Inside the Lame Duck Agenda

How the trifecta could prompt coalition-building that redefines minority party strategy

Dec 02, 2024

By the time you receive this newsletter I'll be most of the way to Brasília for a week-long conference on open government. The conference mostly focuses on open government in the executive branch, but there's a fascinating track on open government in parliaments. The U.S. Congress does a comparatively good job by my open government standards, with notable exceptions regarding Senate consideration of legislation prior to its online publication, a lack of a FOIA-like process for support agencies, the absence of historical bills and committee documents (which is being remedied), and its iffy ethics mechanisms.

Brasilia is only two hours in the future so I'll still be watching Congress in near real-time. This week we can expect to see efforts towards addressing appropriations, the NDAA, and the tricky questions of how the chambers and parties will organize themselves going into the 119th Congress. There's also the thorny question of what to do with Matt Gaetz's ethics report, which is expected to come up as a privileged resolution.

The top line

There's a lot of discussion about the narrow margin by which Republicans are likely to hold the House of Representatives and the ability of any member to become a "Joe Manchin." A more appropriate Senate model would be Jim Jeffords, the Vermont Republican who began caucusing with Democrats and switched control of the chamber in the early years of the Bush II administration. This lone wolf archetype is the wrong mental model, however. It doesn't take into account the Senate's small size, the existence of the filibuster (which allows any member to block any bill), and lack of a majoritarian Rules Committee that schedules floor action.

It is hard to imagine a single House Republican being willing to vote with Democrats on an issue, let alone criticize Trump or his policies, and last long as a Republican. Remember the example of Justin Amash, the principled co-founder of the Freedom Caucus who was the first Republican to call for Trump's impeachment. When he became an independent, he lost his committee seat by operation of House Rules and ultimately his position in Congress.

The trick to survival in the House as a dissenter is strength in numbers. A lone Republican dissenting from Trumpism will get marginalized, primaried, threatened, and kicked out of the party. One or two dozen Republicans who dissent from the party line and stick together on procedural votes is an effective force in the chamber – witness the leverage of the Freedom Caucus, the Blue Dogs, or (historically speaking) the Dixiecrats, Democratic Study Group, and progressive Republicans. The mechanisms for folks to survive in these circumstances is well described in Building the Bloc and what happens if they don't stick together is well described in Why Cities Lose.

The current model of the House of Representatives generally discourages cross-party alliances of conscience on high salience issues. As we're written before, party leadership demands procedural loyalty. Their goal is to move legislation that unites the party and divides the other party. If there's an opportunity to make life hard for a member of the other party, they'll gladly do it if they can pick up a seat.

This model requires a tacit agreement between the majority and the minority party leadership. It stops making sense for the minority party in the House to the extent they (1) are facing a trifecta, (2) believe the policies being enacted are a mortal threat to democracy (or their ability to come to power), and (3) believe some members of the majority are willing to dissent from the party line. Basically, if Democrats believe that Trump really is the democracy-killer, they should be willing to do anything they can to thwart that agenda – not merely wait for the upcoming election – and that means finding a way to get negative agenda setting power now.

Similarly, while Trump has dominated the elections, there likely are a sufficient number of Republicans in the House who disagree with him on a great many issues and are wary of his authoritarian approach to governance. This was illustrated when we saw a number of Republicans try to create a distinct voice within the party, only to be crushed between Trumpism and Democratic "unity." It is possible to lay the groundwork for these coalitions of convenience.

The first step is for the minority to get rid of the "unity is our strength" mentality. Unity in the minority is another word for losing votes. Find a way to make tacit alliances with subsets of Republican members, including by allowing your own members to "defect" in support of legislation that moderates Trumpian priorities. You may even be helped in these efforts by MAGA puritans who defect from the party in an effort to tug it further to the right.

