Congress on the Precipice
The 118th Congress went out with dramatic flair. Next year's Congress is poised to have an entirely new way of doing--or not doing--business.
That's a wrap for the 118th Congress in what has to be the weirdest possible timeline.
This week’s newsletter, in addition to recapping the 118th Congress and previewing the 119th, looks at the fall of open government organizations, Executive branch efforts to spy on legislators, a new report on harassment in Congress, efforts to modernize Congressional operations and technology, and much more.
The top line
I'll leave it to Brooking’s Molly Reynolds to recount the top five reasons why this Congress was an outlier. High on my list is the defenestration of the Speaker McCarthy and twenty-two day saga to confirm his successor, the expulsion of Rep. George Santos and non-expulsion of Sen. Menendez, the successful effort to move a Social Security bill into law via a House discharge petition, passage of major appropriations bills on suspension, and the world's richest man apparently tanking the bipartisan Continuing Resolution by tweet—and nearly forcing the government to shut down—because it (apparently) would affect his business dealings in China.
Congress still has not enacted the full year FY25 Appropriations bills even though the fiscal year started last October. Republicans have bought themselves a few months inconveniently situated right at the start of the Trump term when most committees won't even be properly organized. In theory, all those spending bills will have to start from scratch in the committees, although I suspect leadership will cobble together a Frankenstein minibus or omnibus.
New legislative pressures will change the contours of the spending bills. Perhaps the House will follow the 72-hour rule, whereby legislation is publicly available so members can read it, a process skipped for the second and third iterations of the CR. With thirty-four Republicans voting against the CR this time around, and incoming Pres. Trump threatening to primary Rep. Chip Roy for his criticisms of government spending, it's going to be a show. By the way, Roy is also competing to serve as chair of the Rules Committee, which will write the rules governing how the bills are considered on the House floor.
Another exciting thing to look forward to is the debt ceiling, previously suspended but which will snap back into effect on January 1. For a moment Congress could have reached bipartisan agreement to get rid of the ceiling entirely, as many including GAO1 have urged. That would have been wise, but perhaps not politic; Democratic leadership dithered in the face of Trump's chaotic volte-face tweet even as Reps. Boyle, Delauro, and Sen. Warren endorsed its elimination. The result was Republicans who largely demagogued the debt ceiling being forced to vote to temporarily raise the limit, only for that bill to be scrapped. They'll get to walk the plank again.
Ex Rep. Matt Gaetz's ethics report is supposed to come out now, if you believe the news reports, although I don't yet see it on the Ethics Committee's website. I suspect the report will even be a more downloaded read than the Lewinsky report, which broke records when it came out. We can only hope the release of the Gaetz report will set a precedent for releasing other reports that are substantially completed. Coincidentally, Gaetz led the efforts to overthrow McCarthy and the release of the report can be understood both as entirely appropriate and possibly as revenge. Members were getting ready to punish the Committee Ranking Member Susan Wild for leaking some of the report’s findings, but decided not to act against her because she is retiring. Oh, sweet irony.
A breaking story from the Dallas Express is that former Appropriations Chair Kay Granger has not voted in six months and is apparently living in a memory care unit. If you haven’t heard of the Dallas Express, it’s a Potemkin paper, i.e. one that masquerades as real news, so there’s reason to be skeptical — although there is corroboration from other journalists, and her family now says she has dementia issues and resides at a senior care facility, but not in the memory care unit. The context for the story is Granger stepped down from her position as chair in March but stayed in Congress.
If true—and it’s a big if—this is an awful personal tragedy for her and her family. It’s also a huge problem for Congress and another example of the Feinstein problem—where Members of Congress and their staff conceal likely disqualifying infirmities of elected officials, and the press is generally reluctant to report on those matters. See, for example, Rep. David Scott. I do not mean to sound heartless, having experienced the decline of loved ones with memory issues; people with these condition should not be making decisions for others.
