Governing Between Elections
This week's First Branch Forecast pulls back the curtain on fights over party & chamber rules to discuss what happens when our Congress looks more like a parliament.
Welcome back, First Branch Forecast subscribers. (Yes, we’re now on Substack.) Aren't you happy this isn't a newsletter about elections?
We will keep our focus on what happens between the elections, what some people might call "governing" or "policymaking" or "statecraft." In particular, how we make our federal governing institutions work better – with a special emphasis on the Legislative branch.
The most critical work happening this week are (some) leadership elections and (some) adoption of party rules by the party caucuses. The party rules, in concert with the chamber rules, shape everything that is possible inside Congress – even more than who is elected leader or who is elected to Congress. Incoming members would be wise to not simply go along to get along, but to assert that their rights and prerogatives are protected in the rules before they vote anyone into office.
What’s inside this week’s newsletter?
A preview of what’s happening this week in Congress with the parties, in committees, and on the floor
The shenanigans around party rules and leadership elections
A look at a new report on AI and legislative drafting
Whether Congress is really ready for an emergency
Parliamentary news from around the world
And a whole bunch of odds and ends
What’s happening this week
The House returns on Tuesday, with a bevy of suspension bills. There's a bunch of good government bills, including the Eliminate Useless Reports Act (H.R. 9596), the GAO IG Parity Act (S. 1510), the Federal Acquisition Security Council Improvement Act (H.R. 9597), and the Federal Register Modernization Act (H.R. 9592). On the other hand, there's the Stop Terror-Financing and Tax Penalties on American Hostages Act (H.R. 9495), which appears to be a loaded gun handed to the Treasury Secretary to kill off any non-profit he doesn't like. The legislation is a typical product of the marriage of the imperial presidency folks and the national security hawks.
There's a handful of hearings in both chambers, but it looks like a fairly light schedule for obvious reasons.
Trump's election puts the upcoming appropriations process and NDAA in a state of flux. Trump will call the shots on whether Congress votes now or in 2025 to fund the government. (If he's smart, he'll let Congress clear the decks.) Update: outlook is cloudy, ask again later.
On the point of appropriations: Pres.-elect Trump's desire to use impoundment is the sleeper issue that will destroy the appropriations process. Basically, if the president can choose to not spend money from a bill already signed into law, negotiations over spending decisions that require Democratic support (in the Senate) become meaningless. No deal will be permanent because Trump won't be trusted to carry out a bargain negotiated in the Senate.
Anyhoo, coming up shortly is the return of the debt limit in January. The last time this came around Speaker McCarthy lost his job. Maybe it'll come up at Speaker Johnson and the House Republicans victory lap press conference today at 10 a.m. on the Capitol steps.
The debt limit is a demagogue's dream: people think it is about the decision to spend money, but in reality it's the decision to borrow money to pay for what you've already spent. In any kind of sane world it would not exist. Because of this popular mis-perception, Republicans have been unwilling to vote to raise the limit, or suspend the ceiling, or get rid of it entirely. Now that they own Congress, the White House, and the Courts, they can't dodge the vote even as I expect they'll move to massively increase borrowing through tax cuts.
Will Democrats vote to help them out? Will they make Republicans carry the consequences of their demagoguery on the ceiling? Will leadership find a way to sweeten the vote to make it go down better? Will we see a credit default that puts the U.S. in dire financial straits? Will some Republican factions break away from leadership to make a deal? Will I end this section on a question?
Nah, I'll end it with a reminder that the First Branch Forecast is funded by people like you. Well, I hope it's funded by you specifically, because everyone we know with deep pockets spent all their cash on elections-related stuff. If you like our little newsletter, please donate to the American Governance Institute, our non-profit organization that allows me to write using the royal "we."
Party leaders and rules
The Senate Republican conference was in for a rude awakening when Pres-elect Trump tweeted he would only support a party majority leader that would short-circuit the Senate confirmation process and provide for immediate recess appointments, a policy immediately #ditto'd by Sen. Rick Scott. Senator Thune reportedly said "all options are on the table," which seems like a noncommittal committal. Senator Cornyn appears to be threatening senators with having to stick around and work should a blockade occur.
In response, noted institutionalist Sen. McConnell said …. Come on, really? Sen. McConnell? Moving on.
The Senate confirmation process is an opportunity for the Senate to vet nominations, which involves receiving significant background from the nominees including the completion of an in-depth questionnaire, a background investigation related to national security, a hearing with questions by senators on the relevant committee, and so on. Senate confirmation is a Constitutional requirement, and recess appointments were designed for a time when the Senate wasn't able to meet for long periods of time. Admittedly, the Senate confirmation process is bloated and ridiculous, but it can serve as a hurdle to some unqualified individuals. The fifty-vote threshold is easy to attain, and it suggests a concern that some of Trump's nominees may not even enjoy majority support in the Senate.
We may learn more about the views of the candidates for majority leader when Sen. Lee hosts a Senate GOP leader candidate forum at 6:30 pm on Nov. 12.
