The 118th House Rules Package Should Retain Fixes From the 116th and 117th Congresses

Written by Taylor J. Swift

The conservative House Freedom Caucus issued a 52-page guide to new GOP candidates last month on what they’ll face as freshman members, with recommendations for updating the rules for the chamber and for the party, and the conservative Lincoln Network just published their own recommendations for the rules and procedures the House should adopt at the start of the 118th Congress.

The Freedom Caucus’ guide is an excellent outline of what new members will expect and accurately summarizes the chamber’s power dynamics. It contains thoughtful recommendations for rule modernization, which is an opportunity for the incoming majority to control its flow of operations and distribute power. The Lincoln Network’s recommendations highlight a number of reforms to strengthen the people’s chamber. However, one Freedom Caucus proposal, to wipe clean the rules enacted by Democrats over the last four years, is misguided.

The following is a partial list of the House rules and standing orders, enacted over the last four years, that we believe a Republican majority should retain should they gain power. These nonpartisan rules improve the House’s operations and support a more transparent, efficient, ethical, and accountable legislative body. For a summary of the rules adopted over the last four years, see these resources for the 116th and 117th Congresses.

Committee Operations

Member Hearing Days: Each standing committee is required to hold a Member Day Hearing during the first session of Congress to hear testimony from any Member of the House on proposed legislation within its jurisdiction. The House Rules Committee was empowered to hold its Member day in the second session to receive testimony on proposed standing rules changes.

Amendment Availability: The 117th House Rules made amendments adopted by their committees publicly available within 24 hours by requiring all other amendments – which includes failed or withdrawn amendments – to be posted within 48 hours of their disposition or withdrawal. This requirement does not apply to amendments not offered.

Electronic Vote Availability: The 117th House Rules modernized the requirement for committees to make the results of record votes publicly available by removing the requirement that they be made available to the public for in-person inspection in committee offices. Committees will still be required to make the results of record votes publicly available electronically within 48 hours of the vote.

Electronic Filing of Reports and Electronic Signatures: 117th House Rules Subsection (l) authorizes electronic filing of committee reports, which was temporarily allowed by House Resolution 965 of the 116th, and allows electronic signatures to be used for signed views in committee reports and for select forms received by the Committee on Ethics. Reports received electronically will be processed as otherwise provided in rule XIII, and committees filing electronic reports should continue to consult with the Clerk regarding proper format and other administrative requirements.

Truth-In-Testimony Reform: The 117th House Rules amended the disclosure requirements for witnesses appearing in nongovernmental capacities by: (1) adding grants to the reporting requirement for foreign payments; (2) expanding the lookback period for reporting to 36 months; (3) requiring witnesses to disclose whether they are the fiduciary of any organization or entity with an interest in the subject matter of the hearing; and (4) requiring, to the extent practicable, the disclosures be made publicly available 24-hours prior to the witness’s appearance at a hearing. The subsection also updates the text of clause 2(g)(5) of rule XI for clarity. The House is also working to modernize its Truth-in-Testimony documents and to make the information they contain available online in a central database.

Remote Deliberations for Committees: House Committees are allowed to hold hearings and markups where some or all members participate remotely by videoconference. This allows for witnesses from all around the world to testify and for members who are not physically present to participate in the proceedings. This allows for the scheduling of proceedings when the House otherwise would not be in session; expands the times when less popular committees can hold their meetings so that members are more able to attend; and creates significantly more flexibility should an emergency arise.

Continue reading →

First Branch Forecast for November 7, 2022: The Longest Weekend

TOP LINE

The fallout from the attempted murder of Paul Pelosi reverberates as Americans go to the polls. Those charged with protecting Members of Congress have asked for even more money while the proximate cause of security failures — bad leadership, bad management, bad oversight — remain unaddressed. As some on the new right escalate and make light of political violence, its likelihood increases.

This week Americans elect a new Congress.

Staff pay. The House Chief Administrative Officer circulated a new analysis of pay for congressional staff, comparing average annual salary ranges for 2022 v. 2021 based on third-quarter pay rates. For the positions compared, the average salary increased by 23%, from $67,420 to $82,849. This significant increase reflects a tremendous House commitment to restore pay levels for staff to their 2010 levels, as they had been cut mercilessly in the intervening years. We also note that no staffer in a House personal office surveyed is paid below the floor of $45,000 annually, which was not true previously. The analysis only covers personal office staff and does not include committee or leadership positions. The details are here.

