Webinar: Senate Rules and the Supreme Court Nomination

Senate rules and procedure are in the news with the ongoing confirmation proceedings for Judge Barrett to the U.S. Supreme Court, which is why we hosted a webinar with three Senate rules and procedure experts on October 8, 2020, focused on the nomination and Judiciary and floor procedure. The panelists were:

  • Sarah Binder, senior fellow in Governance Studies at the Brookings Institution and professor of political science at GW
  • Matt Glassman, senior fellow at the Government Affairs Institute at Georgetown
  • Molly Reynolds, senior fellow in Governance Studies at the Brookings Institution
  • Daniel Schumanmoderator, policy director at Demand Progress

Didn’t catch the event live? Watch it online below or click here.

Forecast for October 5, 2020.

THE TOP LINE

This weekend has been insane. I hope you’re staying safe. Here’s some of what’s inside:

• Coronavirus and the Supreme Court: what a 47-47 Senate means for the Barrett nomination.

• How to protect Congress, its staff, the press, and everyone else.

• The House Rules Committee heard ideas on how to fix Congress — what are they?


Of course — you know us — there’s a lot more on transparency, ethics, power of the purse, and oversight.

Interested in learning more about Senate rules and procedure? We’re hosting an online Q&A, with noted Senate rules experts Sarah Binder and Matt Glassman (other guests TBA), this Thursday at 3:30 pm ET. RSVP here.

Interested in learning more about modernizing the House rules? We’re planning a briefing for House staff, but open to everyone, that focuses on how House rules are changed, some of the top recommendations made so far for reform, and an opportunity to answer your questions (in a format where your identity is protected). RSVP here for the presentation made by yours truly on Wednesday, Oct. 14, set for 4:00 pm ET.

Continue reading “Forecast for October 5, 2020.”

Forecast for September 29, 2020.

Good morning, Congress. This week’s First Branch Forecast is shorter than usual because there’s so much going on that we’re overwhelmed. We’ll catch up on a backlog next week. Here’s the top six things you need to know.


1. MEMBER-DAY HEARING ON THE HOUSE RULES (RSVP TUES)

You know you’ve been waiting for it for two years. The House Rules Committee is holding its Member Day Hearing this Thursday at 1pm to listen to your boss’s ideas to improve the House’s rules, and any Member wishing to testify must submit a request by 5pm today (Tuesday) by filling out this form. If your boss can’t make the virtual hearing, you still can reach out to Rules Committee staff. Looking for ideas? Check out our voluminous recommendations (including our top 13).


2. RUSH TO JUDGMENT

The Judiciary Committee is expected to start four days of hearings on Pres. Trump’s SCOTUS nominee, Amy Coney Barrett, on Oct. 12, with a floor vote anticipated the week of Oct. 26th. The Chair of the Senate Judiciary Committee, Lindsey Graham, had pledged he would vote for the nominee without even knowing who it is. Rubber meet stamp. The untimely nomination is moving forward with unprecedented haste. In the meantime, the Intercept published a memo on options available to Sen. Schumer and Senate Democrats should they seek to bring a more stately pace to the proceedings — i.e., let the next President choose, as most Americans prefer, while Senate Republicans are prepping for Dem tactics that would require at least 51 Republican senators to stay in town to bat down any and all concerns. But, as BGov noted, Sen. Schumer hasn’t done much to delay things … so far. A question: some tactics rely on the House staying in town, so are they still planning on closing up shop at the end of the week?


3. PEACEFUL TRANSITION TO POWER

President Trump once again expressed an unwillingness to commit to a peaceful transition of power and is using additional tactics (like undermining vote by mail and vocal support for vigilantes) that are at odds with a free-and-fair election — and a democracy. The Senate passed a non-binding resolution in support of a peaceful transition of power, and a House resolution is on tap for this week, but even with the ongoing (and likely escalating) efforts to undermine the election results, it’s unlikely that the upper chamber would stand up to President Trump now, especially as it hasn’t done so previously. Meanwhile, the Atlantic is gaming out what happens if Trump refuses to be fired, and Politico describes what happens if the election is kicked to the House. The last time this happened, the political deal killed Reconstruction and led to the widespread enactment of segregation and other Jim Crow laws, whose effects are still felt today.


4. KEEPING THE NEXT PRESIDENT IN LINE?

House Democrats have put forth a partial democracy reform package, the Protecting Our Democracy Act, aimed at fixing a few loopholes in the system that allow for presidential bad behavior. The bill contains measures with wide bipartisan support, like making sure the Executive branch follows Congress’s spending decisions, bolstering IG independence, and requiring Congressional approval for presidentially-declared emergencies that last longer than 30 days. It also strengthens Congress’s ability to enforce subpoenas. Is it enough? No, we think it misses some crucial issues, but it’s a good start.


