First Branch Forecast: January 18, 2021

THE TOP LINE
The insurrection is not over. The likelihood of violence at federal and state capitals across the country and ongoing organizing by white nationalists means the danger of immediate political violence has not passed even as the national guard and local police forces are on high alert. Meanwhile, the Twitter pundits who tittered that the sacking of the Capitol Building was a mere beer hall putsch have come to acknowledge the attackers were better armed, better organized, and more dangerous than they had ever guessed — and came within moments of decapitating the legislature and murdering the presidential line of succession.

Too many officials in the Republican party, meanwhile, are still giving aid and comfort to the enemies of democracy. Only ten House Republicans voted (232-197) to remove Donald Trump from power. Outgoing Sen. Majority Leader McConnell rebuffed Sen. Schumer’s request to immediately reconvene the Senate, ensuring a removal vote cannot happen while Trump is in office. Sen. McConnell, a political Von Hindenburg who used Trump’s popularity with the base to move his ultra-conservative political agenda, has found his party’s beholdenness to the feckless aspiring autocrat is now imperiling corporate support for his party and slightly slowing the revolving door. Consequently, Sen. McConnell belatedly hinted his openness to Trump’s removal in order to restore corporate support, which is (also belatedly) being cut off to the party and major conservative groups as donors realize the danger to their brands. There’s talk that some Republicans voted against removing Trump out of fear for their physical safety, although many likely were focused on their political well-being; meanwhile Sen. McConnell is using the Trump removal effort to hinder the incoming Biden administration.

The big lie, “stop the steal,” nurtured by many Republicans, is an inversion of reality: the real fraud is the decades-long voter suppression efforts that arise from gerrymandering and efforts to disenfranchise minority, younger, and less wealthy voters. We know this, in part, because we have the secret files of the guy who led this effort. Voter purges, witness intimidation, ID requirements, and gerrymandering are rooted in Jim Crow practices and a long history of American violence aimed at subverting our political institutions. Those who wish to argue #bothsides on this matter need only to consider the 138 House Republicans and 7 Senate Republicans who voted — in the midst of the sacking of the Capitol — to exclude votes by the state of Pennsylvania in determining the presidential winner. The 8 Senate Republicans who voted to ignore the election — Sens. Cruz, Hawley, Hyde-Smith, Kennedy, Lummis, Marshall, Scott, and Tuberville — surely have fellow travelers among their colleagues, such as Sen. Lindsey Graham, who is actively working to undermine Trump’s removal. In the House, Minority Leader Kevin McCarthy’s former boss and mentor, Rep. Bill Thomas, went on TV to excoriate Rep. McCarthy, calling him a “hypocrite” for supporting “the phony lies the president perpetuated.”

There is a direct line between Charlottesville and #bothsides to “stop the steal” and sedition. Members of the mob had maps, weapons, two-way radios, military and police training, and some say they had inside help… including, potentially, from Members of Congress. We can see they were encouraged — some would say incited — to violence: the unhinged rantings of a handful of particularly vocal Qanon-friendly House and Senate Republicans were buttressed and often echoed by leadership. The willingness to physically contest even the most simple rules, such as mask requirements and gun prohibitions on the chamber floor, suggest some members inside Congress are engaged in agitprop, looking to the mob to elevate their political fortunes.

The city on the hill. And so on Wednesday, Pres.-elect Biden will take the oath of office, surrounded by 1,000 supporters, ringed by 20,000+ security personnel, and that morning Trump will flee the crime scene. Various Inspectors General and congressional committees are spinning up investigations of what happened — we joined a panel discussion on this topic on Friday — and the work to repair our democracy will begin even as 7 in 10 Republicans believe his election was fraudulent and those out of power plot for 2022, 2024, and beyond. For our part, we will continue to focus on improving Congress’s ability to do its job, government accountability, and rebuilding our democracy.