Speaker Johnson does not appear to have enough political support to be re-elected Speaker, with chaotic Republican member Victoria Spartz (who has the third highest staff turnover rate) indicating she won't join the GOP conference and Freedom Caucus adjacent member Thomas Massie saying he won't vote for Johnson. Democrats could save Johnson's position as Speaker, but that could doom him as Republican party leader.
The press will continue to struggle to describe what's happening on the hill. Unless they start using language about the various factions, readers won't understand that Republicans in both chambers are in effect in a coalition government that has a tenuous grasp on power. The anarchic leadership style of Trump, which is less about policy and more about asserting power, will give fits to anyone who is looking for anything more than Nietzschian2 consistency.
House Democrats and Republicans have adopted their caucus and conference rules, but I haven’t seen any indication of a vote by their Senate equivalents. We do have news of who is leading and serving on the various committees, although the parties don’t do a great job of publishing those announcements. It won’t be official until next year.
The big outstanding House and Senate chamber organizational puzzles are the adoption of House Rules and separate orders on January 3rd and the Senate’s adoption of an organizing resolution that officially names members to committees and does other work as well. One wonders whether minority leader Schumer will echo McConnell and threaten a filibuster to extract concessions for inclusion in the organizing resolution. And, of course, what happens if House Republicans are unable to elect a Speaker from within their conference? Looks like we’ll have a lot to talk about next year.
American Governance Institute recap
The First Branch Forecast is published by the American Governance Institute, where I serve as Executive Director. I’ve been writing the FBF for eight years, but only founded AGI as a non-profit organization this past March. I thought you might be interested in what we’ve been up over the last eight months.
The Fall of Open Government
Over the last few years major transparency organizations have gone out of business, from the Sunlight Foundation and OMB Watch to the Center for Public Integrity and OpenTheGovernment. I wrote about what is happening, and what it means, this past week in the Bulwark.
My organization, AGI, does a significant amount of transparency work. We coordinate an open government roundtable, educate the public and engage in advocacy for open government practices and laws, and I serve as chair of the Open Government Federal Advisory Committee. The reason AGI can exist as an organization is because transparency is not all we do, because if is were, we’d rapidly go the way of the dinosaurs.
In case you missed it, there was a great event this past week on the FOIA Amendments Act at 50. You can watch it on C-SPAN. Speakers included Ralph Nader (in his role as consumer advocate who pushed for FOIA), Tom Susman (who was the lead FOIA Senate staffer), Alan Morrison (co-founder Public Citizen’s litigation group), Anne Weismann (adjunct professor at GW), Roberta Baskin (a noted journalist and former director of the Center for Public Integrity), and Allison Cole & Zehava Robbins (counsels for Energy and Policy Institute).
I spy (on Congress)
The Executive branch should not spy on Congress and Congress should not let them. Yet, there are many examples where this has occurred, such as the CIA spying on the Senate Intelligence Committee when the committee investigated the agency’s use of torture. Intelligence agencies routinely suck up the communications of millions of Americans through a loophole in the Foreign Intelligence Surveillance Act and this includes the communications of Members of Congress and their staff. The Intelligence committees, created to oversee the intelligence agencies after revelations of truly mind-blowing abuses were revealed in the 1970s, are largely captured by the intelligence community and generally serve as the enablers to the agencies they oversee.
The Justice Department Inspector General issued a report this week on the DOJ’s obtaining the records of journalists in 2020 for the purpose of fishing for the sources of leaked classified information. Specifically, the DOJ hoovered up records of everyone communicating with specific journalists and forced third party providers like Verizon and Google to give up this information while gagging them from telling the journalists the DOJ had subpoenaed this information.
This itself is problematic: journalists are allowed to publish classified information. Looking at everyone who talked to a journalist is the best way to stop anyone from talking to a journalist. Such surveillance is currently prohibited in 49 states and by a recent DOJ policy. Legislation to prohibit these fishing expeditions, known as the PRESS Act, was unanimously passed by the House of Representatives this Congress, but Sen. Schumer did not sufficiently prioritize its enactment at the end of the 118th Congress and the consequences for that decision is obvious. History shows us what comes next.
