First Branch Forecast

The Plot Thickens: First Branch Forecast 7/11/22


This week. There are just a few weeks left until August recess — three in the House, four in the Senate — which means everything’s accelerating.

• They’re back. The Senate is back on Monday and the House is back on Tuesday. It’s NDAA week in the House (amendments are here); Senate Dems appear to be lining up another stab at reconciliation. On suspension in the House is the Improving Government for America’s Taxpayers Act, which strengthens how GAO reports to Congress on open priority recommendations. (Maybe the Senate should be thinking about hotlining the bill?)

• Looking at the committee calendar, we note a Thursday ModCom hearing on modernizing constituent services. Also, join our panel discussion on congressional unionization Wednesday, which anticipates the regs going into effect next Monday. (CPSA & DWS happy hour this Friday at 6 — coincidence?)

• Looking ahead, the House will vote on an approps package of six bills, i.e., HR 8294 containing transportation, agriculture, energy and water, financial services, environment, and military construction, the week of July 18th, according to BGOV ($). Submit your amendments to House Rules by this Wednesday at 10 AM. Presumably we will see a Senate approps markup or release of their bills in the next few weeks, and possibly a floor vote on the other 6 House approps bills — watch for triangulation on defense spending. Also watch out for a Joe Manchin-sized reconciliation package, which in theory could happen any day now.

Do you have a pet bill that must move in the next few weeks or risk dying at the end of this Congress? We’re keeping informal track of bills to strengthen Congress, promote government transparency, and bring balance to the force. Just hit reply — yes, those all go to me — with the bill name, number, and why there oughta be a law (or a resolution). We’ll feature (anonymously) some of those bills-on-the-bubble in the hopes it might spur a Senate hotline or House suspension.


The Biden “rule.” Pres. Biden endorsed creating an exception to the filibuster to codify Roe v. Wade on June 30, 2022. In January 2022, he endorsed creating an exception to the filibuster to pass voting rights laws. In December 2021, the Senate created a one-time boot-strapping exemption to the filibuster that allowed for a vote to raise the debt ceiling, an approach endorsed by Biden in October. In March 2021, Biden endorsed restoring the talking filibuster, which would place more of the burden on blocking legislation on the minority that wants to hold it up. And, of course, reconciliation is a path around the filibuster, and there are many other paths as well, as Brookings’ Molly Reynolds expounded in her book Exceptions to the Rule. The evolution of the filibuster from an anti-majoritarian tool to entrench slavery to one that entrenches a far right veto is covered well in Adam Jentleson’s book Kill Switch.

Pepperidge Farm remembers. Do you remember when Sen. McConnell held the Senate hostage at the beginning of the 117th Congress — preventing it organizing for several weeks even in the wake of the Trump insurrection — only relenting when Sens. Manchin and Sinema reaffirmed their opposition to ending the filibuster? (Honestly: he wouldn’t let the Senate organize for weeks.) This set the stage for all that followed… along with senate Democrats’ decision to both retain the Senate parliamentarian and defer to her opinion on the Senate rules. If you haven’t reread James Wallner’s article The Senate Parliamentarian Doesn’t Make The Rules, you should — the upshot: it is the Senate that decides its rules, not the parliamentarian, but only when they choose to act.

➼ Political malpractice. You don’t need a lesson in practical politics to evaluate the wisdom of calling for an abortion exception to the filibuster a mere four weeks before the August recess in an election year. It is worth remembering there already are a range of exemptions to the filibuster — Reynolds points to 161 provisions of statutory law “that prevent some future piece of legislation from being filibustered on the floor of the Senate.” All the arguments about the filibuster being about protecting debate is perverse when you acknowledge that there is no real debate in the Senate. The filibuster is about power and the (un)willingness to exercise it. And thus, here we are.

➼ Vote counting 101. Making this all even more surreal is the unfortunate circumstance of Sen. Leahy’s unfortunate (temporary) absence from the Senate due to a broken hip — we wish him well — which makes moving forward on most issues impossible. (Also, apparently Sen. Schumer has COVID and won’t be in this week. Surprise!) Without any proxy voting or remote procedure options, the absence of any senator can fundamentally change the balance of power to activate exemptions to the filibuster. This surely must be apparent to Biden when he made the call.


