FBF: AI for EZ learning & building a post-Chevron Congress (10/7/2024)

The Top Line

This week we’re covering everything from AI innovations to shifts in congressional power.

AI tools like NotebookLLM are making it easy to turn lengthy reports into podcasts, streamlining how we consume complex information. We illustrate some ways it could change the Congressional information environment.

There’s a lot happening in Congress post-Chevron, and we cover how the Legislative branch can regain its footing after the SCOTUS decision, especially as we have hit a point of cultural inflection on Capitol Hill.

We also explore new oversight tools, such as OpenOMB, which sheds light on how federal agencies spend taxpayer dollars. Plus, some notable retirements from government, and there’s progress on efforts to modernize Congress.

Using AI to absorb information

This past week I’ve been playing with NotebookLLM. One of its features is the ability to turn a document into a podcast. How well does it work? Pretty darn well.

For example, I transformed this 35-page CRS report on exceptions to the First Amendment into this 20 minute podcast (posted on SoundCloud). It’s a good rendering of the content in an engaging format.

I transformed this week’s First Branch Forecast into this 13 minute podcast. It only took about 5-10 minutes to generate the podcast. Is it better than the written product? You be the judge. As you know, I already turn CRS reports into ePub formats so you can read them on your Kindle. Imagine if you could listen to an engaging version of the report while on a run?

Here’s a new 50-page GAO report on preventing a dirty bomb that became this 16-minute podcast. You can even prime (sorry) the podcast to focus on a particular question.

NotebookLLM also will auto-generate a FAQ, a study guide, a briefing doc (it’s okay), and a table of contents – which could be very helpful for the lengthy NDAA that’s set to come out in December. You can ask it questions against the doc, like you can with other AI tools.

I’m fascinated by the ability that I could, for example, transform the 20,000 reports on EveryCRSReport.com into another engaging format and do so at scale. Or upload a few documents and have the AI generate a synthesis that you can query.

Obviously, all the issues that apply to AI regarding accuracy remain. But this is a significant use case in addition to the use cases I identified last year: drafting tweets, generating 1-pagers or press releases or Dear Colleagues, categorizing earmarks, naming bills, writing code, etc.

The Post-Chevron World

The American Prospect has an excellent article by David Dayen on what Congress must do to “get its groove back” in the aftermath of the Supreme Court’s decision to blow up Chevron deference in its recent opinion in Loper Bright. Dayen nails the key point: Loper Bright is “really an attack on Congress.”

“In speaking to over 20 lawmakers, current and former staffers, and experts in congressional procedure, I learned that Congress can legislate with clarity, purpose, and sufficient resolve to counteract judicial policymaking. It will require boosts in staff capacity, new processes to affirm legislative intent, stronger roles for lawmakers outside of leadership, and maybe even new agencies to assist Congress. And with almost no notice over the past few years, both parties have actually begun to work on this. Loper Bright could serve as a precipitating event to accelerate this modernization of Congress.”

“In the end, the outcome will depend on whether Congress respects itself. Thousands of bills are written every session, and hundreds pass into law. Countless hours are spent in deliberation and debate. Will elected representatives and their staffers summon the courage to defend their work, and make sure what they do for a living actually matters? Or will all that effort go to waste, tossed into the judicial meat grinder and transformed beyond recognition?”

There always have been people inside Congress working to strengthen the institution. Much emphasis has been given to the House Modernization Committee and its subcommittee successor for their remarkable efforts over the last half-decade, but my experience over the last fifteen years has shown that appropriators, the rules committee, House Admin, Senate Rules, leadership, committee chairs, individual members, and non-political staff at times have worked to move these issues forward in favorable and unfavorable environments.

Culture drives transformation. Institutions take time to change. We’re at an inflection point.

The transcript from House Admin’s hearing Congress in a Post-Chevron World is now available, including questions for the record, which start on page 980. There are a number of interesting interchanges worth reading, but let me point out two.

The Foundation for American Innovation’s Satya Thallam was asked what “would be the most important elements of a successful legislative branch version of the Office of Information and Regulatory Affairs?” His answer:

“It makes sense for Congress to establish its own means of analyzing proposed and final rules, not with a de novo impact analysis, but with a clear rubric… For example, a ‘Congressional OIRA,’ in reviewing proposed and final rules[,] could determine the degree to which the agency: considered multiple alternatives; adequately responded to salient public comments; established logical outgrowth from proposed to final stages; and employed timely and relevant data…. Congress would have a means of ‘grading’ the rulemakings in a clear and objective way…”

Law professor Josh Chafetz was asked about whether you could codify Chevron deference to withstand judicial scrutiny by amending the Administrative Procedure Act. Chafetz’s answer was, in essence, that (1) the Supreme Court likely views Chevron deference as incompatible with Article III of the Constitution so fixing the statute would not resolve the problem, and (2) efforts to cabin the Supreme Court from being able to consider such a case through court stripping would likely result in an opinion striking down such language and limiting Congress’s power under the Exceptions Clause.

