TOP LINE

The 118th Congress is currently a consequences-free zone. Members kicked off committees for various antisemitic/conspiratorial/white supremacist statements are back on, while perhaps the most spectacular fabricator in modern congressional history got assignments like it was no big deal. As the Treasury tap dances to postpone default on the national debt, the instigators of the crisis skate via the “both sides“ news coverage that remains inexplicable and inescapable a decade after the last time this happened.

This week the Senate returns to Washington on Monday and the House is back in session starting Tuesday. The House floor calendar is bo-ring. If you ask me, they should publish each week’s schedule at a permanent URL and include that link in their newsletter (just like Hoyer did). Who knows about the Senate floor schedule, as the website is currently down for maintenance.

Swifties will get their day in the Senate Tuesday when the Judiciary Committee holds a hearing into the ticket sales monopoly. There’s no committee proceedings in the House because they’re not organized yet, and we only see announced Senate hearings in the Judiciary committee. The steering committees in both chambers still have more appointments to recommend to fill out the committees.

DEBT LIMIT

Rep. Don Bacon captured the current Beltway dynamics of the debt limit perfectly last week when he told Politico that the Biden Administration’s “initial comment of zero negotiations is a non-starter.” This little turn of doublespeak implies there are two legitimate sides to this crisis and that bipartisan negotiation is the solution. In reality, one side is currently refusing to legitimize what amounts to a hostage taking. In reality, the end of law last Congress had Republicans refusing to lift a single solitary finger to fix this — presumably that’s the counterparty? — but the “both sides” reflex of political reporting ensures that logic won’t get in the way of lazy political tropes beloved by editors.

Hearing his music all the way from Davos, Sen. Joe Manchin suggested that Congress should revive the bipartisan “supercommittee” of 2011 to examine trust fund solvency for several federal programs. Pardon me while I look for the airsickness bag. That effort, which predated the creation of the House Freedom Caucus by four years, surfaced an array of ideas for raising revenue and cutting spending but produced bubkis. Gornisht. Zilch.

Well, even worse than nothing: the supercommittee and subsequent sequester highlights a road that no sane person would ever go down again. Moreover, using the debt ceiling to play thermonuclear hot potato is a level of irresponsible that I lack the words to describe. Sen. Manchin proclaiming that the White House ultimately will have to negotiate its way out of this mess is oil magnate rich given how he and his Davos high-five partner kept us in it — and, given Sen. Sinema’s newly declared independent status, would have constituted a bipartisan agreement that met Sen. Manchin’s previous precondition for a deal.

Being locked into a bipolar narrative of political conflict subsumes the real damage being done to the institution of Congress and American democracy, to say nothing of the damage looming for the economy now that the default clock has started ticking. (When we talk about the economy, it should be understood to mean that nearly all of us are going to get squished when things go south.) The faction forcing the debt crisis is not calling for negotiation like Rep. Bacon: it’s making demands in a tripartite conflict between itself, Democrats, and Republicans. Both political parties are hostages, although one has Stockholm syndrome, and we just watched a few weeks ago as the Freedom Caucus-faction extracted concession after concession in a similar situation. Whatever the Biden Administration could offer would never be enough. But the Republican conference has to keep up the ruse that this is a legitimate and serious policy discussion that can be addressed through negotiation (i.e. one-sided concessions) because it’s what the null faction demands.

As economic foreshocks begin, those who realize that negotiations are actually rope-a-dope will pressure President Biden to take some kind of executive action. Some may call for him to declare unilaterally the illegitimacy of the debt limit. Arguing that two conflicting laws gives the president the option to choose which one to follow is a pathway to unfettered executive power. (That’s bad.) A more legally sound if fanciful-sounding idea would be to mint the trillion-dollar coin, which has the virtue of both solving the problem and being lawful. That approach makes the debt hawks scream because they don’t get to extract their pound of flesh — and also because it’s outside the normal discourse about how to resolve these problems. But, and I’m wincing as I write this, it likely will be the coin of the realm, or in this case, the coin that saves the realm.

