This week. In the House, it’s the last week before summer recess. It’s also the Senate’s penultimate week before recess — though we’re seeing calls for both chambers to stay in session. The House will consider a huge semiconductor R&D bill and perhaps public safety legislation concerning firearms. Senate Democratic Appropriators may publish their approps bills. Expect scores of UC and suspension bills.
In committee this week, House Admin will hold two relevant hearings: one on foreign and domestic sources of disinformation and another on the so-called independent state legislature theory. On Thursday, the ModCom will hold a hearing on innovative approaches to fixing Congress. There are also a bunch of red meat hearings.
Last week. The House passed the minibus package of six appropriations bills, but Majority Leader Hoyer told BGov it’s unlikely the other three (CJS, Labor-HHS-Education, and State and Foreign Operations) originally slated to go before recess will be brought to a vote, and of course there’s three more not yet on the docket. Steve Bannon was found guilty of contempt of Congress, but how we got here highlights problems with how the contempt process works. And ICYMI the ModCom favorably reported 29 new recommendations. More on contempt and ModCom below.
Building digital capacity in Congress. The recently-launched House Digital Service pilot presents an excellent opportunity to streamline and institutionalize congressional tech improvements. The Lincoln Network has a new report out with recommendations for strengthening the HDS. The authors advocate securing strong funding for the program; ensuring oversight over HDS; creating pathways for interacting with civil society; broadening HDS’s mandate; and more.
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CONSTITUTIONAL AND POLITICAL PRAGMATISM
Democratic divide. The Supreme Court’s rescission of basic constitutional rights has prompted some members of Congress to start to take action: the House passed legislation codifying marriage equality (H.R. 8404) and access to contraception (H.R. 8373) last week, sending both measures to the Senate. It’s a pragmatic approach, one that seeks to protect by statute rights threatened to be undone by the Court. And yet there are more privacy rights that should be enshrined into law before the Court blots them out. Will the House pass more protections? Will the Senate act?
Senate obstruction is the focus of a Washington Post article that argues “it isn’t the ideologues who keep things from working smoothly. It’s the so-called moderates.” The Post contends that centrists like Sen. Manchin do not “have any discernible core ideology,” which makes it impossible to achieve a compromise because it’s impossible to know where he stands. Their point of contrast is Sen. Bernie Sanders, who they describe as an ideologue and a pragmatist. He accepts that small changes in pursuit of a larger goal are better than nothing.
This framework is music to our ears. Pragmatic and unrealistic (or inflexible) describe the range of approaches a person uses to solve problems, not the goals they seek to achieve. You can pragmatically push a dogmatic political agenda. Moderates and centrists are often confused with pragmatists because one way to solve some problems is to “meet in the middle” or “split the difference.” While that is sometimes true as an approach — our friend Bruce Patton, who wrote Getting To Yes, suggests there are many other techniques, and we know that it is often easy to compromise on others’ rights — it is incoherent as an ideology.
It also is a head-fake. This is where the Post goes astray. They argue Sen. Manchin’s “centrism too often consists mainly in opposing whatever liberals want, for its own sake, and isn’t grounded in any clear set of beliefs.” I don’t think that’s true. He reflects and listens closely to the views of well-to-do corporations and individuals, such as those that formed No Labels. He’s representing an economic class and is maximizing his leverage in doing so. He milked donors behind various corporations and organizations like No Labels while stifling the legislation they oppose on the pretext of shifting and incoherent reasons. (Don’t just take our word for it.) What’s notable is how far he and others like him have gone to “sabotage” the agenda of a president of his party.
Will he stay a Democrat? Or, perhaps a better question is: are the Democrats a coherent party to the extent they have members like him? We’ve written previously about how each party is actually a coalition of factions, but it could be that Sen. Manchin has gone too far by stringing along and sabotaging key planks in his party’s platform, a concern elevated to a crisis when his behavior both destroys trust and fails to shore up our troubled democracy.
House and Senate leaders in our political system often focus on papering over differences in their caucus while trying to split the other party’s caucus. It’s why the House, a majoritarian institution, rarely takes up political popular causes when their members are on both sides of an issue, even if it’s just a sliver of dissent, when those members are politically vulnerable.