Back to the DOJ IG report. The revelations about the surveillance of journalists led to news media reports that DOJ “used compulsory process to obtain records of Members of Congress and congressional staff in connection with the alleged unauthorized disclosure of classified information.” They forced companies like Verizon and Microsoft to share the names of people who contacted Congress and gagged the companies from telling Congress. (In this case, it was Apple.) First of all, people are allowed to talk to Congressional staff. Second, is it really necessary to draw a picture of why the Executive branch surveilling the Legislative branch to see who is talking to Members of Congress and their staff is problematic, especially when they take additional steps to conceal it from Congress? Yikes, right? Here’s what the DOJ IG found:
The DOJ issued compulsory process for the communicates records of 2 Members of Congress and 43 staffers. Of those, 21 worked for Democrats, 20 worked for Republicans, and 2 were nonpartisan committee staff.
All the records the DOJ sought about Members/staff were in connection with their congressional responsibilities.
The DOJ did not have a policy that addressed the use of compulsory process to obtain communications records about Congress from third parties or whether they could use gag orders. Nor was any supervisory approval necessary before a prosecutor did any of this.
Of the 40 gag orders sought, most were renewed at least once and some were extended for up to 4 years. And the ask was not based on any specific facts in the case, but rather “general assertions about the need for non-disclosure.” It was boilerplate BS. They didn’t tell the courts they were looking at Congressional staff, either.
Why is all this a problem? Read what the DOJ IG said:
We believe that using compulsory process to obtain such records when based solely on the close proximity in time between access to the classified information and subsequent publication of the information… risks chilling Congress’s ability to conduct oversight of the executive branch because it exposes congressional officials to having their records reviewed by the Department solely for conducting Congress’s constitutionally authorized oversight duties and creating, at a minimum, the appearance of inappropriate interference by the executive branch in legitimate oversight activity by the legislative branch.
The long and short of it is that after the DOJ was caught red handed, they “updated” their policies. But a look to history shows is part of the pattern of do bad stuff, get caught, change the policy, go back to doing bad stuff. None of these fixes are in law, so there’s nothing to stop the intelligence community from reverting to the bad behavior. As a case in point, read this 2021 DOJ IG report on the weaknesses in Foreign Intelligence Surveillance Act oversight and the 400 instances of non-compliance with applicable procedures.
But, wait, there’s more. In 2020, the Senate in an effort to protect senators and staff from Executive branch surveillance inexpertly crafted a new provision and stuck it into an omnibus bill. But they messed it up.
The law says that data held by third parties is the Senate’s data. That holders of the data can’t be gagged from telling the Senate about demands for the data. And that the Senate can quash any subpoena for this data. So far, so good, right?
Unfortunately, the law doesn’t require the companies to tell the Senate when Senate data is requested and not all companies have a policy requiring notice. In addition, the companies don’t know or haven’t made the effort to flag the devices that contain official Senate data. And the law is embedded in 2 U.S.C. 6628, the section of the U.S. code dealing with Congress and not the provision that deals with telecommunications, so most folks doing the surveillance don’t even know that they can’t be gagged from telling the Senate. Also, the provision inserted by the Senate doesn’t apply to the House of Representatives, let alone the rest of the Legislative branch.
Naturally, four years later the House has taken the Senate language and tried to apply it to the House. It likely was an attempt at providing parity. The language was included in the first CR, which failed. Unhelpfully, Donald Trump Jr. amplified a tweet by Benny Johnson attacking the provision that would have given members of the House the same insufficiently-drafted protections provided to senators — the right to know when their data is being sought by the DOJ and to have an opportunity to intervene in court.
Similar shenanigans took place, by the way, with respect to the PRESS Act, the journalist shield bill. That law had passed the House by unanimous consent and then Pres. Trump posted on “Truth Social” that Republicans must kill the bill. Trump must have been listening to Sen. Cotton, the incoming chair of the Senate Intelligence Committee who hates the free press. Friends, I’m not exaggerating. Read his Homelander-esque floor speech. “Passage of this bill would turn the United States Senate into the active accomplice of deep-state leakers, traitors, and criminals, along with the America-hating and fame-hungry journalists who help them out.” There’s got to be an award for the most misinformation packed into a single speech. Cotton also wrote an op-ed in the New York Times demanding the military be unleashed against civilians. Whatta guy.
