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Countermajoritarianism defined the week, as it has this Congress. House leadership unveiled an unserious debt limit proposal designed to hold their factions together while they hope Dems make an unforced error. Senate Republicans, meanwhile, stand athwart majority rule in the Judiciary Committee.

Senate Democrats can reclaim their power, but only if they stick together and only if they’re willing to replace rules created for antimajoritarian purposes long enough ago that we now call them norms. As for the House, little will change under the current majority until members believe their re-elections are imperiled more by intransigence than cooperation.

This week both chambers are in session Tuesday through Friday. A vote is scheduled on the debt limit bill on Wednesday, which is proceeding sans regular order.

The Senate Appropriations Committee will review the budget request of the Sergeant at Arms and the US Capitol Police on Tuesday. Wednesday, the Modernization Subcommittee of CHA examines the topic of modernizing CRS. On Thursday, the House Judiciary committee will hold its first hearing on section 702 of FISA.

The CRS hearing on Wednesday revisits an issue last addressed by the House Administration Committee four years ago: has CRS modernized to meet its mission? From where we sit, there hasn’t been much improvement in the last four years… or the last 20, and the high turnover rates and misaligned work products point to significant management problems. Don’t get me wrong, we love our former colleagues at CRS — those that are left — but it’s time to reform that agency and reconsider how support agencies collaborate to support Congress.

If you missed Friday’s event on Congress and AI, don’t worry, we’ll have video and slides by next week. Thanks to our partners at POPVOX and the Lincoln Network for co-hosting the event. (POPVOX did all the heavy lifting.)

NO FIGHTING IN THE WAR ROOM

Since before the last election, antistateist conservatives in the House GOP have sought to maximize their own power in both policy and process. They demanded the highly-aggressive political tactic of preventing a reset of the debt ceiling threshold unless everyone agrees to enact their entire legislative agenda in one fell swoop, pushing aside regular order in the “process.”

Note the irony: the previously marginalized MAGA faction used the rules of the Constitution, the House, and the Republican caucus to obtain a share of power — veto power — and now that they have it, they have abandoned regular order to pursue a maximalist agenda. That legislative agenda — all of it — is crammed into a single bill. It’s rule by defaultocracy. And it is happening without a single committee hearing. Without a single markup. Just secretive negotiations among the Republican five families that hot-dropped the whole enchilada in the chute direct to the Rules Committee.

It’s a true tip-of-the-hat from MAGA-and-friends to former Speaker Pelosi, who in her most iron-fisted moments never included all of her priorities in a single bill and held the full faith and credit of the United States hostage to move it forward. So long as McCarthy prefers to be Speaker over setting policy, that faction within the Republican House will retain their chokehold on power.

Those within the Republican party that disagree with elements of that agenda will stifle themselves out of fear of losing their next election. That’s how power works. Anyone who believes in the norms fairy will always get the short end of the stick. The players respond to incentives, which is another way of saying they’re shaped by the institutional rules, and the rules inside both chambers give a reactionary faction veto power. In this case, Republicans are apparently willing to allow a debt ceiling breach to occur to get their way. Anyone who tries a different path would risk massive retaliation, including the loss of their seat.

Republicans are counting on the press to treat this as a #bothsides issue. Specifically, they will point to a supposed-good faith negotiation effort that’s being unceremoniously ignored by President Biden and the Senate. This view will be validated by the Problem Solvers Caucus and the political press. It’s also the only play open to McCarthy if he wants to keep his office.

Democrats in the Senate will be squeezed both by Senate Republican unwillingness to undercut their House counterparts — many are just as afraid of drawing primary challengers — and because the Democratic coalition is predicated upon the support of a few senators that prefer the rules of the game to be rigged for an antimajoritarian coalition, in part because it’s helpful for their elections.

Republicans will move forward with a bill most of them wouldn’t want to become law, and will defend it because they want to avoid a primary challenge. When senators and the White House refuse to consider those measures, both because of their substance and the procedural posture of negotiating over the debt ceiling, they will be responding to their own political incentives. I fear that everyone will be willing to risk economic collapse to see what the political fallout will be.

As an institutionalist, I hate to say it, but this entire political fiasco almost certainly will require action from the Executive branch to avert financial armageddon. The only lawful mechanism available appears to be the trillion dollar coin. It’s best to use it sooner, when its unproven legal status will be less destabilizing than later. In a defaultocracy, the way out is through the ability to coin money.

We could talk about the substance with you. About how the $131 billion figure, and the three-odd trillion dollars saved, would be inconsequential in the context of the federal deficit and debt. Or that this is about income redistribution to the wealthy. Or that restoring some taxation would be a much better policy. Or, as Matt Glassman reminds us, CBO regularly updates an options guide on addressing spending. But none of this matters because it’s all about how factional dynamics are amplified within the two-party system rules that exist in both chambers.

Continue reading “First Branch Forecast for April 24, 2023: Norms and power” →

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Without unified majority control and frequent long-term absences, the Senate hasn’t been much more than a conveyor belt for judicial nominations this Congress. The possibility that Senator Dianne Feinstein may extend her absence and not return at all to the body potentially stalls out even that function as the Judiciary Committee deadlocks.

The committee has other matters to attend to as well, specifically the spectacular level of corruption at the Clarence Thomas household. We’re lucky that journalists can delve into the depths of personal favors at all because last year’s rushed NDAA ushered through a dreadful judicial security bill that will make uncovering justices’ conflicts of interest and impropriety that much harder. The Judiciary Committee, which nodded through the retrogressive provision, should undo the damage.

