THE TOP LINE
Ruth Bader Ginsburg has died. 93 minutes after the Supreme Court announced her death, Majority Leader McConnell tweeted that President Trump’s nominee — whomever it may be — will get a vote on the Senate floor. Within 24 hours, supporters at a Pres. Trump rally were shouting “fill the seat.” This is indisputably a flip-flop for Sen. McConnell and the GOP compared to their position on Merrick Garland; we note that that voting has already begun in the presidential election and the timing of the announcement is ghoulish.
• I don’t know whether ex nihilo the presumption should be in favor of presidents being unable to fill Supreme Court nominations prior to a presidential election, but Sen. McConnell created that rule, applied it, and will now violate it. This decision blows up what’s left of Senate norms—rules, precedents, and personal relationships—to gain a multi-generational advantage on the Supreme Court for the purpose of changing the Court’s decisions on settled (but politically contentious) issues. The composition of the Senate locks-in these anti-democratic outcomes.
• At the same time, Sen. McConnell is moving the Senate towards a pseudo-majoritarian institution where individual senators have little real say—not that the Senate has been at the forefront of legislating under his leadership, as he has acted largely as an appendage and protector of the Trump administration and an antagonist of the prior Obama administration. (By pseudo-majoritarian, I mean that 51 senators constitute a ruling block while those same senators represent a minority of the American population.) Sen. McConnell’s actions have weakened the legitimacy of the courts and Congress and are collapsing politics into a Manichean fight concerned with helping your friends and hurting your enemies.
• So far, the only semblance of a practical response I have seen for Senate Democrats was proposed by David Sirota, who describes tactics Dems could use to grind the Senate to a halt to block a Trump appointment. Unlike Sen. McConnell, who “shut down the lower court confirmation process” during the Obama administration, Senate Democrats under Pres. Trump have let nominations go through time after time. Norms are real only when everybody adheres to them. What will the Democratic response look like? Will they stop all activity except for essential legislation? According to Roll Call on Friday, their plan is talk, not action. But, last night Sen. Schumer stood alongside Rep. Ocasio-Cortez as she called on Democrats to “use every single available procedural tool available to us” to buy time in the Senate to stop the nomination.
Meanwhile, will the government shut down? 10 more days until the government shuts down or puts a continuing resolution in place. According to CRS, 117 CRs were enacted from FY1998 to FY2019, with an average duration of 39 days; there were only 3 year-long CRs (in FY2007, FY2011, and FY2013). The House Rules Cmte meets today to queue up a vote on a short-term spending bill. According to BGOV, Ds and Rs have all-but-agreed on a December 11th timeline. That seems crazy to us: what incentive would a departing Trump administration have to keep the government open should the Dems take political control? We realize Dems have moved the deadline forward in exchange for a policy win, but this is playing with fire.
Coronavirus relief is a key issue in the waning days of Congress as the number of dead in the U.S. has passed 200,000 and Pres. Trump admitted to lying to the American people about the danger of the illness. A little while back, Senate Republicans put out a political base-covering proposal that quickly failed in that chamber; members of the House Problem Solvers Caucus recently put out their own $1.5B plan. Most committee chairs rejected the latter’s proposal outright, saying “When it comes to bolstering the public health system, supporting state and local governments, and assisting struggling families, the Problem Solvers’ proposal leaves too many needs unmet…. [T]heir proposal also abandons our responsibility to protect the life of our democracy.” It is bad politics to undercut the negotiating position of the House, so of course Pres. Trump rushed to praise the plan without endorsing it. Spkr. Pelosi is not a fan of the Problem Solvers plan, but it did push her to say the House will remain in session until a COVID deal is reached. As the House usually holds pro forma meetings, I’m not sure what that means.
The Senate must modernize; to prepare for the next session of Congress, we released a report with over 80 recommendations to make the Senate more efficient, effective, transparent, and inclusive. They cover six categories, including strengthening floor and committee deliberations, modernizing operations and transparency, improving staff onboarding and retention, increasing ethical practices, improving technology and cybersecurity, and managing Congress as an institution. This parallels our recent recommendations to update the House’s rules.
Congress’s unfinished business, at least from our perspective, includes at least 30 good government bills we think should cross the finish line. So far 13,107 bills have been introduced this Congress and 158 have been enacted into law. We helpfully broke our list down by bill status.
