Good morning and happy belated 4th of July! Did you miss receiving the First Branch Forecast? Well, we’re back and at our new home at the American Governance Institute.
It seems a few things happened while we were on hiatus. As usual, we’re going to stay focused on building a strong Congress, an accountable Executive branch, and a durable democracy.
Today’s issue is abbreviated, so let me name-check:
- The Supreme Court’s striking down of Chevron review, which is more about transferring power to the federal courts than to Congress. Everyone seems to want to do Congress’s job, which is reason #1 why Congress should act to strengthen itself.
- The Supreme Court’s creation of presidential immunity for official actions, which allows a president to commit unlawful acts without criminal accountability. Surely this won’t potentially create problems should a certain ex-president return to office.
- President Biden’s disastrous debate performance raised big questions about his competency, implicating the 25th Amendment, the ability of the press to learn about a president’s health and to accurately report that information, and what role (if any) there is for members of Congress in pushing out an incumbent. I think we’re about to break another precedent, folks.
- Several criminal and ethics proceedings against members, including Rep. Cuellar and Sen. Menendez.
- Did you think this would be the Congress where we saw an attempt to revive inherent contempt? There’s nothing inherently wrong with it, with some civil society groups and members pushing for a fix in the last Congress.
- Oh, and that funny Supreme Court is making enforcement of rules by agencies much harder.
Since this newsletter is coming to you from a new email address – firstbranch@americalabs.org – please be sure to add it to your address book and forward it to anyone who might be interested. (They can subscribe here.) You can always email me directly at daniel@americalabs.org.
APPROPRIATIONS
This week is appropriations-heavy. The most likely outcome remains a CR in September: the House is moving to pass legislation on the floor and the Senate is working to favorably report legislation out of committee before the August recess.
The House of Representatives is scheduled to bring the House Legislative Branch Appropriations bill to the floor, with the House Rules Committee set to meet on Monday to report the rule. It appears 34 amendments have been submitted for possible floor consideration.
Particularly interesting are three of Rep. Gottheimer’s amendments, including one that restricts privileges for expelled members of Congress; another on improving citizen input; and a third on exporting e-Dear Colleagues. Also I’m a fan of Rep. Tenney’s amendment that expresses support for select staff to be able to obtain TS/SCI clearances. And Rep. Clyde’s amendment on the 27th amendment is right on the money.
The Senate has scheduled a full committee markup of the Leg Branch Appropriations bill later this week. There was not a sub-committee markup, so this will be a chance to see the bill and committee report language. Note that the Senate does not stream video of markups, just audio, so be there or, uh, dial in and listen on the wireless. At the meeting the 302(b) levels will be voted on as well, so we will get a sense of what the spending caps will be.
The House did an excellent job with their funding levels for Leg branch this year and the committee report isn’t too shabby, even if it did have a few indigestible red meat items. As usual, I’m tracking on this website all the Leg Branch related House and Senate proceedings, the bill text, public testimony, and so on. I also am keeping track of the spending line-item by line-item over the last 30-ish years and will publish it when I have a few free minutes. Here’s some of the more interesting committee report language.
The big earthquake was the shift of Rep. Tom Cole to become Chair of House Appropriations from the Rules Committee. You don’t see that everyday. His presence is welcome news for those who care about a capable Congress.
FACTIONS
One of the things I’ve most missed writing about is the undercovered but extremely important issue of factions within the parties. The fight over who will succeed Sen. McConnell as Republican Leader is one facet of the story; the McCarthy-Johnson switcheroo and belated passage of the FY 24 appropriations bill is another. Similar issues are bubbling for the Democrats, with the departure of Manchin and Sinema from the Democratic party in the Senate to create more of a coalition majority there. Should Democrats retake control of the House, we will see much of this play out with respect to distributing those spoils as well as efforts to modernize the committee and chamber rules (see, e.g. this from Nov. 2022).
