Why does Congress introduce bills never meant to become law? Behind 'messaging' bills

WASHINGTON — Last month, Rep. Sharice Davids voted against a bill called the “Equal Representation Act.”

The bill — which would make the Census Bureau determine the citizenship of each person it counted and exclude noncitizens from determining the number of people in a congressional district — had little chance of passing the Democrat-controlled Senate. President Joe Biden threatened to veto it, saying the provision would violate the Constitution’s 14th Amendment.

Still, Republicans in the House held the vote. No Democrats supported it. And the National Republican Congressional Committee blasted Davids for her vote, claiming she was putting “noncitizens ahead of citizens.”

The bill was an example of a so-called messaging bill: a piece of legislation that has little chance of becoming law but helps further a political message.

Republicans propose them. Democrats propose them.

There are messaging bills pushed by single lawmakers (eg. Missouri Rep. Eric Burlison’s bill to repeal the American Firearms Act) and messaging bills pushed by party leadership (The “Hands Off Our Appliances Act”). They’re introduced in the House. They’re introduced in the Senate.

“A lot of these messaging bills, the folks introducing them genuinely want them to become law,” said Casey Burgat, a political science professor at George Washington University. “But my defining feature is that they are introduced with the complete understanding that they will never become law. The message is the point. They’re trying to foster a conversation.”

It’s likely messaging bills will start to take up even more of Congress’ time. With the approach of November’s election, lawmakers are often reluctant to sign on to large, bipartisan pieces of legislation that could draw criticism from their opponents. Instead, with an eye on November, Senate and House leaders will likely hold more votes on political issues.

Democrats are trying to win control of the House of Representatives, maintain control of the White House amid troubling polls for Biden and protect Democratic Senate seats in states that voted overwhelmingly for former President Donald Trump – like Sen. Jon Tester in Montana and Sen. Sherrod Brown in Ohio.

In the Senate, Democratic leadership is attempting to protect those from taking votes that could isolate any potential voters ahead of Election Day — while putting Republican lawmakers on the record on issues where they think Republicans are out of touch.

Two weeks ago, Senate Majority Leader Chuck Schumer, a New York Democrat, held a vote on a bipartisan border agreement that had already failed to pass the Senate when it was first negotiated in February. The vote came ahead of executive orders from President Joe Biden on Tuesday seeking to tighten restrictions on the southwest border.

Last week, he attempted to make the conversation around women’s reproductive rights by scheduling a vote on federal access to birth control.

It was widely expected to fail — Republicans, who said the bill could potentially open the door to legalizing abortion medication in states where abortion is banned, were united against it. Schumer plowed on anyway.

“I certainly advocate people filing things that they believe in,” said Sen. Eric Schmitt, a Missouri Republican. “But I think Schumer spending time this week on this thing is like a very obvious messaging play or something to his base. It feels like a huge waste of time.”

The bill failed to get the 60 votes necessary to pass. Within minutes of the vote, abortion rights groups in Missouri put out statements criticizing Republican Sen. Josh Hawley for voting against it. Hawley, who is staunchly anti-abortion, is up for reelection this year.

“We’ve been shouting from the rooftops for years now that they will come for your birth control too — they won’t stop at abortion,” said Heather Donohue, in a statement put out by Progress Missouri, a progressive advocacy group.

“I never thought I would see in my lifetime that we would actually experience this threat to control our reproductive choices. But with self-serving politicians like Josh Hawley, I now believe there are no rights he won’t go after if he believes it would advance his career,” Donohue said.

Hawley is still the significant favorite to win reelection in November — despite a likely vote on a ballot measure to overturn Missouri’s stringent abortion ban. He was dismissive of the concept of messaging bills.

“Every bill is politically motivated,” Hawley said.

But he argued that Democrats were using abortion rights to “change the subject” from guilty verdicts in Trump’s hush money trial.

“This Trump trial is a massive miscalculation on their part that has dramatically energized the Republican base,” Hawley said. “So they’ve got to rekindle the magic of the abortion stuff, which they think turns out their base.”

Messaging bills aren’t just driven by electoral politics. Hawley is among the lawmakers who often bring bills that may be unlikely to pass but tend to attract publicity. He frequently sponsors short, simple legislation dealing with larger news of the day, like enabling people to sue companies developing generative artificial intelligence or, recently, a bill to prohibit the Biden administration from issuing identification cards to people who enter the country illegally.

His office often uses a two-pronged method to gain press attention for these bills — first they announce that he will introduce the legislation, then release the legislation itself, effectively doubling the media attention.

“The most high profile attention you can give something short of a law is that you hold a vote on it,” Burgat said. “And for individual members and parties, they get to show activity on something from their institutional position. So they get to say whether on a debate stage, or a tweet, or a primary, or commercial I introduced X, and here’s the bill.”

Sometimes messaging bills pay off. Craig Volden, a political science professor at the University of Virginia who studies effective lawmaking, has found that if a lawmaker repeatedly introduces legislation, incrementally building support over time, it can sometimes result in getting legislation passed years after the bill was first introduced.

“What might be seen as a messaging bill now may have grounds for larger lawmaking success down the road,” Volden said. “And we certainly see that.”

Take Hawley’s vocal opposition to TikTok. Over his term, Hawley repeatedly sponsored bills aimed at limiting the reach of the popular social media app — including a bill banning the app from government devices. While his bill didn’t gain much traction early on, it was eventually included as an amendment to a national security bill in 2022.

In the House, the only branch Republicans currently control, lawmakers are frequently asked to vote on legislation that has little chance of passing the Democratic-controlled Senate. Along with helping appease a narrow majority, the often partisan bills also serve the purpose of signaling a potential agenda should Republicans win the White House and Senate in November.

“A lot of times, what they’re up to is they’re sending a signal,” Volden said. “Like you could imagine Republicans in the House sending a signal that if we have the presidency if we control the Senate next time, this is what we’ll do, even if it has no chance of becoming law now.”

But that means Davids has been forced to vote on a variety of legislation on issues like immigration, the Middle East and government regulation that, while it didn’t become law, can be used in campaign ads.

Davids, who is running in a district targeted by the National Republican Congressional Committee, has made it a point to cross party lines on some of the votes and has highlighted legislation where she’s voted alongside Republicans as a way to appear more bipartisan.

“Rep. Davids has always said she’ll work with anyone when it’s good for Kansas and urges House leadership to push forward additional bipartisan bills that can pass both chambers,” said Zac Donley, Davids’ communications director.

But for Rep. Emanuel Cleaver, a Kansas City Democrat who isn’t facing a competitive reelection bid, the votes are a waste of time.

He said there’s been an increase in messaging bills over his 20 years in Congress, as more of the serious legislation has shifted to large, “omnibus” packages, pushed through Congress when there’s a firm deadline.

“I think it is the most significant waste of time that can be created,” Cleaver said. “And I think we humor ourselves if we believe that the American public zeroes in on a lot of little nuances that we throw up and hope they see.”