This is a realistic view of how the Court behaves so long as its composition remains the same. I appreciated his critical view of those who argue for sunset provisions and also his explanation of how agencies would “trim their sails” because of their fear of the judiciary’s willingness to “dispense with regulations that it dislikes.”

He did not address, although I had hoped he would be asked, about whether it is possible to draft legislation relying on canons of interpretation that would avoid being knocked out because of judicial preference. Some argue this is possible, although my experience with canons of interpretation is that there’s always one available that fits a judge’s personal views.

He testified: “Loper Bright ignores research demonstrating that Chevron was the interpretive tool most familiar to congressional drafters, far more so than canons relied upon by the Supreme Court with some regularity…. Just because these drafting techniques [i.e. writing deference into laws or using language vesting discretion in agencies] would be consistent with the facial reasoning of Loper Bright does not mean that the Court would not find other ways to skirt them or strike them down. The general anti-administrative posture of the current Court should make us skeptical that it will allow Congress to assert itself in other ways.”

What would it take to get SCOTUS back on track? One approach could be a new bill introduced by Sen. Wyden would expand “the Supreme Court to 15 justices over three presidential terms, prevent political inaction from bottling up nominations to the Supreme Court, and restore appropriate deference to the legislative branch by requiring a supermajority to overturn acts of Congress.”

Follow the money

Apportionments – wake up, this is important – are how the White House controls agency spending. OMB decides at what pace federal agencies can spend appropriated funds and at times add little footnotes to providing “direction,” i.e., assert administration control.

Our friends at Protect Democracy just launched OpenOMB.org which allows you to more easily track apportionments. The website draws from data that Congress required OMB publish online, published by the government in such a way that coincidentally (?!!) makes it hard to find and analyze the data.

Anyhoo, Protect Democracy explains why they created the website in this blogpost that reviews how presidents abused apportionments and how this new tool will empower oversight.

That oversight won’t be perfect. We’re hearing that since Congress required OMB to disclose apportionments, OMB has reduced the number of footnotes they’re using and are instead communicating directions to agencies in ways that avoid public reporting and are aimed at evading FOIA as well. The FAQ from openomb.org does a good job of explaining the minutiae of apportionments, including the importance of footnotes.

But there’s room for oversight here even beyond the footnotes by following the money itself. For example, take a look at OMB’s practice of reserving funds from no-year and multi-year appropriations for future fiscal years. (Watch this explainer.)

Kudos to Protect Democracy for building the wonkiest site of 2024.

Biden signs Congressional Budget Office Data Sharing Act

Congratulations, nerds. President Biden signed the Congressional Budget Office Data Sharing Act, which the Budget Committee explains is “the first-ever House Budget Committee bill to become law with unanimous support from Congress.” The law (yes, friends, the LAW) expands “CBO’s authority to request and receive data from executive branch agencies while safeguarding sensitive legislative information.”

In signing the law, Biden issued a signing statement. If you’re not familiar with the concept, signing statements are extra-legal statements made by the White House after the enactment of legislation. While sometimes these statements are merely ceremonial, other times the White House will make obnoxious statements that some of the law is unconstitutional and impinges on the president’s authority, and thus will not be implemented/enforced. At times, the president will require additional procedures or impose limitations beyond the bounds of the law. (If the president felt this were true, the way to make it known is through negotiations on the bill or a veto after passage).

The boffins at the American Bar Association have said these statements “undermine the rule of law and our constitutional system of separation of powers.” Did Biden say anything beyond the ceremonial?

“I understand that this amendment to the statutory framework governing the provision of information to the CBO does not alter the established and constitutionally grounded accommodation process between the Congress and the Executive Branch, whereby the Executive Branch seeks to comply with laws that require the disclosure of information to agents of the Congress in a manner that both satisfies congressional needs and is also consistent with the need to safeguard classified, potentially privileged, and other sensitive information implicating Executive Branch interests. Moreover, this amendment does not alter agencies’ ability to negotiate written agreements with the CBO governing disclosures of information as part of that accommodation process.”

In other words, this law will be helpful to CBO, but the Executive branch reserves the self-proclaimed right to engage in shenanigans.

If you asked my opinion, Congress.gov should automatically link to presidential signing statements not because they are law, but because they are useful for Congress to be aware of. When we built BillMap, one of the things we included was a scraper for the signing statements and publication of them on the website. It’s my understanding, however, that current practice is to avoid linking to non Legislative branch-controlled websites.

The bottom line is that enactment of this law will strengthen CBO’s ability to get information from the Executive branch in a timely and comprehensive manner so that it can do its job of preparing budget estimates. Congratulations.

The Republican revolution

Newt Gingrich led the Republican revolution in 1995, and NOTUS looked at the Republican rebellion on the occasion of the October 3rd anniversary of when Republicans ousted Speaker McCarthy and the party’s factions openly fought for control. NOTUS quotes revolutionaries like Rep. Good who argued the main benefit “was striking fear into the hearts of GOP leaders.”

