This week. The House floor is closed until Sept.13 (with committee work starting on Sept. 6); the Senate is in for its last scheduled week until Sept. 6. The Senate will stick around until it passes the “Inflation Reduction Act,” AKA mini-reconciliation, timing depending on Democratic Members not testing positive for COVID; and the House is expected to return to pass that bill during August recess.
In Senate committee news this week: the Judiciary Cmte will hold a hearing on antitrust remedies (but Sen. Schumer still hasn’t scheduled antitrust bills for a floor vote). HSGAC will hold a markup of a few good-government bills. And Senate Rules Cmte will hold a hearing on the Electoral Count Act, following up on the bipartisan proposal to reform the ECA. We note some Members are voicing dissatisfaction with the proposal — as Rep. Raskin told Politico, the effort is “fine and necessary, but not remotely sufficient to meet the magnitude of the threat against democracy now.” (The Jan. 6 panel reportedly plans to release its own slate of recommendations for stopping the stealing of elections this fall, a time when there is the least amount of legislative runway.)
Last week, Senate Democrats published their FY 2023 approps bills. We’ve added the bill text, explanatory statements, and summaries to our tracker (toggle to the Senate tab) and will be working through the bills in the weeks to come. It seems obvious to us that there won’t be a markup process in the Senate, just like last year, and everything will get worked out — if anything gets worked out — behind the scenes. Sen. Leahy says he hopes the release of draft bills encourages good-faith Republican negotiation and emphasized the high stakes of repeating last year’s delays. Senate Republicans published a list of demands for items they consider “non-starters” and threatened a long term CR. It’s clear we’re heading for a short term CR, probably until after the heat of the election. We likely will hear a lot of carping about budget reconciliation as well.
On budget reconciliation, we’re not writing much on the Inflation Reduction Act of 2022 — go here for the legislative text and summaries — because we haven’t read the bill and it’s unclear how it fits into our framework of strengthening our democracy, making Congress work better, and improving government transparency and accountability. It’s a data point to the question of whether a majority can deliver highly popular legislation in an anti-majoritarian senate. How we got to this point, especially in light of over-representation of rural and corporate interests, is worthy of a detailed discussion, but at some other time.
Speaking of pure politics, Senate Republicans who had previously supported providing benefits to veterans exposed to burn pits — the PACT Act — did an about-face, including 25 members who had supported it a month ago, when it was brought up again in the Senate to make a technical fix. Why? Democrats say it’s retaliation for their announcement of a budget reconciliation deal. Republicans now say it’s because the spending is categorized as mandatory, not discretionary. Noted Congressional expert Jon Stewart explains the distinction between mandatory and discretionary spending, and his views on the Republican shift in position, in a colorful video. (Wait for it.)
BELOW: A first look inside Senate Dems’ Leg branch approps bill and the ModCom’s attempt to crack Congress’s big-picture problems.
SENATE LEG BRANCH APPROPS
Senate Democrats published their 12 FY 2023 appropriations bills, including our favorite: the Senate Legislative Branch Appropriations bill. You already know the big picture: Congress is putting the vast majority of new Leg Branch money into the Capitol Police and the Architect, with everyone else tiny by comparison. As usual, and in the full interests of disclosure, here’s the list of Appropriations requests submitted by Demand Progress and partners.
Line item spending. If you want to see how the spending line items compare for FY 21, FY 22, and proposed FY 23 in the House and Senate, check out the newly updated embedded spreadsheet in this blogpost. We’re going to zoom right past the spending levels, however, and highlight some of the interesting facets in the report language
• Legislative data access challenges, specifically issues that Leg branch agencies have in obtaining access to Executive branch-held data, will be explored by a new joint CBO, LC, and GAO working group that’s encouraged to meet with congressional and public stakeholders, to make recommendations within a year, and to continue to meet afterward. See p. 33 for more on this issue, which also was a big topic before the House ModCom.
• Improving floor scheduling information on Congress.gov, including integrating floor scheduling information + info about other measures, will be the focus of a report by LC, GPO, and data partners, which will address feasibility, cost, design options, and so on. See p. 18 for more on this issue, which also was addressed in the House’s report language.
