The Top Line

Matt Lira, who held a wide variety of technology-related posts in Congress, recently spoke about how to modernize Congress – especially congressional technology – in a wide-ranging interview in Statecraft. Matt was around during the heady days when Reps. Darrell Issa, Steny Hoyer, Eric Cantor, Mike Honda, Nancy Pelosi, and others were pushing forward innovation on Congressional technology.

Anyone remember the 2007 Open House Project report, the 8 principles of open government data, or the recommendations to the bulk data task force? There’s a long, largely untold story of the collaborative effort among congressional political staff, non-political staff, and civil society coalescing around the start of the Obama administration that brought tremendous energy to modernizing legislative branch technology. One focus was improving transparency, but another was to save staff from the drudgery of aspects of their work so they could serve a higher, democracy-supporting function. Let me quote Matt on this point:

Continue reading “FBF: Hacking Congress, but in a good way (8/19/2024)” →

The Top Line

From our shameless self-promotion division, Roll Call was kind enough to profile me this past Tuesday.

Do you support democracy? I mean, do you work at a foundation or are a high-net worth individual and want to see our political system work better? If so, the folks at Democracy Fund Voice have published a blogpost and white paper that outlines their successes and lessons learned in supporting congressional capacity and congressional reform work. I had the pleasure of working with Democracy Fund Voice and Democracy Fund for many years and their support  and insight was essential to my success.

Congress is out and it’s my suspicion that news from Congress may slow down. While the press chases the campaign, in the background are important efforts to resolve the differences in the Appropriations and NDAA bills for passage in December, hammering out a Continuing Resolution to keep the government open, jockeying for positions on committees as members retire – and the work to update the rules for the House, the Senate, and the parties inside them. The rules in particular have long been an interest of mine – process guides the results – and the August recess is the unofficial kick-off for a lot of this work. Stay tuned.

Know a technologist who should work in Congress? The TechCongress fellowship has applications open through August 7th for their January cohort. Mid-career fellows receive a $93,000/year stipend and early-career fellows receive a $70,000 annual-equivalent stipend.

Continue reading “FBF: Congress is OOO but this week’s Congress news is in your inbox (8/4/24)” →

Good morning and happy belated 4th of July! Did you miss receiving the First Branch Forecast? Well, we’re back and at our new home at the American Governance Institute.

It seems a few things happened while we were on hiatus. As usual, we’re going to stay focused on building a strong Congress, an accountable Executive branch, and a durable democracy.

Today’s issue is abbreviated, so let me name-check:

• The Supreme Court’s striking down of Chevron review, which is more about transferring power to the federal courts than to Congress. Everyone seems to want to do Congress’s job, which is reason #1 why Congress should act to strengthen itself.
• The Supreme Court’s creation of presidential immunity for official actions, which allows a president to commit unlawful acts without criminal accountability. Surely this won’t potentially create problems should a certain ex-president return to office.
• President Biden’s disastrous debate performance raised big questions about his competency, implicating the 25th Amendment, the ability of the press to learn about a president’s health and to accurately report that information, and what role (if any) there is for members of Congress in pushing out an incumbent. I think we’re about to break another precedent, folks.
• Several criminal and ethics proceedings against members, including Rep. Cuellar and Sen. Menendez.
• Did you think this would be the Congress where we saw an attempt to revive inherent contempt? There’s nothing inherently wrong with it, with some civil society groups and members pushing for a fix in the last Congress.
• Oh, and that funny Supreme Court is making enforcement of rules by agencies much harder.

Since this newsletter is coming to you from a new email address – firstbranch@americalabs.org –  please be sure to add it to your address book and forward it to anyone who might be interested. (They can subscribe here.) You can always email me directly at daniel@americalabs.org.

Continue reading “FBF: We’re back! Week of July 8, 2024” →

A PROGRAMMING NOTE

This will be the last full issue of the First Branch Forecast for a few weeks. Watch for an email from us from a new email address, most likely in November. More to come.

TOP LINE

As soon as it was restored in January’s rules package, the motion to vacate the chair became a Chekhov’s gun in the House. It was going to be fired by the hardline faction at some point. It might have blown up in their hands. But it didn’t, and the House enters the new week with the unprecedented need to elect a new Speaker.