One thing to watch: just as Rep. Johnson's ascension to Speaker marked the end of traditional Republicans holding agenda-setting power in the House, so too may be the vote on the Republican majority leader mark the end of traditional Republicans setting the agenda in the Senate. It also may mark the end of the relevance of the Senate on a wide variety of issues as it cedes its authority to the White House. We've long talked about the imperial presidency, now we may get to see it.
Timing. House Republican leadership elections are Nov. 13th, with a candidate forum at 9 a.m. and the vote at 2:30. The conference rules are expected to be considered on Nov. 14th and 15th. Per POLITICO, Republicans will consider a variety of conference rules proposals, but as Olivia Beavers notes, even though the amendments were due last week, they still haven't been made publicly available or otherwise reported.
House Democrats will hold their leadership elections on Nov. 19. Steering committee decisions on who will chair the committees will not take place until December, according to Punchbowl. No word on when they're going to vote on their party rules, or the text of any possible amendments.
Senate Republicans will hold their party elections on Nov. 13th. No word on the timing for the vote on party rules. Senate Democrats are expected to hold their elections some time in December.
I am absolutely astonished that some corners of the Democratic Caucus in either chamber do not appear to be pushing for changes in the caucus rules or in leadership. The fighting inside the Republican conferences shows how the factions are working things out. The fight over leadership and rules are how you battle test ideas and messages. No fight, no reality check. Stasis leads to decline.
Women may be locked out of serving as House committee chairs as Republicans retain control of the House – this is one part of a significant gender gap between the parties, POLITICO reports. Democrats have three times as many women legislators in Congress as Republicans. One aspect of addressing the problem is making Congress more family friendly, with calls for proxy voting in lieu of maternity leave and changes to the House's schedule. Reps. Luna and Boebert are pushing on proxy voting, although Rep. Stefanik has worked to "shut down the possibility" of proxy and remote voting; Rep. Mace is pushing for schedule changes.
It appears Stefanik's opinion may matter a whole lot less, at least with respect to House operations, as she is expected to be nominated as Trump's ambassador to the UN.
The Republican Study Committee will hold its internal leadership elections on Friday, Nov. 15, according to POLITICO's Inside Congress.
The various factions inside the House Republican conference have started putting forward their own ideas for what should be included in the House Rules package, according to Punchbowl. My experience suggests this has been going on longer, and don't forget to check out recommendations from the Foundation for American Innovation and AGI's joint report that contains recommendations for updating the House Rules. More here.
AI and legislative drafting
AI-based solutions for legislative drafting in the European Union is the title of a new report from Dr. Fotios Fitsilis and Professor George Mikros that provides an overview of efforts to update LEOS, the EU's open source tool that allows users to create and draft legislative acts with a web user interface. The report includes a discussion on efforts to augment LEOS, an evaluation of the use of LLMs in drafting legislation, and a roadmap for future work. We are compiling reference documents on AI in Parliaments on our wiki page.
The report's main finding: "AI and LLMs can improve the quality and efficiency of legislative drafting, e.g., by automating repetitive tasks, providing quality checks, and aiding in the extraction and analysis of information. In this regard, despite the potential of AI, the interviewees emphasised the importance of human oversight in the legislative drafting process." But for this to work there must be "a significant cultural shift among policy officers."
Are LLMs up to the task? The research suggests that leading LLMs have significant limitations when handling basic legal text, but fine-tuning LLMs "achieve near-perfect performance on test set" data. There's also a choice to be made between using LLMs and Hybrid AI systems, the latter of which incorporates rule-based logic and machine learning capabilities. A list of smart functionalities that AI could address are listed starting on page 41.
The report recommends to immediately start with implementing select functionalities to build experience, deploy in-demand features, and hedge against risks of rapidly changing requirements. In addition, it recommends continuous monitoring of the technical landscape and to move to scale solutions only after confirming the viability of pilot projects. The use of open-source and open standards are essential, enhancing transparency and trust.
A Capitol campus for all
The Office of Congressional Workplace Rights released a letter the day before the election reminding everyone of its obligation to inspect all congressional facilities for compliance with the Americans with Disability Act regardless of whether that space is open to the public. It reiterated "facilities and spaces that are not open to the general public must comply with section 210 of the CAA … and are accordingly required to be inspected" by the Office of General Counsel.
We are getting the impression, although it is not stated anywhere, that folks at the Capitol Visitor Center asserted that some spaces need not be inspected for ADA compliance by the OCWR.
Continuity of Congress
Continuity of Congress is the focus of a newly released hearing transcript from the House Administration Committee. As you know, what makes these documents interesting is that they contain the questions for the record, in this case starting on page 68.
The first question is a banger: "can you describe how the House would function if – tomorrow – there was a mass casualty incident, with over 100 Members either dead, incapacitated, or missing?" The answer from CRS's R. Eric Petersen is unsettling – there's never been a change in power mid-Congress in the House – and there's no official procedure to determine when members are officially declared missing or incapacitated. And then there's the issue if the Speaker is dead: is the House stuck in a cycle of trying to elect a new Speaker and cannot transact business under a pro tempore? Could be.
