Forecast for August 27, 2018. Rest in Peace Senator John McCain.

TOP LINE

Senator John McCain has died. We wish him fair winds and following seas and offer condolences to his family.

— McCain Senate Office Building? In his tweets commemorating the life of Sen. McCain, Sen. Schumer said he would introduce a resolution to rename the Russell Senate Office Building after McCain. Richard Russell was a Democratic lion of the Senate who dominated the chamber for 30 years — he served for almost 40 — and was that chamber’s leading opponent of the civil rights movement. He coauthored the southern manifesto with Strom Thurmond that called on southerners to use all lawful means to resist desegregation. He also chaired the Senate investigation into the Pres. Truman’s removal of Gen. Douglas MacArthur from command for insubordination, doing an excellent job of separating politics from policymaking.

— Edifice complex. In 1972, the old Senate Office Building and New Senate Office Building were named after Russell and Everett Dirksen via a resolution offered by Sen. Byrd. In an ironic twist, Senator Philip Hart, known as the conscience of the Senate, spoke out against the measure, arguing “it is unwise to anticipate history’s verdict.” In other words, he advised senators to look at the sweep of history and not choose a contemporary merely because of personal affection. The existing buildings were being renamed because a third Senate office building was under construction and the old nomenclature would not work. Why was it ironic? That new building was named in August 1976 after Senator Hart. Read the 1972 resolution and Senate debate here.

— Lying in state. Multiple news outlets reported Sen. McCain would lie in state in the rotunda. General speaking, that requires a concurrent resolution, i.e. a resolution passed by both chambers, but this CRS report explains how congressional leaders of both chambers have jointly authorized its use when Congress is out of session, such as for President Ford. Also note there’s a distinction between lying in state and lying in honor: President Ford received the former, Rosa Parks received the latter. NPR, quoting the now Historian emeritus for the US Senate, Don Ritchie, explained the difference: “When a member of government dies, if his casket is on display in a government building — including the Capitol — he lies in state. If his casket is in any other building, he lies in repose. If the person is not a member of government, he lies in honor.”

—  What will the Senate do? Upon the death of a senator, his or her desk likely will be draped in black, a resolution of condolence will be passed by the Senate (and sometimes by the House), and floor time is set aside for eulogies, according to CRS. The Senate may pay for funeral services; it’s up to the discretion of the Sergeant at Arms to pay for transportation, preparation, and disposition of the remains. The Senate may also pay for the costs of a delegation to the funeral; Sen. McCain will be buried at the Naval Academy in Annapolis, Maryland. It is regular practice for the Senate to give a “death gratuity” to the spouse, a gift of a year’s pay, or $174,000, in the following year’s appropriations bill. In light of modern insurance and the wealth of many senators, this gift has become controversial.

—  What happens to McCain’s staff? Personal office employees are kept on the Senate payroll for 60 days, operating under the direction of the Secretary of the Senate; it is unclear what effect the appointment of a replacement would have. In theory, committee staff are unaffected — McCain chaired the Armed Service Committee — but in practice they are subject to the whims of the new chair, who often brings in their own people. In both circumstances, this can work a hardship on staff, especially as hiring for offices is out of cycle and they risk losing their health insurance and having a difficult job search. This may be exacerbated by the retirement of the junior senator from Arizona, Jeff Flake, who might have been expected to absorb some staff. Senator McCain’s personal office has had a slightly higher than usual staff turnover rate, at 28% in 2018, which is at the median rate for the Senate as a whole, but his turnover rate hasn’t exceeded 20% for the last decade, according to a review of Legistorm data. Some staff have served McCain for years, and their departure would be a huge loss to the Senate as an institution; he was first elected to the Senate in 1986.

—  What happens to McCain’s seat? In Arizona, Senate vacancies are filled by the governor, and the appointee will fill the seat until 2020. State law requires that the replacement be of the same party as the deceased senator. Governor Ducey says McCain’s replacement will not be named until after the funeral.

