Forecast for October 26, 2020

THE TOP LINE

Pundits, prognosticators, and pols are starting to talk openly about the interregnum between the election and the start of the 117th Congress… and what comes afterward. This NYT opinion piece, for example, outlines a pro-democracy agenda to “end minority rule” and push back on anti-democratic practices undertaken by the Trump administration and its congressional allies. On their checklist: protecting and supporting the right to vote, reducing gerrymandering, eliminating the filibuster, granting DC and PR statehood, and ending the electoral college. On ours: restoring funding to Congress and reinvigorating its powers.

We see a bumpy road ahead with ongoing efforts by the Trump administration and its allies to suppress and undermine the votebias the censusdeny election results, and unleash vigilante violence. But over the next two months there are important questions for our divided Congress, including how to address a possible government shutdown (with the CR ending in early December) and whether there will be a COVID relief bill. The US just reported the highest number of COVID infections in a single day. Had the US handled the pandemic in a similar fashion to South Korea, for example, only 2,800 people would have died thus far. The US is on track for 400,000 deaths in aggregate by the start of February, although the number of anticipated deaths would decrease by 100,000 if everyone wore masks. On the economic front, Sen. McConnell made clear he didn’t want a COVID relief bill before the election because, we think, it would force his senators to take electorally-sensitive votes and could push back the Barrett nomination; we wonder about the human toll of the delay.

Speaking of Judge Barrett, the Senate Judiciary Committee ignored its own rule (Rule III(1)) that requires two members of the minority party to be present to constitute a quorum for transacting business, and Sen. Schumer’s point of order that would have protected the rights of Committee members was voted down on the Senate floor 53-44. We’ve discussed previously the vast irregularities of the Senate proceedings concerning Judge Barrett, which Senate Democrats have highlighted by forcing the Senate majority to work its will without the usual consent granted by the minority. For all intents and purposes, Sen. McConnell has transformed the Senate into a majoritarian institution. Should Democrats take control of the Senate, the big question is whether members of that party will stay as united on protecting their agenda as Sen. McConnell has gotten his members to stay united in protecting his.

How will we know if the Dems are serious? I can’t say for sure, but an early sign will be whether Sen. Feinstein returns as chair of the Judiciary Committee. The alignment of capable committee chairs to Democratic priorities is a significant indicator of their seriousness to move forward an agenda — which will depend on how they structure their (still secret) caucus rules.

Let’s give McConnell the last word on this today. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”

Continue reading “Forecast for October 26, 2020”

Upcoming Webinar: Lawmaking Around the World in the Time of COVID-19

The COVID-19 pandemic has presented legislative challenges unlike anything modern governments have ever seen. In response to COVID-19, legislatures across the world have adapted to remain connected to one another and their constituents, pass emergency legislation to provide relief, and oversee the executive to ensure that funds and programs are effectively delivered.

On Thursday at 12:30 pm ET, the International Conference on Legislation and Law Reform (iLegis), in partnership with the University of Pennsylvania Carey Law School, is hosting a free webinar with legislative experts to discuss the challenges faced by legislatures around the world. Panelists include Dr. Ronan Cormacain (British Institute of International and Comparative Law), Dr. Ittai Bar-Siman-Tov (Bar Ilan University), and Mr. Noah Wofsy (U.S. House of Representatives). It will be moderated by Tobias Dorsey (White House Office of Administration). The webinar will include a Q&A with participants.

RSVP to the free webinar here.

Forecast for October 19, 2020

THE TOP LINE

Thursday. The Senate Judiciary Committee will hold a meeting to consider the Supreme Court nomination of Amy Coney Barret on Thursday. In addition, there’s a growing effort to push Sen. Feinstein out as the Committee’s Democratic leader after she poorly handled the proceedings. I have a lot to say on what’s happened, so please read Barrett, Graham, Feinstein, and de Tocqueville.

COVID deal fake-out. The negotiations are just for show and the upcoming Senate vote is cynical. Speaker Pelosi missed her chance back in the spring to insist on different priorities, and everything has ineluctably followed from that.

House Dem leadership election dates are set for November 18th and 19th, the first week the House comes back in session after the election, with votes for contested committee chairs on the 30th. (Anyone know the dates for the Senate or House Rs?)

House Rules. We hosted a webinar on how the House of Representatives will consider updating its rules and some of the ideas under consideration. Check out the video and the slides from the presentation. We summarized the proposals put forward by Members of Congress before the House Rules committee to modernize the House rules. Here are our ideas.

Party rules. After the election, the parties will hold elections and transact a lot of other business. House DemocratsHouse Republicans, and Senate Republicans now post their party rules; Senate Dems seemingly do not. We ran down (as far as we could) who gets to appoint committee members, i.e., those who are on the House Democratic Steering Committee and Republican Steering Committee, although we don’t have the full list. We don’t know who serves in that capacity in the Senate. And we had no luck at all in obtaining the rules of procedure for the House Democratic Steering and Policy Committee. More on the chair races below.

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Forecast for October 12, 2020

Welcome to a shorter-than-normal First Branch Forecast. You might notice that we get more political than usual at parts of this week’s newsletter. Our focus is on a strong and capable legislative branch, and I can’t think of a more honest way to present the material. I hope it still provides useful insights.

THE TOP LINE
The Senate Judiciary Committee holds the first day of its norm-defying SCOTUS confirmation hearing for Judge Barrett this morning. How might it play out? We hosted a discussion late last week with experts on Senate procedure that you can watch here.

