Where will power reside in the next Congress? And what systems of control will delegate and manage that power? These are core questions to understanding the legislative branch at any time, of course. But the answers to those questions may be shifting, perhaps faster than anticipated and in ways that fundamentally change our current politics.
This week the House and Senate observe Rosh Hashanah Monday. The House returns Wednesday night for votes the rest of the week, the most pressing being a stopgap funding bill to carry the Federal government beyond September. The body also may consider revisions to the STOCK Act and we spy a bill changing the GPO Director’s service to 10-year renewal terms. The Senate returns on Tuesday.
In committee, the Senate Rules and Administration Committee will markup the Electoral Count Act (S.4573) on Tuesday. Senate HSGAC will meet on Wednesday to vote on the nomination of Colleen Shogan to be Archivist of the United States and a bill amending the Lobbying Disclosure Act regarding exemptions under FARA.
The House January 6th Committee will hold a public hearing on Wednesday at 1:00 PM.
Down the line, the Senate is still on track to be in session the first two weeks of October, with authorizing the NDAA looming.
WHO CHOOSES THE PRESIDENT?
Under the Constitution, it ultimately is Congress that approves the selection of the next President (except in a contingent election, when it is the House that picks). The 1887 Electoral Count Act was enacted after a disputed presidential election and constitutional crisis, with that law and political norms more or less keeping that approval process perfunctory thereafter until January 6, 2021, when those federal systems of controls faced physical and political peril.
We’ve seen stunning reversal of congressional norms over the last several years around free and fair elections. Rejection of the legitimacy of the 2020 election had become such a litmus test for the Republican base that 147 House Members voted against certifying President Biden’s victory. We are still learning what direct role some Members had in supporting the violent insurrection that took place as the vote commenced.
Some Republican candidates for statewide office who would have a role in certifying the 2024 presidential election have denied the 2020 election was valid and even have promised to intercede in the next one. Both the House and Senate may act to limit the danger of partisan election denial.
Last Wednesday, the House passed a bill focused on closing avenues where elected officials with hands in electoral procedures could interpose themselves over the will of the people (as mediated through the electoral college). January 6 Committee members Liz Cheney and Zoe Lofgren authored the bill with direct input from that committee’s investigations. The bill names Donald Trump and the insurrection in a preamble of “findings.”
The Senate has chosen a route that avoids mention of Trump and is intended to surmount the filibuster hurdle. Its bill doesn’t slam quite as many doors shut as tightly, and does not include penalties for bringing frivolous election-related lawsuits. Senators didn’t sound thrilled that the House didn’t just wait for their bill.
Republican Conference leadership whipped against the House bill, and the only Republicans who voted “yea” either were defeated in primaries or are retiring after this Congress. Even two Republicans who voted for impeaching Donald Trump voted with their party. House Republicans sympathetic to these efforts may be voting their politics, not their conscience, out of fear of being bullied and his supporters — which is the danger incarnate.
So the state of play as the House and Senate iron out a path forward, potentially in the lame duck session, is the House strengthening but not entirely closing off the ability of a minority of Congress to make mischief and relying on the Judicial Branch to reign in “rogue” governors – even as the January 6 Committee awaits interviewing the wife of a Supreme Court justice. The Senate, boxed in by the filibuster and its denial of the trouble we’re in, makes little mention of who’s responsible for this situation, doesn’t punish bad actors, and lowers the House’s bar to trigger debate over a state’s electoral votes from 178 to 107 Members. Recent news reports also bring forth evidence that Republicans’ willingness to accept defeat – the most fundamental norm of a democracy – is crumbling. There’s still a risk that the system fails in 2024 because that’s what a majority of Members choose to do. Happy Monday!
PLAYING BY THE RULES
All that presidential election stuff is interesting, but it is a mere appetizer to how power works in Congress broadly speaking. The House Freedom Caucus seems to be acting on their understanding that the rules of Congress go a long way in defining who has power in it, and changing the rules through political leverage can reshuffle power significantly.