5. SPENDING?

If everything goes right — I cannot believe I wrote that — the Senate will vote Wednesday, the last day of the fiscal year, to adopt a short term CR through December 11th. We think that is too short-term, as it punts hard questions to the same time-frame that Congress may be looking at a very messy election, but what do we know? House Members voting on the CR had only 30 minutes to review the 115 page bill, which is astonishing. The underlying approps bills will be negotiated now even though the Senate has not passed their bills (to avoid taking hard votes before the election). We haven’t followed the minutia around the next COVID relief bill, although our guess is it will either contain too many concessions or serve as a messaging bill.

6. FIXING CONGRESS

The House Select Committee on the Modernization of Congress unanimously reported another 40 recommendations this past week, bringing the total to 97. This package of recs includes ideas updating the MRA formula, (voluntary) staff pay bands (to address weaknesses in staff pay), restoring OTA, upgrading the Bulk Data Task Force, examining creating a Congressional Digital Service, fixing the House calendar, and more (including congressionally-directed grants). The SCOMC has officially turned into a pumpkin, with only the text of its final report pending, although we hope the House and Senate will find an official way to extend these modernization efforts.


QUICK ITEMS

 The House can sue the President for building a border wall with funds appropriated for other purposes, the DC Court of Appeals held last week.This is a huge win for Congressional authority.

• Yech. The U.S. Capitol Police disciplinary reports show a disturbing pattern of misconduct. As we’ve said before, the USCP is a nightmare from a government transparency and accountability perspective, especially in light of the more than 2,000 employees and nearly $500m budget.

• Protections for intelligence whistleblowers need improvement, a GAO investigation found.

• The White House blocked the FDA Commissioner from testifying before the House about the pandemic response. Obviously, they shouldn’t be able to do this.

• Federal judges wenttoo far when they requested Congress ban the publication of certain personal information about judges: they want to make it illegal for journalists to publish key information needed for transparency, oversight, and accountability.

SUNSET

After 15 years, the Sunlight Foundation has officially closed its doors. Many of you know that I was their policy counsel for almost 5 years. The transparency, accountability, and technology work lives on with us and many of the organization’s alumni, who are spread out across civil society, government, the press, and the private sector.

Forecast for September 21, 2020.

THE TOP LINE

Ruth Bader Ginsburg has died. 93 minutes after the Supreme Court announced her death, Majority Leader McConnell tweeted that President Trump’s nominee — whomever it may be — will get a vote on the Senate floor. Within 24 hours, supporters at a Pres. Trump rally were shouting “fill the seat.” This is indisputably a flip-flop for Sen. McConnell and the GOP compared to their position on Merrick Garland; we note that that voting has already begun in the presidential election and the timing of the announcement is ghoulish.

• I don’t know whether ex nihilo the presumption should be in favor of presidents being unable to fill Supreme Court nominations prior to a presidential election, but Sen. McConnell created that rule, applied it, and will now violate it. This decision blows up what’s left of Senate norms—rules, precedents, and personal relationships—to gain a multi-generational advantage on the Supreme Court for the purpose of changing the Court’s decisions on settled (but politically contentious) issues. The composition of the Senate locks-in these anti-democratic outcomes.

• At the same time, Sen. McConnell is moving the Senate towards a pseudo-majoritarian institution where individual senators have little real say—not that the Senate has been at the forefront of legislating under his leadership, as he has acted largely as an appendage and protector of the Trump administration and an antagonist of the prior Obama administration. (By pseudo-majoritarian, I mean that 51 senators constitute a ruling block while those same senators represent a minority of the American population.) Sen. McConnell’s actions have weakened the legitimacy of the courts and Congress and are collapsing politics into a Manichean fight concerned with helping your friends and hurting your enemies.

• So far, the only semblance of a practical response I have seen for Senate Democrats was proposed by David Sirota, who describes tactics Dems could use to grind the Senate to a halt to block a Trump appointment. Unlike Sen. McConnell, who “shut down the lower court confirmation process” during the Obama administration, Senate Democrats under Pres. Trump have let nominations go through time after time. Norms are real only when everybody adheres to them. What will the Democratic response look like? Will they stop all activity except for essential legislation? According to Roll Call on Friday, their plan is talk, not action. But, last night Sen. Schumer stood alongside Rep. Ocasio-Cortez as she called on Democrats to “use every single available procedural tool available to us” to buy time in the Senate to stop the nomination.

