First Branch Forecast for January 2, 2023: Hindsight is 2022

Top Line

The 117th Congress was astonishingly productive by any reasonable measure. It had everything arrayed against its success, including an attempted coup even before it began by the outgoing administration that nearly resulted in the murder of the constitutional line of succession. After it gaveled in, it contended with determination by the ex-president’s co-partisans to thwart impeachment proceedings and accountability for the Trump insurrectionists. Mitch McConnell took the Senate hostage, preventing committees from forming for weeks and prompting commitments from Sens. Manchin and Sinema to keep the anti-majoritarian filibuster. Meanwhile, a global pandemic continued to make convening in person difficult and dangerous.

Democratic leadership more-or-less maximized what was possible even as conservative Democrats successfully undermined significant parts of their party’s agenda, most notably Build Back Better. It often fell to the caucus’ rank-and-file and the American public to push the struggling Democratic leadership to meet the moment. The media made much ado about the dozen Senate Republicans who joined Democrats at times in moving legislation, but we note that their actions took pressure off Manchin and Sinema to get rid of the filibuster, the preservation of which was the top Republican priority. Although we also saw serious efforts, particularly in the House, to rebuild Congress as an institution and reform its operations, those efforts did not touch how power is shared or exercised by leadership. Nancy Pelosi exited the leadership stage talking about the “awesome power” as Speaker of the House she was relinquishing.

The incoming Republican majority now takes up the question of whether to decentralize power and how. Votes on the House leadership, House chamber rules, and House Republican conference rules will illustrate the extent to which we are seeing the instantiation of a new model for organizing the House of Representatives. The highly-unusual fact that all of these things are still contested going into the first organizational meeting of the new Congress is a sign of tectonic forces at work and how unstable things may be politically. Retaining the model of congressional leadership where power is concentrated in the hands of a few individuals creates a brittle, anti-democratic institution that lacks resiliency. (Yes, friends, this isn’t just a problem overseas, even when we pretend otherwise.) Clearly, Kevin McCarthy would prefer to retain that model: but his quixotic search for votes to attain the position is leading him to give some power away to the MAGA rump of his conference. These folks want to use the House as a weapon, and want the authority to aim it where they see fit.

Unfortunately, the outgoing Congress left a very soft target by keeping the debt ceiling in place. The more power that shifts out of McCarthy’s hands and into the hands of hard-right members, the more likely it is that a faction within the Republican party may shoot their shot and generate a veto power to accomplish the generations-long goal of destroying the New Deal. Old-school Eisenhower “modern” Republicans are more than happy to empower McCarthy to keep this – or the meltdown of the global financial system – from happening. But he already is signaling a willingness to throw moderates under the bus by threatening to retaliate against Senate Republicans who voted for the Omnibus by blocking their legislation, echoing threats from House MAGA members.

The devolution of power effort being led by MAGA Republicans is not intended to redistribute that power evenly across the conference, but to capture it themselves. Chamber of Commerce Republicans and those who won Biden districts certainly didn’t sign up for that. These single-minded seekers of reelection will be able to use the same rules package to claw back some power for themselves. But trapped between MAGA member political overreach and a hard-right primary electorate, trad-Republicans will be squeezed by enormous political pressures.

The intraparty dynamics of the 118th Congress will be much more unstable than any time in the recent past. There is real risk to the country if the House tries to create a glidepath to Trump restoration or crashes the financial system in games of budgetary chicken. But a weakened speakership also generates new creative possibilities to arise from members’ efforts to avoid these disasters that form new ways for the rank-and-file, including committees, to empower themselves within the institution. If House Republicans had chosen to do what Democrats have for the 118th Congress, which is Xerox caucus rules that retain a command-and-control structure, they would have retained a vulnerable structure that minimizes legislative responsiveness and skirts disaster like the lame duck session just did. It’s a bad way to run a democracy. But both party’s leadership have argued for more than a decade now that outcomes would be much worse if their rank-and-file had more of a say in the legislative process.

The unusual and unexpected outcome of the 2022 election has changed the context to crack that command-and-control model. We think people that actually care about democracy can start reshaping the institution in ways unimaginable a few years ago. But there is considerable risk in the instability afoot.

