The Top Line
Congress is in the doldrums, comparatively, but the work of government rumbles on. We’ve got a surprising number of interesting items for you, but don’t forget to take some time for yourself before things get frantic in September.
What tech should Congress build?
**The Congressional Hackathon **is three weeks away. Have you RSVP’d for the September 19th event? In preparation for the hackathon, I’m gathering ideas about how the Legislative branch should modernize its technology.
What’s your genius idea? Should there be a tool that allows staff to automatically schedule meetings with outside groups at free times on their calendar? An app that automatically condenses written witness testimony and the committee memo into a two-page doc that includes draft member questions? A tracker that shows how busy each cafeteria is? Or that collates all QFRs that relate to an agency?
Submit your tech ideas here. I’ll publish the best, but also will keep the submitter anonymous unless you give the go-ahead.
Congress’s once and future legal advisory body
I’m reading an eye-opening law review by Beau Beaumann that argues the House and Senate had an office from 1919 to 1969 that acted akin to how today’s DOJ’s Office of Legal Counsel serves the Executive branch – providing legal advice to members of Congress to resolve their constitutional questions. This historical role, Baumann explains, was previously unknown, and could be a precedent for how the House and Senate do more to vindicate Congress’s legal views in court today.
There is, in the words of Beaumann, a “lost culture of constitutional consultation” where written and oral opinions guided Congress for decades. For 50 years, the House and Senate Offices of Legislative Counsel issued “opinions of the office” that provided “substantive law within Congress” that was non-partisan, precedential, and binding on future opinions. The office also issued non-precedential opinions, and briefs that argued a particular viewpoint. Beaumann discusses who created the office, the context in which it operated, how it was created, how opinions were drafted, and how Leg Counsel’s role has changed over time.
The Executive branch has a secretive legal advisory body, the DOJ’s Office of Legal Counsel – as I describe in testimony – that has become a primary exponent of pro-Executive branch legal theories and a recruiting ground for future Executive branch-centric federal judges. It routinely issues secret opinions that have the force of law in the Executive branch and act as a body of precedent. There is no equivalent Legislative branch counterweight, although Protect Democracy’s William Ford has sketched out what one could look like.
Michael Stern, who served as counsel for the House of Representatives’s Office of General Counsel, argued in his testimony for an enhanced public role for the OGC and greater transparency for the Bipartisan Legal Advisory Group, the low-profile leadership entity that oversees the OGC and determines when the House will intervene in legal matters.
Just to clear up some jargon: Stern formerly worked in the Office of General Counsel, which litigates on behalf of the House, and Beaumann was writing about the Office of Legislative Counsel, which currently helps members draft legislation. A third entity, the American Law Division of the Congressional Research Service provides Constitutional and statutory interpretations to Congress, but ALD does not litigate and, IMO, has a very different relationship with members than the General Counsel’s offices. (I worked as a Legislative attorney for ALD.)
In arguing for greater transparency for the work of the Office of General Counsel, Stern writes “it is in the House’s institutional interest for the public to have more information about its legal positions… [as] legal scholars and commentators are [] disadvantaged by the lack of access to the opinions of the House’s most knowledgeable experts.” That imbalance, when contrasted with DOJ’s OLC, “undermines the House’s institutional legal positions in court.”
The GAO in 2024, in response to a request from appropriators, sketched out options for establishing an office of legal counsel in the Legislative branch, although Baumann notes the agency apparently was unaware of the promulgation of tens-of-thousands of pages of legal guidance in the first half of the 20th century. Appendix II of GAO’s report contains considerations for establishing a congressional office of legal counsel.
In light of apparent overreach by the Supreme Court in recent years, the House and Senate4 Rules committees may wish to consider how to bolster the Office of Legislative Counsel and bring transparency to the BLAG. The two chambers may also wish to consider to how help vindicate the Legislative branch’s views against an overpowerful Executive branch and a complicit court that’s chipping away Congress’s authority.
McConnell weighs in on remote voting and Chamber Rules
Can the House and Senate use proxy voting? The answer, according to Sen. McConnell, is yes – and the courts should keep their damn hands off how Congress conducts business. Kyle Cheney and Josh Gerstein have the story for Politico, which links to this amicus filing by Sen. McConnell, written by Bill Barr (yes, him!)
Here’s the bottom line from the brief: “There are good reasons to criticize proxy voting, and particularly good reasons to have criticized the use of proxy voting in December 2022. But not every principled disagreement has a remedy in court. Because the decision below undermines the constitutional powers assigned to Congress, it cannot stand.”
McConnel cites my favorite-named Supreme Court case, U.S. v. Ballin, where the Supreme Court held in 1892 that insofar as the chamber follows its own rules, the Court cannot look into how the chamber chose to determine a quorum.
