Recess is here, but it’s not an opportunity to breathe easier.
All 12 appropriations bills have been reported by the Senate Appropriations Committee, a first for the Senate in five years. Meanwhile, only 10 have made it out of the House Appropriations Committee gauntlet and there’s talk they won’t take up the other two. With the House wildly diverging downward from the debt agreement as the Freedom Caucus and friends push House leadership for un-enactable spending levels and poisonous policy riders, some members are predicting a government shutdown is coming. Even Republican appropriators are publicly disclosing their discomfort.
The FC was given a spreadsheet and asked to point to where they want to see cuts, and reached a $1.4T top line agreement. (McCarthy denies the existence of an agreement as he also denied a side agreement with the FC when taking power.) Meanwhile, the Senate top-line funding level is much higher and pushing for a multi-billion dollar plus-up that, entertainingly, is drawing complaints from the RSC as violating the debt deal.
Even if an agreement is reached among the factions in the House, is there time for the House to pass all of its appropriations bills before the end of September? There wasn’t time for Agriculture, which was postponed to September after being set for a floor vote this past week, leaving only one bill to have passed the House so far. The Senate surely won’t agree to the funding levels or the policy riders for the various bills, but are there enough Senate Republicans who will join with Democrats to move an appropriations bill forward in that chamber? The ability for a minority to block movement in that chamber could mean stagnation, even as Appropriators in that chamber have locked arms in favorably reporting their bills. We will be fascinated to see whether a Senate-led supplemental can work its way to the finish line. Its viability will be linked to parity.
The House has reneged on the idea of an open process around Appropriations but there will be the opportunity to offer amendments for the select few. We imagine August recess will be the time that folks go to legislative counsel to get everything drafted because appropriations bills will have to go quickly in September… assuming they go at all.
The National Defense Authorization Act is in similarly tough shape, with its text studded with far right culture war language. Mike Rogers, the Chair of the House Armed Services Committee, pooh poohed the likelihood of the Senate accepting the House’s NDAA amendments. The amendment process in both chambers, but especially the Senate, has been opaque.
Both Appropriations and the NDAA are the major opportunities to move unrelated legislation that otherwise would be caught in the Senate mire, but this year’s process may not have done so to the same extent as in prior Congresses. (You can find some of those unrelated amendments in SA 1087, which amends SA 935, which amends the NDAA. This includes a foreign lobby reform bill, classification reform, and the entirety of the Intelligence Authorization Act. Good luck). This has implications for the amount of legislative proposals to become law.
The Architect of the Capitol was the subject of one Congress-related measure that did move through the Senate NDAA process, and it can be found buried in section 10,001 of the Reed substitute amendment, SA 935. It contains the text of the Architect of the Capitol Appointment Act of 2023, a bipartisan bicameral bill described in this press release and separately introduced as H.R. 3196. The amendment establishes a commission to appoint the AOC, authorizes the commission by majority vote to re-appoint or remove the Architect, requires the Architect to appoint a Deputy Architect within 120 days and allows for the commission to do so if the Architect does not, and allows the commission to designate an Acting Architect.
The measure is necessary because the previous Architect had lost the confidence of Congress through a series of major missteps, necessitating Pres. Biden to step in and remove the AOC. As there was no deputy AOC available, the Chief Engineer, Chere Rexroat, had to step in as the acting Architect of the Capitol. As we discuss in this blogpost, many senior Legislative branch agency heads are oddly appointed by or removable only by the president, or enjoy unlimited terms of office, and this is a first step to begin to rationalize the process.
Meanwhile, the House Administration Committee and Senate Rules Committee held a joint hearing into the Capitol Police Board, the first time all the Board members have testified together in eight decades. Naturally, we released a report into USCP/Board compliance with congressional and GAO recommendations. Surprise, surprise, it didn’t look good.
We found the Capitol Police and its Board have only closed two out of 11 GAO recommendations issued over the last few years. In addition, out of nine directives from Congress, we found non-compliance and or unclear compliance with four directives, full but belated compliance with two directives, and full and timely compliance with three directives.
