Forecast for December 28, 2020

You shouldn’t be at work and neither should I. But since we’re here, this is the latest on the decline and fall of the American republic. Happy holidays!

THE TOP LINE
The COVID/Omnibus bill has been hung up by Pres. Trump and the circumstances could mean a government shutdown lasting two weeks or more… and there’s little Congress can do. Update: As of 8pm Sunday, Pres. Trump has now signed the bill, apparently flipping his position, albeit with the result of undermining a week’s work of unemployment benefits for millions of people.

New Congress? The House of Representatives will convene on Sunday, January 3rd, when it will adopt rules and vote on the Speaker. The Senate will also meet, but absent the results of the Georgia elections — set for January 5th, although it may take time to certify the results — it will likely do little.

Who is going to object to the electoral college vote? The counting of that vote is set for January 6th. Here’s a letter from 18 House Republicans suggesting they will object. CRS has a report on counting electoral votes by Congress.

THE GOOD? We thought it might be nice to mention some of the good things that occurred in the 116th Congress on strengthening the Legislative branch. Here is our non-exhaustive list, published in no particular order:

There are many more projects in the pipeline — we’re looking at you, Posey project — that we are excited about in the new year.

Did we miss something? Probably. Let us know.

HINDSIGHT IS

2020. Fewer than 24 hours after Congress passed the COVID/Omnibus bill, soon-to-be ex-Pres. Trump indicated he would (likely) veto it because lawmakers didn’t include a $2,000 stimulus check, and Trump also made noises about section 230. [Update from Sunday night: looks like he signed it after all.] As Sarah Binder noted in Monkey Cage, the prime reason we got any agreement on COVID relief was, in part, because Sen. McConnell came to believe “that they had to pass a relief package if they wanted to win the Georgia Senate runoffs.” I guess the crashing economy and hundreds of thousands dead wasn’t sufficiently persuasive. The president also complained about the inclusion of a myriad of provisions that he had asked for in his budget request. Are we surprised that Pres. Trump is jerking everyone around? No, we predicted it in this very newsletter back in September. (See 9/14 and 9/21). If you were a political leader with any choice in the matter, why would you have an appropriations fight at the point of max Trumpiness?

Pocket veto. Boy, talk about stepping in it. The omnibus was passed soooo late that the President can refuse to act on it and effectively veto the measure without the possibility of a Congressional override. Worse, even if Congress passed a new bill on January 3rd, the President can still wait 10 days (not including Sundays) to decide to veto, which is January 14th, or 18 days from today. That’s legislative genius. Will he sign-on to a last minute CR? [Update: he signed the bill Sunday night. This was very close to being very, very bad.]

2K. After President Trump announced his opposition to the $600 provision, Speaker Pelosi and Majority Leader Hoyer quickly announced they planned to bring a bill that gives $2,000 to many Americans to the House floor on Thursday. But they didn’t bring the Members back and House Republicans predictably objected to UC. So everyone is coming back today to hold an actual vote — originally scheduled to deal with the NDAA veto — when anyone in the Senate can block movement on the omnibus until after the shutdown has occurred. Not coming back last week to prompt a Senate vote also squandered a last-ditch opportunity to close a gap in unemployment benefits. [Update: while the bill is now law, people still lose a week of unemployment benefits because of the nonsensical delay.]

OMNIBUS COVID BILL

What’s in the 5,593 page COVID/Omnibus bill? Damned if we know. Just so you have it, here’s the bill text, division-by-division summary of appropriations, division-by-division summary of COVID relief provisions, and division-by-division summary of authorizing provisions. And the joint explanatory statements: the Front Matter is here, Division A here, Division B here (this is CJS), Division C here, Division D here, Division E here (this is FSGG), Division F here, Division G here, Division H here, Division I here (this is Leg branch), Division J here, Division K here, and Division L here. Don’t forget to look at the committee reports, too.