Meanwhile, will the government shut down? 10 more days until the government shuts down or puts a continuing resolution in place. According to CRS, 117 CRs were enacted from FY1998 to FY2019, with an average duration of 39 days; there were only 3 year-long CRs (in FY2007, FY2011, and FY2013). The House Rules Cmte meets today to queue up a vote on a short-term spending bill. According to BGOV, Ds and Rs have all-but-agreed on a December 11th timeline. That seems crazy to us: what incentive would a departing Trump administration have to keep the government open should the Dems take political control? We realize Dems have moved the deadline forward in exchange for a policy win, but this is playing with fire.

Coronavirus relief is a key issue in the waning days of Congress as the number of dead in the U.S. has passed 200,000 and Pres. Trump admitted to lying to the American people about the danger of the illness. A little while back, Senate Republicans put out a political base-covering proposal that quickly failed in that chamber; members of the House Problem Solvers Caucus recently put out their own $1.5B plan. Most committee chairs rejected the latter’s proposal outright, saying “When it comes to bolstering the public health system, supporting state and local governments, and assisting struggling families, the Problem Solvers’ proposal leaves too many needs unmet…. [T]heir proposal also abandons our responsibility to protect the life of our democracy.” It is bad politics to undercut the negotiating position of the House, so of course Pres. Trump rushed to praise the plan without endorsing it. Spkr. Pelosi is not a fan of the Problem Solvers plan, but it did push her to say the House will remain in session until a COVID deal is reached. As the House usually holds pro forma meetings, I’m not sure what that means.

The Senate must modernize; to prepare for the next session of Congress, we released a report with over 80 recommendations to make the Senate more efficient, effective, transparent, and inclusive. They cover six categories, including strengthening floor and committee deliberations, modernizing operations and transparency, improving staff onboarding and retention, increasing ethical practices, improving technology and cybersecurity, and managing Congress as an institution. This parallels our recent recommendations to update the House’s rules.

Congress’s unfinished business, at least from our perspective, includes at least 30 good government bills we think should cross the finish line. So far 13,107 bills have been introduced this Congress and 158 have been enacted into law. We helpfully broke our list down by bill status.

The Library of Congress held its legislative information access virtual forum on September 10th. If you weren’t able to attend, we have a comprehensive recap of the presentations, panels, and Q&A. We were impressed by the panelists willingness to engage and the thoughtfulness of many of their answers. As you might expect, we had our list of issues we hope will be addressed. One take-away for bill-drafters out there: in some circumstances the Library will not act without the direction of Congress, including improving public access to CRS reports and providing an API for legislative data.

Continue reading “Forecast for September 21, 2020.”

Pending Good Government Bills: 116th Congress

The 116th Congress is coming to a close, with Members getting ready to depart to campaign full-time and then return in late-November/December for a lame duck session. Time is running out before bills turn into pumpkins and have to be re-introduced at the start of the next Congress. According to GovTrack, 151 bills have become law so far. By comparison, 12,874 bills have been introduced, or 1.1%, although some of these bills are duplicates of ones that have become law. 

We and our friends in civil society have compiled a non-exhaustive list of pending good government bills that lawmakers should consider pushing across the finish line before time runs out. As legislation that’s further along in the process is more likely to become law, we’ve sorted our list by their status. We’ve further subdivided the list regarding the part of government they would affect.

Continue reading “Pending Good Government Bills: 116th Congress”

Forecast for September 14, 2020

THE TOP LINE

More should be happening. We are 16 days away from the end of the fiscal year; COVID-19 is everywhere and not going away any time soon; wildfires are burning on the west coast; the Executive branch is unabashedly flouting the law; and senior congressional leaders are raising concerns Pres. Trump will not peacefully transition power should he be defeated and is working to undermine elections. The skinny Senate COVID-19 bill was defeated — its major purpose was blame-shifting and incumbent protection — and Senate Rs are saying no deal is possible until after the election (if then).

The House & White House are working towards a “clean CR,” with one big open question as to when it will expire. The “clean” description is an acknowledgement that it won’t address any of the aforementioned problems and that House Dem Leadership miscalculated around the first (and subsequent) COVID-19 relief bills. Should Dems agree to let the CR expire in December, they could be setting up a government shutdown that could last a month or longer, undermining what they hope would be the start of the Biden administration.

In the House this week, the Congressional Budget Justification Transparency Act of 2020 (HR 4894) is one of 31 bills on suspension, with a few additional bills set for floor debate. There are 18 committee meetings scheduled, including a House Oversight markup that should advance the PLUM Act (HR 7107). The former requires all agency Congressional Budget Justifications to be online in a central location; the later would transform the Plum Book into a living, digital document.

The Senate floor, meanwhile, will spend Monday focused on another judicial nomination. 17 committee meetings are currently scheduled.