LEGISLATIVE CAPACITY

Senator Warren announced an ambitious, far-ranging government reform legislative package on Tuesday, the Anti-Corruption and Public Integrity Act. In her introductory speech, Sen. Warren describes a crisis in democracy: the story of how 73% of Americans in 1958 trusted the government to mostly do the right thing but today only 18% feel that way. She argued “people don’t trust their government to do the right thing because they think government works for the rich, the powerful, and the well-connected, and not for the American people.” In her view, this opens the door to authoritarians, and she lays out what to do to restore faith in democracy. (Watch or read the speech.)

— The broad legislation addresses improving congressional staff pay and retention, broadening the definition of lobbying and improving reporting, strengthening and centralizing ethics oversight in an Office of Public Integrity, closing the revolving door, fixing open record laws, empowering inspectors general, increasing congressional committee transparency, establishing an Office of Technology Assessment, and addressing conflicts of interest. It does much more on a wide variety of issues that are out of scope for this newsletter.

— The political ramifications of Sen. Warren’s legislation are significant. They include a litmus test on reform that all other likely (Democratic) presidential candidates must support to be credible. The reforms go significantly beyond the “Better Deal” rhetorical platform announced by Minority Leader Pelosi by spelling out how to reform our political system and creating a gold standard anti-corruption platform that candidates for congressional office should embrace— especially those who wish to serve in leadership.

— Sen. Warren consulted widely in drafting her legislation and these recommendations reflect strong reform ideas, including some that have been advanced by members of both parties. The closest analogue to this legislation is the Transparency in Government Act, introduced by Rep. Quigley for the last few congresses, which contains a large number of transparency reforms but is intended as a storehouse of pre-vetted legislative ideas that can be passed piecemeal when the opportunity arises.

— Non-Trump Republicans could embrace the platform as well, if not necessarily its proponent, which could be wise politically as an anti-corruption platform has strong public support and Republicans are particularly vulnerable, according to this July GBA strategies poll of battleground states.

Appropriations are in (regular) order. Senate leaders teamed up to fight off “poison pill” amendments to the labor, health, and education spending bill and acted similarly on other appropriations bills in an unusual return to regular order. This bipartisan cooperation is particular to this appropriations process and is thought to be an effort to pre-empt Trump’s threats to shutdown the government.

— While appropriations bills covering 6 of the 12 issue areas have passed both chambers (Defense, Energy, Leg Branch, Military, Interior, FSGG), and committees of jurisdiction in both chambers have passed the other 6 (Ag, CJS, Homeland, Labor, State, T-HUD), we’re still waiting on the reconciliation legislation, which negotiators from the House and Senate likely have been working on during the summer recess. When the House returns, only 12 session days are left before the end of the fiscal year.

I’ll take that to go: Almost half the people reading legislation on Congress.gov are doing so on their phones. This has significant implications for how the Library of Congress, and the legislative branch generally, making information available to the public and to congressional staff. It strongly suggests that PDFs should not be the only method of publication.

ETHICS

Rep. Hunter indicted. Rep. Duncan Hunter was indicted last week for wire fraud, falsifying records, campaign finance violations, and conspiracy. Hunter and his wife used campaign money to pay for personal expenses, like international vacations and $17,000 worth of items from Costco and Walmart. They claimed the expenditures were campaign related or for charities like the wounded warrior program. OCE referred the case to the House Ethics Committee in August 2016; last year DOJ asked Ethics to defer while the DOJ investigated. True to form, Rep. Hunter is now blaming his wife for handling his finances; it appears she used funds for personal purposes, but it appears Rep. Hunter did so as well.

— Warning signs. Rep. Hunter’s office had a huge spike in staff turnover ratesin 2017, to 37.5%, more than triple each of the two prior years, according to an analysis by the R Street Institute’s Casey Burgat. These spikes can be indicative of serious problems in a congressional office. Reps. Collins and Ellison, both of whom are facing their own ethics challenges, also had unusually high turnover rates; Rep. Collins had the tenth highest turnover rate in 2017; and Rep. Ellison is at 88%, although he is running for another office.

