Forecast for September 29, 2020.

Good morning, Congress. This week’s First Branch Forecast is shorter than usual because there’s so much going on that we’re overwhelmed. We’ll catch up on a backlog next week. Here’s the top six things you need to know.


1. MEMBER-DAY HEARING ON THE HOUSE RULES (RSVP TUES)

You know you’ve been waiting for it for two years. The House Rules Committee is holding its Member Day Hearing this Thursday at 1pm to listen to your boss’s ideas to improve the House’s rules, and any Member wishing to testify must submit a request by 5pm today (Tuesday) by filling out this form. If your boss can’t make the virtual hearing, you still can reach out to Rules Committee staff. Looking for ideas? Check out our voluminous recommendations (including our top 13).


2. RUSH TO JUDGMENT

The Judiciary Committee is expected to start four days of hearings on Pres. Trump’s SCOTUS nominee, Amy Coney Barrett, on Oct. 12, with a floor vote anticipated the week of Oct. 26th. The Chair of the Senate Judiciary Committee, Lindsey Graham, had pledged he would vote for the nominee without even knowing who it is. Rubber meet stamp. The untimely nomination is moving forward with unprecedented haste. In the meantime, the Intercept published a memo on options available to Sen. Schumer and Senate Democrats should they seek to bring a more stately pace to the proceedings — i.e., let the next President choose, as most Americans prefer, while Senate Republicans are prepping for Dem tactics that would require at least 51 Republican senators to stay in town to bat down any and all concerns. But, as BGov noted, Sen. Schumer hasn’t done much to delay things … so far. A question: some tactics rely on the House staying in town, so are they still planning on closing up shop at the end of the week?


3. PEACEFUL TRANSITION TO POWER

President Trump once again expressed an unwillingness to commit to a peaceful transition of power and is using additional tactics (like undermining vote by mail and vocal support for vigilantes) that are at odds with a free-and-fair election — and a democracy. The Senate passed a non-binding resolution in support of a peaceful transition of power, and a House resolution is on tap for this week, but even with the ongoing (and likely escalating) efforts to undermine the election results, it’s unlikely that the upper chamber would stand up to President Trump now, especially as it hasn’t done so previously. Meanwhile, the Atlantic is gaming out what happens if Trump refuses to be fired, and Politico describes what happens if the election is kicked to the House. The last time this happened, the political deal killed Reconstruction and led to the widespread enactment of segregation and other Jim Crow laws, whose effects are still felt today.


4. KEEPING THE NEXT PRESIDENT IN LINE?

House Democrats have put forth a partial democracy reform package, the Protecting Our Democracy Act, aimed at fixing a few loopholes in the system that allow for presidential bad behavior. The bill contains measures with wide bipartisan support, like making sure the Executive branch follows Congress’s spending decisions, bolstering IG independence, and requiring Congressional approval for presidentially-declared emergencies that last longer than 30 days. It also strengthens Congress’s ability to enforce subpoenas. Is it enough? No, we think it misses some crucial issues, but it’s a good start.


5. SPENDING?

If everything goes right — I cannot believe I wrote that — the Senate will vote Wednesday, the last day of the fiscal year, to adopt a short term CR through December 11th. We think that is too short-term, as it punts hard questions to the same time-frame that Congress may be looking at a very messy election, but what do we know? House Members voting on the CR had only 30 minutes to review the 115 page bill, which is astonishing. The underlying approps bills will be negotiated now even though the Senate has not passed their bills (to avoid taking hard votes before the election). We haven’t followed the minutia around the next COVID relief bill, although our guess is it will either contain too many concessions or serve as a messaging bill.

6. FIXING CONGRESS

The House Select Committee on the Modernization of Congress unanimously reported another 40 recommendations this past week, bringing the total to 97. This package of recs includes ideas updating the MRA formula, (voluntary) staff pay bands (to address weaknesses in staff pay), restoring OTA, upgrading the Bulk Data Task Force, examining creating a Congressional Digital Service, fixing the House calendar, and more (including congressionally-directed grants). The SCOMC has officially turned into a pumpkin, with only the text of its final report pending, although we hope the House and Senate will find an official way to extend these modernization efforts.


QUICK ITEMS

 The House can sue the President for building a border wall with funds appropriated for other purposes, the DC Court of Appeals held last week.This is a huge win for Congressional authority.