So here we are. The PRESS Act, which had bipartisan co-sponsors in both chambers and, had it received a floor vote in the Senate, would have passed and become law, was deprioritized for the confirmation of an additional judge or two. And Sec. 605 of the first CR attempt, which would have provided some protections for members of the House, was killed through a combination of inartful legislative management and a tweet by Trump junior.
Trump’s nominee to head the FBI, by the way, has “talked about finding ‘conspirators’ in the government and media.”
Coincidentally, in 2023 there were 762 members of parliaments in 47 countries who were subject of violations of their rights of parliamentarians, according to the International Parliamentary Union. The most common violation was violation of freedom of expression. The full dataset is here. I wonder what 2024 will look like.
Working in Congress
What’s it like to work in the House of Representatives? The Office of Congressional Workplace Rights released its 118th Congress Congressional Workplace Climate Survey, which received responses from 1,515 employees, or 10% of the House. Among the findings:
76% of staff on average view the workplace favorably, with 87% of employees happy with teamwork, 75% happy with senior leadership, and 66% saying they receive sufficient awards and recognition.
Only 62% of respondents agree that senior leaders have taken the necessary steps to address issues of harassment, discrimination, and retaliation. 6% of respondents say they have been sexually harassed, 16% say they’ve faced non-sexual harassment, and 15% say they’ve been discriminated against.
49% of harassment was committed by more senior employees, and 20% arose from members or other house officers.
The House still has a lot of work to do to improve the workplace. It also would be helpful if the OCWR would release the underlying aggregate data as a spreadsheet.
Congressional modernization and technology
The House Modernization Subcommittee released its final report. In many ways, this is the culmination of six years worth of work, which included the issuance of 202 recommendations, with 67 implemented and many in progress. Modernization, which is a subset of Congressional reform, has many champions across the Legislative branch.
The Fix Congress Committee played a crucial role in refining and providing its stamp of approval to ideas, which made them easier to be adopted by key players at Rules, Admin, Appropriations, Ethics, and elsewhere. With the departure of Rep. Derek Kilmer, a longtime leader in this space, it is an open question whether this will remain a centralized function in the House or devolve back to the network of members who advocate for bespoke issues. Rep. Bice, who led the subcommittee this Congress, received the 2024 Distinguished Service Award for her leadership.
The Congressional Hackathon occurred this past summer—yes, I still owe you a blogpost on that—and our friends at the CAO released a videos containing short highlights and video of the entire event.
AI was a key focus of the hackathon, so you might be interested in this upcoming January 22nd event on what AI may mean for public engagement with parliaments, hosted by the International Parliamentary Union.
AI also was a focus of the Committee on House Administration, which released its final 2024 AI flash report that covered AI accomplishments in the 118th Congress. Of particular interest are the key considerations for the 119th Congress, which include the interoperability of legislative branch AI systems for efficient and effective oversight, stewardship of legislative branch data, AI upskilling and interparliamentary knowledge sharing, and ensuring congressional AI technology keeps up with innovative uses in the Executive branch. We’re tracking Leg branch use of AI on this wiki.
The Congressional Data Task Force published video and an agenda from its 12/12/24 event. More on that to come.
The Congress.gov team published a blogpost reviewing 2024. Among their accomplished: adding Senate Committee Meeting videos to the committee schedule, increasing the API rate from 1k to 5k requests per hour, and ongoing efforts to add the Congressional Globe and Register of Debates to the browse page.
Ethics
Rep. Nancy Mace, whose staff turnover rate is at least twice the House average, is claiming she was accosted on Capitol grounds at what eyewitnesses describe as a normal handshake. Capitol Police arrested James McIntyre for shaking her hand and saying “trans youth are foster youth, and they need your support.” Mace is outspoken in her apparent animosity towards trans people, working assiduously to bar them from Congressional restrooms as part of what many people believe is a cynical effort to raise her political profile. Her former consultant suggested that the representative is “emotionally unstable” after she tweeted the question of “which bathroom do you think Trey Gowdy uses.”
