First Branch Forecast for June 12, 2023: Who’s the boss?

TOP LINE

This week. The House and Senate are in and we will see whether Republican House leadership regains control of the floor. (We discuss the power struggle in more detail in the next section.)

We expect to see top-line appropriations numbers in the House, a few (big) appropriations markups, and NDAA subcommittee markups in that chamber; the Senate will be holding appropriations hearings. There’s also a notable Tuesday House Administration Oversight Subcommittee hearing on the Office of Congressional Ethics, a Wednesday Senate Judiciary Subcommittee hearing on providing a code of conduct for Supreme Court justices, and a Wednesday Senate HSGAC hearing on reducing duplication.

The Congressional Research Service has a new interim leader, Bob Newlen, after the ousting of Dr. Mazanec by Librarian of Congress Carla Hayden. People following CRS closely, like us, have been aware of major deficiencies in senior management for years. This transition provides an opportunity for that agency to better serve Congress. More on CRS below.

We have more to say on the topic of ethics and the Office of Congressional Ethics below, but first here’s a new, bipartisan letter from 35 civil society organizations and individuals released this morning concerning OCE and its upcoming hearing. Read all about it.

The Congressional Transparency Caucus is holding a coffee hour Tuesday morning from 8:30-9:30 at CVC 217. Hear from Rep. Quigley and friends from civil society while you munch on breakfast pastries. RSVP here.

FWIW, we expect Tuesday will be a great day, no, a huge day — the best day — to bury bad news.

THE HOUSE’S POWER STRUGGLE

Washington is so accustomed to command-and-control congressional leadership that it sometimes forgets there are other protagonists in the story of legislative sausage-making. By voting down a rule for the first time since Dance Punk was a thing, 11 MAGA faction Republicans brought the work week to an end on Wednesday, reasserting their prerogatives and underscoring their procedural power. A faction waved off as subdued last week hasn’t gone anywhere, and sticking together deprives Speaker Kevin McCarthy the control he musters only through party unity.

There are different definitions of “unity” at work among the conference. Rep. Dan Bishop said it was McCarthy that blew up GOP unity over the debt limit deal by swapping “one coalition partner for another.” Bishop’s statement suggests a view of equal partnership between a distinct MAGA faction and mainline GOP cemented last January over an agreement on hard-right policy positions. Bishop’s crew reportedly are particularly angry that successfully placing Rep. Thomas Massie on the Rules Committee did not achieve those results on the debt limit because he dared to choose governing over factional loyalty.

So far in his tenure, McCarthy has acted much like any other modern Speaker, although we know little about the side deals he made in return for his high position. The MAGA faction reasserted itself, ironically enough, on a messaging bill about an appliance that produces hot air. More substantive bills will follow, as will the appropriations package with much higher toplines (at the moment) than the faction aimed for. This obstructionism could continue.

While leadership loathes this kind of behavior, these members don’t seem to care. Nor should they: Procedural power is real power and they shouldn’t be willing to cede it, even though most members do. So again, we’re in a situation where a faction is behaving in ways that theoretically benefit the institution by creating more member agency and breaking through dictatorial leadership, but with extreme minoritarian intent. (Do they think they are senators?) The MAGA folks want to dictate the terms and vote no when they don’t get everything. So long as McCarthy thinks in terms of party unity, he will be squeezed hard.

Procedure, of course, could be used just as well to isolate the obstructors and move issues where there is majority of member support but perhaps not unity inside the majority. Acting in unison, center-right Republicans have the same veto powers, as well as mechanisms like discharge petitions. Democratic leadership, again prioritizing unity and personal interests, seem content to let Republicans collectively twist. It’s a missed opportunity for Democratic members to gain some positive political power in the House.

There is space for creative politicking around the McCarthy-MAGA binary on things that actually would pass the Senate. Or McCarthy could redefine unity to exclude the MAGA faction and reinterpret them as a coalition partner, but not the only one. (Yes, that’s highly unlikely in an overt way.)

As mentioned above, the immediate challenge is restarting appropriations work post-debt limit with the MAGA faction still stewing about not rolling back spending to FY 2022 levels. Note, however, that their role is not necessarily to reach a legislative goal, but to move the Overton window for this and future negotiations. They may never be “satisfied.”

Four bills that were marked up before the debt limit deal are ready to go, including Leg branch. Indeed, it appears we can anticipate a full committee markup on June 13th for MilCon-VA and June 14th for Agriculture, with Subcommittee markups on June 15th for Defense and Energy & Water. (More full committee markups are expected for June 21-23.) Some House members and the Senate are posturing for even higher defense spending than the debt limit agreement set. The MAGAs want to come in below the caps for non-defense spending, which will create drama in both chambers. Sen. Collins said she wants to move the supplemental soon to support defense “needs.”

