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.
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.
There’s a big human element to this. No senator wants to push another out of power on a basis that could be used against them. The Senate is built upon relationships, and changing one senator out for another has significant consequences for policy. The mentally infirm are often unaware of the full nature of their decline, and it can be viewed as unkind to let them know. People make accommodations when senators start to slip and don’t realize how far they’ve fallen. And every senator has an entire industry built around them — staffers, lobbyists, state-based relationships — that have every incentive to prop them up.
But in deferring, the modern Senate lets itself be hamstrung. The body already is degraded: the Senate is a vetocracy, where the minority have veto power over the majority’s floor agenda on most matters. In the committees, where a small majority rules, every majority member is extraordinarily important. Measures cannot be reported by committees except by the affirmative vote of a majority present. And the active presence of members shapes legislation. On the floor, only a few matters can go by majority vote, but you need that majority present.
Yes, the rules should change, but Democrats have not availed themselves of the opportunity to do so — and Sens. Manchin and Sinema, and perhaps others, have worked to ensure their outsized importance at the expense of majority rule. Sen. McConnell, who held the Senate hostage for a month around the time of the Trump insurrection, refused to let that body organize until he extracted a promise to protect the vetocracy in the form of the filibuster.
Under pressure to resign, Feinstein is temporizing by agreeing to be temporarily replaced on the Judiciary Committee while she’s out. Republicans can block this, but that would be unwise because an absent Feinstein is a vote Democrats do not have on the floor. Her absence pushes any zone of agreement on the Senate floor to the political right. A successor would provide Democrats with a reliable vote on the floor and new life in the committees. Blocking the seating of a successor, which McConnell could do, would lead to a short-circuiting on the filibuster at least for those purposes.
Calls for Feinstein’s resignation are a recognition that time is precious in the Senate and that a majority that cannot rule is not in power. Nancy Pelosi’s framing of calls for Feinstein’s resignation in terms of gender is disingenuous because she’s tried to manage the transition from her long-time ally to benefit her preferred successor in Rep. Adam Schiff. Feinstein’s decline has been noticeable for long enough that she shouldn’t have been encouraged by Pelosi, who is the dean of the California House delegation, to run for re-election in the first place.
Leaders have a longstanding trend of rewarding and protecting their friends until the last. And the media is reluctant to cover senior members who have lost their way, even if those of us who work with Congress know when it’s staff running the show. With the primary for the seat already underway, Governor Gavin Newsom suddenly has the potential to play a determinative role in its outcome depending on whom he selects to fill the rest of the term, should Feinstein resign. (She says she won’t.) This may not be the way Pelosi would like to transition power, or to whom she would choose, but it is what’s in the best interest of a functioning Senate and the issues Sen. Feinstein has fought for.
ProPublica published yet more violations by Clarence Thomas of federal ethics law last week, this time involving the sale of his mom’s house and surrounding properties to Harlan Crow, who made a number of home improvements. The billionaire, who has eccentric art enthusiasms and provides free travel for the powerful, it should be remembered, also funded Ginny Thomas’ salary at a Tea Party group during the Obama administration.
Instead of resigning, Thomas has offered a George Costanza defense about his conduct (which, of course, got Georgie fired). Senate Judiciary Committee Democrats sent a letter last week to Chief Justice John Roberts urging him to do all the work in response, warning only of hearings on the matter. Expecting the US Supreme Court to police its own members is laughable.
Holding the Judiciary accountable for corrupt and criminal behavior is part of the checking function of this congressional committee, and questions about this relationship are not remotely new. Nevertheless, the majority’s letter makes no mention of Thomas completely disregarding the post-Watergate disclosure law and likely committing significant tax evasion. It focuses instead on judicial ethics reform, which the committee punted legislatively at the end of last Congress. Why? Why indeed.
Senator Sheldon Whitehouse, who was angling for the committee chair, has written to the Judicial Conference requesting Thomas’s case be referred to the Attorney General. Yes, former federal judge Merrick Garland will get on that right after he wraps up the Trump investigation.