We are working on a detailed write-up of the hearing and we will have it for you next week.
Earmarks, and discussion thereof, are the bane of my existence. In a recent Roll Call article, Peter Cohn and Herb Jackson point out that “House Republicans have so thoroughly stacked the earmarking deck in their favor in appropriations bills for the upcoming fiscal year that the top Democratic recipient doesn’t even appear in the top 60 among lawmakers in that chamber.” One theory behind the restoration of earmarks is that it gives all lawmakers skin in the game so they’d be more willing to support the underlying legislation. It’s also a way to help out members in difficult races.
Another theory behind restoring earmarks is that it allows Congress to set spending priorities instead of deferring to the Executive branch. But that reasoning was missed by Washington Post reporter Tony Romm, who wrote that congressional-set priorities shortchanged the government in deciding where federal water funds should go, harming the neediest communities. The “government” is apparently a metonym for the Executive branch.
We don’t have a dog in the fight over whether earmarks should exist. We have written previously on what we think is the right way to bring back earmarks, assuming they are desired. They should be distributed evenly among the members, i.e., about $7 billion for the Senate and $7 billion for the House. That would result in $16 million per congressional district and $70 million per senator that they could designate at their discretion (subject to approval). They could choose to combine with their colleagues or save up funds over multiple years. The benefit to this approach is that it protects congressional prerogatives, avoids giving disproportionate money to the powerful (or allowing the powerful to dispense favors in return for votes), and allows each member to prioritize their district’s needs.
Needless to say, that’s now how it works at all.
Yep, the Intelligence Community is spying on Congress again. “In June 2022, an FBI analyst conducted four overly broad searches of the U.S. senator’s last name in a database of calls, texts, emails and other electronic information collected by the National Security Agency, the US Foreign Intelligence Surveillance Court said.” We at Demand Progress Education Fund caught them spying on a member of the House back in February. Both instances were done under Section 702, which is intended to surveil non-US persons overseas but is often used against Americans at home. Those with long memories remember the CIA spying on the Senate committee investigating CIA use of torture, which the CIA admitted in 2014. The government has shown it will not follow the law, but still wants to keep the authorities to spy upon you, me, elected officials, and pretty much anyone else. Fortunately for them, they’ve found that buying information from data brokers is even more productive than directly spying on us, especially as they think it is a constitutional run around the Fourth Amendment.
Members of Congress voting for more defense spending hold shares in the defense-industrial complex, which should be illegal, argues William Hartung and Dillon Fisher in Responsible Statecraft. The best thing to do, they argue, is ban members from trading individual stocks (and likely owning defense sectoral ones as well). (Where is that ban legislation, by the way?)
The NDAA, in addition to the AOC language, contained a number of provisions that caught our eye. They’re not necessarily Congress-related, but it shows you the grab back of stuff included in that measure. We just skimmed the table of contents.
- Aliens (i.e., unidentified anomalous phenomena disclosure) §9001. The funding is out there.
- Establishing a Chief AI officer at the State Department §6303
- Conflicts of interest for DOD consultants §819
- Prohibiting requirements on DOD contractors to disclose their greenhouse gas emissions §820
- Due process for unfavorable security clearance determinations §1043
- Change to disclosure by officers and stockholders to include any such security of a foreign private issuer § 6081
- Create a domestic engagement and public affairs strategy “to explain to the American people the value of the work of the Department and United States foreign policy to advancing the national security of the United States” §6605
The President has aggregated power over national security matters that are intended to be shared with Congress and at times be the sole or primary jurisdiction of Congress, and Reps. McGovern and Mace have introduced new legislation to restore a more appropriate balance. The National Security Reforms and Accountability Act (NSRAA) is intended to reclaim congressional oversight of arms sales, emergency declarations, and the use of military force.”
House staff have through Friday, August 4th to complete this study from the House’s Office of Diversity and Inclusion that examines “the state of workforce representation, including compensation, benefits, and the demographic composition of the congressional workforce, as well as the workplace experience of employees at both the organizational and/or office level within the US House of Representatives (USHR).”