Several Members of the Freedom Caucus asked in a closed meeting last week that the Republican conference vote first on its rules package before it votes on leaders for the next Congress. This is smart politics. Freedom Caucus members are therefore seeking political leverage over the Speaker vote to secure the rules they want implemented in advance.
The Freedom Caucus wants changes to both Republican Conference and House rules. Some of the changes they seek would strengthen their leverage over the caucus, and by extension, the chamber: restoring the “Hastert Rule” of only voting on bills with a “majority of the majority” of support to ensure veto power over policies they do not like; a return of the motion to vacate the chair, the procedure they used to help drive Speaker John Boehner from Congress entirely in 2015, which would help keep the Speaker in check. Other changes boil down to messaging, like an end to proxy voting and pretending to eliminate earmarks.
They also want a return of the “Holman Rule,” dating back to the 1870s and last seen in the 115th Congress, which allows amendments to reduce the salary of federal officers, fire bureaucrats, and cut office budgets. Ordinarily, this rule would serve only to stunt on people like Dr. Anthony Fauci (named specifically in the proposal) and other lightning rod Executive Branch officers. But considering the chatter from Donald Trump about firing federal employees at will under his proposed “Schedule F” executive order, it would be in keeping with something like a return of the patronage system of the 19th century, defined again through party loyalty.
The most significant rules changes HFC has proposed are a change to how the Steering Committee is composed and how committee chairs are selected. The caucus wants seven more regional seats on the steering committee and a rule to allow committees to elect their own chairs.
The ability to influence both of these things is core to the power of the contemporary Speakership and therefore are integral to the centralization of power within the House in the hands of party leadership. (The third important factor is the ability to move legislation onto the floor.) If HFC gets more sway, in concert with the support of non-HFC members, it could usher forth a process that moves some power out of the hands of the leadership, which has been dominant for the last few decades. Similarly reforms implemented by Democrats would be even more impactful as power is even more centralized at the top of that party.
The Steering Committee, of course, selects which members get seats on which committees. Its processes are closed, but likely tied in part to fundraising and personal loyalties to leadership. The same is true for committee chairs, who are expected to raise much more than the average member for the privilege. These things are true for both parties, particularly the so-called “committee tax” that has been a sore spot for members for years.
Donations raised for House Democratic and Republican campaign committees draw from corporate sources, privileging Members with such contacts and industry-friendly types. Indeed, the modern conceptualization of “bipartisan” is built in large part around a corporate-funded center, which flows from their fountain of politics-related cash. HFC members, many progressive Democrats, and rank-and-file generally are disadvantaged by the current leadership-directed internal fundraising structure. Challengers to the status quo still raise their own money, though, built on grassroots donations, wealthy individuals, and allied organizations. Whether or not the challengers share the cash with the NRCC or DCCC is a matter of their comfort with the partisan status quo. But internally, fundraising remains a system of control for leadership.
These rules reforms would facilitate the growth of competing centers of power within the institution to the leadership-fundraiser nexus. Committee chair elections also could open up new avenues for members to carve out their own fiefdoms built on money from leadership PACs in exchange for support, although term limits for Republican committee chairs could limit the value. Independent and new sources of campaign cash is rocket fuel for politicians: it’s how LBJ got started, after all.
Balancing power among competing centers in the House in principle is a good thing. It makes members more than a dialing index finger and a vote. It opens up space for factions within parties to exert more influence over policy debate and devolves a structure that right now gives inordinate power to corporate interests through fundraising feedback loops with party leadership. It also allows for different forms of bipartisanship — multi-partisanship? — where factional alliances can be more fluid and more closely reflect voter preferences.
The question is, what happens if these particular 30-ish Members break through? Some have been directly connected to the January 6 insurrection. Many have expressed beliefs in widespread voter fraud that worked against Donald Trump and a “deep state” that stymied his Administration. The HFC may have veto power over the new Speaker and chamber rules, but they’ll need non-members to help them obtain more than perfunctory concessions. If they succeed, they could implement good structural reforms even as they raise concerns about whose power it increases. On the other hand, reform only happens when those who are out of power find a mechanism to shift it. We could be seeing entry into a new era of control of the House of Representatives. (I hope the Democratic caucuses, committee chairs, and rank-and-file are paying attention.)