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The Omnibus Appropriations bill came out very late on Monday the 19th, typical for the old command-and-control model, jamming members with little opportunity to shape the legislation.

Per Bloomberg Government: the bill provides $858 billion in defense spending, a $76 billion increase. It also provides $772.5 billion in nondefense funds, a $42.5 billion increase. Among that, it provides $118.7 billion for VA medical care, a $21.7 billion increase. The 302(b) increases are laid out in this BGOV story. We note that national security hawks in both parties took a huge win by forcing an outsized increase in defense spending, a boon for military contractors but a bad result on social spending or for the three people who care about the federal debt.

The Senate adopted eight amendments that gummed up the work. It takes time to enroll the legislation — for the text to be finalized, proof-read, and printed — so the House had to wait around for the Senate to send over a dead-tree copy. Because the House’s version must also be enrolled, there was a big risk that the legislation could not be completed and signed before a government shut-down started, so the Congress prepped, passed, and enacted a short term CR. If you’re looking for the final bill, as amended, and all the explanatory statements and whatnot, it’s here (I think).

Meanwhile, the terrible weather in DC led around 226 members of the House to vote by proxy, once again making my point that having remote voting available in an emergency — in this case, a bomb cyclone that led to thousands of flight cancellations, scores dead, and affected more than 200 million Americans— is preferable to the alternative.

A lot rode along with the Omnibus, which was a vehicle in part to bypass the anti-majoritarian Senate that allows even a single member to stop most legislation from advancing. Fortunately, the Electoral Count Act was included in the legislation, although the more limited Senate version. Surprisingly, some anti-monopoly legislation made it into law, even as corporate pro-monopoly advocates outspent opponents by at least 50-to-1 and hired the children of party leaders in both chambers.

We note that some important things we were looking for, including a ban on trading congressional stocksa reporter shield law, and legislation to make court orders freely available did not make it in.

Roll Call has a good summary of what’s new in the Leg branch approps bill + committee report. We will have a lot more on this in later issues. And we’ve put together a line item by line item comparison of spending in FY 2023 as compared to FY 2022 and FY 2021.

House Modernization Committee

The House Modernization Committee issued its final report, available here (archival version here). Will the committee continue? It recommended that it become part of the House Admin Committee next Congress as a subcommittee. As has been reported elsewhere, the committee accomplished a lot and there is a lot more to do.

The ModCom, which I still prefer to refer to as the Fix Congress Committee, did submit a final request to the Acting Archivist of the United States to “communicates our committee’s designation of all records that the Archivist receives for archiving, as our committee draws to a close, as available for public use.” It’s a little known fact that House committee records cannot be accessed by the public for at least 30 years without the permission of a successor committee, which I can tell you from personal experience is hard to obtain. Maybe this will make that a little easier, especially if the committee gets its wish for the House to authorize another Modernization Committee in four Congresses (or fewer).

Trump Insurrection

The January 6th Committee released the 154-page executive summary of its final report on Monday the 19th and 845-page full report late the following Thursday. We’re linking to the PDF on the Wayback Machine because the Committee’s website will be toast in early January. We haven’t read it because, well, I’m allowed a vacation too, right? Twitter people apparently think it’s notable that the report contains 54 or 55 instances of the word “fuck,” a fact we haven’t bothered to check. While we’re at it, here’s archival copies of witness testimony transcripts.

In essence, we gather the report called for the DOJ to prosecute Trump and a handful of cronies for attempting to overthrow our democracy and for the Ethics Committee to review the actions of four Members who defied subpoenas (McCarthy, Jordan, Biggs, & Perry). Neither entity is likely to listen and the late timing means that the committee has squandered any opportunity to push its findings forward. Maybe this will prompt the laggard Department of Justice to act. (Not likely: and it appears the DOJ is strong-arming the intel committees on what happened in the lead up to the insurrection.) The Ethics Committee, the “partisan” design of which is designed to prevent searching inquiries into members, most certainly will not.

