TOP LINE

Appropriations bills’ markups, scheduled to begin last week, have taken a hiatus awaiting the outcome of the topic du jour. It’s not clear that House Republicans would have been able to pass those bills individually.

This week: the deal that Pres. Biden and Speaker McCarthy have reached to raise the debt limit scrambled the calendar, which had the House out of session. The bill text went online Sunday at 7:13 PM. A vote, which must be 72 hours later, can be no earlier than Wednesday evening; we doubt it will follow the single subject rule. There’s also a Senate Budget hearing on Wednesday on “rejecting the false choice between default and austerity.”

Some commentators have noted that the substance of the deal could have been far worse. On the other hand, it’s notable for being built around the debt limit, the White House’s forbearance from using its statutory and constitutional powers, the attempt to delink defense and nondefense spending levels and de facto cuts for nondefense, punching down at the poor, and with a bonus Joe Manchin give-away.

The expiration of the debt limit has now been kicked down the road to just before the start of the 119th Congress, which will shape the first few months of that Congress as they try to mollify a small faction now emboldened to use the ceiling as a weapon of mass economic destruction. Sooner or later, someone’s going to trigger a detonation. And, of course, this bill still has to pass, which means possible shenanigans in the Rules Committee. And there’s still all those appropriations bills.

Please indulge us in a look back on the institutional factors that got us to this point.

SEEING IT A MILE AWAY

Regular readers of this newsletter will notice that two of the themes we track to understand how Congress is working are how procedural rules shape congressional action, and the political factions that exist under the larger tents of the two parties. These themes, of course, interact because the spate of chamber, committee, and party rules often are designed to empower in-groups, minimize or isolate out-groups, and empower factions skilled in their use to maximize leverage to get what they want.

Process is Power

The MAGA rump of the Republican Party has spent roughly the last decade learning and mastering rules and procedural advantages, particularly in the House, to elevate themselves within the conference. This process, exemplified in the creation of the Freedom Caucus, started awkwardly by chasing Speaker John Boehner from Congress altogether when then-Rep. Mark Meadows filed a motion to vacate the chair in 2015. The House Freedom Caucus then leveraged the organization of the 118th Congress masterfully to insert itself as the de facto leadership of the new majority through the concessions it pulled from Rep. Kevin McCarthy’s desperate grab at the speakership.

The result today is the nation danced on the knife-edge of defaulting on its debt in an attempt to enact as much of the MAGA agenda as possible, which was the exact goal of the HFC faction after the midterm elections. They said it repeatedly in public. The conditions for minority rule were ripe — that a determined faction were creating the procedural conditions to lead to exactly this crisis.

What is most astonishing to us is that so many Democratic leaders did little to try to stop it, either because they were dismissive of its threat or thought it was a scenario that could be “won.”

“Winning” was almost capitulation. The end result, nevertheless, reflects Republican values of redistributing wealth upward, which some factions within the Democratic Party have no problem with either. The compromise bill makes it harder for vulnerable Americans to feed their families. Defense contractors will not face flat budgets and some will use this as a basis to delink funding between wartime activities and those that benefit all of us. Senator Joe Manchin even gets his West Virginia fossil fuel buddies a pipeline.

Continue reading “First Branch Forecast for May 30, 2023: The debt limit agreeement” →

TOP LINE

Government accountability requires both structural mechanisms and personal will. By moderately decreasing funding levels for the Legislative branch, House appropriators preserved most of the structural accountability capacity of Congress in their FY 2024 spending package.

Individuals, however, continue to dodge holding peers accountable. The US Capitol Police is allowing former acting chief Yogananda Pittman to no-show her way to a pension in spite of her failures leading up to the January 6 Capitol attack. House Republican leadership found a way to keep Rep. George Santos around while minimizing their own political damage. The majority on the Supreme Court seems intent on kneecapping congressional oversight of the presidency even further. And there’s a lot more to say about white nationalists in Congress.

This week the House is in session Monday through Thursday while the Senate is in recess. The House Appropriations Committee has scheduled the markup of the Legislative branch bill for Tuesday at 10 AM alongside the adoption of interim 302(b) allocations. The Committee on House Administration scheduled a meeting on Wednesday to adopt regulations requiring everyone to complete a training in workplace rights and responsibilities per the CAA.

