From Capitol Hill to Constitutional Collapse
Appropriators welcome the public while Congress evinces a vanishing backbone
Appropriations season kicks off
Appropriations season is here for Legislative branch appropriations, and it's among my favorite things that Congress does. Let me take a moment to praise Chair Valadao and members of the subcommittee for bringing back an opportunity for public witnesses to testify in person. At the end of February, a group of organizations (including mine) asked appropriators to bring back this tradition, which allows members of the public to request to testify in person. Our response was this guidance, which says requests to testify in person are due by this Friday. I'm already working on my testimony. Can you imagine if all committees were so open as to let anyone request to raise an issue before the committee?
This Wednesday House Officers will testify before the Leg Branch appropriations subcommittee. Their testimony is not yet online, but we will hear about successes from the past year and funding proposals for: the House Clerk, Sergeant at Arms (who also serves on the Capitol Police Board), Chief Administrative Officer, General Counsel, Acting Inspector General, Law Revision Counsel, and Legislative Counsel. I've compiled a list of links to their testimony from last year.
Over the next few weeks, we can expect testimony from Members of Congress and the public as well as support agencies, which include: the Library of Congress (and possibly the Congressional Research Service), the Government Publishing Office, the Government Accountability Office, the Congressional Budget Office, the Office of Congressional Workplace Rights, the Stennis Center, and the Congressional Office for International Leadership.
The testimony submitted by these offices and agencies, the questions they are asked, and the bill text and report language from the House and Senate Appropriations Committees will in large part direct the work that they do and the resources available to them.
Legislative branch appropriations is able to move ahead in part because, unlike the Executive branch, they're able to articulate the funding levels that they want on time.
Legislative Branch approps and Capitol Police
Capitol Police Chief Manger testified before the House Legislative Branch Appropriations subcommittee on Tuesday, one day after Roll Call published a report about multiple incidents of individuals trying to bring weapons into the Capitol. (You can find his written testimony here.)
The hearing was a nothing burger – I should know, I was sitting in the second row. Besides a journalist, police brass, and members and staff, the only people in the room appeared to be January 6th truthers. Yes, that's right, the folks believe the Trump insurrectionists did nothing wrong and that Capitol Police overreached when protecting the House chamber against a screaming mob of would-be murderers.
The major line of Democratic questioning concerned Republican efforts to block the erection of a plaque to honor Capitol Police officers injured during the Trump insurrection. Apparently, it's politically tricky for Republicans to acknowledge that reality. Federal law requires it be affixed to the Capitol Building. Chief Manger did speak to the harm in morale for Capitol Police officers knowing that Republican leadership in Congress did not have their back.
The main line of Republican questioning concerned the security breaches. There was no discussion on the larger questions of the capabilities and structure of the Capitol Police and their ability to meet the moment.
I didn't get any of my questions answered, either. When I spoke with him afterward, Chief Manger wasn't able to tell me how many more USCP Inspector General reports were left to be published online pursuant to direction from appropriators. He pointed me to ask that of the Capitol Police Board, on which he sits as an ex officio member.
For what it's worth, I shook Manger's hand and thanked him for his service. The U.S. Capitol Police need major reform, as I have testified previously, but that requires political will from legislators, members of the Capitol Police Board, and the chief. That willpower has evaporated and won't return again until there's another disaster.
Appropriations and democracy
The appropriations process is a major source of Congress's strength. But since Sen. Schumer led a rump of ten Democrats to accede to Trump's FY 2025 appropriations bill without so much as a fight, Congress has diminished its capability to deal with the authoritarian regime at 1600 Pennsylvania that is consolidating power.
Senator Collins, who chairs the Senate Appropriations Committee, joined a letter complaining to OMB Director Russ Vought that the administration is not following the law when it comes to spending funds appropriated by Congress. She voted for the CR and has made concerned statements about impoundment, but the letter mildly states "that sudden changes to OMB’s interpretation of long-standing statutory provisions could be disruptive to the appropriations process and make it more difficult for the Appropriations Committee to work in a collaborative fashion with the Administration to advance priorities on behalf of the American people."
Presumably the citizens of Maine are no longer receiving the hoped-for benefits of having their senator rise to chair what used to be one of the most powerful political perches in the U.S. She and her colleagues in Congress have conceded their power to Trump through their votes. Anything they get now is a matter of discretion arising from obeisance, not a consequence of the assertion of their rights as legislators.
