as good enough by key veto players to rule out any serious prospect of progressive reform. With over thirty million unemployment claims as of this writing, such perceptions of adequacy were exposed as brutally out of touch. Polarization vanished as lawmakers quickly converged around policies that allowed them to appear responsive to the needs of the moment.
The potential effects of crises on lawmaking are so powerful that Congress regularly induces them by design. The crises provoked by the debt ceiling, by periodic government shutdowns, or by the “sequester” were deliberate policy choices by Congress to threaten massive disruptions of the status quo in order to open up space for policy reforms. Whether the result of policy design or of outside events, crises have a similar impact on the logic of congressional, making existing policy seem inadequate to the relevant veto players. Congress now regularly seeks to leverage this logic to get around the institutional fragmentation that produces gridlock.
For members of Congress, however, not all crises are created equal. Members’ perception of the moderation or radicalism of policy is not indexed to any objective criteria of need but to the perceptions of other political actors with sufficient resources to matter for reelection or advancement. How these different actors’ perceptions shift in response to a crisis, and how they are weighed against each other by election-minded members, determines much of the character of congressional intervention. Small businesses need loans to stay afloat; since both parties see them as legitimate political actors whose support is worth having, large congressional majorities will take a position in support of them. State governments also have needs, but support for them only indirectly translates into support from relevant political actors. The needs of working people have always been weighed against the desires of employers, big and small, for a tractable labor market. Emergency aid for states and the continuation of higher unemployment benefits remain more contentious, with perceptions of the inadequacy of pre-crisis policy shifting only modestly for some pivotal lawmakers.
This variation in how a particular group is perceived, or how its priorities are weighed against others, helps explain why only some crises result in significant policy reform. The breadth and severity of the economic fallout, the difficulty in predicting which subset of constituents it would affect most directly, and the upcoming primary and general elections meant that when it came to financial relief for businesses and taxpayers, few members of Congress wanted to risk appearing stingy in their public positions.
When it comes to restricting police discretion over the use of violence, the calculus is different, even if the logic of crisis lawmaking is still present. The uprisings and protests against police violence have already altered perceptions about the adequacy of existing policies. As the New York Times notes, “Republicans have been startled by the speed and extent to which public opinion has shifted under their feet,” and are desperately looking to craft an alternative that will allow them to appear responsive to the crisis.
But the crisis to which Congress will respond will not be that of police violence against African Americans. This has long been an endemic feature of policing, and it is almost certain to outlive the protests and the targeted acts of civil disobedience – most effectively the destruction of property – that have crystallized the problem as a political crisis. The persons most intensely impacted by police violence have never been equally perceived by lawmakers as legitimate political actors whose priorities need to be attended to. The breadth of civil society organizations and businesses – from Chase Bank to the NFL to my local pharmacy – that have responded with statements against racism and police violence is impressive (however self-serving). For many lawmakers, these constitute the “public” to whose shifting opinion they hope to appear responsive. But what these organizations want from Congress, and what they’ll do if action is shortcoming, is far from clear.
The distance between the hopeless inadequacy of existing policy and meaningful reform is long, and what looks like progress might be individual position taking that does not aggregate sufficiently to overcome gridlock. Members excel at indicating support for some broad objective without offering any meaningful specifics, or even at drafting legislation whose apparent responsiveness to the needs of the moment is an inverse function of its prospects for passing. When the world gives us lemons, members of Congress make themselves lemonade.
The HEROES Act passed by the House, for example, should be understood more as election-year messaging than as a serious effort at lawmaking, even if some of its more modest features end up being included in subsequent pandemic-related legislation. Similarly, Republicans might coalesce around some of the most mundane aspects of Democrats’ Justice in Policing bill, such as upending the existing policy stance of deliberate ignorance regarding how many people are killed by the police each year. But any of its more aggressive features, inadequate as they may be, are likely to go nowhere until after an election. By that point, the intensity and breadth of public outrage will have dissipated, and the organized defenders of police regrouped.
The crisis confronting members of Congress will have passed; and the crisis for communities subjected to the occupying armies of America’s police will grind on.