Some hardline revolutionaries had thought Democrats would save McCarthy. The result could have been to drive reactionaries like Rep. Fitzpatrick to create “some kind of coalition government. We would have just come up with a former member.” The ascent of Mike Johnson possibly stayed their hand, although it suggests a potential tactical error in the Democratic approach to that contest that emphasized party unity at the expense of a say in chamber control.

The revolution may not be over. Rep. Jim Jordan, the powerful Freedom Caucus founder, Chair of the Judiciary committee, and most hardline of the potential Speaker candidates who sought to succeed McCarthy, has been quietly laying the groundwork to win over the reactionaries, according to the Washington Post. “He is steering clear of the intraparty fights he once seemed to relish, selling himself as a potential bridge between House Republicans and the MAGA front line, and raising — and sharing — a lot more money with his colleagues.” Should he win, the revolutionaries would obtain full control over setting the agenda and the mechanisms of the party.

Is his charm campaign succeeding? “Several lawmakers who were skeptical of [Jordan] last year have become more open-minded about the idea because Jordan could play the role of messaging bulldog in the minority.”

What is driving Republicans to be increasingly hardline? Certainly a key element is a combination of Trumpism and a willingness to punish any dissent. But as ProPublica explains, at least in Texas, the extreme wealth of a few Christian Nationalists who have invested in building Texas’s most powerful political machine “has pushed the statehouse so far to the right that consultants like to joke that Karl Rove couldn’t win a local race these days.”

That money isn’t just staying in Texas, with millions poured into “dark money groups,” “conservative-media juggernauts,” and “federal races.” Texas may have become the laboratory for theocracy, with recapturing the White House the apotheosis of that movement. Whether or not that’s true, one big question is whether the reactionary Republicans will be willing to embrace possible speakers, like Jordan or Scalise, who would use their control of the agenda to move the party further away from their preferred positions.

If so, would the reactionaries be willing to play the same game as the revolutionaries and demand concessions over control over the chamber or party rules? Would they exit before they go extinct? Would they find a third way? The book Why Cities Lose provides useful case studies from the US and around the globe of what factions do when their party’s base moves away from them.

Making salary sense

Politico’s Katherine Tully-McManus provided a sneak peak at SalarySense, “a new tool helping chiefs of staff and staff directors across the Hill figure out how much to pay their teams, drawing on a trove of House salary data.” Per her reporting, managers have access to real-time, anonymized salary data for personal offices and committees, sortable by title, party, state delegation, etc.

Capitol Police Intel Bureau

POLITICO has a short interview with U.S. Capitol Police Chief Thomas Manager in which he touts the creation of an intelligence bureau. The interview is notable for three reasons.

First, the Capitol Police historically have been dismissive to the press and hostile towards any forms of public engagement or accountability. Post January 6th, the USCP was strongly pushed to hold press conferences, make use of public communications tools like Twitter, and generally be more responsive. Since then, they have made real efforts in that direction. It is good that Chief Manger sat down with POLITICO.

Second, the POLITICO video and accompanying text repeats USCP talking points on the threats against members of Congress. Unfortunately, it looks more like a USCP video press release than a journalistic effort. Among other things, it fails to quantify the information. Have the number of threats increased in part because they started measuring threats via social media? How many of the threats are determined to be serious? How many resulted in an investigation? A prosecution? A conviction? It would be wise to delve behind the talking points to understand the nature of the threats.

Third, the establishment of a new intelligence bureau is good news, especially in the wake of the fragmented intelligence gathering that preceded it. But what exactly is the bureau doing? Are they fully embedded in the intelligence fusion centers? Do their staff have the necessary clearances to do their job? Are they synthesizing intelligence only or gathering it as well? How are they protecting the open nature of Capitol Hill while performing their jobs?

Please don’t mistake what I’m saying. I’m on the record for how Congress should improve the management and oversight of the Capitol Police. I’ve been focused on the USCP for quite a while. It is essential that Congress be safe and open. Making the USCP more transparent only works as an accountability mechanism when civil society, the press, and congressional oversight offices are willing to ask the tough questions.

Retirements

Rep. Kilmer likes Star Wars, even the prequels, and other heterodox thoughts from the retiring dean of House modernization efforts. Alas, I think Corey Booker has the better of the space-faring franchises. LLAP

Robert Sunshine has retired after 46 years at CBO.

Bill Grennon, who worked at GPO for 41 years, following in the footsteps of his parents and grandfather, has retired.

Executive branch and around the world

How the House of Commons selects its committee chairs is bizarre from an American perspective but also instructive. For example, “the Public Accounts Committee and the Committee on Standards are to be chaired by an opposition MP.” The Hansard Society looks at the increase in competitive elections for chairs and how you evaluate success.

The new Open Government Federal Advisory Committee announced dates and agencies for its administrative and inaugural meetings: October 18 and 23. Joint virtually or in person. More.

