First Branch Forecast for January 17, 2023: Cooking with gas

TOP LINE

Now that the House of Representatives officially is organized for the 118th Congress, it is clear that the Freedom Caucus faction played their third-party hold out strategy very well. In exchange for forming a governing coalition between themselves and the rest of the Republican conference, the FC faction received a very favorable rules package, placements on key committees, and increased power in the conference steering committee. As James Wallner and I wrote in The Hill last week, their efforts were an appropriate and instructive use of leverage by a faction to wrest back some power from the enormous legislative power of the contemporary Speakership.

Most significantly, three of the 14 Rules Committee slots will be filled by FC-faction members. Democrats, in the minority, get only four. Let’s pretend that the FC was an official third party: If we think about these slots in terms of proportional representation across the entire 435 (voting) Committee of the Whole, those three seats would roughly translate to a party with about 93 representatives in the House. The caucus has roughly 40 members.

Don’t get too excited. The House Rules Committee is far from a democracy, and the four Democratic members won’t win any votes. Those four seats translate to a party with 124 members; Democrats in actuality have 213. What happens if the three Freedom Caucus members join with the four Democrats and cast seven of the 14 votes? Well, you get out the popcorn because there’s bigger issues afoot.

Through the FC faction’s presence on the Rules Committee, the motion to recommit, individual consideration of appropriations bills, and manufactured debt ceiling crisis, FC members — indeed, any subset of the majority — now have many veto points in the House legislative and appropriations processes. It looks a lot more like where Rep. Chip Roy used to work: the United States Senate.

“UNITY IS OUR STRENGTH”

Since Newt Gingrich, House leaders have insisted that party unity and party discipline were essential in a partisan war of attrition. In practice, leaders have prioritized unity to consolidate their own power. They advanced issues they believed advantaged the party and buried those for which coalitions across factions of the parties may have formed. Where government action was essential — like the 2008 financial crisis or COVID pandemic — or where both parties benefited, or where the party leaders themselves personally benefited, the leaders have personally forged bipartisan agreements.

It’s not, as some conventional Congress-watchers would have it, that the rank-and-file of both parties are so helplessly divided politically that it falls on leadership to get anything at all done. Lol. Leadership gives members no space for committees or members to explore potential common ground on nearly anything of substance and actively have undermined structures that allow it to happen, like the former Democratic Study Group. In a more recent example, Reps. Roy and Abigail Spanberger’s bill to ban members from trading individual stocks is roaring back after being stabbed in the front by the former Speaker. It’s often pressure from the rank-and-file that moves major priorities stymied at the top. Leaders’ iron grip is also why some members treat the job as merely performative: because fundraising is a major tool by which the leaders amass power and is the coin of the realm for any challengers.

McCarthy’s opponents are among the members who are the first to act on an understanding that it’s the House’s power structures, including leadership’s demands for unity, that is standing in the way of their counterrevolutionary political agenda. They’ve been organizing for a while, particularly around procedural measures that, ironically, are often more important than “substantive” votes, and in the last Congress they acted as a block that was less likely to vote with both Democrats and Republicans.

What broke the game open for their play for relevance in the rules package was both parties insistence on demonstrating unity above all else. After putting up no resistance to the holdouts’ demands during the Speaker vote, Republicans almost to a member agreed to the rules resolution in the name of the party coming together, even after some grumbling that McCarthy had given up too much. (Yes, I’m getting to the Democrats on this… in the next paragraph). McCarthy-stans now wait to see if the leopard eats their faces. We still don’t know, by the way, everything that McCarthy promised on these issues to the holdouts. The denials of the existence of a three-page MOU setting out the deal is hilariously uncredible. We did learn one major concession late last week, however, on the debt limit — more below.

Democrats, meanwhile, sat on their hands. They offered no alternatives or amendments to the rules package to peel off some Republican support and bury the dangerous giveaways on the debt ceiling and appropriations process, which clearly will put core Democratic domestic priorities and constituencies at risk. Why? Why, you ask? I ask it, too. It would have been fairly straightforward to point out some of the problems in the Republicans’ rule package and perhaps peel off support to fix it. (I have a list of such items.)

