Forecast for December 14, 2020

THE TOP LINE

It’s beginning to look a lot like Christmas. I really don’t want to talk about the totally avoidable train-wreck that is the CR, approps omnibus, and COVID relief efforts, which are as infuriating as they are predictable. The latest contretemps are the natural consequence of institutional design and political incentives, shaped by those in power to maintain their power. It is not a story of political polarization; it is not a story of earmarks; it is not a story of a broken budget process; and it is not a story of #bothsides. The final result will be insufficient to the moment, directed by those at the top, and designed to preserve leadership’s control over the chambers, with the anti-governance folks having a veto over those who want to help people in the face of a pandemic claiming 3,100 lives daily. (Maybe I shouldn’t write these newsletters before drinking coffee?)

Intrigue. Behind the scenes, the deck chairs are being re-arranged with respect to the internal power structures in both chambers —

• House: We’ve already seen leadership elections and chair selections in the House (check out our leadership list), with committee appointments to come. The evaporating Democratic majority means a very close call for Speaker Pelosi — a(n unlikely) challenge might destabilize her re-election by the full chamber — and very tight margins over the next two years to move legislation (which likely will happen on a party-line basis). Meanwhile, the House is working to update its rules, which had important reforms last Congress and may contain additional welcome improvements; they may also reflect mechanisms to sustain majority control.

• Senate: Senate Democrats have been working to create a few more opportunities for members to serve as committee chairs (including two unusual but welcome updates to their (secret) caucus rules.) We don’t know what the Senate will look like until the outstanding Georgia elections are resolved. A shift from Sens. McConnell to Schumer, while unlikely, could unlock the possibility of much overdue reforms to that chamber and would make it possible to address aspects of our democracy that Sen. McConnell has worked for decades to unbalance.

Are we doomed? The last real chance for structural reform was 2009-2010 and Pres. Obama squandered it, apparently failing to grasp both the nature of the problem and the constructive role he could have played. It will take something unpredictable for us to undo the descent into an illiberal democracy, although the current arrangement means it is possible to prevent our circumstances from declining further if our political leaders play their cards right. Which they are not. For what it’s worth, the signs of illiberal democracy are already here, they’re just not evenly distributed, and those with sufficient means may not even feel most of the effects for a few more years.

It’s not all terrible. A new poll shows that Americans overwhelmingly support and welcome remote deliberations by Congress; legislation to make court records freely available passed the House & has bipartisan support in the Senate; and the CAO finally released a long-overdue report requested by the SCOMC on modernization in the House.

What’s next? Assuming Congress manages to pass some kind of approps/stimulus bill — you know the aphorism about people who “assume” things — watch for what emerges in the House Rules over the Christmas “break,” start prepping for committee funding level decisions by House Admin and Senate Rules in the next Congress, and start working on your FY 2022 approps requests. (With Pres.-elect Biden naming a sea of tsars, is it too much to hope for one focused on ethics that deals with conflicts of interest among nominees? Yes, I will boldly continue on my tsar trek.)

This week’s newsletter is robust and earthy. Before we dive in, if you’re new here subscribe to get the First Branch Forecast straight to your inbox, and don’t forget that all the back issues and much more is available at the First Branch Forecast website.

SENATE DEMOCRATIC CAUCUS RULES & CHAIRS

Senate Democrats made two changes to their (secret) caucus rules, which itself might be a start of a longer discussion on reforming how that caucus operates. Senate Democrats have largely operated on a seniority basis, which prioritizes longevity and experience but can also lead to stagnation, insufficient opportunity for new members, and incompetent (or out-of-touch) members in charge of key committees or in key posts. (This isn’t just a Democratic problem: look at who historically has served as the president pro-tempore). Members routinely seek to avoid making tough decisions about their colleagues, which is why they turn to inflexible rules like seniority and term limits, which are bad for the institution. We don’t know all of the half-dozen measures up for consideration, but we do know two of the results, discussed below.

One concern that we have, regardless of what selection mechanism is used — we favor having the whole caucus nominate and vote on who serves on a particular committee (and, if there’s use of a steering committee, to have member factions equally weighted and not dominated by leadership) and allowing committee members to select their full and subcommittee chairs — is that all the old staff often get fired when a new chair comes in. We have seen this time and again, and as staff are often the repository of institutional knowledge, this is a huge factor in what makes Congress weak. A partial solution is the use of non-partisan staff or holding over some staffers, but that’s still a spoils system. What’s probably needed is an expectation or policy that treats professional staff more like civil servants (with commensurate protections) than political staff, except for a few senior staffers. Think about the senior bureaucracy used in the British government as an example (but not Sir Humphrey).