Second, signal your willingness to partner with dissenting factions of Republicans. This can be accomplished through proposals to strengthen caucus organizations (eCMOs) to allow them to use official funds to organize, to allow members to serve and remain on committees even should they change their partisan affiliation (to independent or another brand of Republican), and to reach a nonaggression pact for primary and general elections. The signaling, and a supportni infrastructure, can be actualized by proposing reforms to the Rules committee so that its membership is chosen not by the party leaders but by the chamber members, which allows for proportional representation based on the various factions (and not the two parties).

All together, this challenges the bases of single party majoritarian control: appointment to and retention on committees (i.e. steering), the ability to move legislation on the floor (Rules Committee), the ability to have a distinct brand (i.e. "traditional" Republicans) to allow for fundraising, and collective coordination (i.e. through the various factional caucuses).

Democrats will have an opportunity to propose a set of reforms to the chamber rules as part of their rules package for consideration on the first day of the 119th Congress. It would be wise to release the proposal significantly in advance and to socialize it with Republican members. Because this is a high cost effort, it would signal a high level of seriousness.

In addition, Democrats could include other proposals in their rules reform package to sweeten the pot, from a populist stock-trading ban to an increase in the total number of staffers permitted. Even if Republicans are unwilling to support a more egalitarian rules package on day one, its very existence would force Republican leadership to moderate its position to stave off defections. As running the chamber becomes harder and more contentious, you may see more Republicans willing to join with Democrats to modernize the chamber rules.

"Wait," I can hear you silently arguing, this is all very unlikely, isn't it? It sure is. And the prospects are made even less likely because Democrats under former Speaker Pelosi perfected the top-down model of leadership that this would alter. That's why I said Democratic leadership would have to really, really believe Trump is an existential threat. But even if they don't, the various factional groups within the parties could build their own tacit or subterranean alliances and work towards and promote a change to the House rules along these lines. In fact, such alliances and rules changes have happened before in the House of Representatives.

Members of Congress generally are unhappy with the way the institution is run. For the last thirty years we've had a strong Speaker model that appears to have weakened the relevance of every member of the chamber. The take-over by MAGA Republicans of control of the Republican party in the House has been successful, but not everyone will want to go along with the presidentialist policies, which move control out of the Congress and into the White House. There are ways for more traditional Republicans to keep their brand as Republicans while charting their own course forward.

It's not very likely. But it has happened before.

Legislative and committee action

It's clean-up week in the House, with 52 bills on suspension and two bills subject to a rule. One bill is pure messaging: the Crucial Communist Teaching Act is intended to ensure students learn communism is bad and would create a new government entity to develop a curriculum that should (must?) be taught to students. (Perhaps an amendment from Rep. Scott that adds fascism as a topic for inclusion in the curriculum will get a vote, but I doubt it.) The other bill, the PROVE IT Act, requires the Energy Department to study and compare carbon emissions of products produced in the US versus overseas and publish that information in a database.

More interesting to me is that there are five bills on suspension to update the US code that should not change the underlying law but will transform slip laws enacted by Congress into the U.S. Code. (Here's an explainer). There's also legislation concerning judicial districts, a bunch of bills concerning public lands, and a whole lot of postal renamings, gold medals, and commemorative coins. I also see a reauthorization of the Office of National Drug Control Policy, legislation to manage agency software and to allow for public repositories of code generated in federal agencies (the SHARE IT Act), a federal agency performance bill, a bill to exclude service-connected disability compensation when determining a person's wealth, and legislation to address discriminatory land use policies.

As an aside, would someone suggest to the Majority Leader that each week's floor schedule should be published on the website at a separate URL?

There are only eleven committee meetings this week scheduled in the House, six in the Senate, and one joint committee meeting. I suspect some attention will be paid to CORE's hearing on COVID-19 lessons learned, a hearing into the attempted assassination of Trump and the public health dangers of PFAS exposures. The most consequential hearing is on the Veterans Administration's Budget shortfall, because the VA is a tremendously expensive agency. Most relevant to Congressional expert Kevin Kosar is a hearing on the US Postal Service. And for statecrafty folks, a hearing on the importance of rebuilding America's defense industrial base.