So long as Congress is gridlocked — which is a metonym for the fact that it is the Freedom Caucus faction and their conservative Republican allies who view the debt ceiling as an opportunity to mug the Congress — public calls for Biden to act unilaterally (and in some instances extralegally) will grow. Such actions likely would save the global economy, but they reinforce the “Green Lantern” theory of executive power where only a president’s imagination and willpower prevents progress on governing priorities. In a Congress where a political minority holds what is, in effect, an insurmountable veto, people will look for a savior on a white horse, er, in a White House. This is understandable, but it’s a very dangerous game to play with executive branch power and it’s, in part, how we got here in the first place.

Continue reading “First Branch Forecast for January 23, 2023: In your debt” →

TOP LINE

Now that the House of Representatives officially is organized for the 118th Congress, it is clear that the Freedom Caucus faction played their third-party hold out strategy very well. In exchange for forming a governing coalition between themselves and the rest of the Republican conference, the FC faction received a very favorable rules package, placements on key committees, and increased power in the conference steering committee. As James Wallner and I wrote in The Hill last week, their efforts were an appropriate and instructive use of leverage by a faction to wrest back some power from the enormous legislative power of the contemporary Speakership.

Most significantly, three of the 14 Rules Committee slots will be filled by FC-faction members. Democrats, in the minority, get only four. Let’s pretend that the FC was an official third party: If we think about these slots in terms of proportional representation across the entire 435 (voting) Committee of the Whole, those three seats would roughly translate to a party with about 93 representatives in the House. The caucus has roughly 40 members.

Don’t get too excited. The House Rules Committee is far from a democracy, and the four Democratic members won’t win any votes. Those four seats translate to a party with 124 members; Democrats in actuality have 213. What happens if the three Freedom Caucus members join with the four Democrats and cast seven of the 14 votes? Well, you get out the popcorn because there’s bigger issues afoot.

Through the FC faction’s presence on the Rules Committee, the motion to recommit, individual consideration of appropriations bills, and manufactured debt ceiling crisis, FC members — indeed, any subset of the majority — now have many veto points in the House legislative and appropriations processes. It looks a lot more like where Rep. Chip Roy used to work: the United States Senate.

Continue reading “First Branch Forecast for January 17, 2023: Cooking with gas” →

TOP LINE

Even after months of foreshadowing, last week’s Speakership deliberations clearly defied the expectations of many Congress-watchers and even the members themselves. The first day of a new Congress has become so routine and performative over the decades that many people just assumed that, after some preliminary protestation and accommodation, Kevin McCarthy would automatically ascend to the Speakership and the 118th Congress would begin “on time.” Some members-elect brought their children Tuesday, only to have C-SPAN’s unencumbered cameras find them sitting, bored and glued to smartphones, waiting to witness the swearing-in. The family that remained during the week’s worth of votes saw their loved ones take the oath of office in the wee hours Saturday morning.

The language the chattering classes used to describe the series of Speaker votes revealed their flawed understanding of what was happening and illustrated their expectations about how the House works. The inconclusive Speaker-election votes were a sign of “dysfunction,” “crisis,” and “chaos,” a “circus,” a “rebellion.” It was assumed that in the interest of party unity — or out of fear of punishment — Republican members would go along to get along and submit ultimately to the strong Speaker system that has defined the House for decades. When that didn’t happen, some members of the pro-McCarthy faction started referring to the holdouts as “the Taliban.” Some in the McCarthy faction were so outraged that it almost came to blows. Eventually, McCarthy gave away more and more to the Freedom Caucus faction, which negotiated hard for procedural and positional power in return for bestowing the Speakership on McCarthy by voting “present.”

What we really witnessed last week was the coming of age of a proto-coalition system in the House. A group of members in the majority party acted like members of a small third party that refused to form a government until they were given a share of political power. That’s hardly anarchy: it was leveraging the one opportunity afforded factions in the House to maximize institutional power at the start of a new Congress. This has happened often in the House’s history. McCarthy’s personal desperation and a lack of alternatives, along with Democrats turning the screws to keep his agony visible, heightened that leverage considerably.