Among this week's outrages are the disappearing of individuals off the streets and sometimes rendered to prisons in other countries. This is being done pursuant to trumped up claims that they belong to terrorist organizations as well as for speaking out on policy matters. To help keep track, there's a new U.S. Disappeared Tracker, which has identified 246 persons disappeared by ICE.
Law firms and attorneys are another focus of Trump's attacks, with an Executive Order aimed at "so-called 'Big Law' firms that engage in conduct detrimental to critical American interests." This shakedown prevents the government from contracting with politically disfavored firms and removes security clearances from attorneys they don't like. Quisling legal practices like Skadden, Arps, Slate, Meagher & Flom have abandoned their commitment to democracy and instead pledged to "dedicate at least $100 million in free legal services" in support of Trumpian causes, according to the Associated Press. Another firm that apparently doesn't have its clients back is Paul Weiss, which does not understand that when the administration can determine who you represent and how you practice law, you're no longer practicing law at all. The law firms Jenner & Block and WilmerHale were able to obtain a temporary restraining order against the Trump administration's efforts to punish them for their advocacy.
Labor unions are the subject of a Trump Executive Order that would nullify longstanding Collective Bargaining Agreements for a long list of federal employees. Trump is asserting he has power to do this as commander in chief, i.e., because he says so, with the aim (in my opinion) of further destroying federal agencies and firing federal employees. This is an effort to root out a source of countervailing power to the president's will.
Trump nominated Thomas Bell to serve as the Inspector General as the Department of Health and Human Services. According to Legistorm, Bell is currently counsel for the House Administration Committee republicans and served in a few positions on the hill. The Associated Press described Bell as "brazenly political" for a nonpartisan role and notes he was "terminated from his role at Virginia’s Department of Environmental Quality in 1997 after a state audit showed he improperly authorized a nearly $8,000 payment to the agency’s former spokesman." The HHS IG was purged by Trump at the start of his administration.
The Trump White House is taking aim at history, issuing an Executive Order to force the Smithsonian Institution to whitewash its exhibits. This follows previous efforts aimed at libraries, the national archives, and others. "Those who control the present, control the past and those who control the past control the future."
And in "the courts aren't going to save us, part 97," the D.C. Circuit held "the law that blocks the president from removing members of independent agency boards is unconstitutional." Two Republican judges, who apparently have embraced unitary executive theory, are not willing to enforce Supreme Court precedent and protect independent agency leaders. Eventually this case will make its way to our heroes on the Supreme Court.
Columbia University gave up some of its academic freedoms in response to extortionate threats from the Trump administration that would have resulted in the loss of billions of dollars in funding. This includes placing its Middle East studies department under "supervision," reviewing the curriculum of departments to ensure they are "comprehensive and balanced," and hiring cops to arrest students who protest on campus. What could go wrong with a state enforced ideology and a crackdown on protesters?
Constitutional Collapse. Aziz Rana has a fascinating look at constitutional collapse, pointing out the connection between the failures in the United States and how the old Soviet Union led to ordering of democracy in the U.S. in the 20th century. He argues that America's "infamously undemocratic" legal-political institutions were only kept in check by the Cold War conflict, which in turn had the ruling class tamp down "ethno-nationalism."
Once the USSR was gone, "we therefore witnessed the gradual emergence of a reactionary right willing to defect systematically from the existing economic and racial compact. " He also notes that the circumstance was exacerbated by the "ideological and institutional imitations" of the then-existing political order. Raza explains "the constitutional system is what set the stage for Trump’s rise, return and current assault. Given the degree to which the federal bench is now shaped by the right, one cannot count on it to hold the line let alone serve as a site of positive reform." The end of his article focuses on possible sources for a new foundation for democracy, although I suspect most folks will be allergic to his analysis and prescription.
Chris Nehls considers how democracy funders should measure the moment. He argues that large donors kinda get it, but donor advised funds and wealthy individuals generally lack a sophisticated-enough model of American politics and thus are investing in the wrong interventions. Like Rana, he argues for grassroots mobilization, but suggests that such mobilization must be driven by the parties, not philanthropy.
Nehls ends with this kicker: "The pro-democracy field has an under-theorized conception of its end-state goals. It needs to invest in imagining the right end state and then fund reform projects that contribute directly to that vision." He's right. Maybe someone should buy them a subscription to this newsletter. Or drop us a donation.