If you’re looking for transparency/accountability/ Legislative branch related authorizing language, or other transparency-related items, here’s a handy guide: The AOC’s authority to delegate certain powers (p. 2483-2484); a statement of the jurisdiction of the pandemic response commission (p. 2485-2486); addressing reimbursements for congressional child care (p. 2489-2492); the Open Technology Fund (p. 2493); authorizing oversight.gov (p. 2860-2862); expanding whistleblower protections to subcontractors and subgrantees (p. 2870); extending FAA-related whistleblower protections to manufacturing employees (p. 2979-2981); addressing cloud services for the Senate Sergeant at Arms (p. 5129-5134). Also, for easy reference, Leg branch approps (p. 1106-1168). Note: these page numbers are the actual page numbers, not the numbers typed on the top of the page.

No one asked, but it’s worth noting that we’re in the era where omnibus Approps bills and the NDAA are now a major way that appropriating and authorizing bills become law. Some folks measure a legislator’s productivity by counting up the bills they’ve passed, which not only is inapt (because there are many kinds of productivity), but it also misses all the bills that are packaged into larger bills. FWIW, leadership says the reason you have to have these giant packages is because members won’t vote for them any other way — some members, for example, would vote against 10 of the 12 appropriations bills on principle. There’s some truth to that, but as Obi-Wan famously noted, only from a certain point of view. There are majorities in the chambers to move legislation, but they don’t necessarily align with what leadership wants.

117th CONGRESS

Speaker Pelosi is unpopular among voters. POLITICO reports “most Democrats think she should keep the gavel, but a majority of voters oppose Pelosi staying on as speaker.” Democrats want her to stay on: 53% to 33% — 56% of all voters think she should go — but the only vote that matters is on the first day of the new Congress. (Sen. Mitch McConnell is even less popular than Speaker Pelosi, with a favorability rating of 26% and unfavorability rating of 52%. Ouch). See the poll results and cross-tabs.

The Select Committee on the Modernization of Congress will be extended through the 117th Congress, with Rep. Kilmer returning as the Chair. Demand Progress had coordinated a bipartisan coalition letter in support of its continuation.

2021 Senate calendar has been released; it looks very similar to the 2021 House calendar.

CONGRESS AND CORONAVIRUS

Proxy wars. Despite ongoing opposition to proxy voting by Republicans, five GOP Members voted by proxy and picked Democratic colleagues to cast votes, according to Brooking’s Molly Reynolds. Rep. Gianforte — who recently voted by proxy — is one of the plaintiffs of the House GOP lawsuit against proxy voting. Four of the five Members are not returning to Congress next session.

Oh, Gaetz. We applauded Rep. Gaetz for his use of a proxy vote, but it turns out he attended a black tie at Mar-a-Lago resort the same day he used the vote. Lol. We don’t think people should be required to vote in person during the pandemic, but the regulations currently don’t permit this exception.

CONGRESSIONAL COMMITTEES

Committee Seat Gerrymandering. The Congressional Progressive Caucus Center published an analysis of the foreign policy committees and subcommittees in the House during the 116th Congress and found that CPC Members only have 2/3rds of the seats they should have while New Dems have a disproportionately high share of Democratic seats. Moreover, neither the CPC or Freedom Caucus have Members who sit on the House Appropriations Subcommittee on Defense, which controls military spending. This is committee seat gerrymandering: it is how leadership controls what comes out of committees by controlling who serve on them.

The House Intel Committee has seen better days. POLITICO recently ran down the political fights inside the committee (with one former chair suggesting a new start by replacing the leadership). Want more? Tthe newly minter newsletter Spy Talk covered the history of fear and loathing ($) on the committee (going back decades); a new CPCC report shows that HPSCI is underrepresented with CPC members and overrepresented with New Dems; this amazing report from McClatchchy’s Tim Johnson and Ben Wieder covers how HPSCI and SSCI lean on ex-spies to oversee the spy agencies; our report covers how to strengthen intel oversight; POGO’s testimony addresses providing members of the committee with staff designees with TS/SCI clearance; and, don’t forget, Speaker Pelosi is the longest-serving members of the committee ever. If that’s not enough, here’s our explainer on how congressional clearances work and here’s how the committee historically has violated House rules on composition.