This week, the House and Senate return on Monday.

There are a ton of committee hearings this week, particularly for House appropriators. Of relevance to the Legislative branch, House Admin will hear from the House Sergeant at Arms on Tuesday about its strategic plan for this Congress. On Wednesday, the committee and House Oversight will hold a joint hearing on the data breach at the DC Health Exchange that has affected members and staff. Next week, House Admin will hold a CRS oversight hearing.

LETTING GO

Grounding power in seniority, as the congressional system does, has serious costs when the people essential to the functioning of a chamber are unfirm. Remember, for example, the sad story of Appropriations Chair Thad Cochrane. We have seen too often senators leaving long past their peak, their mental decline patently obvious if generally unreported in the press.

Despite the risks of retaining someone on A-level committees who already showed signs years ago of serious mental decline, the Democrats followed convention and retained Senator Feinstein on the Judiciary and Appropriations Committees. The now 89-year-old senator, the oldest serving member of Congress, mercifully is not serving as president pro tempore of the Senate, taking her out of the constitutional order of succession. The committees are stuck, however, which is relevant not only for judicial nominations but appropriations and the complicated context of the debt limit that hasn’t even begun to play out.

Continue reading “First Branch Forecast for April 17, 2023: Welcome back, Congress” →

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One of us is back from a trip that included a stop in (no kidding) Indonesia. Unfortunately, the journey, while lovely, was not paid for by a friendly billionaire. We’re reminded during this recess of the unique role Congress holds to preserve our democratic system both by holding the other branches to account and setting clear norms for representative governance. It isn’t living up to either particularly well at the moment.

This week Congress remains in recess. Both chambers return April 17.

SCOTUS ETHICS

Perhaps it will be the komodo dragon, a beast noted for poisonous bites, that finally generates congressional action on the Supreme Court’s toxic lack of ethics. After revelations published by ProPublica that Clarence Thomas and his wife have enjoyed decades of luxury travel to far-flung places like Indonesia paid for by a conservative billionaire GOP donor, FSGG appropriations cardinal Sen. Chris Van Hollen said he would use the annual spending bill to “ensure” the Court adopts a similar code of conduct that binds the rest of the federal judiciary.

Senate Judiciary Committee Chair Dick Durbin also promised action, but framed holding SCOTUS to an ethics code in the passive voice. So far the only congress-centric Republican responses we’ve seen defend the indefensible. Justice Thomas’s defense reminds us of an episode of Seinfeld. For a person whose career is based upon having sound judgment, it is simply not believable or exculpatory.

The appropriations process may be the only viable route forward. Democratic House and Senate members have reintroduced an ethics bill that flamed out last Congress; House Judiciary Committee Chair Jim Jordan was hostile towards it last May because of its potential impact on far right justices like Thomas.

Despite proclaiming his love of RV parks, Justice Thomas could enjoy the lifestyle of the rich and famous because Congress lost its gumption for judicial oversight. In his annual report for 2011, Chief Justice John Roberts tacitly warned Congress off from imposing ethical requirements for the high court, saying the Court may question the constitutionality of Congress imposing standards on Justices. (So much for Congress’s legislative power.) This posturing seems to have worked, despite legal scholars concluding that Congress has plenty of leeway to impose ethical standards in ways that respect the separation of powers.

The Court is awash with questionable ethical behavior, free travel, self-dealing, leaks, and weak recusal standards, including a lack of transparency in how justices’ spouses’ work may create conflicts of interest. It also refuses to adopt ethics standards. Congress must step in to check the abuses of power and office of the other two branches. A conservative being the Court’s biggest known grifter should not be a reason for the Legislative branch to dodge ensuring SCOTUS is not unduly swayed by wealthy patrons or personal connections.

Continue reading “First Branch Forecast for April 10, 2023: Keeping up appearances” →

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Friends, in the last issue we promised that we’re taking a break until April 17th, which we are, we swear. But because there’s been a lot of news this past week, we’re going to point you in the right direction for a few items and leave it at that. As you know, Congress is in recess this week and next, and you can always look to our handy appropriations tracker for upcoming deadlines.

Arrested developments. To get it out of the way, the brouhaha around the indictment of Donald Trump is why prior presidents who committed crimes, such as Richard Milhous Nixon, should have been indicted and prosecuted. No one is above the law and impeachment is not the same as a criminal prosecution. Let me say that again for our friends at the Department of Justice’s Office of Legal Counsel, who have a pernicious memo arguing the arrest, trial, and conviction of a criminal president would undermine the functioning of the Executive branch.  Yikes, right? Who knows what other legal opinions they have that subvert the rule of law. Maybe we should find out.

The deadline to address the debt ceiling is rapidly approaching while the press seem to have grown bored with the financial apocalypse its approach will bring. From our perspective, the debt ceiling should be eliminated or permanently suspended, which should have been accomplished last Congress, but alas. (Point your fingers where you may.) Some Republicans want to use it as a bludgeon for fiscal austerity, others to sow chaos or win political points. Are there enough House Republicans that on their own can pass legislation palatable to the Senate and White House? Are there enough House Republicans willing to join with Democrats to pass something palatable?

Meanwhile, House Republicans still have not put forth top line spending numbers, which is a big deal as they should already have given guidance to the appropriations subcommittees so they can write their bills. They should be writing them this recess, in fact. Good luck!

Appropriations Tracker

A handy list of deadlines for members and the public for when testimony is due.

Continue reading “First Branch Forecast for April 3, 2023: No Foolin’” →