THE TOP LINE
You gotta be kidding. We prep this newsletter during the week and finalize it over the weekend. Alas, there’s no way we could possibly evaluate what is in the appropriations + COVID bill(s) for you — and there’s no way most Members of Congress could know what they’re voting on, either. It looks like the negotiations took so long Congress will do a 24-hour CR for when the 2-day CR elapses Sunday at midnight. Details will leak out after House leadership informs members as to its contents (which, as of this writing, are sparse.)
There’s no way members of the House or Senate will have any idea of the details of what’s inside the bill (except, in broad strokes, what they’re told), they won’t have enough time to figure it out, and, even if they understood its contents, the political circumstances mean they won’t have the opportunity to amend or object. This is business as usual for leadership-controlled brinkmanship. Create an artificial cliff (like the end of a CR), wait until it is about to expire, put a holiday break on the other side, and jam a bill through.
COVID RELIEF? This entire COVID relief process has been madness. And the Washington Post’s report that White House staff talked outgoing Pres. Trump from proposing $2,000 stimulus checks while House Dems negotiated themselves down from $3T to less than $1T is ::chef’s kiss::. Political analysts suggest the main reason Sen. McConnell finally was willing to entertain any relief legislation was to avoid undermining elections in Georgia, in which Republican control of the Senate is at stake. If we were in Congress, it would be inappropriate to speculate on motives, but we are not. Our guess is Senate Republicans will block any future relief measures, at the strong encouragement of Sen. McConnell, banking on his belief that making things worse for Americans means that Pres.-elect Biden will get the blame.
Like an iceberg. The process by which Members are selected for committees is one of the most important — and opaque — processes in Congress. As that has been happening right now, we explore it down below.
Rules, rules, rules! We are very excited to see what emerges out of the House Rules Committee process, which will generate new rules for the 117th Congress. By now you know we have our wish list. We suspect our friends on the Rules Committee will be working right up until the deadline to get everything drafted. (Good luck!) While we’re at it, are any changes in store for the Senate?
• The Select Committee on the Climate Crisis will come back to the House in the 117th Congress, per this announcement from Speaker Pelosi, with Rep. Kathy Castor as chair. (Presumably it will be included in the Rules package as a select committee and will not have any legislative powers.) We hope the Select Committee on the Modernization of Congress also returns.
• MTR reform continues to be a point of debate in the House. Congressional progressives want to curtail the MTR; last week, more conservative Dems like Rep. Murphy and 16 others sent a letter requesting the MTR threshold be raised from a simple majority to two-thirds. The CPC has an in-depth explainer.
• My wish? I’m so glad you asked. I’d amend Rule 2 clause ii of the House Rules to require that the list of all agency mandated reports due to Congress, which is regularly compiled and published, includes, as part of the report, a list of agency reports required by law to be submitted the committees. (The House already passed bipartisan legislation to this effect.)
Nerd out. So you’re sitting at home next to a fire, some spicy eggnog at hand, and you’re thinking: “I wish I could watch some excellent videos of Members of Congress on how to strengthen Congress.” Fam, we’ve got you covered. The Article One coalition, of which we’re a member, hosted a Frosh Member briefing that featured fantastic (short) remarks on reclaiming your Congress, fearing Reps. Gallagher and Scanlon and a bunch of folks from civil society, too.
Want to treat yourself to a holiday gift? Subscribe to get the weekly FBF straight to your inbox; it’s free and it’s made with love and gin. In another programming note, we’re planning on taking the next two weeks off from writing the newsletter unless Congress somehow manages to fail to go to recess….
LEADERSHIP AND COMMITTEES
Committee appointments. Last week, House Dems announced a slew of committee appointments. Committee chairs and Members are tremendously important in shaping what the House will do over the next two years. With the exception of the E&C seat race between Reps. Rice and AOC — Rice got the nod — there was little coverage for something so important.
We compiled a complete list and examined the role of the steering and policy committee for Dems heading into the 117th Congress (and Rs, too), but still have not seen the separate set of rules that govern the Dems’ Steering and Policy Committee. Those rules are not publicly available, but they should be.
Follow the leader. What is clear, however, is the Steering Committee makeup largely reflects the Speaker’s personal decisions and buttresses her power. She literally has a slate of preferred candidates that they consider. And as Speaker Pelosi needs every vote to stay on as Speaker, this is a great tool for her to maintain her position.
