TOP LINE
Even after months of foreshadowing, last week’s Speakership deliberations clearly defied the expectations of many Congress-watchers and even the members themselves. The first day of a new Congress has become so routine and performative over the decades that many people just assumed that, after some preliminary protestation and accommodation, Kevin McCarthy would automatically ascend to the Speakership and the 118th Congress would begin “on time.” Some members-elect brought their children Tuesday, only to have C-SPAN’s unencumbered cameras find them sitting, bored and glued to smartphones, waiting to witness the swearing-in. The family that remained during the week’s worth of votes saw their loved ones take the oath of office in the wee hours Saturday morning.
The language the chattering classes used to describe the series of Speaker votes revealed their flawed understanding of what was happening and illustrated their expectations about how the House works. The inconclusive Speaker-election votes were a sign of “dysfunction,” “crisis,” and “chaos,” a “circus,” a “rebellion.” It was assumed that in the interest of party unity — or out of fear of punishment — Republican members would go along to get along and submit ultimately to the strong Speaker system that has defined the House for decades. When that didn’t happen, some members of the pro-McCarthy faction started referring to the holdouts as “the Taliban.” Some in the McCarthy faction were so outraged that it almost came to blows. Eventually, McCarthy gave away more and more to the Freedom Caucus faction, which negotiated hard for procedural and positional power in return for bestowing the Speakership on McCarthy by voting “present.”
What we really witnessed last week was the coming of age of a proto-coalition system in the House. A group of members in the majority party acted like members of a small third party that refused to form a government until they were given a share of political power. That’s hardly anarchy: it was leveraging the one opportunity afforded factions in the House to maximize institutional power at the start of a new Congress. This has happened often in the House’s history. McCarthy’s personal desperation and a lack of alternatives, along with Democrats turning the screws to keep his agony visible, heightened that leverage considerably.
It shouldn’t have come as a surprise, as some Freedom Caucus-types have been talking in this way for months and working towards increasing procedural power for years. Conservative Partnership Institute president Ed Corrigan described this tripartite coalition directly in November at an event organized by Rep. Andy Biggs and attended by Gaetz and Rep. Victoria Spartz. (The Grid did a writeup of it last week as Biggs, et al. followed Corrigan’s tactical advice.) The same points were repeated by Corrigan at a panel discussion a week later, hosted by the Lincoln Network, in which I was a co-panelist and all of you were invited. Biggs distinguishes between the “Uniparty,” i.e., Republicans and Democrats who make up the status quo in his view, and conservative purists. He and his compatriots were thinking in European multi-party coalition terms.
What held the Freedom Caucus faction of the Republican party together was their desire for the federal government to shrink, both in size and impact. Because of the rightward drift of the party, nearly every Republican gives lip service to these goals: but the FC wants to go further than most to roll back the New Deal. (We note, however, that the result of political geography is that America’s policies already are significant to the right of what the media voter wants.) With Kevin McCarthy as minority leader, the 116th Congress authorized trillions of dollars in new spending to respond to the pandemic under a Republican president. The Freedom Caucus faction views all this as a disaster decades in the making.
How the Freedom Caucus operates as a quasi-party faction in a coalition government and how the rest of the institution responds to a Speaker that is not all powerful will be fascinating to watch in the 118th Congress. FC members have much, much more in common ideologically with the rest of the party than did the progressive Republicans who last leveraged the Speaker election for process reform in 1923. Despite the bad blood, the conference mostly will come back together. But aggressive use of the new tools at their disposal, particularly through hijacking 12 appropriations bills, hitting the doomsday button on the debt limit, adding members to the Rules Committee and the steering committee, and the omnipresent threat of the motion to vacate, could generate intra party political costs that causes the Republican party to fracture. If the Democrats were smart, they’d have been working this angle at least since the first insurrection. Fracturing the parties would not be bad necessarily, but it would require rethinking how we understand power and coalition politics.
