THE TOP LINE
Tick Tock: On Friday (Jan.1), the Senate overrode the NDAA veto (even as Sen. McConnell killed the boost to COVID relief), and today the House and Senate convene for the 117th Congress. The House is expected to adopt its rules on Monday; the Georgia elections, which decide control of the Senate, are on Tuesday, as are the House’s consideration of several good government bills on suspension (including the Congressional Budget Justification Transparency Act); the House and Senate (in joint session) will count the electoral college vote on Wednesday.
So what exactly is a continuing body? The Senate considers itself a continuity body and the House does not. What this means, in part, is that the House must re-establish its rules and committees at the start of each Congress, but the Senate doesn’t. And yet, the House somehow has common-law rules that guide some of its day-one procedures and began operating today, but some Senate committees cannot operate because they are missing their chairs and have yet to reach an operating agreement (pending the results of upcoming elections). Weird.
THE RULES RULE
New rules. The House of Representatives is expected to adopt a new rules package on Monday (with the Speaker election on Sunday). Here is the text of H. Res 5, a section-by-section summary, a press release that highlights some of the major changes, and a decent overview of activities of the House Rules committee. We have put together a guide to rules reform proposals over the last decade, and, as you know by now, we have advocated for a number of improvements and closely followed the Member-day hearing. Roll Call’s Lindsey McPherson has a good high level summary of the contents.
Well, what do we think? Within the constraints imposed by the closely-divided House of Representatives and the strong-Speaker organizing model, the House Rules Committee went as far as could reasonably be expected to continue good practices from prior Congresses (including those started by Republicans) and to adopt smart new policies. It is abundantly clear the Rules Committee made a concerted effort to listen to all the factions in the House and to recommend as many reforms and improvements as possible.
Highlights of the House Rules package:
• Strengthening current institutions: The rules package makes permanent the Office of Diversity and Inclusion and the Office of the Whistleblower Ombuds, continues the Office of Congressional Ethics, continues the practice of Committee Member Day hearings, re-adopts a better administrative model for Congressional Member Organizations, continues proxy voting and allows for remote voting, and provided another term for the Select Committee on the Modernization of Congress.
• Technology: All amendments offered in committees must be online within 48 hours (and adopted amendments w/in 24 hours); committee reports can be filed electronically; provides support to the ongoing comparative print project (that would show how a bill would amend a law); restates the priority of publishing legislative info in machine-readable formats; and House codification of the new Communication Standards.
• Messaging: Several changes were made to House rules that limit messaging efforts. This includes limiting Motions to Recommit so they cannot contain instruction. These motions in theory could be constructive but lately have been primarily used for messaging and dilatory purposes. It also stops the offering of amendments to bill titles. Republican leadership can be expected to blast the limiting of the MTR as further centralizing power in leadership, but there have always been ways around the MTR, and centralization of power has been a key goal for leaders in both parties for several decades — especially an effort largely led by Republicans when they cut Congressional staff by 20% in the 1990s and destroyed Legislative Member Organizations. We’d like to see the MTR eventually come back alongside the previously eliminated motion to vacate the chair, but that would require a restructuring of the House that’s beyond what’s currently possible.
• Ethics: Former Members who have certain felonies are now barred from the House floor; committee truth-in-testimony documents must include additional information about conflicts-of-interest; the Code of Official conduct is updated in several places: to limit a Member serving as an officer or director of a public company, to prohibit the dissemination of distorted media, to protect whistleblowers against retaliation and unwanted disclosure of their identity. The rules package also makes sure that NDAs cannot prohibit staff from talking to the Ethics Committee, OCWR, or OCE; requires Members to pay for discrimination settlements; and continues mandatory anti-harrassment training.
• Separation of powers and oversight: Allows staff to take depositions; prevents motions to table War Powers resolutions; and reaffirms the right of the House to subpoena anyone, including the president.
• Diversity: Brings back the Office of Diversity and Inclusion and puts it into the rules; requires a report from ODI on how to track diversity of witnesses panels by July 1 and House Admin & Rules to implement recommendations by July 31; replaces all gendered language in the rules to make it more welcoming and inclusive; and committee oversight plans must now address issues of inequities.
• Procedural: Bills to be considered on the floor must be first considered by a committee; requires the Clerk to recommend by February 1 a method for House members to co-sponsor Senate bills and the Rules Committee to promulgate regulations to put such a policy into effect.
