First Branch Forecast for October 2, 2023: CR-azy week

TOP LINE

What a CR-azy week. In many respects it is the natural result of the rules package agreed to at the start of the 118th Congress, the inability of the 117th Congress to enact key reforms, the rise of Trumpism, the return of the strong Speaker model in the 80s-90s, and a Constitutional framework that creates perverse disincentives for lawmakers. Don’t worry, we won’t talk about all of that.

Because of the timing of the House’s passage of the CR on suspension(!), 335-91, we will just make a few quick points. (This measure sailed through the Senate a few hours before midnight.)

First, note that House Republicans did not follow the 72-hour rule and gave Dems fewer than 30 minutes to read the bill, raising real concerns about whether something’s getting snuck past the goalie. (Like a new submarine! And member COLAs!) While it was a politics-created emergency, this points to the need for more time, better policy support, and better technology so people know what they’re voting on.

Second, on the COLAs issue, we are not a fan of arguments that a bill should go down because it allows members to get a COLA. Member pay is down something like $50K in real terms over the last quarter-century, and we don’t want a chamber where you can only serve if you’re wealthy. Better pay is an anti-corruption measure.

Third, we note how hard it is to find the text of the CR, which popped up on the docs.house.gov floor page. This is a fine place to publish information, but most people playing at home would be looking at Congress.gov, which is going to have the bill waaaay after-the-fact. The reason the Clerk’s website exists is because the Library was unwilling to play ball with the House for more realtime information a decade ago. It’s time to get that fixed. The most timely information should be available on Congress.gov, which is where most people look.

Finally, Speaker McCarthy used the suspension of the rules as a way of getting around his own Rules Committee and the hardline Republicans. We will see what kind of retribution they will try to bring. Rep. Gaetz said over the weekend he’s going to force a vote to remove McCarthy. And (some?) Republicans are apparently planning on using the Ethics Committee investigation as a vehicle to expel Gaetz.

We cover below the seismic shifts in the Senate. We run through the impact of a shutdown on the institution. Also how members should be thinking about reconstituting the House to prevent further damage from a faction intent on bending the chamber to its will.

There’s good news, too. We cover a smart House Admin hearing into the Government Accountability Office and an otherwise unnoticed CHA markup. We touch upon the departure of the unlamented USCP IG.

We’re not going to touch the failures of all those other CRs and approps bills in the House and Senate. They appear to be artifacts of a failing process attributable to how the Congress is reshaping its party/faction system, and there’s lots of coverage of the tick tock elsewhere.

This week, the House will continue to work through a scheduled recess. The Senate is in session as well. House leadership drafted this calendar for appropriations bills, starting with the Legislative Branch. The Rules Committee will take it up on Monday at 4 PM ET.

SENATE SUCCESSION

Sen. Dianne Feinstein has passed, the longest-serving female senator in American history. Her last few years were tragic, marked by an apparent steep decline in her cognitive capabilities, a deficiency that has partially overshadowed her long career. Feinstein also served as the first female president of the San Francisco Board of Supervisors and the city’s first female mayor. Her rise to power was marked with shocking tragedy.

The death of a senator in the majority immediately opens up crass institutional musings. Forgive us for joining that discussion here. Senate Republicans blocked a temporary substitute for Feinstein on the Judiciary Committee when she was in poor health — providing fuel for those who did not want her to retire — leading to speculation for months that Republicans would object to the seating of any successor on committees.

Withholding unanimous consent would allow Republicans to filibuster the assignment of the new senator to committees. With judicial nominations in the balance, that risks Democrats nuking the filibuster, which apparently is one the minority is not willing to take. At least that’s what they are hinting at now. Sen. McConnell had no compunction in holding that chamber hostage at the start of the 117th Congress, in the aftermath of the Trump insurrection, by refusing to agree to an organizing resolution then, and we all know what he did with respect to Ruth Bader Ginsburg’s replacement.

One way to honor her legacy, for what it’s worth, would be to release the Torture Report that the Senate Intelligence Committee spent years writing, which was largely stonewalled by the intelligence community, and then deep-sixed by her successor at SSCI (who eventually had a corruption scandal). The report still exists… maybe Sen. Warner should release it?

One crass side note. There’s a longstanding tradition of the House and Senate providing a “death gratuity” to the family of deceased members of Congress. The gift, equivalent to a year’s pay, makes no sense in the modern context that people buy life insurance. It also makes no sense because Sen. Feinstein was one of the wealthiest senators, worth $70 million, and was married to a recently deceased billionaire. That money would be better spent going toward the Capitol Hill contractors who could shortly be without pay.