There’ve been a handful of journalistic efforts to describe the factions within the parties, although they haven’t been all that satisfying. FiveThirtyEight.com published this taxonomy earlier this year, and the Washington Post described the Republican five families last year.
In my view, two things are missing from their approaches.
First, the various factions within the parties will collaborate across party lines when they have similar interests. That they do so, and why, is undertheorized. (Some of you have been kind enough to chat with me about the descriptive framework I’ve put together.)
Second, the current structure of the House of Representatives has centralized political power at the top, the incentives of leadership are to keep the team together and split the opposing team, and they’re willing to stop legislation with majoritarian support if it hurts members of their own team. But, that centralized structure is creaky and breaking, at least on the Republican side.
For what it’s worth, categorizing party members on the axes of economic, national security, and authoritarian axes tells you much of what you need to know to identify the factions and see who they might be willing to work with. When looking at the frequency of that collaboration, the chamber rules and party rules are useful to illustrate whether it would occur on favorable terrain.
I’ve been reading Building the Bloc by Ruth Bloch Rubin, which discusses what’s happened at different times over the last 125 years when control over the House and Senate has become too narrow, and how factions in various parties have worked together to build factional infrastructure and redistribute power.
House Democratic leadership I think was cognizant of this history and did not advance efforts to allow anti-Trump Republicans to split from MAGA Republicans in the last Congress because it would hurt their power structure. The Conservative Partnership Institute, which we’ve been writing about for quite a while, is the very clever formalization of a faction within the Republican party.
TECHNOLOGY
The Congressional Data Task Force held task force meetings on March 13th and June 6. We’ve got the full recap at those links, but here are a few highlights:
- Video from recent Senate committee proceedings is now published on Congress.gov (for all Senate proceedings, the best place is still SenateCommitteeHearings.com).
- The alpha version of the Legislative Branch Staff Directory is finished, but access to Senate data is a challenge.
- The comparative print suite is finished – it shows you how an amendment would change a bill or a bill would amend a law – and has been deployed in the House and some leg support agencies; interested folks in the Senate can apply to a pilot project for access.
- The House Clerk is undertaking efforts to build a committee portal that will provide a wide range of neat functions.
- HouseCal, a tool that allows House staff to see when all hearings and markups are happening, including the ones their boss is supposed to attend, will soon be available to all House staff.
- No news on whether the Senate is moving forward with making bills and resolutions publicly available prior to a vote.
The House of Representatives is embarking on a study to figure out how best to collaboratively draft legislation. There’s a vendor presentation later today (Monday) and an RFI where the public is asked to provide input over the next few weeks.
A Congressional hackathon, hosted by Congress, will take place mid-September.
AI oversight and development efforts are continuing at the Committee on House Administration. Five flash reports are available online.
LOCHNER
The Supreme Court is remaking the federal government in its own image before our very eyes. An initial, reasonable response would be to vastly increase capabilities of the Legislative branch to compensate. My go-to-talking point is that we need to triple the number of staff and double their pay. That’s probably not right – we probably need to increase the number of political staff by five or ten times, add thousands of staff to the support agencies, and likely create a few new ones, such as one focused on the regulatory process (perhaps as proposed by Kevin Kosar and Phil Wallach).
My theory is that for every hundred dollars we spend on the Executive branch, we should spend one dollar on the Legislative branch. Currently, the Legislative branch receives less than 0.4% of appropriated funds, or around $7 billion. For FY 25, we can expect the House and Senate combined will spend a little more than $430 million on their committees and $1.4 billion on personal office staff.
The SCOTUS’s decisions aren’t technocratic, however, but political. This shouldn’t be shocking: if they were mere technocrats, there wouldn’t be confirmation battles. The Justices know that Congress is a political body, designed to make political decisions about government priorities. They also know that most landmark legislation takes large political movements and decades to become law. Knocking down laws drafted with the previous administrative law framework in mind and requiring Congress to legislate the minutiae of implementation is in fact a deregulatory decision. It’s a political decision to roll back the fruits of the New Deal and the Great Society. (Yes, I’m aware that the Chevron decision was in 1984.)