• Select committees: Creates the Select Committee on Economic Disparity and Fairness in Growth as well as bringing back the Select Committee on the Modernization of Congress, the Select Committee on the Climate Crisis, and the Select Subcommittee on the Coronavirus Crisis.
• PAYGO: The rules package allows the Budget Committee to adjust budget estimates to exempt the costs arising from addressing COVID-19 or climate change. With statutory PAYGO in effect, we think that rules-based PAYGO is unnecessary, duplicative, and unduly restrictive, so this is a step in the right direction.
What’s missing? For low hanging-fruit, here’s our top 5 of what else we would have liked to see: (1) The restoration of Legislative Member Organizations (eCMOs) with a new funding model; (2) Restoring the prior mechanism by which OCE Board Members are chosen; (3) Requiring the Clerk’s office, which maintains a list of all reports due to Congress, to include a list of reports due to committees and subcommittees; (4) providing every Member of Congress with the option to have a personal office staffer with TS/SCI clearance; (5) to address staff salary caps.
FYI, one thing to watch for on day 1 are announcements by the Speaker as to her policies with respect to the legislative process. In the 116th Congress, this addressed privileges of the floor, policies with respect to introduction of bills and resolution, unanimous-consent requests, recognition for one-minute speeches, recognition for special-order speeches, decorum in debate, conduct of votes by electronic device, use of handouts on the floor, use of electronic equipment on the floor, and use of the chamber. These policies are usually adopted by unanimous consent, although they can be challenged.
A final note. We believe the House should adopt significant additional reforms to undo much of the damage that was cemented into place by Speaker Gingrich in the 1990s, but that kind of change — which addresses the centralization of power — is not possible under the current political arrangement. It would require either an alternation of who is Speaker or a rebellion by the members. We also hasten to add that reform does not just come via the Rules Committee, but also is being driven by House Legislative Branch Appropriations, the House Administration Committee, the Select Committee on the Modernization of Congress — and could also arise from reform of the party rules.
THIS IS THE WEEK THAT WAS
The NDAA, $2,000, and Sen. McConnell. It’d be fun to talk about the Members that flipped on the NDAA to stay in line with the soon-to-be ex-President’s tweets, but what really interests us is the negative legislative power concentrated in one person, Sen. McConnell. The American Prospect had the best take on the political dynamics at play, and Roll Call’s Niels Lesniewski accurately implied McConnell’s endgame was to run out the clock on an increase in relief checks to $2,000.
No help. Senator McConnell has complained that the $2,000 in relief money for most Americans was insufficiently targeted and would increase the deficit. This is a pretty bold statement. For example, Sen. McConnell successfully pushed for the Tax Cuts and Jobs Act of 2017, which gave the top 1% of income earners an average of a $34,000 tax cut versus $50 for a person in the bottom 10% tax bracket, cut corporate taxes from 35% to 20%, and (per a CBO estimate) would increase the deficit by $1.8T over ten years. I’m not an expert on all these numbers, but clearly Sen. McConnell’s concern about targeting and deficits is not something anyone should take at face value. Only the split in the Republican party caused by Pres. Trump’s tweets made the increase in relief possible, and it will be interesting to see whether it portends a political realignment or merely opportunism.
What to expect when you’re expecting? The Washington Post has a good op-ed by Paul Waldman in which he writes about Congress: “if you can’t stand Machiavellian maneuvering, meaningless grandstanding and a general lack of results, the next few years might drive you nuts.”
CONTINUITY OF CONGRESS
Luke Letlow, representative-elect from Louisiana, died on Tuesday from complications from COVID-19. (Our condolences.) The 41-year-old, survived by his wife and two very small children, was former Rep. Ralph Abraham’s chief of staff. The AP noted other Louisiana elected officials who had contracted the virus, including “U.S. Sen. Bill Cassidy, Lt. Gov. Billy Nungesser, Attorney General Jeff Landry, Treasurer John Schroder, U.S. Rep. Mike Johnson and U.S. Rep. Cedric Richmond.” Per the NY Times, “other elected officials to die from Covid-19 include several state legislators: a Republican state senator from Minnesota, New Hampshire’s new Republican speaker of the House of Representatives, and in North Dakota, David Dean Andahl, a Republican known as Dakota Dave, who was elected posthumously to the State House of Representatives after dying from the virus.”