The Senate doesn't publish its floor schedule for the upcoming week in any meaningful way, although perhaps that will change under new Majority Leader Thune. On today's schedule: judicial nominations. Later this week? Who knows, but a notice from leadership for the upcoming week would be nice. My guess: judges, judges, judges.

Later on during the lame duck, I'd expect a vote on the National Defense Authorization Act, a Christmas-tree bill (just in time for Christmas) so named because it will hold scores of bills as ornaments to Congress's inability to pass most authorizing bills in stand-alone form. We are witnessing the 118th Congress's going out of business sale.

We also will see a Continuing Resolution, an omnibus appropriations bill, or some combination of the two. They are necessary to (1) prevent the government from shutting down and (2) allowing the government to spend funds normally. Likely riding along the Continuing Resolution will be a bunch of cash for disaster relief and whatever else the parties can agree to jam through. Will it include a fix for the debt ceiling, which will be hit in January? That'd be nice, but uh, is that my flight? Gotta run.

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AI and the savvy congressional office

How can Congressional staff use AI to help their productivity in their personal offices? Oma Seddiq at Bloomberg has one of the best overviews of the topic, prompted perhaps by Colin Raby's recent presentation at DC Legal Hackers. We alerted folks to Colin's planned presentation in previous issues of the newsletter, and for background I gave one of the earliest presentations on the hill in April 2023 on how to use GenAI (like ChatGPT) to help with staff work – Roll Call has a good summary – and I co-wrote an article about it in February 2023.

Colin's presentation, by comparison, went further, and contained a guide for prompt engineering that also linked to a guide to create a custom OpenAI GPT – all in the congressional context. It's very clever work.

The use of AI in parliaments is not new – don't believe the hype – with AI technologies being developed in legislative contexts for quite some time. For example, the Comparative Print Project, which shows how an amendment would change a bill in real time, started development in the mid-2010s, and there have been tools to identify related legislation for some time. The use of GenAI, however, is new, and we're tracking its deployment inside the Legislative branch and across the world.

House Republican Conference Rules for the 119th Congress

House Republicans have published their conference rules for the 119th Congress online and they're fascinating to read. First off, let me congratulate House Republicans for publishing their rules online – they have done so for years, which shows a real commitment to transparency. Here are their rules from the 119th, the 118th, and we've published all the party rules we could find online.

Naturally, I wanted to see how the Republican conference rules have changed, and there were a few major changes. Note that twenty amendments were initially proposed to the conference rules, and all were essentially dropped as detente was worked out between the Freedom Caucus and the RSG.

The first significant change is in Rule 2 (Republican Leadership) clause (e) (vacancies in elected leadership). Republicans adopted clause 2, which empowers the Speaker pro tempore to exercise the authority of the Office of Speaker to the extent necessary and appropriate in the event of a vacancy in the Office of the Speaker. (Last November I had suggested updating the chamber rules to address the circumstance of speaker pro emergency.)

The second significant change is in Rule 4 (conference election procedures) concerning nominations and balloting procedures. Republicans established a process that addresses contested elections with more than two candidates. In essence, the candidate with the lowest number of votes is dropped from the ballot until there is a winner who receives a majority of votes. If there's a tie between the lowest two vote-getters, the conference votes on who to kick off the island. A candidate can withdraw from the ballot after the results are announced. The Chair also will announce the results of every ballot, including the total votes cast for each candidate (including the losers). All of this answers the questions I wrote about in prior issues of the FBF concerning what exactly are the Republican voting procedures. (NB: Republicans, clause (b)(2)(B) has a typo: you want "one" not "on".)

The third significant change is in Rule 5 (conference meetings) clause (e) (Speakers). The elected leadership had been restricted to thirty minutes at conference meetings – likely so they could not filibuster and reduce the space for other business – but the Chair can now extend elected leadership time by ten minutes to receive an update from the NRCC Chair.

There are also a handful of pagination errors and the section "standing orders for the 118th Congress" may need to be updated, either substantively or by changing the header.

As of the time of this writing, I do not see any updates to the Senate Republican Conference Rules (which still say 117th Congress), House Democratic Caucus Rules, or Senate Democratic Caucus Rules.