Mastodon. The great #TwitterRapture, or perhaps #ElonExit, is taking place, with Mastodon now hosting 4.5 million accounts and 1.3 million active users and growing at a fast pace. When will Members of Congress, committees, leadership, and non-partisan offices open up accounts? Will there be an official congressional “instance,” such as mastodon.congress.gov? So far the only congressional account we saw was for Alexandria Ocasio-Cortez, and that retweets her Twitter account. Know any congressional offices on Mastodon? Let us know here. The unofficial tally is here. I’m online here. Is this all a good idea? I’m old enough to have worked at the Sunlight Foundation when it ran a campaign called “Let Our Congress Tweet.” There’s definitely a lot of lessons learned. OTOH, at least one government has jumped in.

Down the line, Congress will reconvene on Nov. 14, with the Senate scheduled to take up the NDAA. House Republicans will hold conference rules and leadership elections through the week of the 14th. The House Modernization Committee will vote on its final set of recommendations Nov. 17. Democratic leadership elections look likely at the end of the month, or perhaps later.

Continue reading →

First Branch Forecast for Oct. 31, 2022: Improving Congressional Tech

Top Line

1/ Speaker Pelosi’s husband was violently assaulted in their San Francisco residence.

• At the time of writing, we do not know the motives of the assailant. However, it would not be surprising if the ultimate aim was to harm Speaker Pelosi. In this newsletter we have previously discussed the concept of stochastic terrorism, which is “the public demonization of a person or group resulting in the incitement of a violent act, which is statistically probable but whose specifics cannot be predicted.” We condemn all acts of violence, and incitement to violence, against elected officials and their families. We wish Paul Pelosi a speedy and full recovery.

• Political violence is sometimes used as a reason to overreach and curtail political speech. We acknowledge the importance of allowing for criticism of the policies advanced by a politician. Bad political actors have demonstrated a remarkable facility with the use of dog whistles, however. They generate veiled calls for or support of violence that increases the likelihood of violence in such a way as to create some doubt about what they are doing. The traditional media has largely been unable or unwilling to cover this appropriately, and partisan media and partisan actors have amplified these calls.

• We wonder about the role of the extraordinarily well-funded U.S. Capitol Police in this incident. It seems plausible that one of their most visible protectees was a target regardless of whether she was actually present. What does it say about security for other Members of Congress in their homes, workplaces, and elsewhere? What does it say about the USCP’s ability to detect, deter, and address threats? We stand by our concerns that structural problems with the leadership and oversight of the USCP create a fundamental risk to the safety of Congress, a problem that cannot be resolved by throwing money at the problem. We have yet to see any real reforms at the USCP or its oversight board.

• We realize that Congress’s most likely reaction will be to shovel more money at the Capitol Police. The overall funding level for the Legislative branch can’t handle these hundred-million-dollar annual increases for the USCP without undercutting the ability of the Legislative branch to function by constraining funds for all other purposes. (There’s a $100 million increase in the works when the delayed appropriations bill becomes law.) We’d suggest that some of the USCP’s funds start coming from another appropriations subcommittee, like Defense or CJS, because their work includes responding to terrorism and crime threats.

Continue reading →

First Branch Forecast for October 24, 2022: Adults in the Room

TOP LINE

Member and committee office staff on Capitol Hill work in an environment with very little incentive or opportunity for their employers to compensate them fairly for their abilities. Committee budgets are uncertain from term to term and Members pay staff out of a fixed allotment that has declined year-over-year until recently. The prestige of working for Congress – and for many staff, the promise of a much larger pay day in the private sector because of the experience – means that despite low pay, a steady stream of applicants is ready to fill any vacancies. Members, meanwhile, try to score small points with constituents by touting their frugality even as they undercut their policymaking and constituent service capabilities.

As a result, Congressional staff remain significantly underpaid while being asked to live in an expensive municipal area. The median House staffer salary is $59,000, more than $5,000 lower than the median private sector salary nationally. It’s the equivalent of a mid-grade GS-7 position in the executive branch in the Washington metropolitan area. The starting salary for a US Capitol Police officer is nearly $74,000 – only requires a high school diploma – and they’re eligible for a signing bonus.

One major difference for the Capitol Police is they have a union, which advocates for greater funding and benefits for the agency. (Most non-political congressional employees are on the Congressional equivalent of the GS scale.) Unionization levels the playing field with employers significantly by making workers part of the management discussion. Across the American labor market, nonunion workers make 83 percent of what unionized ones do.

Unionization, therefore, is one of the few forces that can push Congress as a whole toward pay equity with the private sector and executive branch by addressing the underlying structural problems. It also allows employees to turn improved resources at the office level into wins for employees. Within the nascent staffer organizing movement, we saw the first green shoot of impact last week when staff in Rep. Andy Levin’s office tentatively agreed to the first union contract in a Member office. The new contract raises median junior staffer pay to $76,000, or the equivalent of a bump to GS-9, and gives everyone a $10,000 raise. The figure well exceeds the $45,000 minimum salary set by Speaker Nancy Pelosi in May that came into effect in September. It also surpasses the $52,000 salary minimum Rep. Alexandria Ocasio-Cortez voluntarily set when she came to office in 2019, which was long before the MRA bump was passed into law — a bump AOC advocated for.