Nobody knows how long that process will take or what the outcome will be. We do know that Speaker Emeritus Kevin McCarthy lost his gavel for about a month-and-a-half extension of government funding, reauthorization of the FAA, and a new submarine. By the time the new Speaker is selected — assuming one is selected — we may be in the midst of another funding crisis. Republicans seem collectively adamant to refuse to recognize the compromise McCarthy negotiated and reneged on for FY 2024 funding levels with the White House and Senate. Default on the national debt isn’t dead and buried, either.

If you’ve been reading this newsletter since last autumn, you know we’ve thought this Congress was likely to be a pivotal one in terms of leadership control and institutional organization in the House. A small faction situated itself to direct the governing coalition of which it is a part. It was quite explicit in that goal. It now has shackled the Speaker with the chains of his own partisanship.

Unlike in past instances, Democratic leadership gave no promises of riding to his rescue in a spirit of institutional patrician obligation. The old order, where a handful of people determined what the House did every year, has buckled. A transition to something less centralized, where power is better distributed, could have been managed — we’ve been sharing ideas for doing so for almost a year. Successors within the old order chose not to. Whatever emerges now will be influenced by a collective sense of grievance and rancor for the rest of this Congress and beyond.

This week the House was supposed to begin considering the first set of funding bills on the floor, including Leg Branch. Now we wait. On the floor: your guess is as good as ours. Expect last-minute notices and lots of caucusing. The Senate is out until next week.

House Republicans are planning to hold a members-only discussion Monday. Perhaps they will see discussion of changes to the conference and House Rules. Tuesday evening, House Republicans will hold a forum with Republican candidates for Speaker. On Wednesday, the Republican conference will hold its elections for Speaker. We have not seen reporting on when the whole House vote might or what it might vote on. We suspect that all of this is in flux.

Read more: First Branch Forecast for October 9, 2023: Opportunity in Crisis

THE OLD GUARD

Something struck us watching Rep. McCarthy’s post-defenestration press conference: a reference he made to Nancy Pelosi, who wasn’t even in Washington at the time. McCarthy said that Pelosi had counseled him to accept a motion to vacate as part of the House Rules package because she assured him Democrats would “back you up.” He said she had made the same offer to former Republican Speakers John Boehner and Paul Ryan.

We were initially skeptical, so we looked back to when Boehner stared down the same motion to vacate threat and decided simply to leave. Pelosi talked openly to the press in 2017 about talking to her friends in GOP leadership and sharing a plan to have Democrats save Boehner if it came to that to “protect the institution.” She added, “we would not let a Speaker be overthrown.”

But the Speaker isn’t a cousin running a continental monarchy who needs saving from an uprising. Indeed, there’s something unseemly about the House’s partisan royalty uniting to protect each other against uprisings from the commoners. Nothing entitles or requires the Speaker to be the living embodiment of the stability and health of “the institution.” Indeed, as Daniel has sketched out, power in the House over its history has been distributed to many different types of institutional entities, from czar-like Speakers to the Rules Committee, standing committees and occasionally, members leveraging veto points in the rules.

Our current system of Speaker supremacy actually is the consequence of reformers trying to solve a different problem that hamstrung the institution in the mid-20th century. In the 1950s and 60s, it was committee chairs who wielded inordinate power, particularly Howard Smith of the Rules Committee, a segregationist Democrat from Virginia. (They were also known as Dixiecrats.) As described in this remarkable 1976 document from the Democratic Study Group, committee chairs held control over what legislation reached the floor and could punish members who refused to bend their votes to preferred outcomes with undesirable subcommittee assignments. They were sustained in their roles because of their seniority, meaning most were white supremacist Southerners. Smith delayed bills he found objectionable during the Kennedy administration simply by refusing to call a meeting of the Rules Committee.

The DSG initiated a reform campaign in 1968 with the intent of replacing the committee-dominated system with one in which even junior members would have opportunities to participate in the legislative process. Their first move was to revive caucus meetings, which opened the door for the approval of further reforms in the early 1970s that extirpated the “autocratic powers” of committee chairs through committee-wide committee chair elections, committee elections for subcommittee chairs, and transparency in committee meetings and votes. The Speaker became the enforcer of this new, aspirationally more democratic system by gaining control over the Rules Committee and chairing a new Steering Committee to make committee appointments and chair nominations.