Older members of Congress have less diverse staff than their younger counterparts, according to a new report from the Joint Center. This may be attributed to the fact that younger members of Congress are more likely to be diverse, and diverse members of Congress are more likely to be willing to hire non-white senior staff. Interestingly, the younger senators tend to represent states that are much more demographically diverse, so their staff diversity lags the state demographics compared to older members.
How to improve the quality of congressional staff is the subject of a working paper from the Center for Effective Lawmaking. I’ve only skimmed the summary, which describes a theoretical framework to evaluate how civil society works to fill the gaps, focusing on bipartisan training led by the Project on Government Oversight.
Their conclusion: “Many staffers will hesitate to put in the hard work to become experts in oversight because they will not be the ones who benefit. The members of Congress for whom they work will, so legislators must absorb the costs their staffers incur to become experts. This implies that those who want to enhance congressional capacity for conducting oversight must either focus on increasing the value of oversight expertise to legislators or find ways to make it more general so that staffers become more likely to pursue it on their own.”
Be a TechCongress fellow. Our friends at TechCongress have an open call for fellowships starting in January, with applications due by August 23rd. They’re looking for early and mid-career technologists to come and work for Congress — they’ll pay the salary. I’ve worked with many TechCongress fellows and it’s a great opportunity. If you know someone who would be good, you can nominate them here.
ETHICS & PERSONAL BEHAVIOR
Censure wars. Members of the House are starting to worry that they’re pulling the trigger too quickly to force votes to censure other members of Congress. This is detente in action, or maybe Mutually Assured Destruction, a.k.a. how the ethics process broke down in the early 2000s. But every so often someone crosses the line.
Not Kind. Rep. Derrick Van Orden verbally accosted a dozen Senate pages, calling them “lazy shits” and telling them to “get the fuck up” off the rotunda floor, Punchbowl reported. This isn’t his first time verbally assaulting teenagers. This is what happens when you elect “Stop the Steal” attendees. Bipartisanship isn’t entirely dead, as Sens. Schumer and McConnell took to the floor to blast Van Orden. I bet House Republican leadership is very grateful for the recess so they can wait until this dies down… so they don’t have to act. Speaker McCarthy said the whole incident might be a misunderstanding. Oh, boy.
Did McCarthy and Swalwell really almost get into a physical fight on the House floor? The DailyBeast has the NSFW story. HuffPost too. (It’s shades of the excellent book Field of Blood.)Impeachment. Among the many people House Republicans are discussing impeaching this fall is Pres. Biden. This may be a way to keep the MAGA base happy, but will the press pay attention (they probably shouldn’t, but can they help themselves?), will all Republicans vote in favor?, and what will the Senate do with it? Will Sen. McConnell switch positions and now support witnesses in that chamber? Will he be okay with undoing a national election? Will Sen. Schumer allow any of this to go forward, and will he be hemmed in by Sinema and Manchin? We have to respect the prerogatives of both chambers and treat this seriously, but it seems fundamentally unserious, especially after McConnell played games to prevent Trump from being impeached after the insurrection he called for nearly decapitated the Legislative branch.
ODDS & ENDS
Sen. McConnell’s health. On Wednesday, Sen. McConnell couldn’t finish his first sentence at a weekly press conference and had to be led away, Pablo Manriquez tweeted. Frank Thorp V tweeted a video from a different angle with a similar description. As did Igor Bobic. Raquel Martin has a video of the whole thing. McConnell later returned and didn’t explain what happened.
We hope that Sen. McConnell is not ill. People generally have a right to privacy about their health issues. But as with Sens. Feinstein and Fetterman, member health when it comes to performing their duties is also a public issue. (On that point, this past week Sen. Feinstein became confused when trying to vote on the Senate Defense Approps bill.) Sen. McConnell disclosed his fall and concussion in March and apparently has had other falls this year. We hope the media will work to get an appropriate explanation. Has this happened before? How often? We hope he has obtained prompt medical assistance.
It didn’t take long for McConnell’s health issues to be wrapped up in discussions about his political future and the ongoing, quiet rate to succeed him as leader. As some in the press work to create a hagiography of McConnell as the only Republican leader Biden can work with, we are reminded of this 2018 take in a piece by a historian entitled the Suffocation of Democracy.