Even though Rep. Levin will be leaving Congress, the successful negotiation of the contract is an important demonstration of how Member offices can navigate this process going forward and negates the argument that the unionization process inherently will be contentious. Setting a median salary well ahead of the current minimum, meanwhile, creates a solid target for other offices to shoot for and provides appropriators a rough idea of how much further to expand the MRA.

Because of Members’ preference to handle their own political staff hiring, it will take much more time for unionization to impact salaries across the House. For now, the half-dozen Democratic offices that have started unionization can use Levin’s office as a benchmark. Eventually, disparities in pay will push Democratic offices to close pay gaps to remain desirable workplaces. Perhaps the comparison will prod Republican offices to keep up as well. If Republican members hold out both on unionization and on wage increases, over the years the Hill may evolve into a workplace where tens of thousands of dollars separate staffers doing the same work in one party than the other.

Continue reading →

Statement on Senate Judiciary Subcmte Hearing: “Office of Legal Counsel’s Role in Shaping Executive Privilege Doctrine”

Today at 2 PM ET, the Senate Judiciary subcommittee is holding a hearing entitled “The Office of Legal Counsel’s Role in Shaping Executive Privilege Doctrine” with OLC’s Assistant Attorney General Christopher Schroeder as the sole witness.

Given that secrecy is an all-too-common aspect of the OLC’s work, and that its secrecy has at times undermined the rule of law and the operations of that office, we will be watching for any insights about how the subcmte would promote disclosure of OLC opinions as an antidote. Congress should act now to lock-in transparency of OLC opinions.

This position in favor of transparency was embraced by AAG Schroeder before he was appointed and confirmed to his current role, as well as by a number of attorneys who formerly worked in the Office of Legal Counsel. They have pointed to abuses of the OLC process by that office’s issuing opinions that “arguably distort the separation of powers by brooking no recognition for Congress’s prerogatives as a co-equal branch, in high-visibility disputes with Congress over politically charged legal questions.”

Daniel Schuman, policy director at Demand Progress Education Fund, said: “OLC is a major mechanism by which Congress’s powers are diluted, limited, and ignored. Its opinions should be proactively disclosed to protect our democracy and the rule of law. There is no reason for Congress to wait to move on any of the three off-the-shelf ready-to-go OLC transparency reforms that have bipartisan coalition support.”

Those reforms include:

authorizing legislation (Demanding Oversight and Justification Over Legal Conclusions Transparency Act or the DOJ OLC Transparency Act, S. 3858, and its companion House bill, the SUNLIGHT Act of 2022, H.R. 7619.
the Duckworth amendment to the FY2023 NDAA (S.Amdt. 6246 to H.R. 7900);
the directive in the appropriations committee report (H. Rept. 117-395, p. 59) accompanying the House’s FY 2023 appropriations bill for the DOJ.

And of course, Schroeder could proactively update the OLC’s “Best Practices” memorandum to instate proactive disclosure of OLC opinions without waiting for Congressional direction. Let’s not forget that in 2004, he was one of 18 former senior DOJ officials who signed a document entitled Principles to Guide the Office of Legal Counsel that specifically said: “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.”

Also, don’t miss the American Constitution Society’s Statement on OLC opinions, to which many former OLC attorneys contributed, that identifies many problems with OLC’s non-transparency practices — including harm to the office itself — and recommends “the Office should demonstrate its commitment to ensuring executive branch accountability through transparency by articulating a strong presumption in favor of publishing its final formal opinions.”

When Schroeder was a nominee in 2021, Demand Progress led a bipartisan coalition including Americans for Prosperity, the National Taxpayers Union, and the Federation of American Scientists that called for the OLC to adopt a policy of proactively disclosing OLC opinions. We’ve also testified to the Senate requesting OLC transparency language be included in the CJS Approps subcommittee bill — such language was included in the House; and the pending Duckworth-Leahy DOJ OLC Transparency Act.

Today’s hearing is described as focusing on the Executive branch’s views on the executive privilege doctrine, and is reportedly a follow-up to the previous executive privilege hearing in August 2021, during which several witnesses pointed to the OLC as the primary driver of executive privilege doctrine in the Executive branch and identified OLC as partly responsible for the increasingly aggressive legal positions the Executive branch has taken to thwart Congressional oversight in recent years.