• Improving Congress’s picture of the legislative process, perhaps along the lines of what we did with BillMap, will be an additional focus of the LC in conjunction with the Leg Branch Data Interchange Group, which will report out the matter within 180 days after consultation with the public and congressional stakeholders. How should congress.gov indicate when a bill that’s been incorporated into an omnibus bill started as a separate bill? Or when a bill introduced in the 117th Congress had previously been introduced in the 116th Congress? We’ll see….
• Improving reporting of lobbyist activities by publishing lobbying data with unique IDs for lobbyists will go forward. House appropriators supported and appropriated funds for overhauling the lobbying disclosure data in their FY 23 bill, and this was a recommendation made by ModCom. See p. 20 for more background.
• Creating a centralized repository for Senate documents, including bills, resolutions, amendments, and committee reports, and working to have them available prior to or contemporaneously with consideration, is a topic to be explored by the Secretary of the Senate and SAA. The House has a workable system along these lines, docs.house.gov, which probably could use a refresh, but it’s notable because it’s a one stop non-partisan shop. In formulating these recs, the working group will chat with the Congressional Data Task Force and issue a report in 120 days. For more, see this civil society letter raising some of these issues, as well as p. 63 of this primer.
• A bipartisan diversity and inclusion working group, made up of many Senate stakeholders, will be established with a focus on improving senate staff diversity. Within 180 days, Appropriators will be provided a briefing on this topic. The Joint Center, NALEO, and Demand Progress had requested the creation of a Senate Office of Diversity and Inclusion, to parallel the one in the House, as part of joint testimony in FY22 and FY23, and this may be considered a step in that direction. Roll Call has a story on these efforts highlighting the work of the Joint Center. See p. 65 for more background on the request.
• Creating a Congress-wide staff directory, including identifying the areas on which people work and rolling in support office and agency staff, will be explored by the SAA along with others and briefed to the committee within 180 days. House Appropriations has a similar provision, the idea has been endorsed by ModCom, and learn more about the idea on p. 21.
• Publishing a list of unimplemented GAO recommendations, and the financial costs of doing so, will be the responsibility of GAO within 180 of enactment of the legislation. See the Lincoln Network’s testimony, note the ModCom’s support, and this primer on p. 28.
• Senate staff pay floor. Members, staff, and civil society asked the Senate to adopt a $45,000 pay floor for Senate staff, just like the one in the House — a request put aside by the Senate, which noted that it had increased the SOPOEA sufficiently to allow Senators to pay all their staff at that level. If you ask our opinion, it’s time for some journalists to go digging on Legistorm for Senators who pay their staff below that level. We’ve found a few. Just saying.
Our verdict. As you can see, the Dems’ Senate Leg Branch Approps bill contains many solid improvements to Legislative branch operations, including a number that we didn’t mention above (like designing a new SCIF and improving Capitol complex’s energy efficiency). It did not include some items we had hoped for, or go as far as we might have wanted, but Senate bills often reflect bipartisan priorities (and avoid unduly irritating the other party) and the appropriations process is an iterative one. It will be interesting to see what becomes law. This is a solid foundation from which to continue to build.
Envisioning the future. The ModCom’s hearing on “Big Ideas” and innovative approaches to fixing Congress featured testimony from an eclectic group of experts who grappled with but did not quite land on the kinds of reforms needed — and possible — to strengthen our democracy. We struggle with this ourselves. Our recommendations, whether to change the House rules, party caucus rules, appropriations provisions, or otherwise, are all focused on achievable improvements that further an expansive democracy reform agenda. We need to repair the engines of our democracy.
Some of the proposals made at the hearing addressed unspoken contingent questions. Do you want no factions in Congress, or two, or many? Where should power reside (or among whom should it be balanced)? Should power be vested within individuals or primarily when they act as a group? Should members spread their time across many issues or develop expertise in a few? Should the body use their best judgment or reflect the views of voters or other interests? What’s the optimum size for deliberations in the chamber, in committee, in subcommittee? What’s the connection between elections and policymaking? And the big question: does our Constitutional arrangement make sense in a modern world, and if not, can we morph it into something that does?