Senators on the Appropriations Committee said last week they will start their markups in June but have not decided which of the 12 bills to start with. June is a little vague: Congress is in session during parts of four weeks of the month. HASC members, meanwhile, identified mid-to-late July as their target for bringing the NDAA to the floor. At any moment there could be a deal to address the impending debt ceiling disaster. Or not.

LEG BRANCH APPROPS PACKAGE

Twice in recent history new Republican majorities in the House ushered forth crippling cuts to Legislative branch budgets to align with their rhetoric on federal spending. In 1995, the Gingrich House took a hatchet to entire offices and whittled committee staff to the nub. In 2011, Leg branch funding was sliced as performance art.

The 20%+ cuts in 1995 and the 10%+ cuts in 2011 were not matched by cuts elsewhere in government. Their effect was to centralize congressional power in leadership and weaken Congress as a counterweight to the Executive branch and to corporate interests. Cynics would suggest that was the plan. Over the last quarter-century, funding for the Legislative branch has grown at only half the rate of overall non-defense discretionary spending. Cutting Congress is dumb and makes Congress dumb. As its total funding is less than $7 billion out of $1.7 trillion in discretionary spending, and its purpose is to oversee the entire government, cutting Congress is counterproductive to saving money, let alone making good policy.

This time around, Republicans returned to the majority extolling the importance of a robust Congress that can hold the White House accountable. The Legislative branch funding package that the Appropriations subcommittee released last week reflects that governing position, albeit through a lens of parsimony. It holds funding for member and committee offices flat and provides slight increases to most legislative support agencies that will enable them to operate at their current level of performance.

The FY 2024 bill reduces spending on the House by 4.5%. It does not keep up with inflation — more than 4% — so the functional effect is still a significant cut. But it’s not the catastrophic results a return to FY 2022 or earlier funding levels would have had on the capacity of the institution to legislate, conduct oversight, and perform constituent service. Members and the subcommittee staff, as Chair Mark Amodei noted in his statement, worked to achieve prudent results amidst the backdrop of debt-limit budgetary drama.

Continue reading “First Branch Forecast for May 22, 2023: The plan for Congress’s funding in FY 24” →

TOP LINE

In a place driven by interpersonal relationships, failures to treat other people with respect in the Legislative branch stand out. Last week, we learned a lot more about how the people inside CRS feel about how upper management treats them and how that impacts its capabilities. We did so through its union, which reminds us on the first anniversary of House policy staff being able to unionize of the importance of institutional mechanisms to provide voice to everyone working there.

This week, both chambers are in session Monday through Thursday, with the Senate remaining in session Friday.

Tuesday, the House Admin Committee (“CHA”) holds an oversight hearing of the US Capitol Police. The committee has much to inquire about, particularly because the department has requested another tremendous budget increase in the Leg branch appropriations bill soon to go to markup. Inspector General and GAO reports examining the department’s response to the January 6 insurrection pointed not to scarce resources but poor training, intelligence analysis, communications, and planning practices by department management.

Reforms that bring greater transparency to the department, particularly a FOIA-like model that we have developed, would assist tracking improvements in these areas.

Also Tuesday, Senate HSGAC marks up several original bills of note: the Expanding Whistleblower Protections for Contractors Act, the Congressional Budget Office Data Access Act, and the GAO Inspector General Parity Act. CRS has not yet published summaries on Congress.gov, but fortunately you can Google for the press releases for the Whistleblower bill and the CBO bill; a quick read of the GAO bill suggests it’s aimed at insulating the GAO IG. CBO did mention the need for a legislative fix to be able to access some data during its testimony to the Leg branch appropriations subcommittee and with the Modernization Committee in 2021.

On Wednesday, the Senate Judiciary subcommittee on the federal courts will take a swing at judicial ethics in a hearing with the Judicial Conference of the US. Senator Dianne Feinstein’s return to the full committee opens the path for the committee to issue subpoenas to Justice Clarence Thomas’s coterie of patrons. Her frailty and perpetual need for a staff minder, however, is going to remain an issue for the committee as it tries to pursue accountability on top of its judicial nominations schedule and in a committee well known for its asymmetric polarization.

