First Branch Forecast

First Branch Forecast for November 28, 2022: Stopping by Congress


The next House will be symmetrical to this one: 222 Democrats becoming 222 Republicans. The incoming coalition, however, is a lot less stable than the outgoing one. How Rep. Kevin McCarthy navigates the complex journey to the speakership could break either way for the institutional health of Congress. Meanwhile, Democrats, like good Thanksgiving guests, are in full conflict avoidance mode within their caucus.

This week, The Senate returns on Monday and will vote on cloture for the Respect for Marriage Act. The House returns on Tuesday. It looks like a light legislative week in the people’s chamber even as the clock ticks down on many important legislative efforts, big and small.

The House Rules Committee will hold a Members’ Day hearing Tuesday to gather rules change proposals for the 118th Congress. House and Senate Democrats will vote on their caucus rules Thursday.


We’ve been focused on the House Freedom Caucus and the rest of the hard-right faction as it positions itself for greater influence in the 118th Congress. It’s hardly the only faction, or even the largest, in the GOP conference, however. Politico last week reported on how party “moderates” and some Democrats are considering utilizing their own leverage, particularly as Rep. Kevin McCarthy plays 17-dimensional chess to secure enough votes for the Speakership. They may be looking for potential rules or committee structure changes, which is intriguing.

The story is a reminder that the tactical posturing of establishing the 118th Congress represents real rifts developing between some key constituencies in the Republican Party and for some Democratic “moderates.” Republicans who see themselves representing white Christian conservatives have broken with corporate America over companies becoming “woke” on social equity issues that affect both public reputations and employee satisfaction. Their constituents, especially the wealthy mega-donors and grassroots donors, want control of the party for their decades of commitment as its activist base. But they’re running up against very powerful and wealthy (corporate) interests that are used to political dominance.

Perhaps the first problem the Problem Solvers Caucus might end up solving is the HFC.


In the middle of all of this tumult stands Kevin McCarthy. Because the modern House currently concentrates power in the Speakership, his choices in catering to the various factions to secure the position have profound institutional impact. We’re seeing his calculations play out in unusually public ways, so we can project the potential damage.

The equality of members is a core principle of any representative body. In congressional history, members typically have punished or excluded their fellow members only in cases of using their office for personal benefit, engaging in election fraud, or political heresy. McCarthy seems to have accepted eroding this norm as part of his Speakership quest, reiterating last week in television interviews and speeches his promise to block Rep. Ilhan Omar from a seat on the House Foreign Affairs Committee in the 118th Congress. He’s made similar comments about keeping Reps. Adam Schiff and Eric Swalwell off HPSCI.

The issue of Rep. Omar clearly is related to the 117th Congress throwing Rep. Marjorie Taylor Greene off her committees. Although that move was unprecedented, it was a decision by Speaker Pelosi and Democratic leadership to protect committees as public platforms from wild conspiracy theories. Eleven Republicans agreed to cut her microphone off when McCarthy refused. In recent Congresses, Republican leaders had worked to defenestrate other white supremacists, notably Steve King, but they would not act w/r/t Greene and others. Republicans are trying to draw an equivalence with Rep. Omar on anti-Semitism, but #bothsides doesn’t hold true with Rep. Jewish Space Laser. This form of political payback sets a terrible precedent and sounds a lot like a dog whistle.

This largely is McCarthy’s call. It’s true that the entire House would vote on the resolution to name members of the Foreign Affairs Committee. But McCarthy, through the Rules Committee, would ensure Omar’s name was not on that resolution, or could cause a separate vote.

Because HPSCI is a select committee, the Speaker has unilateral power to name its members. The same rule applied when Nancy Pelosi named all the members of the January 6th Committee when McCarthy refused to provide any names. The House has a long tradition of comity between the majority and minority concerning select committee spots, so McCarthy’s move would be a major break with precedence and chamber civility. Refusing to seat the former chair of the committee for retribution of his role in the (first) impeachment of the former president would be dropping a hydrogen bomb on precedence and comity. If done to chase a few votes for the Speakership, all the worse.

McCarthy’s preemptive move against Omar would be more analogous to the only instance of the House refusing to seat a member because of political ideology. In 1919, the chamber refused to seat Wisconsin’s Victor Berger, who had served a single term between 1911-1913 as the first Socialist member of Congress. His party opposed US entrance into World War I and he was indicted under the Espionage Act for his anti-war stance. Like Omar, conservatives viewed his ethno-racial background (he was born in what is now Romania) and political ideals as disqualifiers for being considered part of the national community, let alone the Legislative branch.