It shouldn’t have come as a surprise, as some Freedom Caucus-types have been talking in this way for months and working towards increasing procedural power for years. Conservative Partnership Institute president Ed Corrigan described this tripartite coalition directly in November at an event organized by Rep. Andy Biggs and attended by Gaetz and Rep. Victoria Spartz. (The Grid did a writeup of it last week as Biggs, et al. followed Corrigan’s tactical advice.) The same points were repeated by Corrigan at a panel discussion a week later, hosted by the Lincoln Network, in which I was a co-panelist and all of you were invited. Biggs distinguishes between the “Uniparty,” i.e., Republicans and Democrats who make up the status quo in his view, and conservative purists. He and his compatriots were thinking in European multi-party coalition terms.

What held the Freedom Caucus faction of the Republican party together was their desire for the federal government to shrink, both in size and impact. Because of the rightward drift of the party, nearly every Republican gives lip service to these goals: but the FC wants to go further than most to roll back the New Deal. (We note, however, that the result of political geography is that America’s policies already are significant to the right of what the media voter wants.) With Kevin McCarthy as minority leader, the 116th Congress authorized trillions of dollars in new spending to respond to the pandemic under a Republican president. The Freedom Caucus faction views all this as a disaster decades in the making.

Continue reading “First Branch Forecast for January 9, 2023: Rule of the Rules” →

TOP LINE

The end of this Congress feels like the run up before a high school graduation. Senior leaders are saying goodbye while the next crop waits their turn. Everyone’s rushing to turn in their remaining work, leading to sloppy mistakes. The turnover will lead to something new, but we’re not sure what.

This work week is the final one of the 117th Congress. The House will take up the omnibus spending bill — which it will see for the first time today — after agreeing to a short-term extension until December 23. The NDAA passed the Senate last Thursday, as did who-knows how many riders.

The January 6 Committee will hold its final public meeting on Monday and will vote on criminal referrals based on its findings. It will release its final report Wednesday. The Senate Rules Committee moved back its oversight hearing on the US Capitol Police to today. And it appears that Ways and Means had just scheduled a Tuesday hearing to discuss Trump’s tax returns.

NOT HOW IT’S SUPPOSED TO WORK

Like a student frantically finishing a term paper, congressional appropriators asked for an extension on the omnibus spending package last week after coming to a deal on a longer bill – it helps that they were asking themselves.

What’s striking about the deal announced by appropriators last week is who wasn’t involved: House Republicans. The adults in the room simply went ahead without them, knowing House GOP demands on social spending and Ukrainian aid would be unrealistic and counterproductive. Members’ posturing on picking funding fights in the next Congress likely made it more imperative to strike a long-term deal now.

Members with the ear of leadership are making or have just made one final run this week to insert last-minute provisions into the omnibus and NDAA while leadership plays abracadabra. As we’ve said before, this process is deeply dysfunctional for a representative body and is one of the worst consequences of the concentration of power. All sorts of things will be waived through in these bills because there isn’t enough time to stop and look.

Sometimes, good things move quickly or in unusual ways, like Rep. Zoe Lofgren’s resolution to update overtime regulations for House staff (more on that below). We’re certainly glad to see the Access to Congressionally Mandated Reports Act and Plum Act make it across the finish line. But sloppy and harmful work also gets through, like the unconstitutional judicial security bill that censors information about judges’ familial conflicts of interest from the internet while failing to touch the data brokers it ostensibly targets.

Senators, spooked enough by the antidemocratic tendencies of some House Republicans, apparently will tack on the Electoral Count Act to the Appropriations bill. Last week, Talking Points Memo reported 34 Republican members texted White House Chief of Staff Mark Meadows about ways to overturn the 2020 presidential election, including Rep. Ralph Norman’s call for Trump to declare “Marshall [sic] law.”

Continue reading “First Branch Forecast for December 19, 2022: Not O.K.?” →

TOP LINE

No, this is not the most wonderful time of the year for people who care about Congress. The twin must-pass bills that remain for this lame duck session – the NDAA and additional government funding – encapsulate the most dispiriting aspects of current congressional procedure and leadership. Tracking what gets thrown into the vat and what is held out of the pink slime of legislation that oozes onto the floor this week is icky business.

