The Umpire Strikes Back

THE PHANTOM MENACE: APPROPRIATIONS

The full House Appropriations Committee is set to consider the FY 2027 Legislative Branch bill on Wednesday, May 13th, after the chamber returns from recess. On a party line vote, the subcommittee approved the spending package we examined when it dropped Wednesday, offsetting increases in member security and building renovation funds with an overall reduction of House spending over FY 2026 when factoring in inflation.

Democrats on the subcommittee decried the $200 million cut for the Government Accountability Office and the language limiting its impoundment authority, and will revisit it in the full committee. Party line votes in the subcommittee are not unusual, but often the differences are performative and not substantive. This time, however, felt different. My suspicion is the majority wasn’t happy with the limited amount of funds available for the Legislative branch, but they put on a brave face knowing they had little choice.

Republican and Democratic members of the subcommittee honored Rep. Steny Hoyer in what will be his last markup as he is retiring at the end of this term. This, too, felt real and not performative. Members often refer to each other as “my friend” even when they are not, but there is real affection for Rep. Hoyer, including acknowledgement that he is an honest broker and reliable counterparty.

Rep. Hoyer and Appropriations Committee Chair Tom Cole struck interesting common ground in discussing the budget reconciliation process underway to fund parts of the Department of Homeland Security. Cole said he “100-percent” agreed with his colleague that the use by both parties of the process to skirt appropriations was a major problem and that approving three years of funding for ICE and CPB that way instead of using annual appropriations bills was wrong.

Hoyer gave notice he will offer an amendment in full committee to strike a section of the bill that prohibits cost-of-living increases in member pay, which Congress has done for the last 18 years.

That last point is greatly misunderstood by the public and many members. Representatives have effectively had their pay reduced over the last two decades, meaning it has become more challenging for people who do not have the personal wealth to to serve. Congress needs people from all walks of life to serve as elected representatives, and the pay should reflect what’s required for non-affluent people to do the job. The same is true for their staff.

The pay issue is a longstanding problem. Daniel started writing about this in 2010, conducting one of the first modern longitudinal studies of House member and staff pay from the 1980s forward, and in 2012 conducted one of the first modern longitudinal studies of pay and retention in the Senate. How do things stand in 2026? Member pay is about $98,000 below the equivalent from their colleagues who served in 2009. While some aspects of staff pay have been addressed, it’s still a huge problem. As Daniel wrote in 2016, “no one sticks up for Congress as an institution, and great harm comes from our collective disdain.” He called for tripling the number of staff, doubling their pay, and addressing Congress’s woefully inadequate technology.

Rep. Hoyer is an exception to Schuman’s rule that no one sticks up for Congress. The former majority leader used much of his time for an impassioned defense of the institution, saying the House was “woefully under-resourced” to contend with the enormous size of executive branch bureaucracy. Doubling the budget of the legislative branch, Hoyer contended, wouldn’t be enough and he lamented Congress had nowhere near enough staff to “know what the devil’s going on” with federal agencies. Hear hear.

The former and perhaps future Chair of the Committee on House Administration, who also serves as an appropriator, expressed concerns about the impact of the FY 2027 legislative branch package on congressional capacity. In a letter we obtained, Ranking Member Joseph Morelle wrote Speaker Mike Johnson Friday that because “the current state of congressional resources and capacity has left our institution weakened and diminished rather than functioning as the First Branch of government,” additional investments in staffing and technology were necessary. Morelle also requested increased funding for member safety and building renovation.

Because of the pressures the Loper Bright Enterprises v. Raimondo will place on lawmakers, Morelle called for increasing the cap for member office staff from 18 to 20 and increasing the MRA to make up for 15 years of not keeping up with inflation. He also urged a 20 percent increase to committee funding, noting that legislative branch committees are funded at one hundredth of one percent the level of discretionary funds the federal bureaucracy they oversee receive. The House Office of Legislative Counsel also deserves a 20% increase, Morelle wrote, seeing its workload in terms of measures introduced has increased since the 118th Congress by more than 80%. If anything, Rep. Morelle is not asking for enough of an increase even as we applaud his proposals.

We researched House committee funding levels from the 104-117th Congresses, and we found a median 11% decrease over that time. Since then, things have only gotten worse. Committees should be funded at a level proportionate with the executive branch they oversee. They need to significantly grow the number of staff they have, pay their senior staff better, and improve their technology. (We also looked at the Senate, which has similar but slightly less pronounced problems.) If, as Morelle wrote, committees are funded at one one-hundredth of one percent of discretionary appropriations, i.e. one basis point, we’d suggest doubling it to two basis points and by law keeping it pinned at that ratio. In other words, that increased funding level should no longer be discretionary.