Meanwhile, and I don’t want to cast aspersions on the Senate, but @#[email protected]#$%, why didn’t a certain few senators decide that it was more important to avoid the debt ceiling disaster than insisting on a bipartisan approach to the debt limit that was never, ever gonna happen? Waiting on a bipartisan agreement then was just mind-blowingly insane, just as it is now. Look at the incentives for the players?!! Don’t worry, I’ll get to that a little lower.

With the generational change in conference leadership — which is just a change in personnel but not an approach to governing — projecting leaders’ strength through party unity is an understandable and predictable choice for a legacy command-and-control style of conference organization. The 20 to 40 members of the majority who have demonstrably set themselves apart from their own party’s leadership, however, have changed the game. (Giving credit where credit is due: shout out to the handful of Democrats from the last Congress who torpedoed Biden’s Build Back Better — Rep. Gottheimer, take a bow — and the party leaders who decided that the political problem lay elsewhere, in the interest of party unity or something.) The Freedom Caucus-faction members are right in that the old way of governing through acting in lockstep behind leadership was responsible for grinding the democracy out of our Congress. The unpopular things they want to do through factionalism, however, requires serious consideration to how playing to faction — in both parties — can forestall disaster and ultimately lead to productivity. It’s a bumpy road ahead.

This week. Both chambers are out. House Republicans and Democrats reached an agreement on the A committee ratios (Appropriations, Energy and Commerce, Financial Services, Ways & Means) and Democrats will appoint those committee members later this month. This week, per Punchbowl, House Republicans will select members for Armed Services, T&I, Agriculture, and Judiciary. No hearings are scheduled in either chamber (in large part because committees members haven’t been named and, well, the Senate is the Senate.)

How Congress Should Operate

The R Street Institute’s James Wallner and I explain why this year’s House Speaker contest is how the House should operate. Really. Check it out.

EXTRAORDINARY MEASURES

The alarm is ringing loudly on the debt limit, as Treasury Secretary Janet Yellin informed Speaker McCarthy the nation will reach the statutory limit of outstanding debt on Thursday and the Treasury will take “extraordinary measures” to prevent default in the short term. Default is still on track in June if Congress does not suspend or raise the limit. We can expect long-term damage even before an actual default occurs if the “markets” start to lose faith that this will be solved.

One of the secret side deals McCarthy worked out with FC holdouts, the Washington Post reported last Friday, was how to deal with this issue, an expected and hoped-for outcome intended to provide leverage to the FC-faction. Republicans will develop a prioritization plan for the Treasury to fund some federal programs but not others. The plan would halt as much as 20% of authorized federal spending to prioritize making the roughly $500 billion in interest payments owed to bondholders. (Yes, read that again.)

This plan is designed to make Republican hostage taking seem reasonable — Democrats can negotiate that not all the hostages are shot at first. But in the end, no one gets out of this one alive.

Because House GOP conference rules institutionalize unity (the Hastert Rule), this is all really happening. A discharge petition, which House rules retained, could be a way out. That process, however, takes so long it would have to start essentially now and could be undermined at any time. Georgetown Law’s Josh Chafetz also suggests that Speaker McCarthy and the Rules Committee could forge an escape through an open rule on a clean limit hike. Even the pro-corporate faction of the Republican party, however, have noted recently that a pound of flesh will come out of federal programs regardless.

(You didn’t ask me, but the best way out is for Biden to mint the trillion dollar coin. Normally I’d have a problem with Executive action, but the debt ceiling is nonsense, the Congress is deadlocked, the adults in the last Congress couldn’t solve the problem, and what’d be even worse is for the White House to ignore the law and/or to get sucked into a global economic meltdown that makes 1939 look like the tremor before the big one.)

These Republican side deals, on top of the rules package approved last week, makes plain that the FC captured control of the House majority to use the power of the Legislative branch to maximize their leverage — and that everyone else isn’t ready to fight back for their own priorities. On federal spending, the FC-faction will bend the Senate and White House to their will by creating government-shuttering crises at times of its choosing. The Judiciary Committee’s select subcommittee will run interference for President Trump and his allies and continue to feed core constituents the message that nothing outside the MAGA circle can be trusted, which they have internalized concretely. Members also will be able to renew use of the Holman Rule to attack specific offices or officials in the Executive branch, even if the Senate prevents anyone’s pay actually from being cut.

