Four Challenges to Congress

This week's First Branch Forecast focuses on four major challenges to Congress's continued relevancy as a lawmaking body posed by the incoming Trump administration.

Do you feel like the world has sped up? That's the "Trump effect," a constant stream of unexpected decisions and unprecedented actions that generate fast news cycles and the feeling of anarchy. As always, we are going to place what happened last week in a broader context and provide some clues as to what's coming up next.

The past week can be summed up as four challenges to the relevance of Congress as a branch of government. 

First, the incoming president is seeking to circumvent the Senate confirmation process. This is a direct challenge to Congress's ability to vet incoming agency leaders and ensure they are responsive to the needs and interests of the Legislative branch.

Secondly, he is reiterating his intention to use impoundment, the decision by a president to not spend funds already appropriated by Congress and signed into law. This amounts to a line-item veto – without a veto override opportunity – and destabilizes Congress's power of the purse. It would impose the "Darth Vader" rule on appropriations negotiations – no matter what is agreed to, the president could unilaterally change it. ("I am altering the deal. Pray I do not alter it any further.")

Third, there are open questions about the extent to which the president will unilaterally assert the power to reshape how the government is organized, what it does, and the extent to which it is constrained by federal law. The notional "Department of Government Efficiency," created with the purpose of realigning the operations of government, could be an effort at that, depending on the extent its recommendations falls within the president's discretionary powers or Congress passes legislation to authorize such a change. 

However, Trump has shown a willingness to interpret the law beyond its lawful bounds, potentially aided by a Supreme Court unmoored by precedent. The willingness of the Executive branch to exceed laws enacted by Congress is not just a Trumpian problem – other presidents have used legal opinions rendered by the Justice Department's Office of Legal Counsel to undermine Congress and misapply the Constitution. But Trump has already moved into uncharted territory.

Finally, the election of Republican party leaders in both chambers, and the consideration of their party rules, plays specifically to the question of whether leaders of the majority parties in both chambers are likely to stand up for Congress as an independent branch of government versus serving as functionaries who will duly implement the directives of the president. Furthermore, should those leaders not stand up, will the factions or individual members of the party exercise veto power over the acquiesce of their chamber to Trump's dictates.

To answer these questions, we may have to detour a bit into the House Ethics process, the non-existent Department of Government Efficiency, and more. 

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Circumventing the Senate

Incoming President Trump indicated his desire to appoint nominees without them undergoing a Senate confirmation process as required by the Constitution. He would accomplish this through recess appointments, a Constitutional power of the president to place people in office for a limited period of time in circumstances when Congress is not in session. 

This was sold as an effort to rapidly approve cabinet officials, but that makes little sense. The Senate rapidly handles nominations of senior officials at the start of a presidential term, with expedited procedures on the Senate floor and a majority threshold for executive branch nominations. Republican control of the Senate would make this a comparative snap. A recess appointment would provide these nominees an opportunity to circumvent answering detailed questions from the Senate, avoid facing relevant committees of jurisdiction, and limit the nature of any background checks. 

There's also no limiting principle of who can be appointed in a recess appointment. Trump could fill out all vacant offices at once, which creates a fait accompli for controversial and at-times unconfirmable choices. It also removes the Senate's ability to use nominations to bargain for information from the Executive branch or to obtain policy concessions. It starts from a false assumption – "unitary executive theory" – that all these officials and the agencies in which they serve belong to the president, when it is the Congress that created and is responsible for funding these agencies. 

Blocking recess appointments

Congress has blocked recess appointments for more than a decade. This is accomplished by holding pro forma meetings of each chamber every three days. While recess appointments may have made sense in the 19th century, which Congress would recess for weeks or months at a time, they don't make sense in our modern times – with indoor sanitation and airplanes and internet – and afford an opportunity for presidential mischief.