• Yech. The U.S. Capitol Police disciplinary reports show a disturbing pattern of misconduct. As we’ve said before, the USCP is a nightmare from a government transparency and accountability perspective, especially in light of the more than 2,000 employees and nearly $500m budget.

• Protections for intelligence whistleblowers need improvement, a GAO investigation found.

• The White House blocked the FDA Commissioner from testifying before the House about the pandemic response. Obviously, they shouldn’t be able to do this.

• Federal judges wenttoo far when they requested Congress ban the publication of certain personal information about judges: they want to make it illegal for journalists to publish key information needed for transparency, oversight, and accountability.

SUNSET

After 15 years, the Sunlight Foundation has officially closed its doors. Many of you know that I was their policy counsel for almost 5 years. The transparency, accountability, and technology work lives on with us and many of the organization’s alumni, who are spread out across civil society, government, the press, and the private sector.

Forecast for September 21, 2020.

THE TOP LINE

Ruth Bader Ginsburg has died. 93 minutes after the Supreme Court announced her death, Majority Leader McConnell tweeted that President Trump’s nominee — whomever it may be — will get a vote on the Senate floor. Within 24 hours, supporters at a Pres. Trump rally were shouting “fill the seat.” This is indisputably a flip-flop for Sen. McConnell and the GOP compared to their position on Merrick Garland; we note that that voting has already begun in the presidential election and the timing of the announcement is ghoulish.

• I don’t know whether ex nihilo the presumption should be in favor of presidents being unable to fill Supreme Court nominations prior to a presidential election, but Sen. McConnell created that rule, applied it, and will now violate it. This decision blows up what’s left of Senate norms—rules, precedents, and personal relationships—to gain a multi-generational advantage on the Supreme Court for the purpose of changing the Court’s decisions on settled (but politically contentious) issues. The composition of the Senate locks-in these anti-democratic outcomes.

• At the same time, Sen. McConnell is moving the Senate towards a pseudo-majoritarian institution where individual senators have little real say—not that the Senate has been at the forefront of legislating under his leadership, as he has acted largely as an appendage and protector of the Trump administration and an antagonist of the prior Obama administration. (By pseudo-majoritarian, I mean that 51 senators constitute a ruling block while those same senators represent a minority of the American population.) Sen. McConnell’s actions have weakened the legitimacy of the courts and Congress and are collapsing politics into a Manichean fight concerned with helping your friends and hurting your enemies.

• So far, the only semblance of a practical response I have seen for Senate Democrats was proposed by David Sirota, who describes tactics Dems could use to grind the Senate to a halt to block a Trump appointment. Unlike Sen. McConnell, who “shut down the lower court confirmation process” during the Obama administration, Senate Democrats under Pres. Trump have let nominations go through time after time. Norms are real only when everybody adheres to them. What will the Democratic response look like? Will they stop all activity except for essential legislation? According to Roll Call on Friday, their plan is talk, not action. But, last night Sen. Schumer stood alongside Rep. Ocasio-Cortez as she called on Democrats to “use every single available procedural tool available to us” to buy time in the Senate to stop the nomination.

Meanwhile, will the government shut down? 10 more days until the government shuts down or puts a continuing resolution in place. According to CRS, 117 CRs were enacted from FY1998 to FY2019, with an average duration of 39 days; there were only 3 year-long CRs (in FY2007, FY2011, and FY2013). The House Rules Cmte meets today to queue up a vote on a short-term spending bill. According to BGOV, Ds and Rs have all-but-agreed on a December 11th timeline. That seems crazy to us: what incentive would a departing Trump administration have to keep the government open should the Dems take political control? We realize Dems have moved the deadline forward in exchange for a policy win, but this is playing with fire.

Coronavirus relief is a key issue in the waning days of Congress as the number of dead in the U.S. has passed 200,000 and Pres. Trump admitted to lying to the American people about the danger of the illness. A little while back, Senate Republicans put out a political base-covering proposal that quickly failed in that chamber; members of the House Problem Solvers Caucus recently put out their own $1.5B plan. Most committee chairs rejected the latter’s proposal outright, saying “When it comes to bolstering the public health system, supporting state and local governments, and assisting struggling families, the Problem Solvers’ proposal leaves too many needs unmet…. [T]heir proposal also abandons our responsibility to protect the life of our democracy.” It is bad politics to undercut the negotiating position of the House, so of course Pres. Trump rushed to praise the plan without endorsing it. Spkr. Pelosi is not a fan of the Problem Solvers plan, but it did push her to say the House will remain in session until a COVID deal is reached. As the House usually holds pro forma meetings, I’m not sure what that means.