Demand Progress, the Congressional Progressive Caucus Center, and Public Citizen have compiled a guide to the entire rules slate, including the unfortunate weakening of the Office of Congressional Ethics and likely unfruitful repudiation of House unionization efforts.

HOUSE PROCESS CHANGES

Remote testimony. New regulations will make it much harder for committees to solicit remote testimony from witnessesThey forbid government witnesses from testifying remotely. They also require committees to receive written permission from the Majority Leader for non-governmental witnesses to testify remotely, and only in cases of extreme personal hardship.

Remote testimony became a necessity during the COVID-19 pandemic, and we and other civil society organizations worked with congressional committees to make it work in the 117th Congress. Video conferencing software became a tremendous boon to democratizing the witness pool available to Congress by eliminating travel cost and distance considerations. You could now get the best witness, not just the best-available witness. It also provided useful flexibility to witnesses and committees for when life got in the way of in-person testimony. In 2021, about 62% of witnesses testified remotely, according to House Office of Diversity and Inclusion data.

These new regulations make remote testimony practically impossible for non-government witnesses, starting with the fact that House committees frequently organize hearings at the last minute. They also deprive the House from hearing from, say, military leaders in the field, astronauts on the International Space Station, or simply district office representatives beyond driving distance of the Capitol given the current state of air travel.

The Republican point about having members in person was that you need members present to build relationships and for ongoing deliberation. While it is easier to question some kinds of witnesses in person, that logic about building relationships doesn’t extend here.

MRA flexibility. The House CAO notified member offices last week that they can apply Member Representational Account (MRA) funds to reimburse themselves for food, lodging, and incidentals when working in Washington. In a story not worthy of a link, the New York Times reported up to $34,000 could be available to members, which would provide major reimbursements to working and middle-class representatives who must pay for housing in the exorbitant DC area as well as back home. The reimbursements do not cover second mortgage payments. The change was a recommendation of the House Modernization Committee and was in the works last Congress. Surely employees — even members of Congress — shouldn’t be forced to reimburse their employers for expenses incurred when traveling far away from their homes.

Members have received zero dollars in cost-of-living increases in their pay since their current salaries were set in 2009. (Other federal employees, including federal judges, most certainly have received increases in their COLAs.) Maintaining two residences on $174,000 a year is a major issue for equal representation of all Americans. The costs of attending meetings in DC, and paying for lodging, is eating up more and more of their salaries — in effect decreasing their take-home.

We note, by the way, that these funds should not come out of their MRA, but rather should come from a separate fund. The amount of pay provided to congressional staff should not vary based on whether a member is wealthy (and thus does not need to draw upon the ability to be reimbursed). But, as reimbursements come from the same pool of funds as staff salaries and office expenses, something will have to give.

The new rules package also allows members to use their MRA budget to contribute to Congressional Member Organizations (i.e., caucuses), including to hire staff. Caucuses often are organized around bipartisan interest in specific topics, so staffing them could increase policy knowledge capacity in the institution. Once again, this is an area where members should have a separate pool of funds to draw from so that funding for CMOs should not come at the cost of collaborating with other members on areas of common interest.

Legislative Branch Agency Appointments

How are the heads of Legislative branch agencies and offices hired and removed? We couldn’t find a good resource, so our colleague Taylor Swift wrote this.

HOUSE CONTINUITY

The rules resolution retained some important support offices of recent vintage, including the House Office of Diversity and Inclusion and Office of Whistleblower Ombuds. House ODI has begun to bend the hiring curve toward a personal and committee office workforce that reflects the demographics of the country, so its preservation is noteworthy. The House also retained the 72-hour rule requiring the advance release of bills scheduled to receive floor votes. It did not take steps, however, to make it harder to waive nor apply it to House Resolutions.

Other parts of the rules package continue down the path of modernization. It endorses work by the House Clerk, CAO, and other offices to broaden machine-readable data sources and calls for further work on digital documentation of committee activities.