As I told Slate last week, it’s a shame that what happened last week is being framed as “chaos.” In fact, it was the kind of struggle factions of members across the board should be having with their party leadership for political power within the institution. Power is defined through the rules, procedures, personnel, and resources that structure the institution. The model of the Speakership that existed until Saturday morning ensured that only a limited set of policy options ever were considered and a select diet of issues ever saw a floor vote. Through force of will, the Freedom Caucus created a new model where everything won’t be pre-baked by party leadership, at least for Republicans. The Democrats mantra “our unity is our strength” suggests that their factions have a lot to learn about the dangers of a party leadership structure that doesn’t share power with committees and the rank-and-file.
Unsurprisingly, the FC was motivated to take back some of their power from the Speaker, but the outcome was not tantamount to creating an open body that supports greater debate and compromise. That could have been accomplished had Democrats and the McCarthy Republicans formed a coalition, but neither side was thinking strategically. The FC was thinking strategically, but only with a view to the short term. It is one thing to make a play for power in the House, and it is another to retain it. We all will have to adjust our thinking.
This week the House returns to work on Monday and will vote on its rules for the 118th Congress in the evening. (See their section-by-section and our summary from last week.) Votes on seven bills are teed up for a legislative session running through Thursday, including for establishing a Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party and a Select Subcommittee on the Weaponization of the Federal Government under the Judiciary Committee.
It is unclear whether the proposed House rules will pass on Monday, as some Republican members have indicated they may vote against it and other Republicans may not be present. In addition, watch for any motions Democrats offer to amend the rules, which in such close circumstances could be successful if they offer the right constellation of changes. Also keep a close eye on whether Republicans make further changes to their conference rules, change the composition of their steering committee (which appoints members), and who they confirm to the various committees. We don’t know the full scope of the Freedom Caucus + McCarthy deal.
No hearings are showing up on Congress.gov’s committee schedule.
Meanwhile, everybody’s favorite continuing body, the US Senate, is in pro forma sessions until the 23rd. FYI, Sen. Sasse sent his resignation so the body is now 51-48.
A quick note from me
The start of the 118th Congress brought many new staff to the hill and a renewed focus on congressional process. If you like our little newsletter, please forward it to your friends and encourage them to subscribe. Yes, that’s the hyperlink to subscribe. We try to make it fun and interesting. We judge our success by whether it’s useful for you. Thanks.
ILLUSION AND REALITY
The delay in constituting the new House also laid bare the Twilight Zone aspects of how Congress chooses to operate institutionally. According to tradition, members-elect are not considered office-holders until they are sworn in. However, Thomas Jefferson’s Manual says quite the opposite: that are “to every extent a Member except that he cannot vote until he is sworn.” Even this distinction is loaded — none of the former members visiting the House floor last week voted for Speaker: the members-elect did.
As a matter of nomenclature and of law, we should take Josh Chaffetz’s advice and describe those who have been elected to Congress as members-elect; describe members-elect on the day the new Congress has started as unsworn-members; and describe those who have been sworn in as members of Congress. Furthermore, the law should be clarified that unsworn members have the same range of powers as sworn members, with a few exceptions (like voting on matters besides who may serve as Speaker.) In addition, matters that relate to the House continuing to function while it resolves who may serve as Speaker, such as paying committee staff, should be authorized to continue.
In the absence of this, we had a fair amount of anarchy.
This long-standing half-way status for members-elect, particularly incumbents, created real-world problems. Rep. Mike Gallagher said last week that he was denied access to the SCIF for a briefing with military leaders because someone in the Sergeant at Arms office told him he lacked clearance as a member-elect. The House security official who told Gallagher and fellow Rep. Don Bacon to skedattle is wrong – members don’t need security clearances. Moreover, as a matter of policy, previously serving re-elected members on committees after the start of the new Congress should continue to be afforded the privileges that attend to serving on those committees until the new House forms. Ironically, committee staff, who are cleared, wouldn’t have that particular problem, although their employment status quickly becomes murky. In the real world, surely the Executive branch should extend access to people who already have been in access until the new House organizes and can decide otherwise.