Although these changes ended the old feudal system of committee chair dominance, we can see through this document that reformers had very different intentions than to create an imperial Speaker system. The House had prior experience with an imperial Speaker system in the late 19th century, such as that created by Czar Reed, which led to a huge rebellion. Leaders in the 1980s onward took advantage of what reform made possible. Nowadays, institutional memory is such that a strong Speakership simply seems natural, rather than the steady filling of the power vacuum reformers left when they overthrew committee autocrats.

The contemporary leadership model has created a monoculture hierarchy in the House by razing competing power centers (such as committees) and flattening policy entrepreneurship within factions of parties (by destroying legislative service organizations). By the mid-1990s, even DSG fell to the leadership wrecking ball. The result is centralized legislating, but within a party system witnessing growing divergence based on identity. Party leaders constantly promise sweeping victory to partisan voters, but never deliver the glory, shying away from floor fights that endanger majorities. The goal is always to keep your team together and split the other team, and always, always look to the next election. This pushes a lot of policy off the table.

One of those factions is fed up enough with that top-down homeostasis model to do something about it. They wanted wins. They started talking about their own coalition leadership as part of the problem in a fractured cable TV and talk radio mediasphere. They’re the captain now.

To get there, they created a heads-I-win tails-you-lose environment. Either they get the policy they want or they create political circumstances that drive more power to them through either co-opting their adversaries or replacing them.

The thing is, they’re not wrong about the weakness of democratic process in the chamber. The Speaker has agenda setting power through the Rules and Steering Committees, which were intended to prevent any restoration of the old committee bosses. Leadership dictates what hits the floor and what languishes in legislative limbo. Speaking institutionally, the hardline conservative faction and old Democratic reformers have more in common than is apparent.

It is only the narrowness of the Speakership and the availability of the motion to vacate that gave rank and file members narrow, but significant leverage to make their voices heard. And they were organized and willing to act.

Still, it came as a surprise that McCarthy’s fellow members of the leadership coterie didn’t act to protect the office, if not the office holder. It seems that McCarthy dug so deeply into partisanship for political cover that Democrats saw absolutely no upside in helping him out. He did himself no favors by undermining any trust in his word and appalling Democrats by denying the validity of Biden’s election, soft pedaling January 6th, and reviving the political fortunes of its key instigator.

Although he’s right that it was Democrats that were a key player in disrupting this era of House institutional control — as were the hardliners he cozied up to — McCarthy’s overplaying of the strong partisan Speaker hand without creating an exit plan for when the hardliners played their Trump card brought it to this transition point. The Young Gun era has ended.

WHAT’S NEXT

The governing coalition operating under the label “Republican” now will try to reset their collective agenda and how leadership will achieve it. You don’t have to agree with our working premise of a proto-multiparty system existing in this House to understand this is a normal thing for party elites to do. Every single Republican in Congress today owes his or her seat to similar internecine battles of the 1970s that birthed the New Right and the 1990s that helped usher forth the Gingrich “revolution.” The House looks “dysfunctional” right now, but it’s really just having a messy but normal argument.

That internal argument, going on since the midterms, really is about tactics more than substance. The side that wanted power, and also a more aggressive unraveling of the welfare state and stronger protection of Trump, insisted in January on institutional changes that altered the way the House functioned to their benefit. The hardline minority faction got an oversized share of the Rules and Steering Committees. Leadership not “holding the line” on spending now came at a cost — your head. Whatever emerges in the coming weeks may reshape the rules and structures of the House further.

Much of the Hill press coverage is descending into the typical horse race narrative as contenders line up to win the gavel. This type of coverage effectively enshrines the strong leadership model of chamber organization: In fact, that’s the business model of several outlets to cater to it. The focus on a few office suites subsumed the story of factional split and ensuing institutional change that has been building since the Tea Party first entered Congress.

We don’t mean to suggest there will be qualitative differences if Rep. Jim Jordan or Rep. Steve Scalise or whomever becomes Speaker. It’s equally possible that Acting Speaker Pro Tempore Patrick McHenry remains in the role through the rest of the Congress (more on that role below) and the House has to fly more or less on autopilot. The winner, however, is not the only person with agency in the post-MTV moment as the horse race narrative will indicate — if only members are smart enough to hold on to their leverage, and thus their relevance.