Outgoing Rep. Steve King, known for his racist views, filed an ethics complaint against Republican Leader Kevin McCarthy for stripping him of his committee assignments. We are not sympathetic with Rep. King at all, but we do have concerns with the way committee assignments are made — by party leadership (where the subsequent chamber vote is pro forma). For example, Rep. Amash lost his committee assignments when he left the Republican party. As most of the work is done on committees, this is a real detriment. There are other ways to make assignments, but so long as selection is controlled by the two parties, you won’t see many defections for reasons of principle… even if one of those parties goes full derp state.

CONGRESSIONAL OPERATIONS

House Chief Administrative Officer Phil Kiko is leaving Congress, according to an announcement by Speaker Pelosi. Kiko isn’t the only senior officer who is departing at the end of Congress. House CIO and head of HIR Catherine Szpindor was mentioned as retiring in a recent (belated) report from CAO requested by the SCOMC. (We’re still working our way through the report.)

Pres.-elect Biden is expected to slow-walk some House appointees to his administration to make sure he doesn’t endanger majority control. This will create a series of rolling elections.

FIXING CONGRESS

What to do when you don’t know who the Senator will be? People elected to the Senate (and now the House) are entitled to a transition staffer, paid by the federal government, that can aid that members in the post-election pre-swearing-in period. But what happens if you are a current member of Congress and no one knows who will win the election for the seat in which you sit? (For example, Sen. Perdue.) The Senate passed S. Res 805 — the bill text is not on Congress.gov but is in the Congressional Record — that apparently applies only to a Senator if the Senator was a candidate for the next term of office and the office is not filled at the commencement of that next term.

Diversity tracker. The Joint Center launched a new tool that allows you to track the diversity of top staff of new Members of Congress; positions include chief of staff, legislative director, and communications director. The Joint Center released a report in August that found only 11% of Senate top staff are people of color despite compromising roughly 40% of the U.S. population.

Tax extenders are undercovered as a general rule. BGOV ($) explained the recent omnibus changed the rules somewhat, should it be enacted, with Congress’s decision to set different deadlines for when extensions of tax breaks would expire. In addition, some of the usual recurring tax breaks, put in place for scoring purposes, have become permanent. (Is there a better term for when the government spends tax dollars in this way? They look a lot like tax earmarks.)

TRANSPARENCY & ACCOUNTABILITY

Legal opinions by the Office of Legal Counsel are, among many other things, a mechanism to retrench Executive branch power and undermine Congress. The opinions, many of which are secret, can also undermine democracy. Just read what Erica Newland wrote about her experiences. This is also why we support legislation that requires authoritative OLC opinions to be publicly available (except in limited circumstances).

Subpoena power. House Oversightwill reissue a subpoena for President Donald Trump’s financial records in 2021. Democrats had belatedly pursued the records since 2019 (after months of dithering by Rep. Neal), but the case has been tied up in the courts. Democrats want the financial records to craft ethics reform legislation next Congress. House Judiciary also intended to reissue its subpoena for Don McGahn’s testimony.

The Federal Courts are pushing legislation that would unconstitutionally limit what can be said about judges and also would undermine the disclosure of conflicts of interest and other lapses that relate to federal judges. Fortunately, it appears to have failed for this Congress, but only because Members of Congress wanted to shield themselves from public scrutiny as well, tanking the bill.

One author of FOIA, Mark Schlefer, has died. The story of how he pushed on the first FOIA bill is crazy. If you want to go down a rabbit hole, Schlefer tells his story here, and here’s the story of iconoclastic Rep. John Moss, the father of FOIA and a major political reformer.