The Library of Congress held its legislative information access virtual forum on September 10th. If you weren’t able to attend, we have a comprehensive recap of the presentations, panels, and Q&A. We were impressed by the panelists willingness to engage and the thoughtfulness of many of their answers. As you might expect, we had our list of issues we hope will be addressed. One take-away for bill-drafters out there: in some circumstances the Library will not act without the direction of Congress, including improving public access to CRS reports and providing an API for legislative data.
OFF TO THE RACES
Internal races for party leadership are in full swing. Dems are discussing restructuring their “chair of chairs” position in the DPCC to return to co-chairs. Heather Cagle asks whether the Speaker’s move to make the “leadership table bigger” is a means of consolidating her power. Who’s who in the Dem Steering and Policy Committee? This is our best guess; Dem leadership won’t release the list.
In the Dem Caucus, Rep. Katherine Clark (D-Mass) rolled out endorsements in her bid for Assistant Speaker, and Rep. Robin Kelly (D-Ill) is running for Vice Chair. Options for advancement are limited within the GOP, with Rep. Mike Johnson (R-La) running for Vice Chair.
House Appropriations Chair is also in play with Rep. Debbie Wasserman Schultz receiving endorsements from Emanuel Cleaver and Alcee L. Hastings. In her bid for the same post, Rep. Rosa DeLauro released her plan for Appropriations, which seems to improve responsiveness to the caucus as a whole. Marcy Kaptur is running as well.
If you have a BGOV account, they had an excellent run-down of who is in play for committee leadership spots in the next Congress. (Send us your tips and articles!)
BUILDING A BETTER CONGRESS
Legistech for Democracy. Last Tuesday, Brazilian org Bussola Tech hosted Legistech for Democracy, a virtual event with over 20 parliaments from around the world and across the political spectrum who presented on how they are using technology to keep legislative branches functioning during COVID. Deputy Clerk Robert Reeves presented on behalf of the House of Representatives.
Digital Days. The Democratic Digital Staff Association hosted the fourth annual “Digital Day on the Hill“ where Democratic staff learned best practices for capturing their Member’s voice. The two-day event also featured networking events and showcases highlighting Member offices’ exemplary digital communication techniques.
Rep. Rodney Davis (R-Ill), the ranking member of the Committee on House Administration, sent a letter to Chair Lofgren detailing “the institution’s vulnerabilities in facing a pandemic” with a series of recommendations on House operations that includes “a review of the House operations throughout 2020, an assessment of where House operations currently stand, and an analysis of what is working well, what needs to be improved, and benchmarks of success.” It’s smart and worth a read.
The payroll tax deferral in the President’s executive order will not happen in the House or the Senate, largely due to technical issues with implementation and the difficulty of high staff turnover following an election. According to Politico, some Republican members “have said they would like to hold back payroll taxes for their staffers.”
81-year old House Majority Leader Hoyer is “the unlikely evangelist for a high-tech Congress that holds virtual committee hearings,” according to the WaPo. We don’t think him “unlikely.” For years we’ve seen him speak at technology-related events, including the Bulk Data Task Force, the Legislative Data and Transparency Conference, and the Congressional Hackathon; his office has been a strong advocate for tech modernization; he was right about the dangers of COVID to Congress; and he has routinely partnered with Republicans on modernization.
The End of Term Web Archive captures and preserves government websites at the end of a presidential term (and also the end of each Congressional term). The Internet Archive will crawl all .gov websites in September and in early 2021. Learn more or suggest a site for archiving here.
A common-sense transparency bill that will make plain-language federal spending documents easily accessible passed the House 402-1 last week. These documents, known as Congressional Budget Justifications, are agency road maps for how they plan to spend their money that get submitted to Congressional appropriators annually; among the valuable information inside are lists of unimplemented IG and GAO recommendations.
The PLUM Act (HR 7107) was favorably reported out of House Oversight. The bill requires a digital upgrade (published monthly) to the PLUM Book, the list of Executive Branch political appointees that is currently published only once every four years. The bill has strong bipartisan support from good government groups (including us), and a companion measure in the Senate (S 3896). Read our writeup.
Free access to court documents took a significant step forward in the House as the Judiciary Cmte favorably reported “legislation to overhaul PACER, the federal courts’ system for accessing public documents.” The Open Courts Act of 2020, H.R. 8235, would address the current practice of charging 10 cents per “page” for electronic documents and search results. Chair Nadler noted “It is indefensible that the public must pay fees and unjustifiably high fees at that, to know what is happening in their own courts.” See bipartisan member statements of support here. More from Ars Technica.