Some conservative Dems organized hard against allowing more progressives onto Energy & Commerce, at least according to The American Prospect, which has a thoughtful write-up. Those efforts were led by those close to the Speaker (e.g. Rep. Jeffries) and very close to the oil and gas industries (e.g. Rep. Cuellar). Meanwhile, the Democratic left is having a ridiculous fight about whether it is more important to (a) reform the House rules to have an actual say in how the House operates and who gets picked for committees, or (b) make members take a purely symbolic vote.
Dem leadership in the House has spent years centralizing power and preventing the emergence of new leaders who can challenge the status quo. In an interview, Rep. Ocasio-Cortez said that process is policy and organizing around the rules matters a lot. (We agree). She also said it’s time for new leadership, which is pretty much what everyone says behind closed doors but few say in public. Maybe in a future newsletter we will discuss the incentives for why people usually don’t challenge leadership.
CONGRESS AND CORONAVIRUS
Innoculations? Who will get the new COVID-19 vaccines? We think they should be immediately available to all Members; essential political, support office, and agency staff; and all credentialed hill journalists. In theory the OCWR should be setting the rules instead of the kabuki-like process with chamber leadership and the physician, but what we’ve seen so far in both chambers looks a lot like a political process.
Shot. It’s good to be in leadership, because (per POLITICO) they got the COVID-19 shot first. (The Han Solo of the Legislative branch, if you will.) “Members of Congress will receive top priority and are being encouraged to schedule an appointment as soon as possible to receive their vaccination, which will require two shots. The Office of the Attending Physician will then identify ‘continuity-essential staff members’ who will be next in line — likely campus police officers and other essential workers who keep the Capitol running amid the pandemic.” Until they run out, that is. Whoops. It is strange we don’t know the source of the vaccines for senior officials, and I’ll leave for another day the moral hazard question of vaccinating Members and providing special treatment for infected politicals who denied the nature of the pandemic and fought against appropriate responses. Testing (let alone inoculation) can’t come fast enough for the Capitol Police, whose cases continue to rise even as — per the union — management continues to oppose testing and force non-socially distanced training, all while the collective bargaining agreement remains suspended.
Chaser. Rep. Joe Wilson, infamous for his intemperate outburst at a joint session of Congress during an address by the president, may have outdone himself. In a Facebook post, Rep. Wilson, who mocked Democrats for being overly cautious during the pandemic and said he looked forward to voting on the House floor in person, has COVID. HuffPo reported that he deleted his post (and is now in quarantine).
CHA RM Rodney Davis, in a letter obtained by POLITICO early last week, urged Speaker Pelosi: “to create, communicate, and implement a vaccination distribution plan for the House’s essential workers and Members.” As the vaccines are not 100% effective — and not everyone can (or will) use the vaccine — even a successful roll-out will be insufficient for moving back to solely in-person deliberations for some time, but it makes sense to move to mitigate the risk ASAP.
Mask on. Speaker Pelosi required that masks be worn at all times in the Hall of the House. This means Members will not be recognized unless they are wearing a mask and recognition will be withdrawn if they remove the mask while speaking. As for the Senate? Just don’t get too close. Cough, cough.
The post-vaccine Congress? We ran some back-of-the-envelope calculations on what the effect of COVID would be on the ~20,000 people who work on Capitol Hill should they be allowed to return in person. We are ignoring visitors and lobbyists and journalists (who number in the millions), assume a 3.5% immunocompromise rate, that 80% of people who could take the vaccine do so, that it is 95% effective, and ignore the number of people who already have been exposed. We also assume everyone on the hill is 25 years old (even though the average senior Member is 90x more likely to die), and that the illness rates mirror this study. Our rough calculations suggest that if all 20,000 people come back to work on the campus, we can expect an additional 53 deaths, 106 people with long COVID (12 weeks or more), 266 people with 8 weeks of symptoms, and 746 people with 4 weeks of symptoms. (This excludes the likelihood they give this to others.)
