Forecast for October 22, 2018. The Tale of Congress’s Incapacity, Plus Judiciary Moves Nominees in Recess.

THE TOP LINE

Decades of institutional deterioration has left lawmakers in the dark on technology. The Lincoln Network’s Zach Graves told the tale in ten charts. (We helped). Bookmark it and visit Future Congress for more.

The Senate Judiciary Committee advanced six judicial nominations while the Senate was in recess in a further destruction of institutional norms. Nomination hearings during recess always have had the assent of the minority, which Feinstein tweeted she did not give. Another hearing is set for this Wednesday. Also recent norms casualties: the blue slip process, the refusal to give Merrick Garland a hearing, and whatever it was that happened with Kavanaugh.

LEGISLATIVE CAPACITY

The Senate gives considerably more representation to white Americans than to black and brown Americans. This is in part because 4 million Americans in Puerto Rico and DC, whose populations are more than 90% black or hispanic, don’t have congressional voting power. The Times’ David Leonhardt argued it’s time for statehood. Political scientist Matt Glassman, who wrote his doctoral dissertation on statehood, took issue with how the issue is being discussed — while acknowledging strong arguments for DC and Puerto Rico statehood — and revisited historical fights and how the founders botched the statehood-granting process.

Hundreds of House races haven’t been competitive for decades, according to Time’s Chris Wilson. His solution? Increase the number of seats in the Houseto 930. We’re skeptical. The most likely result would be disempowering the rank-and-file. A better approach, in our view, is proportional representation inside each state.

Bring in the lawyers? In addition to hiring more policy staff generally, R Street argued that Congress needs to do more to hire and retain young lawyers.

LEGISLATIVE PROCESS, POLITICS, AND POLY SCI

Many Members are clamoring for a spot on the House Intel Committee. The committee was highly political in the 115th Congress and will have high turnover this cycle; its members are appointed by the Speaker and Ranking Member. We have recommendations for fixing HPSCI, including who serves on it, that were released prior to the current imbroglio. Also, FWIW, HPSCI membership isn’t always in compliance with House rules.

The race for Appropriations chair is heating up. Four senior Republican lawmakers, including Rep. Kay Granger, want the position but Rep. Tom Graves, a younger member allied with Rep. Kevin McCarthy, has been campaigning hard.

The never-ending earmark war. Steven Gordon argued that earmarks get a bad rap and a ban puts the power to allocate dollars in bureaucratic hands. Unaddressed in his summary (but perhaps in his paper) is the effect inside the chamber: does it centralize power in the hands of leadership?

Women legislators aren’t different from men legislators when it comes to collaboration.

The UK’s House of Commons Speaker will step down next year after failing to address harassment of staff at Westminster. Critics say someone who tolerated a culture of abusive behavior is not fit to overhaul Commons work practices. Incidentally, the Senate still is stalling on sexual harassment reform legislation.

OVERSIGHT

Former Senate Intel Committee staffer James Wolfe, who was that committee’s director of security, plead guilty to making false statements to federal agents in connection with an investigation into leaks to reporters.

The Trump administration has a new tactic for intimidating the press. Five sources have been indicted in the last two years; the government used financial laws as the basis for the prosecution, whereas the Obama administration (which was no angel) used the 1917 Espionage Act. Of course, Obama didn’t incite violence against reporters, and Trump just praised Rep. Gianforte for assaulting a reporter.

Muzzling the Interior IG. The White House announced and apparently now has backtracked on replacing the Interior IG with a political appointee. Interior Secretary Zinke has 14 ongoing investigations and this was widely seen as an effort to stifle inquiries. This all points to a need to insulate IGs from political interference.

CRS has a new primer on Intelligence Community whistleblower protections. Whistleblowers often suffer retaliation, and civil society has flagged that there’s real concern that intelligence community Inspectors General don’t protect whistleblowers. Relatedly, we proposed the House create an office of whistleblower ombudsman to help smooth the way for whistleblowers to communicate with Congress and to train staff on how best to protect whistleblowers.