THE OPTIONS

We think it’s a safe bet that if Reps. Scalise or Jordan are elected, a lengthy government shutdown will ensue. It’s also much more likely that the nation will default on the national debt next winter. Absolutely nothing else will get done. A healthy majority of members in both parties don’t want those outcomes. Members in this group may not agree on much of anything in terms of policy, but they understand the significant economic, social, and governing impact a shutdown would have.

In this context, that’s enough in theory to hold a limited “fund America” coalition together. Members don’t have to agree on another single thing in terms of policy. This is their time to use their leverage in the Speaker election to secure what helps them politically, starting with guarantees of a clean long term CR based on the Senate’s package — which, after all, is the deal McCarthy agreed to on their behalf.

The non-hardline members would have to be insane to get rid of the motion to vacate just as a more hardline Speaker comes to the fore. But they’re likely afraid to stand and be counted, which is why we are seeing some efforts to raise the threshold by which the Republican conference chooses a Speaker.

The apparent, glorious collapse of the Problem Solvers Caucus is a signal that policy disagreement actually isn’t what’s driving congressional “dysfunction:” It’s the inability procedurally for the rank and file to push areas of agreement forward for floor votes when they don’t service leadership’s priorities. If the new leadership will pursue only unrelenting total war with the Biden administration, Trump restoration, and government shutdowns, members who want to actually govern have this moment to take action. They can take a page from the hardline faction playbook and hold out for procedural reforms that empower more members to participate in the legislative process.

The point here is while the rest of Washington waits to see who ascends to the Speaker’s chair, members should be discussing and organizing to act on what it is they want and what is in their best political interests. We think further devolution of leadership power is critical to the survival of the non-hardline faction of House Republicans, who must navigate a coalition defined by unwavering loyalty to an agenda of score-settling. Better positioning their faction to govern would be more productive than settling the score with Matt Gaetz. It’s also in the interests of a number of Democratic factions currently locked out of many conversations.

But for them to get there, it’s likely going to take a crisis. A big one. Like a months-long government shutdown. There’s a huge trust deficit among rank-and-file members, one engineered by both parties’ leadership for decades, and it may take time before the pressure to do something overcomes their habituated response of falling in line.

(The current situation in Israel is not such a crisis, and is being cynically manipulated to short circuit the debate over the redistribution of power.)

REGARDING McHENRY

Until the House selects a new Speaker, if it manages to do so at all, Patrick McHenry remains in a role that has not existed prior to last week. It was created in the aftermath of the September 11th terrorist attacks to allow for someone to preside over the process of selecting a new Speaker mid-Congress if the sitting one is killed. Rule I, Clause 8(b)(3) installs the next person on a secret list to become acting Speaker pro tempore, who “may exercise such authorities of the Office of Speaker as may be necessary and appropriate to that end.”

But what does that mean? Thinking in the context of the post-9/11 continuity of Congress challenge, does this person facilitate getting the institution back on its feet, or is he/her a substitute Speaker to keep the chamber relatively functional during a dire crisis? The needs of a disaster-recovery situation that activates this rule probably would dictate how narrowly or broadly it would be interpreted in such a case. What we have here is something rather different.

Rules Committee Ranking Member Jim McGovern is accurately describing a very narrow interpretation of the rule. His staff put out guidance that “the acting Speaker pro tempore is empowered solely to act in a ministerial capacity to facilitate the election of a new Speaker or Speaker pro tempore.” (emphasis in original) Democrats are arguing that the position is a little more admin work than what the Clerk of the House does at the start of a new Congress.

Congressional experts Matt Glassman and Molly Reynolds see more elasticity in the role, with McHenry’s choices strongly setting the norms for the position on the fly. The consensus, however, appears to be that the current rules only provide for a narrow role.

McHenry’s choices, naturally, are hemmed in by the novel politics of the situation. He’s assumed the mantle of the Speaker’s control of House office space, kicking both Nancy Pelosi and Steny Hoyer out of quasi-official hideaways as an expression of McCarthy allies’ anger with Democrats. But he has announced that he will not refer bills to committees nor take up legislation before the Speaker’s election. If the House wants to do more, it can elect a Speaker pro tempore or operate under its rules by taking up resolutions directing the chamber to act in a certain way.