A teleworking Congress? This is the logical next thought, right? Congress lacks sufficient space for its staff — and things get even tighter if we increase the number of personal and committee staff (and others!), which is something we desperately should do. The offices are so cramped and noisy that they actually impede work and it’s not always easy for people to travel to DC to meet with policy staff. (And do the support agency staff really need to be there in person all the time?) Maybe there are some benefits from having hot-desks in the offices and encouraging staff to telework (or at least alternate who is in the office), which historically is a rarity. Congress will always be an in-person place, but it may not need to be an everyone-in-person place, especially given the COVID-19 numbers described above.
CONGRESSIONAL OPERATIONS
Remote voting continues to be used by state legislatures nationwide, the House of Representatives (after a fashion), as well as Dem House leadership. A recent poll found that a majority of Americans support remote voting in Congress.
Bipartisanship. Rep. Gaetz — who had opposed proxy voting — submitted a letter to the House Clerk requesting Rep. Gabbard cast his vote by proxy. Smart move.
In-person voting for rules enactment will be required on January 3rd since H.Res. 965, which allows proxy-voting during the pandemic, sunsets at the end of this Congress. Our friend Norm Ornstein writes how the House must take extra precautions to ensure the health of its lawmakers so it can keep its razor-thin margins in January and beyond.
Rep. Loudermilk has COVID. (So does Rep. Joe Wilson, as mentioned above.) Per Lisa Desjardins, Republicans have just over three times the infection rate of Democrats in Congress. To date, in the House 15% of GOP and 4% of Dem Members have tested positive for COVID while, in the Senate, 15% of GOP and 4% of Dem Members have tested positive.
Rep. Paul Mitchell quit the GOP because Republican leaders have “collectively s[a]t back and tolerate[d] unfounded conspiracy theories and “stop the steal” rallies without speaking out for our electoral process.” He says the Republican party is actively causing long term harm to our democracy.
No young guns. 20 Members of the House requested the House rules be changed to hold Members of Congress “to the same firearm safety rules as the public while they are on Capitol grounds.” Currently, Capitol Police regulations (from 1967) exempt Members of Congress from the firearms prohibition.
Harvard’s new Member orientation finished up last week. While there has been no news from the events, the IOP did release its program agenda, complete with daily schedules, guest speaker lists, and Member biographies. We have yet to cross-reference the speakers against lobby shops.
FIXING CONGRESS
Congress must modernize itself and work together if it wants to succeed next session. According to Issue One’s Meredith MeGehee, and that starts with bringing back the Fix Congress Committee. We agree.
Will to power. As far as we can tell, George Will has only four columns that he has been recycling since the 1980s (okay, five), so we were astonished when he opined in favor of restoring the Fix Congress Committee as a check on presidential power.
House Dems tried to sneak through a waiver for Pres.-elect Biden’s nominee for the head of the Department of Defense, Gen. Lloyd Austin, as part of the omnibus. Naughty, naughty. While we generally favor Gen. Austin in that role compared to the other folks Biden was considering, the Defense Secretary should be a civilian and it is important to have the debate in public about whether to permit a waiver. Democrats, like Senate Armed Services RM Reed and House Majority Whip Clyburn, supported the maneuver, which would have undercut the House Armed Services Committee hair and weakened the principle of civilian control of the military.
RECOGNIZING PRES. BIDEN
The harm’s been done. Senate GOP leaders, including Senate Majority Leader McConnell and Joint Committee on Inaugural Ceremonies Sen. Blunt, are finally starting to acknowledge ex-VP Biden as president-elect, after last Monday’s presidential electors vote. This came 42 days after the national election and long after any doubt existed as to the results. The decisions to buttress Pres. Trump’s baseless pleas of fraud instead of repudiating them weakens the transition of power and smoothes the way for future authoritarians.
House Republicans, 2/3s of whom signed an amicus brief in support of overturning the election results, are caught in a vice of their own making as some Members will try to refuse to recognize the votes of the electors in early January. The most charitable thing you can say about that decision is that Members are afraid of losing their primaries.
Sen. McConnell is telling his caucus not to object to the election results in January, saying it would reflect poorly on the party that wants to defend Trump with tough midterm elections looming. (I don’t know why elections are considered to loom. Do they ever bear fruit?)
If at first you don’t secede… it appears some House Republicans may have found a Senate partner in Sen.-elect Tuberville (sorry, folks, I don’t follow sportsball) to force Congress to consider challenges to various state slates of electors on January 6. The effort, which is destined to fail and is damaging for our democracy, will take a knee for autocracy.