Critics who have somehow managed to slog through the extraordinarily-late publishing report have noted two important things: (i) the Jan 6th committee focused on Trump to the point of overlooking his fellow travelers who remain interested in overthrowing our democracy; (ii) the report failed to look deeply into the failures of the security establishment as well, especially in dealing with the authoritarians mentioned in romanette (i).

Not only is this a shame, but it’s a squandered opportunity that makes our democracy less stable by giving them a free pass. As you might imagine, the NYT has a lengthy piece that goes into the operations of the committee, which illuminates the personalities involved.

If you asked us, this would all have been a lot more productive if the impeachment vote after the insurrection was not delayed by House leadership— or if the first impeachment hadn’t been botched. Just saying. Again. (sorry) (not sorry)

If you want copies of the official Jan 6th committee documents, GPO has you covered. You can pre-request notice about availability of the print version for $19. I know I’m shouting in the dark, but I’d really love congressional reports as an ebook. Why should people have to buy it from a third party when it’s a government publication?

Capitol Police

What we did read cover to cover was this final report from House Republicans on security failures at the U.S. Capitol on January 6th, helpfully reviewed in Roll Call. We found ourselves nodding along to many of the (narrow) findings and recommendations. We think the Republicans failed to focus enough on the problems arising from the office of the Senate Sergeant at Arms and the politics of the other chamber, but it’s not surprising they’d have a blind spot there. We wouldn’t point the finger at Speaker Pelosi without pointing it at Sen. McConnell and their predecessors. Nor do we have any doubt that the Sergeants at Arms are political bodies and unduly responsive to their political masters, whoever they are. To the extent this report was intended to focus on the Trump insurrection and not the specific security failures, it obviously was woefully inadequate in scope, as one would expect.

Their analysis of the failures inside the Capitol Police, especially in the intelligence division, are in accord with everything else we’ve heard. We would go further (and did in our testimony), but their recommendations make a lot of sense:

  • Compel the Board to send meeting minutes to the relevant oversight committees. (We would add that they should be publicly available, except in limited circumstances.)
  • Require the Board to regularly appear before the relevant oversight committees. (We would require them to be responsive to public stakeholders, too.)
  • Provide additional resources for the Capitol Police Board to professionalize its support staff. (Yes, as they have no staff.)
  • Clearly define and limit the Board’s authority.
  • Make the Inspector General independent from the Board. (This is obviously correct, and the IG reports should be publicly available.
  • Reform the structure of the Capitol Police Board. (Yep.)
  • Add two new members to the Capitol Police Board. (We agree about adding more people to the Board but are unsure if these are the right people.)
  • Replace the Chief of Police with the Commissioner on the Board. (Yes, removing the USCP Chief from the Board makes sense.)

We did raise our eyebrows to learn that the USCP Board is still months behind sending minutes to their overseers. It’s not surprising, as they always have avoided oversight, but it remains shocking. There also may be a hidden Capitol Police after action report that still hasn’t been provided to the IG or overseers. And that the Capitol Police may have retaliated against whistleblowers, which is a time honored practice for them. As far as I can tell, it is the archetype of a failed agency.

We did not watch the Senate Rules Capitol Police oversight hearing on December 19th, but having Chief Manger testify alone before the committee seems unlikely to shed much light on what’s going on inside that agency. We will catch up with it in the new year. Also on the to do list, reading former Police Chief Sund’s vester cupla, soon-to-be available from finer bookstores everywhere.

We cannot help but note that appropriators piled tons more money onto the Capitol Police, an additional $130 million, and they are already well capitalized. We continue to believe that no amount of money will solve what ultimately are leadership, training, and structural failings.Maybe the incoming Republicans will release more of the USCP IG reports. We have a few unredacted reports and they are very interesting. There is so much more to do. Congressional security remains an oxymoron.proceedings for the 118th Congress.

Countdown to the 118th, the Rules, and the New Leadership

Pre-writing about what’s going to happen on the first day of the 118th Congress is a fool’s game. We don’t know if McCarthy has the votes locked down or what the chamber or caucus rules will look like. We expect a lot of last minute twists and turns and would be fascinated to see both multiple votes on the Speakership and a contested rules process. A delay could have interesting knock-on consequences.