COVID symptoms can persist in some people for weeks or months. Its presence in the U.S. Congress has undermined the legislative process, forced delays in votes (including stopping a confirmation), and at one point was one person away from flipping the functional majority in the Senate. Its presence has changed the way the Legislative branch functions. An unknown number of congressional staff and press have become ill and the more virulent version of the illness — combined with delays in vaccinations and some member offices that refuse to admit its danger — means there remains significant concerns about Congress’s ability to continue its operations. The House has modified its rules to allow proxy voting, which is a partial fix, but the Senate has not.
The member gym has reopened. I can only guess that’s because some members may choose to live in their offices. If so, the former should be closed and the latter banned (so long as a housing subsidy is provided for members who need it.)
For a brief moment, we had a House Republican acting as a proxy for another Republican. (It didn’t last.)
There can only be two. Per guidance from the Attending Physician, two staffers per personal office and four per committee (or four per side? I can’t tell) are eligible for the COVID-19 vaccine. To be eligible, the staffer must be (1) critical; (2) have a job deemed essential for continuity of operations; and (3) require physical presence. It’s unclear what rules have been put in place for non-political staff, such as the Clerk’s office or the Capitol Police. No word as to vaccines for the press, who are critical for our democracy. We also don’t know how Congress is tracking who has (and has not) been vaccinated and whether they’ve received the second shot.
And now, a word from Montana. Legislative staff there will work remotely for the first two weeks of that state’s session, which is being described as a “boycott,” in light of an unwillingness of the legislature to take appropriate COVID precautions, such as requiring the wearing of masks or use of social distancing, The News Station reported.
Delay. At least a dozen senators will join many House Republicans in objecting to the counting of electoral college results on January 6th, which will slow down the process considerably, especially where COVID has made in-person proceedings difficult. There’s a rules hook, as POLITICO points out, where the House could change its procedures to make these delays less painful.
Purity test. I love when people complain that one issue or another shouldn’t be a purity test, and now I’m going to be one of those people I hate. It seems clear that many congressional Republicans will use objecting to the election results as a fundraising opportunity and a way to outflank possible challengers in 2022 — even though they know that Pres.-elect Biden has won. It also allows them to lay claim to being a pure (Trump) Republican. The incentives are bad here: as the framers predicted, short-term political considerations trump the long view on keeping our democracy.
On reflection. When I used to give tours of the U.S. Capitol, I loved the painting in the rotunda of General Washington resigning his commission. You know the one. The Trumbull painting depicts the Maryland Senate chamber, in 1783, when George Washington appeared before the Continental Congress and delivered this brief speech where he said: “I have now the honor of offering my sincere Congratulations to Congress and of presenting myself before them to surrender into their hands the trust committed to me, and to claim the indulgence of retiring from the Service of my Country.” King George III, when he heard that Washington would voluntarily give up power, reportedly said “If [Washington] does that, he will be the greatest man in the world.” What a contrast is struck by Pres. Trump, who clings to power that no longer is entrusted to him, and those who would prop him up.
DAY ONE. Majority Leader Hoyer posted the guidance from the Sergeant at Arms on the opening session here.
New CAO. Speaker Pelosi announced (although the House must confirm) Catherine Szpindor as the new House Chief Administrative Officer. (Congratulations!) She had previously served as the CAO CIO and is the first woman to serve as CAO. If you want to know what’s on her plate, read the (belated) CAO report on IT Modernization (that dodged a fair number of issues but reflected her views, at least in part) and a separate (not publicly available) memo from her “on her recommendations for the next CIO, HIR, and technology modernization in the House generally.”
GovTrack, the brand-name of the premiere free federal legislative information tracking website, has acquired Voterama, “a subscription service for local newspapers, digital publications, and other public interest organizations to disseminate trusted information about Congressional activity to their subscribers and members.” GovTrack’s Dr. Josh Tauberer is a long-time advocate for free and open legislative data and is an expert on Congress.
Iowa-2. Mariannette Miller-Meeks will be sworn in as representative from Iowa as her Democratic opponent continues to contest the election, Roll Call reported.
It’s never too early. Are you thinking about what bills your boss might want to introduce? Here’s a roundup of many of the good ideas relating to transparency and accountable government from last Congress.
Rep. Jamaal Bowman, in an interview with the Cut, discussed how hard it will be as a non-rich person to serve in Congress. “Now I’m trying to figure out how I’m going to continue to pay my mortgage in Yonkers while also renting an apartment in D.C., while paying student loans and all the other bills we have to pay. I’m going to meet with a financial consultant who is going to sort of walk me through that. But it’s a real problem. It’s stressful for me and my family.” Pay for Members of Congress has been artificially frozen since 2009, decreasing by 17% since their last pay adjustment, according to CRS. As we know from experience, proper pay for Members and staff serves a major anti-corruption purpose in addition to helping to broaden the range of people who can serve. The pay freeze also has suppressed pay for staff, which is artificially (and unfortunately) pegged to Member pay. (Some Members, like the Speaker of the House and Senate Majority Leader, earn more, which suggests that, as an interim measure, maybe the top number should be pegged to that.)