Similarly, while personal office staff have been locked at 18 individuals since 1978, the population of congressional districts has grown by 50%, from ~510k people to ~760k. You’d need to add at least two staffers to keep up with the growth in casework; to keep up with the growth in government, you’d probably need to add a full time staffer for each committee the member serves on, plus additional staff for particularly tricky committees and subcommittee chairs. The Member Representational Accounts should be increased to cover those costs and to equalize congressional pay with their executive branch or private sector equivalents. The Senate accomplishes resizing their SOPOEA funds as a formula that takes into account the size of constituencies, and a similar approach should also be adopted by the House.

On workplace technology, an issue on which CHA is deeply engaged, Morelle urged full funding of the Modernization Initiatives Account at $10 million and support in the bill for enterprise-wide contracting for software to leverage purchasing power. In reality, the House Clerk and CAO both need double-digit bumps in funding for their technology. The House Digital Service should be expanded to fulfill its original vision of becoming a Congressional Digital Service, perhaps with the interim steps recommended by Reynold Schweickhardt and Zach Graves in 2022 plus the task force recommended by Alex Prokop. GAO and the Library also desperately need more funding for technology and staff.

With concerns about member safety only growing, Morelle proposed appropriations to support members hiring professional security agents through the Sergeant at Arms so as to not eat into MRA funds. The proposal also brings some structure to members’ choices about their personal protection, requiring hires to have a minimum of 10 years experience in law enforcement or military service to be allowed to carry a firearm. Morelle also suggested an expansion of funds for the coordination program between member offices, the U.S. Capitol Police, and local law enforcement departments and more money for member residential security.

These recommendations are all reasonable, but as we’ve testified, it’s time to fundamentally rethink how congressional security works, including reevaluating the focus and function of the Capitol Police and its oversight board. It’s also worth reevaluating how the U.S. Capitol Police are funded.

The Legislative Branch Appropriations Subcommittee declined to start a more comprehensive renovation of the crumbling Rayburn Building requested by the Architect of the Capitol. Morelle notes that delay would only raise costs in the long run and urged funding for construction of space staff would use during a renewal project and $42 in mechanical systems replacement now. We are coming to the view that with the aging building on campus, a new building should be built as swing space to allow for the remediation of entire buildings all at once. This will be expensive, but ultimately will result in cost savings and faster results than trying to repair buildings piecemeal.

FISA AND FACTION

In what’s been largely covered as part of Speaker Mike Johnson’s adventure in leadership last week, the House passed a temporary extension of Section 702 of the Foreign Intelligence Surveillance Act. It got over the finish line with 42 Democratic votes, but not before Republican dissenters added language the Senate would jam.

Daniel wrote voluminously [I thought I was merely being thorough – Ed.] about the underlying issues with a “clean” extension, but our interest is also piqued by the factional dimensions of the vote. The 22 Republicans who voted against it include some House Freedom Caucus members who were vocally opposed to the lack of privacy provisions, but also included many Republican Study Committee and Main Street Caucus members. The Democrats who voted in favor, meanwhile, were overwhelmingly members of more conservative party caucuses.

Interestingly, the 11 voting Democratic members on the House Intelligence Committee split 5-6 yay-nay, with some New Democrats joining the few Progressives on the committee voting against extension. A cursory analysis shows Democratic party leadership and intelligence types putting their finger on the scale to protect the Trump administration from court oversight.

If HPSCI members were split on what to do, the rank and file were forced to decide as surveillance hawks worked hard to withhold information from them. Senator Ron Wyden has provided an opportunity for some sunlight by securing a letter from Senate Intelligence Committee Chair Tom Cotton and Ranking Member Mark Warner to the Department of Justice and Director of National Intelligence requesting the release within 15 days of a classified Foreign Intelligence Surveillance Court opinion that details misdeeds in the operation of Section 702. Sen. Cotton refused to allow legislative language that required the release of that information, even in the face of existing law that requires that it ultimately be released, just not at the timeframe relevant to the upcoming vote.

Cotton then threatened Wyden of “consequences” for the effort, attacking him personally on the Senate floor in what appears to be an example of projection. Cotton’s outburst is an indication of how tightly intelligence committee chairs believe they should be able to control information, to the detriment of Congress making decisions that have consequences well beyond national security.

POST-CALLAIS

A few quick thoughts on the effective demise of the Voting Rights Act in the context of Congress:

The ridiculous gerrymandering race this decision will set off will make the House look like what a Senate reflective of state population would be: single-party state delegations of various sizes. That’ll make the House increasingly malapportioned as a representative body and regularize the executive-legislative branch collusion we’ve seen in this Congress that is so corrosive to the constitutional system.

