Congress is in session, technically

WASHINGTON — The people’s representatives can’t agree on much of anything these days — even calling a recess.

When senators and members of the House went home for their Independence Day break, they didn’t, or couldn’t, agree on an adjournment resolution. So they did what they usually do: They went into “pro-forma session,” a status when they are technically working but don’t actually do anything. Come to think of it, that’s pretty much how it is when they’re in town, too.

I visited the congressional galleries Tuesday to catch this week’s pro-forma action. On the House floor, Del. Eleanor Holmes Norton, D-D.C., was giving a lecture about Washington, D.C., voting rights to schoolchildren, who squirmed. Nearby, three maintenance workers tinkered with the electronic voting system, illuminating the board that shows which bill is up for a vote.

“MOTION,” it said. “TO TEST THE EVS.” No objection was heard, so apparently the resolution passed.

Lawmakers are home. Staffers in the Capitol lounge were in open-collar shirts. But make no mistake: Congress is in session.

President Obama made this mistake. He made recess appointments during a pro-forma session, claiming it was really a recess, and the Supreme Court unanimously smacked him down last week: “The Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.”

It didn’t seem to matter to the justices that the body seldom “retains the capacity to transact Senate business” even (or especially) when its members are in town.

Obama vented his frustration Monday, condemning “the failure of House Republicans to pass a darn bill” on immigration. He defended executive actions again Tuesday, saying that “as long as they insist on taking no action whatsoever that will help anybody, I’m going to keep on taking actions on my own.”

Congress has passed just 56 public laws this year, for a total of 121 since the beginning of 2013. This virtually guarantees the current Congress will be the least productive in history, well behind the “do nothing” Congress of 1948, which passed more than 900 bills. And many of the 121 bills are not exactly weighty.

The GOP House won’t take up immigration or unemployment insurance, but it has passed many bills that Obama doesn’t want to sign and Senate Democrats don’t want to pass, including opening the Keystone XL pipeline, repealing the medical-device tax and 40 smaller items that House leaders call “jobs” bills.

In the Senate, only nine bills have passed in roll-call votes this year (a half-dozen other substantive bills have passed by unanimous consent) and not one of the 13 appropriations bills. The Democratic majority claims the chamber has been bottled up by the Republicans, who in turn say Senate Majority Leader Harry Reid has shut them out of the process. Both have a point.

According to a Republican leadership tally, Reid has granted only 11 roll-call votes on Republican amendments in the last year, and he has used a procedural tactic known as “filling the tree” 86 times in this Congress to block Republican amendments. This is more than twice the number of times — 40 — used by the previous six majority leaders combined.

The difficulty in declaring a recess shows how far things have slipped. Reid began objecting to adjournments late in the Bush administration to prevent recess appointments. Republicans have used the same tactic in the last few years. The Constitution doesn’t allow either chamber to be out of session for more than three days without the other’s approval, and majorities in both are evidently wary of forcing adjournment votes, which could be seen as voting themselves vacations. Hence, the pro-forma Congress.

On Monday, the House opened for business at 11:30 a.m. — and after 3 minutes and 18 seconds (time for an opening prayer and Pledge of Allegiance) it recessed until a similar charade scheduled for Thursday. The Senate gaveled in at noon Monday and, dispensing with prayer and pledge, gaveled out 28 seconds later.

On Tuesday morning, public-address speakers near the (empty) Senate floor announced a shelter-in-place drill. I poked my head into the secretary of the Senate’s office and surprised a man in a sport shirt. “This is my pro-forma gear,” quipped a tieless Don Stewart, spokesman for Senate Minority Leader Mitch McConnell of Kentucky, when we met in McConnell’s empty reception room.

Lawmakers return next week in time to resolve some pressing questions: Will they have the nerve to declare a formal recess when they leave for August? And will anybody notice that they’re gone?

Dana Milbank is a Washington Post columnist.

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