All of this is but a prelude to the first day of the new Congress. On that day in 2023, the House first selects a new Speaker and adopts its rules. If none are chosen, the House operates under general parliamentary law until the chamber rules are adopted. This may sound surprising. And yet, at the start of one period of significant reforms in the House, in 1890, the House operated for ten weeks under general parliamentary law while the newly-elected Speaker led the effort to draft the new House rules, which first were approved by the caucus and then the full chamber. At another, in 1849, the House elected a speaker by plurality after 62 prior votes failed to see a candidate receive a majority — and in 1855, it took two months and 133 ballots to decide.
CONG. ELECTORAL REFORM
Part of the reason the HFC has disproportionate clout arises from the structural issues with the American electoral system. All are from noncompetitive seats in our first-past-the-post, single-member district system. They are what their constituents want, and because of the intensity of geographic sorting between the parties, they benefit from a system that disproportionately rewards exurban and rural constituencies with more seats in legislatures than urban dwellers.
It’s really a problem of geography – and it’s an asymmetric problem in terms of partisanship. It is close to impossible to draw districts in the real-world in America that distribute Democratic votes geographically enough to reflect the party’s vote share across many states. Its voters are too clustered in urban places. Relatedly, very few House elections are competitive now. Even states that created nonpartisan redistricting commissions after the last Census have carved out very few new competitive seats for this cycle.
As a result, scholars are urging Congress to consider scrapping 435 single-member districts and returning to larger, multi-member districts as were used in the 19th century.
Last week, more than 200 scholars signed onto an open letter calling for Congress to pass legislation creating multi-member districts with proportional representation, in which the number of votes a political party received would determine how many seats it held in the House.
The day before, New America’s Political Reform project released a comprehensive scholarly review by Lee Drutman of American Congressional districting and the struggles of reforms like independent commissions to deal with the geography problem.
You can blame it on the Whigs. Their internal political struggles during the Tyler Administration, as Drutman recalls, led the party to pass the Apportionment Act in 1842 to create single-member districts they could hold in urban areas against a Democratic onslaught. By 1846, Democrats adopted the same strategy during their own difficult midterm elections. Congress outlawed multi-member districts in 1967 to deal with segregationist electoral practices.
We’ve been greatly informed by Jonathan A. Rodden’s book Why Cities Lose on this topic, which brings a comparative lens from other democracies to explain why the United States poorly captures the preferences of its voters in seating its legislatures. Like in other industrialized democracies, Americans began to divide politically between rural and urban areas beginning in the early 20th century. As this divide hardened, non-partisan issues became attached to one party or the other because of the affinities of their constituencies, making more and more issues contested and intractable.
Most democracies adopted multi-member districts that managed this divide except the United Kingdom, the US, and other former colonies like Canada, New Zealand, and Australia. In all of these countries, conservative parties well overperformed winning legislative seats compared to their vote share. (New Zealand, however, lucked their way recently into a proportional representation system.)
In the US, single-member districts with first-past-the-post elections solidify a rigid two-party system increasingly defined by the cultural and economic differences of geographic regions. Political control by the opposition party in this situation has enormous real (and imagined) costs for partisans out of power.
Proportional representation allows for the emergence of more fluid coalitions and factions. While the current senior congressional leadership of both parties likely would oppose proportional representation because it would limit their outsized personal power, it is possible to imagine other arrangements in the House of Representatives that could change the incentives. The rise of the progressive left and far right imperil corporate friendly party members, but they can avoid existential threats by ensuring that all voices have a seat at the table, including their own, by reshaping the political system while they still have power.
WHERE THE MONEY GOES
As you recall, the 117th Congress brought earmarks back under different names, with the promise of tighter eligibility rules and stronger transparency. The hope was two-fold: give members who request earmarks buy-in to the political process and thus vote to pass appropriations bills, and weaken the strength of the president to whom these decisions were ceded.
