Since the 2020 elections, gridlock in the United States Senate has transformed from a pressing political problem to a fact of political life. From President Joe Biden’s flagship Build Back Better social policy plan, to efforts to pass a new voting rights bill, to attempts at basic police reform, the story remains consistent. A bill addressing popular discontent that aligns with Democratic priorities gains steam among the majority of the party’s Senators, but attempts to secure passage of the bill are blocked by either unified Republican opposition or holdouts among the Democrats. The consistency of this story seems to suggest that the Senate suffers from institutional paralysis and is incapable of passing legislation. However, this description is not entirely accurate. Despite public perception, the Senate has continued to pass significant legislation with bipartisan majorities throughout both the Trump and Biden presidencies. The key, according to the “Secret Congress” theory advanced by Simon Bazelon and Matt Yglesias, is that successfully passing a bill requires that it draw little attention during the legislative process. Despite the strength of the theory’s arguments, however, there are several difficulties in applying its prescriptions to practical policymaking.
The Secret Congress theory is by nature counterintuitive. A basic understanding of the operations of representative democracy would suggest that the best way to ensure the passage of a bill is to ensure that people know and care about it so that their representatives will be motivated to fight for it. Despite this fact, there are several examples that provide convincing evidence for the theory. A recent example is the No Surprises Act, which was passed by a bipartisan group of lawmakers and banned surprise medical billing, an issue which had drawn significant media attention. Despite the bill’s wide impact on the lawsuits that hospitals and doctors’ groups filed in response to the bill, the legislative process received little coverage and attention. Another prominent example mentioned by Bazelon and Yglesias is the Drinking Water and Wastewater Infrastructure Act, which allocated funds for the improvement of water infrastructure. Other examples include bills banning arbitration in sexual assault cases and postal service reform. While some of these bills carried large price tags, they attracted little to no media coverage and passed with bipartisan majorities, with each receiving enough votes to overcome the filibuster (possibly due to their tackling of popular issues).
According to the Secret Congress theory, this is not a coincidence. The key assumption behind the theory is that the most powerful force in national politics is negative partisanship, a phenomenon where voters mobilize against a party rather than in favor of one. While rare in the past, negative partisanship has risen rapidly in recent years. Opinion polls suggest that Americans’ opinions of the political party they do not belong to have declined sharply since 1980. The Secret Congress theory holds that, under such conditions of extreme negative partisanship, drawing attention to a bill has the effect of associating it with a specific political party and therefore turning members of the opposing party against it to avoid giving the other party a “win.” Under these conditions, believers in the Secret Congress theory would suggest, as Bazelon and Yglesias do, that the best way to pass bills is to avoid drawing attention to them.
The Secret Congress theory is extremely compelling. It offers a way to harmonize prominent examples of gridlock with the Senate’s continued action on other legislation. It also provides a reasonably simple strategy prescription for groups or individuals who want to affect policy by steering them towards behind-the-scenes intervention in issues which draw little attention. However, the theory suffers from several difficulties that significantly weaken its suggestions. The most prominent difficulty involves the direction of causality between public attention and bill passage. While the theory asserts that a lack of attention allows lawmakers to act in bipartisan ways and pass legislation, an equally plausible interpretation is that those bills which lawmakers would naturally be inclined to pass on a bipartisan basis are also predisposed to receive little public attention. It seems somewhat unrealistic to think that increased public attention on the No Surprises Act or the Drinking Water and Wastewater Infrastructure Act would have resulted in these bills becoming bogged down in partisan infighting, as their content is popular and uncontroversial.
Determining whether an issue benefited from low media coverage or if it is generally uncontroversial is difficult, and this difficulty complicates Secret Congress theory’s prescriptions. After all, Bazelon and Yglesias are making an explicitly causal claim that “aggressive, partisan-affiliated public advocacy can help you pass bills if it leads to landslide electoral victories, but in a nonelectoral context, you are more likely to make headway by staying chill.” If the relationship between attention and policy success flows the opposite way, then this advice is based on faulty causal inference and may not have any effect if put into practice.
One example that supports this reversed causality is the Ban Congressional Stock Trading Act, which has garnered bipartisan support alongside significant media coverage and public attention. Stock trading bans for Congressional representatives would appear to be popular and uncontroversial enough to receive bipartisan support despite high salience, raising doubts about whether low levels of public attention allowed other bipartisan bills to pass or if they were popular enough to pass anyway. Similarly, the Infrastructure Investment and Jobs Act, commonly known as the Bipartisan Infrastructure Deal, received significant media attention during the legislative process and still passed in the Senate with a bipartisan majority. This interpretation of the Secret Congress theory also casts doubt on the optimistic interpretation that the Secret Congress proves the Senate remains a functional institution. In contrast to Bazelon and Yglesias’ belief that this theory shows there are lots of “high-impact, neglected legislative areas” in which “progress is… feasible,” reversing the proposed direction of causality implies that the Senate as it operates currently is inherently limited to the space of issues that are both popular and uncontroversial. It further suggests that attempts to expand to issues outside of this narrow area will fail no matter how little attention the individual trying to effect change draws to it. The strategy of the individual or policymaker means nothing, and any effort to tackle an important issue, such as climate change or poverty, will fail. This is a profoundly pessimistic view of Senate institutions and one that suggests the need for significant reform.
The Secret Congress theory is enticing because it offers a possibility that gridlock is a somewhat illusory phenomenon, necessarily illuminated by the fact that bills the public knows about are much more likely to fail than those that remain obscure. It also offers those who accept its findings a way to effect policy change without needing to win electoral victories or wait for structural reforms of Senate institutions that may never come. However, its core claim relies on an unproven causal relationship, which could convincingly work the opposite way, and this fact leaves its implications with questionable value and inherently limited scope. In the end, no matter how much it would like to, Secret Congress Theory cannot save us from the failure of modern Senate institutions and the urgent need for structural reform.