We’re actually fortunate to be learning about these abuses of power at all given the judicial security bill the Senate Judiciary Committee waved through onto the NDAA at the end of last Congress. As we warned at the time, the poorly-drafted Daniel Anderl Judicial Security and Privacy Act — which was never considered as part of the NDAA until it was magically added to the bill — acts as a shield against ethics scrutiny of federal judges while mucking up efforts to protect them.
As we previously wrote, Section 5934 of the NDAA “empowers federal judges to order websites and data brokers to remove information that concern federal judges off the internet and out of their databases, backed by the threat of a penalty and damages for noncompliance.” What kind of information? Information “concerning current and former federal judges, their families, and anyone living in their household. It provides for the censoring of information such as their birthdates, their employers, where they intend to go to school, any home addresses, and much more.”
So if Justice Clarence Thomas, who co-owned his mom’s house, sold it to a billionaire, he could simply wipe that information off the face of the earth. The very information ProPublica used to tell its story. Was that a reasonably anticipated effect of the legislation? “It would hinder the publication of concerning facts, such as… Judge Doe’s vacation home has been purchased by a certain well-connected couple.”
But surely it would protect judicial privacy? What say you, EPIC? “The Judicial Security and Privacy Act, currently integrated into the NDAA, would in practice do very little to protect the privacy of personal information about federal judges and their families. The bill as currently written would make almost all data brokers exempt from the rules that are ostensibly meant to limit data broker sales of protected personal information.”
There were several judicial ethics and transparency bills ready to go at the end of the last Congress, and instead we got… that.
Perhaps, as Senator Chris Van Hollen suggested when the Thomas story first broke, the Senate Appropriations Committee can leverage Judiciary branch funding to force some ethics reforms in the federal courts. It’s a must pass bill. But to report it, it’d be helpful to have all appropriators present, including Sen. Feinstein, who is second in seniority on the Senate CJS Appropriations Subcommittee. (Sen. Manchin is also on that subcommittee, which is 9-8.)
As for the Senate Judiciary Committee? We can expect a hearing, but that might be it. The House should hold hearings, but it won’t, but we might see an impeachment resolution, which would be privileged.
Two more final Leg branch-relevant nuggets: Ginny Thomas is still on the Trust Fund Board of the Library of Congress. (So is Matt Schlapp — yikes.) And it appears that controversial federal judge Matthew Kacsmaryk disclaimed credit for an article he wrote and was to publish — concerning protections for transgender people and those seeking abortions — in an attempt to conceal his views from the Judiciary Committee, which was considering his nomination.
HALFWAY TO DEFAULT
The debt limit hostage situation is starting to feel more like a Wes Anderson movie. As Punchbowl reported, House Republican leaders will begin circulating a wish list for a debt-limit package this week when members return, which offers raising the limit through next May in exchange for a $584 billion cap in non-defense and non-veterans discretionary spending.
Most of the caucus, meanwhile, has its own ideas. The House Freedom Caucus has called for rolling back the same spending categories to FY 2019 levels. Republican Study Committee chair Kevin Hern, meanwhile, released a letter calling for the passage of a “strong” debt limit bill before the end of April. That deadline leaves eight working days. Freedom Caucus members, however, haven’t promised to vote for anything raising the limit, even if they get what they want. The business-friendly Main Street Caucus, meanwhile, has called for less steep spending cuts.
The House leadership team is having a tough enough time with each other. The majority blew through the statutory deadline of Tax Day without proposing a budget, and Speaker McCarthy reportedly has lost confidence in Budget Chair Jodey Arrington after the two could not get on the same page. The budget, of course, is a perfectly legitimate place for Congress to debate federal spending levels. But it can’t exist in the same universe with an unresolved debt limit spending target in a process that is the very antithesis of debate.
The jockeying for position by the factions of the GOP have burned up about half the time remaining before the US Treasury goes into default, and they still haven’t agreed on the broadest aspirational goals of this endeavor. (We apologize for the digression, but which Democratic political leaders were unwilling or unable to push to resolve this at the end of the 117th, and who held them up?)