Trump's request for the Congress to let him make recess appointments is a litmus test for Republican leaders as to whether they will protect their institutional prerogatives in a system of separated powers or whether they will roll over. As noted Congress scholar Sarah Binder said recently, "If the Senate agreed to adjourn for the purpose of Trump filling his government without congressional input, it would be 'an absolute abdication of their constitutional power.” Abdication is the right word: without the Senate, the presidential power would become imperial. Noted stand-up philosopher Melvin J. Brooks once expounded that "It's good to be the king." But not so good for his subjects.

Standing up for Congress

There is a real question as to whether Speaker Johnson and Majority Leader Thune are willing to stand up for such a hard-won parliamentary power. President Trump brooks no dissent and they are eager to be seen as his loyal lieutenants. They and their members also are afraid of the power of Trump to marshall the Republican base to oust members who are viewed as "disloyal," although this is the moment furthest away from the next election when they could exercise maximal courage. Thune, recently elected as Republican leader, genuflected at Trump's demands for rapid confirmation, and Johnson and Thune may be wary of weakening their power bases in each chamber.

The reason I mention Johnson and Thune is an alternative scheme to force recess appointments. Under Article I, Section 5, clause 4, if the chambers are unable to agree on adjournment, the President can adjourn them and set a time for them to reconvene. This mechanism was designed as an effort to improve upon the British parliament because it generally allows and incentivizes the chambers to agree on a return date. In the UK, the King could end a parliamentary session at will. Here, Trump would turn this process on its head to allow the imperial presidency to cause a recess for the purpose of making appointments. FWIW, Mitch McConnell said yesterday that there will be no recess appointments.

Enter the circus

Making the choice harder for Johnson, Thune, et al are Trump's nominees for some of these positions. A fair number of Trump's nominees are odious to some Republican members of the House or Senate, both on personal and policy levels. The nominees represent nationalist, isolationist, and populist perspectives, some of which are anathema to elected Republican members. These conflicts also mean the nominees will be agents for Trumpism where personal loyalty will be more important than any other consideration. Elected congressional Republicans are terrified to oppose Trump, but these nominees represent policy preferences they do not share. What to do?

In the case of ex-Rep. Gaetz, nominated to serve as Attorney General, the traditionalist Republican approach is to collaterally attack him for his ethical and legal failings. Gaetz is not alone, as several of Trump's nominees have ethical blemishes, to say the least. Credible claims of mistreatment of women, ties to white nationalists, and crooked business practices are not unusual. But Gaetz is a special case because the House Ethics Committee has completed a report into Gaetz's misconduct and is ready to release it, but has not thus far

The House Ethics Committee - a digression

Let's digress for a minute into the House Ethics Committee. There are a few important things to know about the ethics process in the House of Representatives. It was created not necessarily to advance ethical practices, but rather to address and resolve a limited set of ethics complaints in such a way as to remove such complaints from public view and insulate members from accountability as much as possible. (Yes, I realize I have a cynical view.)

The Ethics Committee is composed of an equal number of Democrats and Republicans. An underlying reason is so that one party cannot easily use the ethics process against the other. It also facilitates a practice that has existed at times where each party protects their own members by, in effect, agreeing to treat complaints against members of the opposing party with kid gloves, in return for the same treatment. 

Historically speaking, the Ethics Committee's practices were so myopic that after a series of huge scandals that facilitated a switch in party control of the chamber, the House created an independent Office of Congressional Ethics in 2008 for the purpose of reviewing allegations against Members and making recommendations to the Ethics Committee. OCE's reports eventually must become publicly available, which is why members of each party at times have tried to destroy the OCE.

The House's Ethics Committee's modern practices, while insufficient, are far superior to what existed previously, which was a system that avoided accountability and consisted of widespread corruption and misconduct that a modern audience would find shocking. Before we speak too poorly about the House, it's important to note that the Senate Ethics process is barely a shadow of what the House provides and the corruption there was astonishing. (Here is a taste.) The modern Senate Ethics Committee essentially never disciplines a senator. 