At the start of the new Congress, we will see the Senate adopt a resolution governing how it will be organized, including the ratio of majority-to-minority members of Congress. Also on the first day the House will pass a number of resolutions governing its operations, many of which delegate significant power to the Speaker. Unless, of course, someone objects.

Follow the money (appropriations)

Appropriations cardinals – the people who chair the twelve appropriations subcommittees – are among the most consequential people in Congress, collectively responsible for shepherding around $1.7 Trillion in spending into law. They and their minority party doppelgängers (the anti-cardinals?) shape the base bill text for the twelve appropriations bills that fund the government, which means they decide what goes into the initial drafts of appropriations legislation and accompanying committee reports. This gives them a lot of power and a lot of leverage.

So the question of who gets to serve as a cardinal (or anti-cardinal) is a big deal, and the process by which cardinals are chosen is different from how full committee and subcommittee chairs are chosen in other committees.

Per House Democratic Caucus Rule 28, House Democrats pick their cardinals/anti-cardinals by subcommittee seniority, as determined by the order in which Members elect to go on the subcommittee, with (I think) final approval by the caucus. Per Republican Conference Rule 19, the process of selecting subcommittee chairs must be set out by the chair in writing in advance of selecting the subcommittee chairs, and those choices must be ratified by the Republican Steering Committee. The Senate subcommittee assignment process is briefly discussed in this CRS report. Matt Glassman has an excellent description of how House Democrats choose members for appropriations subcommittees.

With so many cardinal/anti-cardinal vacancies, this process is particularly important. Roll Call's Aidan Quigley reports that a number of cardinals/anti-cardinals were defeated in the last election. This means that some cardinals will be able to ascend to higher (more powerful) subcommittees and there will be a number of vacant spots for non-appropriators to join the appropriations committee.

Having a strong appropriations committee will be unusually important with Trump's decision to appoint Russ Vought as head of OMB. Vought is an advocate for the president's ability to decline to spend funds appropriated by Congress, a process outlawed in 1974 and known as impoundment. One consequence of the use of impoundment is it would destroy the ability of appropriators to negotiate, as any deal could be unilaterally undone after enactment by the president. It also is contrary to law.

One big open question is whether Congress moves its FY25 appropriations bill this year – don't forget the legislation should have been enacted by October 1 – or whether it is kicked to next year, which would create a pile-up and force agencies to continue operating under a continuing resolution. Should there be a CR, there's an open question as to what other measures would ride along with that bill. One can imagine disaster funding being included, but I suspect there's a fairly long wish list.

The debt limit deal expires on January 1, 2025, which means that the administration will have to use extraordinary measures to keep the government open, assuming the limit is not raised (or, I wish: eliminated) before then. Eventually, Congress will have to address that problem. Should any Republicans refuse to vote to raise or suspend the debt limit, Democrats may be asked to help out. Given Republican demagoguery on the debt ceiling, it will be interesting to see how it all plays out.

Do Republicans attach a sweetener to attract their fellow party members? Or forgo something to entice Democratic support? I can't imagine that Trump and Vought have an appetite for compromise, but it is hard to imagine how they can shift the blame for Democrats should the government shut down when Republicans control everything.

Who's the boss?

While this headline could be an allusion to a delightful episode of Community, it in actuality references challenges to top ranking Democrats on several House committees. Politico's Inside Congress previewed Jared Huffman's challenge to Raúl Grijalva as ranker on National Resources and Jim Costa's challenge to Angie Craig for Agriculture. Behind the scenes is the question of seniority, which is where things get interesting.

Seniority, as we discussed last week, is a mechanism that protects the rank-and-file against interference by leadership, but it doesn't necessarily result in good committee leaders. Congress didn't make much use of seniority in the 19th century as members turned over fairly rapidly. In the 20th century, it became a form of insulation – the longer you stay, the higher your rise – but had pernicious consequences when Dixiecrats came to dominate both chambers because they were in safe seats. The consequence was the Democratic party was unable to push the Democratic agenda forward.