Good news, for once: Per the Hill’s Harper Neidig: the D.C. Circuit Court of Appeal held 2-1 “that congressional oversight committee members in the minority can sue to enforce requests for government information.” (Not only is this good news, but kudos to Neidig for linking to the opinion.) The case arises out of a request by Democratic minority members of the House Oversight Committee for information from GSA under 5 USC 2954. (It states that an Executive branch agency, upon a request of any seven members from CORE or five members of HSGAC, must submit that info so long as it is within the committee’s jurisdiction.) I wonder whether there are similar statutory remedies for other committees, and if not, why not.
The very model of a modern general: General Austin specifically, and generals generally, are the subject on a thoughtful essay by Soren Dayton and Christine Kwon that argues that Congress should not grant a waiver to him to serve as SecDef, but if it must, Congress should enact a series of reforms to ensure civilian control of the military.
OMB is undermining the Biden transition, which may delay this upcoming year’s budget process, Roll Call reported.
Plum Book. ICYMI, the Plum Book, which identifies presidentially-appointed and other Executive branch positions, was published by GPO on 12/30. There had been some consternation regarding its delayed release, and there are two measures pending in both chambers to move it online and have it continuously published. (They’ll obviously have to be reintroduced).
The House Ethics Committee announced the (1) release of a mobile-friendly website, (2) updated travel and gifts sections to the House Ethics Manual, (3) revised Travel Regulations, (4) and revised Foreign Gifts and Decorations Act Regulations. We have not yet had the ability to read all the documents.
What does Executive branch transparency look like? TNR’s Joshua Eaton outlines the day one memo that Pres.-elect Biden could issue and set the scene for FOIA reform, proactive disclosure, and a lot more.
DAWSON’S COURT. The US Tax Court has successfully deployed a web-based electronic filing and case management system, known as Dawson, which is available here. The service was built by 18F and the code is up on GitHub. No word about whether Pacey, I mean PACER, might get on the bandwagon and modernize how all the other federal courts manage their electronic files.
Sealing cases? The Free Law Project, which publishes court records online, announced it won a legal battle to overturn a court order that had directed it to block public access to court records.
The U.S. Supreme Court released the federal courts’ year-end report, which discussed in vague generalities how the courts have made use of technology and other mechanisms to continue operations during the pandemic.
ODDS & ENDS
It’s been a long time: The longest serving state legislator, Wisconsin state Sen. Fred Risser, is retiring after 64 years of service, the Hill reported.
Chaplain. Speaker Pelosi has appointed Rear Admiral Margaret Grun Kibben as Chaplain for the House of Representatives — the first woman to be appointed to that job. Up until 2000, every House chaplain has been a Protestant — a Catholic was appointed in that year — and there has never been a permanent chaplain who is not a Christian. The office currently has a $510,000 budget, and according to CRS, until the mid-century chaplains were not considered officers of Congress. In addition, there was no House chaplain in the latter 1850s, “when questions were raised by citizens who objected to the employment of chaplains in Congress and the military as a breach of the separation of church and state;” volunteers were used instead. It is unclear to me whether consideration was given to having a system where Members who use the service pay for it instead of taxpayers. The House maintains a repository of prayers going back to 2000 and there’s a new book by C-SPAN’s Howard Mortman on prayers by guest rabbis. Wikipedia has a good rundown of the history of the Senate chaplain, which mirrors the House’s, including objections to a chaplain raised by none other than James Madison.
Uh, no thanks. A home belonging to Speaker Pelosi and the Louisville home of Majority Leader McConnell were vandalized over the last few days. Speaker Pelosi’s San Francisco home has previously been vandalized; Majority Leader McConnell’s home has been the site of protests. The graffiti suggests that it was related to politics, although there’s no solid information as to motives.
The Congressional Management Foundation is holding the following new member orientations:
• 1/15/21, 12:00 pm – “Setting Up a Congressional Office”
• 1/29/21, 12:00 pm – “Hiring an Effective and Diverse Staff”
• 2/12/21, 12:00 pm – “Setting Up a Scheduling Operation”
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