The Kaine mutiny. One provision Senate Dems adopted, offered by Sen. Kaine, permits the second highest ranking Senate Democrat (i.e., the current Democratic whip), to be chair/rm of only one committee or subcommittee. This matters because the appropriations cardinals are incredibly powerful — Sen. Durbin was one of them — and it forces him to choose between the Defense Approps Subcommittee chairmanship and the full Judiciary Committee chairmanship.

The Murphy measure. Sen. Murphy’s amendment seems to have said a committee chair cannot also serve as a subcommittee chair until more junior senators have had an opportunity to claim the spot. With only a few senators serving on the appropriations committee, this will cause a shuffle as everyone moves up a rung and may result in Sen. Leahy chairing a less desirable subcommittee. (But, of course, it’s good to be the full committee chair.)

All this was prompted by Senator Feinstein being nudged out of her Chairmanship of the Judiciary Committee (in the nicest, most gentle way) because of her apparent and now publicly-reported cognitive decline that has created significant political and electoral problems. How did it come to this? There is little incentive for journalists to report on their first-hand knowledge of these incapacities, few others want to publicly say it, and Senate leadership thinks they can layer the less-capable members, which has led to a number of apparently incapable members continuing on and on. We wonder whether this public-disclosure taboo will change.

CONTINUITY OF CONGRESS

A majority of Americans support remote voting in Congress, according to a newly published poll from Democracy Fund’s Voter Study Group. Results from 6,000 Americans polled in July 2020 showed that 57 percent of respondents support secure remote voting during the pandemic, while only 11 percent support Congress meeting in person. Support for remote voting in Congress is found across all demographics, as well as political ideology, with 49 percent of Republican respondents supporting remote voting; the second most popular option was in-person voting at a comparatively measly 19 percent support. The upshot: remote voting is highly popular among all segments of the American electorate.

What do the operations changes in the House look like? Here are stats from a November House Admin staff report on remote voting on changes since H. Res 965 was enacted on May 15 and an electronic hopper was instantiated in April:

• Floor votes: 103 roll call votes that included directed votes cast by proxy; more than 4,000 individual votes cast by proxy; several measures with proxy votes have been signed into law.

• Remote committee proceedings: 151 entirely remote hearings; 117 hybrid hearings; 4 entirely remote markups; 26 hybrid markups.

• Electronic filings: 2,445 measures have been filed electronically (compared to 132 through the old process); 1,932 extensions of remarks were submitted by email.

Many congressional Republicans are unimpressed with proxy voting, to say the least, although there may be a split in the party if the House moves to fully remote deliberations.

The Democratic Caucus, by the way, held its first ever virtual leadership elections. The election was facilitated by the markup app; learn about the tech here. Because the votes were secret, we do have concerns about how the members validated that their votes were cast properly; we also have concerns that not all votes were cast on congressionally-issued devices.

FIXING CONGRESS

The Democratic Study Group in Exile. Roll Call had a fascinating read on the history of the Democratic Study Group (DSG), which was an internal congressional organization that used transparency and procedural tactics to beat southern Dems who led key committees and prevented the movement of progressive (esp. civil rights) legislation. At its height, DSG was supported by more than 250 members who “believed in open government, they believed in transparency, they believed that congressional leadership … was really holding information back from them,” and fought to allow all members to know “exactly what’s in the bill, what its problems were, what its controversies were, [and] what amendments were likely.”

• It’s time to bring them back. We have been encouraging House Democrats to allow entities like the DSG to return. Providing information support to interested members is a key aspect of collaboration. Our latest House Rules recommendations package and House Appropriations recommendations include creating modern LMOs/CMOs that can hire staff, receive separate office space, maintain an online presence, and are subject to appropriate oversight mechanisms. There was a small step towards this in the 116th Rules package, which slightly changed how eCMOs work.

• Unfortunately, now Speaker-Pelosi and others in leadership reportedly view “themselves as the culmination of all those years the DSG had fought for power” and believe that leadership has supplanted its role. The folks at the American Prospect wrote in 2015 about the predictable outcome of those views, and we strongly encourage everyone to read TAP’s article.