A code of ethics for members of parliaments was released by the Commonwealth Parliamentary Association. The 46-page document may be worth reviewing for folks working to modernize the House and Senate’s ethics rules.
Supreme Court. As we get to the end of the year, expect Chief Justice Roberts to release an end of the year report on the federal judiciary. As you read it, keep in mind that Justice Clarence Thomas was caught yet again failing to disclose trips paid for by a billionaire patron, which is part and parcel of his non-disclosure behavior. Senate Judiciary Democrats released a report on what they deem “the ongoing ethics challenge at the Supreme Court.” Some Republican lawmakers instead view this as an attack on conservative justices. The report recommendations establishing an enforceable code of conduct, reforming the Judicial Conference, and further investigation.
The annual financial disclosure reports filed by federal employees is miscalibrated, and GAO recommends Congress amend the Ethics in Government Act and the Office of Government Ethics update its 2005 recommendations.
Odds and ends
No, the FBI did not have undercover employees at the Trump insurrection on January 6th, according to the Justice Department’s Inspector General. It did have informants on the ground, but those informants didn’t share information about the plans of the Proud Boys in advance of the event. House Republican plan to further probe “the Jan. 6 Capitol attack, the spin-off federal investigations and Capitol security generally,” with Rep. Loudermilk pushing for a select committee to, among other things, investigate the previous select committee.
Speaking of the U.S. Capitol Police, the Senate Rules Committee held a hearing on the topic, which was covered by Roll Call. I usually watch these things, but didn’t know it was happening until afterward. The USCP has 350 more sworn officers above Trump insurrection levels—their failure, as I’ve testified, was not due to a lack of personnel, but failures of leadership, management, and oversight. Chief Manger is painting a rosy picture of USCP reforms, and it’s great to see that they are reporting progress, but without an independent IG with authority to supervise the Chief, disclosure of IG reports, and independent experts who can review security and operations, I wouldn’t bet my Congress on it.
The USCP IG newly released a 2018 report, on monitoring internet usage for waste and abuse, which found the USCP “did not actively monitor USCP employee and contractor internet activity for waste and abuse.” Scores of USCP IG reports had yet to be released.
Congratulations Gabe Fleisher, who has become an officially accredited journalist for his excellent substack Wake Up to Politics.
The Office of Congressional Workplace Rights has adopted substantive regulations to implement the Fair Chance to Compete for Jobs Act, which will take effect only if/when the House and Senate endorse the regulations by resolution. The provision says federal employees may not request job applicants provide arrest and conviction history until a conditional job offer has been extended.
Impoundment is the focus of more than a dozen GOP lawmakers, who have introduced legislation to review the Impoundment Control Act that would destroy the appropriations process and give any president tremendous control over what money is spent. I wrote in July about the dangers of impoundment and the threat posed by incoming Trump administration officials and members of Congress who wish to undermine Congress’s power of the purse. Sen. Lee sponsored the version version, S. 5533, and 18 members joined Sen. Clyde’s effort in the House, H.R. 10414. They argue that it empowers the president to cut wasteful spending, which is (of course) a power that resides within the Congress.
Are you a political scientist who wants to work in Congress? Apply by Jan 17th to be an APSA fellow.
The Committee on Caucus Rules, the newly renamed Democratic caucus committee, was established with Mike Levin as chair. It’s responsible for evaluating and recommending changes to the Democratic Caucus rules.
The bottom line
Thank you for reading the First Branch Forecast. It’s been great writing for you this year. The next issue, per popular request, will focus on the House rules. I’ll may hold it until I see a draft of what’s proposed. Wishing all of you a good holiday and happy new year.
I’m referring to Neitzsche’s philosophy of will to power, which Wikipedia summaries “self-determination, the concept of actualizing one's will onto one's self or one's surroundings, and coincides heavily with egoism.”