And then there’s Senator Bob Menendez, who appears to be severely compromised given the details of the indictments against him and his wife. This past week saw a majority of Democratic senators call for him to resign, including (belatedly) some of the top leadership, but not yet (?) Sen. Schumer, who is still MIA. Menendez, as it turns out, objected to the strengthening of FARA in 2020, which comes off very differently considering the allegations. As Daniel said in The Intercept, Menendez has the right to a fair trial, but not a Senate seat.

THE HILL ALMOST SHUTS DOWN

We came close to a huge government shut-down, and I suspect we will come close again in, oh, 45 days. So here’s what we’ve put together on what a shutdown would look like on the Hill.

According to the updated guidance provided last week by CHA, during a shutdown, student loan repayments covered by the House’s program would not be made. At least staff still commuting to work without pay would be able to ride Metro on their transit benefit.

Perhaps the Senate was too busy dealing with what its members should wear than to issue guidance to its staff (more on the dress code’s shady deployment below). Or if it did, we haven’t seen it, yet.

Members are not allowed, the House Ethics Committee reminds offices, to use campaign funds to pay staff for official congressional duties. House staff also cannot pay others with their own money. Fellows and detailees would be able to continue to work, but not to replace furloughed workers. Staff who seek non-congressional work during a furlough would have to follow standing rules about outside employment.

Staff with bank accounts at Navy Federal Credit Union and Congressional Federal Credit Union can apply for zero-interest advances on unpaid salary during a shutdown. CFCU also may be able to defer loan payments and credit card balances. If you’re not a member, maybe now’s a good time to join.

Workers employed by subcontractors like the hospitality and janitorial staff would not be able to recoup their lost wages. Democrats have drafted legislation granting these workers back pay as they did for federal workers after the last shutdown. Add this to the list of things the 117th Congress should have done. Maybe there’s time to do it before mid-November.

Some Legislative branch services available to House staff were set to be canceled or curtailed. The CAO coaching staff, its staff academy, the House Wellness Center, Office of Diversity and Inclusion, and ID service office were set to close. House Information Resources, Office of Employee Assistance, and the House Recording Studio were set to have limited support available. Ditto the staff gym, while the member gym would remain open – just not cleaned. Ew. Members also still would be able to have their floor charts and posters made (because what is debate without them), but nothing else at Creative Services.

Within support offices like CAO, the Congress has hired contractors to build out tech tools to serve institutional needs, like the app they’ve developed to deconflict members’ committee schedules. These contractors were set to stop work. Some may consider picking up other work, and if there is a prolonged shutdown congressional projects will suffer. Maybe it’s time to think of a better approach.

CRS and the Legislative Resource Center would have continued to operate with significant staff reductions. AOC would only respond to life-threatening service requests. The Capitol Visitor Center was set to close, canceling any events scheduled in its meeting rooms.

If the shutdown were to drag on, core legislative support agencies would close. Congress would have had until October 10 to use the services of CBO, when it runs out of funds. Lawmakers would be left to solve the appropriations standoff without data or CBO’s annual report on the federal deficit, although they will still be able to benefit from unpaid labor. Perhaps a week later, Congress also would be out of the services of GAO. Comptroller General Gene Dodaro said in a hearing last week that the agency has some multi-year funding that would allow it to function for a short time.

SETTLING THE FACTION BATTLE

The almost-shutdown is having a negative impact not only on congressional operations but also on its procedures. The flurry of activity on appropriations bills, dictated by the demands of the hardline minority faction of the GOP coalition, has prompted leadership to take actions that are unusual and contrary to the spirit of representative democracy.

For example, while voting on the defense spending package, the House voted overwhelmingly to defeat Rep. Andy Biggs’ amendment to strip $300 million in aid to Ukraine. Leadership then sent the bill back to the Rules Committee via a special order to separate the amendment out as a standalone measure out of fear Biggs and other Ukraine aid opponents would tank the defense package. It narrowly passed without it. So members voted in a large majority for something, only to have leadership unilaterally do something contrary to that vote. What’s the point of voting, then?

Coverage of Congress last week demonstrated the highest attention to the wrong details. Program cuts, amendment language, floor votes, and speculation about the motion to vacate are the artifacts of the central story of a determined hardline minority faction continuing to impose its will over a party unwilling to expand its coalition and govern. This faction has concluded that generating dysfunction actually helps their cause politically. Single-member districts and the deep well of small-dollar donations from a radicalized electoral base provides the political independence needed to continue to roll the Republican agenda closer to their own. The question to ask is what would it take to jettison this faction from a governing coalition and why nobody’s tried to do so yet.