Modernizing and simplifying the House’s rules, which was the plea from our friend Kevin Kosar, made a lot of sense to us. Underpinning his testimony, at least in the echoes that we heard, is the desire to unlock fluid factions within the House. In other words, the best ideas should be able to advance in the chamber, and that should happen through gaining support of a majority of the chamber, but which currently is stymied by Majority control. (The about face on the PACT Act (veteran health)illustrates the problems with a party-driven dynamic.)
Increasing the size of the House by 150 Members, an argument advanced by Lee Drutman, seems to us to be too small a proposal to be effective. It doesn’t make Members close enough to their district to matter for representational purposes. And it decreases the political power of most members in the chamber. However, it could make it somewhat easier for the non-wealthy to get elected, but only at the margins. More relevantly, it could be useful to the extent that it forces members to form strong factions in the House, but that’s good only to the extent it’s coupled with a form of nationwide proportional representation that doesn’t exist in some visible British-derived parliamentary systems, including ours. By comparison, we feel more favorably inclined towards his recommendation to establish multi-member districts, but we have yet to see a plan for how that could be politically achievable on a nationwide or regional basis. Implementation in individual states could have the unintentional effect of weakening democracy by reducing the number of people elected who are strongly committed to that form of government and committed to collaborating with their co-partisans. (If done poorly, it could also significantly reduce the number of non-white elected officials.)
Increasing Member terms to four years, as Rep. Larson suggested, is a right idea that doesn’t go far enough. Since we are in the dreamworld of Constitutional amendment, it would be better to abolish the Senate and stagger the terms of members of the House. I’d also like a pony. And a president chosen by the legislature. And nationwide multi-party proportional representation. Nonetheless, his diagnosis that much of Congress’s dysfunction comes from the Senate’s filibuster is right on. The 60 vote threshold doesn’t just stop major bills from moving, but it also means that any one senator can kill virtually any House bill because the Majority Leader won’t put it on the floor for a vote.
The final two ideas — that the wealthy should fund our civic infrastructure and that AI can help administer the administrative state — are notable in that they reflect where power currently exists within our society: those with great resources and the giant tech companies.
If it were not impolitic to suggest, I’d definitely want to get a beer with the committee members to know what they think are the top problems from their vantage points and what is politically achievable.
For what it’s worth, I don’t think the problems of our democracy are intractable. I do think the major reforms we need are still attainable — even within the constraints of our political system that make the odds of success low. And I even think that major reforms could be pushed forward with the help of the wealthy, who would need to fund that work, and the technologists, who can leverage their expertise to support surprising systems changes. For the last four years, the ModCom has struggled mightily to bend the arc and I am glad to see them looking to the future.
GOOD GOV’T BEFORE IT’S TOO LATE
Banning congressional stock trading. House Democrats may finally introduce and move legislation to ban Members, their spouses, and senior staff from trading stocks in early August, Punchbowl News reported. We’ve been eagerly waiting to see the House Admin Cmte’s proposal; we hope it goes far enough. Congress should go further and “address the perverse incentives warping how Congress functions and whom it serves.”
Dangerous little secrets. Last week’s HPSCI hearing on foreign spyware (video, testimony) illustrated the need for stronger congressional oversight of the intelligence community.
• Spyware and other forms of surveillance, whether from foreign governments, the federal government, or corporations, are a danger to democracy and especially to Members of Congress and Leg branch staff. But we don’t meaningfully protect the obvious avenues of attack, including regularly replacing member + staff devices, keeping untrustworthy apps off main communications devices, and protecting privately-owned devices and services. (Is there a good reason why Congress doesn’t hand out Yubikeys and subsidize password managers for work and personal uses?)
• Oversight of the intel community is also weak. For example, there are likely several hundred thousand Executive branch officials (and officials in foreign governments) who have ts/sci clearances but likely fewer than 1,000 inside the Leg branch. The reasons for this was an effort in the 1970s to decrease clearances overall, which failed, and the subsequent up-classification of executive branch materials means that many items that staff could easily review are now out of reach. While the Senate finally is allowing every senator to designate one personal office staffer who can apply for a ts/sci, the House has yet to do so.