Berger’s actual presence in the chamber hardly mattered. His Milwaukee district returned him to the House in a special election for his own vacated seat and he served several terms under Republican majorities as the lone Socialist in Congress. Omar’s presence or absence on the Foreign Affairs Committee will have little bearing on American foreign policy. But like Berger, it will signal that the constituency she represents need not be considered “American” and her views deserve no public forum accordingly, which is what nativist conservatives believe and why she’s been a lightning rod for them.

At an El Paso political event, McCarthy flipped to supporting potential impeachment of DHS Secretary Alejandro Mayorkas because of rising migrant arrest rates on the US-Mexican border. Well before the midterms, Republicans made Mayorkas the focal point of their disagreements with the Biden Administration in how it was enforcing the Migrant Protection Protocols initiated by President Trump. As recently as last month, McCarthy rejected the idea of using impeachment for transparently political purposes. What’s changed is the much smaller Republican House majority than was expected at that time. Impeachment is one of the most important constitutional methods available to Congress to hold Executive branch officials accountable. It’s been used exactly once for a cabinet official, in 1876 when allegations that Secretary of War William Belknap was receiving kickbacks from a military trading post contractor at Fort Sill surfaced. Committee oversight is a perfectly good vehicle for Republicans’ objections to the Administration’s border enforcement policies. Hearings would flesh out the differences between the parties on immigration policy more broadly. Impeachment simply advances these policy differences on Republicans’ terms without having to explain their positions, which is contrary to its constitutional function and why it hasn’t been done before.


It’s an interesting contrast between the parties in how they fill leadership positions. Republicans have fought it out in conference through elections in tests of clout. When Democrats have more bodies than positions, they simply create new ones to avoid conflict.

In exchange for backing down from a challenge to Rep. Pete Aguilar for the number three House position, Rep. Joe Neguse reportedly will become the new House Democratic Policy and Communications Committee (DPCC) chair, a kind of “chair of chairs” over the current four-person leadership panel.

As for committees, Rep. Bill Foster has proposed a reasonable term limit compromise. He has submitted an amendment to caucus rules that requires the caucus to approve members staying on as committee chairs after a sixth year. This is according to news reports, as we have not seen proposed Democratic Caucus amendments, although we have seen the Republican ones.

The proposals must be approved in the caucus rules vote this week. We have suggestions for updating the Democratic Caucus rules on the First Branch Forecast website. If the rank-and-file are wise, they would push for the transparency and accountability mechanisms our recommendations contain.

On the Senate side, Senate Majority Leader Chuck Schumer has proposed eliminating the position of assistant leader once Sen. Patty Murray becomes Senate President Pro Tempore. Instead, he has proposed elevating the role of Senate DPPC chair to the number three spot and chair of the Democratic Steering and Outreach Committee to number four. Sens. Debbie Stabenow and Amy Klobuchar currently hold these roles.

Sen. Sheldon Whitehouse, meanwhile, is angling to open up more committee chairs by proposing a new caucus rule to forbid the whip, DPPC chair, and steering chair from holding committee chairs. The proposal would bounce Sen. Dick Durbin from the Judiciary chair, possibly making it available to Whitehouse.

It would be nice if the Senate Democrats joined the other three party committees and published their caucus rules.


As we mentioned above, the House Rules Committee has invited member proposals on rules changes for the next Congress. Such opportunities for member feedback have been useful in the recent past.

We’re thinking specifically about the member hearing day the House Modernization Committee held in March, 2019. Leaders of both parties and 32 members in all submitted testimony, helping the committee set a productive agenda for the next several years. Many of the proposals have become recommendations. We hope the Rules Committee hearing garners similar participation as is even more constructive.

ICYMI, we have recommended which rules from the last two Congresses the 118th Congress should retain to sustain institutional performance.


As we mentioned last week, we’re starting to track the congressional transition over to Mastodon. By our count, 11 members of Congress and one Committee (House Budget) have accounts. We’ve confirmed 7 of the 11 personal accounts as being what they say they are. (That’s another 300% growth over the previous week).

If you or your office are interested in making the transition, I’ve prepared this guide.