The reaction to that issue in the late 60s and 70s was to bring the party back into the process. While the process by which committee chairmanships (and other positions) were chosen had followed seniority, now the party leadership (and membership) played a larger role. Several committee chairs were defenestrated as part of the reforms. Nowadays, party leadership dominates the steering committee and caucus membership is comparatively weak and disorganized.

We are no longer dealing with the circumstance of Dixiecrats running the House. Politico points out, however, that there's a strong countervailing force against removing incumbent chairs within the Democratic party. "The party’s identity-based blocs, the tri-caucus of the Asian Pacific American, Black and Hispanic Caucuses, has generally resisted term limits and stood by long-serving incumbents." Members of the tri-caucus usually come from districts where they are less likely to lose elections, which can make seniority a practical mechanism to come to power. The mechanism of seniority has historically meant that tri-caucus members were able to ascend up the party ranks to serve as committee chairs even in the face of racism within the party that would otherwise have blocked their elevation. One key issue for many tri-caucus members in choosing who to support as party leader is whether they are appropriately deferential to seniority.

Politico notes that tri-caucus members are not uniformly united behind any of the committee chairs under challenge. What's next? The Steering and Policy Committee will be formed and will meet in December. (I've written previously about how it is established and the overweighting of leadership voices.) They will choose who to advance. How will they decide?

The House Democratic Caucus rules make reference to rules governing the Steering Committee, but thus far I've seen no evidence that the Steering Committee has written rules and no one I've spoken with has seen them. This isn't entirely surprising – many committees didn't have written rules until the 1970s, which was how the Dixiecrat committee chairs controlled what happened. There could be a similar loose process in place for the Steering and Policy Committee, which holds secret ballot elections to recommend committee heads that must then be approved by the full caucus.

Democratic members should insist on publication of the Steering and Policy Committee rules, if they exist, or that they be created if they do not. Members should also have access to any precedents or regulations that are generated by the committee, and minutes of prior meetings should be available to members of the committee.

Choosing who serves on a committee is one of the four major levers of power that exist within Congress, and the fight over who should chair these committees is a microcosm of who gets to have a say in governing the chamber.

Lest we forget House Republicans, their steering committee will hear presentations from would-be committee chairs in the second week of December.

Senate Democrats are expected to vote for their party leaders on Tuesday.

Richard Neal, ranking member of the House Ways and Means Committee and subject of a lengthy Politico report suggesting ethical complications related to his committee work, is the focus of a push by Progressive Millionaires to no longer be allowed to serve as ranking member on that committee.

Capitol Police Inspector General Reports

We are pleased to report the US Capitol Police Inspector General recently published at least 32 IG reports that were previously unavailable to the public. As long time readers of this newsletter know, we (first at Demand Progress Education Fund, and now at the American Governance Institute) have championed the release of the IG reports because it provides accountability for the US Capitol Police and is in line with best practices for Inspectors General. The USCP was withholding the reports, but Appropriators directed the USCP to make the reports publicly available, and the Capitol Police have been complying at a glacial pace, instantiating a slow process that apparently requires sign off by the Capitol Police Board (which is not a best practice).

It is difficult to know for certain when new reports go online, although we use a tool to track changes on the USCP IG website. There appears to be a gap between when the Capitol Police Board approves the release of the report and when it goes online.

We see 32 new reports have gone online since we last reviewed the publication of USCP IG reports, with the majority from 2019 and 2018. That includes 3 new reports in 2024, 1 in 2023, 2 in 2022, 3 in 2021, 2 in 2020, 8 in 2019, 8 in 2018, 2 in 2017, 1 in 2016.

A November 2020 USCP IG report – directed to be released in July 2024, likely published afterward – analyzes arrests made by the USCP. In our previous incarnation at Demand Progress, we spent a lot of time analyzing arrests. The USCP IG reports that the USCP tracked arrests via the DC's MPD and lacked the tools to fully analyze arrest data, including demographic information. However, the USCP was in the process of procuring a new tool to allow them to do just that, which should be available as of 2021 and allow for the analysis of all arrests.

