The topic of this episode is, “Is Congress getting anything done?”
The 119th Congress convened in early January. Months have gone by, and there are lots of things happening in Washington, DC.
But is it all being done by President Donald J. Trump? Is Congress itself doing anything?
Gabe Fleisher is here to help us answer that latter question. He is the creator and editor of the must-read publication, Wake Up to Politics. He started this newsletter in 2011, and you may have seen him being interviewed CNN, MSNBC, NPR, and in various other major media.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.
And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.
Gabe, welcome to the podcast.
Gabe Fleisher:
Thanks so much for having me.
Kevin Kosar:
Congress is a lawmaking body. Has the 119th Congress made any laws?
Gabe Fleisher:
I guess allegedly-lawmaking body would be better. It’s been well noted. Obviously we’re now a little bit past President Trump’s first 100 days in office. He enacted more than a hundred executive orders; since then the 119th Congress has passed five laws. So not nothing, but certainly not many.
And I think even more revealing if you kind of look under the hood of what those five laws are. None of them are original pieces of legislation that completely passed under the Trump administration. Of the five you have, one is just a continuing resolution, so really a spending bill to keep the government open for a few more months. Three were Congressional Review Act resolutions, which will undo Biden-era regulations, so certainly not nothing and certainly consequential in their areas, but really only just undoing things that were previously done under Biden.
And then you have one that is kind of the most novel piece of legislation, which is the Laken Riley Act, which is a bipartisan bill to increase the penalties for undocumented immigrants who committed theft, burglary, and crimes like that. But notably, that one passed the House under the Biden administration and had already started advancing through both chambers before Trump even took office.
One other law—the TAKE IT DOWN Act, which criminalizes revenge porn, including deep fakes—has already passed through the House and Senate. So it will be signed into law soon. That will be six. And there are other Congressional Review Act resolutions going through the pipeline as well, but definitely not very many.
Kevin Kosar:
Obviously, Congress’s duties go beyond lawmaking. What else have they been doing since they first came to town on January 3.
Gabe Fleisher:
The Senate can only do so many things at once. And as is the case in any new administration, a lot of Senate floor time is taken up by nominations. President Trump had almost all of his nominees confirmed in a fairly fast clip, including several fairly controversial nominees for whom I think there were some doubts they’d be able to get through.
I guess now we’ve seen with Ed Martin’s nomination in the Senate, I would say the first high profile nominee since Matt Gaetz that’s kind of been scuttled through the Senate process, but they’ve made their way through a number of nominees. No judicial nominees yet because the president just made his first judicial nomination recently, but a number of executive branch nominees.
And then I would say besides that, a lot of the other things that lawmakers have done since January 3rd has been a lot more behind the scenes. And I think there is a lot of evidence through less in terms of congressional oversight hearings and some of the more public actions we might normally see, but things like letters that even some Republican committee chairs have joined to try to push back on—or at least ask questions about—some of Trump administration actions. We’ve seen a number of examples of particularly Republican lawmakers pushing back—especially in the early days of the administration—things that the Department of Government Efficiency (DOGE) was trying to do, whether it was cutting grants to local colleges in your district or state or trying to shut down VA offices in your district. We saw Republican lawmakers who in many cases were fairly successful in being able to meet with Elon Musk or his people at the DOGE and try to change that.
A lot of that has happened behind the scenes and then they put out some sort of statement saying, I succeeded in meeting with such and such official and therefore this has been changed. Very little of it has gone through kind of a more traditional oversight process, but we do see evidence that members of Congress behind the scenes are trying to affect their will and maybe not going through the legislative process, but trying to push back on Trump administration actions, or at least minimize the effects of them on their constituents.
Kevin Kosar:
I have certainly noticed some congressional committee hearings where members—in a bipartisan manner—try to come up with substantive solutions to complex problems. I was at a committee hearing in the House not too long ago on improper payments, and it was in fact a continuation of a longstanding effort to wrap their minds around the various reasons why the federal government sometimes pays out money to people who don’t deserve it or pays out money to people who deserve it but gives them too much or too little.
And speaking of committees, each chamber has gone through the budget resolution process, haven’t they?
Gabe Fleisher:
For sure. That’s certainly going to be dominating most of the action for the next few weeks. And we’ll see a lot more legislative action as the relevant House committees wrap up their portions of the reconciliation bill.
It’s all gonna be in “one big, beautiful bill” as the Republicans are fond of calling it, but in really it will be twelve, if not dozens of smaller bills, stuffed into what’s going to be hundreds and hundreds pages of legislation. And that will be a really consequential piece of legislation that is still going through the process. There’s a lot of finer points that still need to be negotiated. But certainly we’ve seen a lot of committee work there.