The Supreme Court finally allowed the House Ways and Means Committee to receive former President Donald Trump’s from the Treasury Department. The committee requested the returns three and a half years ago, but legal challenges have slowed progress. Now, the committee has the lame duck session to receive and process the findings (assuming there are no more delaying tactics.)

How the committee makes the returns public remains to be seen. Some of President Nixon’s tax returns became part of a 1973 report from the Joint Committee of Taxation once the IRS handed them over. Nixon owed about $500,000 to the government. The Ways and Means Committee could release similar information through a report. Another option would be to do a Gravel: read it into the Congressional Record, as Sen. Mike Gravel did with the Pentagon Papers.

What is clear is that Congress needs a faster mechanism to vindicate its right to information held by the Executive branch. The House could have flipped control twice in the period of time that has elapsed, which vitiates the power to request information.


The “Blockchain Eight” tried to stop the SEC’s Inquiry into FTX, according to the American Prospect. Who were the evenly divided octet? “Reps. Emmer [R-MN], [Byron] Donalds [R-FL], [Jake] Auchincloss [D-MA], Warren Davidson (R-OH), Ted Budd (R-NC), Darren Soto (D-FL), Josh Gottheimer (D-NJ), and Ritchie Torres (D-NY).” (This list includes the incoming Republican Whip and the co-chair of the problem solvers caucus, who also is an honorary co-chair of Third Way.)

Unionization. Staff in Reps. Mark Pocan, Mark Takano, and Rashida Talib’s offices have filed petitions to form unions. Demand Progress Education Fund is tracking unionization progress here.

Curious about the history of Senate appropriations? In time for the holidays, GPO has released a history of the committee since the beginning of Reconstruction. Buy it here.

Hoyer to become a cardinal? The rumor is he’s thinking about FSGG approps.

The House Office of the Whistleblower Ombuds has recently published a Sample Whistleblower Confidentiality Policy to help House offices ensure they have in place sufficient protections for sensitive whistleblower information. There is an accompanying training course.

It’s time to extend a reporter’s privilege to the press at the federal level. Seth Stern explains why.

How do parliaments around the world access academic research? Our friends at the International Parliament Engagement Network have generated a map at the request of the UK’s Parliamentary Office of Science and Technology.

The secretive Office of the House Inspector General was served with a subpoena.

Retiring Rep. Carolyn Maloney is the focus of a unanimous referral sent by the Office of Congressional Ethics to the House Ethics Committee back in June that recommended a further review of allegations that she “solicited or accepted impermissible gifts associated with her attendance at the Met Gala in violations of ethics rules and federal law.” The Ethics Committee has only now released the referral, as required by a law enacted because Ethics was notorious for hushing up and indefinitely delaying investigations, as that committee extends its review of the matter. That review likely will never culminate in any determination as to whether there was any wrongdoing because Rep. Maloney will leave office at the end of this Congress and the Ethics Committee will no longer assert jurisdiction at that point. It would be far preferable for Ethics to make a determination, either to clear her name or detail any violations.

Rep. Steven Horsford has announced he will run for chair of the Congressional Black Caucus. He is its current first vice chair.

Retirement. OMB has proposed a rule change to align members of Congress and congressional staff’s contributions and retirement dates with other federal workers. The move updates the rule to be consistent with the decade-old Budget Act.


The White House Office of Science and Technology and Policy is inviting the public to participate in a discussion on “Increasing the Accessibility and Utility of Government Data: Data Transparency Session” on November 29th. RSVP here and learn more here.

The next FOIA Advisory Committee meeting will be December 1 from 10 AM to 12:30 PMRegister here for the virtual event, or watch live on NARA’s YouTube channel.

The Advisory Committee on the Records of Congress announced its bi-annual meeting is set for December 5th, and published information on how to RSVP. We encouraged them to create a virtual component, but currently you must attend in person.

Casework. The POPVOX Foundation hosts a webinar on the future of congressional casework December 9 at 1PM ETRegister here.

Need a new professional headshot? The House Office of Diversity and Inclusion is hosting a photo session for Hill staff as part of its new LinkedIn Recruiter pilot program from 10 AM to 2 PM on December 9RSVP here

The next Congressional Data Task Force meeting will be December 13 from 2 -4 PM online. No registration is available yet.

The current appropriations Continuing Resolution will expire on December 16.

Pictured: House Rules Committee Chair Jim McGovern and Ranking Member Tom Cole shake hands at the conclusion of a hearing on seating a Cherokee Nation Delegate.

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