Union news. Congratulations to staff in the eight House offices that announced they’ve filed for the right to unionize last Monday! The tally: staff in the offices of Reps. Levin, Khanna, Lieu, Bush, García, Ocasio-Cortez, Omar, and Stansbury have filed petitions. We’re keeping track here; reminder to email us with intel at [email protected].
• What to expect. Unionization will likely happen in waves.
Pay floor for Senate staff. Demand Progress teamed up with the CPSA to call on Senate leadership to institute a $45,000 pay floor for Senate staff to match the recent pay floor on the House side. 16 civil society organizations, as well as over 150 congressional staff, joined the effort.
Pay for Members? During floor discussion of the six-bill appropriations minibus last week, FSGG Ranking Member Steve Womack raised the question of pay for Members of Congress. For years appropriators have included a provision to block a cost of living adjustment for Members, which would have otherwise happened automatically and was created as a result of a compromise decades ago.
• Congress still deserves a big fat raise. As I noted in Slate nearly a decade ago, the optics of raising this issue are tricky but the policy is clear. Rep. Womack asked the right question: “Do we want this institution to be populated by people who really don’t care about member pay at all because they’re independently wealthy?” Leadership already has a strong incentive to find wealthy candidates because they can self fund, and declining pay rates encourages those who are not well-to-do to find better paying work — i.e., become lobbyists, which warps their incentives while they are in office and narrows the range of perspectives of people in Congress.
• The beatings will continue until morale improves. It seems that many people want to punish Congress because they are unhappy with the behavior of some of its members, which is one contributor to a vicious cycle. And we know about opportunistic members who will stupidly try to politicize this issue to try to save their seats — which never works. We have to be realistic that the point of comparison for a Member of Congress is not median pay in the district, but what an ex-Member can earn in the private sector. We don’t need to pay them that much, just enough that salary is not the deciding factor to leave. The president earns $400,000 annually; the chief justice earns ~$270,000; the speaker of the House earns around ~$223,500; the median salary for a CEO at the largest companies is $20 million. Let’s be sensible.
ModCom adopts new recommendations. We’re impressed with the latest installment of 29 recommendations from the ModCom, which were marked up and favorably reported — unanimously — last week. The recommendations fall under four categories:
1) strengthening Congressional oversight capacity
2) modernizing House office buildings
3) modernizing the legislative process
4) addressing congressional continuity.
Modernizing the legislative process, i.e., recommendations 25-28, are of personal interest to me. They include: modernizing bill referral and tracking, retaining expert staff, automating the co-sponsorship process, and collaborative legislative drafting.
House office spaces. With more staffers returning to in-person work, improvements to office space are on the docket in the House. BGov has more.
Establishing a bipartisan committee on the continuity of Congress was recommendation 29.
CONTINUITY OF CONGRESS
Continuity of Congress deserves its own bipartisan committee, the ModCom concluded. Back in April, the ModCom held a hearing on ensuring Congress is prepared in times of crisis. (Our colleague Taylor Swift testified.) As far as we know, there’s no succession plan and remote capabilities are clearly not in place (cf. Jan. 6 panel). Chris Cioffi has more for RollCall.
Continuity is deadly serious. The president has COVID, and so does Chair of the Select Cmte on Jan. 6, Bennie Thompson. Rep. Thompson participated remotely, and will be able to vote by proxy throughout his quarantine, as Speaker Pelosi has continued to extend the practice, but in recent weeks we’ve seen how inefficient the alternative is. Without proxy voting capabilities, the absences of Sens. Schumer, Blumenthal, and Leahy have each caused headaches for Dems in the last month. Sen. Leahy is unfortunately still recovering from his broken hip.
RELATED RESOURCE: We’ve been tracking continuity of Congress on our website since the early days of the pandemic. As ModCom Co-chair Rep. Timmons quipped at last week’s hearing, “[continuity of Congress is] not a problem until it is, but if it is a problem it’s a big problem.” Top priorities for addressing continuity of Congress include:
• The House should move from proxy voting on the floor to fully electronic voting so that member rights and prerogatives are preserved. Remote voting should be permitted only in emergencies or extenuating circumstances (like disaster, illness, and pregnancy). The House committee remote voting process should be made easier. In addition, the Constitution must be amended so that if a catastrophic event results in the death or incapacitation of a majority of members, they can be replaced on an interim basis until elections can occur.