Testimonial immunity. Former Trump chief of staff Mark Meadows does not meet the criteria to assert qualified immunity and avoid the committee’s subpoena, but the Justice Department still maintains “a sitting President’s immediate advisers—current and former—cannot be compelled to testify before Congress about their official duties.” Former House counsel Michael Stern disagrees, writing in his Point of Order blog four ways the DOJ’s position is “full of crap.”
Secret Service records destruction. House Oversight and House Homeland Security Chairs Carolyn Maloney and Bennie Thompson wrote a letter last week calling for the DHS Inspector General responsible for investigating the Secret Service’s illegal destruction of Trump White House text messages to step down from the probe, per the Washington Post.
Home security for the House. Starting August 15, Members of the House will be provided up to $10,000 to install security systems at their homes under the new residential security program announced by House SAA Walker last week. Per Politico’s ‘Huddle’: the House first moved to use official funds for Members’ protection in 2017, when a gunman attacked the Republican Congressional baseball practice. Since then, spending MRA dollars on security details and personal protection are permitted; the FEC also changed its rules to allow candidates to use campaign funds on certain security equipment.
ODDS & ENDS
Speaker race. Rep. Adam Schiff may be gearing up to run for Speaker — “if Speaker Nancy Pelosi retires after the midterm elections” — the Washington Post reports. In our opinion, any serious candidate should commit to a number of reforms to the Democratic Caucus, starting with the publication of its Steering & Policy committee rules.
GPO strategic plan. The next five years at the Government Publishing Office are laid out in the agency’s Strategic Plan FY 2023 – 2027, out now. We note Forbes named GPO as one of the best midsize employers in America last year.
GPO ODI/EO. The GPO’s Equal Employment Opportunity office is now the Office of Diversity, Inclusion, and Equal Opportunity, the agency announced last week.
Members appear to be violating lobbyist disclosure laws, The Lever reports. Since 2007, when the law requiring former Members disclose their future employment as lobbyists went into effect, only 18 individuals have filed disclosures. The reason why is because the House Ethics Committee’s interpretation of the law allows for significant non-compliance.
Rep. (inside) Buyer? The SEC charged a former Indiana Representative with using insider information to buy $1.5 million in stocks after retiring from Congress. The former Rep.’s name is Stephen Buyer — not to be confused with Senator Tradesalot McStock.
The Freedom Caucus announced proposed House and Republican rules changes last week. We are fans of updating the House Rules and the conference rules. However, it would be a mistake to eliminate all the House rules changes implemented in the 116th and 117th Congress: we summarized the changes to the 117th here, and Casey Burgat has the highlights from the 116th here (+ more from us). For example, we expect House Republicans would want to keep the House Office of the Whistleblower Ombuds, committee member day hearings, the bar on ex-members with certain felonies from coming to the House floor, the 72-hour rule requiring legislation to be online before a vote, and the ban on Members of Committees from sexually propositioning staff.
COW is back. The Committee of the Whole, a holdover from the colonial era, was back last week when the House voted to pass the package of six appropriations bills.
New digital leadership at Library of Congress. Kate Zwaard is the new Associate Librarian for Discovery and Preservation Services and Trevor Owens will replace Zwaard as Director of Digital Services, the Library announced last week.
PACER was breached by “three hostile foreign actors,” the House Cmte on the Judiciary revealed at an oversight hearing of the DOJ National Security Division on Thursday. We still don’t know the details of who did it and what materials they accessed, Free Law Project notes, but whatever the case may be, the need to modernize and secure the federal judiciary’s court records system is clear. The Open Courts Act (S. 2614), H.R. 5844) would streamline PACER — and eliminate the paywall preventing public access to court records.
Rep. Jim Clyburn’s long and storied career is the subject of a recent Time profile.
TechCongress applications still open; cash reward. Applications to the TechCongress fellowship, which pairs technologists with congressional offices as tech advisors, are open until August 10. Apply here. Also: if you nominate a successful applicant from an underrepresented community — including veterans, women, non-binary individuals, and underrepresented people of color — you could receive a $500 cash reward.
The Office of Special Counsel is an independent federal agency that protects federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing, which is something we knew, but inaccurately described them as being part of the Department of Labor last week. Sorry!
Our August publication schedule. This is a weekly newsletter, but it’s not fun to publish when people aren’t around to read. So we’ll watch the numbers and see what happens. 🙂
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.