Another question: if Congress were to experience a mass casualty event, would it be supplanted by the executive branch? The answer: "this is a low likelihood, high consequence occurrence." In light of recent events, Petersen may change his opinion on the likelihood.
Former parliamentarian Tom Wickham appears to note that the Courts may only accept changes in the House rules to deal with a disaster that significantly reduces the number of members in a circumstance where rules addressing how to constitute the House and count a quorum are passed in advance of the emergency.
Are the states ready to hold snap elections? GAO's Rebecca Gambler identified a number of areas where state officials would struggle. These range from accurately preparing ballots, ensuring voting machines properly work, the likelihood of increased misinformation that could damage confidence in elections. Oh, and that the states aren't in compliance with federal law with respect to when they would hold the elections.
Around the world
Reinventing Democracy for the 21st Century is the theme for the 4th Global Conference on Parliamentary Studies, scheduled to be held in Athens, Greece on June 13, 2025. "This conference invites leading parliamentary experts from around the world to examine the intersection of technology, policy and societal change within parliaments, and to propose innovative solutions for reinforcing democratic principles." Scholars, researchers, and practitioners are invited to submit paper abstractions by February 28, 2025.
The organization, administration, and privileges of legislatures around the world is the topic of a new primer released by International IDEA (the International Institute for Democracy and Electoral Assistance).
What's the point of petitions? The UK's Hansard society reports that, after voting, the most common British political activity was signing a petition. How has it evolved and what's its use in modern society? In theory, the U.S. Congress still can receive petitions, but the practice of receiving petitions has changed dramatically. (Look here to see modern petitions to the House and Senate.)
Odds and ends
Democrats members and staff went to significant lengths to protect themselves should Trump's threats of retribution come to fruition. Hold that thought.
Back in September we mentioned that the Office of Special Counsel was undertaking new actions to protect federal workers. One of those actions is to publicly disclose when an agency is not taking timely and responsible action to respond to an employee alleging whistleblower retaliation.
They are as good as their word: check out this new website from OSC that shows "open whistleblower disclosure investigations where OSC determined there was a 'substantial likelihood' of wrongdoing" and the agency still has not acted after 60 days. The worst agencies so far: Homeland Security (8); Veterans Affairs (8); Transportation (5); Justice (4), and see the page for more.
Rep. Valadao discusses the Legislative Branch Appropriations Subcommittee as part of a series of Approps 101 interviews.
A former US Capitol Police Officer pleaded guilty to a felony. Officer Thomas Smith, instead of conducting a security check, engaged in a high-speed pursuit contrary to agency policy, crashed into a motorcycle, fled the scene, concealed the crash, and lied to his superiors. In spite of all this, the AUSA said "the [plea] agreement is the 'most lenient plea offer' the parties could agree to."
The Capitol Police arrested a man who "was trying to get into the U.S. Capitol with a flare gun, torch lighter and bottles of fuel."
The Age of Acrimony could be an epithet for our times, but it's the title of a book covering the years 1865-1915 and the focus of a Jonathan Martin column about the last "convulsive" era of politics.
Procedural nerds likely followed the unusual unanimous consent motion made during a pro forma session of the House this past week. POLITICO's Inside Congress tells the tale of the effort to sabotage a bipartisan discharge petition on Social Security. Ringwiss has the blow-by-blow.
Rep. Gerry Connolly, in a letter to his constituents, wrote that he has cancer of the esophagus and will undergo chemotherapy right away.
Are we all Marxists, at least when it comes to the Senate? This provocative idea, and whether we can revive the moribund upper chamber, was the focus of a great discussion hosted by AEI's Kevin Kosar with Tony Madonna and James Wallner. There was some agreement to prune the Senate's rules, a discussion on whether to nuke the Senate entirely, and how party rules could be leveraged to decentralize power.
At least twenty members of Congress are now on Bluesky, and I'm watching tons of people move over in the last few days. I'm keeping a list of both members of Congress and of Congress-watchers, and you can find my account here. If you're a Capitol Hill journalist or a Member of Congress, let me know if you join.
Events
If you want to comment on the U.S. government’s open government National Action Plan, the deadline to submit your ideas to the federal register is November 12th.
An Evolving Legislature: How Historical Moments Influenced the Modern US. The Library of Congress hosts a special discussion on the evolving House Rules Committee with Breanna Gray and Sarah Binder on Nov. 13th. Join in person or watch online. Also, a good read, if somewhat dated, is "A History of the Committee on Rules."
The House Office of the Whistleblower Ombuds will have a pop-up tabling event in Longworth Cafeteria from 12-1:30.
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.
DC Legal Hackers will host Colin Raby, a congressional AI specialist, to discuss AI in Congress on Nov. 14.
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.
A final programming note
I've resisted it for years, but this newsletter is now on substack. We've got a bunch of readers, but it's pretty hard to grow that list, and substack is good for that – and for handling donations. We'll see how all that goes. Thanks for your patience, and don't forget to add this email address to your allow-list. Tell me how we did.