As we’ve been arguing, the path forward is for people who really want to govern regardless of party to come together and form fluid coalitions. Democrats thought they had done this with the debt limit deal, but the hardline faction prompted Speaker McCarthy to choose to renege on it almost immediately with a floor procedure strike. The disaster was narrowly averted, for now, but to make it stick, the House majority should revise the rules it adopted at the start of the Congress to reflect a power-sharing arrangement between the two broad-based factions and the isolation of the minoritarian one.

Democrats have started talking vaguely about the concessions they’d require to save McCarthy from a motion to vacate or to lend votes to a clean CR, mostly mentioning cutting off the Biden impeachment inquiries. They should aim much higher than short-term political wins. They’ll have another opportunity soon enough.

They should seek to gain equal footing on the Rules Committee. They should look to address committee ratios, perhaps to gain an equal say over their operations, or at least the ability to veto committee actions. They should look at a reduction of the votes required for discharge petitions to one that the broad-based factions can meet (in the low 200s). And they should consider how to facilitate the hardline Republicans splitting from the traditional Republicans, such as by allowing them to retain committee seats should they be ejected from the party. (This could be helpful in the future, should the traditional Republicans become a minority in their own party.)

They also should look to the Senate’s power-sharing agreement in the last Congress.

McCarthy and most Republicans would get strong value out of such an agreement. Restructuring the rules would eliminate the ability of the extremist faction to play out future crises to extract more concessions on social spending and Trump restoration. It halts the ability of the hardliners to be free riders within the Republican majority with the political costs borne by others.

The conflict between a two-faction conservative coalition will intensify because of the structural imbalance in our electoral system. Traditional Republicans face a similar challenge that Democrats do as described in Jonathan Rodden’s Why Cities Lose. Because the United States awards legislative seats through electoral victories in geographically-defined districts, the clustering of Democratic voters has created large numbers of rural and exurban districts that are safely held by Republicans. Democrats are left to scramble for what they can in the suburbs even while winning the majority of aggregate congressional vote totals.

But Republicans, too, are locked into this system where much of the real competition happens not in the general election but the primary because of geographic sorting. That’s the opening for the far-right faction to expand its numbers by claiming the mantle of “true” Republican identity from primary voters in safe districts. This is already happening – six of the 21 arch-conservatives who voted against the GOP spending package Friday are freshmen. Correspondingly, if competitive general elections produce moderating pressure on candidates (which is an iffy assumption), not nearly enough such districts exist to keep “moderate” Republicans in sufficient numbers. The slash-and-burn mentality of the extreme faction likely will deter moderates from seeking congressional office in the first place.

In other words, the structural partisan and electoral factors are unlikely to change anytime soon. The hardline faction, meanwhile, has found repeatable tactical advantages within the current rules and procedures of the House. They can rinse-repeat for as long as they like. They’ve also tested even more aggressive demonstrations of power like kicking members they find objectionable off committees. If this faction grows, what can we expect from future hardline majorities?

The time to think creatively about reshaping a more stable, functional, and productive legislature is now. Congress has tremendous potential to remake itself given the space the Constitution grants it to shape its own rules. We’re seeing the danger of authoritarian, minoritarian capture of the institution by those same rules at the acquiesce of the putative majority. Both parties’ leaders are locked into patterns of thinking that prioritize internal control and external competition. The hardliners have hijacked control and redefined competition as an intraparty exercise. Leadership needs to adapt and think about how to exercise power in reality, not just in name only. When you don’t have a functional majority, that means thinking about how to obtain it, including by expanding the range of possible partners.

We’re encouraged to see that some in Democratic leadership are thinking about a power-sharing agreement as a way to break the hardline hold on the Republican majority. (We are disappointed that Rep. Pelosi is not thinking along these lines.) The context has changed too much to operate in the same old ways.

GAO MODERNIZATION HEARING

Congress enjoys the benefit of having strong legislative support agencies to inform its governing responsibilities. Those agencies, however, were conceived in the mold of 20th century bureaucracies, the dawn of modern state capacity expansion. Each, at least on paper, has their own mission and set of information resources to contribute to the policymaking process, even those like CBO added in subsequent decades. Granted appropriations accordingly, they need to justify their existence and defend their turf from the others.

Information in our modern context has exploded in scale, bleeding over these bureaucratic boundaries and overwhelming any one agency’s ability to handle it all. Some agencies, like GAO, have more-or-less adjusted mission and capacity with the change to offer Congress a broader range of services in different formats and contexts. Others have had a hard time with change.