In case you missed it, at 9:56 p.m. last night, House Republicans published both draft House rules and a section-by-section analysis. You know we love to read this stuff, but 55 pages this close to bedtime is too much for me to summarize. So I will steal from theirs, translate into English, and hit the highlights:

  • The return of Calendar Wednesdays, which allows committees to bring measures to the floor without the prior approval of the Rules committee. 
  • It allows committee chairs to permit non-governmental witnesses to testify remotely before subcommittee and full committee hearings. However, the remote voting regs for the chamber and committees expired at the end of the last Congress.
  • Regulations adopted under H Res 1096 — which allowed for some staff to unionize — will have no force or effect in the 118th Congress. Besides being a bad move that is antithetical to applying the same laws to Congress that apply to the American people, it’s unclear to me at first thought what this would do to the unions that already exist and have been recognized. 
  • Reinstates the Holman rule, which allows approps language to target a specific Executive branch employee for firing. 
  • Allowing House Ethics to take complaints directly from the public and requiring the ethics committee to set up an investigative panel or issue a report w/in 30 days of a member being charged, indicted, or convicted. Also establishes a bipartisan task force to conduct a comprehensive review of House ethics rules and regulations. Continues a ban on former members-turned-lobbyists from going into the House gym. Continues make sure NDAs don’t prohibit staff or contractors from communicating to ethics-oversight entities. Reestablishes the OCE while reimposing term limits on Board members. 
  • Retains welcome language pushing for publication of House documents in machine-readable formats.
  • Contains welcome language calling on the Clerk, House Admin, and others to continue to improve the electronic document repository for use by the committees.
  • Provides that a motion to discharge a War Powers Resolution is not subject to a motion to table. Note, however, that district work periods shall not constitute a day for the purpose of War Powers resolutions.
  • There’s a Member Day hearing requirement — I don’t understand what has changed.
  • Requires bill sponsors to state the single subject of a bill or resolution, which we expect will be meaningless and easily evaded, just like the constitutionality requirement.
  • Establishes a select subcommittee on the COVID pandemic, keeps the House Democracy Partnership and Tom Lantos Commission. Also sets up votes on establishing two select committees on competition with China and the weaponization of the federal government.
  • A bunch of unfortunate budget stuff, like CUTGO and points of order concerning increases in spending. Also 2/3s of the House required for tax increases. I don’t understand a lot of the budget items.

I don’t immediately see a provision re-establishing a select committee on the modernization of congress within the House Administration committee. The absence of it, which enjoy broad bipartisan support, would be a huge blow to the operations of the House. Nor is there a provision to provide TS/SCI clearances for staff in personal offices, fixes for the House calendar, disclosure of House IG reports, or many of the reforms one would expect

I’m going to have to sleep on this — and read the bill text — but if they removed many of the elements included in the rules in the 117th Congresses, that’s really bad news for House operations as it contained many small but important fixes, and some big ones. The Freedom Caucus asked to “reset the House rules” by restoring the House Rules from the 115th, wiping out Dem changes in the 116th and the 117th, and the summary in the section-by-section can be read as doing that. However, the bill text, at first glance, does not support the interpretation that section 2 of the 117th rules package was excised, suggesting continuity with the 117th Congress rules except as provided in the 118th rules package. If the 118th rules package nukes section 2 of the 117th House rules package, it would eliminate:

  • Office of Diversity and Inclusion
  • The Office of the Whistleblower Ombuds (created as a separate order in the 116th and put into the House Rules for the 117th)
  • The 72-hour rule for public availability of legislation. I think this reverts to 3 legislative days, which is a shorter timeframe and a blow to transparency.
  • 24-hour availability of amendments considered in committees
  • Committee vote availability (although this might be sufficiently addressed through appropriations and elsewhere in the separate orders concerning the electronic document repository)
  • Truth-in-testimony reforms that address foreign influence
  • The electronic filing of reports and electronic signatures
  • The requirement for committee hearings/markups on bills
  • Gender-inclusive language
  • Removes protections for whistleblowers whereby those who disclose their identity can be punished
  • A bunch of other things 

Admittedly, we’re just looking at this last minute — why wasn’t the rules released several days prior to a vote? — so we could be misinterpreting what happening. If the language from the 117th is nuked, it would be a significant roll-back of transparency, accountability, and ethics & disclosure reforms. I now think there is continuity on these provisions from the 117th, but I had tweeted out last night suggesting that there may not be. 