A report on legislation to modernize the House Office of Legislative Counsel was released this past week. The legislation would allow House Legislative Counsel to designate more than one attorney to serve as Deputy Legislative Counsel and to allow the appointment of a deputy in the case of vacancy. I’m speculating, but the non-controversial Legislation is already on the House’s calendar and I wouldn’t be surprised if it didn’t move later this year, whether by itself or attached to omnibus legislation.

The National Archives released its open government plan for FY 2025-2027. Public feedback can be sent to opengov@nara.gov. The National Coalition on History recently released this report calling for more funding for NARA to support declassification and fulfilling FOIA and Mandatory Declassification Review requests. For more on NARA, don’t miss the recent 60 Minutes and Washington Post articles on the agency.

Odds and Ends

The Legal Landscape of Protected Whistleblowing is a new, online class from the Office of the Whistleblower Ombuds that provides an in-depth look at the laws and legal processes whistleblowers rely on when they share vital information with Congress and other key audiences. House staff only.

The Freedom of Information Act, at least the most consequential amendments to that law, are turning 50, and civil society is throwing a symposium to celebrate. Join the American Society of Access Professionals (ASAP) on November 1 from 9-4pm at George Washington University to hear about the past, present, and future for one of America’s key transparency laws. RSVP here and see the agenda here.

The Office of Congressional Workplace Rights Board denied Stephanie Richner’s appeal of a decision that favored the Library of Congress. Richner claimed the Library had discriminated against her by refusing to reasonably accommodate her disability and by firing her, but the Board did not find a sufficient basis to overturn a hearing officer’s determination to the contrary.

New IG Reports: AOC IG audit of the Capitol’s construction division – generated three recommendations. GPO IG on Plant Operations Metrics Inspection – generated five recommendations. AOC IG on management opportunities and performance challenges.

New GAO Restricted reports: “Ukraine Funding: DOD Needs to Improve Its Reporting, Guidance, and Evaluation Efforts” and “Export Controls: State Should Develop Procedures and Training for Reviewing Defense Services License Applications”

GPO biennial survey of agencies reveals high marks for the Government Publishing Office.

FBF: You’d think it’d be quiet (9/30/2024)

The Top Line

I feel a little like Robert Caro this week except his prose sparkled and he had a much better editor. This week we cover a bit of everything.

We look at efforts to weaken the discharge petition and let Member Moms vote. We dip our toes into continuity of Congress and reveal that the member back-pay lawsuit can go forward.

We go document diving and read what the Library of Congress had to say about what it’s doing on Congress’s behalf, and spend a fair amount of time quibbling over public access to historical CRS reports.

And we cover a legislative good idea – tracking nomination – and another that’s almost at the finish line – a journalist shield law.

This was way too much writing, but with six weeks off, you need something fun to read. As always, send me a note to let me know what you think.

Continue reading “FBF: You’d think it’d be quiet (9/30/2024)”

FBF: The last week before splitsville (9/23/2024)

The Top Line

This past week was insanely busy, which is not surprising considering it’s the penultimate week before Congress goes on recess for the election, not returning until November 12th.

Inside we cover everything from some great suggestions for updating the rules of the House of Representatives, a public conversion on Congress.gov, the Congressional Hackathon 6.0, the overprioritization of constituent communications by some offices, congressional unions, an odd lobbying loophole, and what happens when you read too many government documents.

There’s also an interesting article on the lack of philanthropic support for investing in democracy reform. Boy, is that true – especially for what happens in between elections. That is also an opportunity for me to shamelessly ask you to support this little newsletter, which is a lot of work.

Notable bills on the floor this week include: the CBO Data Access Act (S. 1549), the NAPA Reauthorization Act (S. 133), the GAO Database Modernization Act of 2024 (S.679), and, of course, a continuing resolution.

Continue reading “FBF: The last week before splitsville (9/23/2024)”

FBF: Christmas in September (9/16/2024)

The Top Line

This week contains the International Day of Democracy (generally not celebrated in the US), Constitution Day, a House Rules Committee hearing on the chamber rules for the 119th Congress, the Congress.gov forum and Congressional Hackathon, and so much more. Keep cool and keep caffeinated.

If you want to brush up on your personal cybersecurity at an event tailored for staff, RSVP to this virtual training next Monday hosted by the American Governance Institute, the R Street Institute, and Demand Progress Education Fund.

Continue reading “FBF: Christmas in September (9/16/2024)”

FBF: It’s Showtime (9/9/24)

September 9, 2024

The Top Line

Here we are again. Over the next few weeks Congress will be at a performative peak, working hard to draw contrasts between the parties, distinctions among the factions, and assail the opposing party’s marquee candidates in any way possible. This is in stark contrast from what we can expect in December, when members are the farthest they can possibly be from an election and all the pent-up legislative energy will be channeled into a few must-pass bills.