This is not to say that the staff in the House or Senate Ethics Committee themselves are corrupt. I have found them to be smart and dedicated and hardworking and in some cases they have risked their careers to keep their integrity. But they inhabit a system created by each chamber to protect its members from true accountability in all but the more dire circumstances. 

Matt Gaetz and the Ethics Committee

So now we're back to Matt Gaetz, AG nominee and widely-disliked member of the House. One reason he is so disliked is that he played a key role in the defenestration of former Speaker McCarthy. McCarthy alleges that Gaetz became his adversary when McCarthy refused to stop the unfolding ethics investigation of Gaetz. On the other hand, Gaetz can argue the Ethics Committee was unleashed against Gaetz when he went up against McCarthy, and there is evidence McCarthy publicly revealed information about the secret Ethics Committee investigation. 

The Ethics Committee and Speaker Johnson have weighed in to prevent the disclosure of the Gaetz reports, perhaps in part to protect the interests of President Trump and in part to protect their own interests against allowing the public to have a view into the ethical behavior of members.

Gaetz resigned from the House of Representatives upon his nomination by Trump, although it's widely believed he resigned to stop the release of the Ethics report. That report, according to Punchbowl, was going to come out prior to the election but Speaker Johnson canceled the legislative workweek, which pushed the expected meeting to this past Friday.

While the Ethics Committee could have released the report, its Chair claims it lacks jurisdiction to do so as Gaetz is no longer a member. This is a common claim by the Ethics Committee, which routinely buries reports when members depart. In fact, the Ethics Committee provides members with the (substantially) complete report for their review prior to its release, which often has the effect of motivating members to resign and move on to other lucrative work, such as becoming governor of Georgia.

The Ethics Committee has in fact released reports or summaries of reports on members after they have departed. It's worth remembering that the Ethics Committee is not a court of law, but a House-created body responsible for governing member behavior that also makes recommendations to the chamber about what the Ethics rules should be. If they think they should do something that they believe they cannot currently do, they can recommend that the House update the policy.

Enter everybody

So now the House Ethics Committee has postponed its meeting to discuss the Gaetz report and Speaker Johnson is urging that the Ethics Committee not release the report. (So much for the newish Speaker not interfering in the Ethics Committee processes.) Meanwhile, Democratic and Republican senators on the Judiciary Committee have asked for the report – it seems unlikely they could successfully subpoena it – and now some Democratic members of the House are saying it should be produced. 

Finally, some members and outside stakeholders appear to be tacitly encouraging the report be leaked. For what it's worth, such a leak would be disastrous for the Ethics committee. I believe it would be much better for this information to be officially ordered released than for members to come to believe that leadership or partisans could unilaterally release a report out of malice or political opposition to a member.

There are several matters at stake. 

First is the fate of nominee Gaetz, collatorally attacked for his personal failings, his choice in enemies, and for his policy positions. He is hardly a sympathetic figure, but he has friends in high places and his policy views should be aired alongside his other qualities.

Second is the role of the Ethics Committee with respect to the release of the substantially completed Gaetz report. Keep in mind that in normal circumstances it would already have been released and all that was likely left was an opportunity for Gaetz to comment on the report to the Committee. Ethics may lean on its learned helplessness and claim that it lacks jurisdiction and thus cannot release the report, although the Committee could certainly vote on that question and also vote to recommend that the House order the Ethics Committee to release the report. 

I would imagine Ethics Republicans may feel pressure to be deferential to their Speaker, just as Ethics Democrats will feel the same way towards the Minority Leader. It is not unheard of for rank-and-file members to show courage in these circumstances, but not common. So far we have not seen public-facing positive leadership from the top of either party on this issue, although former Majority Leader Hoyer did call for the report's release to the Senate in the context of the nomination. 

Third is the desirability of senators in saying they give great deference to the president's nominees. This has often been a dodge for members to avoid asserting their policy preferences on a nominee so as not to upset their party colleagues, the president, or their constituents. It's time to grow up and have members be willing to assert their policy preferences when vetting nominees. We should not be transforming policy disagreements into fights over ethics. Senators are elected to have their policy preferences transmuted into policy making, and personnel is policy, so let them stand up for their policy views.