CRS, AOC LEADERSHIP

As we noted after CHA’s oversight hearing on CRS several weeks ago, the managerial issues facing the agency are not new nor easily remedied by Congress because of the way it is embedded within the Library of Congress. Because the staff at CRS are unionized, we have a much clearer picture of present employee morale and confidence in their management than Director Mary Mazanec shared with CHA. In advance of her appearance before the Senate Rules Committee, the parent union of CRS’s union (CREA) sent a letter to Librarian of Congress Carla Hayden that revealed a deeply disaffected workforce through internal survey data.

Management’s response to the COVD-19 pandemic has accelerated an attrition and morale crisis in CRS. One example of this problem is how senior CRS management adopted a more restrictive telework policy than other sections of the Library, exacerbating an unsatisfying work-life balance situation for staff. During FY 2022, 44 staff quit, more than double the already alarming annual average for CRS over the last decade. Almost half of those who left cited its telework policy as a reason.

That turnover left enormous gaps in agency capacity and burned out many who stayed. Only about a quarter of CRS employees agreed that “senior leaders generated high levels of motivation and commitment,” with many citing “palpable disdain” for employees from leadership in communicating the return to onsite operations. Overall employee satisfaction with management’s communications cratered to only a third affirming. The pace of departures for FY 2023 may be higher than 2022.

Continue reading “First Branch Forecast for May 15, 2023: Unions, CRS, USCP, and the Debt Debacle” →

TOP LINE

Last week’s House vote garnered a lot of attention but changed nothing. We see little room for Speaker McCarthy to maneuver to stay at the top of his conference while simultaneously negotiating a deal that avoids default on our nation’s debt. Prior Republican speakers have cut loose part of their conference to avert catastrophe, but the changes in chamber and party rules tie McCarthy to the maximalists.

A clean bill to avert a debt default should be non-negotiable. Even with negotiations, we don’t see an attainable zone of agreement before there’s a default. Republicans are desperately hoping Democrats will get blamed and cave. A lot of people will be hurt in the process.

Instead of contemplating all this, our attention was captured by an excellent House Administration Committee hearing on the modernization of the Congressional Research Service that called out the elephant in the room: The agency is failing in its core functions, it has been failing for a long time, and the root cause is poor leadership.

Meanwhile, the Capitol Police and Senate Sergeant at Arms called for yet another giant funding increase at their Senate appropriations hearing while a new report from POGO pointed out management failings at the Capitol Police; the Supreme Court snubbed the Senate while springing another ethics leak; and we got word on what appropriations austerity would do to GAO. (It’s not good).

Don’t miss our links to video from the AI in Congress conference last week and an opportunity to RSVP for the next Congressional Data Task Force meeting.

This week the Senate is in session from Monday to Thursday and the House is out. Both chambers return next week.

Save the dates: House appropriations markups will take place on May 17-18 and June 7-8, will full committee markups on May 23-25 and June 13-15th.

CRS MODERNIZATION

As a former staffer and team leader at CRS, Kevin Kosar has strong personal attachments to the organization that he decided to leave a decade ago. He’s written for years about the inherent strengths and unique contributions CRS makes to Congress’s ability to perform its essential functions — and how both it and Congress could improve its performance. But when asked directly by CHA Modernization Subcommittee Chair Stephanie Bice to name the one thing the committee could do to improve CRS’s service to Congress he didn’t mince words: he replied “if you want to affect change in the most immediate way, you change leadership.”

Watch his full answer here. It’s worth 90 seconds of your time.

Kosar’s testimony came after the testimony of CRS’s Director Mary Mazanec, which met with a significant amount of skepticism from the committee. We could bore you with details about what’s failing at CRS: $20 million wasted on failed technology projects, high staff turnover, poor morale, low diversity, and a failure to modernize the agency’s products for today’s congressional users.

Many of these problems existed when the House Admin Committee held a hearing into CRS in 2019. Heck, it was a problem when Daniel hosted a panel discussion on CRS modernization in 2011. Having watched all the appropriations and oversight hearings going back 14 years, CRS leadership keeps saying it’s on top of fixing these problems but nothing ever changes. It’s almost like they’re trying to placate their overseers just long enough for committee membership to turn over. Hence the skepticism.

What was nice about the hearing were presentations from other witnesses: the liaison from the European Parliament who helped build their CRS (check out their website, and podcasts, and social media!) and a representative of USAFacts, which uses dashboards to provide data about America. All of this points to new ways of doing business. The EU conducted a multi-country survey before creating their legislative support office agencies. When was the last time anyone took an across-the-board look and reimagined what support to Congress could become?