To cite our December 19 edition yet again, the debt ceiling debacle is a self-made problem arising from the sorting of representatives as Democrats and Republicans. There’s likely a majority of members who would gladly support a clean raise to the debt ceiling. But when the chamber was choosing who would be speaker, Democratic members and Republican members couldn’t conceive of a cross-party alliance to provide an alternative to the small-in-number but pivotal MAGA faction. (Democratic leaders would have been wise to sanction such an effort, because having some control in a chamber is better than having none.) Even if such a collaboration failed, it would have provided McCarthy with some leverage with which to negotiate.
That kind of collaborative behavior is virtually inconceivable in a world where the majority party leader, through control of the Speakership, controls the official levers of power: committee appointments, the rules committee, and the distribution of fundraising dollars.
Uninterested in exploring realignment, the parties chose internal unity. We would not bet on the antistatist rump of the GOP choosing surrender, and it seems like the markets are starting to get the drift, too. As McCarthy heads to speak to the New York Stock Exchange this week, the cost of buying insurance against US default is skyrocketing. (Let’s hope the dollar doesn’t become like the pound, or worse.) Of course, now that it’s way too late to shape control of the House, and just in time to undermine the leverage of those who don’t want to play chicken with the global economy, Jared Golden is establishing the principle of trading arms for hostages, I mean imposing spending limits for a debt ceiling raise. Is this just about his reelection?
Paying congressional staff a living wage is a strong return on investment
ICYMI, our senior policy advisor Taylor J. Swift argues in The Hill why Congress is on the precipice of another brain drain if it follows through in reversing recent pay raises for overworked and undercompensated staff.
After considerable complaint, the Biden administration finally shared access to the classified documents recovered from the homes of Donald Trump, Mike Pence, and Joe Biden. Unfortunately, only the “Gang of Eight” received access. Intelligence committee leadership typically is comfortable with the conduct of the agencies under their charge, so offering only them access is a way for the White House to provide notice without empowering any real oversight.
GAO, meanwhile, was hit by the “controlled unclassified information” whammy from the Pentagon in a report about the costs of a new class of ballistic missile submarines. For those playing along at home, CUI is not classified information. It is information a government agency doesn’t want shared but doesn’t meet the standard to be classified.
The term CUI was created to encompass older agency practices of withholding information, at times merely to avoid embarrassment, but sometimes because it relates to privacy, law enforcement, and so on. In this case, the Navy designated large sections of its report as CUI.
As Bloomberg Government reported, “The censorship of the GAO report dated March 20 is the latest example of the Pentagon relying on the label ‘Controlled Unclassified Information’ to block the release of information it doesn’t want made public even if none of the details are classified. The CUI label has drawn the ire of congressional committees, and the Pentagon is reviewing its use. Pentagon Inspector General Robert Storch has a separate inquiry underway to determine whether employees are receiving proper training and if the designation is being overused.”
Why is GAO withholding information in its own report to the point of making its contents impossible to use? Looking at GAO’s FOIA-like policy, we have an answer: see GAO’s disclosure policy at 4 CFR 81.5.
At the same time, a leaks scandal is roiling the federal government. Isn’t it weird that a 21-year-old could get TS/SCI clearance, along with hundreds of thousands of others, but we don’t allow members of the House to designate one senior staffer to be able to go through the process to obtain a TS/SCI clearance?
Think about it. One TS/SCI per House office is reasonable. The Senate already does it. By contrast, the Executive branch hands them out like candy. “That a 21-year-old with so little authority could have access to a such a vast trove of top secret information might surprise the general public, but people who have worked in the intelligence world say untold thousands of troops and government civilians have access to top secret materials, including many young, inexperienced workers the military relies on to process the monumental amount of intelligence it collects.”
The plot thickens with Rep. Darin LaHood. As readers of this newsletter know, the FBI used a surveillance law to search for information about Rep. LaHood under a provision commonly referred to as Section 702. This is weird, to say the least, because it is a provision of the FISA Amendments Act intended to allow the surveillance of foreign persons located outside the United States — there’s no need to get a warrant and there’s no Fourth Amendment protection. It’s not intended to surveil congressmen, and anyone who knows anything about US history knows how dangerous it is for the government to surveil members of Congress without getting a warrant. Rep. LaHood serves on the Intel Committee, which thickens the plot.
