Over the past week, the Democratic majority in the House of Representatives passed bills to make Washington, D.C., a state and to strengthen the Affordable Care Act. Both are dead on arrival in the Senate. Last week, each chamber passed a police overhaul bill — leaving a stalemate over competing visions of change. This week, the House voted on a DOA $1.5 trillion green infrastructure plan.
Add those up, and Congress seems to spend a lot of time passing bills that have no chance of becoming law.
Journalists often report on such bills as the height of congressional bickering, suggesting that the parties solely want to make political points rather than legislate. But DOA bills also serve a strategic purpose: Especially in periods of divided party government, majority party leaders use them to iron out differences within the party, build political support for the party’s agenda from interest groups and activists, and get their rank and file on record in support of the measures. When their party gains control of Congress and the White House, leaders have already greased the skids to enact at least some of these pre-negotiated bills.
Here’s what my research shows about DOA bills.
Here’s how I did my research
In my new book “Losing to Win,” I studied when and why party leaders put messaging bills on the House and Senate floors, rather than prioritizing measures more likely to be enacted into law.
First, I defined DOA bills as proposals that Capitol Hill insiders know are intended to fail. Then I identified 226 of these measures that party leaders brought to the House or Senate floor between 2003 and 2012. I recorded various things about each bill, including when majority parties made them a priority by bringing them to a vote; their short-term political effects, such as whether interest groups supported the bills; and their long-term policy consequences, such as whether lawmakers eventually enacted them into law the next time their party won control of Congress and the White House.
For example, Democrats passed the Lilly Ledbetter Fair Pay Act as a DOA bill at the end of George W. Bush’s presidency. After the party won control of Congress and the White House in 2008, Lilly Ledbetter was one of the first bills President Barack Obama signed into law. Other important laws, such as the Democrats’ Family and Medical Leave Act and the Republican-backed Partial-Birth Abortion Ban Act, followed similar paths. Here’s what I learned.
Favorable electoral prospects encourage DOA legislating
Parties advance DOA measures when they think they might win control of Congress and the White House in the next election, but still need greater electoral support from interest groups and party activists.
House Democrats’ renewed focus this year on messaging bills reflects their optimism they will win the White House and Senate in November. Democrats’ plan to lower prescription drug prices, passed last December, shows this strategy at work. Their plan has support from a wide range of groups, including AARP, the American Hospital Association, Indivisible and Americans for Democratic Action. In contrast, Senate Republicans have avoided DOA ideas, given their party’s lackluster chances of retaking the House.
Not all DOA issues are alike
Politics dictates which DOA bills leaders bring to the chamber floor for a vote. Leaders choose among issues and devote agenda space first to those measures that they believe offer the most politically potent messages.
Think back over House Democrats’ agenda since they took control in 2019. Democrats passed messaging bills to tighten gun regulations, overhaul electoral rules, protect voting rights, lower the costs of prescription drugs and restructure immigration laws months before this most recent round of DOA legislation. Democrats focused on police practices only after George Floyd’s killing and the ensuing weeks of protest.
More broadly, electoral politics shapes the order in which House leaders call up bills for a vote. All else equal, leaders push more politically valuable DOA bills earlier in a congressional term. Applied to this Congress, Democrats apparently see ideas such as voting rights and lowering prescription drug costs as surer electoral bets compared with the messaging bills that are salient now, like D.C. statehood.
Messaging today drives legislating tomorrow
Although symbolic today, voting now improves the odds of these bills becoming law later if Democrats regain control of Congress and the White House. For example, consider what would happen if House Democrats did not vote on the Justice in Policing Act now. If Democrats waited until 2021, my research suggests the bill would have an almost zero chance of becoming law. By voting on it today, an overhaul of policing practices is almost guaranteed serious consideration in a unified Democratic Congress and has a much better chance of being enacted, even after taking into account that the new Congress could be more liberal.
Granted, even in the best circumstances, Democrats’ DOA bills face a tough road. Most DOA bills do not eventually pass; as is true with any bill, they face serious hurdles to enactment. Even with a unified Democratic government, most would still fail unless Democrats were to obliterate the Senate filibuster or make changes that could secure at least some GOP support.
Even more challenging, former DOA ideas must compete with one another for time on the party’s agenda. A policing overhaul would need to compete with climate change, health care, political and voting restructuring, immigration, gun control, and dozens of other Democratic priorities. Even the most productive Congress will not be able to do it all. Three or four big ideas is very optimistic; some policies will inevitably get left out.
Still, these DOA bills offer a glimpse of a potential Democratic agenda. Other factors, such as the president’s priorities, play a role, but previously negotiated measures loom large during unified governments.
And note the sorts of provisions House Democrats have agreed to this Congress. Their DOA health-care bills emphasize strengthening the Affordable Care Act, not creating a public option or a single-payer system. Similarly, Democrats’ new infrastructure plan draws from their Green New Deal. If Democrats gain control of the Senate and White House, they will probably model policy overhauls on their Justice in Policing Act.
Those messaging bills lying in the Senate graveyard today are likely to rise from the dead.
Jeremy Gelman is assistant professor of political science at the University of Nevada at Reno and author of “Losing to Win: Why Congressional Majorities Play Politics Instead of Make Laws” (University of Michigan Press, 2020).