The rise and importance of Secret Congress

The rise and importance of Secret Congress

(Shh, don't talk about it)

Simon Bazelon and Matthew Yglesias

 Jun 21 

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(Chip Somodevilla/Getty Images)

Journalists and activists talk a lot about how Congress is hopelessly gridlocked and unable to get anything done. And to an extent, it’s true. On lots of high-profile issues, Congress is deadlocked, with the narrow Democratic Senate majority unable to pass gun control legislation, the Equality Act, HR 1, or a minimum wage increase due to essentially unanimous Republican opposition. Despite voters consistently naming it as one of their top priorities, Congress hasn’t passed any healthcare reform in over a decade. 

But it’s interesting to note that the sense of gridlock derives in part from the fact that something like the stalled political reform bill has attracted dramatically more media attention than something like the Drinking Water and Wastewater Infrastructure Act of 2021, which passed in May and appropriated $175 billion over five years to upgrade public water systems across the country. If water issues garnered a lot of coverage, Congress wouldn’t look so gridlocked. But okay, water pipes are boring. And yet, the Biden infrastructure plan has garnered a lot of coverage with incredible attention paid to the ins and outs of every bipartisan meeting. Are water pipes not infrastructure? Did you know that while it makes headlines every time Shelley Moore Capito pays a visit to the White House, she also quietly co-authored the Surface Transportation Reauthorization Act of 2021 with Tom Carper that passed the Environment and Public Works Committee unanimously? Do you think it’s weird that legislation making Juneteenth into a national holiday passed last week with seemingly no warning?

The Secret Congress hypothesis is that this is not a coincidence. Congress takes bipartisan action not despite a lack of public attention, but because of it.

The story of Secret Congress

The basic dynamics of Secret Congress have deep roots in the structure of the American political system, but the current trend really snapped into view in the final two years of the Obama administration. After years of gridlock, we suddenly — with little fanfare but large bipartisan majorities — got:

The Every Student Succeeds Act, a major rewrite of federal K-12 policy

An overhaul of the Department of Veterans Affairs, spearheaded by Bernie Sanders and John McCain

The FAST Act, which authorized $305 billion over five years in infrastructure spending

A ban on incorporating plastic microbeads into health and beauty products

Then, during the Trump era, there was:

A ban on surprise billing

The Anti-Money Laundering Act of 2020, which created tougher standards for shell companies and cracked down on money laundering

A $35 billion investment in clean energy research and development, and a reduction in the use of hydrofluorocarbons, a potent greenhouse gas

Raising the age of tobacco purchase from 18 to 21

Biden has only been in office six months, during which the main focus has been on the highly partisan American Rescue Plan, which passed along with a bunch of other partisan initiatives that seem stalled in the Senate. But along with the water bill he’s also signed the COVID-19 Hate Crimes Act, and the Senate passed the United States Innovation and Competition Act of 2021 —formerly known as the Endless Frontiers Act — authorizing $250 billion in new spending over the next several years on scientific research, technological development, and semiconductor production. USICA still has hurdles to clear in the House, but it’s broadly expected that legislation that got 68 votes in the Senate will find a way to pass both chambers.

So is Congress a hopelessly deadlocked, polarized institution? Or is it actually productive? 

Answering that question requires introducing a new variable to our understanding of how Congress operates: salience.

The core of the Secret Congress theory is that on highly salient issues, lawmaking is dominated by the question of which party controls which chambers and by how slim their majorities are. Under these circumstances, polarization is high and compromise is rare. Congress is prone to gridlock, and when solutions pass, they pass on a near party line. 

Highly salient successes tend to be the most famous legislative achievements of a president’s term (the ACA for Obama, the TCJA for Trump, the ARP for Biden). 

Highly salient failures tend to be what people point to when they call Congress gridlocked: the 2013 Manchin-Toomey background checks bill, Comprehensive Immigration Reform, the American Health Care Act, the Dream Act, etc.

But while these highly salient issues are the subject of heated debate in Regular Congress, Secret Congress keeps plugging away in obscurity. 

The key is that public attention creates incredibly perverse incentives. Members of the minority (rightly) think that any popular, well-known bill that passes on a bipartisan basis is going to help the standing of the president. David Mayhew’s book “Divided We Govern” studies the 1946-2002 period and finds that periods in which the president and Congress are on opposite sides generate just as much legislation as periods of unified government. Another classic Mayhew book, “Congress: The Electoral Connection,” is about how members of Congress like to win elections. Getting bills passed helps members win re-election by giving them things to take credit for. But in an era where congressional voting is so highly correlated with presidential approval, and primary electorates say they’d rather have members that fight the other party than help their own state, it’s extremely risky for a member of Congress to let an opposite-party president be seen as successful.

In their essay “The Logic of Conditional Party Governance,” political science professors John Aldrich and David Rohde write, “As conflict increases, so do the negative consequences to members of either party from a legislative victory by their opponents.” But, when something has low salience, its passage isn’t seen as conceding ground to the other side. No Republican congressman is going to be primaried for voting for the low-salience Endless Frontiers Act, because it doesn’t count as “giving Biden a win.” 

