Analysis: The State of the Union in 2013

    13 February 2013

    INTRODUCTION

    Last night, President Barack Obama delivered his fourth State of the Union Address before a joint session of the 113th Congress. Not since 1887, when President Grover Cleveland faced a divided 50th Congress, has a Democratic President been confronted (again) with the challenge of doing so, in this case a Republican House and a Democratic Senate. In words that still ring true 125 years later, President Cleveland “earnestly invoke[d] such wise action on the part of the people’s legislators as will subserve the public good and demonstrate . . . its ability and inclination to so meet the people’s needs that it shall be gratefully remembered by an expectant constituency.” (President Grover Cleveland’s December 6, 1886 Second Annual Message to the United States Congress.)

    In setting forth his priorities aimed largely at advancing the interests of the middle class in a speech in which he made reference to the economy and jobs 62 times, President Obama called on the 113th Congress to, among other things, enact legislation to avoid the automatic spending cuts otherwise set to hit on March 1, to produce comprehensive immigration reform legislation, to “pursue a bipartisan, market-based solution to climate change,” to make preschool universal and adopt other educational reforms, to adopt cyber security legislation to address issues beyond those that he could implement through executive action, and to adopt a variety of other measures that would create jobs and grow the economy. In addition, he made an emotional appeal for Congress to vote on gun control measures. He pledged that the war in Afghanistan would be over by the end of next year. And closer to home, he announced the formation of a non-partisan commission to “improve the voting experience in America,” which we are proud to say will be co-chaired by one of our partners, Ben Ginsberg.

    In the Republican Response, Senator Marco Rubio (R-FL) offered a fundamentally different perspective on how to address many of the major issues that divide Congress and the two parties, while at the same time stressing as did the President the need to address the concerns of middle-class Americans.

    We offer our perspective below on some of the major issues confronting the country, including how fundamental tax reform legislation that could potentially affect every business in America¾could play out in the context of the fight over sequestration and funding the government.

    But first some perspective on the November elections and the public’s perception of their elected representatives. When the 113th Congress gathered last night, the approval rating of the institution remained at near-record lows. In late January, in a Rasmussen Reports national telephone survey, Congress received good or excellent marks on its job performance from only 9 percent of the public. In Gallup polls, the 112th Congress’s approval rating ranged from an average of 11 percent in its first term to 18 percent in its second term, including a record low 10 percent last August.

    Clearly, the American public is fed up with the status quo. By casting their votes in November, we have a sense the public wants the 113th Congress to get something done, to address the big issues that confront the country. Ironically, though, the voters elected a Congress that may be even more partisan than the 112th Congress, making it even harder for Congress to find common ground. As a result of the elections, only 25 of 435 House Members represent districts where a majority of voters preferred the presidential candidate of the other party. In voting for divided government, the American public has continued a pattern that now spans decades. No two-term President since Franklin D. Roosevelt has presided over a Congress controlled by his own party for the entire duration of his Presidency. In fact, President Jimmy Carter was the last to enjoy even four years of complete party control in Congress. Like Bill Clinton and George W. Bush, President Obama lost control of at least one chamber.

    Divided government and divided control of Congress have consequences. When the first session of the 112th Congress adjourned in 2011, for example, it had come close to producing the fewest number of bills signed into law since Congress formally began keeping track in 1947. When the second session adjourned earlier this year, the 112th Congress had maintained its second place finish for the fewest number of bills enacted since World War II. (Only President Bill Clinton and the Republican-controlled 104th Congress were less productive, generating a total of 233 public laws.) Of the 283 public bills enacted during the 112th Congress, 30 bills merely extended current law (e.g., four separate bills kept the Federal Aviation Administration operating for a short period of time and others kept the federal government open), 55 bills named a post office or a court house, and at least 21 bills were of a commemorative nature or provided for service appointments. These alone accounted for nearly 40 percent of the output of the 112th Congress.

    By comparison, the 80th “Do Nothing Congress” that President Harry Truman campaigned against in 1948 produced 906 public laws¾passing more in its second year (511) than the 112th Congress did over the entirety of two years. Republican President Dwight D. Eisenhower and the Democratic 84th Congress set the record for productivity by enacting 1,028 laws. More recently, President Ronald Reagan worked with the Democratic House and Republican Senate of the 98th Congress in the final two years of his first term to enact 623 laws over 3,653 hours that that Congress was in session; the divided 112th Congress was in session roughly 100 hours longer but produced 340 fewer laws. Finally, President George W. Bush and the Republican 108th Congress ended his first term by reaching agreement on 498 laws and he and the Democratic 110th Congress found common ground with 460 bills enacted into law.

    In 2011, President Obama became the first President to use an autopen¾a device principally used to sign mass mailings¾to sign bills into law from a distant location. Most recently, the President directed his staff to use an autopen to sign the legislation averting the “fiscal cliff” at the beginning of the year because he had already returned to Hawaii to finish his Christmas vacation when the bill was presented to him. (President George W. Bush’s legal advisors concluded in 2005 that the use of an autopen was constitutional, as long as the President had not delegated the authority to decide whether or not to sign a bill into law.) The President also reportedly directed the use of an autopen while he was in Europe at the time the Patriot Act was enacted and in Indonesia when an emergency spending bill reached the White House.

    In the coming year, as in prior years, the President is likely put his pens to work issuing Executive Orders as a means of encouraging congressional action and addressing issues Congress will not or cannot address. Last year, for example, he issued an Executive Order when Congress hadn’t acted on the DREAM Act. Earlier this year, he issued a series of measures addressing gun control without waiting for Congress to act. Yesterday, the President issued an Executive Order on cyber security that calls for the creation of voluntary standards to enhance the security of critical infrastructure and improve the government’s ability to deter attacks, while again urging Congress to adopt a more comprehensive legislative approach. Should progress in Congress stall on other issues, we expect him to act unilaterally again. He was quite explicit, for example, in saying that if Congress did not address climate change, he would “direct my Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.” President Obama also will likely again use Executive Orders (and waivers) to push his preferred solutions for elementary education reform if Congress fails to adopt legislation. This might manifest itself most clearly in efforts to provide incentives for state leaders to improve existing achievement gaps, as the Administration reviews waivers already approved for 34 states plus the District of Columbia as they come up for renewal after two years.

    So where do things go from here? In our view, the political environment for solving major problems could hardly get worse. But we remain optimistic that the pendulum will swing back, that Congress and the President will find common ground on some of the most pressing issues of the day. We saw glimmers of it in the 112th Congress. Working with the Administration, the 112th Congress agreed to MAP-21, a major surface transportation bill to support highway construction and mass transit projects; it adopted the RESTORE the Gulf Coast States Act of 2012 to allocate up to $20+ billion in Clean Water Act fines from the Deepwater Horizon spill to restore the environment and the economic health of the Gulf Coast region; it reached agreement on the FAA Modernization and Reform Act, which provided the agency with $63.4 billion through 2015, including approximately $11 billion to fund the agency’s Next Generation air traffic control system; and, as further discussed below, it addressed the fiscal cliff and staved off a massive increase in middle class taxes before it adjourned.

    With many new and returning Members focused on legislating rather than obstructing, we remain optimistic that Congress will return to the era in which it accomplished big things for the sake of the country. But some rough patches in the road loom ahead. To that we now turn.