Fourth and finally, we are in the midst of House Republicans drafting and debating the Rules for the House of Representatives for the 119th Congress. There is a long list of ethics reforms that should be undertaken – from implementation stock trading rules to strengthening the independent Office of Congressional Ethics. It would be wise for them to debate and include a policy requiring that substantially completed House Ethics Committee reports be publicly released by the Committee. This should be done within a few days of their presentation to the subject of their investigation unless a majority of the committee votes in public to keep provisions of the report from being published.

For those interested, we have a list of bipartisan ethics recommendations for the 119th available here, and our recommendations for the 117th addresses the release of substantially completed reports. It's past time to fix the ethics process.

We agree that a lot more Sunlight is required. 

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Trump and impoundment

From the department of I-told-ya-so, the Washington Post's Jeff Stein reports the incoming Trump administration is considering the use of impoundment "to apply slash-and-burn business ideologies to the U.S. government." 

Impoundment is not just a threat to federal spending but a threat to a key power of parliaments that goes back to the Magna Carta. I'm not going to rewrite what you can read in the previous link, so let me just emphasize that allowing the president to violate federal law and refuse to spend funds appropriated by Congress would destroy one of the most important powers of the legislative branch.

But you don't have to take my word for it. Read the Wall Street Journal's Aaron Zitner and Siobhan Hughes article entitled "Trump’s Top Team Sets Stage for White House Power Grab."

The immediate locus for this work is likely the Department of Government Efficiency. Let me say that there are a lot of good ideas for making the government more efficient. Anyone reading reports from the Government Accountability Office of the various Inspectors General can easily identify billions (or trillions!) of dollars of ideas sitting on the shelf. Readers of Jen Pahlka's book Recording America can easily spot where process reforms might make sense. 

The presidential use of impoundment is like using an atom bomb to kill an ant. 

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Rules and Leaders

If all of that wasn't enough, this past week we saw House and Senate Republican leadership elections, with House Democratic leadership elections scheduled for next week. 

House Republicans hammered out a rules compromise that traded some party rules for changes in the chamber rules – like Plato's cave, we only see the shadows of what they're doing, although eventually it will be public. Here's a list of proposed conference rules changes.

What I've noticed is that Republicans in both chambers are having serious fights about the direction of their party via leadership elections and rules changes. This is healthy because it tests their aspirations against political support in the party and in the country and allows for the possibility of change. Democrats, by comparison, seem to be embracing the status quo, an unusual position given the election results but a reflection, I think, of the dominance of curtain factions within the party as well as a seniority-driven process that also maintains particular member-based alliances.

Senate Leadership in the 119th

Congratulations John Thune, the incoming Senate Republican majority leader. The first ballot was Thune-23, Cornyn-15, Scott-13. Johnson, seconded by Lee, moved for a two hour delay for the second ballot, which failed. After Scott was eliminated, the final result: Thune-29, Cornyn-24. Note the proceedings were closed-door. Note that 8 of Scott's votes went to Cornyn, and 5 went to Thune. This suggests he was not necessarily the kingmaker. Here's the official announcement, sans vote totals, of course.

News reports suggest Thune is more status quo than Cornyn, although it's not clear why senators voted as they did. The results suggest Thune does not automatically enjoy strong support from a majority of his party, which may make him more susceptible to the political winds than his predecessor, Mitch McConnell. However, as the Washington Post reported, all candidates "back[ed] a more open amendment process and solicit[] more feedback from senators." We will see how this plays out.

Punchbowl notes one distinction between Cornyn and Thune is that Cornyn supports term limits for the GOP leader, but Thune says it should be a conference-wide decision. Will there be a conference-wide vote?

