Barrett, Graham, Feinstein, and de Tocqueville

I watched a little of this past week’s Supreme Court confirmation hearings and can’t say I enjoyed — or was enlightened — by it very much. Alexis de Tocqueville observed 185 year ago that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” While members of the Senate Judiciary Committee and a certain Supreme Court nominee might publicly contend otherwise, there’s hardly a question about the fitness of a judicial nominee that isn’t actually a political question. That is what judicial confirmation hearings are all about: the judgment of the person nominated to become a Justice. 

Continue reading “Barrett, Graham, Feinstein, and de Tocqueville”

How will the House adopt rules for the 117th Congress?

We hosted a webinar on October 14th, 2020, on the process by which the House of Representatives will consider its rules for the 117th Congress and some of the big ideas that have been proposed to modernize those rules. We are pleased to make the video available online as well as publish our slides from the presentation.

Continue reading “How will the House adopt rules for the 117th Congress?”

What Happened at the House Rules Committee Member Day Hearing

At the start of the new Congress, the House of Representatives will adopt new procedural rules that govern nearly every aspect of how it conducts business. In preparation, the House Rules Committee held a Members’ Day hearing on October 1, 2020, where it heard testimony from 16 Members in person over more than 3 hours, and received written comments from another 5 members.

The following is a high level summary of the requests from each Member. Demand Progress has its own recommendations on what rules should be updated, which are available here.

Continue reading “What Happened at the House Rules Committee Member Day Hearing”

A Brief Recent History of Unionization in Congress

Working conditions for Congressional staff have recently been prominent in the news. News stories recount staff shamed by their offices for wanting to wear masks in the face of COVID-19 or being unnecessarily forced into their offices. Congressional staff are also significantly underpaid compared to their Executive branch (or historical) counterparts; their health insurance has been used as a political football; and they have less recourse when they’re subject to harassment or other mistreatment in the workplace.

The traditional response by staff to difficult working conditions is to unionize. But can Congressional staff unionize like their Executive branch counterparts? Continue reading “A Brief Recent History of Unionization in Congress”

The Constitution Annotated in 2020

For the first time since 2009, I don’t have to write a blogpost or letter calling on the Library of Congress to make its legal treatise, the Constitution Annotated, available online in a usable format. Last year, the Library finally published that document online as HTML. For those unfamiliar, the Constitution Annotated is a legal treatise, prepared by the Congressional Research Service, that explains the U.S. Constitution as it has been interpreted by the Supreme Court. Continue reading “The Constitution Annotated in 2020”

Who Steers the Ship? An Examination of House Steering and Policy Committee Membership

House Democrats and Republicans use internal party committees to control major aspects of the legislative process, including choosing who gets to serve on legislative committees. As we all know, personnel is policy.

Under the House rules, each party decides committee assignments for its members. As a result, the steering and policy committees are the scene of intraparty jockeying for power. With a large number of members competing for a relatively small number of key committee assignments and leadership roles, the parties’ respective steering committees act as a filter for who will rise and a sorting mechanism among the party’s internal factions. It is also a mechanism by which leadership taxes members to provide financial contributions in support of the party.

Continue reading “Who Steers the Ship? An Examination of House Steering and Policy Committee Membership”

Initial Thoughts on the House’s Remote Deliberation Resolution

This morning, House Rules Committee Democrats introduced a resolution (H. Res 965) that would provide for some remote deliberations for House committees and on the floor. Accompanying that resolution was a Dear Colleague from the Rules Committee that explains how the resolution would work, a one-page explainer, and a statement from the Democratic members of the Virtual Task Force on the resolution.

In short, the resolution:

  • Provides for proxy voting on the House floor, which would be turned on, extended, and turned off at the direction of the House Speaker. Members would send a letter to the House Clerk to designate their proxy, and no such designee can cast more than 10 proxy votes. The Clerk would publish the proxy designation on its website. The proxy is revocable, and must provide specific direction as to how to vote. Members voting by proxy would count towards a quorum.
  • Provides a mechanism for the Chair of the House Administration Committee (in consultation with the RM) to advise on whether secure technology is available to allow for remote voting on the floor. The Chair of the House Rules Committee would then promulgate regulations to put it into effect (to be published in the Congressional Record), and the Speaker would notify the House that remote voting is now possible. Presumably, the Speaker would be able to choose whether to provide this notice.
  • Provides for remote deliberations for hearings and markups for committees. Many of the details of how this would work have been pushed to the Rules Committee, whose chair (in consultation with the RM) would issue regulations on remote deliberations that would be published in the Congressional Record. To conduct business meetings (which presumably means markups), a majority of Members of the Committee would have to certify they will follow the regulations and that the committee is ready for remote deliberations.

I am still thinking through the implications of this resolution, which will be considered on Thursday before the House Rules Committee and on Friday on the House floor. Generally speaking, it is a welcome step towards restoring the functionality of the House of Representatives during the COVID-19 pandemic. The choice is stark: a remote House or no House, and this belated move will begin to restore the power of the legislative branch, at least in the people’s House.

I have to applaud the Members of the Virtual House Task Force, Reps. Hoyer, McGovern, and Lofgren, who worked hard to find a solution that met the dire circumstances and made efforts to protect minority rights. I am concerned that Republican members of the Task Force (McCarthy, Cole, and Davis) did not support the final product — and I remain concerned about protecting the ability of the minority to be heard — but given the political circumstances, the position of the minority is not surprising. Hopefully additional accommodations can be made to meet the needs of the majority and the minority, leadership and rank-and-file, as regulations to implement this are promulgated.

