First Branch Forecast for April 24, 2023: Norms and power


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.)


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.


The Senate’s dysfunction, with its antediluvian rules rooted in slavery and Jim Crow and nurtured by a chamber that structurally over-represents conservative voices in our current era, is made manifest once again where Republican senators are not allowing a temporary substitute for Sen. Feinstein on the Judiciary Committee. Another member is being allowed to sub in for her in her role as presiding officer of an Appropriations subcommittee, but we would imagine that when the votes matter, a similar circumstance would arise.

With narrow majorities a reality for the foreseeable future, the weight of these veto points is buckling the institution. It may be a one-seat majority, but Democrats have it and they deserve to be able to govern accordingly. Oddly, when they’ve had the opportunity to empower themselves, they have desisted and instead relied on norms that only seem to exist when Dems are on the losing end.

The issue du jour are blue slips. Despite the urging from editorial boards and left-of-center organizations, Chair Dick Durbin restored their use, which allows senators to block some judicial nominees in their home states. Republicans have returned them sparingly for district court nominees. The filibuster, of course, is yet another example of vetocracy. And the debt ceiling. And appropriations.

In the event Feinstein does leave the Senate, as she should, the unwillingness of Republicans to seat her successor may finally be the moment that the Charlie Brown party stops trying to kick the football. The irony is that it may be the attempt to preserve rule by the Judicial branch within our democracy that starts the chipping away at the decrepit ramparts holding the Senate back from being a representative body.

A spillover effect of the Feinstein situation is the Judiciary Committee no longer has the votes to subpoena members of the Supreme Court to compel their appearance to discuss the Clarence Thomas scandal and its ethics situation generally. Durbin has requested Chief Justice John Roberts appear before the committee on May 2 on a potential code of ethics for the court. Sen. Durbin didn’t bother to request Clarence Thomas testify because he expected Thomas to refuse.

Oh, the Senate.

Inherent contempt

While it’s a bit old, CRS has a great explainer of inherent contempt, a disused power available to each chamber of Congress to compel a witness to appear.


We, too, had a chuckle at Marjorie Taylor Greene having her mic turned off and comments stricken in a committee hearing because calling a witness a liar to his face is against House rules. Her antics did not sit well with Homeland Security Chair Mark Green.

The incident is more fodder for her Qanon fish out of water perception. But it’s all part of a plan, though, as another story about her acting like a completely normal member of Congress indicated last week. Taylor Greene has started to dole out a significant chunk of her impressive fundraising haul to vulnerable incumbent Republicans and the NRCC. This money isn’t a sign that she’s becoming more of a trusted House team player: it’s a strong sign of how she’s already there.

Congressional leadership have three forms of control over the chamber: control of the floor, control of committee assignments, and campaign money. The $12 million Taylor Greene raised last election cycle (fifth-most by House Republicans) was her ticket into the circle of trust as it is for any other member. She raises that money, of course, through political spectacle that attracts the small-dollar donations of hard-core partisans who see her frequently on their cable channel of choice (the name of her PAC is *chef’s kiss* for this crowd). It’s the televangelist playbook implemented by a Christian nationalist conservative very effectively.

Another way of saying this is she knows how to deliver what the base wants, and that makes her more valuable to GOP leadership than others. For an ambitious backbencher right now, this is the way.


The Justice Department filed a brief with a federal appeals court asserting that former President Donald Trump does not have immunity from being sued by US Capitol Police officers injured on January 6, 2021 and by Democratic lawmakers who feared for their lives. Rioters were armed with guns that day. A Maryland man was found guilty this week of nine charges, including carrying a concealed firearm. He could be sentenced to more than five years in prison.

Modernizing the CRS

In 2019, we submitted a statement to the House Administration Committee concerning the modernization of CRS. Many issues we flagged remain unresolved.


The joint House hearing on the DC Health Link data breach revealed a total of 17 members and 585 staff were affected by the incident, caused by a misconfigured server.

The Congressional Progressive Staff Association has selected a new leadership team of nine.

DOJ will require registrants under FARA to use its eFile system rather than submit PDFs.

Demand Progress and more than 20 other organizations requested Minority Leader Hakeem Jeffries select a strong replacement for retiring Rep. David Cicilline on the House Judiciary Committee’s antitrust subcommittee.

Can someone explain what the lede of this story means? Or how Democrats unanimously “believe the economic system largely favors powerful interests?”

The Library of Congress blog interviewed Law Library Foreign Law Specialist Jorge Barrera Rojas, who interprets how foreign laws in Latin America and Spain could impact the US. He’s an example of the fascinating people sprinkled throughout the Legislative branch.


Congressional Committee Calendar

~ Monday ~

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.

~ Tuesday ~

The Senate Appropriations Legislative Branch Subcommittee will hold a hearing on the budget requests of the Senate Sergeant at Arms and US Capitol Police at 3:30 PM in 124 Dirksen.

~ Wednesday ~

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 Senate Armed Services Committee will receive testimony on public integrity and anti-corruption laws at the Department of Defense at 3 PM in 222 Russell.

~ Thursday ~

The Committee on House Administration will hold a hearing entitled “American Confidence in Elections: State Tools to Promote Voter Confidence” at 2:30 PM in 1310 Longworth.

The House Judiciary Subcommittee on Crime and Federal Government Surveillance holds its first hearing on FISA reauthorization at 9 AM in 2237 Rayburn

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.