That deeper context shapes the very exciting work being pioneered by CHA’s Modernization Subcommittee to examine changes to how legislative support agencies support lawmakers’ work. The key to this process is thinking beyond organizational trees and boundaries to focus on the needs of the congressional user, which was not on the minds of the designers of the current system. For example, information should flow from agencies to congressional users based on congressional needs. Right now, that information often is delivered asynchronously, in several different formats, and with subject-matter overlap that isn’t always readily apparent. Congressional users often don’t know what resources exist on a given topic even though three agencies may be working on it.

A coordinating entity would be valuable to help congressional staff and members absorb what legislative agencies are producing on specific topics. During the subcommittee’s hearing on GAO modernization last week, the Partnership for Public Service’s Executive Vice President James-Christian Blockwood suggested that GAO become that central clearinghouse for Legislative branch agencies to reduce redundant requests between it, CRS, and CBO, deliver information more quickly, and support learning. The committee, he suggested, also should explore merging some overlapping capabilities in support agencies.

Any consolidation or merging needs to consider the inevitable turf battles that would ensue. Recent history has shown that they can hamper delivery of the intended innovation. Both GPO and the Library of Congress wanted to take ownership of the Thomas legislative data website when it launched back in the 1990s. Unable to decide, Congress gave each a piece. The collaboration became more of a toy hoarding exercise, especially at the Library of Congress under the prior Librarian, and it took years of work and the establishment of the Congressional Data Task Force (née Legislative Bulk Data Task Force) some years later to sort it out and put it on the path toward usefulness.

Even something like new member orientation elicits turf defense. Comptroller General Gene Dadaro renewed his plea to the subcommittee to allow GAO to participate in new member orientation.

Some of this work of information consolidation and delivery could be done with in-house technology. Comptroller General Gene Dadaro and former STAA head Dr. Tim Persons noted an innovation lab within STAA is experimenting with a generative AI prototype to harvest information contained in agency reports and summarize it for congressional user requests. Blockwood suggested GAO could develop issue-specific dashboards of available resources. Persons noted that because GAO’s generative AI tools would be fed legislative support agency information sources and other federal data, future dashboards would still deliver reliable and nonpartisan perspectives, but with just-in-time usability.

More innovative still is training an AI that staff can ask questions and will draw its answers from official, authoritative, expert legislative documents.

GAO is out front on this type of modernization. Dodaro noted that GAO has taken recent steps in strengthening its data analytics and internal tech capacity, hiring a new CIO in May and its first agency-wide chief data officer in June.

Witnesses agreed Congress should go further. Persons endorsed a recommendation by the National Academy of Public Administration in 2019 to create an Office of the Congressional Science & Technology Advisor to improve the absorptive capacity of Congress on such issues. Persons and the Foundation for American Innovation’s Dan Lips also recommended authorizing legislation that would establish STAA as a separate new agency.

Zooming out from these specifics, “modernization” in Congress should involve providing the decision-makers within the institution with the expert, impartial information they need to be well informed on public policy and delivering that information in ways that maximizes its absorption. Failing to do so makes Congress vulnerable to outside interests doing the educative work. We get excited about tech’s potential to help with the latter, but the former is very much still a restoration project.

On a question during the hearing about GAO detailees assigned to committees, Dodaro noted that in the 1980s the agency routinely assigned many more because it had a larger workforce to draw from. GAO now only has a handful of detailees — sixish at the moment. CRS, which also used to make available detailees, apparently has curtailed that practice. This should be reversed.

The Modernization Subcommittee is doing fine work going right to the core of the institutional and technological issues related to its charge. The Appropriations Committee will have to be brought along in this process as well, as will the Senate.

MORE CHA ACTION ON MODERNIZATION

Thursday, CHA approved on a bipartisan basis a bill to extract the Executive branch out of the process of hiring and firing the Architect of the Capitol, an oddity that made it impossible for Congress to remove the person in charge of its physical campus. The bill, which mirrors one already approved by the Senate, creates a bipartisan congressional commission to appoint and remove the AOC by majority vote. It also details a succession plan in the event of a vacancy.

Although this change is a clear win for the independence of the Legislative branch vis-a-vis the Executive branch, other legislative tweaks to congressional agencies actually might undermine that independence. Comptroller General Dodaro warned CHA in his response to a question about revising the authorizing statute for GAO that such an effort would inherently invite presidential input. We understand the caution, but in light of Executive branch contumacy, legislation likely is needed to strengthen facets of the Legislative branch as well as to reorganize its operations.

