First Branch Forecast: January 25, 2021

In just three weeks, we’ve seen an insurrection, a second impeachment, and the emergence of “unified” government. We have not seen Republican leaders in Congress take personal responsibility for abetting Trump’s four-year long power grab, commit to holding Trump and his fellow travelers accountable, or earnestly pledging to work with Pres. Biden to repair our democracy. The autocratic fever has not broken.

The good news just keeps on coming. Tell your friends to subscribe to our little newsletter focused on strengthening the Legislative branch and don’t forget there’s more info at FirstBranchForecast.com.

THE TOP LINE

A new hope? Joe Biden, in his inaugural speech, called for an end to our “uncivil war.” He also swore an oath to “preserve, protect, and defend the Constitution of the United States.” These two commitments may prove mutually exclusive as many senior congressional Republicans gave aid, comfort, and encouragement to seditionists and authoritarians for years and continue to stoke anti-democratic fires to this very day.

Healing starts with accountability and Trump’s impeachment trial will begin on February 8. Already House Minority Leader McCarthy has performed a volte-face and now falsely claims Trump did not provoke the Capitol riot, adding that every American bears responsibility. (It’s not going over well.) Meanwhile, at least one of the rioters was charged with threatening to kill a specifically-named Member of Congress and the DOJ + FBI are considering not charging some of the mob who stormed the Capitol. Oh, and apparently Trump and a DOJ lawyer plotted to remove the acting AG and install a loyalist who would overturn the election. Without accountability, this is all going to happen again and the result next time may not be favorable to democracy. Incidentally, Anna Massoglia has an excellent report on the shell companies and dark money around the DC protests — hey, isn’t the fight against disclosure of money in politics Sen. McConnell’s signature issue, and concerns about decreasing corporate support to Republicans a potential driver of his political positioning?

Sen. McConnell has frozen the Senate by threatening to filibuster a new organizing resolution, the result of which is Republicans are still chairing Senate committees, staff hiring is frozen, and new Senators cannot be assigned to committees. Sen. McConnell demanded Democrats agree not to further weaken the filibuster against legislation — don’t forget, it already doesn’t apply to certain measures and McConnell himself has weakened its application — to preserve Sen. McConnell’s minority veto against Democratic priorities that could otherwise be realized through unified Democratic control of the House, Senate, and White House. Sen. Schumer rejected that proposal and “negotiations” are continuing. Sen. McConnell, who pushed (and perhaps masterminded some of) Trump’s anti-democratic policies, is now trying to hedge his bets on the out-of-office autocrat as part of his pursuit of Republican hegemony.

Legislation and hearings are not impossible in current circumstances, but are very, very difficult. We are looking forward to appropriations season, which is almost here. The top line spending numbers have to be coming soon, right?, and everyone wants to know about budget reconciliation. Since we have a one-track mind, last June we looked at Leg branch funding versus overall federal discretionary spending (it’s not a pretty picture): Congress is systematically de-funding itself. Also coming up: the House and Senate will soon set committee funding levels for the 117th Congress. Curious about the trends and who gets what? Check out our reports for the House and Senate.

We’re pretty tired. It’s easy to lose sight of the big picture — just witness the NYT’s story on Biden’s watch — and the seditionists and their allies guys are hoping you’ll lose focus, get lost in the weeds, be taken in by false equivalence, and be distracted by the petit scandal du jour. Our democracy needs fundamental reform and there’s literally no time to waste.

THE FILIBUSTER

The Senate filibuster is one of those issues that bring out the worst kinds of sophistry. The filibuster does not apply to all legislation — e.g. war powers resolutions, budget reconciliations, congressional review act — and more recently the Senate decided the filibuster did not apply to federal court judges and presidential nominations. It is not part of the Constitution, was not used by the founders, was nurtured to protect slavery, and later was primarily used to protect Jim Crow. It has been altered over time, and major laws routinely used to be passed by majority vote.

Unequal in its effects. The filibuster does not apply to two top Republican priorities: redistributing wealth to the wealthy (through tax reductions) and installing federal judges. It does, however, apply to top Democratic priorities, such as healthcare, consumer protection, civil rights, and antitrust. The very structure of government is currently weighted in favor of Republicans, with Senate elections having a 3% bias towards Republicans, the House having a 4.8% (or 21 seat) bias towards Republicans, and the electoral college suffering from a similar bias. The “minority rights” that Sen. McConnell warns will be encroached — not, mind you, the rights of actual minorities who suffer from discrimination on the basis of race, gender, sexual orientation, or national origin — are in fact overly-protected by the very structure of government.

Pernicious effects. Were the shoe on the other foot, and the Senate 51-49 Republican, is there any doubt that Sen. McConnell would do whatever it takes to further his agenda? Read Jane Mayer’s piece again. Sen. McConnell’s willingness to gratify Trump’s anti-democratic impulses, to speed strikingly unfit and partisan nominees to high political offices, and to play games to stack the courts with unfit judges suggests that a little thing like the filibuster most certainly would not stand in his way. The filibuster makes it extraordinarily hard to pass bills big and small and concentrates power in the hands of one man.

LOYALIST VS SEDITIONIST REPUBLICANS

What does the current Republican Party stand for? Anyone? We think members of the party who still support democracy — and there are many — must separate themselves from the anti-democracy forces. Our political system encourages alliances between different interests, but the existence of democracy itself is at stake should an anti-democratic party come into power. There is, I suspect, great fear and inertia that causes may to default to remaining, but that choice is untenable.