TRIAL AND REMOVAL
Nu? Speaker Pelosi has yet to transmit the articles of impeachment, but Sen. McConnell made clear he will not act to convene the Senate before Inauguration Day, upon which he will no longer be majority leader. (We are old enough to remember when he rammed through a SCOTUS nomination four days before a presidential election; now he says the Senate can’t meet prior to the Inauguration.) Democrats may want the Senate to walk and chew gum — legislative business part of the day and the impeachment trial the other part — and we’ll see if Sen. McConnell finds a way to spike that. Given that most Senators are eye-witnesses to the insurrection and its incitement, and the facts are not in dispute by any fair minded person, a trial need not be lengthy, but as Seung Min Kim suggests, Senate Republicans may want to drag it out to (presumably) undermine the Biden administration’s efforts to grapple with COVID, the economic crisis, and nominee confirmations.

A nonsense argument we may see, which could be another reason for Sen. McConnell’s delaying tactics, is the false assertion that the Senate cannot remove Trump as he will no longer be president. The Congressional Research Service, in a new report, says (in its understated way): “most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.” Furthermore, “both chambers have previously determined that they retain power to proceed against an executive branch official that has resigned from office.”

Will Trump be removed and barred from again running for office? Assuming 50 Democratic votes, merely 17 Senate Republicans need to agree. Senate Majority Leader Mitch McConnell is telling GOP colleagues to vote freely, and Republican consultant Keith Naughton thinks it is not a hard lift, but only if Sen. McConnell wants it.

Impeachment managers were announced by Speaker Pelosi: Reps. Raskin (lead), DeGette, Cicilline, Castro, Swalwell, Lieu, Plaskett, Dean, and Neguse.

Lots of questions remain. Will the Chief Justice preside? Will Democrats call witnesses? Will Trump offer a defense? Will the power-sharing agreement affect how it operates?

This all kicks off after Georgia officials certify the election results, expected by the end of Inauguration Day, which allows Sens.-elect Ossoff and Warnock to be sworn in Thursday. Meanwhile, once Vice-President-elect Harris resigns on Monday, her CA successor Alex Padilla will be sworn in on the Senate floor. Voilà, Sen. Schumer is majority leader, and Sens. Schumer and McConnell will likely enter into a power sharing agreement that looks kinda like this. (We have some recommendations.)

IMPEACHMENT AND INSURRECTION
We’re still not over how it went down and the aftermath. Rep. Jordan — the de facto leader of the House GOP — is leading the charge for Rep. Cheney to be stripped of her leadership position after she voted in favor of impeachment along with 9 of her colleagues. (If Profiles in Courage is ever updated, we have ten candidates for inclusion.) Leader McCarthy later rejected the idea of her expulsion. But Rep. Jordan may be able to obtain enough signatures to force a meeting, per the conference rules.

Accountability. On Friday, Speaker Nancy Pelosi suggested that Members of Congress should be prosecuted if evidence is uncovered that they aided and abetted the insurrection. According to multiple news reports, one of the ‘Stop the Steal’ organizers was in contact with at least three GOP lawmakers. Others apparently helped incite the riot and some may have helped the insurrectionists case the Congress. (Sidebar: why were Members allowed to continue to give tours during the COVID pandemic when the building is closed?) FWIW, the Constitution allows the House or Senate to expel a member upon a two-thirds vote. Presumably conspiring to murder your colleagues and overthrow democracy, or negligent behavior to bring about that result, would constitute an ethics violation.

If you ask us, we’d be thinking about kicking Members who apparently aided the insurrection off committees as a salutary starting point. We’d also be thinking how to make it possible for loyalist Republicans to distinguish themselves from seditionist Republicans and escape their current party structure while still enjoying the full perks of being a Member of Congress. One can imagine a provision within the House Rules that affords loyalist Republicans a proportional number of seats on committees, the ability to choose loyalist Republican leaders, and thereby allow them to sufficiently separate their brand so that traditional Republican donors can begin supporting the loyalists while defunding the seditionists. We suspect that many Republicans are going along with Trumpism out of fear, but perhaps they can be motivated to find their better angels through an opportunity for political advancement.

Progre$$? Republicans may emerge from the Trump era gutted financially, institutionally, and structurally. They lost congressional majorities in both chambers during his presidency; some corporations are (currently) halting and blacklisting GOP PACs and lawmakers; major conservative organizations that coined the term “stop the steal” and pushed disinformation (and got caught) may finally face blowback; party fundraising is a mess; and Sheldon Adelson — the party’s biggest donor — passed away. Maybe it’s time for a clean break? (I won’t say a “new deal.”)