In the absence of a strong Congress, most legislative power has been effectively delegated to the federal bureaucracy at least since WWII. The Supreme Court, in its West Virginia v. Environmental Protection Agency decision, has shown that it will do so no longer (at least for issues the 9 politicians in robes decide they wish to undercut, such as protecting the environment.) Faithful readers know that we are all in on restoring Congress’s powers, but expecting Congress to step in regularly to pass and update finely-detailed regulations is not in the cards so long as any single senator can block the vast majority of legislation set to be considered in the Senate. (Yes, the Supreme Court knows this. That’s the point.) Congress lacks the tens of thousands of expert staff necessary to make this practical and the institutional framework to expeditiously implement it. Don’t forget that the Supreme Court itself hobbled Congress’s ability to be responsive and nimble in INS v. Chadha.

Don’t take my word for it. Brookings’ Philip Wallach writes that the ruling, based on the major question doctrine, is actually ok. He describes the majority’s opinion as holding that the legitimacy of statues weaken as time goes by — at least for “novel” uses — and the minority’s opinion as stating that statues retain their potency until Congress steps in to enact a course correction. IMO, with all the clever ways that people find to evade federal regulations that carry out a statutory purpose, and the incapacity of Congress to pass fixes to major laws because of the increasing grip of minority veto power, the clear effect is, well, to weaken Congress. And, you know, has the incidental consequence of undermining laws that address climate change, which is a prelude to disaster on a global scale.

What about in the alt-universe? R Street’s Nan Swift uses WV v. EPA to assert that Congress is in fact the place where these consequential decisions should be made. “It’s not the division of power or system of checks and balances that need to change, it’s Congress.” No argument from us.


The Power of Unions in Congress. Join us this Wednesday, July 13 at 11 AM for a panel discussion on the history and state of congressional unionization. This is a great opportunity to get informed about your rights as a staffer before the new OCWR rules finally allow House political (and some non-political) staff to unionize on July 18. RSVP here.

The Senate pay survey is up and running, POLITICO’s Huddle reports. Senate staff in committee and personal offices should’ve already received the Secretary of the Senate’s survey on pay and benefits. It’s great to see the Senate conducting a pay survey — it’s a sign of commitment to Senate staffers’ well being, and something Demand Progress has requested over the years. We have a compendium of all the staff pay/salary studies going back to the 1980s from the House and Senate, the vast majority of which are not otherwise publicly available. (If you want one we haven’t posted, let me know.)

Staff weigh in on congressional capacity. The “State of Congress,” a recent survey of 128 staff conducted by the Congressional Management Foundation and the Partnership for Public Service, asked for their top priorities for improving Congress. (KTM has a great gloss of the report in Politico’s “Huddle.”) The results?

• “Reclaiming Congress’ constitutionally-defined duties” was the most pressing priority for 74% of respondents

 Improving working conditions for staff, reforming the appropriations process, and ensuring continuity of congressional operations in emergencies” also ranked among the top priorities.

 Per the survey: it is important to note that the results presented are only truly representative of the survey respondents and readers should exercise caution when generalizing results.

FWIW: We’d start with this June 2022 Pew poll: 85% of Americans said that the U.S. political system either needs major changes (43%) or needs to be completely reformed (42%). Of the people who want significant political reform, 58% are not confident that the system can change. In our political system, elections matter less and less and Congress cannot put in place policies desired by the vast majority of Americans because of structural failings inside the Legislative branch that empower a perpetual minority veto. This isn’t a #bothsides problem. This isn’t a #polarization problem. This isn’t a #civility problem. It’s about Congress being able to move responsive legislation, which requires both structural changes and the capacity to make those policies happen.


Approps cycle advances ModCom recommendations (and many others, including some of our top priorities)Between the House Admin’s latest announcements (intern pay! wahoo!) and the House-passed FY2023 Approps bills, 76% of the ModCom’s 144 recommendations for the 117th Congress have now been fully implemented or are in-progress. Speaking of ModCom: see our summary of the committee’s recent hearing on congressional tech, which included a robust discussion of the big picture of congressional modernization. FNN ran a good write-up of the hearing, highlighting the need for a “centralized authority […] to modernize Congress.” And don’t forget this week’s hearing on constituent communications.

Earmarking in the House draft FY2023 Approps bills now totals $8.2 Billion for 4,386 community projects. When added to the earmarking included in the Senate appropriations bills, that could boost overall earmarking significantly above last year’s level of $9.7 Billion in total, BGOV reports. (Earmarking is limited to 1% of the overall budget; last year’s limit was $15 Billion.)