The Jim Crow South was an authoritarian state within a state. Its politics revolved around control of African-Americans and the maintenance of single-party rule. The Voting Rights Act was enacted to protect people who liberated themselves from white supremacist authoritarianism from its reimposition via electoral gamesmanship. The decision is the starting gun for that gamesmanship to transform elections into a de jure ratification of de facto one party control. Political choice, in any meaningful sense, will become a dead letter. Things are bad now, but they will become impossible.

We agree with folks like Lee Drutman that proportional representation for the House is the right solution to this structural problem. The establishment of multi-member districts where members are elected based on receiving the highest proportion of the vote can result in fluid coalitions. But just as importantly, it would take away the ability of states to draw lines so that members can choose their districts.

The problem with Drutman’s answer, however, is that most individual House members don’t believe it aligns with their political survival. Although it aligns with the survival of the parties and the factions therein, it does not necessarily guarantee the survival of any particular member the way noncompetitive single member districts do. This is the potentially fatal political flaw to his answer even though it would go a long way towards strengthening our democracy and improving its representativeness.

Majority-miniority district members could see this day coming since John Roberts’ confirmation, but hoped the legal bulwarks would hold and they’d stay in safe seats indefinitely. They traded short-term personal security in their seats for an uncertain future for their party.

There have long been problems with the way majority-minority districts have worked in practice. They have effectively created lock-in for members, making seats uncompetitive. Let’s be careful, here: it’s lock-in for Democratic members representing these seats, but also lock-in for far-right conservatives who represent the non-majority-minority seats. Fewer congressional seats are competitive as a result. And as Jonathan Rodden wrote in his excellent book, the consequence of this form of malapportionment is the enactment of legislation that is to the political right of the general populace.

There’s further distortions inside the chamber that arise as well. The incentive for those members who hold these majority-minority seats is to entrench the seniority system. Being in the safest of safe seats means that they are much more likely to be able to hold their seats for decades, and thus rise to senior leadership positions. Their primary inter-House concern, therefore, is making sure no one rocks the boat. The result of that are aged committee chairs and the clear-eyed trade of support for party leaders who will maintain the committee chair seniority system in return for supporting those leaders to stay in power as party leaders. This trade is not built around policy priorities, or even party priorities, but the mutual advancement of personal interests. It is, in essence, a party machine.

Super-partisan redistricting is going to raise the stakes of primary elections. Increased numbers of theoretically safe seats will put more members in tests of partisan loyalty and ideological conformity. Those on the wrong side of their state’s partisan ledger land in Hunger Games struggles with colleagues from redrawn districts or are simply eliminated.

Proportional representation provides pathways for ideological diversity and political skill to still matter. But you have to get there from here. Our preferred pathway is to improve the strength of factions in the chamber, so that members can show that they’re more than just a cog in a political machine. This would align individual incentives with party incentives, and thus facilitate the passage of voting reform in the form of proportional representation.

Let’s say the doomsday scenario doesn’t come to pass and the House operates more or less as before, just with fewer African-American members. (This is what things used to look like, after all.) The position of the Congressional Black Caucus will be diminished. As discussed above, institutionally, the CBC is a key pillar in the current Democratic leadership structure.

A reduced CBC should increase leverage for other Democratic factions to shape the House, perhaps as soon as the next Congress. The Court’s decision in Callais will accelerate a change in the caucus status quo that the passage of time is beginning to force. The diminishment of this leadership ally may be softened by one of its members becoming Speaker of the House, but it will open up opportunities to change the way the caucus has operated for decades.

ETHICS

Amidst the institutional blowback after the sexual misconduct-related resignations of Reps. Eric Swalwell and Tony Gonzalez, everyone in the House – Speaker Johnson, Democratic leadership, Ethics Committee members, potential Democratic chairs in the 120th Congress – are talking about making changes to the ethics process.

We would expect a new Democratic majority next January would follow through on reforms to demonstrate they were, er, cleaning house just as other new majorities have. In 1995, Republicans placed Congress under many labor and workplace laws from which it had previously exempted itself and created the Office of Congressional Workplace Rights. (The reforms had been accelerated by Democrats in the previous Congress, who had not brought them to fruition.) At the start of the 110th Congress in 2007, Democrats tightened ethics and gift rules after the Abramoff scandal, then created the Office of Congressional Ethics the following year.

Even with additional accountability measures in the next Congress, the structural problem remains that no one really is in charge of ensuring members and supervisory staff act appropriately and professionally. Without such authority, no one is accountable for the ethics system. Instead, responsibilities are broken up across several domains. The Ethics Committee handles enforcement, but doesn’t write the rules. The Rules Committee handles that (along with the party steering committees), while House Administration has a role in their adoption at the start of a new Congress. No one is responsible for intervening before minor problems become major ones, and no one is responsible for protecting the victims.

