TOP LINE
Congress continues to take its sweet time getting organized and down to business, which would include preventing a global financial meltdown via US debt default. The Senate still is working out ratios for committee assignments, while six new Republican senators are jockeying for their preferred assignments. Maybe all of this will be completed by the first month anniversary of the 118th Congress, in time to grind the Senate to a halt again over objections to the Biden Administration’s resistance to sharing classified information.
The House, meanwhile, finally rostered its committees, with Republican leadership following through on the pledge to seat three Freedom Caucus-ish members on the Rules Committee. The House will spend its first few weeks of legislative work granting backbenchers floor votes on messaging bills and tinkering (positively, we admit) with structured open rules. Some members can feel good about gaining precious floor time for things like incredibly regressive and politically comical consumption taxes and condemning 100 years of Marxist dictatorships via spurious Jefferson quotes to play gotcha with Democrats about “socialism.” Nevermind there is still no plan to avoid default.
Ok, there’s this: Republican leadership in the House is considering a clean short-term extension of the federal debt limit to sync it with the end of the fiscal year on September 30 and create even more leverage by having that many more things to hold hostage.
This week the House is in session for votes Monday through Thursday. Now that they have been rostered by both parties, committees will start to hold organizational meetings, starting with a House Rules double-header on Monday. The Senate will try to finalize committee organization. Here’s the committee schedule. Personally speaking, I’m fascinated by committee rules, which in the House have to be adopted at the start of the new Congress, and I wonder whether any members will take the opportunity to protect their rights on the committees in which they serve by pushing for more favorable rules. I’m not holding my breath.
CLASSIFICATION. CLEARANCES. CONGRESS.
As there’s little legislative work to be done, members of the Senate Intelligence Committee wanted to look into what classified documents Presidents Trump and Biden and Vice President Pence had mishandled at their homes to assess potential risks, only to be stonewalled by National Intelligence Director Avril Haines. Senators from both parties were not happy, and Sen. Tom Cotton threatened to block all Administration nominations until the committee was granted access to the same documents available to two special counsels.
Classification has been a recurring issue so far this term. You’ll recall incumbent members of intel-centric committees complained about being kicked out of the SCIF by the House Sergeant at Arms because, in the view of the SAA, they were merely members-elect and thus were not in office and couldn’t be granted access. (We think unsworn members prior to the passage of House rules don’t need clearances and the SAA goofed.) The newly-formed Select Subcommittee on The Weaponization of the Federal Government, meanwhile, will have access to the same classified information as HPSCI and an incredibly broad investigative mandate compared to previous investigatory select committees, allowing it in theory to see the same documents the Department of Justice is accessing in ongoing criminal investigations. We expect the Executive branch will once again play games and try to dictate whether and which committees are allowed to have access to documents, which makes little sense to us.
Three related issues define Congress’s position in the broader classification system. The first is that while Congress can legislate a system of classification, it has chosen not to except concerning nuclear issues, leaving the Executive branch to create a bespoke system by Executive Order. Second, overclassification and up-classification is rampant, a circumstance acknowledged by Director Haines, and the classification system is driven by a combination of CYA, prestige, no incentives to properly classify or declassify, and a desire to block out congressional staff and other possible oversight.
There’s an enormous imbalance between the legislative and executive branches of government in terms of access to the staggering quantity of classified material out there. (A lot of information is classified because of how it was obtained, not because the information is not commonly known.) Even though federal agencies pay for their issuance, security clearances are a precious commodity in Congress. For every Senate staffer with any kind of clearance, there’s ~3,000 Executive branch officials with a Top Secret clearance. Yes, friends, nearly 1.2 million federal employees and contractors have top secret clearances and many foreign government officials are in access, but not very many congressional staff at all.
I could write a book about this — well, a monograph — but here are a few key points to ponder. The Senate recently allowed every senator to designate a single staffer eligible to apply for a TS/SCI clearance and the Senate Intelligence Committee provides every member of the committee with a staff designee — a staffer paid for by the committee, granted top clearances, but who reports to an individual committee member. By contrast, the House does not allow any personal office staffers to have a TS/SCI clearance, only allowing a comparative handful of committee staffers to have those clearances, and doesn’t provide staff designees to members serving on the House Intelligence Committee. The only exception is the Speaker and Minority Leader who are ex officio members of HPSCI and get their own staff designees — not for any logical reason except that they wrote the rules. This arrangement between Congress and the Intel Community is all pursuant to a no-longer secret agreement in the late 1970s in which the Congress was hilariously (and sadly) misled.