Other Senate elections: Barrasso was uncontested for whip (#2 spot); Cotton beat Ernst for conference chair 35-18 (#3 spot); Capito uncontested for Policy Committee Chair (#4), Lankford uncontested for Conference Vice Chair (#5); Tim Scott is the next NRSC chair.

Thank you Ursula Perano of Politico for tweeting out all the vote totals! 

House Leadership in the 119th

Congratulations to Speaker Johnson, whose uncontested election was facilitated by a deal between the House Main Street Caucus and the Freedom Caucus that traded a determination to eliminate efforts to punish members from defecting on votes in return for raising the threshold for the motion to vacate to 9 members. Olivia Beavers has the story.

The House GOP Steering Committee will meet on Wednesday to choose committee chairs. They've updated the steering committee map, which sounds boring but really is not. Steering committee members are responsible for choosing who will serve on which committees. The steering committee is generally weighted very heavily towards leadership, but some rank-and-file are elected by region. Changing the regional lines means pushing someone out of a spot.

August Pfulger was elected chair of the Republican Study Committee, defeating Ben Cline 80-57, per Politico.

House Democratic elections

Democratic Leadership elections are this upcoming week. The triumvirate is running unopposed. There's some down-ballot races.

Looking at affinity-factions, Yvette Clark is running uncontested to lead the Congressional Black Caucus. Adriano Esaillat is unopposed for CHC. If Meng steps down for CAPAC, Meng will run for the spot.

Greg Casar is opposed for Progressive Caucus chair. Unclear who leads the Blue Dogs. New Democrats have a contested election between Sharice David and Brad Schneider. (All per Politico's reporting.)

House Chamber Rules in the 119th

I'm confused. I had seen reports that the House GOP was expected to internally debate the chamber's rules this past Friday, but perhaps they skipped out? 

One item on tap: Rep Luna's amendment (link) to allow for proxy voting for maternity leave. 

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Data, Congress, and AI

AI in legislative services is the subject of a new book released by Bussola Tech, entitled Artificial Intelligence in Legislative Services: Principles for Effective Implementation. 

The world e-parliament report is out.

Where do Senate bills die? The Center for Effective Legislating has a new report that tracks Senate bill mortality from the 115-117th Congress. Once they are reported by committee, do they receive further action, and if so, what? Some will pass the Senate only to die in the House, others will be incorporated into omnibus legislation in the Senate. (Presumably others will be incorporated into omnibus legislation in the House, or incorporated into report language not tracked by CEL.) They found an increasing number of bills in the Senate moving through legislative packages instead of as stand-alone bills.

Of the hundreds of bills sent over from the House, more than half die in the Senate without even receiving a hearing. About 1/4 of House stand-alone bills make it through the Senate as such and become law. A small but increasing number are incorporated into omnibus bills in the Senate.

They conclude: "these findings clearly point to [] that much more lawmaking is now being

done behind the scenes to produce larger packages of legislative language cobbled together and

voted on collectively."

This squares with my experience.

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Hacking the Library of Congress

Early news reports suggest the Library of Congress has suffered a significant hack “whereby an adversary accessed email communications during the timeframe of January to September 2024 between Library staff and congressional offices.” There is not much information as to who at the Library was hacked.

Further reporting from Chad Pergram at Fox: “it is believed that the hackers went after the Library of Congress because it is a softer target compared to the rest of Congress and lacks the more sophisticated systems which the rest of Congress use to guard against cyber spying.”

I don’t want to write too much here, but I’ve long been concerned about vulnerabilities in Legislative branch cybersecurity, including issues with coordination and oversight.

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Social media

What are the alternatives to Twitter? Popular Info has you covered. The Washington Post talks about the Members who've made it to bluer pastures. In the last week I saw the number of Members of Congress on Bluesky more than double, as well as the joining of a few committees. 

I heard some of my links didn't work last week, so let me try it again. I'm here on Bluesky. I'm maintaining lists of congressional reporters, congressional thinkers, and members of Congress/committees. (I'll eventually stop maintaining the members list). There are lots of folks maintaining starter packs, including for political newsletter writers, congressional journalists (shout out to Jim Saksa!), WaPo journalists, and on civic tech.