No COVID relief. Pres. Trump now says he wants a relief bill coming in above $2.2T while Senate Republicans are below $1T. What this means is that Pres. Trump wants to campaign on non-existent COVID relief (to rally the stock market) and Senate R’s are leery about getting primaried in 2022 for supporting the measure. This might be the start of the post-Trump era in the Senate (but not necessarily post-Trumpism).

Wait, what? Yeah, certain Senate Republicans are gingerly putting distance between themselves and the president, and we can all speculate why. My cynical view is that the absence of a significant COVID-relief bill; the failure to advance approps, the upcoming CR fight, and possible government shut-down; and a rushed effort to remake the SCOTUS are all tacit recognition by Senate R leadership of a likely Biden administration and Democratic Congress. In short, I think they are setting up time bombs to blow up the transition and sink the incoming administration.

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The Digital File Cabinet: House and Senate File Ethics Disclosures

Members of Congress in the House and Senate, candidates for federal office, senior congressional staff, nominees for executive branch positions, Cabinet members, the president and vice president and Supreme Court justices are required by the Ethics in Government Act of 1978 to file annual reports disclosing their personal finances. Compliance and enforcement of this requirement is overseen by the congressional ethics committees, the ethics offices of government agencies and, in the case of executive branch officials, the U.S. Office of Government Ethics.

These disclosures include financial forms, gift and travel filings, post-employment lobbying restrictions, and more. It’s a lot of disclosure information, and oftentimes, some disclosures must be filed in person rather than online. 

The following outlines the major types of information that must be reported on personal ethics disclosures, as well as if the information is publicly available online, in person, or both.

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The Recap: Library of Congress Virtual Public Forum

On September 10, 2020, the Library of Congress held a Virtual Public Forum on the Library’s role in providing access to legislative information. The forum was held at the direction of the House Committee on Appropriations pursuant to its report accompanying the FY 2020 Legislative Branch Appropriations Bill. Per the legislative language, there will be another forum scheduled prior to October 2021. There was widespread interest in the topic: according to the Library, several hundred people registered for the event. 

Prior to the forum, the Congressional Data Coalition and others sent a report containing more than two dozen recommendations concerning the Library of Congress’ legislative information services. They fell into five conceptual groupings: (1) Publish Information As Data; (2) Put the Legislative Process in Context; (3) Integrate Information from Multiple Sources; (4) Publish Archival Information; (5) Collaborate with the Public. 

The following provides a recap of the three-hour proceedings. The Library indicated it will post video snippets of the conversation.

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Select Recommendations for Updating the House Rules 117th Congress

Introduction

Demand Progress released 129 recommended updates to the Rules of the House of Representatives and separate orders the House should adopt for the 117th Congress as part of an August 20, 2020 report. The report is the culmination of months of work, reflects significant engagement with experts on Congress, and addresses ten major thematic areas. 

We recognize the volume of recommendations in the full report can be overwhelming, so the following document highlights 13 reforms that the House should consider. We chose these particular reform recommendations based on how feasible they are to implement, the extent to which they would strengthen the House of Representatives, their political viability, and their overall significance to Congressional operations.

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September Update: What Items are Due in the Modernization Committee Resolution

In early March, the House passed H.Res 756, adopting modernization recommendations of the Select Committee on the Modernization of Congress. The resolution included 29 recommendations that were unanimously reported by the Fix Congress Committee last year. The resolution calls on legislative support offices to start a number of projects and report back on how to implement others. 

In July, the Committee on House Administration released a series of congressional reports that were due in H.Res 756. We continue to catalogue the projects and their due dates into a public spreadsheet, and have them broken down by items. 

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House Rules: How Committees Operate

Each House committee has rules that dictate how the committee will function. These rules govern how many members must be present to take an action (i.e., quorum requirements), subpoenas, and other actions. The committees are (theoretically) the workhorses of Congress — legislation, reports, budgets, appropriations, and oversight all originate in committees. 

Committee rules exist under the umbrella of the rules that govern the entire House of Representatives. House and committee rules change every two years as the “new” House takes office after elections. The Congressional Research Service notes: “One of the majority party’s prerogatives is writing House rules and using its numbers to effect the chamber’s rules on the day a new House convenes.” 

That CRS report provides an overview of House rule changes from 2007 to 2017. CRS also provides a survey of House and Senate subpoena requirements through 2018. Finally, a CRS report describes rule changes affecting committee procedures in the current 116th Congress. 

Current committee rules are compiled in this 400 page document. Here are some highlights:

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What’s the Difference? Senate Committee Quorum Rules and Procedures

Despite the longstanding warnings from the Capitol attending physician and D.C. health official extending the stay-at-home order from May 15 to June 8, the Senate chose to return to Washington DC on May 4 for regular business. This includes voting on voting on nominations on the Senate floor as well as holding various committee proceedings.

But a majority of the committee proceedings have been different since the Senate has returned, with senators often choosing to appear via video conference to adhere to social distancing guidelines. Earlier this year, the Senate HELP Committee hosted a proceeding that included the chairman, the ranking member, and all four witnesses all participating via video conference. 

Given the circumstances, these modified proceedings had us thinking: What are the quorum requirements of each committee and what could potentially need to be changed if virtual proceedings are fully implemented?

Senate Rule XXVI establishes specific requirements for certain Senate committee procedures. In addition, each Senate committee is required to adopt rules to govern its own proceedings. These rules may “not be inconsistent with the Rules of the Senate,” but committees are allowed some flexibility to establish rules tailored to how certain activities can be conducted, which can result in significant variation in the way each committee operates. 

Given the changing circumstances of committee proceedings, we read each Senate committee’s rules and procedures to find trends, gaps, and unusual practices. Our complete spreadsheet on the House and Senate committee rules breakdown can be found here and is embedded below. 

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