Kevin Kosar:
Earlier you referenced the nominations in the Senate and the number that have gotten through. I guess we can’t understate the amount of calendar time that gets gobbled up in the present day Senate on nomination votes, to say nothing of the immense amount of staff time that gets burnt dealing with all these nominations.
For example, there was a nominee for the position of surgeon general, America’s top medical person. The first person put up there, Dr. Janette Nesheiwat, was recently withdrawn. She never even quite got to the point of having a hearing because there was stuff about her background that came up that apparently dissuaded the Senate from persuading for pursuing that. And now there’s another person in the queue.
Do you think that we’re hitting that point, as we approach six months, in that the amount of Senate time devoted to doing all these nominees will maybe drop down and maybe they’ll make a little more space for legislation? Or do you feel like the pipeline is still so big they’re going to keep at it?
Gabe Fleisher:
Memorial Day is the House’s target deadline by which they hope to pass the reconciliation package out of the House. I think a lot of people view that as optimistic and aren’t quite sure that they’re going to be able to hit that. But let’s say you are going to see the reconciliation action move over to the Senate some point in May or June. At that time, I do think you’ll start seeing some more legislative going on.
But the reality is there are a lot of presidential nominees that require Senate confirmation, so I think there are going to be real questions. Obviously, there are whole swaths of them that traditionally would be confirmed through unanimous consent.
And some still will, I’m sure, but we saw in the last Congress, Senator Tommy Tuberville held up a lot of military nominees that President Biden had put through. He was not the first to invent or use that technique, but now I think you’re seeing, Democratic senators really kind of pick up on that. I think vast holds for Justice Department nominees were just announced today by Senator Chuck Schumer in response to the news that Attorney General Pam Bondi signed off on the new Qatari Air Force One. Some of those nominees would have gone through by unanimous consent, but now won’t.
Ed Martin, who I mentioned was a US Attorney nominee for DC, is an example of a nomination where Democrats are pushing for a nomination hearing, which is unheard of for a US attorney nominee. That’s a much longer committee process and certainly would’ve been a more contentious floor process.
And you’ve seen a number of other Democratic senators who have put these holds on whole categories of nominees, and for each one that’s doing that, that’s a nominee who either won’t ever be confirmed or will have to gobble up even more Senate floor time because they won’t get unanimous consent.
So I do think it could be quite some time before we see that kind of balance shift, especially considering, frankly, it doesn’t seem like Republican leaders are that intent on pursuing that many pieces of legislation or feel that there are that many pieces of legislation that will be able to overcome the filibuster that they are trying to do outside of the reconciliation bill.
I think you could see for quite some time a lot more nominations and then before long judicial nominations will start kind of going through the pipeline as well. That’s obviously going to be a huge priority for President Trump and Republicans, as it always is, and especially now that you’ve seen such conflict between the executive and judicial branches. There’s certainly going to be an emphasis to get more Trump appointed judges who might not hold up some of his executive orders as we’ve been seeing. So I think you’re probably going to see a similar ratio like this for quite some time.
Kevin Kosar:
Certainly, some of Congress’s workload has been to respond to actions and demands by the Trump administration, right?
We can look to the Library of Congress as an example, where the president fired the Librarian of Congress and the Register of Copyrights, and named employees of the executive branch to fill those positions in this legislative branch entity. And the response from the Library of Congress was, “This is not how the law or Constitution works.” And last I heard, Speaker (Mike) Johnson and Senate Majority Leader (John) Thune are having to involve themselves in these conversations about how Congress responds to these actions.
Gabe Fleisher:
I think it’s a good example of the emphasis on more behind-the-scenes machinations I was talking about. I think Thune used the exact words that they need to protect “congressional equities” here. Obviously, if you really wanted to protect congressional equities, they could tomorrow pass the Library of Congress Reorganization Act or something like that to clarify the chain of command of who gets to appoint the Librarian of Congress, how an acting Librarian of Congress gets to be appointed if there’s a vacancy, or all sorts of details like that. I’m not sure Trump would use the political capital to veto it, but maybe you could even get a veto proof majority and try to do that. But there doesn’t seem to be much inclination to do it that way. They much more prefer to go behind the scenes and seem very hesitant to anything that seems to confront President Trump legislatively and out in the open.
I do think there is on a number of these issues a real question—to take one example, the House voted last week to approve the Gulf of America Act, so that’s one Trump administration action that’s been codified. And I believe I saw that that Leader Thune has filed cloture on it, kind of signaling that is one bill that he is planning to move on. I doubt it will make it past the filibuster, but you know that is clearly one administration action that they’re choosing to codify.