I have some reactions to the resolution that are worth sharing. I haven’t fully thought this though, but here are some initial reactions:

(1) A lot of eggs are being put in the basket of the regulations that McGovern will promulgate. The strength and weaknesses of those regulations will go a long way to determining whether this is a workable and fair solution.

(2) The resolution does not yet turn on remote committee markups. Rather, they’re pending both McGovern regulations and certification from the committees. I wonder how long this will take and how many committees are ready to act. It seems like some of them are ready to lead.

(3) The power to go to remote proceedings on the floor and in the committees is placed solely in Pelosi’s hands. She can declare, she can extend. Members of the House are non-entities for this purpose. It would have been preferable for the House to have a role in voting to confirm, extend, and cancel these proceedings.

(4) After House Admin issues report on feasibility of remote voting on the floor, McGovern would issue new regulations on how it works, but Pelosi still has to give notice to the House to turn it on. Power is put in the Speaker’s hands (and not shared with the House).

(5) I don’t see anything beyond remote voting and counting for quorum on the House floor. Specifically, I don’t see anything about how members can participate in debate remotely. Is this an omission? An oversight? Something else? What about the ability to make motions, to object, etc.?

(6) There’s no requirements for transparency, which will be issued by McGovern later. This is a big deal, as it has to do with how public and press can see what’s going on. It makes me nervous to turn off the House Committee’s transparency requirements with a TBD in their place.

(7) Committees cannot hold executive session remotely (except for Ethics committee). Will the NDAA be a more open process? What about Intel oversight?

(8) To turn on remote voting on the House floor, it requires: (1) House admin study + certification that operable and secure tech exists; (2) Rules Cmte Chair submitting regulations, published in the congressional record, that provide for implementation of remote voting; (3) Speaker must provide notice to the House before it’s turned on.

9) There’s lots of interesting technology changes/ improvements, some of which are long overdue.

  • Publication of list of proxy voting designees by the Clerk on the website
  • Committee reports may be delivered to the Clerk in electronic form, including views of minority
  • Electronic motions, amendments, measures, and documents is good enough — don’t need it to be printed
  • Don’t need recorded vote records to be available in committee offices
  • Oath can be given remotely
  • Subpoenas can be signed by electronic signature and attested by the Clerk by electronic signature
  • Can do subpoenas both for hearings and for depositions

There’s a lot more the House should and could be doing from a technology perspective. Unfortunately, the HEROES Act (i.e., CARES 2.0) does not provide for technological modernization in the legislative branch, and it’s likely that there will be no money available through the legislative branch appropriations process. This is a huge missed opportunity that could undermine the ability of the House to modernize in the way that’s necessary to meet this challenge.

Forecast for April 20, 2020

TOP LINE

The House inches forward on remote deliberations. Speaker Pelosi belatedly flipped her position and now supports a very limited form of remote voting, although it remains to be seen whether she will support restarting the committees and allowing remote deliberations on the floor — and whether she needs to bring members back to change the rules. Her choice remains remote Congress or no Congress, but she could misuse this opportunity to further centralize power in leadership’s hands.

The Senate is nowhere on remote deliberations, at least with respect to the floor, although there are some rumblings about committees.

Make it work. CRS issued a report on the constitutionality of remote voting and an assortment of civil society and former members held a simulated hearing to show how remote committee deliberations could work.

With Congress defunct, the President made (another) grab for Legislative Branch powers.

Check out our newest resources, including a website of all things continuity of congress, a database of the Members of Congress who support remote voting, the results of the House study on pay and diversity as a downloadable dataset, and our investigation of trends in CRS work over the last 30 years.

We hate to ask, but have you subscribed to the First Branch Forecast? It’s free and comes out once a week. Continue reading “Forecast for April 20, 2020”

Testimony before a Simulated Virtual Hearing on Remote Voting in Congress

A coalition of organizations, including a number of former Members of Congress, held a simulated virtual hearing on April 16, 2020, to illustrate how the House of Representatives or Senate could use technology to hold a remote hearing. The following is my prepared remarks concerning the constitutional and rules questions that might arise concerning such a proceeding.

 * * * * *

Chairman Baird, Co-Chairman Inglis, distinguished former members of Congress, it is my honor to speak with you today.

It has now been 33 days since the House of Representatives held its last hearing, and 31 days since the House’s last roll call vote on the floor. The legislative branch’s absence has created a power vacuum that the executive branch is readily exploiting. Congress must get back to work. The question is how. Continue reading “Testimony before a Simulated Virtual Hearing on Remote Voting in Congress”

The Undermining of Congress

The Legislative branch plays a central role in our democracy, but for decades Congress has systematically underfunded congressional operations as compared to the rest of government.

The chart below shows discretionary non-defense discretionary spending from 1995-2020 (in constant dollars). During that quarter-century, non-defense discretionary spending increased by 58%, but spending for the legislative branch increased only by 27%.

Discretionary Appropriations Spending from 1995-2020
Percentage Change in Non-defense appropriations discretionary spending 1995-2020
Continue reading “The Undermining of Congress”