And in making this decision, the Court’s new standards for review are such that in the handful of areas where Congress is able to act, the Court stands ready to knock it down through standards of review that are impossible to address in advance.
This is not unprecedented. The Locher era of the Court ran from 1897 to 1938 and was when the Court struck down a wide variety of economic regulations duly enacted by Congress and signed by the president under the theory that they infringed on economic liberty or private contract rights. It was a political conservative, judicial activist era of the Supreme Court. During that time the Court struck down laws against child labor, establishing a 40-hour work week, establishing a minimum wage, and regulating a wide variety of industries.
Unlike the Lochner era, which was transparently focused on the Court’s economic theories, the Roberts era is focused on the structure of government, specifically in rolling back the political arrangement brought on by the New Deal. It’s Lochner, but without saying the quiet part out loud. The Lochner era was only brought to an end when FDR threatened to pack the Court and swing vote Justice Owen Roberts (yes, another Roberts) switched sides and upheld a minimum wage law.
I suspect no level of political threat would produce another “switch in time that saved nine.” While some political conservatives may hail the outcomes, having power pulled to the Supreme Court is just as dangerous as having it pulled to the Executive branch, especially when both are pulling it away from Congress.
It is not too late to hope that these Court decisions will give Congress the incentive and impetus to both increase its Legislative capacity and clear up the underbrush that allows a minority in the Senate to block the advancement of legislation a majority would support and a minority at the top of the House’s power structure to prevent majoritarian legislation from advancing. That kind of reform would require the factions to work together to retake and redistribute power. It’s happened before, but not often.
ODDS & ENDS
The Library of Congress is the subject of a House Admin oversight hearing on Wednesday. If you’re interested, it appears that Library’s annual report for FY 2023 (which ended in September 2023) is now available online.
I went on a Capitol Dome tour and it was awesome. 10/10, would do again. Here are some photos and a brief video.
The Bipartisan Legal Advisory Group is in the news. Who are they, why are they important, and how should they be strengthened? Read Michael Stern’s highly accessible testimony.
The staff pipeline is important. The Joint Center has a handy new report on the pathway by which staff become senior staff. Issue One has a fascinating report on staffer pay, which shows 4.6% of congressional staffers earn below a living wage, and the Senate shamefully has 7.6% of its staff below that line. Also, don’t sleep on James R. Jones’s excellent new book, the Last Plantation, a phrase used by several members of Congress over the decades to describe institutionalized inequality in the congressional workplace.
AOC. There’s now an Architect of the Capitol.
Why are Capitol Police publishing exponents instead of the Capitol File Number?
The NSA, no, the National Security Archive, got their close-up in Washingtonian magazine. Without them, we wouldn’t know the full story about how our government works.
Rep. Brad Schneider says the exterior of his Cannon Building office was trashed over the 4th of July.
Does serving on the FOIA advisory committee interest you? Apply by 5pm on Monday, July 15th.
Judy Schneider has passed. She is remembered by her many friends.
CALENDAR
Monday July 8
An info session on a collaborative legislative drafting platform will be hosted by the Clerk of the House from 2-3:30. Don’t forget to send in your info for the RFI by July 24.
Tuesday July 9
Wednesday July 10
OIRA listening session to hear from members of the public about implementation of guidance and opportunities for improvement for improving public participation in the rulemaking process. More info here.
The Library of Congress will come under the scrutiny of the full Committee on House Administration at 10:15 am.
Thursday July 11
The Legislative Branch budget will be considered by the full Senate Legislative Branch Appropriations Committee starting at 9:30, along with several other subcommittees and the 302(b) funding allocations. You didn’t miss the subcommittee markup: this is it. If you want to watch the hearing, you’ll have to go in person, but you can listen to streaming audio from the committee’s website.
Only 3 work weeks to August recess!