In the background are the tectonic shifts of our political system transforming into a new configuration and a series of slips and jolts as political actors seeks to take advantage of and construct new terrain.

Continue reading “FBF: It’s Showtime (9/9/24)”

FBF: The calm before the storm (9/3/2024)

 This week’s newsletter will be shorter than usual. We’ll be back in full force next week.

Technology and Democracy

The Library of Congress will hold a public forum on September 18th from 1-3pm. The forum “provides an opportunity for the public to learn about recent enhancements to Congress.gov and to provide feedback about the site.” Click on the link to RSVP.

The Congressional Hackathon will take place on September 19th from 1-6pm. The hackathon “will bring together a bipartisan group of Members of Congress, Congressional staff, Legislative Branch agency staff, open government and transparency advocates, civic hackers, and developers from digital companies to explore the role of digital platforms in the legislative process.” Follow the link to RSVP.

Continue reading “FBF: The calm before the storm (9/3/2024)”

FBF: The Doldrums of Congress (8/26/2024)

The Top Line

Congress is in the doldrums, comparatively, but the work of government rumbles on. We’ve got a surprising number of interesting items for you, but don’t forget to take some time for yourself before things get frantic in September.

What tech should Congress build?

**The Congressional Hackathon **is three weeks away. Have you RSVP’d for the September 19th event? In preparation for the hackathon, I’m gathering ideas about how the Legislative branch should modernize its technology.

What’s your genius idea? Should there be a tool that allows staff to automatically schedule meetings with outside groups at free times on their calendar? An app that automatically condenses written witness testimony and the committee memo into a two-page doc that includes draft member questions? A tracker that shows how busy each cafeteria is? Or that collates all QFRs that relate to an agency?

Submit your tech ideas here. I’ll publish the best, but also will keep the submitter anonymous unless you give the go-ahead.

Congress’s once and future legal advisory body

I’m reading an eye-opening law review by Beau Beaumann that argues the House and Senate had an office from 1919 to 1969 that acted akin to how today’s DOJ’s Office of Legal Counsel serves the Executive branch – providing legal advice to members of Congress to resolve their constitutional questions. This historical role, Baumann explains, was previously unknown, and could be a precedent for how the House and Senate do more to vindicate Congress’s legal views in court today.

There is, in the words of Beaumann, a “lost culture of constitutional consultation” where written and oral opinions guided Congress for decades. For 50 years, the House and Senate Offices of Legislative Counsel issued “opinions of the office” that provided “substantive law within Congress” that was non-partisan, precedential, and binding on future opinions. The office also issued non-precedential opinions, and briefs that argued a particular viewpoint. Beaumann discusses who created the office, the context in which it operated, how it was created, how opinions were drafted, and how Leg Counsel’s role has changed over time.

The Executive branch has a secretive legal advisory body, the DOJ’s Office of Legal Counsel – as I describe in testimony – that has become a primary exponent of pro-Executive branch legal theories and a recruiting ground for future Executive branch-centric federal judges. It routinely issues secret opinions that have the force of law in the Executive branch and act as a body of precedent. There is no equivalent Legislative branch counterweight, although Protect Democracy’s William Ford has sketched out what one could look like.

Michael Stern, who served as counsel for the House of Representatives’s Office of General Counsel, argued in his testimony for an enhanced public role for the OGC and greater transparency for the Bipartisan Legal Advisory Group, the low-profile leadership entity that oversees the OGC and determines when the House will intervene in legal matters.

Just to clear up some jargon: Stern formerly worked in the Office of General Counsel, which litigates on behalf of the House, and Beaumann was writing about the Office of Legislative Counsel, which currently helps members draft legislation. A third entity, the American Law Division of the Congressional Research Service provides Constitutional and statutory interpretations to Congress, but ALD does not litigate and, IMO, has a very different relationship with members than the General Counsel’s offices. (I worked as a Legislative attorney for ALD.)

In arguing for greater transparency for the work of the Office of General Counsel, Stern writes “it is in the House’s institutional interest for the public to have more information about its legal positions… [as] legal scholars and commentators are [] disadvantaged by the lack of access to the opinions of the House’s most knowledgeable experts.” That imbalance, when contrasted with DOJ’s OLC, “undermines the House’s institutional legal positions in court.”

The GAO in 2024, in response to a request from appropriators, sketched out options for establishing an office of legal counsel in the Legislative branch, although Baumann notes the agency apparently was unaware of the promulgation of tens-of-thousands of pages of legal guidance in the first half of the 20th century. Appendix II of GAO’s report contains considerations for establishing a congressional office of legal counsel.

In light of apparent overreach by the Supreme Court in recent years, the House and Senate4 Rules committees may wish to consider how to bolster the Office of Legislative Counsel and bring transparency to the BLAG. The two chambers may also wish to consider to how help vindicate the Legislative branch’s views against an overpowerful Executive branch and a complicit court that’s chipping away Congress’s authority.