FOIA. The Freedom of Information Act was the guest of honor at OGIS’s recent annual meeting — that’s the National Archives Office of Government Information Services, aka the FOIA ombudsman — which nearly coincided with the 56th anniversary of the Freedom of Information Act (July 4, 1966). As usual, OGIS completed an assessment of FOIA compliance over the past year; at the meeting, FOIA experts shared five recommendations for improving FOIA turnaround after two years of pandemic slow-downsFNN’s Abigail Russ has the recommendations. (We note that these recommendations are ‘supply-side,’ e.g. made by the fulfilling agencies.) Veteran FOIA attorneys and requesters have noted that the best way to cut down on FOIA requests is to improve governmental transparency in the first place; proactive disclosures also cut down on redundant disclosure work.

The rosy take on CODELs is that congressional delegations foster bipartisanship and are an unalloyed good. The story is more complicated. CODELs can be junkets and are rife with opportunities for infusions of lobbyist cash. Way back in 2012, Public Citizen’s Craig Holman noted that the House Ethics Committee’s travel rules only restrict travel funding by for-profit entities. Public reporting on travel, foreign or domestic, is haphazard and inconsistent. The value of CODELs is that they give members time to build relationships, but there are other ways to do that. We are not pooh-poohing legislative diplomacy, and we’re fans of the House Democracy Partnership, NDI, RSI, and the like. But any exploration of CODEL practices should dig a little deeper.

Travel expenses transparency is the goal of Transparency in Taxpayer-Funded Travel Act, H.Res 1211, a resolution introduced by Rep. Katie Porter that would require Members who use their MRAs for travel expenses to provide the House CAO with detailed information on the travel. This is one change that the House majority could put in place immediately. (As could the next Congress.)

JAN. 6

Trump was willing to lead the mob that sacked the US Capitol; he was aware that the insurrectionists had weapons; and he urged removing security measures as rioters gathered, per testimony of Cassidy Hutchinson.

A seventh Jan. 6th hearing is scheduled for tomorrow, July 12 at 1 PM, the Select Committee announced. Pat Cippolone, the former White House counsel who featured heavily in Hutchinson’s testimony, testified before the committee last Friday.


The best laid plans. Amid the bombshell Jan. 6th revelations, House Admin Ranking Member Rodney Davis argues the Jan. 6th committee is a fraudulent waste. Rep. Davis pledged to investigate whether Leg branch support agencies gave undue support to the majority should the Republicans retake control. Such an investigation may yet happen, but Rep. Davis lost his primary and will not be returning to Congress next year.

On Rep. Davis: While we certainly disagree with him on the Jan. 6th Committee — just as we welcomed his support for creating an independent commission — we have to note that his impending departure from the House is a loss for Congress. He has ably served both on the House Administration Committee and the Modernization Committee and is a long-standing champion of modernization, especially around technology. He also long championed reforms of the Capitol Police before they burst into the news. Former staffers-turned-Members often have good insights into the operations of Congress, and Rep. Davis and his team often play a thoughtful role while still representing the perspectives of members of his party.


House Sergeant-at-Arms William Walker is the subject of a recent Roll Call profile, in which Walker argues for USCP Board secrecy on grounds we think are spurious at best. (The House SAA is a voting member of the Board.) Walker endorses keeping the minutes from USCP Board meetings and other operational decisions private because, in Walker’s words, “Talking about what we’re doing does not make the Capitol safer.” First, it’s important not to conflate meeting minutes with operational decisions — many Board meetings are non-operational, and not all operational decisions should be secret. More importantly, Walker’s claim that secrecy equals Capitol security is manifestly false. Transparency and accountability is in fact a key pillar of security — remember Pres. Reagan’s dictum “trust but verify” — and we already saw what happened when the USCP leadership was not held to account.

Rep. Kinzinger illustrates threats against Members and staff. Last week, Rep. Adam Kinzinger released an extremely disturbing compilation of death threats his office has received recently. Kinzinger credited his new interns for compiling the clips, which points to a grave workforce concern about death threats: it’s often interns and entry-level staff who are fielding these disturbing calls. KTM notes that the Congressional Management Foundation has published best practices for protecting staff from the psychological harm of fielding violent calls, including rotating staff and creating a “tipping point” at which violent calls are sent to voicemail.


No campaign fundraising during session, proposes Rep. Dean Phillips in his ‘On the Clock Act’ (H.R.8089). This is a reform Demand Progress has recommended including in the House Rules to help ensure that Members aren’t stepping away from their day jobs to go fundraise. (We note the current franking rules can also create some ambiguity around whether Members are spending taxpayer money on campaigning — e.g. this recent case highlighted by Inside Elections.