As Kosar noted in his testimony, CRS has a quinquagenarian (i.e., 50-ish-year-old) enabling statute, some of which is outmoded. For example, there are no term limits for CRS’s director and only indirect control for Congress (via the Librarian). This means that, unlike other agency heads, bad leaders don’t just automatically exist without Congress acting. CRS’s statute also outlines a heavy support role for congressional committees — a role that has greatly diminished over time — where CRS could be the non-partisan staff that support committees in their tasks. The agency has largely become a helpdesk, and its management is unwilling to let staff use their expertise to provide real analysis to Congress.

The House Administration Committee should make a number of recommendations on how to improve CRS. (Here are ours.) For example:

• it should require regular public-facing reports on staff retention and employee satisfaction;
• collaboration with civil society on technology development, the publication of all its non-confidential work products online in web-friendly formats;
• the development of technologies that support staff and policy analysis; and
• a move to user-centered design.

Most of the major improvements in CRS over the last decade have been foisted upon the service, largely through the work of overseers and appropriators in collaboration with civil society. But it’s not possible to drag CRS into modernity. We’ve tried.

CRS needs leaders in the front office that embrace the future. Leadership that wants to modernize, not ice out the modernizers and punish the innovators. We agree with Kosar: CRS needs new leadership capable of devising and executing on a long-term vision for its service to Congress and understands getting the best out of a knowledgeable, highly-educated workforce.

We are having a bipartisan moment right now on what a modern Legislative branch looks like. This is one of the key building blocks. We eagerly await what will emerge from the House Administration Committee.

Continue reading “First Branch Forecast for May 1, 2023: Analyzing CRS” →

TOP LINE

Countermajoritarianism defined the week, as it has this Congress. House leadership unveiled an unserious debt limit proposal designed to hold their factions together while they hope Dems make an unforced error. Senate Republicans, meanwhile, stand athwart majority rule in the Judiciary Committee.

Senate Democrats can reclaim their power, but only if they stick together and only if they’re willing to replace rules created for antimajoritarian purposes long enough ago that we now call them norms. As for the House, little will change under the current majority until members believe their re-elections are imperiled more by intransigence than cooperation.

This week both chambers are in session Tuesday through Friday. A vote is scheduled on the debt limit bill on Wednesday, which is proceeding sans regular order.

The Senate Appropriations Committee will review the budget request of the Sergeant at Arms and the US Capitol Police on Tuesday. Wednesday, the Modernization Subcommittee of CHA examines the topic of modernizing CRS. On Thursday, the House Judiciary committee will hold its first hearing on section 702 of FISA.

The CRS hearing on Wednesday revisits an issue last addressed by the House Administration Committee four years ago: has CRS modernized to meet its mission? From where we sit, there hasn’t been much improvement in the last four years… or the last 20, and the high turnover rates and misaligned work products point to significant management problems. Don’t get me wrong, we love our former colleagues at CRS — those that are left — but it’s time to reform that agency and reconsider how support agencies collaborate to support Congress.

If you missed Friday’s event on Congress and AI, don’t worry, we’ll have video and slides by next week. Thanks to our partners at POPVOX and the Lincoln Network for co-hosting the event. (POPVOX did all the heavy lifting.)

NO FIGHTING IN THE WAR ROOM

Since before the last election, antistateist conservatives in the House GOP have sought to maximize their own power in both policy and process. They demanded the highly-aggressive political tactic of preventing a reset of the debt ceiling threshold unless everyone agrees to enact their entire legislative agenda in one fell swoop, pushing aside regular order in the “process.”

Note the irony: the previously marginalized MAGA faction used the rules of the Constitution, the House, and the Republican caucus to obtain a share of power — veto power — and now that they have it, they have abandoned regular order to pursue a maximalist agenda. That legislative agenda — all of it — is crammed into a single bill. It’s rule by defaultocracy. And it is happening without a single committee hearing. Without a single markup. Just secretive negotiations among the Republican five families that hot-dropped the whole enchilada in the chute direct to the Rules Committee.

It’s a true tip-of-the-hat from MAGA-and-friends to former Speaker Pelosi, who in her most iron-fisted moments never included all of her priorities in a single bill and held the full faith and credit of the United States hostage to move it forward. So long as McCarthy prefers to be Speaker over setting policy, that faction within the Republican House will retain their chokehold on power.