CAPITOL SECURITY
Investigations are underway. Four federal agency IGs — DOD, DOJ, DHS, and DOI — have launched investigations into the insurrection. On Friday, Speaker Pelosi announced Russel Honoré will lead an investigation into Capitol Complex security failure. HPSCI, Homeland Security, Oversight, and Judiciary sent a joint letter to the Intel Community looking into intelligence and security preparedness failures. House Leg branch Appropriations previously announced they’ll be delving into the Capitol Police, and the Capitol Police IG will conduct a (likely secret) investigation. There’s also at least eight investigations into 17 Capitol Police officers, according to Chris Marquette. We expect House Admin and Senate Rules will also look into this, and perhaps others.

A starting point. Carol Leonnig reported that a secret 12-page Capitol Police intelligence report warned of likely violence 3 days prior to the attack on the Capitol. And Rep. Sherrill is leading an effort with over 30 Members to request an investigation from the Acting House Sergeant at Arms, Acting Senate SAA, and USCP into why visitors were given access to the Capitol complex on January 5 — the day before the insurrection.

As you know, this past Friday, Demand Progress Education Fund and the Article One Coalition hosted a webinar to discuss the opaque activities of the USCP and how Congress must reform the department. The hour-long conversation included me, Roll Call’s Chris Marquette, and Advocacy Blueprint’s Nicole Tisdale (a former Homeland Security staffer). We’ve been digging into the Capitol Police for years — go here for a compendium of our research and resources.

Our unsolicited advice. If a newspaper of record were to offer us the space, we’d spend our 800 words advocating for a bifurcated response: what to do now and what to do later. First, there are obvious problems with the USCP, how it’s overseen, and how it operates, so we’d immediately put in place the following reforms: We’d fully put a FOIA-like process into effect (with an external appeals process); mandate IG reports be publicly available (with limited exceptions); hire a public affairs team at USCP led by an ex-journalist who cares about transparency and has the authority to release information; create an advisory board with its own paid staff that’s composed of Members, staff, journalists, lobbyists, and public representatives; revamp how complaints about the USCP are solicited and handled; get a union contract in place; get demographic info on USCP employees; tighten capitol security w/r/t metal detectors for all; and narrow the USCP’s focus to security. Second, over the upcoming months, we’d coordinate the various review processes; put in place a commission to review what happened and require an interim report with preliminary recommendations in 6 months; dig deeply into possible infiltration by white nationalists; and fundamentally change the USCP Board. Okay, maybe we’d need 1300 words.

Blame game. USCP officers have already said they have lost faith in leadership; now they have a lot of company. Former USCP Chief Sund gave an interview to the Washington Post, but we are not sure he has a clear-eyed view. Difficulties in engaging with the USCP is why we rated them an F- for transparency and accountability, and apparently a former Capitol Police chief agrees, while passing the buck in protection of his successor, saying “there hasn’t been a willingness [by Congress] to open up [the USCP] to scrutiny….” Regardless, we agree with Meredith McGehee, who opined that we must keep the Capitol complex open to the public.

More arrests. The FBI and other authorities have arrested more than 100 people and identified more than 200 suspects in connection with last week’s attack. Police officers and highly trained ex-military from around the country were among the crowd that stormed the Capitol. Dozens of individuals on the FBI’s terrorist watch list were also in attendance. The FBI’s failure to act based on that information says a lot about the FBI’s abilities to analyze and share information but is not an argument for a domestic terrorism law, as there are enough laws on the books already and a new law would likely be used to harm the people it is intended to protect.

Racism in the Capitol Police? The latest investigation by ProPublica’s Joshua Kaplan and Joaquin Sapien sheds more light on just how common discrimination and racism is within the USCP. Over 250 Black cops have sued the department since 2001, according to the investigation. From what we’ve seen, there are problems inside the department and also how the department relates to Members, staff, and the public. How much of this is out-and-out racism versus ignorance will be one question worth probing. The USCP is not unique, but the lack of public accountability has made matters worse.

A resolution to honor USCP Officer Eugene Goodman with the Congressional Gold Medal has been introduced by a bipartisan group of lawmakers. Officer Goodman single-handedly held off a group of insurrections from breaching the Senate chamber while senators were still on the floor.