The Supreme Court extended hearing cases via teleconference into the October session, including providing a live audio feed to the public. Kudos to the Reporters Committee for Freedom of the Press for successfully advocating for this practice to continue. Nearly 2 million people have listened to the recorded May arguments online. (We also note Cornell LII’s amazing resource of audio for all arguments back to the 1950s).
The fight for access to OLC opinions marches on. The D.C. District Court held, in response to a motion to dismiss, “that not all — but also not none — of OLC’s written opinions must be affirmatively disclosed” under FOIA’s reading room provision. Specifically, opinions resolving inter-agency disputes may be required to be proactively disclosed. This doesn’t go as far as we think it should, but it knocks down OLC’s argument arising from its claims about “the potential impact of any such mandated disclosure on the operations of the executive branch.”
Revolving door. Rep. Raul Grijalva sent a Dear Colleague urging Senate leaders to avoid confirming any nominee who currently or has been a lobbyist for any corporate client or officer for a private corporation. This is a shot across the bow and a stronger version of Obama’s ethics ban. (Disclosure: Demand Progress endorsed the letter.)
OVERSIGHT + TECHNOLOGY
The Library of Congress failed to follow Federal Acquisition Regulations and botched its technology procurement. GAO sided with Oracle and Mythics, who had complained the terms of the RFP were unduly restrictive. FNN has more.
The DNI reversed course and will now brief the House and Senate Intel Cmtes on election security threats, but not the full House and Senate. This is not sufficient. The Committees are creations of their respective chambers, and the DNI, which was created by Congress in 2004, must brief the chambers when requested to do so.
The Constitution Annotated, CRS’s legal treatise that explains how Supreme Court holdings interpret the U.S. Constitution, is available online, and received over a million visits over the last year. We asked for it to be published online for 11 years straight, so this year we are celebrating its success.
Progressives already are raising concerns about Sen. Feinstein’s plans to handle judicial nominations next Congress, should Dems retake control of the Senate. The likely Judiciary Committee chair won’t say “whether she would give Republicans power to block appellate appointees through a Senate practice known as withholding blue slips.” As we said at the top, it’s not a “norm” when it applies only to one party.
ODDS & ENDS
Sen. Joni Ernst is the subject of a lengthy New Republic profile, written by Kerry Howley, that delves deeply into the question of “what does it mean to be a Republican woman running for office in 2020?” She notes only a handful of Republican women are in federal office and that they are subject to appalling double standards. Howley’s article and the TNR’s now-deleted tweet promoting it have come under criticism, largely led by the alt-right but joined by some others, that it is sexist.
Capitol Police disclosed one arrest last week.
COVID pushed two GOP senators (Ron Johnson and Shelley Moore Capito) into quarantine after possible exposure.
Remember the NDAA? It’s unlikely to pass before the end of the fiscal year, and the “House and Senate versions have some serious differences,” reports the Federal News Network.
Former staffer Melissa Dargen shares financial tips for staffers, including info on the student loan repayment program.
Congressional staff mentors needed. College to Congress, in consultation with Guided Compass, is looking to match students with virtual mentors and congressional internship opportunities. If you are a congressional staffer at any level and are interested, you can find more details to sign up here.
The Progressive Talent Pipeline is accepting applications through September 30th for the 2020 cohort. The program identifies, endorses, trains, and recommends a diverse slate of committed progressives for staff roles in Congress and the executive branch. We encourage you to share this announcement with your network.
Maybe former Rep. John Dingell is right: abolish the senate?
I’m with Sens. Rubio & Scott who have proposed getting rid of daylight savings. The pair have proposed a pause until 2021 — which gives more daylight in the afternoon — although it’s not clear what’s next for S. 4851.
• The House Rules Committee is scheduled to meet at 1 to consider the CR among other measures.
• The House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet is holding a hearing on Maintaining Judicial Independence and the Rule of Law: Examining the Causes and Consequences of Court Capture at 2.
• The 2-day Law via the Internet Conference kicks off today; this year’s theme is “Free Access to Law in a Changing Landscape.”
• HSGAC is holding a nomination hearing for controversial DHS Secretary nominee Chad Wolf at 10.
• The Law via the Internet Conference continues today. Learn more here.
• The Advisory Committee on the Records of Congress’s semi-annual meeting is happening 1-3. RSVP here.
Down the Line
• The Partnership for Public Service’s Center for Presidential Transition will host an event on presidential transitions on October 2.
• The Federal Depository Library is holding its annual conference October 20th – 23rd.
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