— Off committees. Speaker Ryan said Hunter will be removed from his committee assignments until the issue is resolved. As we noted previously, Speaker Ryan can’t remove members from standing committees (although that message hasn’t made it to headline writers). Rep. Hunter stepped down from those assignments, although there’s no indication on his official webpage, Facebook, or Twitter accounts. Likely his message will be read by the Clerk when the House resumes.

Rep. Cardenas in trouble. A women accused Rep. Cardenas of drugging and molesting her in 2007 when she was a teenager; her father worked for Cardenas on the Los Angeles City Council and on Capitol hill. Politico reported Cardenas set up a legal defense fund to defray lawyers’ bills, where contributions of up to $5,000 are allowed, although the document isn’t published online anywhere and we have yet to make a trip to the Clerk’s office to get a copy. Politico further explained that the Ethics Committee will likely consider the matter outside of its jurisdiction because it predates Cardenas joining Congress; it also noted that lobbyists and foreign agents are barred from contributing to the defense fund, and contributions must be publicly disclosed. Rep. Pelosi has called for the Ethics Committee to investigate, and they have the power to do so.

Ethics on Self-Promotion. In the wake of its ham-fisted handling of the allegations against Rep. Mullins, where an Ethics Committee staffer okayed his endorsing a business and then the Committee decided such behavior is not proper, the Committee has now released guidance that says: “[A]s a general matter, Members should not be actively involved in personally selling or endorsing goods or services in which the Member or the Member’s family has a financial interest.”

OVERSIGHT

False phishing alarm.The hacking attempt on the DNC last week was not a Russian attempt to gain access to the committee, but actually just a test, according to party officials. Hackers hired by a state branch simulated a phishing attack, but forget to convey this information to the national office.

You’re too late to sign up for a bootcamp on bipartisan oversight hosted by the Levin Center, Lugar Center, and the Project on Government Oversight, but don’t feel badly: you’re not alone. Oversight is at a low in Congress, but applications for the free boot camp are at a high, with this years’ applicant pool exceeding 100 (the program accepts 30 people). The coordinators believe bipartisan oversight is possible, effective, and necessary, so if you’re a Hill staffer that agrees, keep your eye out for the next one.

Are you now or have you ever been a member of the press? Department of Defense staff conducting security clearance reviews have been inappropriately asking interviewees whether they’ve ever been in contact with the press. At least one person, who answered that they had, was told it would affect whether they could get a clearance.

LEGISLATIVE PROCESS AND POLITICAL SCIENCE

Riding into the sunset: Policy riders aren’t allowed in appropriations bills or amendments, but almost every appropriations bill has them. Why? In part because senators who have spotted violations use them as leverage to protect their own amendments. James Wallner lays out the rules of the game.

Town halls in decline. Members of Congress are holding fewer in-person constituent events. Over August recess, members scheduled 180 in-person events. During the same time period two years ago, members held 450 events; and four years ago they held 550. While Members may still be meeting with the constituents, they likely are doing so in formats that they can better control, further exacerbating the power differential between representative and constituent. Members may be afraid of losing control at town halls, or just be afraid, but there are best practices to keep things on track.

Playing the long game: An unusually high number of federal judges have been confirmed by the U.S. Senate in the 115th Congress, 53 according to the U.S. Courts, and many of them have an unusually strong ideological bent, the New York Times explained in a deep dive into how Trump is remaking the judiciary. Most notable are the decline of the Senate institutions that historically kept judicial nominations within a more moderate range: the demise of blue slips, Republican delays in the confirmation process under Obama that triggered a lowered confirmation threshold, and the blocking of Merrick Garland, all of which is attributable to Sen. McConnell. For a comparison of confirmation rates under various presidents in their first year of office, see this CRS report.