Republicans claimed that the lack of access is a national security issue. True. In fact, an unexpected forced absence from the Capitol complex by a natural or man-made event would similarly impact national security and government oversight. That’s why remote deliberation should be an option, which is something that many Republicans are now opposing, including the national security hawks.
Besides the national security consequences, which seem a bit tendentious, there are real issues here, too. Members-elect said they couldn’t do basic things like order stationery or answer constituent emails. Rep. Tim Birchett asked the Biden White House for assistance on casework, which didn’t seem all that sympathetic.
The lengthy Speaker election affected staff. Committees received guidance that they could not hire new staff, and current staff would have stopped receiving paychecks if the process had gone beyond January 13. Some other professional staff in the legislative branch may have risked missing paychecks as well.
Not even the CAO was immune: it pushed pre-loaded statements by members-elect about being sworn in to their new websites assuming Tuesday would be business as usual.
These problems are of the House’s own making and could be remedied through rules or legislative changes that professionalize staffing the institution. Such reform should go beyond this particular unusual scenario of a delayed swearing-in to address administrative tangles like the US Capitol Police governance structure and the Office of the Architect of Congress, who cannot, we learned this year, actually be removed by Congress. (An issue that the Senate took up at the end of the lame duck session but failed to progress.)
Some decisions last week simply remain a mystery. Rep. McCarthy moved into the Speaker’s office in the Capitol without having been…well, you know…prompting Rep. Matt Gaetz to ask the AOC about the move. Republicans also independently removed the metal detectors from the House floor that were installed after the January 6, 2021 insurrection, but how could they do so when the House had yet to organize?
We had asked for the creation of a select committee on the Continuity of Congress. Maybe the House should reconsider and create one, which should include addressing the interregnum between one Speaker and the next.
REGRESSION
Before the Speakership vote-a-go-go began, House leadership floated a draft of chamber rules for the 118th Congress that made progress in some areas, but were steps backwards for the institution in others. (We summarized these proposals in last week’s newsletter.) The rules package that the House will consider this evening is consistent with that draft, unfortunately.
One of the more troubling sections was changes to the Office of Congressional Ethics, which would impose term limits that would force out three Democratic members and mess up the ability to hire staff. Our sister organization Demand Progress has joined with the Campaign Legal Center asking the House to rescind these rules changes. OCE should be strengthened, these changes appear to weaken it.
Another provision declares that H. Res. 1096, which authorized staff in personal House offices to unionize, would no longer have force or effect in this session of Congress. That resolution allowed the OCWR to implement its regulations that affords many House staffers the right to unionize, among other workplace benefits. The same law, the Congressional Accountability Act, has allowed workers in other parts of the legislative branch to unionize — passed, we note, by Newt Gingrich’s House. Under the CAA, OCWR has set regulations for member office unionization and 11 offices are at some point in the process. The Congressional Workers Union is exploring legal options if this rule remains in the final package. We will have more to say on this in the near future.
The rules package also neglected any mention of a permanent version of the House Modernization Committee, which has published its final report after four years of work. Bipartisan consensus at the end of last Congress developed around creating a select or subcommittee for modernization under CHA, with particular attention on implementing the more than 200 recommendations of the Fix Congress Committee. The committee’s work aligns strongly with the principles of member empowerment and legislative productivity, so letting it wither away would be a mistake by the new majority. We think it may be established as a subcommittee by the House Administration Committee, but there’s no confirmation of that.
Tour guides at the Capitol Building, meanwhile, will act as if it’s January 5, 2021 as tours resume. They have been instructed not to discuss the insurrection that swept through the edifice two years ago last week unless specifically asked by visitors. The attack is not mentioned at the Capitol Visitors Center, either. Given the extent of damage in public parts of the building and significance of the event in congressional history, this seems like a whitewash.