• The Senate must adopt rules allowing for committees and the chamber to hold votes remotely. So long as the chamber and its committees require a quorum of senators to be there in person, a catastrophic event — like a dirty bomb or an insurrection — can mean that the Senate cannot act for an extended period. There is a bipartisan resolution on this point.
Partisan. Unfortunately, much of this has become a partisan issue arising, I think, from Trump’s denial in the early days of the dangers of COVID and the partisan fall-out that followed. Even if you think COVID is no big deal, just a million or so Americans dead, that does not mean that the next pandemic or natural disaster or attack won’t be worse.
The biggest danger is that in the absence of a viable Congress, the president seizes control and does not let go. I dare you to say that that’s impossible.
FEDERAL RECORDS MANAGEMENT
On destroying records… the Secret Service destroyed Trump White House text messages in contravention to federal law. Apparently the DHS IG has been investigating this since February, and our friends at the Project on Government Oversight helpful point out the “DHS Watchdog Failed to Sound Alarm For Months” — they had drafted an alert, but the IG killed it. Last week, the National Archives sent a letter to the Secret Service requesting an internal investigation.
Federal law requires agencies to notify the Archives of the destruction of records. The Secret Service’s explanation for the deletion is simply unbelievable — as in, I do not believe it — and strongly suggests that they tried to create circumstances where they could unlawfully delete the records while plausibly denying responsibility for creating exactly the circumstances where that would happen. (It’s so coincidental that the Secret Service head announced he will retire a few weeks ago.)
This happens all the time. Former hill staffer Patrick Eddington, in a fortuitously-timed article on FOIA entitled “America’s lost history,” highlights just a few high profile incidents of the disappearing of records, such as the CIA’s unlawful destruction of the Torture Tapes, the FBI analyst who took home Al Queda records, and ATF shredding case files.
The problem is so bad, Eddington writes, that the National Archives maintains a webpage with a list of unauthorized disposition of records. That’s right, a list of when agencies put records down the memory hole.
Consequences for destroying records? I’m getting into deep waters here, but my understanding is that the Justice Department rarely will prosecute criminal violations concerning the destruction of records. Such destruction must be found to be willful and intentional, hence the USSS’s construction of plausible deniability. We also note that the Justice Department is reluctant to prosecute Executive branch officials — and that civil litigation is narrowly circumscribed. Lawfare has a good summary of issues that arise under the Presidential Records Act, which relates to presidential records, and I don’t have immediately at hand a summary of the Federal Records Act.
If Congress wanted to do good government a solid it could strengthen FOIA, bolster the Archivist’s authority, and strengthen civil proceedings concerning the unlawful destruction of records. Also: confidential to the Senate: stop confirming people for senior positions who destroy government records to prevent accountability. You know who I’m talking about.
Dereliction of duty was the term of art the Jan. 6 panel employed in Thursday’s hearing to describe Trump’s incitement of and failure to call off insurrectionists on Jan. 6. It appears the committee will keep holding hearings in September. A reminder: the select committee will cease to exist at the end of this Congress because Senate Republicans blocked the creation of a Jan. 6 Commission, with the final vote of 54-35. Because of the way the filibuster currently works, proponents needed 60 votes — and Sen. McConnell had dismissed it as a “purely political exercise” and said such an effort would not uncover crucial new facts. Well. Here’s the roll call vote. Of the Republicans, only the following voted to end debate and move to a vote: Murkowski, Collins, Cassidy, Romney, Sasse, and Portman. (We also note that the House didn’t establish the Jan. 6th Committee until late June 30, 2021, squandering valuable time.)
Steve Bannon was convicted for contempt of Congress because he refused to testify before the Jan. 6th Committee. He is free pending the disposition of his appeals of the convictions, which could in theory result in two years in prison. (Question: when the Congress ends, does his legal jeopardy end?) We note that the Justice Department declined to prosecute Mark Meadows and Dan Scavino, both of whom were held in contempt by the House, which points again to the Executive branch working to nullify laws passed by Congress through an extra-legal opinion by the DOJ’s Office of Legal Counsel.