The Senate must modernize; to prepare for the next session of Congress, we released a report with over 80 recommendations to make the Senate more efficient, effective, transparent, and inclusive. They cover six categories, including strengthening floor and committee deliberations, modernizing operations and transparency, improving staff onboarding and retention, increasing ethical practices, improving technology and cybersecurity, and managing Congress as an institution. This parallels our recent recommendations to update the House’s rules.

Congress’s unfinished business, at least from our perspective, includes at least 30 good government bills we think should cross the finish line. So far 13,107 bills have been introduced this Congress and 158 have been enacted into law. We helpfully broke our list down by bill status.

The Library of Congress held its legislative information access virtual forum on September 10th. If you weren’t able to attend, we have a comprehensive recap of the presentations, panels, and Q&A. We were impressed by the panelists willingness to engage and the thoughtfulness of many of their answers. As you might expect, we had our list of issues we hope will be addressed. One take-away for bill-drafters out there: in some circumstances the Library will not act without the direction of Congress, including improving public access to CRS reports and providing an API for legislative data.

Continue reading “Forecast for September 21, 2020.”

Forecast for September 14, 2020

THE TOP LINE

More should be happening. We are 16 days away from the end of the fiscal year; COVID-19 is everywhere and not going away any time soon; wildfires are burning on the west coast; the Executive branch is unabashedly flouting the law; and senior congressional leaders are raising concerns Pres. Trump will not peacefully transition power should he be defeated and is working to undermine elections. The skinny Senate COVID-19 bill was defeated — its major purpose was blame-shifting and incumbent protection — and Senate Rs are saying no deal is possible until after the election (if then).

The House & White House are working towards a “clean CR,” with one big open question as to when it will expire. The “clean” description is an acknowledgement that it won’t address any of the aforementioned problems and that House Dem Leadership miscalculated around the first (and subsequent) COVID-19 relief bills. Should Dems agree to let the CR expire in December, they could be setting up a government shutdown that could last a month or longer, undermining what they hope would be the start of the Biden administration.

In the House this week, the Congressional Budget Justification Transparency Act of 2020 (HR 4894) is one of 31 bills on suspension, with a few additional bills set for floor debate. There are 18 committee meetings scheduled, including a House Oversight markup that should advance the PLUM Act (HR 7107). The former requires all agency Congressional Budget Justifications to be online in a central location; the later would transform the Plum Book into a living, digital document.

The Senate floor, meanwhile, will spend Monday focused on another judicial nomination. 17 committee meetings are currently scheduled.

For your calendar: Tuesday is the International Day for Democracy, and Brazil’s Bussola Tech is holding an international conference (with English translation) on the experience of 20 parliaments in transforming their legislatures during COVID-19. House Deputy Clerk Bob Reeves will be representing the U.S. House of Reps. RSVP here. Thursday is Constitution Day. Friday is the start of Rosh Hashana.

Transitions. Rep. Tom Graves (R-GA) will resign in October; he is the co-chair of the Select Committee on the Modernization of Congress. While waiting for a new member to take office, the House Clerk will be responsible for keeping the lights on. House Parliamentarian Tom Wickham is retiring, and will be succeeded by his deputy, Jason Smith.

Continue reading “Forecast for September 14, 2020”

Forecast for September 9, 2020.

Did you miss us? Welcome back to the First Branch Forecast! August was surprisingly busy so we have a pretty robust newsletter for you. Keep your eyes on appropriations, COVID-relief, the NDAA, the upcoming House Rules process, possible reforms in the Senate, and Executive branch efforts to undermine Congress.

We put six months of effort into our House rules recs; we know that Zander and Tim put a ton of effort into their new report on Congressional Brain Drain; and there’s so much more. Don’t hesitate to click on the links and let us know what you think.

THE TOP LINE

Congress is returning: no House votes are scheduled this week; the Senate is voting on a skinny coronavirus relief bill this week — but even if it passes the Chamber it’s not likely to go far ($). The House’s proxy voting emergency period was extended until October 2nd; this was a critical safety move as the number of covid cases on Capitol Hill surpasses 100, and Congress works through must-pass bills.