There’s a lot of other Republicans saying privately and publicly that they wish a lot more of these executive orders would be added to the legislative calendar and that they would codify not just things like the Gulf of America. This week President Trump had an executive order on drug pricing, trying to impose something approximating a most-favored-nation scheme. And Senator Josh Hawley came out and said, why are we doing this as an executive order? I have a bill that could do this or something similar to this. Let’s vote on it tomorrow.
I don’t think that that’s gonna happen. I think similarly, we’ve seen the DOGE has had this blizzard of different spending cuts. Senator Rand Paul has pointed out that there is a process for cuts like that to be codified through the rescissions process. He said, why don’t we do this as a rescissions process? Let’s put it on the floor.
And they might; it is still something being discussed. But it’s not clear they would have the votes to do that. It’s not clear they’d have the votes for a drug pricing bill. And so I think you can see a real willingness to kind of just pass the buck over to Trump and let him continue to do the executive actions. Most of them do have bills sitting and waiting from different Republican lawmakers, and in some cases bipartisan lawmakers have introduced legislation that could codify these actions.
But for the most part, there just doesn’t seem to be much energy behind the idea, or they don’t have the political will or aren’t willing to expend the capital try to get the votes behind putting any of these executive orders into law.
Kevin Kosar:
And to your point about Republican majorities in both chambers not wanting to openly clash with the president, some might say that Republican members of Congress are afraid of the president. There may be a bit of that, but it’s also a party success calculation. Anytime you have members of the same party fighting with one another, it creates a media story. And it doesn’t create a positive media story. So to the extent possible, they’re trying to keep these things under the radar, work them out in the background, and move forward. But certainly President Trump and his administration don’t make it easy with their bold actions.
You also mentioned the rescissions process, and that prompts the question of the budget process. September 30 is the end of the fiscal year, and it’s not far away. And we’re still trying to get reconciliation done for last year’s budget process.
Do you think there’s a chance that any appropriations bills could get moved before September 30th or is Congress essentially looking at summertime and already planning to make it a continuing resolution?
Gabe Fleisher:
It seems unlikely if you just look at the timeline. I think so much of Congress’s attention right now is on the reconciliation process, which I think is going to run smack dab into A) there’s a number of fiscal deadlines piling up because they have kind of self-imposed deadlines to pass this reconciliation package. Scott Bessent says they need to raise the debt ceiling by August, which they’re trying to do as part of reconciliation. And B), as you said, by the end of September, they need to pass new appropriation bills. It seems very unlikely to me that there’ll be any appropriation bills passed by then just because of how much floor time is going to be taken up with the reconciliation bills and trying to finalize those.
That’s a process that they hope will be done by July 4, but I think there’s a widespread expectation it’s going to drag on for weeks, so I think the expectation is, we’ll see at least a vote on another continuing resolution.
That kind of opens the question, will Democrats go for another one? Obviously, it was not a very popular decision on the Hill or among Democratic primary voters to vote for a continuing resolution last time. I think that that does lead to a real question of whether in the middle of all these sorts of negotiations for reconciliation and the debt ceiling, whether we could also see a government shutdown come the end of September just based on the fact that there was so much unhappiness in the Democratic caucus on how they handled the last one. And unless Democrats get some sort of concessions, which it certainly seems Republicans were unwilling to give them last time, maybe negotiations go differently this time.
I do think there’s a real chance at a shutdown or at least a very dramatic kind of process, but I think the end result of any sort of that process will be another continuing resolution.
Kevin Kosar:
That also raises the question of what exactly is being continued by the continuing resolution. Is it present FY2025 spending levels? Is it those levels as modified by reconciliation, plus a bunch of anomalies thrown in there? This is what happens when you are no longer following the budget process sequentially and are instead doing multiple things at once.
The previous Congress, which finished its work in December, was sharply divided. Democrats and Republicans were quarreling with one another. But it got some big things done, right?
Gabe Fleisher:
A fair amount. Sometimes I like to think of it in tiers, and I think a lot of people when they’re watching Congress pay regular attention to kind of tier one issues. Right now we’re looking at Medicaid and food stamps, and maybe you could think of a gun control package or even an infrastructure package—issues that get a lot of attention and where anyone would acknowledge that a change in those areas is a big deal.
I think oftentimes a lot of what Congress gets done is in tier two, and maybe we can think of tier three as things like post office renamings. But there’s this kind of middle space where I do think a lot typically does get done, or certainly did in the last Congress—issues that aren’t on their face super flashy, but actually can make a big difference.
One bill that I wrote a fair amount about was the ADVANCE Act, which was the first major nuclear energy bill that we’ve seen passed through both chambers of Congress in a long time. It was a bipartisan clean energy bill, which I think a lot of people would not have thought possible.