Destroying federal documents during the transition is a crime, writes former Bush White House chief Ethics lawyer Richard Painter in a thoughtful exposition of records retention requirements.

The Espionage Act, journalists, and prosecutions. The ED for the Reporters Committee for Freedom of the Press explained how the Assange case sets a bold (anti-accountability) precedent: “this case is nothing less than the first time in American history that the US government has sought to prosecute the act of publishing state secrets, something that national security reporters do with some regularity.” He adds, if “the legal theory in the three pure publication counts is applicable to core journalistic activities… the normalization of prosecutions based solely on the publication of official secrets could get a toehold in the US.”

ETHICS

Unethical pardons. On Tuesday night, Trump announced a wave of pardons that included former Reps. Duncan Hunter and Chris Collins — two of his earliest supporters in Congress; four Blackwater private security officers who opened fire on Iraqi civilians in 2007, killing at least 14 including two boys; and George Papdopoulous and Alex van der Zwaan, two men that pleaded guilty for lying in the Mueller investigation. Duncan Hunter was sentenced to 11 months for stealing campaign funds while Chris Collins was sentenced to 26 months for insider trading.

The real motivation. As Axios’s Jonathan Swan has explained, the ability to overturn the work of another branch of government, the judiciary, is the primary reason why President Trump loves pardons; it’s pure power and instant gratification. Per Jack Goldsmith, 60 of President Trump’s 65 pardons to date aided someone with a personal tie to the president or furthered his political agenda, equating to over 92% of pardons thus far.

Beg pardon? Congress has largely forgotten it has the ability to right wrongs through the use of private laws, which are bills intended to help a specific individual or corporate entity. These bills can provide citizenship, money to compensate a wrong, address veterans benefits, and more. Their goal is to provide equity when other remedies have failed. According to CRS, only 4 private bills have been enacted since 2007; 57 such bills are pending this Congress. That’s a lot of heart-break. My colleague Melane Buck did a deep dive into them in 2010. Maybe it’s time they come back.

GAO has issued a new report: Agencies Need to Enhance Policies to Address Foreign Influence.

ODDS & ENDS

Confederate General Lee, or at least his stony likeness, was removed from the U.S. Capitol on December 21st after the state of Virginia decided to replace it with the likeness of civil rights pioneer Barbara Johns, who at age 16 led a student strike for equal education that resulted in a lawsuit that was incorporated into Brown v. Board of Ed. Alas, Senate Republicans struck language that would have addressed the other Confederates in the Capitol Building and opposed non-legislative efforts to move them out of sight.

Guns on the hill. The question of whether to revise rules concerning Members carrying firearms has been sent to the Capitol Police Board, reported Axios. They slightly misstate the composition of the Board: voting members include the House SAA (chosen by Speaker Pelosi); the Senate SAA (chosen by Majority Leader McConnell; and the AOC (nominated by a bipartisan commission, appointed by the President (in this case, Trump), and subject to Senate confirmation); with the USCP chief as a non-voting member. These are also the same people who oversee the incredibly opaque Capitol Police. Don’t expect anything to come from this.

Where’s the Plum book? BGOV has a helpful status update ($) on the PLUM book, which lists the political positions that will become vacant as the Trump administration departs. OPM reportedly said it sent GPO a list of the openings on Nov. 13, and GPO provided a proof of the book to Congress; House Oversight said it is reviewing the proof. Both CORE and HSGAC had moved to report legislation to modernize the Plum book, which we summarized here and was endorsed by civil society here, but it has not moved in either chamber.

The Law Library of Congress has been very busy, taking on digitization efforts, responding to congressional research requests, and more. Read about it here.

CALENDAR

The House and Senate return to overturn the NDAA veto and consider appropriations measures. (Dec. 28)

New Congress starts on January 3rd. The House will adopt rules.

The Congressional Management Foundation will 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.