Anyone who works at all with classified material knows that the Executive branch prefers to brief Congress at a level that excludes most staff for the purposes of making sure that oversight is not as rigorous as it might be. And the Intel Committees (and others) like the clearance disparity because they can push members to support policies while the members don’t have staffers who can help them push back. Congress, which is the only place that can really conduct oversight, allows leadership to hand-pick members of the intelligence committees, which are composed almost entirely of hawkish cheerleaders.
Materials that are classified should be comparatively rare and well protected, which is the opposite of our current system. Instead, what we have leaks, especially from the top, and especially from the Executive branch, which also has the power to declassify materials and does so selectively to serve its political ends. This is an unacceptable arrangement vis-a-vis separation of powers.
Alas, the Executive branch disproportionately punishes the more junior people who leak information to the press for altruistic reasons while routinely giving a pass to the more senior people who unlawfully retain and launder information. Heck, the DOJ won’t even declare which branch of government the Vice President belongs to — and thus whether the Veep is bound to follow the EO on handling classified info.
The purpose of oversight is accountability, and one such tool in our broken system is the press. They publish all sorts of secrets, classified and unclassified. It is proper that they be unfettered so they can tell the truth — especially the embarrassing truth. And yet, administrations of both parties have often gone after journalists who receive information to figure out their sources and to intimate them. We need the media to expose waste, fraud, abuse, and malfeasance, which is why Congress should pass the PRESS Act.
If you asked me opinion, and I guess you’re stuck with it, I’d recommend that
- every member of the House be eligible to designate a staffer with a TS/SCI clearance;
- that all committees (not just HPSCI and SSCI) be eligible to recommend classified materials be released to the public;
- that the Congress have a well-funded expedited process to have materials designated by members reviewed and declassified and that allows for Congress to assert its interests and equities;
- that the National Archives be granted legal authority to compel agencies and individuals concerning governmental records; that the media be covered under a reporter shield law;
- that HPSCI members be chosen by the parties and not their floor leaders; and
- that an entity separate of the DOJ be responsible for making prosecution determinations.
While I’m dreaming, I’d also revive the 1970s Church Committee for a wide ranging investigation of the Intelligence Community. Many of these opinions are expanded on in a 2016 report endorsed by Demand Progress, EFF, Freedom Works, and the R Street Institute.
Rank and file members vote on matters that are highly classified, including classified annexes to legislation, and they also are responsible for reviewing highly classified materials. Most don’t. We should make it easier for them to both do their job and to inform the public on matters that Congress thinks we all should know. What is not proper, despite some proposals to do so, is to require members to obtain clearances. That’s a functional misunderstanding of the role of Congress.
Moreover, do you really want the Executive branch investigating every facet of each members’ life? Seems like a big blackmail opportunity for an unscrupulous White House. It’s also an opportunity to retaliate if a member digs in a place undesired by the Executive branch. Nor should we create new laws that govern the mishandling of classified information, because there’s plenty of laws already in place. Remember that possessing a clearance or its functional equivalent doesn’t put you in access to information as you must still demonstrate a need to know.
How clearances work in Congress
A primer on how the clearance process works for congressional staff in Congress. Note: the Senate updated its processes.
RULES POTENTIAL
As part of the “grand bargain” to award Kevin McCarthy the Speaker’s gavel, Reps. Thomas Massie, Chip Roy, and Ralph Norman were named to the House Rules Committee last week. They are Freedom Caucus and FC-adjacent members. Democrats also announced that Reps. Mary Gay Scanlon, Joe Neguse, and Teresa Leger Fernández will join Ranking Member Jim McGovern.
