The Top Line
I teased last week that much is happening behind the scenes in Congress that’s not about the re-election. August is the un-official starting gun for efforts to modify chamber and party rules plus subtle campaigning in leadership elections and for committee assignments. Everyone is focused on the election, of course, but savvy players are simultaneously jockeying for what comes afterward.
Let’s be honest: chamber and party rules are largely about power: who has it and how they use it. These rules could be about creating a fairer process, and in a better world perhaps they would be, but in the real world they’re about building and maintaining power structures – and buttressing legitimacy for those structures.
In light of this reality, I’m pleased to share recommendations to modernize the rules of the House of Representatives. These comprehensive, bipartisan recommendations – co-authored by Zach Graves at the Foundation for American Innovation and myself – are something of a tradition. We’ve made suggestions for the rules package going back to the 112th Congress.
We are releasing these recommendations now because our focus is on building a stronger House of Representatives that meets the challenges of the moment. We get to take the long view with recommendations that appeal to the short and long-term interests of members and the various factions into which they organize themselves.
Our key recommendations hone in on strengthening the House post-Chevron, advancing technology and innovation, strengthening Article I, improving transparency and accountability, and modernizing congressional operations. If this seems highfalutin, the recommendations are concrete. For example, committee staff numbers should be increased by 30%. The House should establish a regulatory review office and a nonpartisan science and technology advisor. It should buttress its inherent and statutory contempt powers, provide TS/SCI clearances to one staffer in each member office, and renew the modernization subcommittee. And, as Politico reports, much more.
I hope you’ll read our key recommendations – and read on into the full report. We worked hard to make useful and actionable recommendations. We don’t expect every member to take them up en bloc, but we do think that many will find particular recommendations useful and pick up the banner.
The Empire Strikes Back
The excellent newsletter Statecraft has an interview with Russ Vought, who I recently wrote about as the ringleader of the (once and potentially future) Trump administration’s plan to seize control of spending. I’m not the only critic of the former OMB Director’s plans to seize control of federal funding through impoundment.
Bill Hoagland, senior vice president at the Bipartisan Policy Center and former director of budget and appropriations in the office of Senate Majority Leader Bill Frist, wrote in July that “Trump and his allies are completely wrong about impoundments.” Mark Strand, former president of the Congressional Institute and a former Republican chief of staff, wrote in June that “Russ Vought’s declaration of a ‘post-constitutional’ country directly attacks the system of checks and balances the Founders established to protect individual liberty.”
When you read Vought’s recent interview, it’s filled with howlers. Let me quote an extensive passage that illustrates my point. I’ve bolded a bit for emphasis.
“Statecraft: A lot of these debates seem like turf wars to protect control over certain processes. Is that a cynical view?
Vought: That’s not a cynical view. That is in fact what it is. The larger constitutional debate is probably the most profound and important for us to discuss. My view is that we now have an imperial Congress that has departed from the original concerns of progressives who wanted actual amendments to the Constitution. Because of career civil servants, the notion of independent agencies, and the loss of presidential impoundment, essentially the federal bureaucracy is now more aligned with the leadership of Congress, particularly with the committee chairs, particularly Appropriations, particularly the leadership that controls the House and Senate, and to some extent the senators who have the ability to put holds on nominations.
When I say imperial Congress, people look at me like, “What are you talking about? You’ve ceded so much congressional authority to the executive branch.” Yeah, for a reason. Congress has ceded lawmaking authority so that they don’t have actual responsibility for it. They don’t have to vote on the blend of ethanol and refiners. That’s a decision that the Environmental Protection Agency, the Department of Agriculture, and the Secretary of Energy have to make, and then Congress gets to evaluate it and set the consequences. So that is what I think is broken: We have effectively merged three branches into one.