The committee also approved, on a bipartisan basis, new manuals for members, committees, and eligible congressional member organizations. There is a lot in these new documents and we have to take a look to see what’s changed.

CREDENTIALS

Members of the press have long determined eligibility for media credentials to cover Congress. Having a peer committee handle credentialing assures the independence of the press corps in doing their work. Two proposals this week, however, questioned that independence.

During its markup, CHA postponed a resolution that would boot foreign state media outlets with credentialed members from working in the House press gallery if they are not in compliance with FARA. (We are unclear how this would work in practice and who would make that judgment.) The result would be media members who did not register properly would be denied credentials. Rep. Jack Bergman originally introduced this resolution language this March after he called for the suspension of Al Jazzera’s access to the House. (Bergman’s not on CHA.) At first glance, this is not a great idea. The press gallery should be in charge of credentialing, not the politicals. In addition, we do wonder whether this is the right committee of jurisdiction for these matters.

The Speaker’s Office, meanwhile, has floated an idea to create a working group to consider revising how credentials are distributed. Any changes would require amending House and Senate rules according to longtime Senate Periodical Press Gallery official Ed Pesce. (The history of journalists covering Congress is not what you’d expect at all. Hit us up if you want some reading recs.)

YET ANOTHER POLICE IG

The US Capitol Police will be on its fourth inspector general in two years when current IG Ron Russo retires on October 20 and moves home to Florida. Russo began his stint at the end of this past January.

Russo took the role amidst frustration with the slow pace of compliance with Legislative Branch Appropriations report language for the IG to release its reports to the public. Under Russo’s watch, releases increased 200%. Unfortunately, that translates to an increase of four of the 650 reports still missing from the IG website.

Russo also could not explain to CHA in July why his department had marked some of the recommendations related to the January 6 attack on the Capitol as complete when they were not.

Let’s just say that his tenure was not exactly a success if you’re interested in reform or oversight.

As we discussed after that hearing, the USCP IG position does not operate like other federal IGs because the US Capitol Police Board selects the position. It also retains veto power over the release of IG reports: other IGs are required by law to do so. The Police Board is still empowered to select Russo’s replacement. This crazy system will continue for the next body to occupy the desk until Police Board reform comes to fruition.

The Police Board should not be empowered to make the IG decision. Moreover, the IG should be capable of overseeing the Board. We think there’s a big potential role for CIGIE to make recommendations and for a bipartisan, bicameral member committee — like the one created under the AOC bill — to exercise hiring and removal authority.

STEALTH MODE DRESS CODE

Although we’re not particular fans of official dress codes, we really don’t like hiding resolution text until after it’s approved. That’s what happened with the Senate’s new dress code last week, which was introduced and approved without the accompanying bill text ever appearing on Congress.gov. It’s our understanding that the Senate’s current antiquated internal systems made it unlikely that senators saw what they were voting on to approve.

This bad practice has bothered us for years. Demand Progress and more than 40 other signatory organizations urged the Senate to publish bills and amendments online while they are still under consideration back in December 2021. After-the-fact publication does nothing to help senators, the press, or the public have transparency into chamber actions. House managers are able to publish the text in a timely manner. The Senate just doesn’t feel like it.

So what did they agree to? It turns out, a resolution drafted by Sen. Joe Manchin explicitly says “men” must wear a specific outfit to be allowed on the Senate floor by the Sergeant at Arms. Will it be up to the Sergeant at Arms, then, to determine who is a man? To emphasize, this resolution applies to everyone seeking access to the floor, not just senators – staff, foreign dignitaries, secretary of the Senate staff, visitors, etc. We’ve gone more than two centuries without a dress code, and what people can wear has changed over time. This is just culture war nonsense with a touch of classism. People should be encouraged to dress professionally and to make a decision about what that means for themselves.

Is this sartorial slide a problem on the House side? According to the fashion police, you can’t check for firearms, but you must check for slacks.

LEG BRANCH APPROPS

So the House Rules Committee is scheduled to consider the House Leg Branch Approps bill on Monday. Presumably amendments could be considered by that committee, although we haven’t seen any listed. (We could have missed it.)

Unlike the other approps bill, the Leg Branch bill is playing with real fire. The Senate will not interfere with the numbers the House sets for itself or the policies contained in that bill that apply to the House. This creates the danger that messaging nonsense could make it into law without the (policy) intervention of the Senate.

We are not in love with the bill, but the bill text and committee report are probably the best that one could hope for in the current context, with a few significant exceptions. It’s worth keeping a close eye on.

CALENDAR

Congressional Committee Calendar

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