Continue reading “Forecast for September 9, 2020.”

Forecast for August 17, 2020.

THE TOP LINE

In and Out. The House and Senate were “officially” out until September — officially as of this past Friday — with fewer than a dozen voting days remaining in the House until the government shuts down. Fyi, the Senate has yet to move an approps bill. (Send me what we should call the COVID-CR-Approps-Postal omnibus.)

Just when you thought they were out, they pull you back in! Mid-day on Sunday, the Democratic members in both chambers who lead committees with jurisdiction over the Post Office and elections, plus party leaders, requested the Postmaster General testify before the House Oversight Committee on August 24 at 10 a.m.. They also asked that he provide documents by August 21. Will this be in person, remote, or a hybrid? Will he show? Well… apparently the House now will be in session later this Saturday (to pass a postal bill.)  I hope it’s remote. (Sorry to those who had already left for a well-deserved vacation.)

There are no remote deliberation measures in place in the Senate, so we led a coalition letter urging leadership to implement remote measures, you know, just in case.

Appropriators requested the Library of Congress meet with public stakeholders in last year’s House Leg. Branch Appropriations report; the Library announced the public forum will take place September 10th. RSVP.

Senate cafeteria workers are facing layoffs.

Continue reading “Forecast for August 17, 2020.”

Forecast for August 10, 2020.

THE TOP LINE

The House and Senate are basically out — with a skeleton crew staying in DC until a Coronavirus deal is struck or they give up. Members have been told they have 24-hours notice to return for a vote. Talks have apparently failed; this weekend the president took executive actions of dubious utility and questionable legality in an effort to make law. Sen. McConnell endorsed those actions, further undermining the Senate as an institution.

Senators want federal employees to be safe and are pushing agencies to offer maximum telework, but does that apply to Legislative Branch employees? Staff and employees are reporting to work in person — sometimes against their will — which is unsafe and unwise. Worse, the cleaning supply budget ran out a month ago, we don’t know how the Architect is managing ventilation, and until this month masks weren’t required anywhere. It’s a mess.

• The disregard for safety by some Members and staff is sufficiently egregious that staff are talking to the press, and Capitol Hill residents are worried about COVID exposure from proximity to Congress. Like we’ve said since March, remote Congress is the safest option.

COVID accelerated some Congressional modernization, but what’s next? Can it be that the House will go back to paper processes when the pandemic is over? We’ve seen some reports suggesting exactly that. House leadership should make clear they won’t backslide.

Senate Appropriators decide where billions of dollars will be spent. Markups, like hearings, should be open to the public and press. With restricted access to the Capitol and tight quarters in meeting rooms, the only way that’s possible is through live video — at least that’s what we (and our friends) think. Appropriators are resisting that call, in contradiction to direction from Senate Rules. As you might recall, Foreign Relations got a tongue-lashing on this topic, too.

Proxy voting won big in federal district court, which held the Speech or Debate clause does not permit a lawsuit against that practice. The result is good news. BUT the legal theory could create problems down the road. More immediately below.

Continue reading “Forecast for August 10, 2020.”

Forecast for August 4, 2020.

THE TOP LINE

Safety first? Rep. Gohmert’s positive COVID-19 test sparked outrage across the Hill, prompting a belated mask mandate in the House, inaction (what else!?!) in the Senate, a possible member-to-member transmission, and countless staffers and aides telling reporters about a backlash from senior staff/Members for wearing masks in their offices or requesting to work remotely. We wrote a letter on March 12 to Congress that included a recommendation to prioritize the health and safety of the public, staff, press, and lawmakers. For now, chamber rules should require remote work unless you absolutely have to be there; chamber and committee proceedings should be remote; Congress should use tech to substitute for paper processes; limited occupancy + masks should be mandated; social distancing is a must; and expanded testing seems prudent. This can’t be a dead letter, either: there needs to be real enforcement.

Appropriation bills continue to move forward in the House, with 10 of 12 passing the lower chamber. Homeland Security was pulled from the mini-bus. Meanwhile, the Senate has yet to schedule its approps markups. (BGOV)

Supplemental funding for Legislative Branch operations was included in the Senate COVID response bill. But the Leg Branch Approps bill has yet to get a House vote.