Are you on Bluesky but I missed you? Drop me a note. If you're on Twitter and you want to switch, there are easy tools to let you find all the folks who've been raptured.

Also, if you hate the idea of having to tweet in both places, you can easily use Buffer, which allows you to tweet on three different social media platforms at once. I've largely made the move over to Bluesky, which IMO does a much better job of allowing you to choose your algorithms and have better conversations.

Speaking of social media, if you're a hill staffer and you want to track how your boss is doing on social media, House Digital Services has a good Linked-in post on SocialStats. It allows House staff to track their office's trends on X, Instagram, and Facebook, including follower counts, number of posts, engagement scores, etc. This is a great tool – nicely done. 

I'm hoping that the House Clerk's office, as they update their LIMS database, considers tracking member presence on various social media websites – after they update their member data for the 119th, of course. 

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GAO and IGs

GAO's return on investment in FY24 was $76-to-1. 

New GAO restricted reports: "Ukraine: DOD Can Take Additional Steps to Improve Its Security Assistance Training;" "Secure Communications: Air Force Should Improve Accountability for Fully Modernizing Link 16 Radio Systems;" "Cybersecurity: NIH Needs to Improve Access Controls and Logging for Key Systems." Ask GAO for a copy.

The DOJ and the DOJ IG need to do much better for whistleblowers, according to two new GAO reports. (Justice Department report; DOJ IG report)

Who investigates inspectors general? CIGIE does, and they released two reports this week. CIGIE Integrity Committee determined charges of wrongdoing against the CFTC's IG were unfounded. However, the Integrity Committee found that the Assistant Inspector General for Audit at the U.S. Department of Treasury "abused her authority… when she wrongfully gave preferential treatment to a bidder on a government contract."

Odds and ends

No, babydog, no.

The Joint Center announced the launch of a campaign encouraging Members of Congress to hire diverse staff, including a website to track statistics and a letter showing support for such efforts.

Compared to the general population, veterans are overrepresented demographically in Congress by a factor of 2.5, according to Legistorm.

Now this is what nonviolent protest in a parliamentary chamber looks like.

New Member Orientation, this time around, has been upgraded, Roll Call reports. A new orientation app, a nonpartisan hospitality suite, e-signatures, and the ability to ensure continuity of casework. Good job, ModCom and House Admin.

Speaking of good ideas, a new academic article explores how bipartisanship shaped the ModCom. 

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What's happening this week on the hill?

The nonprofit organization killer bill is back. Last week it looked like it would pass on suspension, but it didn't,  so now it's under a rule. If enacted, it would let the Treasury Secretary kill non-profits they don't like by accusing them of terrorism. HR 9495 will go before the House Rules Committee today.

On suspension in the House is the Grant Transparency Act of 2023 (HR 5536). 

By the way, it looks like House Oversight is going to mark up a ton of good government bills, including the Timely Stock Disclosure Act, the Presidential Library Donation Reform Act, and others that look interesting. 

The House floor calendar looks relatively light, and I suspect the Senate will be focusing mostly on nominations. We will see if appropriations are kicked to next year, but I'm sure there's a lot of negotiations happening over the NDAA.

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Events

A federal framework for public participation and community engagement is the focus of new OMB draft guidance. They're looking for your feedback by November 29th. Go to their website to learn more and comment. Here's a high-level overview. Listening sessions are scheduled for Nov. 13th and Nov. 20th.

Anti-corruption day event, hosted by the Open Government Secretariat and OSTP, is scheduled for Monday, December 9. More info TBA.

The Congressional Data Task Force will hold its next meeting on December 12, 2024, from 2-4pm. You can attend in person or virtually. More information TBA.

The Open Government Federal Advisory Committee announced three upcoming virtual meetings on Wednesday, December 11, at 1pm; Wednesday, January 8 at 1pm; Friday, February 7 at 1pm.