• It’s not our purpose to argue for a DSG per se, although there should be one, but rather that the various factions (whether ideological or built around particularized shared interests) should have their own ability to collaborate (including across party lines), build expertise, and engage in collective advocacy… and for that to work, there must be a better funding money than drawing down already depleted MRAs.

Congress doesn’t have the resources it needs to play its proper role asstatus as the First Branch of government, which created room for Executive aggrandizement & outsized special interest influence over policymaking. The Fix Congress committee has started to fix the problem by generating solutions for a stronger Congress; many argue can’t let this process end with the 116th Congress. Kevin Kosar’s latest op-ed also stresses the importance of increasing congressional capacity.

MTR reform continues to pick up, with House Rules Chair McGovern declaring he wants to hold a hearing to discuss reforms of the measure. Over 100 GOP Members wrote to McGovern opposing any changes. Interested in why the MTR should be reformed? The CPC has an in-depth explainer.

Compare and contrast. The Senate released its proposed Leg. branch numbers — so we took and created a new dataset comparing how the House & Senate proposals stack up to each other. There are some interesting nuggets in there, including the $50 million gap between House & Senate proposed budgets for the remarkably opaque Capitol Police Department. We can’t wait to see the final numbers.

CAO’s IT modernization report was finally made publicly available. Many of the reports were due in July and September, although the official publication date of this report is October 9th. The 78-page report is a compilation of responses to the requirements outlined in the Fix Congress Committee’ resolution, and includes updates on reforming House Information Resources, providing technology to improve constituent engagement, streamlining the approval process for outside vendors, addressing the adoption of new technologies and applications in offices, leveraging bulk purchasing power of the House, and ensuring accessibility of House websites.

• Cybersecurity and cloud services. Beyond the scope of those responses, the report also includes the CAO’s strategic technology plan for FY2019 to FY2023, an overview of the House cloud computing initiative, framework for the CAO innovation program, and more. Throughout the report, CAO stresses the importance of expanding cybersecurity within the House, both for program services and Member/staff training.

• What’s still due? Last month, we wrote about what items and reports are still outstanding from the Fix Congress resolution. The latest CAO report provides six items that were publicly outstanding, meaning seven items remain that must be submitted to the committee before the end of the session, including joint reports from the CAO and Clerk on closed captioning services, the Office of Diversity and Inclusion Diversity plan, and more.

Paid Family Leave policies for Leg. Branch employees have traditionally been all over the map, varying from office to office. On October 1, the Federal Employee Paid Leave Act temporarily went into effect, creating 12 weeks paid parental leave within a year of the birth, adoption, or foster care placement of a child for Leg. Branch employees. New proposed regs from OCWR will make these policies permanent. The CAO breaks down the implementation process in its study on the feasibility of such a policy from earlier this year. You can send comments on the rule to OCWR before Thursday; instructions are here.

Way above budget. Cannon building renovation costs have increased over $137 million and are behind schedule. The initial 10-year Cannon renovation project began in 2014 with an expected cost of roughly $752 million, but has already ballooned to $890 million. House Admin held a hearing on this problem last year. We are unsure which AOC IG report is being referenced, but maybe it’s this one from August referencing findings from 2019 or their semi-annual report on their activities. BTW, looks like the IG now is on twitter.

Ten years of new bill status XML bulk data. GPO, in partnership with LOC, House, and Senate has released 10 additional years of Bill Status XML Bulk Data. The new data, which includes bill status information from the 108th to the 112th Congress (2003-2012), has been included on GPO’s govinfo Bulk Data Repository and adds to previously available data from the 113th Congress to 116th Congress (2013-2020). Huge thanks to House Approps and support from the Legislative Branch Bulk Data Task Force to move this along. Keep up the good work!.

Tech Congress announced its 2021 class of Congressional Innovation Fellows. Applications are open for next year’s class; the deadline to apply is February 5th.

Representative Democracy’s newest guide provides practical tools congressional offices can use to create and retain staff that adequately reflect the communities they serve.

