TOP LINE
With hours to spare lawmakers passed a short-term funding agreement to keep the government running through December 20th, but in doing so unnecessarily violated regular order and rammed through an unrelated authorization provision. Also, word is out the House and Senate reached an agreement on the 302(b)s, but we don’t know what the agreement is. More below.
Does Congress have the science & technology chops it needs in 2019? No, said the National Academy of Public Administration, which studied the issue at Congress’s request. We discussed their findings and conclusions at the Bipartisan Policy Center last week. Watch the video. Every study we’ve seen so far says that there’s a gap in Congress’s tech capacity and that the leg branch should consider creating a new entity.
House Repairs: 15 Members submitted ideas for the Committee on House Administration’s Member Day hearing, with six testifying in person. See the overview below.
The House calendar for 2020 is out. Notable about the calendar: it doesn’t address member concerns about travel and keeps in the House in session for weeks on end.
Good news for fans of government accountability: Rep. Mike Quigley re-introduced the omnibus Transparency in Government Act (HR 5150), a pre-vetted menu of ideas designed to be taken off the shelf when the next scandal hits.
A former Capitol police officer was denied compensatory damages in her sex discrimination lawsuit against USCP, however the jury found that sex discrimination was a factor behind her termination. Discrimination at USCP is a recurring issue.
Senate Rules Committee reported Hugh Halpern’s nomination for GPO Director; the next step is a full Senate vote. Three Library Associations endorsed him; we do too. (Oddly, we were turned away from this past week’s committee vote by appointments desk, which didn’t know it was happening.)
Rep. Carolyn Maloney will succeed the late Congressman Cummings as House Oversight Chair. She bested Rep. Connolly before the Democratic Steering Committee 35-17; and again in a caucus-wide secret ballot by 133-86.
REGULAR ORDER
When Lawmakers passed a short-term CR last week, it provided a perfect case study in how leadership controls the process.
• The 72-hour rule. House Rules require legislation be available online 72 hours prior to floor consideration. This provides lawmakers with an opportunity to understand the legislation and to collaborate on how to respond. Nonetheless, the CR was published online on Monday at 3:37 pm with the vote on the House floor on Tuesday at 1:47 pm. That’s not even 24 hours. (Democrats had put the 72-hour online publication requirement in Section 102 of their rules package, expanding it from the 3-legislative days previously required.) Everyone knew, of course, that the CR was set to expire on Thursday, which meant that publishing the text so late in the game set up a conflict between following the rules (and giving members a chance to react) and a possible (short) government shut-down. Fear arising from the potential shut-down was used to force the CR through quickly, waiving the rules — and lo and behold, the bill text contained non-germane provisions, including an extension of the widely-controversial USA Patriot Act. In other words, it was a squeeze play.
• The Patriot Act in the Rules Committee. To get to the floor you have to go through the Rules Committee. And the Rules Committee meeting to mark-up the resolution to control debate on the CR started a mere two hours after the bill’s online publication. Even so, Rep. Amash somehow managed to figure out what was happening and offered an amendment to strike the extension of the USA Patriot Act. AFAICT, the committee did not allow consideration of the amendment. The short term appropriations bill before the committee contained a three-month extension of the Patriot Act — even though the CR itself only extends government funding for one month. Weird, right? And, the House would be authorizing on an appropriations bill, which is a legislative no-no. The question of the Patriot Act extension embodied in section 1703 did come up very briefly in committee debate, and it seems that the committee members may not have truly understood exactly what they were voting on.
• The Patriot Act on the floor. The Patriot Act provisions were not set to sunset until mid-December, so there was no reason to jam that provision into this bill when, if there were support in the House for an extension, it could be handled through regular order, i.e., its own bill or legislation with appropriate notice. The vast majority of Democrats oppose the Patriot Act provisions, but House and Senate leadership are generally supportive of giving the executive branch broad surveillance powers. So even though it was known for years when the Patriot Act would sunset, and the Patriot Act is unrelated to the appropriations bill, an extension was jammed through.
• The squeeze play worked in the House. Lawmakers had a very short window to consider the bill with the surprise surveillance provisions added. In the House 192 Members (including 10 Democrats and Rep. Amash) voted against the bill. Had rank-and-file Democrats had a little more time to think it through, or perhaps to refine their political calculations, it’s likely they could have forced the provision to be stripped from the bill, or at least forced a debate so they could express their opposition. Even allowing a vote on the Amash amendment would have allowed Democrats to show their opposition to the Patriot Act. Instead, leadership got almost perfect party unity, but at the cost of muffling the views of a majority of Democrats and likely a majority in the chamber.
• In the Senate, lawmakers could have filibustered the legislation, but only at the risk of shutting down the government. They also were squeezed. This may have contributed to warding off a bipartisan amendment from Senator Lankford that would have implemented automatic CRs with some noxious provisions. OTOH, the Senate had contemplated amending the House approps bill and sending it back.
MORE MONEY MATTERS
Rep. Nita Lowey has a thought-provoking op-ed arguing against automatic CRs, which she says would weaken Congress’s power of the purse and shift power to the president. She writes that an automatic CR would increase the likelihood of a government shutdown by removing the pressure to make timely spending decisions. (This is the inverse of the squeeze play, described above.) She persuasively argues that automatic CRs favor the status quo, prevent Congress from shifting funds to priorities, and ultimately would underfund the government. It also would place more power in OMB’s hands.