A final word. The Capitol Complex has video surveillance, we presume. The CIA destroyed videotapes of torture of prisoners despite a Congressional demand and a White House directive that they be preserved; the person who wrote the order, Gina Haspell, is now the director of the CIA. Muslims rounded-up and incarcerated immediately after 9/11 were viciously abused by the guards; DOJ’s Office of Inspector General subsequently determined that while surveillance cameras were installed to address potential allegations of abuse by the Bureau of Prisons, and those tapes were directed to be preserved indefinitely, staff destroyed the tapes nonetheless. In other words, Congress should immediately move to secure all records and make duplicates, especially when the likely holders of the video, and their superiors, are under investigation.

COME ON, FOLKS
No weapons allowed on the House floor. Several Members have indicated they are carrying firearms on the Capitol grounds, including Reps. Boebert, Cawthorn, and Greene. Rep. Cawthorn said he had his firearm with him during the insurrection. If you are curious, here is the 1967 regulation, issued by the Capitol Police Board, prohibiting Members of Congress from carrying firearms on or near the floor of the House and Senate. It is pursuant to 40 USC 5401.

If you ask us, everyone should be required to go through the magnetometers prior to entering the Capitol complex, including Members of Congress and their guests, and firearms generally should be prohibited for personal use. Those who can demonstrate a need for a firearm should be required to store it in a secure location controlled by the Capitol Police.

Because certain members suggested they kept their firearms in circumstances prohibited by law, Speaker Pelosi instituted magnetometers to detect the carrying of firearms onto the House floor, apparently without consultation with the minority. So, of course, certain very special representatives decided this was an opportunity to get a little more attention and walked around the magnetometers. Consequently, Speaker Pelosi announced she will propose a rule that would fine members for sidestepping the devices, with the amount to be deducted from their paychecks. Members who think this infringes upon their Second Amendment rights would be well advised to re-read Justice Scalia’s opinion in Heller, which says: “ [N]othing in our opinion should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings….” They should also read Article I Section 5 of the Constitution, which grants each House the ability to determine its own rules and punish members for disorderly behavior.

CONTINUITY OF CONGRESS
Masks on. The House passed a rule included in Section 4 the 25th Amendment resolution that would authorize the Ethics Committee + House Officers to write regulations to impose a fine on Members who fail to wear a mask on the House floor. (The 25th Amendment resolution was an ill-begotten effort to ask Trump’s cabinet to remove him, which only served to delay the inevitable impeachment vote while giving everyone a good laugh.) The rule would remain in effect until the Centers of Disease Control and Prevention deems it is safe not to wear a mask.

More positive cases. This mask mandate comes after a slew of Members tested positive for COVID-19, including Reps. Watson Coleman, Jayapal, Schneider, and Espaillat after being forced into a lock down with mask-less GOP Members. Rep. Pressley’s husband, who was also in the lock down room, tested positive as well.

GOP proxy voting. Republicans still are bitterly denouncing proxy voting in the House during the pandemic — contesting it in court and stating that Members must show up just like front-line workers. (FWIW, we disagree, and would institute fully remote deliberations during the COVID emergency.) Now, after the mob attack, Rep. McCarthy has okayed conference members to vote by proxy for “safety measures,” and several GOP lawmakers utilized the provision during the week, including impeachment. (We applaud this change in stance.) While some Republicans have sincerely-held beliefs on remote deliberations, we think that many opposed proxy voting to stay in line with Trump’s deadly messaging that COVID was not a real threat and masks are an over-reaction. By the way, we’re about to hit 400,000 dead in the US, or one out of every thousand Americans. For more on remote voting, read this by Taylor J. Swift.

The Brookings Institution has a new analysis that examines how proxy voting was used in the 116th Congress.

CAPITOL SUPPORT
The Capitol Hill community is hurting. Congressional staff, essential workers, and journalists are understandably shaken after a combination workplace shooting and mob attack. This is especially true for minority staffers and Capitol workers. These are often 20-something year olds who work long hours for minimal pay.