The way out of that is to pull those functions apart and give to each what is properly theirs. I’m not saying the executive branch should now retain lawmaking authority. I want to give that back to Congress, and I want a better understanding of the power of the purse. The right constitutional view is that we have ceilings provided by Congress — that is the power of the purse — but it was never meant to be a floor.“
Well. The idea that we have an imperial Congress is silly. I wish the agencies were more responsive to Congress, which created them. But at every turn we see the Executive branch that undermines Congress control I see assertions of unitary executive theory – where agencies are supposed to follow the president’s agenda and are led by senior officials that lack independence; control of the regulatory process through OMB’s OIRA; the willful redefinition of the Constitution and duly enacted laws by the Justice Department’s Office of Legal Counsel as part of an agenda to sideline duly enacted laws written by Congress; and contumacy in the face of subpoenas for the purpose of waiting for political control to shift in the Legislative branch.
Even the idea of co-equal branches of government is not true. There are areas where a branch of government is supreme and either does not share power or shares very little power. Congress makes the laws, including appropriating the funds. With the exception of a veto, which can be overridden, the president generally does not have Constitutional power concerning spending except to take care the laws are executed.
Congress may be wise to consider further limiting appropriations language that prevents the expenditure of any funds with respect to impoundment. Should the circumstances arise, it should think twice about whether to confirm any individual who has views that cut at the core of Congressional power.
Assessing the U.S.’s Open Government Plan
The Mid-Term Self-Assessment Report of the United States’ 5th Open Government National Action Plan was released by GSA’s Open Government Secretariat this past week. Per Claude AI, here’s a summary of that report:
The Report outlines progress on 36 open government commitments, with 8 commitments completed and 28 still in progress.
Key strengths of the NAP 5 process include the establishment of an Open Government Secretariat within GSA to coordinate efforts, transparent reporting on progress and challenges, and concrete steps taken to address previous recommendations. The development of an online dashboard for tracking commitments and a commitment to improving stakeholder engagement are also notable positives.
Key weaknesses, however, are significant. The delayed establishment of a Multi-Stakeholder Forum and the acknowledgment of falling short in fully meeting the spirit of co-creation with civil society are primary concerns. The plan’s ambitious scope, with too many commitments potentially diluting focus and resources, is another drawback. Some commitments lack publicly available evidence of progress, and there’s a recognized need for more inclusive and diverse stakeholder involvement throughout the process.
For a view from civil society, please see this analysis by Alex Howard. I asked Claude AI to summarize his key points as well:
Howard argues that despite some accomplishments, the current administration has largely failed to engage meaningfully with the OGP process. The consultation for the fifth National Action Plan was inadequate, resulting in a weak plan with poorly defined commitments. Howard points out a lack of transparency and accountability in the process, as well as insufficient engagement with civil society.
Furthermore, Howard emphasizes that the administration has not prioritized or promoted OGP efforts effectively, contrasting this with its approach to other initiatives like the Summit for Democracy. He expresses serious concerns about the future of OGP in the United States, suggesting that without significant changes in approach and investment, the partnership’s relevance and impact in the country will continue to diminish. Howard calls for greater honesty and accountability from the U.S. government regarding its OGP participation and implementation of open government initiatives.
For a moment, let’s cheer the Department of Commerce for requesting public comments on its eighth open government plan, with public feedback due by September 6.
SCOTUS Jurisdiction
Can Congress strip jurisdiction from the Supreme Court? Steve Vladeck examines the arguments for and against, where to draw the line, and the consequences for Sen. Schumer’s No Kings Act.
Can you govern with multiple parties?
Every student of history knows the answer is yes – we have done so routinely, if not formally. The turn of the 20th century saw the alliance between progressive Republicans and Populist democrats; the 1930s-60s saw the Southern Caucus rule the roost on matters relating to civil rights and beyond; and political moderates were the swing faction from the mid-90s until 2009 or so.