McConnell weighs in on remote voting and Chamber Rules

Can the House and Senate use proxy voting? The answer, according to Sen. McConnell, is yes – and the courts should keep their damn hands off how Congress conducts business. Kyle Cheney and Josh Gerstein have the story for Politico, which links to this amicus filing by Sen. McConnell, written by Bill Barr (yes, him!)

Here’s the bottom line from the brief: “There are good reasons to criticize proxy voting, and particularly good reasons to have criticized the use of proxy voting in December 2022. But not every principled disagreement has a remedy in court. Because the decision below undermines the constitutional powers assigned to Congress, it cannot stand.”

McConnel cites my favorite-named Supreme Court case, U.S. v. Ballin, where the Supreme Court held in 1892 that insofar as the chamber follows its own rules, the Court cannot look into how the chamber chose to determine a quorum.

Sen. McConnell makes a lot of sense. _[Editor’s note: Daniel, did you really write this? DS: There’s nobody else here, so yeah.] _McConnell writes: “[T]he district court’s retooling threatens Congress’s ability to conduct business on a day-to-day basis. An ironclad physical presence requirement removes necessary flexibility during national emergencies. It risks invalidating longstanding Senate procedures, particularly the ubiquitous practices of unanimous consent and voice votes. Finally, it imperils a significant portion of already-enacted legislation.”

The following section from McConnel’s brief is music to my ears. I am also aware of the irony of Sen. McConnell trial to dial back the Frankenstein court he created. The issue is whether the courts can determine when a quorum is present.

“But what is meant by physical presence? Does physical presence require members to be on the Floor? Does vestibule voting count? In the House, where voting is done by electronic card, can one member use another member’s card while its owner waits in the cloakroom? What about voting from the galleries? The House and Senate have rules and precedents to account for these situations: are those rules subject to judicial review? Will the courts effectively be in the business of establishing a code of rules for how the House and Senate conduct business? The court did not begin to provide an answer to these questions, nor can it.”

Why does McConnell care so much, and why now? I don’t know, but one theory is that if the courts start to muck around with what constitutes a quorum, it could upset the exercise of the filibuster, and its obverse, unanimous consent, which is something he cares very much about. One could imagine the requirement of a return to the speaking filibuster, for example, which would greatly impede both leadership control and the ability of individual members to halt legislation they don’t like.

Emergencies do happen. As we go into the 119th Congress, each chamber should put in place provisions that clearly allow for and define circumstances and processes for remote deliberations on the floor that allows each member to exercise their full powers, including bringing an end to remote deliberations when an emergency abates. Similar authorities should be provided for committees, although they should have additional flexibility to operate remotely as the committee determines prudent.

And, if you want a blast from the past, here are major news stories, regulations and resolutions on remote deliberations, and the like at continuityofcongress.org.

Impeachment stalls out

Several House Committees majority staff released a report that states “the Committees have accumulated evidence demonstrating that President Biden has engaged in impeachable conduct.” The main allegations are that Pres. Biden engaged in a conspiracy to monetize his office of public trust to enrich his family (largely when he was Vice President) and that President Biden used his official position to conceal his mishandling of classified information as a private citizen.

Jordain Carney noted in Politico that Speaker Mike Johnson’s statement commending the report did not call for floor action. Also, efforts by rank-and-file members to force an impeachment vote would likely fail and place some Republicans in a tough spot.


I’m not a fan of the weaponization of impeachment to distract presidents even as we must defend the right of the House to inquire. Congress has the right and the obligation to investigate the Executive branch, and there are times, such as Iran-Contra, where impeachment proceedings may have been warranted. The transformation of impeachment into a messaging activity – as such measures are unlikely to be taken up in the Senate – bodes poorly for Congress being taken seriously when it conducts oversight.

New Jersey’s new senator

Sen. George Helmy will represent the great state of New Jersey upon the resignation of Sen. Robert Menendez, and will serve as senator until November 27th, at which point he will resign and Governor Murphy will appoint the winner of the November General Election. This will give the future winner of that election a slight seniority boost. Sen. Menendez was found guilty on 16 counts of bribery on July 17th but the Senate demurred on removing him from office, allowing him the courtesy of resigning his office on August 20th, and to collect a few more paychecks. Soon-to-be Sen. Helmy served as state director to Sen. Booker, as staff assistant and constituent advocate the office of Sen. Lautenberg, and as chief of staff to the governor.

What else might the Senate Ethics Committee have found on Sen. Menendez? We’ll never know – they closed their investigation after his resignation. (This is a bad policy: a substantially completed investigation should be released because members who quit have been known to run again for positions of public trust.)

A new process for H. Ethics as Santos pleads guilty?

Ex. Rep. George Santos pled guilty to wire fraud and aggravated identity theft. According to the Justice Department, he “admitted he filed fraudulent FEC reports, embezzled funds from campaign donors, charged credit cards without authorization, stole identities, obtained unemployment benefits through fraud, and lied in reports to the House of Representatives.”