Making matters weirder, the FBI says they didn’t suspect LaHood of wrongdoing, but rather was concerned he was the target of a foreign government. “Seeking more information to help determine whether he was a potential victim, it queried for messages mentioning his name as a defensive measure.” This should make you scratch your head.
A search is a search, whether for “offensive” or “defensive” purposes. All Americans have Fourth Amendment rights. The need to protect members of Congress and their staff, among others, from secret searches that are not approved by a federal court is obvious. Given the long history of the FBI failing to follow the law and its own procedures regarding its surveillance programs, this is very dangerous to the integrity of the Legislative branch. If they wanted Rep. LaHood’s permission, they could have asked, unless they were just fishing — which is why we have the Fourth Amendment.
Deconflicting House Hearings
The House Digital Service shared a peek at its new tool to help House Committees deconflict the scheduling of hearings.
ODDS AND ENDS
The House Digital Service shared a peek at its schedule deconflicting tool for House committees, long on the wishlist of chamber modernizers. Right now, it’s only available to majority committee staff.
New Approps tool: The Senate has put out a request for a Content Management System for the Appropriations Committee to “provide speed, clarity, and collaborative work capabilities to write comprehensive, complex spending law and represent that law in associated formats of report language, financial tables, and member interest reports.” It seems like House Appropriators would also be interested, and likely other committees as well.
On the subject of workplace tech, a reminder that the House has created an AI working group (internal House link only) for staff to explore new tools in the congressional office environment. We, the POPVOX Foundation, and Lincoln Network, meanwhile, will participate in a public discussion of AI tools in Congress on Friday from noon to 1 PM in the Capitol Visitors Center room 268. Register for the event at this link. We’ll discuss thoughts we’ve shared in this essay.
Prosecutors were seeking 27 months of jail time for a former US Capitol Police officer who was convicted of felony obstruction by deleting messages with a January 6 rioter. A judge gave him 120 days of home incarceration instead. This is not great.
Hill journalist Pablo Manríquez has gained acclaim for his oil painting hobby. It turns out he’s only been doing it for a year and a half, and he started when supplies arrived at his door by mistake.
Our friends at the Project for Government Oversight have shared their Legislative branch appropriations requests, including an oversight workshop at the Congressional Staff Academy.
Congressional Committee Calendar
~ Tuesday ~
The Office of Congressional Workplace Rights will host one more training session on April 18 on the Congressional Accountability Act. More details and links to registration.
The Committee on House Administration holds a hearing on the House Sergeant at Arms strategic plan for the 118th Congress at 10 AM in Longworth 1310.
The student winners of the annual Congressional App Challenge will demonstrate their entries during the House of Code event. Because the event now has more than 300 participating offices, students are divided into two demonstrations at the CVC: the first at 10:00-11:30 AM and the second 3:30 to 5 PM. Register for the event based on your congressional district at this link.
~ Wednesday ~
The Committee on House Administration and House Oversight and Accountability Committee will hold a joint hearing on the DC Health Exchange data breach at 2 PM in 2154 Rayburn.
~ Thursday ~
House Administration Subcommittee on Elections holds a hearing on election procedures at
8:30 AM in 1310 Longworth.
The Senate Committee on Homeland Security and Governmental Affairs holds a hearing on the GAO’s “High Risk List” and recommendations for reducing waste, fraud, and abuse at 10 AM in 562 Dirksen.
~ Down the line ~
The House Office of Diversity and Inclusion will host a virtual resume workshop for staff Monday, April 24 from 1 to 2 PM. RSVP here.
The Modernization Subcommittee of the House Administration Committee will hold a hearing on modernizing the Congressional Research Service at 3 PM in 1310 Longworth.
The Law Library of Congress and American Bar Association will celebrate Law Day via webinar on Thursday, April 27 at 3 PM EDT. Register for the event here.