We have not discussed the significant changes in the budget, appropriations, and debt ceiling, but they all portend disaster. The Biden administration would be wise to resort to the trillion dollar coin now to address the debt ceiling because no other option is reasonable. We can expect government shutdowns in our future. Of note, the Capitol as well as House and Senate office buildings fully reopened last week to visitors. Saturday tours at the CVC will resume March 23.
LEG BRANCH APPROPS
One of the promises Speaker McCarthy made to holdouts was submitting a budget resolution that balances within 10 years and caps non-mandatory spending at what was enacted for FY 2022, or lower. Appropriators immediately pointed to defense as a flashpoint for this proposal because it would require a $75 billion reduction in spending. (We note, parenthetically, that apparently the reason the debt ceiling was not addressed in the 117th Congress is because 51 Senate Democrats would not go along. You can guess who the hold-outs were. They deserve as much opprobrium as you can muster for creating an existential problem for the global economy.)
The 117th Congress made significant steps in restoring appropriations for the Legislative branch, which remain lower than FY 2010 levels adjusted for inflation. The omnibus appropriations package approved at the end of the lame duck session included a 16.5% annual increase in money for the Legislative branch. As our colleague Taylor Swift breaks down, that included an additional 4.6% increase in the MRA and 5.3% increase in the SOPOEA and significant increases for the House Clerk, CAO. Long-underfunded, the offices of legislative counsel in both the House and Senate also received significant bumps, more than 10% in the case of the Senate. The House’s modernization initiatives account, which funds in-house technology improvements for constituent engagement and office workflow, received an additional $8 million on top of its initial $2 million budget.
Increases to Legislative branch staff pay and the creation of new hiring lines in offices like GAO’s STAA build back a capacity deficit that has existed since Congress first slashed its own budgets in the mid-1990s. The institution has made significant but incomplete progress toward pay parity with the Executive branch, an issue we’ve been tracking consistently.
We fear that the progress of FY 2023 will be undone for staff pay, legislative support office capacity, and modernization because the greatest driver of the top-line increase was for campus security. The US Capitol Police, despite deep accountability issues, received a funding increase of more than $132 million to $743.6 million. That figure is a $308 million increase since FY 2020. The budget of the Architect of the Capitol, which is in charge of physical security, nearly doubled to $1.3 billion for FY2023. These funds likely will be much harder to claw back than, for example, the $5 million added to the House intern allowance. With inflation, it’s possible staff will be paid less in 2024 than they were in 2022.
We are hopeful that House Republicans realize that cutting Congress is fiscally irresponsible. The GAO returns more than $130 for every dollar spent on it, and so a $100 million decrease in GAO’s funding will cost taxpayers more than $13 billion dollars. Conversely, increasing its funding by $46 million would offset the cost of the entire legislative branch, which is around $6 billion. Furthermore, weakening the Legislative branch would put it at a severe disadvantage when trying to conduct oversight of the Executive branch. Poorly paid congressional staff who do not stay around as long and have less opportunity to develop expertise and are no match for much better paid Executive branch employees.
ODDS & ENDS
We are thinking of our friends in Brazil, especially the people at Bussola Tech, in light of yesterday’s storming of their Congress and Supreme Court by far right allies of the former president.
This past week was the second anniversary of the Trump insurrection. (Sorry friends, we are not safer.)
A groundswell of support seems to be emerging to allow the press to control the cameras in the House, allowing for a wide range of angles.
CALENDAR
Bússola Tech will host LegisTech: the Commonwealth Community of Parliaments from 8:00 AM to noon EST on Jan 23 and 24.
Lincoln Network hosts Realignment Live, an event about trends in tech policy and politics January 25 from 9:00 AM – 7:30 PM EST at AutoShop Union Market. Register here
The Levin Center and Georgetown Law Center for Congressional Studies co-host a roundtable with two staffers of the January 6 Committee on how the committee’s work can shape future congressional oversight on January 30 from 12:00 to 1:30. Register here