GAO recently reported how federal agencies disbursed these requests and which states received the most funds (or in the case of North Dakota, Montana, and Wyoming, zero dollars). Roughly half the funds went to state, local, or tribal governments. No for-profit entities were eligible. The general upshot is states with powerful appropriators still made out best, even if the intent was to spread money around districts.
Machine readable data accompanies the report, which is a very welcome change from how the House and Senate have released requests from individual members and Appropriations subcommittees – the time-honored Congressional tradition of PDFs in separate files so comparative study is very difficult. We also don’t know about requests that were not successful as that information is not published in a useful fashion.
LIBRARY OF CONGRESS PUBLIC FORUM
The Library of Congress held its third annual virtual forum on September 21, an annual opportunity for the Library to hear requests from users of legislative data and to update the stakeholder community concerning ongoing activities.
The Library celebrated two milestones: the 10-year anniversary of Congress.gov and the launch of its new API. We wrote about why the API is so useful to legislative data tools here. Library staff invited feedback about the API on its Github page. They plan on adding a new endpoint for committee meetings, hearing transcripts, and other data soon.
The Secretary of the Senate’s office announced the creation of a video task force of legislative branch stakeholders to address archiving and publication challenges of Congressional video, including from committees and subcommittees. Its ultimate goal is to connect video with information housed on Congress.gov.
GPO is improving how the text of legislation will be published on Congress.gov, as previously published on our blog. Going forward, the text will be dynamic and incorporate a responsive design for easier reading.
There’s much more. Our colleague wrote Taylor Swift a recap of the event here.
If you haven’t had enough, the Congressional Data Task Force is meeting with internal and external stakeholders on Thursday from 2-4 PM. This official task force is the premier working group that collaborates to improve legislative information and processes. All are welcome. It was established a decade ago by Congress.
ODDS AND ENDS
The House passed protections for members of the press from being compelled to reveal confidential sources and from federal abuse of subpoena power on Sept 19. Rep Jamie Raskin’s PRESS Act, which Demand Progress supported, received unanimous support. Nearly all states have some form of protection for journalists, and an earlier version of this legislation so co-sponsored by then Rep. Mike Pence.
The House Veterans’ Affairs Committee cleared a bill strengthening whistleblower protections in the VA.
Congressional staff would be paid twice a month under a bill (H.R. 8827) introduced by House Modernization Committee leadership, following through on a committee recommendation.
Since 1835, the Cherokee Nation has been promised a delegate in the House of Representatives. The Nation is launching a new drive to attain the position. (Axios)
If you take a selfie of yourself committing a felony, it’s probably a good idea to plead out. A California man who did so inside the Senate Galleryon January 6, 2021 pled guilty in federal court last week and faces a potential 20-year sentence. The Hitler cosplay insurrectionist got four years in jail.
Rep Abigail Spanberger introduced a bill (H.R. 8927) requiring the electronic filing of all public financial disclosure forms.
The House Ethics Committee has altered the gift rule for free attendance to events. Members now can bring any guest to compliant events.
Del Eleanor Holmes Norton wants to prohibit federal funds from being used to construct permanent fencing around the Supreme Court Building.
Rep Nanette Diaz Barragán is angling to be the next chair of the Congressional Hispanic Caucus. (Los Angeles Times)
The House Office of Diversity and Inclusion will present a Hispanic Heritage Month virtual roundtable at 12:30 PM on September 27
The Brennan Center will host “Democracy on the Brink,” an online forum in conjunction with the National Association of Hispanic Journalists about vote suppression within Black and Latino communities on September 28 from 6:00 to 7:00 PM. RSVP.
The Congressional Data Task Force will meet (virtually) on September 29 from 2:00 to 4:00 PM.
The National Freedom of Information Coalition’s Summit, which includes training in filing FOIA requests, will take place virtually October 18-20. Register here.
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. Register here.