These may be a separate problem with the Office of Congressional Ethics. The new separate order in section four has the effect of immediately removing three members of the Board (who become now term limited), reducing the current number to 3. It also appears to say that the Board can only hire staff or set salaries within 30 days after the rules package is passed. However, if new OCE Board members are not appointed within the first 30 days — it usually takes longer to appoint — the Board won’t have enough members to hire staff or change compensation during the initial 30 day window… and such actions aren’t allowed for the rest of the Congress. In effect, OCE wouldn’t be able to hire staff or change staff salaries.

As you might expect, we’ve compiled resources on proposals to update the House chamber rules as well as the caucus and conference rules.

Rep. Scalise, who we presume will be majority leader, issued a floor schedule for the first two weeks of the 118th Congress as well as the weekly floor schedule. (Why isn’t it called the Weekly Leader?) It’s great to see these bills published far in advance, but I’d really like at least 72 hours in advance (not counting Sundays) to read the House rules, which elapsed at noon on Friday, December 30th. Regular order and all. The text to the House Rules resolution isn’t linked to in the weekly schedule. It’s still not up as of 6 p.m. on Sunday, January 1st. (Okay, up at 10 p.m. Gee, thanks). 

As a last minute update, it appears that McCarthy has agreed to a 5-vote motion to vacate. What else did he agree to? Will it stick? I guess we’ll find out together on the official House floor livestream.

The House buildings and the U.S. Capitol will be open to the public at noon on January 3rd, which we had to find out from a Tweet by Craig Caplan because the House Sergeant at Arms still is making these announcements via the Dear Colleague System that is not available to the public. Maybe the House and Senate SAA can work out a better system that allows them to communicate this information to the public?

By the way, Senate Democrats have finally published their caucus rules for the first time ever — something we asked of them for quite a while. Since we successfully encouraged House Dems to do so a while back, now party rules for Republicans and Democrats are available online (more or less). We also note — per Zach Cohen’s scoop — that Senate Dems changed their rules to empower subcommittees to hold hearings of their choosing (with consultation) and be provided a minimum threshold of funding for subcommittees from the committee’s budget.

While you were on vacation, civil society reminded House Republicans that we want the Office of Congressional Ethics reauthorized and strengthened in the 118th rules package.

The White House gave a Bronx cheer to incoming House Republicans, saying requests for documents made by Republicans during the 117th Congress would have to be restated to actually count at the start of the 118th. Per Politico: White House Special Counsel Richard “Sauber described such requests as constitutionally illegitimate because both Jordan, who is expected to chair the House Judiciary Committee, and Comer, who is expected to head the Oversight Committee, made them before they had any authority to do so.” Friends, I’m not all that sympathetic to these record requests, but the White House response is bravo sierra. The requests are in fact legitimate and the White House doesn’t get to decide whether member requests are legit or otherwise. I hope the House stomps on this behavior hard.If you’re interested in information about the incoming members of the House of Representatives, the House Clerk has you covered, publishing data on December 30th that includes a list of members organized by state (as a PDF), all member phone and room numbers (as a PDF), and all that data, and more, in a helpful XML format. Nicely done.

Trump Tax Returns

The House Ways and Means Committee finally voted to make Trump’s tax returns publicly available. This prompted some hand-wringing about whether there’s a valid legislative purpose, which should be put to rest because it formed the basis for legislation voted on by the House to make all presidential tax filings publicly available — as they should be. If you’re looking for the returns, I think they’re on this webpage in Attachment E— archived for your convenience — although W&Ms should provide more useful descriptions for their links

The IRS failed to audit Trump’s tax returns, as were required to do by law, opening another avenue for productive investigation. (It appears that he may be a tax cheat, among other kinds of cheat.) FWIW, we don’t think the people who cheered the efforts to obstruct public disclosure of these documents are in a position to argue that their success at delaying oversight is the reason why the documents cannot be disclosed.