SHIFT HAPPENS

Internal leadership elections have been taking place over the past several weeks, including the CBC, CHC, New Dems, and Progressive Caucus. It’s hard to find coverage in one place, so we decided to keep track of it all. We also re-examined how the hidden power structures elect their committee leaders, and analyzed how they differed from previous sessions. (Dear House Dems: please publish your policy and steering committee rules. Thanks!)

The math problem. Pelosi’s speaker vote in Januarywill rely on nearly perfect attendance from Members in the midst of the pandemic. House rules require that the speaker must secure a majority of votes cast from Members in attendance; with 212 GOP Members, at least four Dem no votes, and several Dems undecided, the vote could be razor thin. Also, are Republicans prepping a backup rules package just in case?

Rep. Zoe Lofgren will continue as Chair of the Committee on House Administration in the 117th Congress.

The portrait of Chairwoman Lowey was unveiled on the wall of the House Appropriations Committee room last Monday.

New Dems are dramatically overrepresented on the Intel Committee, (77% vs. 43% of the House Dem caucus), according to research from the CPCC on the ideological composition of House Committees, while Progressives are underrepresented (15% of the committee vs. 39% of the Democratic caucus). Similarly, the Freedom Caucus has outsized influence over the Judiciary committee and none on Ethics, Modernization, or Admin. It’s interesting to see how ideology is reflected among the committees.

APPROPRIATIONS

Earmarks for infrastructure week is the latest proposal from House Dems, with Majority Leader Hoyer supporting the revival of the practice to help individual Members to advocate for projects in their home districts as a part of a bigger Biden infrastructure package. It also has the support of the new Appropriations committee chair, Rosa DeLauro.

• When Congress does decide to bring back earmarks, it is important to have proper accountability mechanisms in place, which many of us old-timers spent a lot of time working on before earmarks were banned. In my opinion, there should be a central database that contemporaneously identifies every member of Congress, every earmark they request, the details of each earmark (the recipient, how much, where it is located, category of work, etc.), who requested it (with info about the entity, their TIN, etc.), and whether it was granted. This information should be searchable and downloadable and maintained as structured data. That means inclusion of the member’s bioguide IDs, a unique ID for the subcommittee, a common ID for the agency, assigning a common ID to multiple requests for the same item, and so on.

There also should be identification of identical earmark requests over multiple fiscal years. Lobbyists should be required to identify on their LDAs when they lobby for an earmark, who they lobby, what they request, and that data should be tied to the Member data. Consideration also should be given to adding tags to legislative XML (USLM) so that requests can also be reflected in the bill text (and committee report language, if appropriate). This whole process should be overseen by an oversight body (like GAO or the House IG) that has a responsibility to investigate influence and an obligation to regularly and publicly report on those findings.

• What should be eligible for an earmark? Under the SCOMC proposal, local communities can apply for a grant through a public database, and once the approps process is finalized, the funds would be subject to oversight and rescinded if it was deemed abuse took place. Providing this resource for rank-and-file Members would give them more reasons to support spending legislation overall, something that has basically been ground to a halt since 2010.

 Is this fair? I have real concerns that granting earmarks empowers leadership to entice and cajole members in a way I think is inappropriate. Citizens Against Government Waste reported that in the 111th Congress “when the names of members of Congress who obtained earmarks were included in the appropriations bills, 81 House and Senate appropriators, or 15 percent of Congress, had 51 percent of the earmarks and 61 percent of the money.”

How would we do it? I’m not sure we would, but here’s how we’d approach it. Earmarks were about 1% of discretionary spending. Discretionary spending is about 1.4T, so let’s cap it at 1%, or $14 billion. I’d divide that by 435 congressional districts, which is about $32 million per district. Each member gets $32 million that they can earmark for any project/set of projects. They can pool their money with other members for projects. They can decline to spend the money in a fiscal year and it accrues in the district “account” to be spent later. If a member turns over, his/her successor has whatever money has not been allocated. Appropriators are responsible for making sure it’s not spent for inappropriate or corrupt purposes (like on family members or political supporters), but otherwise they should respect the views of the representative.

But, but, but… Earmarks never went away. Members earmark money through the tax committees (i.e. targeted tax cuts), they lobby the administration through letters, they use phone calls and meetings. I don’t think earmarks solve the principal-agent problem that people complain about with respect to making federal spending decisions and I don’t think they grease the wheels enough to move legislation. You need real spending reform and legislative reform to do these things. But if you really want earmarks, this, IMO, is a fair way to do it, but probably not the only way.