Per the DOJ, Santos will be sentenced on February 7, 2025, and faces a mandatory minimum of two years in prison and a maximum of 22 years in prison. He must pay restitution of $373,749.97 and forfeiture of $205,002.97.

**Notably, the Ethics Committee **did not pause or defer its investigation when the DOJ announced its indictment of Santos on May 9. Usually, the Ethics Committee places investigations on hold when there is a criminal investigation or indictment. It’s my view that policy is unwise, as ethics violations are not coterminous with criminal investigations and having a corrupt member of Congress poses a unique danger. Questions of corruption should be dealt with expeditiously.

To avoid the appearance of treating members differently, the Ethics Committee should establish the policy that it will continue investigations even when the DOJ is investigating. Furthermore, the Office of Congressional Ethics, which released a report on May 1, 2023, should be further empowered to subpoena third parties for records.

Earmarks as grease for policymaking?

One theory behind why earmarks should return is that they allow leadership to apply grease to the gears of government to move legislation. Sen. McConnell must have taken that adage to heart as he’s now the top earmarker in the Senate, responsible for $498 million for the state of Kentucky, according to Roll Call. They don’t have the majority, but Senate Republicans took home 46% of earmarked funds (not all earmarks are finalized).

In fact, “fifteen of the top 20 earmarkers are Senate Appropriations members.” While this is not surprising, it does suggest a less than equitable division of earmark dollars. On the other hand, Appropriations is one of the few committees that (mostly) works. That could also be attributable to the must-pass nature of the bills and/or the comparatively large committee staff sizes.

Updating House Rules

The POPVOX Foundation released a report with recommendations for updates to the rules of the House of Representatives. This follows a bipartisan report released a few weeks ago by the American Governance Institute and the Foundation for American Innovation that contained comprehensive reform recommendations. Many of POPVOX’s recs have similarities with those of the bipartisan report, although there’s some new stuff in there, too. Highlights include: mandating committee scheduling data entry, establishing a task force on the legislative process, one-click access to committee votes, and requiring bipartisan committee retreats.

Congressional Research Service and legislative data

The transcript from House Admin ModSub’s March 2024 hearing on modernizing CRS and the use of federal data is now available, and you know I went dumpster diving straight to the QFRs that start on page 66. (Side note: wouldn’t it be great if the QFRs were published as text in the text versions of these reports so you don’t have to go to the PDF?)

**Matt Glassman’s written responses **were quite interesting. He explained that confidentiality with requesters at CRS did not extend to the sharing of raw data among analysts, unless the data came from a requester. That he worked to acquire and refine raw datasets to answer questions, but that CRS has no central repository where the agency kept data acquired by individual analysts that could be used by others.

He stressed the following point: “the best way for CRS to better make use of datasets acquired by analyst[]s would be to make sure analysts can easily understand what datasets exist at CRS.” It’s a darn good point. “Knowing what exists or being able to easily search it” is challenging for analysts.

He also recommended Congress revise CRS’s statute to better integrate CRS analysts with the hill perspective. While not endorsing a dramatic change, he identified taking CRS out of the Library and transforming it into an independent entity, converting the director to a termed appointment, and making CRS staff more like CBO staff.

Not all solutions required legislation. He recommended: embedding CRS analysts in the House and Senate, creating a customer-service driven culture to products – especially through improved formats and marketing, and encouraging CRS analysts to become public experts in their field.

Lots to think about.

I didn’t see anything new in Acting Director Newlen’s testimony, which covered CRS’s authority to obtain Executive branch information, a (gently worded) lament of the lack of funds from appropriators to support a larger data infrastructure, and a lack of information on the downstream savings arising from ending distribution of the print edition of the Constitution Annotated.

**One funny point on CONAN **– When I started at the Congressional Research Service, the person next door to me was responsible for writing a significant portion of the Constitution Annotated, a legal treatise that explains the Constitution as it has been interpreted by the Supreme Court. Only very recently has CRS made it available online – after a lot of encouragement – and recently I got an email from a software engineer, Sukolsak Sakshuwong, who has turned it into an iPhone app. Now you too can have the Constitution in your pocket. CRS had built a version of an app a while ago, but it displayed the pages as PDFs, which are basically unreadable on your iPhone. That problem is resolved with Sakshuwong’s version, which uses responsive design. That’s the power of open data.

**Elise Bean **wrote that it would be constitutional for CRS to ask for data from Executive branch agencies.

While I’m writing about CRS, I’m generally happy with Director Newlen, but aren’t we a few months behind schedule in announcing the new director?

Odds and Ends

**Rep. Bill Pascrell **passed on August 21, 2024. He was a champion of a strong Congress. He will be missed. The New Jersey Globe has his obituary.

**A filibuster carve out **for abortion is on the table, says Sen. Schumer. Or for voting rights. I feel like this is an Oprah moment: you get a carve out, and you get a carve out, and you get a carve out.

