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Historically fruitless Congress highlights Biden challenge if Senate stays red

President-elect Joe Biden is in for a rough ride in the U.S. legislature if the past two years are anything to go by.

Partisan gridlock and political posturing ahead of the election helped put the current Congress on track to be the least productive in at least half a century.

As of Dec. 4 a month to go until a new Congress is gaveled in the 116th Congress had passed just 194 bills that were subsequently signed into law by President Donald Trump, by far the smallest number in Govtrack's database going back to 1973. The least-productive completed Congress, the 112th, passed 284 laws. Biden will likely remember it well; he was vice president of a Democratic administration during that split Congress.

Of the 8,820 bills and joint resolutions that were introduced in 2019, just 105 became law. The number shrank to 89 in 2020.

"We have seen such excessive partisanship and oftentimes a lot of ambiguity as to what the Trump administration would accept that it became an even more difficult environment in which to get anything done even with the COVID crisis," Broderick Johnson, senior counsel at the Covington & Burling law firm in Washington and former assistant to the president under the Obama administration, said in an interview.

At stake is Biden's agenda of a more environmentally friendly economy, higher taxes and a larger pandemic stimulus.

Whether Biden can get much of his program through the 117th Congress will hinge to a large degree on two Senate runoff races in Georgia.

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Polling in the races — Democratic challenger Raphael Warnock vs. Republican incumbent Sen. Kelly Loeffler and Democrat Jon Ossoff vs. Republican incumbent Sen. David Perdue — is tight, and Democrats need to win both to flip power in the Senate, with Vice President-elect Kamala Harris serving as a tiebreaking vote for a 50-50 chamber.

A win in either race would let Senate Majority Leader Mitch McConnell, R-Ky., keep his grip on the chamber for the Republicans, all but ensuring gridlock.

'Muscle memory'

Some Washington insiders, like Jared Bernstein, named Nov. 30 as a member of the Biden administration's Council of Economic Advisers, are confident that Biden will use his diplomatic talents to break the impasse.

"The president-elect when he takes office will employ muscle memory from the last time in the Oval Office," Bernstein, chief economist for Biden under the Obama administration, said on a recent Society for Advancing Business Editing and Writing panel, referring to his ability as president of the Senate to help reach a bill to provide funding in response to the Financial Crisis of the late 2000s.

That may be wishful thinking.

The Obama administration had a majority in both houses during the 111th Congress, the first of his first term, after which he presided over three split sessions of Congress. The 112th, with 284 laws passed, holds the current record for the least productive. The 113th, during which 296 bills became law and the 114th, which passed 329, are also among the least productive historically.

That was also before the extreme partisanship of the past four years under President Trump, much of which may outlive the current administration, according to Johnson.

"Biden has relationships with Republicans and has worked with McConnell over time," he said. "But another factor to watch is the impact of Trump post-presidency because of the incredible support he has from Republicans across the country. It remains to be seen how it affects what Republican lawmakers are willing to do even in the early days of the Biden administration."

Relief bill stalemate

Among the most pressing yet divisive issues during the last quarter of the current Congress has been a second relief bill in the wake of the economically devastating coronavirus. Despite bipartisan acknowledgement that additional fiscal relief is sorely needed to stem growing unemployment and business closures, a stalemate has carried the day as House Democrats seek a multitrillion-dollar package while Senate Republicans have called for a less costly solution.

In recent days, House Speaker Nancy Pelosi, D-Calif., and McConnell have restarted negotiations, with a pared-down $908 billion package hammered out by the bipartisan Problem Solvers Caucus as the starting point.

President-elect Biden said in November that he would pass the multitrillion-dollar Democrat-proposed HEROES Act "right away" to curb mounting job losses — only about 12 million of the 22 million Americans who have lost their jobs since March have returned to employment — as coronavirus cases spike to all-time-high levels.

Bipartisan success stories

Agreement between Democrats and Republicans on substantive legislation has occurred in the 116th Congress.

A bipartisan effort in the early days of the pandemic led to the passage of the CARES Act, the $2.2 trillion relief bill passed in late March that established the Paycheck Protection Program, provided $500 billion in aid for large corporations, $300 billion in one-time payments to Americans, $339.8 billion in state and local aid and $260 billion in increased unemployment benefits in a time of unprecedented economic devastation.

The 116th Congress was able to pass the United States-Mexico-Canada Agreement, a replacement for the North American Free Trade Agreement, after intensive negotiations between Democrats and Republicans, specifically on environmental, labor and prescription drug issues.

Getting the USMCA through with that much support was "certainly an accomplishment," said Simon Lester, associate director of the Cato Institute's Stiefel Center for Trade Policy Studies. This was due to the fact that Republicans were "willing to go for whatever Trump gave them." Their fear of losing NAFTA under Trump's threats to withdraw from the two-decade-old deal likely drove this unexpected passage, he said.

Democrats and Republicans months later were able to nearly unanimously pass the Uyghur Human Rights Policy Act, which requires U.S. government agencies to report on China's alleged human rights violations against the majority-Muslim Uighur population in the country's Xinjiang region.

The 116th Congress followed a Republican-controlled 115th Congress that passed 442 public laws, the most in a decade, during Trump's first two years in office. Only about two-thirds of these were "substantive" laws, though, according to the Pew Research Center, with the other bills being ceremonial in nature, including the naming of buildings and designation of special days.