THE TOP LINE

Ruth Bader Ginsburg has died. 93 minutes after the Supreme Court announced her death, Majority Leader McConnell tweeted that President Trump’s nominee — whomever it may be — will get a vote on the Senate floor. Within 24 hours, supporters at a Pres. Trump rally were shouting “fill the seat.” This is indisputably a flip-flop for Sen. McConnell and the GOP compared to their position on Merrick Garland; we note that that voting has already begun in the presidential election and the timing of the announcement is ghoulish.

• I don’t know whether ex nihilo the presumption should be in favor of presidents being unable to fill Supreme Court nominations prior to a presidential election, but Sen. McConnell created that rule, applied it, and will now violate it. This decision blows up what’s left of Senate norms—rules, precedents, and personal relationships—to gain a multi-generational advantage on the Supreme Court for the purpose of changing the Court’s decisions on settled (but politically contentious) issues. The composition of the Senate locks-in these anti-democratic outcomes.

• At the same time, Sen. McConnell is moving the Senate towards a pseudo-majoritarian institution where individual senators have little real say—not that the Senate has been at the forefront of legislating under his leadership, as he has acted largely as an appendage and protector of the Trump administration and an antagonist of the prior Obama administration. (By pseudo-majoritarian, I mean that 51 senators constitute a ruling block while those same senators represent a minority of the American population.) Sen. McConnell’s actions have weakened the legitimacy of the courts and Congress and are collapsing politics into a Manichean fight concerned with helping your friends and hurting your enemies.

• So far, the only semblance of a practical response I have seen for Senate Democrats was proposed by David Sirota, who describes tactics Dems could use to grind the Senate to a halt to block a Trump appointment. Unlike Sen. McConnell, who “shut down the lower court confirmation process” during the Obama administration, Senate Democrats under Pres. Trump have let nominations go through time after time. Norms are real only when everybody adheres to them. What will the Democratic response look like? Will they stop all activity except for essential legislation? According to Roll Call on Friday, their plan is talk, not action. But, last night Sen. Schumer stood alongside Rep. Ocasio-Cortez as she called on Democrats to “use every single available procedural tool available to us” to buy time in the Senate to stop the nomination.

Meanwhile, will the government shut down? 10 more days until the government shuts down or puts a continuing resolution in place. According to CRS, 117 CRs were enacted from FY1998 to FY2019, with an average duration of 39 days; there were only 3 year-long CRs (in FY2007, FY2011, and FY2013). The House Rules Cmte meets today to queue up a vote on a short-term spending bill. According to BGOV, Ds and Rs have all-but-agreed on a December 11th timeline. That seems crazy to us: what incentive would a departing Trump administration have to keep the government open should the Dems take political control? We realize Dems have moved the deadline forward in exchange for a policy win, but this is playing with fire.

Coronavirus relief is a key issue in the waning days of Congress as the number of dead in the U.S. has passed 200,000 and Pres. Trump admitted to lying to the American people about the danger of the illness. A little while back, Senate Republicans put out a political base-covering proposal that quickly failed in that chamber; members of the House Problem Solvers Caucus recently put out their own $1.5B plan. Most committee chairs rejected the latter’s proposal outright, saying “When it comes to bolstering the public health system, supporting state and local governments, and assisting struggling families, the Problem Solvers’ proposal leaves too many needs unmet…. [T]heir proposal also abandons our responsibility to protect the life of our democracy.” It is bad politics to undercut the negotiating position of the House, so of course Pres. Trump rushed to praise the plan without endorsing it. Spkr. Pelosi is not a fan of the Problem Solvers plan, but it did push her to say the House will remain in session until a COVID deal is reached. As the House usually holds pro forma meetings, I’m not sure what that means.

The Senate must modernize; to prepare for the next session of Congress, we released a report with over 80 recommendations to make the Senate more efficient, effective, transparent, and inclusive. They cover six categories, including strengthening floor and committee deliberations, modernizing operations and transparency, improving staff onboarding and retention, increasing ethical practices, improving technology and cybersecurity, and managing Congress as an institution. This parallels our recent recommendations to update the House’s rules.

Congress’s unfinished business, at least from our perspective, includes at least 30 good government bills we think should cross the finish line. So far 13,107 bills have been introduced this Congress and 158 have been enacted into law. We helpfully broke our list down by bill status.

The Library of Congress held its legislative information access virtual forum on September 10th. If you weren’t able to attend, we have a comprehensive recap of the presentations, panels, and Q&A. We were impressed by the panelists willingness to engage and the thoughtfulness of many of their answers. As you might expect, we had our list of issues we hope will be addressed. One take-away for bill-drafters out there: in some circumstances the Library will not act without the direction of Congress, including improving public access to CRS reports and providing an API for legislative data.

THE TOP LINE

More should be happening. We are 16 days away from the end of the fiscal year; COVID-19 is everywhere and not going away any time soon; wildfires are burning on the west coast; the Executive branch is unabashedly flouting the law; and senior congressional leaders are raising concerns Pres. Trump will not peacefully transition power should he be defeated and is working to undermine elections. The skinny Senate COVID-19 bill was defeated — its major purpose was blame-shifting and incumbent protection — and Senate Rs are saying no deal is possible until after the election (if then).

The House & White House are working towards a “clean CR,” with one big open question as to when it will expire. The “clean” description is an acknowledgement that it won’t address any of the aforementioned problems and that House Dem Leadership miscalculated around the first (and subsequent) COVID-19 relief bills. Should Dems agree to let the CR expire in December, they could be setting up a government shutdown that could last a month or longer, undermining what they hope would be the start of the Biden administration.

In the House this week, the Congressional Budget Justification Transparency Act of 2020 (HR 4894) is one of 31 bills on suspension, with a few additional bills set for floor debate. There are 18 committee meetings scheduled, including a House Oversight markup that should advance the PLUM Act (HR 7107). The former requires all agency Congressional Budget Justifications to be online in a central location; the later would transform the Plum Book into a living, digital document.

The Senate floor, meanwhile, will spend Monday focused on another judicial nomination. 17 committee meetings are currently scheduled.

For your calendar: Tuesday is the International Day for Democracy, and Brazil’s Bussola Tech is holding an international conference (with English translation) on the experience of 20 parliaments in transforming their legislatures during COVID-19. House Deputy Clerk Bob Reeves will be representing the U.S. House of Reps. RSVP here. Thursday is Constitution Day. Friday is the start of Rosh Hashana.

Transitions. Rep. Tom Graves (R-GA) will resign in October; he is the co-chair of the Select Committee on the Modernization of Congress. While waiting for a new member to take office, the House Clerk will be responsible for keeping the lights on. House Parliamentarian Tom Wickham is retiring, and will be succeeded by his deputy, Jason Smith.

Did you miss us? Welcome back to the First Branch Forecast! August was surprisingly busy so we have a pretty robust newsletter for you. Keep your eyes on appropriations, COVID-relief, the NDAA, the upcoming House Rules process, possible reforms in the Senate, and Executive branch efforts to undermine Congress.

We put six months of effort into our House rules recs; we know that Zander and Tim put a ton of effort into their new report on Congressional Brain Drain; and there’s so much more. Don’t hesitate to click on the links and let us know what you think.

THE TOP LINE

Congress is returning: no House votes are scheduled this week; the Senate is voting on a skinny coronavirus relief bill this week — but even if it passes the Chamber it’s not likely to go far ($). The House’s proxy voting emergency period was extended until October 2nd; this was a critical safety move as the number of covid cases on Capitol Hill surpasses 100, and Congress works through must-pass bills.