Why might “institutionalist” Steve Womack leave the House? He “has grown so fed up with his party’s leadership kowtowing to a small band of hard-right lawmakers that he is considering retiring next year.” If so, why doesn’t he use his procedural power and fight for what he believes in? “Democrats generally respect Womack and accuse McCarthy of caving to the ideologues, but Womack does vote for these [right wing red meat] bills.”
Senate Chaplain Barry Black got a WaPo profile. If you’re interested in prayers uttered in the House, check out Howard Mortman’s 2020 book “When Rabbis Bless Congress,” discussed here. There is also a database (somewhere!) of all chaplain prayers on the floor. Having a House and Senate appointed chaplain has been controversial at times in US history, with the position abolished in the 1850s and replaced by guest chaplains. But as CRS points out, the Supreme Court, in its almost infinite wisdom, decided that “precedent and tradition” outweighs the Constitutional prohibition concerning establishment of religion. Why members of Congress don’t fund these positions out of their own pockets instead of having taxpayers do so is something I’ll leave to others to explain.
Rep. Luna wants to make Congress more “family friendly” by providing lactation rooms and childcare for members who give birth, per Politico’s Huddle. (She’s pregnant.) This would be a notable and appropriate improvement, one that had been supported in prior years by other members. Rep. Luna’s been described by Time magazine as the Influencer who came to Congress, and is notable for her successful effort to censure Adam Schiff.
The start of August recess prompts members to introduce bills they’ve been holding onto for seven months for no apparent reason. There’s a huge crush of legislation at the last minute. Did you spot any introduced bills that we should take note of? Let us know. If not, here’s the real reason why we have August recess.
The President’s Management Agenda is drafted without consultation with Congress, as is required by law, and its priorities are dreamt up in the vacuum by political factotums, argues former HSGAC staffer Matthew Cornelius. This results in ungrounded policy priorities that sap funds from useful goals, he argues, and Congress should rethink the whole thing.
Congratulations to Phillip Swagel who was reappointed as head of the Congressional Budget Office. Per the press release, “As required by the Congressional Budget Act, the appointment was made jointly by Speaker of the House Kevin McCarthy (R-CA) and President Pro Tempore of the Senate Patty Murray (D-WA), upon the joint recommendation of House Budget Chairman Jodey Arrington (R-TX) and Senate Budget Committee Chairman Sheldon Whitehouse (D-RI).” Practically speaking, the power to appoint the CBO head alternates between the budget chairs of each chamber. (As discussed elsewhere, it would make sense to standardize how Legislative branch agency heads are appointed and removed.)
Above the law. David Lat was right, Supreme Court Justices, or at least Justice Alito, really thinks he is above the law. Alito recently said that Congress doesn’t have Constitutional authority to regulate the Supreme Court, metaphorically pointing to the document and asking what provision of the Constitution grants them that power. The guy whose branch of government literally made up judicial review probably should lead with a better argument. I wonder what he’d say if Congress temporarily reduced the number of Justices to one, which is within their power.
On tap for this week? Send us your vacation pics. Or, if you’re going to one of those fancy member fundraisers, pics from that will do, too.
~ Down the road ~
The John W. Kluge Center at the Library of Congress will host a discussion led by former fellow Dr. Annelise Russel entitled “Representation Gone Viral: Digital Demand and Congressional Capacity” on August 3 at 4 PM in LJ-119 of the Thomas Jefferson Building.
Attorney General Merrick Garland is scheduled to testify in front of the House Judiciary Committee on September 20.
The Ridenhour Prizes, which celebrate whistleblowers, documentarians, and authors in support of government transparency and accountability, will hold its annual gala on October 25 at 6 PM. Subscribe to this link for ticket information.
In the rear view: Sunday, July 30th, was National Whistleblower Day. “It marks the date in 1778, when the U.S. Continental Congress unanimously passed America’s first whistleblower law.” The Senate-only resolution, S.Res.298, is a fun read. Maybe next year the House should get in on the fun?