This is your weekly reminder that before regular order spending bills can be passed, appropriators need to agree on topline spending numbers for each appropriations subcommittee—known as 302(b)s. Apparently the Chair of the House and Senate Appropriations Committees reached an agreement this weekend on those numbers, but what agreement did they reach? Your guess is as good as mine. Remember, Congress historically gets by far the smallest slice.
Check the math, do these numbers look right to you? Casey Burgat notes that Congress has cut its own resources for short-term political gain, and in doing so has conferred policy making decisions to unelected officials in the Executive Branch.
Investing in the Legislative Branch isn’t just the right thing to do, it’s a money saver. The Government Accountability Office’s annual performance report, which came out this month, shows that GAO alone yielded a return of about $338 on every dollar invested in FY 19. The report says GAO expanded its focus on cybersecurity by hiring roughly 30 new experts.
BUILDING A STRONGER CONGRESS
Working in the House is hard, and not just for reasons you’d expect. Testimony at last week’s House Admin. Member Day Hearing revealed problems including Members stuck in elevators; staff in some offices resorting to heaters and blankets to fight off HVAC issues; and vermin. Rep. Tom Rice also touched on issues with the Cannon building renovation, namely costs overruns. Kudos to Chair Lofgren, RM Davis, and the committee for allowing these issues to be raised.
Members also pitched some great ideas to make the institution work better: Rep. Takano highlighted efforts to revive the Office of Technology Assessment; Rep. Moulton identified a bunch of small fixes with big impacts (e.g., creating an online system for cosponsors); Rep. Phillips explained the benefits of a bipartisan freshman orientation process; and Rep. Amash highlighted the Searchable Legislation Act, which would require every bill, resolution, and document produced by Congress to be created, transmitted, and published in a searchable electronic format.
OVERSIGHT & TRANSPARENCY
Where are the watchdogs? More than 10 of the 74 offices required to have a watchdog lack permanent inspectors general, according to the Project on Government Oversight’s IG vacancy tracker. The Inspector General Protection Act, which passed the House in June, would require the president to report on vacancies lasting longer than 210 days and notify Congress if there is a change in status for an Inspector General. While the IG vacancy issue isn’t unique to the Trump administration, the misconduct in the Administration makes the need for these watchdogs all the more pressing.
The Senate is not a potted plant, at least when it comes to digging into the whistleblower complaint. (Do we need to say which one?)
• The Supreme Court temporarily halted the court order requiring Trump’s accountants to give his tax returns to Congress. The House is urging SCOTUS to put POTUS on notice it must comply—and quickly.
• The DC Circuit court heard arguments on House Judiciary’s case to obtain grand jury materials related to the Mueller Report. Mike Stern has the rundown.
POLICE & SECURITY
We’re resuming our weekly round up of USCP arrests. Notable this week, a four day hunger strike in Speaker Pelosi’s office culminated with nine protestors getting arrested, an individual tried to bring a gun into the Russell building, and a pot possession arrest.
The Trump supporter who threatened to kill Representative Omar has pleaded guilty to threatening to assault and murder the freshman congresswoman and for being a felon in possession of a firearm, the Boston Globe reported. The House Sergeant at Arms noted the “number of threatening communications [to House Members] has increased three-fold over the past few years.”
The threats can be directed at Members on both sides of the aisle: a man was sentenced to five years for leaving menacing messages for two House Republicans, Minority Whip Steve Scalise and Rep.Cathy McMorris Rodgers (who was also in the Republican House leadership at the time of the voicemails).
ODDS & ENDS
Rep. Debbie Wasserman Schultz has entered the race for Appropriations Chair. The position will open up in 2021, when current Chair Nita Lowey retires. Reps. Marcy Kapture and Rosa DeLauro previously announced their candidacies.
Coming soon: a Federalism Data and Advanced Statistics Hub. NSF is funding Open States to work on projects like restoring historical legislator data, completing of full text search work, and restoring of historical bill /& vote data. This is good news for state legislative info.
Copy, Paste, Legislate. Every year thousands of pieces of “model legislation” are drafted by private interests and handed off to state lawmakers to be introduced. See which of these copycat bills made it into law in your state using the Center For Public Integrity’s tracker.
Open Courts? Fix the Court ranked appellate courts across various measures of public access like timely broadcast access, prompt release of calendars and opinions, and frequency of public communications. Out of a max score of 21 points, SCOTUS was at the bottom with 6.
The APSA Task Force Project on Congressional Reform released a report examining the state of Congress and possible reforms.
Members of Georgia’s congressional delegation gathered Tuesday to pay tribute to retiring Sen. Johnny Isakson.
CALENDAR
With recess the calendar is a little light. Here’s what to look out for down the line.
• The New York Times is hosting a panel, “Women of the 116th Congress” on December 5th at 6:30 at the Newseum. They will be talking to Reps. Susan Brooks, Sharice Davids, Carol Miller, and Lauren Underwood.
• The FOIA Advisory Committee will hold a public meeting on December 6 from 10-1. You must register to attend by December 3 by clicking this link, the proceedings will be live-streamed and the agenda will be online.
• The Advisory Committee on the Records of Congress will hold its semi-annual meeting on December 9 from 10-12:30. It’s open to the public. Contact sharon.shaver@nara.gov for more info.
• An IG report on FBI violations of surveillance laws in 2016 is expected to come out in December. CIGIE Chairman/ DOJ Inspector General Michael Horowitz will testify before the Senate Judiciary Committee about the report on December 11th.
• The Levin Center will host an academically-oriented conversation on Congressional oversight of science and tech on December 6.
Have an announcement? Send it to amelia@demandprogress.org.
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