**Strengthening public participation **in rulemakings is the subject of a new report from OIRA. It contains a series of examples and best practices from agencies.

**OMB has 37 open priority recommendations **from GAO, ranging from fully developing a federal program inventory and improving government performance to increasing availability and transparency of government data and improving acquisition management. Many of these recommendations have been unresolved for some time.

**Taylor Swift **has an excellent article in the Fulcrum on increasing financial resources for Congress, framed around the Supreme Court’s recent Chevron decision.

Member speech and civility. A new tool from the Polarization Research lab tracks statements by members and uses AI to categorize the speech as engaging in a policy discussion, constructive debate, personal attacks, accomplishments, or bipartisanship. I am somewhat skeptical that this is a good use of the technology, but it is an example of the kinds of things that can now be done.

FBF: Hacking Congress, but in a good way (8/19/2024)

The Top Line

Matt Lira, who held a wide variety of technology-related posts in Congress, recently spoke about how to modernize Congress – especially congressional technology – in a wide-ranging interview in Statecraft. Matt was around during the heady days when Reps. Darrell Issa, Steny Hoyer, Eric Cantor, Mike Honda, Nancy Pelosi, and others were pushing forward innovation on Congressional technology.

Anyone remember the 2007 Open House Project report, the 8 principles of open government data, or the recommendations to the bulk data task force? There’s a long, largely untold story of the collaborative effort among congressional political staff, non-political staff, and civil society coalescing around the start of the Obama administration that brought tremendous energy to modernizing legislative branch technology. One focus was improving transparency, but another was to save staff from the drudgery of aspects of their work so they could serve a higher, democracy-supporting function. Let me quote Matt on this point:

Continue reading “FBF: Hacking Congress, but in a good way (8/19/2024)”

FBF: Looking under the hood at the rules (8/12/24)

The Top Line

I teased last week that much is happening behind the scenes in Congress that’s not about the re-election. August is the un-official starting gun for efforts to modify chamber and party rules plus subtle campaigning in leadership elections and for committee assignments. Everyone is focused on the election, of course, but savvy players are simultaneously jockeying for what comes afterward.

Let’s be honest: chamber and party rules are largely about power: who has it and how they use it. These rules could be about creating a fairer process, and in a better world perhaps they would be, but in the real world they’re about building and maintaining power structures – and buttressing legitimacy for those structures.

In light of this reality, I’m pleased to share recommendations to modernize the rules of the House of Representatives. These comprehensive, bipartisan recommendations – co-authored by Zach Graves at the Foundation for American Innovation and myself – are something of a tradition. We’ve made suggestions for the rules package going back to the 112th Congress.

We are releasing these recommendations now because our focus is on building a stronger House of Representatives that meets the challenges of the moment. We get to take the long view with recommendations that appeal to the short and long-term interests of members and the various factions into which they organize themselves.

Our key recommendations hone in on strengthening the House post-Chevron, advancing technology and innovation, strengthening Article I, improving transparency and accountability, and modernizing congressional operations. If this seems highfalutin, the recommendations are concrete. For example, committee staff numbers should be increased by 30%. The House should establish a regulatory review office and a nonpartisan science and technology advisor. It should buttress its inherent and statutory contempt powers, provide TS/SCI clearances to one staffer in each member office, and renew the modernization subcommittee. And, as Politico reports, much more.

I hope you’ll read our key recommendations – and read on into the full report. We worked hard to make useful and actionable recommendations. We don’t expect every member to take them up en bloc, but we do think that many will find particular recommendations useful and pick up the banner.

Continue reading “FBF: Looking under the hood at the rules (8/12/24)”

FBF: Congress is OOO but this week’s Congress news is in your inbox (8/4/24)

The Top Line

From our shameless self-promotion division, Roll Call was kind enough to profile me this past Tuesday.

Do you support democracy? I mean, do you work at a foundation or are a high-net worth individual and want to see our political system work better? If so, the folks at Democracy Fund Voice have published a blogpost and white paper that outlines their successes and lessons learned in supporting congressional capacity and congressional reform work. I had the pleasure of working with Democracy Fund Voice and Democracy Fund for many years and their support  and insight was essential to my success.

Congress is out and it’s my suspicion that news from Congress may slow down. While the press chases the campaign, in the background are important efforts to resolve the differences in the Appropriations and NDAA bills for passage in December, hammering out a Continuing Resolution to keep the government open, jockeying for positions on committees as members retire – and the work to update the rules for the House, the Senate, and the parties inside them. The rules in particular have long been an interest of mine – process guides the results – and the August recess is the unofficial kick-off for a lot of this work. Stay tuned.

Know a technologist who should work in Congress? The TechCongress fellowship has applications open through August 7th for their January cohort. Mid-career fellows receive a $93,000/year stipend and early-career fellows receive a $70,000 annual-equivalent stipend.

Continue reading “FBF: Congress is OOO but this week’s Congress news is in your inbox (8/4/24)”