Massie and Roy are process nerds. Massie frequently is one of a few or the only “no” vote on resolutions that express the sentiment of the House, award congressional gold medals, or contain language too vague to his liking. Adding them to the Rules Committee at least opens the possibility that they would join with other committee members regardless of their political affiliation to push back on proposals that undermine the power of the rank-and-file. Recall the threat of Democratic amendments with some GOP support led then Speaker Paul Ryan to crack down on open rules in 2016 – which Speaker Pelosi continued. Massie opposed that move. We are a long way from when Speaker Boehner removed Rep. Justin Amash from the Budget Committee in 2012 during the then-clash over the fiscal cliff (i.e. the last big debt ceiling fight) for voting against Budget Committee Chairman Paul Ryan’s budget proposal.
In interviews this week, Massie noted he would not doom bills in the Rules Committee simply because he opposed them and that he would prioritize allowing more amendments on spending bills. “I don’t intend to ever use my position on there to hold somebody hostage or to hold legislation hostage,” he told Politico.
Does this include the debt limit? The Rules Committee still holds undue sway over this issue. If you think a discharge petition will save us, Josh Huder explains in the Washington Post that you shouldn’t hold your breath.
The House had its first experiment with structured open rules last week when it debated an oil and gas bill. Members submitted more than 140 amendments before Thursday’ debate – three quarters from Democrats. Consideration of the bill took 9 hours, with 69 of those original amendments offered and six ruled not germane. With Rep. Steve Womack presiding, the House ran through 24 voice votes in 90 minutes, which ain’t bad! Of course, this bill has no chance in the Senate: but it was a notable trial run. Hopefully, we see more modified open rules in the 118th Congress as a counterweight to centralized power, in which case this primer on their procedure will come in handy.
FACTIONS
We typically view stories in the political press about individual members through the lens of which faction of their party they represent. The New York Times’ sketch of the relationship between Speaker McCarthy and Rep. Marjorie Taylor Greene last week stuck out for how its evolution reflects the shifted power dynamics between the white Christian Nationalist faction Greene represents and McCarthy’s corporate Republican backing. The story is deeper than these two people: it’s about how a party is trying to hold itself together even as part of its base becomes increasingly radical and powerful. One key tidbit that stood out: when Greene was being kicked off her committee assignments in early 2021, she brought McCarthy a letter from local Republican leaders backing her. She’s who they want. It’s reactionary rural voters like those in her Georgia district who have been buoying (and funding) the GOP as it sheds suburban voters. Because of their baked-in geographic advantages in a single-member district system, this faction isn’t going anywhere.
Democratic moderates, meanwhile, are struggling to reconstitute their shrinking ranks. Seven of the 15 remaining members of the Blue Dog Coalition have quit over a proposed name change to the “Common Sense Coalition.” For the defectors, “Blue Dog,” a term coined in 1995 to describe a faction choked by the ideological wings of both parties, was too evocative of a white male-dominated conservative Southern faction. Blue Dogs boasted 54 members during the Obama administration.
Recs for Improving IC Oversight
A 2016 report on improving congressional oversight of the Intelligence Community co-authored by Demand Progress, Freedom Works, EFF, and the R Street Institute.
DIVERSITY (OR LACK THEREOF)
Hiring. Roll Call dives into recent reports from the Joint Center for Political and Economic Studies and House Office of Diversity and Inclusion have demonstrated that congressional hiring continues to lag behind representing the demographics of the US.
White out. Committee leadership in the new House, meanwhile, is entirely white. Four out of five new chairs are white men, and more men named Michael are chairs than women.
In keeping with the trend, Speaker Kevin McCarthy last week named Rep. Michael Guest to be the House Ethics Committee chair. He had been its ranking member after the death of Rep. Jackie Walorski. Reps. Ritchie Torres and Dan Goldman already have asked the committee to examine potential false statements in fellow New Yorker George Santos’ financial disclosures. Guest also will have to determine which of the active 26 investigations to continue.
Two additional Cherokee organizations claim that they deserve to name a congressional delegate and not the Cherokee Nation, which has been advocating for the seat this winter. The groups are countering an interpretation by the Cherokee Nation of a treaty signed with tribal leaders and President Andrew Jackson.
Christians are broadly over-represented in the 118th Congress compared to the general US population, according to data gathered by Pew. Nearly 88% of members claim a Christian affiliation, 25 percentage points higher than Americans at large.
The largest single religious affiliation in the country, meanwhile – those with no religious affiliation – are practically unrepresented. Only Sen. Krysten Sinema acknowledged being a “none,” 29% of the population. Rep. Jared Hufman identifies as a humanist. No member of Congress has admitted to being an atheist since the late Rep. Pete Stark.