The USCP report on arrests includes a breakdown of arrests by demographic data and type of arrest. Someone more conversant with appropriate police procedure than us should analyze whether the breakdown of arrest, particularly for felonies (where the number of black arrests far exceeds white arrests – see page 8) is appropriate for the region. Overall, the IG report is useful and we would hope to see similar reports on an annual basis. (Hint, hint.)

In light of the recent email breach at the Library of Congress, this newly released March 2019 report on USCP Email Security may be of interest as well. The IG found: "USCP did not implement some internal controls that could have improved the security of the Department's email. Without proper internal controls, USCP ran the risk of third parties reading outbound emails in transit and possibly and unknowingly using servers with compromised settings." It is unknown whether the USCP implemented the three recommendations from the IG.

Obviously, I haven't read the 30+ reports that came out this past week, but here's a list:

It is notable that the release of the reports doesn't necessarily mean that they will be informative. Some reports are almost completely redacted. For example, the USCP IG FY 2024 performance plan is entirely blacked out – see pages 4 and 5. By contrast, the exact same report from FY 2022 is largely not redacted (see pages 5 and 6). Why the disparate treatment?

The FY2024 USCP IG performance plan is entirely blacked out while most of the plan for FY2022 is visible. — Comparison of FY24 (left) vs FY22 (right) USCP IG Performance Plans

My best guess is that the USCP is not following any standards in how they do their redactions. When you FOIA a document from law enforcement in the executive branch, they must identify specific reasons to withhold information and cite to the section of law that gives them that authority. In addition, you can challenge their redaction decisions in court, so such decisions cannot be arbitrary. There is no such process for the USCP, but it's not for a lack of trying.

Congress directed the USCP in 2021 to create a FOIA-like process. They still have not complied with the direction from Appropriators. We wrote about it at the time. Should the USCP decide to finally follow what Congress has directed, we have model regulations they should implement. Pro tip: not everything is law enforcement sensitive. And just because you can redact something does not mean you should.

The reason why we care is that organizational dysfunction often arises when there are insufficient accountability mechanisms. The US Capitol Police cannot fail at their mission but as January 6th illustrated, they did. Part of the reason they failed is because they became insular, were able to ignore the USCP IG, and were not subject to the same scrutiny as other law enforcement agencies, such as that provided by FOIA and regular congressional oversight. The release of the IG reports and implementation of a FOIA-like process puts pressure on the USCP to perform better, creating a virtuous feedback loop.

To date, the USCP has released 65 IG reports. The recent tranche doubles the number of publicly-available reports, which is good news and likely reflects a lot of hard work. But there are many more to go. We've seen various numbers thrown around for the total number of IG reports the USCP is required to release, anywhere from the mid 100s to over 600. Maybe they should publish a list of all their reports so we can track the progress? Nonetheless, the USCP still needs to publish many more reports and to start to integrate those reports onto Oversight.gov, the central website for federal IG reports.

Odds and ends

The Secretary of the Senate's report detailing Senate expenditures was published on November 26th, although the period covered in the report is April 1, 2024 to September 30, 2024. While the House of Representatives publishes this information as structured data – in a CSV file – the Senate (alas!) still publishes it only as a giant PDF. The entire document is 2,979 pages. I hope the Senate will pretend like it's the mid-90s and start publishing this information as a spreadsheet. If they want to know how to do it, just look at the other chamber.

The Architect of the Capitol published their annual performance and accountability report for FY24.

Bluesky. Good news, everyone. If you want a list of Members of Congress on Bluesky, there's now a (semi-official) list maintained by Rep. Gwen Moore. I'm going to discontinue mine. BUT – don't miss my list of hill reporters and hill wonks. Did I miss you? Send me a note asking to be included and I'll update.

Events

What's the connection between AI and public participation? OSTP is hosting a panel discussion on Monday, December 9 from 1-2:30 ET with representatives from various governments to discuss their experiences incorporating principles on public participation and community engagement in their work on AI. More here.

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.

The Congressional Data Task Force will hold a public meeting on December 12 from 2-4pm.

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