The Congressional Staff Alumni Council set up a page on its website this week for former staffers to leave notes of encouragement. As of writing this newsletter, there have been more than 500 messages posted thanking staffers for their service.

Stress management resources. The Congressional Management Foundation hosted a webinar for congressional staff with former Rep. Brian Baird, a clinical psychologist, and Nicole Tisdale, who offered advice on coping and shared skills to deal with the aftermath of last week’s attack. CMF also updated its “Congressional Crisis Preparation & Response Center” resource list.

Capitol Strong, a coalition of civil society organizations — we are proud to be involved in this effort — is working to provide continuing resources for all congressional employees and push forward meaningful dialogue on how our country can heal. The new coalition launched a website and sent a letter to Hill Staffers expressing support and inviting them to share input or recommendations.

CONGRESSIONAL OPS
Shalanda Young has been nominated Deputy Director of OMB. Young was an appropriations staffer for 17 years and became staff director of the committee in 2017. House Appropriations Chair DeLauro named Robin Juliano the new staff director and clerk of the committee. Juliano was previously clerk for the LHHS Subcommittee, which was chaired by Rep. DeLauro last Congress. Matt Washington was named Deputy Staff Director. (Congratulations!) The committee also announced clerks for the 117th session.

Committee appointments. House Dems announced additional committee appointments for the 117th Congress. Meanwhile, House GOP announced their Appropriation Committee Members.

We are perplexed by why Rep. Porter lost her seat on the House Financial Services Committee. She literally was a financial law professor and is known for her insightful questioning. Maybe the committee, which is viewed as a good place to send members to raise corporate money, needed to be made more congenial to those interests? She apparently requested to stay on the committee. We would like to see the Democratic Caucus Steering Committee rules, which still are secret.

Still wondering what’s in the House rules package? We created an index of the House rules proceedings, including highlights like a section-by-section guide of what’s changed, Member appointments, and more. My personal favorite: the rules concerning floor proceedings.

The Rules Committee rules have been published. As a reminder, every House committee must adopt rules for their proceedings — this is the one chance for Members of a committee to push for rules that allow their legislation to be considered and their voices to be heard.

New Member hiring lags for top staff of color according to research from the Joint Center for Political and Economic Studies. Their interactive tool’s latest hiring updates shows that roughly roughly two-thirds of Congress’s top staff jobs have been filled. So far, 23.4 percent of the top spots are people of color, compared to 40 percent of the U.S. population.

House makeup. Rep. Richmond officially resigned from the House to join the Biden White House as senior adviser. The House now has 221 Democrats and 211 Republicans with three open seats: LA02 (Richmond), LA05 (Letlow), and NY22 (Brindisi-Tenney) still undecided. Julia Letlow, the widow of Rep.-elect Luke Letlow, is planning to run for his congressional seat.

Freshmen Members are sleeping in their offices and showering in the Capitol gym, despite the ongoing pandemic. Rep. Cawthorn is living in his office, mainly (he says) because he is worried about finding DC housing that is suitable for a wheelchair. Last May, Rep. Speier sent a letter to the AOC and OAP urging them to ban Members from sleeping in their offices, citing the concern of the pandemic. We agree, and would add there should be a housing subsidy to help make this possible.

Clearances. John Donnelly wrote what we think was an insufficiently insightful article on requiring security clearances for Members of Congress, who by virtue of their Constitutional positions, do not need a clearance — but, and this is a crucial point, they must still demonstrate a need-to-know prior to access. There have always been nutty Members of Congress who in theory have access to highly classified information, especially on its intelligence committees, including Devin Nunes, Michelle Bachmann, and Mike Pompeo. But also recall that the clearance process currently is an Executive branch function (except for atomic-related matters), as Congress has declined to enact a statute, and we’ve allowed people like Donald Trump and (CIA Director) Mike Pompeo to have access to tightly controlled info. We use the Senate to determine who can become a cabinet official, for example, and the Senate has let through a lot of lemons in the interests of partisanship. In addition, does anything still think the President should have power over Congress’s ability to conduct oversight?

About 4 million people have security clearances, including a couple hundred thousand with top clearances, but the number in the Legislative branch, which oversees all of this, is a few thousand, which reduces to a few hundred for top clearances. We think all Members of Congress should have professional staff with appropriate clearances to make sure the wool isn’t pulled over their eyes by the Intel Community, who would be granted access to info on a need-to-know basis. If you want to know more about how staff clearances work, read our report.