We saw the Social Security Fairness Act, which eliminated the Windfall Elimination Provision, Government Pension Offset to give more Social Security benefits to people who had worked as government workers and also in the private sector.
There’s the Supporting America’s Children and Families Act, which was the first overhaul of the child welfare system we’ve had in, I think, 15 years—that was a pretty substantial piece of legislation. The Elizabeth Dole Act, addressing home care for veterans. That was substantial.
You had some bills that I would even say are in tier one. Obviously the TikTok ban passed in last Congress, although, of course, it never really went into effect, so there’s a bit of an asterisk there, but we did see bipartisan support marshaled behind it. Aid for Ukraine and Israel was another pretty major issue that was passed along with bipartisan support.
It’s certainly not nothing. I’d say on some of these issues that were fairly contentious and hot button, Congress did manage to pass legislation with bipartisan support. Most of the bills that I just named passed almost unanimously with kind of complete support, and many went through the traditional committee process that I think we think of as having been completely left behind.
But the reality is that a lot of those bills did go through it and were worked on by committee leaders on both sides of the aisle. We certainly did see a fair amount of substantive action of the kind that we’ve yet to see in this Congress.
Kevin Kosar:
What do you think of the proposition that Congress is going to work primarily on high salience issues—what you call tier one—while it has a GOP majority, which would be through this autumn. And next year is gonna be a really hard push to try to lock in some policy victories into law. And if Republicans lose the House of Representations in the midterms, we go into tier two stuff where calendar time is going to be spent on things that Democrats and Republicans will have to agree upon.
Gabe Fleisher:
I think that that’s really possible. Francis Lee has studied this, and there are ways in which divided government can actually lead to more productivity in Congress.
And like you said, right now when we’re before the midterms and when Republicans are kind of at the peak of their power, there’s very little incentive to kind of work across party lines to look at these kinds of lower salience issues or even to give any ground to the other party.
What if control of Congress shifts after the midterms? That suddenly changes, and suddenly certain concessions need to be made. We do have a system that really requires bipartisanship because there’s that 60 vote threshold in the Senate for almost all legislation to go through. And yet, because we do have the reconciliation loophole, there’s very little incentive when you have complete control to really go through the normal process, because you might as well try to get as much as you can crammed in with 51 votes. Once you’ve kind of taken your bite at that apple and that opportunity moves on, suddenly you’re realizing that if I wanna make lasting policy change, suddenly everything does need to go through that 60 vote threshold. And I do think the thinking shifts a little bit. Some of the bills that we’re talking about do take time to kind of incubate through committees. A hearing can lay the groundwork for a bill to be introduced and then a markup, but these are processes that take time and certainly do also require the political circumstances to be in the right alignment. So I think that is a real possibility.
I also think a lot of it depends. It’s a choice that the Trump administration—which, no matter what happens in the midterm, is going be in power for the next four years—has to make. There’ve been a number of times throughout Trump’s two presidencies where he’s flirted with bipartisan lawmaking, even on fairly high salience issues where he’s talked the talk that he’s gonna work with Democratic leaders and talked about bills that would get large support, but then almost always right at the finish line or sometimes well short of the finish line he doesn’t really follow up on it.
The reality is there’re vast swaths of the president’s agenda—much of which he’s doing through executive order—that if he wanted to, would get bipartisan support or at least a bipartisan hearing on the Hill. If they did it in the right deliberative way, some of what the DOGE is doing would fall in that category. Certainly the drug pricing order that I mentioned earlier would fall in that category as well. There’s a lot of things that Trump could get done through bipartisan process if he chose to, and if he did it would frankly lead to him having a much more consequential presidency. Then, then he’ll have, you know, if he just chooses to do things by much more formal executive orders.
But working with the other party is ultimately a choice. If he’s willing to sign bills into law that he knows he’ll be handing pens off to Democratic co-sponsors and if that’s something he can stomach doing, that that’s a recipe for a much more consequential presidency in a much more productive Congress. But if it’s something he chooses he has little interest in, then we’ll just keep seeing executive actions and very little from Congress going forward.
Kevin Kosar:
I think that’s a very important point. Last time I checked, the president made it clear that he’s not running for a third term. He’s got a legacy to think of; does he want his last two years to be nothing but partisan deadlock and acrimony? I would guess not. Perhaps some bipartisan high-salience issues could make their way through in the latter half of his presidency. I guess we’ll have to wait and see.
Gabe, thanks for helping us better understand whether Congress is getting anything done, and whether we can expect them to get anything done in the future.
Gabe Fleisher:
Thanks so much for having me, Kevin. Great talking with you.
Kevin Kosar:
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging at AEI. Once again, thank you for listening, and have a great day.
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