This week, Democrats in the House were planning to release a government funding bill a few days ahead of the Thursday deadline to keep the lights on — but they’ve put that on ice, citing progress in their negotiations this weekend. Their floor schedule is heavy on suspensions but nothing pops out. Senate Republicans sound disinclined to accept it, and the bill needs 60 votes so we’ll see if a short-term alternative emerges instead. The hitch is whether to keep parity between increases in defense and non-defense spending and how to accommodate spending on veterans’ health care.

The full Senate Rules Committee will hear testimony from US Capitol Police Chief Thomas Manger in an oversight hearing Tuesday in the Russell Building at 3 PM ET.

The Senate is expected to vote on a war powers resolution that directs the President to stop providing support to Saudi Arabia for its military intervention in Yemen absent congressional approval.

MAD SCRAMBLE

In principle, the NDAA would be the blueprint for arming a global superpower. It’s become so much more than that in the hands of modern House leadership, who determine what other pieces of legislation that would die on their own get to piggyback onto it. This year’s version arrived at more than 4,000 pages, including provisions never seen before. Once found by civil society or members, some disappear back into the ether.

Technology should provide a workaround to the “read the bill” mantra for a bill this size. The comparative print project the House Clerk has launched for congressional users at least in theory allows staff to track what is appearing and disappearing through different leadership drafts.

The NDAA (and to some extent the government funding omnibus) are tools for House leadership to maintain caucus discipline by creating an artificial pressurized environment and by tacking on bills to reward good team players and favored donors and interests. It forces members who want their provisions included or object to amendments conjured by leadership to play chicken with bringing the entire bill down. Progressives did so with Sen. Joe Manchin’s permitting reform proposal, for example. It’s a vote-free spectacle, not representative governance.

The Senate is far from blameless in this absurd practice as the preservation of the legislative filibuster and the control of precious floor time has made passage of small, single topic bills virtually impossible. Fixes that don’t make it through the sluice have to wait for next time.

Some good government reforms made it into in those 4,000 pages:

• The PLUM Act, which would require OPM to modernize its directory of senior federal officials
• The ACMRA, which establishes an online portal for congressionally mandated reports
• Counterintelligence assessment of foreign-owned spyware and prohibition of use by intelligence agencies
• The Financial Transparency Act, which would require consistently formatted data from all federal financial regulatory agencies
• Strengthen Inspector General independence and accountability
• America’s Taxpayers Act, which would require GAO to explain how much money the government would save if its recommendations were adopted by the federal government.

The version released last week also includes an unwelcome internet censorship provision that allows for the removal of information about federal judges, shielding them from oversight for ethical lapses. The ACLU says the provision “could impose unconstitutional restrictions on speech.” Organizations that conduct judicial oversight have expressed grave concerns that it will cause them and others to censor basic information about judges, such as their birthdays and where their spouses work. The bill also initially added a reference to Section 230 of the Communications Decency Act that would have held websites liable like Google for not removing such information, but that provision disappeared overnight.

(On the topic of judicial transparency, the House Judiciary Committee held a hearing on the SCERT Act, which would create a code of conduct for SCOTUS and require disclosure of dark money support or gifts to justices.)

It’s also notable that the NDAA did not include a repeal of the 2002 Authorization of the Use of Military Force. Nor does the bill include two anti-authoritarian measures. It did not take up blocking implementation of Schedule F, which President Trump proposed to use to fire federal civil servants en masse and shield policy roles from competitive hiring. The House also did not attach the John Lewis Voting Rights bill to the NDAA.

At this point in the lame duck session, Democrats have set at least one government finance trap for themselves. A short-term government spending bill creates a government shutdown opportunity for the hard right almost immediately into the new term. Without the time (and votes because of SineManchin) to pass debt limit expansion in reconciliation, the Republican hostage raid may hit before summer recess.

The Senate still has time to take up bills to make access to PACER free and establish a reporters’ shield law. Majority Leader Schumer simply needs to put them on the floor. CBO recently estimated that making PACER free through the Enacting the Open Courts Act would slightly reduce the federal deficit over 10 years.