Speaking of, we came across this astonishing accounting of defense spending from the Watson Institute at Brown University. An enormous amount of money ends up in private hands, as more than half of the “defense” budget — roughly $400 billion of the $800+ billion — goes to contractors. And out of that $400ish billion, because of industry consolidation, $114 billion went to just five firms. War is big business. In addition, more than a third of the federal civilian workforce works for the Defense Department, while another 20% works at the VA. Anyone remember Eisenhower’s warnings about the defense-industrial complex?

Related Resources

Read “We Get What We Pay For: The Cycle of Military Spending, Industry Power, and Economic Dependence,” from Brown University’s Watson Institute of International and Public Affairs. The charts are striking.

NEW(LEN) LEADERSHIP AT CRS

We’ve been looking over the shoulder of CRS leadership figuratively and literally for some time now in the hopes that it would make the necessary changes to modernize the office and restore workplace morale. This past week, the Librarian of Congress made a change at the top and Mary Mazanec is out as director. We expect Dr. Mazanec’s disastrous appearance before the House Administration Committee a few weeks back was one of the final straws. Bob Newlen, former Deputy Librarian of Congress, is back as interim director.

Current and former CRS employees have been critical of Mazanec for some time, and heightened congressional attention to the agency’s managerial struggles brought us to this moment. House oversight committees queried Mazanec about modernizing the agency and improving its human resources practices in 2019, 2021, and 2023. It was clear at the CHA Modernization Subcommittee hearing on April 26 that no progress had been made and that change at the top was necessary.

CRS employees’ parent union followed up with a letter a week later detailing the findings of an employee survey, which we summarized at the time. They were, in a word, brutal. What’s more, they showed an alarming acceleration of both poor regard for senior management and voluntary turnover, which had doubled in FY 2022. CRS leadership had not made survey results publicly available, and in response the House Legislative Branch Appropriations Subcommittee requested it do so in its report language.

In a statement shared with us, CREA, the parent of the CRS union, thanked Dr. Hayden and congressional committees for hearing its concerns, including “attrition trends, employee morale, equity and representation, technology disruptions, workplace flexibilities, and concerns about CRS management’s commitments to communication and transparency.”

The next CRS director will need to plan and execute a modernization campaign for the agency. They must evaluate and reorganize the agency to be more responsive to congressional needs, restore employee morale, and make it technologically capable. These are three enormous tasks and the likelihood of finding one person capable of everything may be too difficult. A pairing of complementary skills between a director and deputy would be ideal.

A new director, however, should be much more considerate of the ideas of various stakeholders, possess a vision for success in providing for the informational needs of the Legislative branch, and a willingness to buck the timidity that has characterized CRS since the mid-1990s. They need not be non-partisan, but must be respected by all sides. And they must have a real world understanding of Congress as an institution.

This change in leadership is also an opportunity for Congress itself to reevaluate what it needs from a research service in the 21st century, as the challenges facing CRS go beyond leadership. As AEI’s Kevin Kosar mentioned in his testimony in April, the enabling statute’s language reflects a Congress of the 1970s, where information demands were driven much more by committees.

To be sure, some of those demands still exist, but they also have been spread across leadership offices, caucuses, informal coalitions, and individual members. Not all of these users need information locked into a 120-page doorstop report. Nor is all of that information research: some users need to track policy developments as they happen, or synthesize multiple streams of information about a particular bill, including previous iterations. Daniel has started sketching CRS modernization ideas but Congress needs to dig in.

This transition also occurs when congressional ability to manage its own Legislative branch agencies is under review because of the leadership scandal at the Architect of the Capitol. As we’ve investigated, Congress did not have the power to remove the AOC and only limited control over candidate selection, which is true for some other Legislative branch offices as well. The Director of CRS works at the pleasure of the Librarian of Congress even though the word “Congressional” is on the door.

Related Resources

What should a modern Congressional Research Service look like? Read Daniel’s statement for the House Administration Committee’s April 24th hearing. It addresses improving reporting to Congress on its activities, thinking about its products from the perspectives of users, innovating on technology, and other issues facing the agency.

ETHICS

The House Ethics Committee is restarting an investigation into Rep. Matt Gaetz, according to a Punchbowl News report. This scooplet comes prior to the creation of an investigative subcommittee, which would require a vote and be publicly disclosed, and thus refers to a matter that normally would be non-public. The Ethics committee had started a preliminary probe in 2021, then paused its investigation at the request of the DOJ.

