Forecast for June 29, 2020

THE TOP LINE

Musical chairs. The House of Representatives will have new committee chairs in the 117th Congress, but how will they be chosen? That’s a difficult enough question that we dig into it below.

NDAA. House Armed Services will markup the NDAA on Wednesday; on Monday, the Senate will resume consideration of the motion to proceed on its NDAA, with floor consideration expected the week of July 20th. Last year’s bill authorized ~$740 billion in spending.

Approps. House approps subcommittee markups are almost here, with the first markup on July 6. We summarized the schedule last week based on Chair Lowey’s Dear Colleague letter, but we couldn’t find a public notice. The Senate is still TBD, and rumors are there’s a CR in our future. The big question: what’s the top line numbers for the approps subcommittees? Meanwhile, we are gathering Leg Branch Approps docs here, including what happened in FY 2020, plus our wish list.

DC statehood. There’s a great story that someone should tell about how Del. Eleanor Holmes Norton got and won the House vote on DC statehood. I am personally fascinated by the 9 Democrats who voted in favor of the motion to recommit and the two RI senators who have yet to speak up.

Is it the fourth? It’s this Saturday, although Independence Day should really be July 2 because that’s the day the Continental Congress voted. Here’s the original roll call vote. In celebration, it finally is infrastructure week in the House, with a vote expected on H.R. 2.

CONGRESSIONAL OPS

The Fix Congress committee held a virtual discussion on boosting internal expertise in Congress. IMO, this is a key issue. In December, the House passed a SCOMC resolution that, among other things, mandated reports on items like payroll and tracking lobbyists. We calculated the deadlines for each leg support office and agency on when those reports are due. The next big set of reports is due by July 8 — paging CAO — kudos to the House for directing that the reports be made publicly available.

Members have been casting their votes through proxies; Brookings breaks it all down in a new report. Top findings: only 1/4 of Dems have designated proxies; proxy selection is correlated to ideology; Members are more likely to vote by proxy if they are older or further away; and a handful of Members are disproportionately designated as the proxy voter.

• Given the limited use of proxy voting, the facts may undermine the Republican lawsuit as least as pertains to the argument that a quorum is not present. It would be fascinating to understand whether/how the proxy voting process has affected votes — both their outcomes and frequency.

• COVID. It shouldn’t surprise anyone, but the second wave of COVID-19 cases is hitting hard. The House and Senate must be ready for sustained virtual operations, where the vast majority (if not all) members are not present, but the House is only half-way there and the Senate isn’t there at all.

When it comes to diplomacy, what is Congress’s role? Ryan Dukeman has an excellent article on the legislative branch’s diplomatic arms and the circumstances where Congressional diplomacy can be most effective.

Confederate statues. Mississippi — Mississippi!! — has voted to change its state flag, which displays the confederate battle emblem. How much longer until Sens. McConnell and Blunt allow Congress to remove its confederate statues from public view? 

CIVIC TECH

Citizen co-sponsors. In advance of the Justice in Policing Act vote, Majority Leader Hoyer announced a new microsite, JusticeInPolicing.us, where the public can learn about the bill, submit comments, and “co-sponsor” the legislation; 1,600 people have done so. In essence, it is a public comment and list-building website. In 2013, then-Majority Leader Cantor used cosponsor.gov for his citizen co-sponsor project, which allowed the public to co-sponsor any bill under consideration in either chamber. Public comments are nothing new, but what’s interesting is a Member office encouraging direct online communications and making the contents of those communications public.

Citizen co-drafters. Over the last dozen years, there has been a lot of innovation around getting people to co-draft legislation (which is a harder version of public comments). Notable stand-alone examples include Sunlight Foundation’s publicmarkup.org, Rep. Issa’s efforts on SOPA-PIPA at keepthewebopen.com, and the OpenGov Foundation’s Madison Project. The most visible iteration of government-as-a-commenting-platform in the US was run by the Obama administration, where if enough people signed-on to a question the administration committed to answering it; the administration later reconfigured the project so that only large organizations could drive enough votes to meet the threshold.

I could go on and on about successful, almost successful, and failed efforts to facilitate constructive public engagement in the political process and civil society efforts to facilitate governance, but there’s a lot to cover and I’m trying to keep the newsletter short. For now, kudos to Hoyer’s office for keeping this experiment going. This is all made possible by Congress publishing legislative information as data.

CHOOSING CHAIRS

There will be many new committee chairs in the House, but the process by which chairs and members are chosen is opaque at best, and largely governed by party rules. Unlike House Republicans, which publish their conference rules online, House Democrats do not publish their caucus rules — despite repeated requests and a pledge to consider doing so— but we obtained their rules from the 115th.

House Dem Caucus rules only allow members of the Steering and Policy Committee the power to nominate chairs of the Standing Committees; the Speaker recommends the chairs of Rules and House Admin and chooses select committee chairs. Needless to say, in the modern House the Speaker chooses many Steering and Policy Committee members and effectively can control much of the process behind closed doors.

We haven’t found a current list of members of the Steering and Policy Committee. CRS’s amazing Judy Schneider, who retired in 2019, wrote a biannual report on its members, but CRS apparently stopped updating the report when she left. Alas, most older reports aren’t on CRS’s website, but we have some of them at everycrsreport.com. Speaker Pelosi has publicly announced members from time-to-time, but we could not find an instance for the current Congress.