Ultimately, House leadership has a strong hand in shaping these overlapping fiefdoms because they write the House Rules that establish the prevention and accountability frameworks and bring them into existence at the start of each Congress. Connection back to leadership makes the system even more politically complex because the incentives of partisan leaders are always electoral, less so institutional.

The cross-cutting political incentives exacerbate the effect of the lack of centralized, non-partisan and independent accountability. Members playing their roles in the system have strong incentives to work cautiously and pass the buck. The Ethics Committee admitted as much by explaining in a rare press release on April 20 how it has become “more aggressive” in pursuing sexual misconduct complaints in recent years, but frequently “lost jurisdiction” when the subject of investigation resigned, lost election, retired, or found another job in the case of staff. It’s a limitation concocted by the committee itself that shields the party from embarrassment once the member in question has shuffled off the main stage. Moreover, the Ethics Committee itself can set standards for what to do when members stonewall the committee to delay its proceedings, but as far as we know, they have not.

The OCE was a promising addition to the ethics system when launched by Nancy Pelosi in 2008 (Republicans renamed it the House Office of Congressional Conduct last year) to be a nonpartisan, independent alternative review body for misconduct allegations against members and staff. OCC can recommend cases that it examines to the Ethics Committee for consideration, which creates a deadline for when the investigation report must be released. The requirement of transparency and creation of a deadline was designed specifically to spur the Ethics Committee to action. That’s caused conflict with the committee. And the OCC suffers from a weakness from the point of its creation, when key players at the time ensured it did not have subpoena power for its investigations, providing another opportunity to members to stonewall.

Because OCC operates outside the normal political controls that restrain the Ethics Committee, some members have come to see it as a rogue political actor for doing its job. Accordingly, Speaker Johnson successfully hobbled OCC for months at the start of this Congress by creating a rule that board members had to meet formally to bring on investigative staff, then delayed appointing a board.

How should the House extract ethics enforcement from dysfunction? Cutting the Gordian knot of partisan gamesmanship and overlapping committee jurisdictions would be a start. Someone should be in charge of and therefore accountable for the ethics process, including developing the rules, issuing guidance, and executing enforcement. So, too, should there be someone, likely the same someone, responsible for identifying small problems before they become large and for providing help to victims. And we need to keep in mind that victims can be other members, staff, journalists, regular congressional employees, lobbyists, and the general public.

Maybe that’s the OCC. Maybe it’s a new office the House creates. The Ethics Committee may issue protestations that it is taking the problems seriously, and I’m sure members and staff feel that way, but the Committee is a structure unable to meet the moment. It suffers from a fatal design flaw.

It’s not only on leadership to reset the system. There needs to be a new way of thinking about the House (and the Senate). The frequently-cited perspective that Congress is not a single body but 541 individual small businesses with CEOs focused on re-election is part of the problem. Staff need to be congressional employees with congressional protections. Other legislatures have parliamentary staff as employees of the parliament even as they are politically loyal to their individual bosses. This is a better, more professional, model. And it comes with proper hiring practices, human resources, and mechanisms where the bosses cannot be both harassers and HR.

In the interim, there are pathways forward. Members should commit to hiring or finding placement for those fired in retribution for filing complaints. Members should report misconduct they see or strongly suspect. Indeed, there should be a duty on members to speak up if they see something – and to be held accountable if they do not.

The party conferences and chamber non-partisan staff should monitor staff turnover rates and intervene when they see high rates – that’s a strong signal of something amiss. Now’s the time to plan out what to do so some reforms can be put into place immediately, and others at the start of the new Congress.

ODDS & ENDS

Ethics news: The Senate banned members and staff from trading on prediction markets last week. It’s just about impossible to amend the chamber rules, so this provision went by UC.

House Ethics has opened up yet another investigation of improper sexual relations by a member. Rep. Chuck Edwards reportedly is being investigated for having an affair with his former deputy chief of staff, who started working for him in the North Carolina legislature. As a reminder, members of the House are prohibited from having sex with the people they supervise.

Member security: As congressional leaders were whisked away by security at the White House Correspondents Dinner, rank-and-file members were initially left without guidance on what to do next. Nobody knew how many members were even at the event. Who was responsible? The Sergeants at Arms? The Capitol Police? No one? Should there be someone in charge for this?

Anti-fraud bills: The House Oversight and Government Affairs Committee cleared nine bills tackling fraud and improper payment issues. Several involve GAO, including a requirement to report annually on state-administered programs at the greatest risk of fraud and replacement of its annual improper payment estimate with a rolling risk assessment.

Cybersecurity: The British Westminster Foundation for Democracy has published a new exploration of cybersecurity risks facing parliaments, which are unique given their disposition to openness and transparency.

BTW, AGI teaches a class on cybersecurity in Congress.

Zombie: Senator Frank Lautenberg might have died 13 years ago, but his campaign committee is still around.