New America’s Lee Drutman and Rob Oldman have a new report on governing the House with multiple parties. Some suggestions seem unlikely to come to fruition in the short term – “replac[ing] our winner-take-all electoral system with a system of proportional representation in the U.S. House” – but as you can imagine, others may be possible in the right circumstances, such as “reforms that empower committees and latent majorities relative to the speaker.”
Some of the intellectual groundwork pre-exists this report. Jonathan Rodden’s book Why Cities Lose explains why our political system is biased towards the political right, puts it in an international context, and explains how countries have established proportional representation systems. Ruth Bloch Rubin’s Building the Bloc does an excellent job explaining how factions arise and exert influence in our political system, creating, in effect, a multi-party system. George Galloway’s History of the House of Representatives explains how centralized political control is overthrown and the utility of factions in doing so. And, of course, my chamber and party rules recommendations are aimed at addressing a multi-polar House of Representatives where power is shared. (It’s good to see Rubin cited, but some literature I would have expected appears to have been omitted.)
I’m still working my way through the report so I hesitate to write an analysis of its proposals. Proportional representation is one right answer, but any analysis needs to be leavened with practical politics on how significant changes can be accomplished in light of the interests of those already in power.
While thinking about factions, I’m reading the Niskanen Center’s article on the rise of the abundance faction. Eschewing what they view as the poisoned chalice of “moderation,” they propose instead a “sweeping package of reform that envisions a wholesale program of state-building — building housing, clean energy, and infrastructure by reforming our creaky, captured systems of governance at all levels, and building a simpler, more effective and democratically legitimate welfare and regulatory state.” And here is where the music gets interesting: “the best path for pursuing this agenda lies with the kind of intra-party factions that have been common throughout U.S. history.”
Is this something new or a rebrand of something old? It does seem interesting. But, if they want to build a successful faction, they should consider dumping their efforts to mix in social views and engage in progressive punching.
Congressional Productivity?
I get frustrated when I read stories like these on congressional productivity. Counting the number of laws enacted does not effectively count the number of distinct measures enacted nor the collective oversight and constituent service work that occurred
The media and Congress
How does the media affect public perception of Congress? Kevin Kosar explored this topic on his podcast with guest Robert Oldham, who recently published a study on the topic. (Yes, Oldham is the co-author of the New America Foundation report I discussed above!) To my surprise, Oldham and his co-authors found that national newspapers with a Congress beat produce an exaggerated sense of congressional dysfunction compared to broadcast television news. Oldham has recommendations for how journalists can do better, including moving the policy discussion higher up in articles so folks are more likely to read them and putting disputes in context, i.e., that they are a normal part of the process.
Executive branch
Why is the leadership of 14 Inspectors General vacant? It’s a good question – GovExec has the story.
Nine federal financial regulatory agencies released a joint notice of proposed rulemaking concerning modernizing federal financial reporting. If you want to learn more, the Data Foundation has an explainer of the proposed rule.
Odds and Ends
House Democratic staff training is the subject of an unusual item in Punchbowl. Max Cohen reports staff from every House Democratic office have attended training run by Caucus Chair Pete Aguilar’s office, with the most popular sessions focused on legislative topics, with primers on appropriations and suspension of the rules leading the way.” These seem like my kind of classes.
Who will lead Senate Republicans? Politico has an update on how the secret campaign season is working out.
A second collaboration space has opened in the House, this time at 447 Cannon.
What were Walz’s most interesting bills in Congress? GovTrack’s Amy West took a look.
More insight into the Capitol Police might be gained from a review of the QFRs now available from this May 2023 hearing by the House Admin Committee. They start at page 180.
Rep. Pascrell was discharged from the hospital. Get well soon.
Interested in promoting the public’s right to know? The Brechner Freedom of Information Project is hiring a Florida-based professional with outreach and education skills to lead public communications concerning freedom of information. More info, including salary, here.
Modernizing Legislative Scheduling, and the House’s new iCal system, is the focus of a Bussola Tech report.
Future-proofing Congress, a new POPVOX Foundation report, was released.