Those within the Republican party that disagree with elements of that agenda will stifle themselves out of fear of losing their next election. That’s how power works. Anyone who believes in the norms fairy will always get the short end of the stick. The players respond to incentives, which is another way of saying they’re shaped by the institutional rules, and the rules inside both chambers give a reactionary faction veto power. In this case, Republicans are apparently willing to allow a debt ceiling breach to occur to get their way. Anyone who tries a different path would risk massive retaliation, including the loss of their seat.

Republicans are counting on the press to treat this as a #bothsides issue. Specifically, they will point to a supposed-good faith negotiation effort that’s being unceremoniously ignored by President Biden and the Senate. This view will be validated by the Problem Solvers Caucus and the political press. It’s also the only play open to McCarthy if he wants to keep his office.

Democrats in the Senate will be squeezed both by Senate Republican unwillingness to undercut their House counterparts — many are just as afraid of drawing primary challengers — and because the Democratic coalition is predicated upon the support of a few senators that prefer the rules of the game to be rigged for an antimajoritarian coalition, in part because it’s helpful for their elections.

Republicans will move forward with a bill most of them wouldn’t want to become law, and will defend it because they want to avoid a primary challenge. When senators and the White House refuse to consider those measures, both because of their substance and the procedural posture of negotiating over the debt ceiling, they will be responding to their own political incentives. I fear that everyone will be willing to risk economic collapse to see what the political fallout will be.

As an institutionalist, I hate to say it, but this entire political fiasco almost certainly will require action from the Executive branch to avert financial armageddon. The only lawful mechanism available appears to be the trillion dollar coin. It’s best to use it sooner, when its unproven legal status will be less destabilizing than later. In a defaultocracy, the way out is through the ability to coin money.

We could talk about the substance with you. About how the $131 billion figure, and the three-odd trillion dollars saved, would be inconsequential in the context of the federal deficit and debt. Or that this is about income redistribution to the wealthy. Or that restoring some taxation would be a much better policy. Or, as Matt Glassman reminds us, CBO regularly updates an options guide on addressing spending. But none of this matters because it’s all about how factional dynamics are amplified within the two-party system rules that exist in both chambers.

Continue reading “First Branch Forecast for April 24, 2023: Norms and power” →

TOP LINE

Without unified majority control and frequent long-term absences, the Senate hasn’t been much more than a conveyor belt for judicial nominations this Congress. The possibility that Senator Dianne Feinstein may extend her absence and not return at all to the body potentially stalls out even that function as the Judiciary Committee deadlocks.

The committee has other matters to attend to as well, specifically the spectacular level of corruption at the Clarence Thomas household. We’re lucky that journalists can delve into the depths of personal favors at all because last year’s rushed NDAA ushered through a dreadful judicial security bill that will make uncovering justices’ conflicts of interest and impropriety that much harder. The Judiciary Committee, which nodded through the retrogressive provision, should undo the damage.

This week, the House and Senate return on Monday.

There are a ton of committee hearings this week, particularly for House appropriators. Of relevance to the Legislative branch, House Admin will hear from the House Sergeant at Arms on Tuesday about its strategic plan for this Congress. On Wednesday, the committee and House Oversight will hold a joint hearing on the data breach at the DC Health Exchange that has affected members and staff. Next week, House Admin will hold a CRS oversight hearing.

LETTING GO

Grounding power in seniority, as the congressional system does, has serious costs when the people essential to the functioning of a chamber are unfirm. Remember, for example, the sad story of Appropriations Chair Thad Cochrane. We have seen too often senators leaving long past their peak, their mental decline patently obvious if generally unreported in the press.

Despite the risks of retaining someone on A-level committees who already showed signs years ago of serious mental decline, the Democrats followed convention and retained Senator Feinstein on the Judiciary and Appropriations Committees. The now 89-year-old senator, the oldest serving member of Congress, mercifully is not serving as president pro tempore of the Senate, taking her out of the constitutional order of succession. The committees are stuck, however, which is relevant not only for judicial nominations but appropriations and the complicated context of the debt limit that hasn’t even begun to play out.

Continue reading “First Branch Forecast for April 17, 2023: Welcome back, Congress” →