TOP LINE

The next two months will be a legislative train wreck. On deck are the FY 2021 spending bills, COVID relief, the NDAA, and a ton of pent-up legislation. Notably, Republican Senators finally released draft text for the FY 2021 spending bills with less than a month until a shutdown. In addition, new Members are in the middle of orientation, Senators just voted on leadership rosters and House Dems will be voting remotely on theirs, disputed Committee Chairs and party rules will be decided in short order, and on the horizon are a new House rules package and legislative planning for the 117th Congress… assuming any legislation moves.

Well, that’s settled. President Trump backhandedly recognized Pres. Biden’s election in a tweet this weekend that simultaneously falsely contested the election results as a “rigged.” He reversed himself in a subsequent tweet. Elections rumble on in Georgia while the incoming Biden administration is blocked from engaging with the agencies and getting classified briefings; also congressional Republican leadership still won’t publicly acknowledge Pres.-elect Biden.

Amid the COVID tsunami, the House Admin Committee certified the existence of secure tech tool for remote voting; the next step is the House Rules Committee promulgating regulations. The report is worth a read: it acknowledged problems with proxy voting; outlined steps the House took to support electronic processes; and covered the tremendous amount of work that’s happening remotely. It outlines a welcome process change: public reporting of floor votes in real time. Speaker Pelosi has not been a huge fan of remote voting, but maybe the increasing tempo required for legislating and the metastasizing pandemic will change her mind. We’ve been all over this issue: check out our resources page on Continuity of Congress and our many reports. In the meantime, the emergency proxy voting period has been extended through the end of the year.

Dinner theater. I probably shouldn’t highlight this, but House leadership had planned a nice dinner for new Members in Statuary Hall before receiving blowback because having Members eating together inside is not only poorly advised, it’s bad messaging. Please stay safe, everyone.

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Congratulations on making it through Election Week. We’re going to walk through what to expect during the interregnum and beyond, but first, if you’re new to our little newsletter or are reading a forwarded email, why not subscribe?

THE TOP LINE

In an unusual election cycle, President-elect Biden and Vice President-elect Harris have yet to be acknowledged as the winners of the presidential race by congressional Republican leaders (e.g. Sen. McConnell and Rep. McCarthy) amid Pres. Trump’s intentionally false claims of voter fraud and that he won the election — and Pres. Trump’s long standing unwillingness to commit to a peaceful transfer of power. Somehow Democrats appear to have lost seats (largely more conservative Democrats) in the House despite massive fundraising and winning the presidential tally by 4 million votes; Dems also managed to narrow control in the Senate without taking over (with two races — in Georgia! — outstanding).

But you know all this. The apparent Democratic failure to take control of the Senate is unusual in historical terms, as an incoming president usually has a majority. While some say Senate Republicans will largely acquiesce to President-elect Biden on his nominees in light of a long history of Senate deference, others argue that Biden will need to pick folks who meet Republican litmus tests and should narrow his vision accordingly. There’s a third option: Biden can use recess appointments and the Vacancy Act to circumvent a Senate buzzsaw. With our majoritarian Senate, option 3 is the path of least resistance, although it reinforces historic trends of undermining Congress’s powers.

But that’s a fight for January 20th and there’s a lot that must happen in the next 72 days. There’s new member orientation, leadership elections, committee assignments, appropriations expiring on December 11th, a possible COVID economic relief bill, the NDAA, dozens of bills that are ready to become laws, and the adoption of House rules. Oh, and Congress has to certify the election results. LOL.

THE TOP LINE

With so much attention on what will happen when voting wraps up tomorrow, our little newsletter will stay focused on what comes next. (But we will cover implications for Congress if, as Axios suggests is already in the works, Pres. Trump prematurely claims victory and tries to undermine vote counting.)

Money problems. Sen. McConnell said there won’t be a COVID deal during the lame duck, which comes after he told the White House he wouldn’t support a deal before the election. He’s likely protecting his members from taking tough votes that could hurt them in 2022 and trying to set up the next administration for failure. None of this bodes well for when the CR ends on December 11th. What will Sen. McConnell be focused on instead… do you have to ask?

Musical chairs. AFAICT, leadership races and chair elections are set for November. House Dems will hold caucus elections on Nov. 18-19, with contested committee races on Nov. 30. We don’t know the timing for everyone else, but we expect our journalist friends to cover that shortly in their curtain-raisers.

Fixing Congress. House Admin published a handful of Clerk and CAO reports on efforts to modernize the House. More below. Here are our ideas for fixing the House and Senate.

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 vote, bias the census, deny 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.”

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 Democrats, House 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.

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.