Pres.-elect Biden should govern without relying on special interests, according to a new report (from us) that used extensive polling from Data for Progress. Findings demonstrate that more than two-thirds of Americans don’t want Biden to appoint consultants, executives, or lobbyists to key administration positions. Furthermore, more than three-quarters of Americans (77 percent) say Wall Street executives still too much sway over policy while 78 percent of Democrats and 81 percent of Republican respondents believe the same about big tech.
TRANSPARENCY & ACCOUNTABILITY
OMB finally has published final revisions to a uniform FOIA schedule and guidelines. I don’t know whether this is substantively good and would defer to a FOIA expert. I do know that uniformity has long been sought by FOIA requesters.
McGahn. Rep. Nadler, Chair of the Judiciary Committee, “intends to reissue a subpoena for former White House Counsel Don McGahn’s testimony next year,” according to POLITICO. This has significant implications regarding separation-of-powers.
FARA foiled. On Wednesday, Sen. Grassley attempted to pass his bipartisan Foreign Agents Registration Act by UC in the Senate, but Sen. Bob Menendez objected, saying the Foreign Relations Committee needs a further examination and a full markup of the bill. We support significant FARA reform, and members of the relevant committees of jurisdiction supported Sen. Grassley’s effort.
• For background, FARA requires lobbyists that work with foreign entities to register with DOJ, but a 2016 DOJ IG report indicated the law has rarely been enforced. Sen. Grassely’s bipartisan bill would add provisions that allows DOJ the ability to issue civil investigative demands (similar to a subpoena) as part of a FARA investigation since individuals in the past would refuse to comply with DOJ voluntarily. The bill also requires Lobbying Disclosure Act exemption audits; lobbyists often choose to register under the less rigorous Lobbying Disclosure Act as a way of avoiding registristing under FARA.
Whaaat?! POGO Executive Director Danielle Brian tweeted that Sen. McConnell is trying to push through a new Transportation IG, suggesting he did so as part of an effort to replace the current IG who is investigating Elaine Chao, the current Secretary of Transportation, who is accused of improperly trying to help her husband, who is… Sen. McConnell. Fortunately, this effort failed this weekend for a lack of Republicans present, but it’s not over.
DNI Attempts to Undermine Declassification Policy. Steve Aftergood writes: “In a bureaucratic bombshell, Director of National Intelligence John Ratcliffe has asked the White House to rescind a ten-year-old executive order that required a uniform policy for marking and handling ‘controlled unclassified information’ (CUI).” The EO, issued in 2010, requires agencies to promulgate their plans by Dec. 31st. Many agencies have made progress with CUI, which goes well beyond materials related to national security, but DNI Ratcliffe didn’t ask for an extension, but to wipe away all the progress entirely.
A presidential record transparency bill was introduced by Sen. Murphy in the Senate and Rep. Quigley in the House. The legislation would update the Presidential Records Act to ensure that all records, including digital communications, of presidents are documented and secured for historical record. The bill also enables the Archivist to provide regulations for documenting records created on non-official messaging accounts (e.g., WhatsApp), promulgates guidance to the president before records can be destroyed, and ensures that the President-elect and staff of the office receive access to summaries of national security information from the previous administration as soon as possible after the election.
CIGIE. The Council of Inspectors General named Allison C. Lerner as chair, succeeding Michael E. Horowitz. CIGIE also released a new report: “The Role of Inspectors General and the Transition to a New Administration.”
Block Schedule F. More than 60 organizations (including us) sent a letter encouraging lawmakers to ensure spending legislation includes a provision preventing the Trump administration from politicizing the civil service. In October, President Trump signed an EO creating a new Schedule F job classification within the government’s career civil service that would make a subset of federal workers essentially at-will employees, subject to termination without cause (and thus more susceptible to political influence.)
ETHICS
The House Ethics Committee announced it formally is investigating Rep. Palazzo. Roll Call recently reported Palazzo’s campaign has spent nearly $230,000 on car expenses, home improvement projects, and personal reimbursements over the last decade. Palazzo also said he has been under OCE investigation for other campaign funding issues.
Former Rep. Duncan Hunter was sentenced to 11 months in prison. He pleaded guilty to misusing hundreds of thousands of dollars in campaign funds for personal expenses like family trips abroad and shopping sprees.