Sen. McConnell makes a lot of sense. _[Editor’s note: Daniel, did you really write this? DS: There’s nobody else here, so yeah.] _McConnell writes: “[T]he district court’s retooling threatens Congress’s ability to conduct business on a day-to-day basis. An ironclad physical presence requirement removes necessary flexibility during national emergencies. It risks invalidating longstanding Senate procedures, particularly the ubiquitous practices of unanimous consent and voice votes. Finally, it imperils a significant portion of already-enacted legislation.”
The following section from McConnel’s brief is music to my ears. I am also aware of the irony of Sen. McConnell trial to dial back the Frankenstein court he created. The issue is whether the courts can determine when a quorum is present.
“But what is meant by physical presence? Does physical presence require members to be on the Floor? Does vestibule voting count? In the House, where voting is done by electronic card, can one member use another member’s card while its owner waits in the cloakroom? What about voting from the galleries? The House and Senate have rules and precedents to account for these situations: are those rules subject to judicial review? Will the courts effectively be in the business of establishing a code of rules for how the House and Senate conduct business? The court did not begin to provide an answer to these questions, nor can it.”
Why does McConnell care so much, and why now? I don’t know, but one theory is that if the courts start to muck around with what constitutes a quorum, it could upset the exercise of the filibuster, and its obverse, unanimous consent, which is something he cares very much about. One could imagine the requirement of a return to the speaking filibuster, for example, which would greatly impede both leadership control and the ability of individual members to halt legislation they don’t like.
Emergencies do happen. As we go into the 119th Congress, each chamber should put in place provisions that clearly allow for and define circumstances and processes for remote deliberations on the floor that allows each member to exercise their full powers, including bringing an end to remote deliberations when an emergency abates. Similar authorities should be provided for committees, although they should have additional flexibility to operate remotely as the committee determines prudent.
And, if you want a blast from the past, here are major news stories, regulations and resolutions on remote deliberations, and the like at continuityofcongress.org.
Impeachment stalls out
Several House Committees majority staff released a report that states “the Committees have accumulated evidence demonstrating that President Biden has engaged in impeachable conduct.” The main allegations are that Pres. Biden engaged in a conspiracy to monetize his office of public trust to enrich his family (largely when he was Vice President) and that President Biden used his official position to conceal his mishandling of classified information as a private citizen.
Jordain Carney noted in Politico that Speaker Mike Johnson’s statement commending the report did not call for floor action. Also, efforts by rank-and-file members to force an impeachment vote would likely fail and place some Republicans in a tough spot.
I’m not a fan of the weaponization of impeachment to distract presidents even as we must defend the right of the House to inquire. Congress has the right and the obligation to investigate the Executive branch, and there are times, such as Iran-Contra, where impeachment proceedings may have been warranted. The transformation of impeachment into a messaging activity – as such measures are unlikely to be taken up in the Senate – bodes poorly for Congress being taken seriously when it conducts oversight.
New Jersey’s new senator
Sen. George Helmy will represent the great state of New Jersey upon the resignation of Sen. Robert Menendez, and will serve as senator until November 27th, at which point he will resign and Governor Murphy will appoint the winner of the November General Election. This will give the future winner of that election a slight seniority boost. Sen. Menendez was found guilty on 16 counts of bribery on July 17th but the Senate demurred on removing him from office, allowing him the courtesy of resigning his office on August 20th, and to collect a few more paychecks. Soon-to-be Sen. Helmy served as state director to Sen. Booker, as staff assistant and constituent advocate the office of Sen. Lautenberg, and as chief of staff to the governor.
What else might the Senate Ethics Committee have found on Sen. Menendez? We’ll never know – they closed their investigation after his resignation. (This is a bad policy: a substantially completed investigation should be released because members who quit have been known to run again for positions of public trust.)
A new process for H. Ethics as Santos pleads guilty?
Ex. Rep. George Santos pled guilty to wire fraud and aggravated identity theft. According to the Justice Department, he “admitted he filed fraudulent FEC reports, embezzled funds from campaign donors, charged credit cards without authorization, stole identities, obtained unemployment benefits through fraud, and lied in reports to the House of Representatives.”
Per the DOJ, Santos will be sentenced on February 7, 2025, and faces a mandatory minimum of two years in prison and a maximum of 22 years in prison. He must pay restitution of $373,749.97 and forfeiture of $205,002.97.
**Notably, the Ethics Committee **did not pause or defer its investigation when the DOJ announced its indictment of Santos on May 9. Usually, the Ethics Committee places investigations on hold when there is a criminal investigation or indictment. It’s my view that policy is unwise, as ethics violations are not coterminous with criminal investigations and having a corrupt member of Congress poses a unique danger. Questions of corruption should be dealt with expeditiously.
To avoid the appearance of treating members differently, the Ethics Committee should establish the policy that it will continue investigations even when the DOJ is investigating. Furthermore, the Office of Congressional Ethics, which released a report on May 1, 2023, should be further empowered to subpoena third parties for records.