OPPORTUNITY IN CRISIS

If the hardline faction succeeds in replacing McCarthy with a new Speaker without any changes to chamber rules — or further empowers the Speaker by reducing or eliminating the motion to vacate — this next era in congressional control will begin with the Speaker using all the powers of the office to impose the political will of a minoritarian faction.

It’s a vision of permanent crisis. Some accelerationist intent may be at play as members create a scenario where a strongman is required to cut through manufactured congressional paralysis. That prospect is why we have been so insistent that members act in their best interests, outside of their comfort zones, and restore some semblance of majority rule. This would be done through a reformed governing coalition that isolates the bad actors, reinforced through the necessary rules changes.

It’s very plausible instead that the hardline faction hostage taking never accomplishes its policy goals, besides anarchy, and any future instance of divided government returns us to permanent crisis mode. The public may quickly tire of the situation, but the inherent structural advantages Republicans currently enjoy in our electoral system will keep it competitive, even as it’s bodysnatched by the hardliners. It’s a path toward incredibly costly political stalemate.

Either scenario could generate the kind of systemic reevaluation of the Legislative branch that frankly is long overdue. Geographically-defined districts mean any electoral reforms that provide voters with more choices do nothing to change the fundamental malapportionment problem between urban and rural voters that allow for minoritarian rule and vetocracy. Perhaps some constitutional redrafting, limited to the Legislative branch, could develop out of the endless frustration and evident national decline. How’s that for optimism bordering on naïveté?

Speaking of optimism, we would be remiss if we did not mention Hakeem Jeffries’ Washington Post op-ed proposing a bipartisan coalition. Here’s his proposal:

“The House should be restructured to promote governance by consensus and facilitate up-or-down votes on bills that have strong bipartisan support. Under the current procedural landscape, a small handful of extreme members on the Rules Committee or in the House Republican conference can prevent common-sense legislation from ever seeing the light of day. That must change — perhaps in a manner consistent with bipartisan recommendations from the House Select Committee on the Modernization of Congress.”

We suspect that most Republicans will view this as grandstanding and that any real effort to negotiate should be done quietly. Maybe so. But it’s obvious that Republicans and Democrats like to see the worst in each other, which leads to a political death spiral.

The savvier move for Republicans would be to examine the proposal from the perspective of enlightened self-interest. Is there a deal to be struck that empowers members and committees and actually provides a political advantage arising from working constructively with your made-for-tv political adversaries?

What about rules changes that are a bit wonky, like allowing committees to move their legislation onto the floor, fixing how committees report bills so they require more buy-in, allowing members to work together through LSOs, and fixing discharge petitions so they are more practical?

House Rules Committee Chair and Appropriations Committee Chair Tom Cole was reported saying, in effect, “Republicans are free to step back from the deep appropriations cuts dictated by McCarthy’s backroom deal with the far right last June.” Read the Politico article, where his direct quote is that the agreement “now in a sense [doesn’t] exist at all because McCarthy isn’t the speaker anymore.”

That statement by Rep. Cole is huge. It’s a path forward that prevents a government shutdown. And, as Matt Glassman points out, the House can act without a Speaker. (Or maybe it could appoint Cole as Speaker for 30 days with authority limited to moving the appropriations bills at the levels agreed to with Biden.)

We think there’s a zone of agreement possible, where just about everyone wins. There are ways to prioritize collaboration over chaos. But, we suspect, the chaos must get worse before people are willing to take a risk on a way out.

ODDS AND ENDS

The House did not adopt any amendments to the Legislative Branch Appropriations bill last week except for blocking the Member COLA.

Federal agencies can sign up and begin submitting their congressionally mandated reports on the GPO’s website.

The Capitol Police were found to have discriminated against “Juan Cobbin, African American, when it transferred him out of the USCP’s K-9 Division and replaced him as K-9 training supervisor with a white officer with objectively inferior qualifications.” Read the OCWR’s opinion.

EVENTS CALENDAR

Congressional Committee Calendar

The Senate is in recess and the House is largely non-operational while it figures out how to select a Speaker.

Former Rep. Rodney Davis speaks on the path ahead for governing in the House on Wednesday from 9-10. More info.