Members of Congress with stock holdings should be required to divest their holdings or move their funds into broad index funds. (If they are concerned about tax consequences, Congress literally writes the laws and can make sure that they’re made whole.) New research shows “Members of Congress who own stock tend to vote in ways that benefit their portfolios and that these decisions can’t be explained away by other factors, such as ideology or constituent interests.” Intentional or not, the current system corrodes public trust. Does Congress care? Roll Call suggests the answer is negatory. Nevertheless, Sen. Warren has a plan to fix this, and she is persisting.
ODDS & ENDS
Capitol Police disclosed two arrests last week, including one for unlawful entry into the U.S. Capitol Building.
Take five. According to Legistorm, Rep. Granger’s latest chief of staff is leaving, meaning that the Texas representative has gone through five chiefs in the last year and a half.
Low Barr. AG Bill Barr will be resigning this week. He is a relentless advocate for expanding the Executive branch’s power at the expense of, well, of our democracy. Let’s hope he has his day answering questions before Congress.
The Senate voted to name two rooms in the U.S. Capitol for former Sens. Margaret Chase Smith (S-124) and Barbara A. Mikulski (S-115), which is the first time rooms in the Capitol have been named for women. (No word yet if the Senate will agree to remove confederate statues from public display in the Capitol.)
NDAA. It seems weird to relegate the NDAA to a footnote, but Trump’s likely veto, which could come as late as Dec. 23rd, is creating a little scheduling havoc with the override vote.
What would a nonpartisan Speaker look like? Marci Harris has the great story of Tennessee state senator John Wilder, who struck an unusual deal to treat all members of the upper chamber like they matter.
The Library of Congress appointed Dennis Clark as chief of Research and Reference Services. Clark currently serves as dean of libraries and professor at the University of Arkansas.
11 years of House expenditure info now is available from ProPublica as data.
Tech Congress’s Congressional Innovation Scholars program is recruiting. Learn more.
How many words? Each of our newsletters averages around 4,000 words. So over the last two years, we’ve probably written 400,000 words about Congress. Most adult books are about 100,000 words. (Not adult books, rather books for adults. Oh, hell, you know.) We’ll try to be more concise. 🙂 Thanks for sticking with us. If you have comments or feedback or suggestions, drop me a line at [email protected].
THE PENULTIMATE WORD
As the year winds down, I wanted to take a moment to thank all the journalists who have worked tirelessly and in unsafe conditions to report the news from Capitol Hill. Your work is a true public service — as much as the Members and staffers and employees at the support offices and agencies — and it is noticed and appreciated.
THE LAST WORD
Senator Udall’s farewell remarks touched upon some of the dysfunction in the Senate and his proposals for reform. We include that section of his remarks below.
“I am not the first to say in a farewell address, and I won’t be the last: But the Senate is broken.
The Senate is broken, and it is not working for the American people. We are becoming better and better political warriors. We are good at landing a punch, at exposing the hypocrisy, and at riling each other up, but we aren’t fostering our better angels. Our peacemaking skills are atrophied.
Every hurt takes time to heal, and each time we hurt each other, it sets us back. But, unfortunately, the structures we have built reward us for hurting one another. We need to reform those structures or we will never make that progress we need to make.
I have proposed Senate rules changes when I was in the minority and when I was in the majority to make sure this institution does not remain a grave-yard for progress. The Founders did not envision a Senate requiring 60 votes to act. The filibuster came to be through historical accident, and it is now woven into the institutional framework. The promise of the filibuster is that the majority will find common ground with the minority, but the reality of the filibuster is paralysis—a deep paralysis.
On top of this, we have a campaign finance system that is out of control. John McCain told you that over and over again, and he called money the cancer growing on our democracy. And John McCain knew a lot about cancer. Secret money floods campaigns to buy influence instead of letting the voters speak.
Voting rights are under attack. We can do our best to be good people in a system like that, but it is no surprise that America’s faith in government is declining. These structures are antidemocratic. They reward extremism. They punish compromise. Our government is supposed to respond to the will of the majority while protecting the rights of the minority. Instead, we have ‘‘the tyranny of the minority.’’ That tyranny is super wealthy, politically powerful, and dangerously out of touch with the American people.”
CALENDAR & EVENTS
We don’t exactly know the House and Senate’s schedule, but the new Congress is scheduled to start on January 3rd, which is a Sunday.
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.