You can find the findings of the committee, including significant supporting materials, from the committee’s website. As it’s likely to disappear, you can find an archival link here.

While you’re blaming the IRS for failing to audit Trump as required — hopefully blaming Trump’s IRS, that is — it’s also notable that the IRS hasn’t released hundreds of thousands of tax returns for non-profit organizations, which are required by law to be publicly available in a data-friendly format. We can, and will, point to the longstanding goal of corporate Republicans and Christian Right Republicans to hollow out the IRS, which has been quite successful.

Odds and Ends

Seeing is believing. It appears that the resume of Rep.-Elect George Santos is largely fiction, prompting the New York Times to belatedly ask who he is? We wonder, too, including how he got to the point of being elected without a full scrub by the local New York paper of record that has all the news that’s fit to print. (We have our own thoughts about relying on the Democrats’ campaign arm to conduct this kind of research.) There is some reporting on who he is not. Some local Republicans are calling for an investigation. Apparently Republican leadership knew there were pre-existing problems. I have a thought: if he’s so toxic, maybe Republicans should refuse to let him caucus with them? I’m sure an ethical line exists, somewhere, although drawing Rep. Greene inside that circle is a baffler.

The DCCC’s new head will be Suzan DelBene. The choice was pushed back to the Democratic Leader in a move that weakened individual member power and appears to be intended to avoid having the two likely competitors for the job winning an election to get it.

Democracy Fund, a foundation that has previously provided support for our work, is hiring a Program Associate for its governance team. We are impressed with the team over there — it’s worth checking out.

How to staff Kyrsten Sinema? Well, it ain’t pretty and appears to contain a fair amount of ethics violations, not that the Senate Ethics Committee cares. Also notable: she meets with constituents only on Wednesdays in 3 minute increments, but lobbyists and donors get 15 to 20. This gives us a new political science equation that evaluates the comparative importance of constituents and lobbyists: 1S= 5C – 1L, where a S is a 5 minute increment, a C is a constituent, and a L is a lobbyist or donor. Political scientists, if you use this, I want a footnote and free APSA membership.

The White House issued a new memorandum on electronic records on December 23rd. The short version: they’re delaying the move to electronic records.

The White House released the U.S. Government’s Fifth Open Government National Action Plan on December 28th, highlighting its obvious importance to the administration. My colleague Alex Howard has a Twitter thread (read it while Twitter still exists!) on the deficiencies in the plan, most notably that it wasn’t made in collaboration with civil society, in violation of the rules on how these things are supposed to work. We had given them civil society’s top three asks, but alas. As far as we can tell, they published a plan stating what they were doing or were planning to do anyway and public participation was pro forma.

Bloomberg has a fascinating, laudatory profile of Sen. Durbin. Meanwhile, the Washington Post’s profile of Elise Stefanik suggests that she would not be included in a modern Profiles in Courage.

Who will be the House’s Ranking Committee DemocratsHere you go.

Rep. Raskin announced he has a serious but curable form of cancer.

Thank you to Bloomberg Government for publishing all the earmarks as a spreadsheet (downloadable .csv here), collating the information from the incredibly annoying 10 PDFs published by House appropriators. The 7,234 are summarized here. Let me note, as I have previously, that if you’re going to have earmarks, you should publish them this way, and they should be provided proportionally by member and not how the Senate does it. :/

The House banned the use of TikTok on House Managed devices, apparently. The message, of public interest and sent as a Dear Colleague message, is not otherwise publicly available.

The New York Times took a closer look at enslavers and confederates memorialized in paintings throughout the Capitol complex. ICYMI, here’s an opinion piece written by me and the R Street Institute’s Eli Lehrer calling for removal of all the confederate statues.

Speaker Pelosi issued an updated Speaker’s Pay Order on December 30th that increases the maximum amount a staffer can earn to $212,100. This is the same rate as SES Level II earn, keeping top staff pay levels consistent with their executive branch counterparts. Most members earn $174,000 annually, but some earn at other rates, such as the president pro tempore of the Senate and majority and minority leaders of each chamber ($193,400) and the Speaker of the House ($223,500). Obviously, members of Congress should earn more, but politics have impeded the pay adjustment process.

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