— The Federalist Society is featured prominently in the article, which is highlighted for both its role in growing the conservative legal movement and pushing the confirmation of specific individuals as federal judges. Also notable is the absence of any mention of the American Constitution Society, which was created to be its liberal analog. There are mentions of Demand Justice, a well-funded recently-created c(4) organization, led by a former Hillary Clinton spokesperson who previously worked for Chuck Schumer and most recently was a TV commentator, but it apparently has not chalked up many successes. If you’re interested in the topic, I highly recommend the book “Rise of the Conservative Legal Movement.” (Note: Demand Justice is unaffiliated with Demand Progress.)

— As a side note, CRS just released a 190-page report on Judge Kavanaugh, his jurisprudence and likely impact on the Supreme Court, just in time for the start of confirmation hearings in September. As regular readers know, there’s significant controversy in that much of the material concerning Judge Kavanaugh’s time working for the Bush administration still is not available to senators (and the public) in advance of the hearings, with particular regard to his views of the separation of powers between the legislative and executive branches.

TRANSPARENCY

Pick up the pace. Last week the Free Law Project announced CourtListener.com now has an alert system to notify users whenever there’s a new filing in a case in PACER.

Former NSA contractor sentenced to five years. Last week Reality Winner was convicted for leaking a classified report to a news organization; the report was on Russian attempts to interfere with Florida voting software before the 2016 election. Her 5 year sentence is the longest ever imposed for leaking information to the news media, according to the Washington Post. It’s ironic that she’s being punished for sharing information with the American people that we need to know and wouldn’t have been made publicly available otherwise. In the absence of a presidential pardon, perhaps a private law could help redress this imbalance?

TECHNOLOGY

You look so familiar: Russian hacking group APT28 attacked the U.S. Senate and conservative think tanks critical of the Kremlin last week. The group, which is tied to a Russian intelligence agency known for interfering in the 2016 election, created fake websites similar to think tanks’ real sites to intercept traffic and steal users’ passwords and other credentials, according to Microsoft. This has got to be the tip of the iceberg.

(Facebook) Friend or Foe? Last week Facebook removed 652 fake accounts and pages tied to Russia and Iran carrying out political influence campaigns in the US, UK, Latin America and Middle East. Google removed 58 accountslinked to Iranian misinformation campaigns as well. These attacks are clearly perceived as an effective tool.

You won’t believe this. The DOJ says a “glitch” kept it from reviewing all of its email accounts when requests were made via FOIA or in litigation, according to the Daily Beast. DOJ made this admission in litigation, but has declined to comment because its investigation is ongoing. It could be me, but this sounds like a request for an invitation to appear before an oversight committee.

OMB belatedly is requesting comments on a proposed rule that updates its FOIA regulations, due by Sept. 24. OMB seeks to update its 30-year-old and very much out of date fee guidelines, which are in conflict with federal statute and court opinions. It’s likely the update to the provisions promulgated in 1998 was prompted by Cause of Action’s petition for rulemaking. As of March 2017, 61 out of 99 federal agencies had not updated their FOIA regulations to comply with the 2016 FOIA Improvement Act, despite a December 2017 deadline to do so, according to the National Security Archive. For what it’s worth, when I was at CREW, we published a collaborative version of model FOIA regs.

POLITICS

The Republican party is undergoing a transformation to Trumpism, and it’s unclear what will happen to the party’s former stalwarts, the Associated Press reported. “Pragmatists” like Rep. Walden of Oregon are tied at the hip to Trump, sharing voters who no longer are motivated by traditional Republican messages. Will Walden be able to survive as his own person or will he too kowtow to Trumpism?

Rep. McCarthy is profiled by the Washington Post as a possible next Speaker.

ODDS & ENDS

You can’t buy my love, but what about my political support? Analysis of partisan spending based on new google ads data from Statista Charts shows who’s trying the hardest to buy your vote. The biggest spender in the second and third quarters? Trump, and this time it’s not even close.

Can you hear me now? Remember Scott Pruitt’s $43,000 phone booth? It turns out he used it to call the President one time for one five minutes — at $8,600/minute.

LegBranch has published its weekly top reads on Congress.

Louisiana’s DC Mardi Gras is paid for by Leadership PACs, KARD-TV reported.

CALENDAR

The House is not in session this week. The Senate resumes on Monday at 4.