An important institutional reform also remains: enacting new overtime rules for congressional staff. Demand Progress, the Congressional Progressive Staff Association, and the Congressional Workers Union last week reminded House and Senate leadership to pass resolutions adopting the Office of Congressional Workplace Rights’ suggestions for updating congressional workplace rules on overtime, which haven’t been revised since the 1990s. A majority of Hill staff work more than 50 hours a week, according to a CPSA survey. New regulations would pay non-managers time-and-a-half for time over 40 hours a week. Given their hostility to the unionization drive currently underway in member offices, the changeover to a Republican majority makes the issue urgent in the House.

Continue reading “First Branch Forecast for December 12, 2022: Twelve Squared” →

TOP LINE

Congress had some of its most substantive conversations about its rules in years last week. Although the results mostly fiddled around the edges of larger institutional problems, time and opportunity remain to continue the negotiations, at least in the House. The stasis within the Democratic caucus, however, was notable.

Meanwhile, things that need to be done — and done well — remain with little time to accomplish. Democrats continue to play small ball about the risk posed by the debt ceiling, while several House committees have weeks to sift through evidence of various Trump-related malfeasance.

This week, the lame duck session continues, with votes scheduled Tuesday onward in the House. Looking at the Weekly Leader, we see the NDAA, Respect for Marriage Act, a bunch of minor bills, and the reminder that “additional legislative items are possible.” Per Politico’s Olivia Beavers, Monday through Wednesday this week the House Republican Steering Committee will fill in committee chairs. We hear the House Democratic Caucus may continue to consider conference rules on Tuesday, including some that get at the distribution of power. The Georgia senatorial run-off is Dec 6, after which Republicans may become publicly serious about addressing the approps omnibus. The Senate floor schedule is unrevealing. Go here for the committee schedule.

TALKING ABOUT CHANGE

The process for establishing the rules of the House of Representatives is different this time. House Freedom Caucus members succeeded in forcing a conversation within the Republican conference, which continued last week in another round of closed-door meetings on member-proposed amendments to existing rules.

Freedom Caucus members did not secure their biggest objective, which was more member control of the Steering Committee through additional elected seats (although the House GOP does have new regional maps). They also failed to prevent the continued existence of earmarks, which most members see as a useful tool even if most of the gravy falls on appropriators. (There is a better way….) But HFC forced a serious and significant discussion within the conference about member power and leadership control. Such a discussion is healthy for the institution. It’s also one that will continue over the upcoming weeks and perhaps during the first meeting of the committee of the whole of the 118th Congress.

Democrats in both chambers, meanwhile, so far have chosen to freeze the status quo in place. After ratifying the generational shift in leadership, members of the House caucus are in the process of granting the Second Triumvirate the same ironclad control the last generation enjoyed. Accordingly, today’s rank-and-file and their successors may not get another chance to exercise power until another generation has passed. The pending transition will be about continuity rather than change and is a missed opportunity for a reform conversation like the one happening across the aisle. Of most significance, after a concerted leadership push, the caucus tabled Rep. Ed Case’s amendment to rebalance some of the power within the caucus through creating a more representative Steering and Policy Committee that has more member input. That measure could be brought up again on Tuesday, and other significant amendments have yet to be considered. (The concern here is not with the members of the Second Triumvirate, but with how broadly power is distributed.)

Senators, meanwhile, rejected Sen. Sheldon Whitehouse’s renewed effort to disallow top leadership from also holding A-level committee gavels. Although Whitehouse’s efforts might have been personally motivated, the principle of giving a few more Democratic senators an opportunity to lead is well taken. There is late word that the Senate Democratic Caucus will now begin to publish its caucus rules online, joining the other three party caucuses.

By the way, the fact that we only could learn about the outcomes of these party meetings through an amalgamation of reporters’ tweets and stories is frustrating. The parties should publish the proposed amendments, as well as the vote outcomes, because they are critical to understanding how the chambers will operate.

Also, to make your lives easier (and ours), we’re keeping track of proposed House Democratic and Republican amendments to their caucus rules, including the disposition of those amendments. This is hard to do because the information is all non-public, which is why we’ve been closely following the tweets and reporting of a handful of congressional reporters who have ferreted out some of the text and vote results. If we missed something or got something wrong, please let us know.

Continue reading “First Branch Forecast for December 5, 2022: The Second Triumvirate” →