This accords nicely with previous research from congressional scholar Frances Lee showing that increased involvement by the president on a legislative initiative increases polarization and decreases bipartisanship. Here’s Lee, in her own words:

This article argues that presidential leadership tends to exacerbate partisan disagreement in Congress on the issues the president champions. The argument starts from the president’s role as highly visible party leader. Because of this role, members of Congress of both parties have a collective political stake in the disposition of presidential initiatives: members of the president’s party tend to benefit politically from presidential successes, while members of the opposing party receive few political benefits and may suffer costs. These political incentives are likely to drive the parties in Congress farther apart on presidential initiatives than they would be in the absence of presidential leadership.

Ok, so that’s the theory. While our representatives are grandstanding in front of the cameras, they’re also hammering out compromises on low-profile issues. But what are the implications of the Secret Congress theory for someone trying to make legislative change? 

The lessons of Secret Congress

The most important implication is that if you don’t have the votes to steamroll the opposition, avoid making your issue coded as highly partisan. Don’t frame your issue as a “win” for your party; talk about it as a common-sense reform. Do the work of trying to find and convince people across the ideological spectrum that it’s a good idea and that it’s in their interest to support it.

You should also pay attention to substance rather than labels. The energy bill that passed late last year is a very significant injection of funding into zero-carbon energy research and deployment. But it wasn’t coded as a “climate bill,” and it’s certainly not the “Green New Deal.” Biden and Republicans are currently fighting about “infrastructure,” but they’ve already reached an agreement on a water bill, and progress is being made on a surface transportation bill. As the Endless Frontiers Act made its way through the Senate, it picked up some anti-China framing that progressives don’t love. But that’s why Republicans can vote for it.

It follows that we need to fundamentally change the way we see the president’s relationship to Congress in times of divided government or in times of unified government with slim majorities. In a recent memo for Indivisible, Ezra Levin writes:

“We need President Biden using his full moral authority and bully pulpit power to drive the national conversation and urgency around the threats to our democracy.”

Now, maybe this is a genius strategy, and Biden can get Manchin to fold from his position of “no electoral reform without Republican buy-in.” That’s certainly the best outcome. But the reality is that it’s pretty clear that democracy reform on a partisan basis is dead. And given that this is true, the logic of Secret Congress points you in the exact opposite direction of Levin’s argument; the idea of the “bully pulpit” is fundamentally misguided. Biden needs to stay as far away as possible, and let Manchin try and negotiate some incrementalist legislation. It probably won’t work, because the issue of electoral reform has the highest salience around. But it’s a better strategy than running into the brick wall of trying to pass a bill that a majority of senators oppose. 

But here’s a tough pill. The way a lot of contemporary activism and advocacy works is that you want to be able to show your funders that you are making progress. That tends to mean doing things that are intended to get attention, making a lot of noise in the press, building alliances with other activist groups, and otherwise demonstrating that your loud-and-proud activity is making an impact. This conceit tends to make its adherents very skeptical of popularism — the view that elected officials and party-aligned groups should emphasize a small number of high-polling ideas. They want to say that their advocacy work is helping expand the set of political possibilities. The Secret Congress theory suggests this is not only false but backward. Aggressive, partisan-affiliated public advocacy can help you pass bills if it leads to landslide electoral victories, but in a non-electoral context, you are more likely to make headway by staying chill.

You can get things done in politics

One big problem with Secret Congress is that since it’s secret, a lot of people don’t know about it. But once you see that it exists, it’s clear that doing political work remains a high leverage undertaking.

Oftentimes people from the technology or business worlds will be so turned off by reports of endemic gridlock in Washington that they just give up. But while it is true that the United States has an unusually high number of veto points, it is not as gridlocked as a casual scan of the headlines would suggest. If you are persuasive, determined, and willing to be eclectic in who you partner with, then things can happen. And the good news, especially for people who are turned off by routine partisan politics, is that it’s precisely on the issues that aren’t at the center of political discourse where the odds for change are best.

In a nearly 15-year-old blog post, George Mason University Professor Robin Hanson wrote that policymaking is analogous to a contest of tug of war with liberals and conservatives on opposite sides, each pulling furiously. The highest impact action in this context, he argued, is to “pull the policy rope sideways.” Similarly, effective altruist organizations tend to focus a lot on “neglectedness” and “tractability” when deciding which cause areas to prioritize. The productivity of Secret Congress shows that not only are there lots of high-impact, neglected legislative areas, but that progress in these areas is feasible — pulling the rope sideways can work. 

But progress in these areas, if it happens, will tend to come from a handful of members on different sides of the aisle getting interested in the topic and working quietly with other members to make deals to make it happen. Useful advocacy is going to involve educating staffers and providing interested members with legislative subsidy, not launching a hashtag campaign or building a mass membership group to “demand” change.

And as we saw with the Endless Frontiers Act, the final product is going to be deformed somewhat by the picayune priorities of members of Congress rather than reflecting the pure vision of a technocrat or ideologue. But that’s how it’s basically always been in America, and we’ve somehow muddled through okay. 

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