Compounding matters, per the caucus rules, the Steering and Policy Committee apparently have a separate set of rules and keep a journal of their proceedings. I have never seen those rule. (BTW, we do have suggestions on modernizing the caucus rules.) Issue One has an extensive report from 2017 on how much money Members must “donate” to the party in order to serve as committee chair or on a particular committee.

Why does this matter? With the apparent defeat of Rep. Engel, the current Foreign Affairs chair, the retirement of Rep. Nita Lowey, who chairs Appropriations, and additional turnover in the top ranks, how chairs are chosen and members selected for committees is both relevant and fairly urgent. Both Politico and the Washington Post have stories on the Congressional Black Caucus, which traditionally has been a force for the seniority system for select committee chairs, but may be taking a more flexible attitude with respect to Foreign Affairs.

FWIW, the House Oversight Committee is still without a top Republican, but the party’s steering committee is meeting this week to discuss a permanent Ranking Member, Politico reports. Apparently the top contenders are Reps. Jody Hice, Mark Green, and James Comer. House Republicans published a list of their Steering Committee members here.

OVERSIGHT

Barr who cried wolf? The AG announced he has agreed, for the third time, to testify before the House Judiciary Committee on July 28th; he was under a (notional) subpoena threat. Barr has played rope-a-dope with Judiciary before, agreeing and reneging on that commitment, and I’d bet he’ll find another excuse to avoid testifying while running out the clock. He’s showing contempt for Congress, which is ironic because the House can’t hold him in (statutory) contempt without his permission. Barr has no fear of impeachment, as Speaker Pelosi has publicly announced she’s unwilling to go there.

• Speaker Pelosi’s unwillingness to consider impeaching Barr sets a very bad precedent. It gives ammo to every administration to say that all disagreements between the branches will be settled at the ballot box, even though Barr is (1) not an elected official, and (2) the purpose of impeachment is to hold officials accountable between elections. Speaker Pelosi argues that the Senate will not act, but by that logic, either the House should be far less energetic in sending measures over to the Senate or it should force the issue so that voters can see the Senate failing to act and vote accordingly.

• Attorney General Barr is responsible for “unprecedented politicization” of the Justice Department, among other things; the non-partisan Project on Government Oversight has called for his resignation. Apparently DOJ’s Office of Professional Responsibility, which has a reputation for white-washing bad behavior, would disagree: according to a Slate analysis, the ethics office has given Barr the “green light” to “launch investigations that have no legitimate law enforcement objectives.” In fact, problems with OPR is a major reason to extend the IG’s jurisdiction to ethical misconduct by DOJ attorneys.

• The 2020 election is where all these threads come together. From Pres. Trump delegitimizing the vote to A.G. Barr undermining the rule of law, what does it look like when the Congress must assemble to approve electoral college votes? First of all, will they be able to assemble? If there’s a dispute, will they be able to resolve it? Will their decision be followed by the Executive Branch? Hanging everything on the election is awfully risky.

Undermining the civil service. The Trump administration was maneuvering to weaken the independence of the civil service by dismantling OPM and moving its responsibilities to a “puppet” agency, reportedly part of an effort to empower the hiring of cronies and loyalists. The DOJ’s Office of Legal Counsel told administration officials that they lacked the power to transfer the responsibilities, but that legal opinion was kept from Congress by administration officials even when that very question came up at a hearing. We believe OLC opinions should be disclosed, and there’s a bill to do that.

Congress is regularly notified of arms sales to foreign nations, but because the practice is informal, the Trump Administration is considering ending it. This is one piece of a larger fight over who decides when we go to war.

WATCHDOGS

Sen. Lindsey Graham tried (and failed) to render a watchdog empowerment bill useless, with a crushing 1-21 vote in the Judiciary Committee, which he chairs. The IG Access Act gives the DOJ’s Inspector General the power to investigate DOJ attorneys for ethical misconduct — yes we mentioned this above — Graham’s amendment would have given the AG veto power over these investigations. However, with Graham and AG Barr’s opposition, it may be very hard to secure a floor vote.

A bipartisan Inspector General Protection bill was introduced in the Senate. The “Securing Inspector General Independence Act of 2020” would increase the threshold for firing Inspectors General.

GAO found that $1 billion in stimulus checks were sent to dead people. As a reminder, using tech to vet data more efficiently could save taxpayers billions according to our team’s Maggi Molina & Lincoln Network’s Dan Lips.

Leadership has yet to appoint a leader for the Congressional Oversight Commission tasked with overseeing the Coronavirus response. Last week, Politico reported that former Joint Chiefs Chairman Joseph Dunford is the leading contender.

ODDS & ENDS

Capitol Police reported one arrest last week when an unauthorized vehicle tried to enter a Congressional parking garage.

Jack Abramoff must really want to go to prison — he “agreed to enter guilty pleas on charges of criminal conspiracy and failing to register as a lobbyist for his role in two separate schemes.” Politico notes that this “appears to be the first time the Justice Department has filed criminal charges under the Lobbying Disclosure Act, which requires lobbyists representing domestic clients to register with Congress but is thought to be widely flouted.”

EVENTS

Tuesday

• Lincoln Network is hosting a Conversation with Rep. Rodney Davis on Protecting the Integrity of U.S. Elections at noon.

• The Law Library of Congress is hosting a “Webinar on Law Library Digital Collections” at 2pm. RSVP here.

On Wednesday

• Code for America is hosting a virtual summit titled, “Modernizing Congress: Bringing Government into the 21st Century” at 9.

• House Armed Services Committee is holding a full committee markup on “H.R. 6395 – FY21 NDAA” on July 1, 2020. The markup will be virtual.