FIRST BRANCH POWERS

Most House Republicans decline to recognize Biden as President-elect.

• The bipartisan House Inauguration Committee rejected the motion (3-3 along party lines) to publicly recognize that the upcoming inauguration will be for President-elect Biden and Vice President-elect Harris.

• 126 House Republicans and 17 attorneys general signed on in support of a Texas lawsuit that seeks to invalidate millions of votes. SCOTUS threw out the lawsuitno senators signed on.

• The authoritarian slide is not a ride at Disneyland and we fear that too many Republicans have gone too far down to be able to scramble back up.

GOOD GOVERNMENT

Free PACER, finally. On Tuesday, the House passed the Open Courts Act of 2020, which would modernize the judiciary’s case management system and would eliminate the PACER paywall that impairs access to public documents. It’s been a long time coming to get here. We hope the Senate takes up the bipartisan companion legislation. FWIW, the CBO score for the PACER bill says it will cost roughly $9 million over ten years.

The NDAA, which has passed both houses with veto-proof margins, includes language from both the Taxpayers Right to Know Act as well as the Corporate Transparency Act. The former requires OMB to create a public and regularly updated inventory of federal programs and the latter requires corporations and LLCs to disclose the beneficial owners who own and control those entities to law enforcement and others with anti-money laundering responsibilities.

Whistleblower protections. The House passed the Criminal Antitrust Anti-Retaliation Act of 2019 by voice vote on Tuesday. The bill prohibits employers from retaliating against whistleblowers who report antitrust violations. The bill unanimously passed the Senate in October 2019 and is expected to be signed by President Trump.

• There are still a slew of good government bills that Congress can pass before the end of the session.

ETHICS

Rep. Crenshaw funneled harmful and false information to disparage a sexual assault victim. According to a VA IG report, Rep. Crenshaw worked with VA Secretary Robert Wilkie to plant negative media stories about a female veteran who alleged she was sexually assaulted at a VA facility. (The veteran now works for the House VA committee.) Crenshaw served in the same Navy SEALs unit as the female veteran.

Car-tune. Mississippi GOP Rep. Palazzo’s campaign reportedly spent nearly $230,000 on car expenses, home improvement projects, and personal reimbursements since 2010. Palazzo acknowledged in November that he has been under OCE investigation for using $60,000 in campaign funds to rent a farm and $127,000 on an accounting firm that he founded and his wife runs.

No teeth. GA Sens. Perdue and Loeffler say that the Senate Ethics Committee dismissed probes of their stock trades. Lol. The committee hasn’t disciplined anyone in over a decade. Since 2007, the committee received 1,189 complaints of alleged ethics violations and took zero disciplinary actions. I’d be more worried about the SEC. BTW, the DOJ is investigating.

Drip drip drip. After a report Sen. Purdue also sold his house to a finance industry official whose organization is under the jurisdiction of the Senate Banking Committee which Perdue sits on, according to a ProPublica investigation. This comes just days after the New York Times reported that Perdue is far and away the most active stock trader in the Senate, many of which come at fortunate times.

ODDS & ENDS

Saturday marked the 150th anniversary of the first Black Member, Joseph Rainey, joining the House of Representatives. A new exhibit in the House commemorates this moment and more.

Capitol Police disclosed one arrest this week, an unlawful entry on the 400 block New Jersey Ave, NW.

Congress.gov help pages arenow searchable.

Metadata, comic books, and the Sumerian legal system. Check out this cool interview with Aaron Kuperman, a law cataloger for the Law Library of Congress.

CALENDAR

The House and Senate Committee calendar is here; here are the announced proceedings on the House floor and Senate floor. Both chambers are in this week.

Wednesday

• Congressional Management Foundation presents “Life in Congress: What to Expect for You, Your Staff, and Your Family,” from 12:00pm to 1:30pm ET.

• Democracy Fund is hosting a virtual webinar on “A New Approach to Diversity on Capitol Hill: A Guide” from 3:00pm to 4:00pm ET.

Down the Line: New Member Orientations

• January: the Congressional Management Foundation will also host “Setting Up a Congressional Office,” on January 15, 12-1:30 ET; “Hiring a Diverse Staff,” on January 22, 12-1:30 ET; and “Setting Up a Scheduling Operation,” on January 29, 12-1:30 ET.