ETHICS
The Preventing a Patronage System Act was introduced on Wednesday, which is a bipartisan bill that would nullify the Trump executive order that created the controversial Schedule F class and would require congressional approval of any future efforts to create a new federal job classification outside of the merit-based civil service.

The Executive Branch Conflict of Interest Act, which would ban companies from making “golden parachute” payments that reward former employees for joining the government, has been reintroduced in the House Oversight and Reform Committee. It was introduced in 2019 by late Rep. Cummings and is included in H.R. 1.

Pay-for-Pardons. No one should be surprised that people with access to Trump have set up businesses where they get paid to ask him to pardon someone. One wonders if Trump gets a cut and whether this will prompt Congress to take up lobbying and pardon reforms. FWIW, former Rep. John Duncan (R-TN) pushed the Presidential Library Donation Reform Act for nearly 20 years as part of an attempt to address Bill Clinton’s Marc Rich pardon, but the legislation, which we supported and passed the House, was always stymied by you-know-who in the Senate, so we can imagine the fate of reform efforts now.

NOMINATIONS
AM to PM. Biden has an ambitious agenda, and the clock will start ticking the minute he is sworn in. Nick Niedzwiadek reports that the Senate may plan to hold Biden nominee hearings in the morning, and the impeachment trial in the afternoons and evenings (which is how the Clinton impeachment was handled).

Looking at the hearing schedule. On Tuesday, Treasury nominee Janet Yellen will appear before the Finance Committee; DNI nominee Avril Haines will appear before SSCI; Homeland Security nominee Alejandro N. Mayorkas will appear before HSGAC; Secretary of State nominee Antony J. Blinken will appear before Foreign Relations; Defense Department nominee Lloyd Austin will appear before Armed Services. On Thursday, Transportation nominee Peter Buttigieg will appear before Transportation. The schedule is here.

ODDS & ENDS
Action codes. Ever wanted to track each step of the legislative process online but find it difficult to do so? The Library of Congress’s recent blog demonstrates how users can utilize legislative “action codes” to do just that.

College to Congress is looking for current and former Hill staffers to mentor students making the transition from college to interning in Congress. Sign up to become a mentor here.

More odd than end: Twitter has suspended Rep. Marjorie Taylor Greene (QOP) for 12 hours for lying about the election. What’s the over/under on her expulsion from the Republican party and expulsion from the House of Representatives?

A FINAL OBSERVATION
Remember, seemingly a million years ago, when experts on autocracy were warning about the “normalization” of Trump? It is easy to forget that the Trump regimes’s behavior, from putting kids in cages to consequence-free lying about the election, is not okay. POLITICO just thought it was appropriate to have Ben Shapiro edit its leading news publication. The Overton window has shifted so far that two-thirds of Republicans think the election was illegitimate. Many of them probably think Obama was born in Kenya. The label alt-facts had Orwellian appeal for the cynics among us, but alt-democracy is just illiberalism and authoritarianism. This is awful. We cannot assume that people know their history or can see through the prevalent #bothsides journalism and punditry. The American political left is not the equivalent of the right, not by a long shot. Even the framing of “bipartisanship” is a trap for the unwitting. We will continue to call things as we see them as we continue to focus on rebuilding the Legislative branch. We hope you’ll stick with us.

If you made it this far, it is always worth reading MLK’s letter from a Birmingham jail.

CALENDAR
The Brookings Institution is hosting a webinar titled “A Conversation About Domestic Governance Reform” on Tuesday at 10 am ET.

Bipartisan Policy Center is hosting two webinars on “Modernizing Congress: Progress and Prospects”:

• 1/28/21, 12:15 pm — “Congress Overwhelmed

• 2/1/21, 12:15 pm — “Modernization Committee

R Street is hosting a panel titled “Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform,” on February 2nd at noon.

The Congressional Management Foundation is holding the following new member orientations:

• 1/29/21, 12:00 pm – “Hiring an Effective and Diverse Staff”

• 2/12/21, 12:00 pm – “Setting Up a Scheduling Operation”