Certainly, more members are atheist and/or unaffiliated than say so publicly. Descriptive representation is impossible, however, when people don’t even want to claim the description. The political downside of not claiming religiosity indicates how disempowered the secular actually are in American civic life, despite the Religious Right’s claims to the contrary. If Congress accurately reflected the nation’s religious diversity, about 160 additional members would be secular, which would change the tenor and content of debate considerably.
ODDS AND ENDS
Several House Republicans have indicated they will not support removing Rep. Ilhan Omar from the House Foreign Affairs Committee. With Rep. Greg Steube still recovering from a fall in Florida, Speaker McCarthy may not have the votes. Republicans would be foolish to remove Omar because (1) it looks hypocritical based on the members they have not removed; (2) it undermines their argument about actions versus ideology; (3) this kind of removal sets a dangerous precedent within the Republican party, and (4) Rep. Omar has apologized. In large part, this brouhaha is about dog whistling a far right conspiracy theory about Omar.
Rep. HAL. Reps Ted Lieu and Jake Auchincloss used ChatGPT to create the first AI-generated work products in congressional history. (That we know of.) Lieu used the tool to write a short resolution in support of AI research and development, while Auchincloss had it write a one-minute floor speech. Lieu also used ChatGPT to write a New York Times op-ed. Short speeches don’t seem to be worth anyone’s neurons/time, while AI seems like a potentially useful timesaver for some parts of bill drafting. Things that need to pass muster with OLC though, maybe not.
Panic. At least 13 members of Congress did not have functioning emergency alert buttons in their offices on the second anniversary of the Jan. 6 insurrection – when several members discovered their buttons didn’t work. USCP apparently did not follow CHA instructions to install two duress alarms in each office before the start of the 118th Congress. Typically, USCP blamed members for the screw up, adding yet another item on the long list of USCP failures.
J. Brett Blanton is still Architect of the Capitol, three months after extensive misuse of office allegations surfaced from an inspector general report. The statute that created his ten-year term has no provisions for his removal by Congress. Roll Call reports Sen. Amy Klobuchar is re-introducing a legislative fix. We remind everyone that the whole system of Legislative branch agency head appoints and removals needs to be systematized and fixed.
Way, wayback machine. GPO has posted the Congressional Directories from 1869-1888 and 1993 online as pdfs and text. The directories include short biographies of members, which would include some of the first African-American members of Congress during Reconstruction.
Mark Strand has announced his retirement from the Republican-affiliated Congressional Institute. He had served as its President and CEO for 16 years.
The Arizona Legislature voted to “exempt itself from state public records law and destroy all email correspondence sent or received by lawmakers or staff after 90 days under new rules adopted by majority Republicans,” according to Rob Christie of Capitol Media Services. That reminds me: the National Archives recommended that the US Congress apply a FOIA-like process to its support agencies, like the US Capitol Police.
The Supreme Court, best likened to the Kremlin in its byzantine behavior, “did not disclose its longstanding financial ties with former Homeland Security Secretary Michael Chertoff even as it touted him as an expert who independently validated its investigation into who leaked the draft opinion overturning Roe v. Wade,” CNN reported.
CALENDAR
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 today from 12:00 to 1:30 PM. Register here
The Women’s Congressional Staff Foundation will hold a welcome reception for the new Congress on February 1 from 5:00-7:00 PM in the Rayburn Building. RSVP here.
The House of Representatives has invited President Biden to deliver the State of the Union Address on February 7.
The Levin Center will host a webinar titled “How Courts Are Shaping Congress’ Power to Investigate” on February 8 from 12:00-1:30 PM. RSVP here.
“First, I must confess that over the last few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the White Citizens Councillor or the Ku Klux Klanner but the white moderate who is more devoted to order than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says, ‘I agree with you in the goal you seek, but I can’t agree with your methods of direct action;’ who paternalistically feels that he can set the timetable for another man’s freedom; who lives by the myth of time; and who constantly advises the Negro to wait until a ‘more convenient season.’
Shallow understanding from people of goodwill is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.”
— Martin Luther King, Jr., Letter from a Birmingham Jail