Why would it restart? One reason could be if the DOJ has withdrawn its request. Another is the Ethics Committee appears to be insufficiently insulated from the personal politics of the House, and circumstances suggest Speaker Kevin McCarthy could be dipping into its matters. Gaetz, of course, was a vocal opponent to McCarthy’s ascension to the Speaker’s chair, and helped lead last week’s shutdown of the House floor.

Let’s not forget that McCarthy publicly framed the committee’s work with respect to Rep. George Santos, urging that he not be removed from Congress and stating that Ethics will proceed with its investigation despite the pending Justice Department inquiry. That is weird — and suggested McCarthy was looking for a way to both distance the conference from Santos’ behavior and keep him in office. Is McCarthy intervening in the internal operations of the Ethics Committee with Gaetz? Is this routine for party leaders?

There’s a long and unfortunate history of the Speaker interfering in Ethics Committee investigations. We remember, for example, Speaker Dennis Hastert changing House rules to protect a key ally and then removing the Chair of the Ethics Committee in retaliation for their position on investigating Majority Leader Tom Delay, and then purging key staff. Similarly, the investigations into Reps. Maxine Waters and Charlie Rangel involved claims that committee lawyers were secretly communicating with Republicans, resulting in the staff being fired. A reporter writing about the episode described the committee as, “riven with partisan plots, petty jealousies and competing agendas. Indeed, the committee charged with policing the entire House seemed at times unable to enforce the rules of its own panel.”

At times in its history, the Ethics Committee has been a partisan committee in disguise. Its evenly split makeup allows Republicans or Democrats to block or indefinitely delay investigations into their co-partisans. Members of the Committee also serve in Congress, so holding their fellow representatives accountable is something many would be loath to do, and they will give every benefit of the doubt to them. It’s like having your brother-in-law on the jury. And its work is unduly secretive which has the result of impeding accountability when it goes astray.

These problems, and a string of huge scandals that likely contributed to the flipping of the House in 2007/8, is why the Office of Congressional Ethics (OCE) was created in the first place and explains its structure. The OCE plays the role of a fact-finder that has a limited period of time to complete an investigation. When it finds that a referral to the Ethics Committee is warranted, that referral almost always becomes publicly available after a period of time, which can serve to highlight the (in)action of the Ethics Committee.

Its independent board is intended to insulate staff from political shenanigans like those that have at times beset the Ethics Committee. In fact, OCE’s effectiveness has drawn efforts to undermine the independent watchdog, usually by those who would much prefer the much friendlier treatment of the Ethics Committee. (We won’t even draw the Senate Ethics Committee into this discussion, which is languorous when compared to its House counterpart.)

There are ways that the OCE should be strengthened, described in the new civil society letter mentioned above, that should happen in parallel with making the Ethics Committee less political and more motivated to hold members to account. It’s why we will closely watch this Tuesday’s hearing before a House Administration Subcommittee on OCE, which will feature two Board members and its Executive Director.

Related Resources

The House Administration Oversight Subcommittee has scheduled a hearing on the Office of Congressional Ethics on June 13th. The video will be online here. Read civil society’s recommendations for strengthening the OCE.

TECHNOLOGY

If you once died of dysentery, the Library of Congress is looking for your help. It is sponsoring a contest to develop Oregon Trail-style video games that provide civics education in a fun context, using Library resources. The entry deadline is Nov. 27.

The Congressional App Challenge is back. Online registration is now open.

The Congressional Data Task Force, the congressional-public working group focused on congressional tech, has a public meeting set for June 22nd and all are welcome. But please RSVP. Missed the last meeting? We’ve got a recap.

Foundation for American Innovation Executive Director Zach Graves argues in a new paper that congressional capacity to understand emerging technologies is essential for continued American innovation.

HORIZON SCANNING

Veteran congressional staffers Betsy Hawkings and Jean Bordewich offer pragmatic approaches to bipartisan legislating.

Although party allegiance is valuable to leadership, BGov explores which swing-district members break most often with their party.

Deference Difference. BGov examines the impact of rolling back Chevron deference on Congress, which one Republican is pushing for legislatively. (We wrote about this in last week’s newsletter.) A few years back, we read an interesting book entitled “Building a Legislative-Centered Public Administration,” which discusses alternative ways of looking at how agencies function, and it’s time to dust it off.

Political Scientists with recent experience working on reform initiatives in Congress explain in a new essay how other PhDs can play a part in strengthening the institution.

ODDS AND ENDS

Right this Wray. House Oversight Committee Chair James Comer backed off plans to hold a contempt vote against FBI Director Christopher Wray after the agency provided documents the committee had requested. While it took longer than it should have, and more threats than it should have, this agreement is the right result.