ETHICS

Rep. Chris Collins, who’s facing insider trading charges and is currently running for re-election, will have his day in court on February 3, 2020.

POLITICS

Pelosi said she might be a short-term (transitional) speaker should the Dems regain the House. Why is it hard to find successors? With no path forward, Dem rising stars in the House are heading for the exit. Again.

The Atlantic profile on Newt Gingrich tracked the former House speaker’s major role in the rise of Trump. Gingrich’s “strategic obstructionism” played a major role in breaking Congress.

TRANSPARENCY

FOIA lawsuits filed by nonprofit and advocacy organizations seeking federal government records more than doubled since Trump took office. The annual nonprofit filing rate topped 500 for the first time in March of this year, a dramatic increase from the 47 cases filed in the first year of the Bush administration, 17 years ago.

Who owns the official annotations of the law? The 11th Circuit held they are an exercise of government power, belong to the people, and no valid copyright interest can be asserted on the annotations. This is a big deal. Charles Duan explained here.

Federal circuit briefs will be made available to the public immediately.

TECHNOLOGY

The Bulk Data Task Force, which focuses on technology inside Congress and is composed of staff from inside Congress, will have its quarterly public meeting on Nov. 1 from 2-3 pm. Email me if you’re interested.

The Library of Congress will launch a crowdsourcing program with a focus on improving the transcription and tagging of Library records. Our own civil society crowdsourcing project, not affiliated with the Library’s, means that you can look up and read every single law from 1789 to present. I hope the Library’s efforts will go towards making primary legal information available online and in useful forms.

CRS added only 26 reports to its reports website this week, bringing the total on Congress.gov as of Tuesday to 915. In the prior week it added 262 reports. By comparison, EveryCRSReport added 9 documents this past week, bringing its total to 14,629. This is not an apples-to-apples comparison, as EveryCRSReport contains more kinds of CRS documents that Congress.gov, and Congress.gov has a huge backlog it is working through. CRS said they will publish 400 reports each month until the middle of next year.

PHYSICAL AND CYBER SECURITY

Want to know what the Capitol Police are up to? Us too. We see press refer to number of arrests by USCP and we’re interested in the totals and charges. We’ve been calling the Capitol Police, but there’s been a lot of redirecting and not a lot of answers. We’ll keep you posted.

“I was on the other side of that door with the Capitol Policehelping to deadbolt the entrance from an angry mob.” The far-right “Proud Boys,” which has a reputation for violence, yelled expletives at and followed Rep. Pelosi at a campaign event in Miami (watch the video); their actions earned a rebuke from Rep. Scalise.

Police investigated a letter sent to Senator Susan Collins’ home last week that the sender claimed contained the toxin ricin.

The DNC’s Chief Technology Officer, Raffi Krikorian, talked to Politico about the overhaul of digital security at the committee and its sister organizations. We remain very concerned about the security of federal campaigns. Read this Haaretz report on the state of private sector cyber-spying.

Sen. McConnell and Sec’y Chao were confronted by diners at a Kentucky restaurant.

ODDS & ENDS

Want to track federal agency requests to destroy records? AltGov2 will post “every agency’s proposal for records destruction/retention along with the National Archives’ response.” The government does not release the proposals unless they are requested, which is what AltGov2 is doing.

The Heritage Foundation had a closed door “training academy” for judicial clerks that had eye-raising secrecy and loyalty requirements and undisclosed donors. Instilling conservative values in these clerks who help write court decisions and are supposed to reflect the perspective of the judge who hired them could be a threat to the nonpartisan nature of the judiciary. Heritage reportedly said it is suspending the program.

CALENDAR

The House and Senate are out, but apparently not the Senate Judiciary Committee.

While you await their return, on October 30th at 12 in the Capitol Visitor Center room HC-8, R Street is hosting, “The Threat of the Congressional Primary and its Haunting, Driving Influence on Incumbents.” The event will examine the extent to which congressional primary elections are a leading cause of polarization on Capitol Hill and features R Street’s James Wallner and the Brookings Institution’s Elaine Kamarck.