Earmarks as grease for policymaking?
One theory behind why earmarks should return is that they allow leadership to apply grease to the gears of government to move legislation. Sen. McConnell must have taken that adage to heart as he’s now the top earmarker in the Senate, responsible for $498 million for the state of Kentucky, according to Roll Call. They don’t have the majority, but Senate Republicans took home 46% of earmarked funds (not all earmarks are finalized).
In fact, “fifteen of the top 20 earmarkers are Senate Appropriations members.” While this is not surprising, it does suggest a less than equitable division of earmark dollars. On the other hand, Appropriations is one of the few committees that (mostly) works. That could also be attributable to the must-pass nature of the bills and/or the comparatively large committee staff sizes.
Updating House Rules
The POPVOX Foundation released a report with recommendations for updates to the rules of the House of Representatives. This follows a bipartisan report released a few weeks ago by the American Governance Institute and the Foundation for American Innovation that contained comprehensive reform recommendations. Many of POPVOX’s recs have similarities with those of the bipartisan report, although there’s some new stuff in there, too. Highlights include: mandating committee scheduling data entry, establishing a task force on the legislative process, one-click access to committee votes, and requiring bipartisan committee retreats.
Congressional Research Service and legislative data
The transcript from House Admin ModSub’s March 2024 hearing on modernizing CRS and the use of federal data is now available, and you know I went dumpster diving straight to the QFRs that start on page 66. (Side note: wouldn’t it be great if the QFRs were published as text in the text versions of these reports so you don’t have to go to the PDF?)
**Matt Glassman’s written responses **were quite interesting. He explained that confidentiality with requesters at CRS did not extend to the sharing of raw data among analysts, unless the data came from a requester. That he worked to acquire and refine raw datasets to answer questions, but that CRS has no central repository where the agency kept data acquired by individual analysts that could be used by others.
He stressed the following point: “the best way for CRS to better make use of datasets acquired by analyst[]s would be to make sure analysts can easily understand what datasets exist at CRS.” It’s a darn good point. “Knowing what exists or being able to easily search it” is challenging for analysts.
He also recommended Congress revise CRS’s statute to better integrate CRS analysts with the hill perspective. While not endorsing a dramatic change, he identified taking CRS out of the Library and transforming it into an independent entity, converting the director to a termed appointment, and making CRS staff more like CBO staff.
Not all solutions required legislation. He recommended: embedding CRS analysts in the House and Senate, creating a customer-service driven culture to products – especially through improved formats and marketing, and encouraging CRS analysts to become public experts in their field.
Lots to think about.
I didn’t see anything new in Acting Director Newlen’s testimony, which covered CRS’s authority to obtain Executive branch information, a (gently worded) lament of the lack of funds from appropriators to support a larger data infrastructure, and a lack of information on the downstream savings arising from ending distribution of the print edition of the Constitution Annotated.
**One funny point on CONAN **– When I started at the Congressional Research Service, the person next door to me was responsible for writing a significant portion of the Constitution Annotated, a legal treatise that explains the Constitution as it has been interpreted by the Supreme Court. Only very recently has CRS made it available online – after a lot of encouragement – and recently I got an email from a software engineer, Sukolsak Sakshuwong, who has turned it into an iPhone app. Now you too can have the Constitution in your pocket. CRS had built a version of an app a while ago, but it displayed the pages as PDFs, which are basically unreadable on your iPhone. That problem is resolved with Sakshuwong’s version, which uses responsive design. That’s the power of open data.
**Elise Bean **wrote that it would be constitutional for CRS to ask for data from Executive branch agencies.
While I’m writing about CRS, I’m generally happy with Director Newlen, but aren’t we a few months behind schedule in announcing the new director?
Odds and Ends
**Rep. Bill Pascrell **passed on August 21, 2024. He was a champion of a strong Congress. He will be missed. The New Jersey Globe has his obituary.
**A filibuster carve out **for abortion is on the table, says Sen. Schumer. Or for voting rights. I feel like this is an Oprah moment: you get a carve out, and you get a carve out, and you get a carve out.
**Strengthening public participation **in rulemakings is the subject of a new report from OIRA. It contains a series of examples and best practices from agencies.
**OMB has 37 open priority recommendations **from GAO, ranging from fully developing a federal program inventory and improving government performance to increasing availability and transparency of government data and improving acquisition management. Many of these recommendations have been unresolved for some time.
**Taylor Swift **has an excellent article in the Fulcrum on increasing financial resources for Congress, framed around the Supreme Court’s recent Chevron decision.
Member speech and civility. A new tool from the Polarization Research lab tracks statements by members and uses AI to categorize the speech as engaging in a policy discussion, constructive debate, personal attacks, accomplishments, or bipartisanship. I am somewhat skeptical that this is a good use of the technology, but it is an example of the kinds of things that can now be done.