The Fix Congress Committee released its fourth round of recommendations aimed at improving congressional operations. Several recommendations were created to address the challenges that Members and staff are facing while teleworking during the pandemic.

Frank no more. The COMMS Act, H.R.7512, championed by Rep. Susan Davis, which changes how the Franking Privilege works, passed the House on Thursday. It contains a number of significant reforms. Earlier this year, the House began publishing advisory opinions online and updated the communications standards manual.

Continue reading “Forecast for August 4, 2020.”

Forecast for July 27, 2020

THE TOP LINE

CODA — Covid, Defense, and Approps — are the “must pass” summer blockbuster legislation (we miss movies) that lurched forward in both chambers. Sort of. But how does it end? We’re betting there will be sequels.

11 of the 12 appropriations bills passed or are scheduled for a vote in the House. The Senate has made no apparent progress: senate bills have yet to be considered in committee and the fiscal year ends September 30. A continuing resolution is pretty much inevitable, and CRs themselves incur significant costs to agencies.

Congress did not fund itself. The Legislative Branch approps bill was the only approps bill (so far) not set for House floor consideration

The NDAA passed the House and Senate (each chamber considered about 750 amendments), but those two versions now have to be reconciled. Plus the President indicated he may veto because of renaming bases.

The Senate failed to release its latest coronavirus relief package. House Dems are pushing to pass by July 31, i.e., this Friday, when the enhanced federal unemployment payments end, to which Leader McConnell laughed. As of this writing, 146,000 Americans have died.

Congressman John Lewis will lie in state at the Capitol. Details here.

Continue reading “Forecast for July 27, 2020”

Forecast for July 20, 2020

THE TOP LINE

The House Appropriations Committee finished its deliberations this past week, favorably reporting bills from its 12 subcommittees and marking the end of an era with Rep. Lowey’s forthcoming retirement as Chair. As we noted last week, this included much needed investments in the Legislative Branch, reclaiming Congress’ power of the purse, and increased transparency requirements.

The Senate is back and is in session until August 7th, and the House votes this week on the NDAA, confederate statues, and some approps bills. The House district work period in theory starts on July 31, but Speaker Pelosi said the House would absolutely stay in town to pass coronavirus relief and Members were told to plan to be in town the first week of August. Who knows what will be in that bill.

A remote Congress is better than no Congress. The House moved in May to allow proxy voting, but allowing fully remote deliberations (including remote voting) is a much better option, as we’ve been arguing since March. The House Admin Cmte held a hearing on Friday that checks a box to allow remote deliberations; even former Speaker Gingrich, who testified, agreed that secure remote voting is technologically feasible, and he praised the proceedings. As to the wisdom of such a move, see our letter (co-authored with the Lincoln Network’s Zach Graves) to the Committee. Roll Call has an excellent summary of the hearing.

Rep. John Lewis has died. His life exemplified how a principled leader moves the political middle and the value of standing up for what you believe.

Continue reading “Forecast for July 20, 2020”

Forecast for July 13, 2020.

THE TOP LINE
Congress may finally have begun investing in itself — House appropriators favorably reported a 5% increase in funding for the Legislative Branch. That’s half of the 10% increase sought by good government types (like us), and while Congress is still significantly below its funding level from a decade again, we are starting to dig out of the hole. Read Zach Graves on the conservative case for increased policy capacity, and please thank your nearest appropriator, especially those on Leg. Branch.

Money isn’t everything (but it’s really important). Approps bills and reports set policy and direct agencies, and in the Leg. Branch approps bill, the House took a major step towards reclaiming its power of the purse by strengthening GAO and putting in place scores of improvements to congressional operations. More below.

The rules behind the power. Party rules and customs determine committee chairs, policy, and which legislation gets a vote. House Dems finally released their caucus rules (thanks! even if it took 500 days from our request). We’re going to keep digging into the caucus rules, who serves on the steering and policy committee, and the secret rules under which it operates.

Power switch. The House continues to use proxy voting, which some view as having the effect of consolidating power in the hands of leadership while avoiding the worse fate of a defunct Congress. This Friday, House Admin will hold a hearing on remote voting, which could be a step towards turning on the power of the House to deliberate fully in virtual session. Given what’s happening in the world, this is a wise course of action.

Continue reading “Forecast for July 13, 2020.”