The Veep and privilege. Vice Presidents “should be treated as hybrid members of the Executive and Legislative, deriving protections from both, depending on the context,” according to Politico’s summary of a landmark federal court opinion on whether VP Pence can be required to answer questions about conversations that concerned rejecting Biden’s electors. Our reading of the 19-page opinion reveals a fascinating discussion of the Speech or Debate Clause, a constitutional protection for members of Congress, and the extent to which it may apply to the Vice President. It applies, but narrowly. (Also note the annoying citations for opinions of the DOJ’s Office of Legal Counsel, which no courts should point to as authority.)

You get what you pay for. This New York Times profile rolls through the myriad challenges of being the Architect of the Capitol, which is leading to difficulty in filling the position. It devotes one sentence to one of the biggest ones: the pay is too low ($212,000) for a job of this magnitude and complexity. Candidates understand, too, that Congress fixes the salary and it’s difficult to raise significantly. Noncompetitive salaries across the Legislative branch are a hindrance to finding and retaining high-quality employees. We’ve seen improvements, but not for all of the agency heads. We’ll see how CRS navigates the same challenge.

Even for the Massachusetts delegation to Congress, which is entirely Democratic, diversity in staff hiring is a mixed bag. Overall, the delegation is behind the average House and Senate office in hiring people of color and 75% of senior staff are white. The Boston Globe recently published data on the delegation.

We note from the accompanying story a comment from a Congressional Workers Union representative that senior staff diversity is a major focus of union organizers, who recently secured voluntary recognition within Senator Ed Markey’s office. Again, unionization is not all about pay raises but the entire workplace climate.

An IG audit found that the Department of Defense did not properly support the implementation of its Controlled Unclassified Information program, resulting in the exclusion of information from Congress that the National Archives said it had access to.

History may now remember the Espionage Act in terms of file folder boxes stashed in the spare bathrooms and auxiliary stages of a South Florida mansion. Immediately after its passage in 1917 as the US entered World War I, however, it became a powerful tool for the federal government to repress legitimate political speech and, eventually, to hamstring a free press. Eugene Debs ran for president from federal prison in 1920 for violating the act with an antiwar speech in 1918, just one of many prominent Socialist Party members who were jailed for their pacifism on the grounds they hurt military recruitment with their words.

More recently, the Executive branch has used the Espionage Act to punish whistleblowers who leak classified information that embarrassed or shamed federal agencies rather than revealed damaging secrets. The Trump Administration prosecuted Reality Winner, for instance, for sharing a one-page classified document about Russian interference in the 2016 election with The Intercept. She served four years in prison. We’ll see how that standard applies to the leader of the administration that sent her there.

We share the opinion, eloquently outlined here, that the Espionage Act is too broad and needs substantial revision. Its substantive problems do not appear to be implicated in the current prosecution. But the irony also isn’t lost on us that it was this criminal act, rather than interfering with an election or fomenting a seditious strike on the Legislative branch to remain in power, that brought federal prosecution for the former president.

It isn’t often that members of Congress quit the chamber when sanctioned. Perhaps they should take a cue from former British Prime Minister Boris Johnson, who is quitting “after being told he will be sanctioned for misleading Parliament.” Then again, if you read the article, there could be a cynical reason for his departure. Ah, politics.

CALENDAR

Congressional Committee Calendar

~ Tuesday, June 13 ~

The Congressional Transparency Caucus hosts a coffee hour at 8:30 AM in CVC 217. More details here.

The Senate Judiciary Committee will hold An oversight hearing to examine Section 702 of the Foreign Intelligence Surveillance Act and related surveillance authorities at 10 AM in 216 Hart.

The Office of Congressional Ethics will be subject to a House Administration Oversight Subcommittee hearing from 2:30-4 PM in 1310 Longworth.

The Office of Government Information Services will hold its annual open meeting starting at 10 AM. More details here.

~ Wednesday, June 14 ~

The Senate Judiciary Committee will hold a hearing on S.359, which establishes a code of conduct for Supreme Court justices, at 2 PM in 226 Dirksen.

The Congressional Baseball Game starts at 7:05 PM at Nationals Park. Tickets available here.

~ Thursday, June 15 ~

The International Conference on Legislation and Law Reform and The University of Pennsylvania Carey Law School will offer a webinar on AI and legislation on June 15 from 11 AM to 12:30 PM. Register here.

~ Down the road ~

The next meeting of the Congressional Data Task Force will be on June 22 from 2-4 PM in B-248/B-249 Longworth. Attendees must register here in advance.

OCWR will hold a webinar on its role under the Congressional Accountability Act and the rights and responsibilities of covered Legislative branch employees on June 27 at 1 PM. Register here.

House Office of Diversity and Inclusion Director Dr. Sesha Joi Moon will hold an open meeting on June 28 at 11 AM. RSVP here.

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