• Statutory and inherent contempt powers of Congress are a rabbit hole that we’ve discussed previously. The Justice Department’s assertion of discretion in whether to pursue statutory contempt determinations by a chamber eviscerates each chamber’s ability to get answers from the Executive branch in contravention to law. We believe a special prosecutor fully independent of the Justice Department — to avoid the Mueller problem — be charged with these responsibilities so as to avoid a conflict of interest. Similarly, while we are a fan of reviving inherent contempt powers, as is our friend former CRS attorney Mort Rosenberg, a number of House members, and the NGO Good Government Now, we fear greatly what a judiciary packed with former OLC attorneys and unitary executive fans would do with such an assertion. If you asked our opinion, we’d suggest attaching language to the NDAA that fixes statutory contempt — such an effort is urgent and must be done now. The Senate will consider the NDAA in September.
Reforming the Electoral Count Act has emerged as a legislative priority and possible point of agreement. Bipartisan members introduced a bill that clarifies the 1887 law by declaring the role of the Vice President in counting votes is purely ministerial. It also increases the threshold required to challenge a state’s slate of electors and charges each state’s governor with submitting the slate of electors. Will it become law? Stay tuned.
ODDS AND ENDS
Republican report. In case you’d forgotten about the ongoing Republican effort to investigate Capitol security, we remind you that there’s a report on legislative recommendations expected later this year.
Internet Archive defends its fair use. Digital lending database Internet Archive recently responded to a lawsuit filed by four major publishing companies claiming the archive violates their copyrights, noting that digital libraries should be protected by the same fair use laws as traditional libraries. The Internet Archive is a tremendous resource for everyone.
Puerto Rico. The House Natural Resources Committee favorably reported up a measure (H.R. 8393) to allow PR voters to determine whether the territory will pursue statehood, independence, or sovereignty in free association with the US. We’re very interested in the resolution from multiple angles, including that a statehood effort could help redress the imbalance in the Senate where rural interests are massively overrepresented and now provide minority control of our political system, as explained in Why Cities Lose. If PR became a state, its population would be larger than 20 current states. The reason why PR was not put on a path to statehood, the reluctance to admit Hawaii and Alaska, and decisions around the Philippines and elsewhere largely has to do with racist views in how America ran its colonial possessions, best recounted in How to Hide an Empire. Now you’ve got your summer reading assignments. 🙂
Whistleblower uncovers $500 million in unpaid debts. A former OSHA employee alerted the Labor Department’s Office of Special Counsel to unpaid fines owed by companies with workplace safety violations. The complaint led to an audit — and the discovery of nearly half a billion in unpaid debts. The whistleblower received an award, but not a portion of the recovered funds, as is standard practice for SEC whistleblowers. Maybe that should be updated?
Supreme Court ethics legislation is gaining support after Dobbs, per Fix the Court’s analysis. 40 Democrats have newly signed on to various ethics bills — rounded up by Fix the Court here. In addition, the Judiciary Act of 2021 (H.R.2584, S. 1141), which would add four justices to the Supreme Court, now has 59 backers in the House.
Policy Hackers fellowship. Applications for the Lincoln Network’s Policy Hackers fellowship — ”a nonresident fellowship program for tech professionals interested in building expertise in the theory and practice of public policy” — are open through September 1. Apply here.
New (unofficial) House jobs database. Data journalist Derek Willis built a new tool to extract job announcements from the House website (where the listings are only emailed out in pdf format). Check it out here.
Foreign and domestic sources of disinformation is the topic of a House Admin hearing scheduled at 10 AM.
Innovative approaches to fixing Congress is the topic of a hearing scheduled before the ModCom at 9 AM.
Oversight of the National Security Division, House Judiciary Committee at 10 AM.
“The Independent State Legislature Theory and its Potential to Disrupt our Democracy” is the title of a hearing scheduled before the House Admin Cmte at 12 PM.
Down the line
Save the date for law reform. The Seventh International Conference on Legislation and Law Reform, a conversation about how laws are written in the US and around the world, will be held November 3 and 4 in-person in DC. You’ll be able to register here soon.
SUMMER RECESS IS COMING
Après moi, le déluge