First Branch Forecast for October 17, 2022: Looking Ahead

TOP LINE

Abby Livingston has had enough. After carving out a successful career as a Capitol Hill journalist – becoming a one-woman DC bureau for the nonprofit Texas Tribune – she quit. The trigger, she shared last week, was realizing a corridor in the Capitol that had felt like the safest place in the world to her 15 years earlier had been the same spot where January 6 insurrectionists mercilessly beat Capitol Police officers. Even though she wasn’t there that day because of the pandemic, the ghosts of the mob were everywhere. Meanwhile, Members of Congress reinforced the mob’s message or focused on becoming internet famous.

Livingston didn’t go into Hill journalism to become internet famous: she did it because she found Congress to be a challenging puzzle she wanted to understand. We certainly can relate to that. If you’re reading this newsletter, you probably do, too. When word of her resignation spread, Livingston said that her fellow Hill rat journalists and staffers shared their own “private stress of finding their own paths through whatever it is this country is going through.”

Such folks, she writes, “came to Washington out of patriotism and wanted to devote whatever God-given gifts they had to the country’s business. They don’t make the big salaries or receive the kinds of validation that make the terrible days manageable. And the fact that so many of them are at the end of their rope should worry every American about what comes next.”

This feeling of exhaustion within the institution has bubbled for years, rising even to touch a Speaker of the House who quit Congress entirely rather than deal with ideologues in his own party one more time. (That former Speaker, it should be noted, first came to Congress at the head of a wave of bomb throwers who thought Reagan-style conservatism wasn’t ideologically pure or combative enough.) But we worry at the close of this Congress that what will come next will be a further exodus of people attached to the institution for all the right reasons who are sick of the bullying and the possibility of violence and are tired of political theater designed to extract one more dollar out of a MAGA constituency living in a closed feedback loop of their own fears and desires.

Continue reading →

The Office of Congressional Workplace Rights Updates its Overtime Regulations, but Congress Must Approve the Changes

On September 28, 2022, the Office of Congressional Workplace Rights (OCWR) announced its Board of Directors voted to update regulations implementing the overtime provisions of the Fair Labor Standards Act (FLSA). The OCWR Board of Directors also called on Congress to approve the proposed changes in the Congressional Record.

The current FLSA regulations that apply to Congress were issued by the Office of Compliance (the previous name of the OCWR) back in 1996. In its recent press release, the OCWR said the 1996 regulations are “woefully outdated” and the new regulations will modernize the overtime provisions to bring Legislative branch employees’ overtime pay to parity with the Executive branch and the private sector.

The updated proposed regulations are here, and the current regulations are available here.

In March 2021, the OCWR Board of Directors issued its Section 102(b) report for the 117th Congress. The reports provides several recommendations that have not been implemented within the Legislative branch, as well as additional recommendations to amend the CAA to increase transparency and workforce protections. Some of the recommendations include:

Providing general whistleblower protections and anti-retaliation measures and making additional OSHA retaliation provisions applicable to the Legislative branch.
Providing subpoena authority to OCWR to conduct inspections and investigations into OSHA violations.
Prohibiting Legislative branch offices from making adverse employment decisions on the basis of an employee’s wage garnishment or involvement in bankruptcy proceedings.
Bolstering the CAA’s recordkeeping requirements.

In August 2022, Delegate Eleanor Holmes Norton introduced legislation, the Congress Leads by Example Act of 2022 (H.R. 8743), that would put into effect recommendations from the Office of Congressional Workplace Rights. Del. Norton has introduced a version of this bill every Congress since 2011.

Congress should look to pass H.R. 8742 and the updated OCWR regulations during the lame duck period.

First Branch Forecast for September 26, 2022: Rules Power Play

TOP LINE

Where will power reside in the next Congress? And what systems of control will delegate and manage that power? These are core questions to understanding the legislative branch at any time, of course. But the answers to those questions may be shifting, perhaps faster than anticipated and in ways that fundamentally change our current politics.

This week the House and Senate observe Rosh Hashanah Monday. The House returns Wednesday night for votes the rest of the week, the most pressing being a stopgap funding bill to carry the Federal government beyond September. The body also may consider revisions to the STOCK Act and we spy a bill changing the GPO Director’s service to 10-year renewal terms. The Senate returns on Tuesday.

In committee, the Senate Rules and Administration Committee will markup the Electoral Count Act (S.4573) on Tuesday. Senate HSGAC will meet on Wednesday to vote on the nomination of Colleen Shogan to be Archivist of the United States and a bill amending the Lobbying Disclosure Act regarding exemptions under FARA.

The House January 6th Committee will hold a public hearing on Wednesday at 1:00 PM.

Down the line, the Senate is still on track to be in session the first two weeks of October, with authorizing the NDAA looming.

Continue reading →