Liz Cheney will remain as House GOP conference chair, suggested House Minority Leader McCarthy, although he is hedging his bets. We are not exactly fans of Rep. Cheney, but she has the courage of her convictions.

IMPEACHMENT AND CONGRESSIONAL OPS

Impeachment Trial. We’re seeing a lot of “concern trolling” around a Senate trial for Trump. CRS reports most scholars say he can still be tried; the discussion about witnesses is moot when Members of the Senate are the witnesses; and Sen. McConnell showed us that proceedings can go at whatever speed the Senate wants. We are concerned that Senate Republicans are going to skirt their constitutional duties to protect the country by making up any reason they can to avoid rendering a verdict. It’s not just Trump who is on trial.

Congress must remove the eight Confederate statues inside the Capitol from public view. Read my latest write-up with Eli Lehrer on how to do that, and why.

TRANSPARENCY & ACCOUNTABILITY

Biden’s White House will make visitor logs public, restoring an Obama administration practice that certain officials said could never be rolled back, despite my protestations that it should be a law. Section 602 of Rep. Quigley’s Transparency in Government Act has language to make that happen.

Curbing Executive war powers. Several House Democrats sent President Biden a letter, obtained by Politico, asking him to work with Congress to end the 2002 authorization for the Iraq War and curb the 2001 AUMF. These unwise provisions empowered the Bush administration, and its successors, to engage in war without Congress’s ok.

We don’t know how many Trump presidential records are missing and we won’t know for some time. According to the Federal News Network, there are questions surrounding how Trump Administration documents are even going to be traceable since many documents may have been omitted or improperly catalogued.

ETHICS

Senate Dems filed an ethics complaint against Sens. Hawley and Cruz that urged the Ethics Committee to determine the depth of their involvement in the January 6th insurrection. While neither member is all that popular in the Senate, it seems unlikely the evenly split Ethics Committee will act.

Rep. Andy Harris attempted to bring a gun on the House floor. Caught by a magnetometer, Harris left and went back to his office, returning to the House floor 10 minutes later. At least three other Members are also suspected of possibly bringing in a gun. Members are strictly prohibited from bringing firearms on the House floor, a rule which dates back to 1967. Speaker Pelosi has proposed a rule that would fine members for sidestepping the devices, but there has been no resolution, no debate, and no vote.

Trump pardons crooked Reps. Trump pardoned two former GOP lawmakers who went to prison for corruption: Rick Renzi of Arizona, and Randy “Duke” Cunningham of California. (The Dukestir’s behavior was so egregious that it ended earmarking.) The total number of pardoned ex-GOP stands as six, including Steve Stockman of Texas, Mark Siljander of Michigan, Duncan Hunter of California, and Chris Collins of New York. A newly enacted House rule prohibits them from going to the House floor.

No charges were brought on Sen. Burr by DOJ after it officially ended its stock trade inquiry into the senator, who must just totally coincidentally have the magic touch when it comes to selling stocks. Honest. Maybe Senate Ethics will pick up the investigation. Oh.

Presidential tax returns. Reps. Eshoo and Pascrell introduced H.R. 347 last week, which would require candidates for President and VP to publicly release their tax returns.

If you want to know how political contributions really work, Maciej Cegłowski has a transcript of Microsoft President Brad Smith explaining the importance. CNBC has the killer quote — just click and scroll down. (It’s about buying access and getting to the top of the favor list, but is so much more juicy.)

CAPITOL SECURITY

Eugene Goodman was named Acting Senate Deputy Sergeant at Arms. Goodman was the USCP officer that single-handedly diverted a group of insurrections from breaching the Senate chamber while senators were still on the floor. Goodman escorted Vice President Harris during the inauguration. He may be up for a congressional gold medal (H.R. 305 & S. 35).

USCP officers are continuing to contract COVID-19 — with 19 officers testing positive since January 8. According to Roll Call’s Chris Marquette, most USCP officers have not been vaccinated yet and are being left in the dark about receiving the vaccine.

Want to track the arrests made on January 6th? You won’t get that info from the Capitol Police. Fortunately, George Washington University’s Program on Extremism has a central database that compiles all court records related to the insurrection.

CAPITOL SUPPORT

Resources to help Capitol Hill staffers can be found on the Capitol Strong page, a coalition launched last week to support congressional staff, essential workers, and journalists who are understandably shaken after the January 6th attack.

Offices should change their phone policies ASAP prevent harm to their employees — even if it’s just through January, according to our friends at CMF.

NPR interviewed Dr. James Jones, author of the 2015 Joint Center Senate Report and of POI’s 2020 Color of Congress Report, about the racial inequalities that permeate the congressional workplace.

ODDS & ENDS

The Kansas City Star has an extensive, and unflattering, profile of Sen. Josh Hawley.

Teen Vogue has an extensive profile on freshman Rep. Cori Bush.’

Will Sen. Murkowski swap an (R) for an (I)? BGOV’s Laura Litvan reports it’s a “no.” But Sen. Murkowski also does not want to be in the party of Trump.

CALENDAR

The United States Capitol Historical Society is hosting a webinar titled “How Do We Move Forward? Contextualizing the January 6th Capitol Insurrection” on Wednesday at 12:00 pm ET.

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

• Thursday, 12:15 pm ET — “Congress Overwhelmed

• 2/1/21, 12:15 pm ET — “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:

• Friday, 12:00 pm – “Hiring an Effective and Diverse Staff”

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