For your calendar: Tuesday is the International Day for Democracy, and Brazil’s Bussola Tech is holding an international conference (with English translation) on the experience of 20 parliaments in transforming their legislatures during COVID-19. House Deputy Clerk Bob Reeves will be representing the U.S. House of Reps. RSVP here. Thursday is Constitution Day. Friday is the start of Rosh Hashana.

Transitions. Rep. Tom Graves (R-GA) will resign in October; he is the co-chair of the Select Committee on the Modernization of Congress. While waiting for a new member to take office, the House Clerk will be responsible for keeping the lights on. House Parliamentarian Tom Wickham is retiring, and will be succeeded by his deputy, Jason Smith.

Continue reading “Forecast for September 14, 2020”

Forecast for September 9, 2020.

Did you miss us? Welcome back to the First Branch Forecast! August was surprisingly busy so we have a pretty robust newsletter for you. Keep your eyes on appropriations, COVID-relief, the NDAA, the upcoming House Rules process, possible reforms in the Senate, and Executive branch efforts to undermine Congress.

We put six months of effort into our House rules recs; we know that Zander and Tim put a ton of effort into their new report on Congressional Brain Drain; and there’s so much more. Don’t hesitate to click on the links and let us know what you think.

THE TOP LINE

Congress is returning: no House votes are scheduled this week; the Senate is voting on a skinny coronavirus relief bill this week — but even if it passes the Chamber it’s not likely to go far ($). The House’s proxy voting emergency period was extended until October 2nd; this was a critical safety move as the number of covid cases on Capitol Hill surpasses 100, and Congress works through must-pass bills.

Continue reading “Forecast for September 9, 2020.”

Capitol Police Release 2019 Complaints Data With Significant Omissions That Reduce Clarity

The U.S. Capitol Police is notoriously opaque; among the limited information they will provide to the public are summary statistics on employee misconduct, published in their Annual Statistical Summary Report. This report provides a high level summary of the number of complaints made against USCP employees.

We requested a copy of the 2019 data in June, and it arrived in August, which is par for the course with USCP. Here is what the statistics show: 

  1. There were 228 complaints filed against USCP employees in 2019, of which nearly 140 charges were sustained.
  1. More than 80% of complaints were filed by department employees; by comparison 14%  were citizen submissions, and 3% were filed by outside law enforcement.
  1. There have been zero anonymous complaints filed in 2019, and the same was true in 2018. This suggests a problem with the way the anonymous complaints process works.
Continue reading “Capitol Police Release 2019 Complaints Data With Significant Omissions That Reduce Clarity”

Forecast for August 10, 2020.

THE TOP LINE

The House and Senate are basically out — with a skeleton crew staying in DC until a Coronavirus deal is struck or they give up. Members have been told they have 24-hours notice to return for a vote. Talks have apparently failed; this weekend the president took executive actions of dubious utility and questionable legality in an effort to make law. Sen. McConnell endorsed those actions, further undermining the Senate as an institution.

Senators want federal employees to be safe and are pushing agencies to offer maximum telework, but does that apply to Legislative Branch employees? Staff and employees are reporting to work in person — sometimes against their will — which is unsafe and unwise. Worse, the cleaning supply budget ran out a month ago, we don’t know how the Architect is managing ventilation, and until this month masks weren’t required anywhere. It’s a mess.

• The disregard for safety by some Members and staff is sufficiently egregious that staff are talking to the press, and Capitol Hill residents are worried about COVID exposure from proximity to Congress. Like we’ve said since March, remote Congress is the safest option.

COVID accelerated some Congressional modernization, but what’s next? Can it be that the House will go back to paper processes when the pandemic is over? We’ve seen some reports suggesting exactly that. House leadership should make clear they won’t backslide.

Senate Appropriators decide where billions of dollars will be spent. Markups, like hearings, should be open to the public and press. With restricted access to the Capitol and tight quarters in meeting rooms, the only way that’s possible is through live video — at least that’s what we (and our friends) think. Appropriators are resisting that call, in contradiction to direction from Senate Rules. As you might recall, Foreign Relations got a tongue-lashing on this topic, too.

Proxy voting won big in federal district court, which held the Speech or Debate clause does not permit a lawsuit against that practice. The result is good news. BUT the legal theory could create problems down the road. More immediately below.

Continue reading “Forecast for August 10, 2020.”

House Advances Franking Modernization Bill

The House passed a bill last week designed to bring the Franking Commission into the 21st century. The Communications Outreach Media and Mail Standards Act, or COMMS Act (H.R.7512), extends the commission’s authority to regulate mass communications (i.e., to 500 people or more) by Members and Members-elect. The commission’s authority has historically been limited to mailings but the new language refers to a wider range of communications. 

Continue reading “House Advances Franking Modernization Bill”