Past due
It is indisputable that many Democratic leaders are elderly. Just to round up this week's stories:
Nancy Pelosi has been in Congress for nearly four decades and the New York Times profiled her challengers, her weakening political support in San Francisco, and her not-entirely-covert effort to elevate her daughter to her job should she retire. (Is this a political nepo baby?) The Times dances around the question of whether a major architect of the political order that resulted in Trumpism is fit to lead at this moment.
Senator Schumer continues to insist he's "not stepping down," and the persistence of the issue highlights that 4/5s of Democratic senators and every Democratic member of the House disagreed with his poor decision to rally ten Democrats to vote for the hard line Republican Continuing Resolution. Schumer has become a symbol of out-of-touch Democrats to the point where Senate candidates are saying they would not vote for him as leader. Politico suggests he's a dead man walking, but because no one will challenge him right now because it would create a "messy leadership content," Senate Dems will be led by someone in whom they don't place a lot of confidence. Here’s how they could fire him. If they keep him in place, other senators could start doing Sen. Schumer's job.
Senator Dick Durbin, the Senate Democratic whip and ranking member of the Judiciary Committee, is also the subject of speculation that he, at eighty years old, may not run again for Congress. Durbin was challenged previously for his leadership of the Senate Judiciary Committee in what was described as a proxy fight to allow younger blood in the Senate to have a chance to lead before they become superannuated. (Disclosure: I had defended him at the time.)
What can Democrats do? Dave Rapallo has a smart but partial list of what's in the minority's toolbox. I think he could further develop the intersection of speech in Congress and political organizing.
BAD DOGE
The Center for Progressive Reform is tracking illegal activities by DOGE, identifying their claims, the statutory or constitutional provision at play, and resources on why those actions are unlawful.
The White House issued an Executive Order to remove restrictions on agencies sharing unclassified federal information with DOGE.
The White House has removed a statutorily-mandated that made it possible to see how OMB was apportioning spending, which makes it possible to identify when the White House is engaged in illegal impoundments. That law, required in the FY 2022 appropriations bill (see direct link to sec. 204) required OMB to publish that information online as data. Protect Democracy published a training on how to use OMB's website to monitor executive branch decisions on spending and created OpenOMB.org as a more user-friendly interface for that data. House and Senate Democratic Appropriators have already raised the alarm and we will see whether Republican appropriators join in defense of the Congress.
Open Government
Who is manning the FOIA store? The Trump regime's federal firing spree has hit employees who process FOIA requests, but we don't know how many. Per a GovExec news story, House Oversight Committee Ranking Member Connolly requested agencies "submit the number of full-time personnel they employed in their FOIA office on Jan. 20, Feb. 20 and March 20, as well as all correspondence between the agencies and Trump administration officials regarding FOIA staffing." Will he get a response?
Congress this week
The House scheduled floor votes on legislation to limit the ability of federal courts to provide injunctive relief against the administration, make it harder to register to vote, and a bunch of other things. I am pleased to see the Leg branch related resolution on replacing the legal treatise Constitution Annotated with a digital version, something I've requested annually since 2009. You can see the House and Senate hearings here. The Senate, presumably, will be working to move more nominations. And at some point we will see a reconciliation bill.
Odds and ends
The X date, the date the debt ceiling will be hit, is expected between August and September, according to CBO.
If you want to know a little more about me and my career, I did an interview with the Great Battlefield Podcast about how I got this crazy job and my efforts to renew our government.
House Oversight Democrats updated their citizen's guide to using FOIA to request government records.
Rep. Mills is the subject of a newly-released Office of Congressional Compliance (formerly Office of Congressional Ethics) report that details multiple findings of possible campaign finance violations. The Ethics Committee has continued its investigation into the matter.
It's tough getting a job on Capitol hill, and former Executive branch staff are flooding the applications. There are many great folks from the administration, but substantive executive branch knowledge only goes so far. Congressional staff need to know how to play offense with the administration and Congress has its own set of skills.
Trump's secret police and freedom of speech.
The Office of Congressional Workplace Rights Board denied a petition for review of a complaint that the Library of Congress violated an anti-reprisal provision of the Congressional Accountability Act.
The White House tacitly endorses Signal. I'm not going to talk about the obviously illegal and hilariously stupid secret text message group at the White House except to say that everyone who is not subject to federal records retention requirements should be using signal to communicate.