It seems Rep. Fortenberry got off easy for his crime of lying to federal investigators while under scrutiny for campaign finance violations. He was sentenced to two years’ probation for crimes that could have amounted to fifteen years’ prison time. Former Rep. Fortenberry was convicted of lying to the FBI back in March; prior to his conviction, the House Ethics Cmte was investigating Fortenberry for accepting illegal campaign contributions and subsequently lying to investigators about the contributions.


Who’s who in Congress? Majority Leader Hoyer released a new version of his Member recognition app: Dome Directory 2.0. The app was conceived as a memorization tool for Members; now, it includes detailed biographical information about each Member pulled from the most up-to-date bulk data repositories and it’s fully searchable.

The Library of Congress is contracting with digital innovation vendors and put out a call last week for two five-year contracts with the LC Labs. enhancements for July include better search functionality and a centralized page for accessing all available hearing transcripts.


CRS around the world? Many parliaments have reference/research services. The Inter Parliamentary Union recommends that they have service charters, and Iain Watt, who blogs about such things, has an interesting blog post exploring service charters from services around the world.

While we’re geeking out, an annual conference on parliaments will take place in Birmingham, UK the first week of November. Anyone want to give us a grant to go… it looks like a lot of fun. Paper ideas are due by September 16th. (By the way, ASPA’s annual conference will be in — Montreal, Canada, oh? — September 15-18.)

New director of House ODI. Dr. Seisha Joi Moon is the new head of the House Office of Diversity and Inclusion, Speaker Pelosi announced last month. Congrats to Dr. Moon. The House ODI continues to build out its programming and provide a great service to Congress: this month, the office is launching career coaching services. See the calendar for more details. We note there is still no Senate ODI, but should be, as Demand Progress has recommended for inclusion in the FY 2023 Senate Leg Branch Approps bill.

Open The Government. The transparency organization Open the Government will cease its independent operations and its staff will now be housed under the Project On Government Oversight (POGO), according to an announcement by OTG’s Executive Director. OTG was launched in 2003 “to push back against the increase in government secrecy that followed the 9/11 terrorist attacks,” and we have had the pleasure of working with its staff since 2009. We’ve noted in prior newsletters that the circle of transparency organizations is shrinking and consolidating.

Something uplifting. The painter Robert Shetterly’s portrait series “Americans Who Tell the Truth” depicts whistleblowers, journalists, and other remarkable American dissidents ranging from Edward Snowden to Ida B. Wells. A new documentary on Shetterly’s work was screened at the National Portrait Gallery last week. It’s not available for streaming yet, but we highly recommend checking out the series at this link.

White House Staff Pay. Every year the White House provides to Congress a list of what EOP staffers are paid — as required by a law passed that went into effect in 1997 — and that list was just released. Way back in 2017 we urged the White House (and cc’d the Oversight Committees) to publish this information in a spreadsheet format, which would also put the White House in compliance with OMB Circular A-130, and it’d be a nifty idea for a little non-controversial bill to: (1) require online publication, and (2) have that publication as data. If you wanted to be ambitious, you could also include (3) summary demographic information.


• The Office of Congressional Ethics is hiring two attorneys to serve as Investigative Counsel.

• The House CAO is hiring “Communication Specialist.”

• The House Office of the Clerk is hiring Software Application Support Analyst and a senior UX designer

• The House of Representatives is hiring a Senior Cloud Engineer

• CEPR Congressional Fellowship. The Center for Economic and Policy Research has extended the deadline for its Congressional Fellowship to July 31. Targeted towards “mid-career policy professionals,” CEPR fellows are paired with Congressional offices to assist Members and staff with research and other legislative support related to domestic policy issues. Apply here.


Court reform and building a strong judiciary will be discussed at the R Street Institute’s panel discussion tomorrow, July 12 at 12 PM. Adam White of AEI and Sarah Isgur, reporter for the Dispatch, are speaking; R Street fellow Matt Germer will moderate. Register here.

Career coaching with the House ODI. The House Office of Diversity and Inclusion launches career “coaching” services this month, including two events: a resume review workshop scheduled for Wednesday, July 13, at 12 PM (register here); and a mock interview workshop on July 21 at 12 PM (register here).

ModCom on constituent services. “Building a more customer-friendly Congress” is the topic of a hearing scheduled before the ModCom for July 14 at 10 AM.

Congress’s role in “pursuing factual consensus” is the topic of the Levin Center’s upcoming panel discussion on July 21 from 12-1:30 PM, the second in a series of three panels on facts and public discourse. Register here.

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