Officer continuity. Many of the key officersof the legislative branch apparatus serve at the pleasure of the House and Senate Majority. Over recent Congresses, continuity in offices like CAO generally has been a good thing. Current CAO Catherine Szpindor will remain in her position for the 118th Congress, as will this month’s breakout star, Clerk of the House Cheryl L. Johnson.

Speaker McCarthy also bumped up some officials to department heads. He named William McFarland as the new acting House Sergeant at Arms on Jan 7. McFarland had been Director of the Office of House Security previously. He also elevated Todd B. Tatelman to Acting General Counsel. He had been Principal Deputy General Counsel, and we briefly served together at CRS.

More than 30 separate offices comprise the Legislative branch’s bureaucracy, with an incredible range of responsibilities. The hiring and removal of agency heads is not remotely consistent or even formalized across offices, which often muddies members’ abilities to hold officers accountable. On our blog, Taylor Swift provides a comprehensive look at how Legislative branch office and agency leaders are appointed. Amazingly, no authoritative resource for this core institutional process exists, so corrections are welcome. The House and Senate should consider enacting legislation that centralizes hiring and firing authority — and takes it away from presidential control.

Smile, you’re on camera. If you enjoyed C-SPAN’s cameras having free range over the House floor during the Speaker election, unfortunately, control of the cameras has reverted back to the standard rules of wide shots and podiums only. Demand Progress, C-SPAN, and the Radio and Television Correspondents Association, along with multiple members of the House have requested Speaker McCarthy allow the cameras to operate as they did two weeks ago. Rep. Mark Pocan has introduced a resolution on the issue and there are other bills out there.

IN THE COMMITTEES

Although we still await the new chair of the House Administration Committee (the former ranking got a new gig), chairs for Appropriations subcommittees relevant to institutional function were named last week. Rep. Mark Amodei will succeed Rep. Tim Ryan as Legislative branch chair. Rep. Steve Womack will chair Financial Services and General Government, which has jurisdiction over the District of Columbia and independent federal agencies.

Reps. Ryan and Jaime Herrera Beutler were excellent partners over the last two Congresses in restoring the capacity of the House.

It should be noted that chairs of House committees generally will be far more junior than previous Congresses. Eight new chairs have less than 10 years of experience. High learning curves are usually good news to lobbyists pushing feel-good nostrums and worse for those trying to educate on complex issues.

Speaker McCarthy confirmed that Reps. Ilhan Omar, Eric Swalwell, and Adam Schiff will be barred from their foreign policy-related committee assignments. And yet, it appears that McCarthy will let Rep. Santos caucus with Republicans and be named to committees. This is not a good path to be going down. (Yes, it was appropriate to not allow Rep. Greene to serve on a committee and it would have been better if Republicans had been willing to make that call.)

DIVERSITY IN CONGRESS

The House Office of Diversity and Inclusion issued its 2022 annual report last week, which includes not only a summary of its activities but demographic information about congressional staff and witnesses (as mentioned above). The report includes comparative data from 2019 on House staff demographic self-identification and shows small progress in African-American and Hispanic/Latino staffing in 2021. Representation of people of color in senior positions increased from 13.7% to 18% between 2018 and 2022, which is still well short of their representation as 40% of the US population.

The report includes charts, but we (once again) ask ODI to release the raw data as well to enable further analysis.

The Joint Center at George Washington University released its latest data report from its congressional hiring tracker for top personal office positions. Only 16.3% of top positions filled by new members so far have gone to people of color, but the data show modest increases in hiring by returning members of the House and Senate in both parties.

ODDS AND ENDS

How do Democrats and Republicans differ on earmarks? FWIW, we think much of the conventional wisdom on earmarks is wrong.

Could it be the reason the motion to vacate the chair was unused in the prior Congress was because of a secret agreement between McCarthy and Pelosi?

Bad lip reading.

CALENDAR

The deadline to apply for the Congressional Hispanic Caucus Institute’s inaugural Latino Hill Staff Academy is approaching — January 23. Training courses will run from March to June. Apply at the CHCI website.

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 PM ESTRegister here

The House of Representatives has invited President Biden to deliver the State of the Union address on February 7.

AI provides the opportunity to automatically create new imagery and interesting text-based approaches to manage legislative information. This image was conjured up by Midjourney at my prompt.