Power, Ethics, and Bathroom Politics
Exploring McConnell's next steps, Trump's gravitational power, and the endgame for the 118th Congress and Democratic agenda-setting power
Congress is in recess this week but will be back after Thanksgiving. Last week was consequential for questions concerning whether political power will remain in Congress or be centralized in the Executive branch. The acid test will come on January 20th.
The top line
Senator Mitch McConnell’s next act as chair of both the Senate Rules Committee and the Defense Appropriations Subcommittee promises to be a masterclass in influence—spanning election laws, Senate operations, and the fate of billions in defense spending. With decades of experience dismantling campaign finance restrictions and navigating shifting GOP dynamics, McConnell’s moves will undoubtedly set the stage for the balance of power in Congress and its relationship with the Executive branch. Meanwhile, evolving party rivalries and leadership shuffles keep the House in flux, with competition for key committee roles reflecting deeper ideological and patronage-based rifts.
As Congress wrestles with modernization and transparency, the Legislative branch’s data accessibility remains an uneven playing field. The rise of costly private tools like Punchbowl's new Portal underscores a glaring disparity between resources available to the public versus high-paying lobbyists. While civil society organizations work tirelessly to bridge this gap, the disparity plays out in terms of legislative success. Add in ethics contretemps, culture war salvos, and bold (if dubious) plans to reorganize the federal government, and you’ve got a legislative landscape as messy as it is consequential. We cover all this and more below.
McConnell's rules
Senator McConnell announced he will be the next chair of the Senate Rules Committee as well as the chair of the Defense Appropriations Subcommittee. These two positions will give him significant influence over election law, the operations of the Senate, and the majority of discretionary federal spending.
Now that he's freed of the mantle of leadership, what will he do? The dismantling of limits on money in politics has been a decades-long dream for Sen. McConnell, one that he has largely accomplished, but this will give him an opportunity to further cement rule by oligarch. Perhaps we will see more campaign finance anti-reformation legislation. He may change fields, however, and instead focus on efforts to narrow access to the franchise.
Sen. McConnell is well known for his hawkish views, particularly in defense of Ukraine and Taiwan. This places him partially out of step with the MAGA wing of the party. Nonetheless, we may see further efforts on his part to prop up US involvement in Ukraine as well as to keep the spice flowing to defense industries, especially with defense contract spending in FY 2022 at around $414 Billion. Preparing for hostilities with China does mesh well with the MAGA anti-Chinese rhetoric.
Of particular interest to Legislative branch institutionalists is how Sen. McConnell will use his new post to advance operational modernization across Congress. In this field, there is the potential for him to make a positive impact. In many ways the Senate Rules Committee is the fief of the party leaders. With Sen. McConnell's experience as leader, he could bring significant credibility and capability to reforming the Legislative branch and make Senate Rules a more active committee. If he did this, it would be a notable capstone to his career, especially should he work to attenuate the power accreting to the Executive and Judicial branches. In addition, there is a great need for technological modernization of the Legislative branch, and the Senate has been lagging behind the House, so perhaps there's an opportunity for a great leap forward.
And now a word from our sponsor
Do you like what you're reading? Do you think there should be an independent advocate for open and accountable government that can work the inside and outside game? Would you like to see government work better? It's that time of year, and I'd really appreciate your tax-deductible donation to the American Governance Institute. If every reader of this newsletter donated $125, we wouldn't have to ask you again for support until December 2025. Thank you.
Congressional Technology
Punchbowl News, the congressionally-focused news service that at times is the preferred mouthpiece for party leadership, launched a new congressional data analysis service called the Portal. Features include a staff directory, bill tracker, transcripts, and news integration. They join a handful of pay platforms whose costs range from the hundreds to tens of thousands of dollars and provide lobbyists superior access to information about Congress.
These subscription services are built on top of the work of the Legislative branch, which provides significant data to the public but often with a delay, in unwieldy formats, or without considering user-centric design. While there has been significant progress in the dozen years since the launch of the Congressional Data Task Force on improving platforms for public access, the gap of what's available to the general public and what's available for a significant fee provides a significant edge to those with financial resources.
Congress should continue to work to close these gaps. There can be a significant delay between when legislation is introduced and when it is available on Congress.gov – just look at the appropriations bills; the House and Senate do not make available unofficial immediate transcripts from committee proceedings; and there is no public-facing free staff directory. CRS doesn't make available its historic reports, which props up a 7 figure business reselling that data, and companies make bank selling access to committee prints (such as committee reports) and older bills.
Ironically, the Legislative branch has built a number of cutting-edge tools. These include the comparative print project, which allows you to see how an amendment would change a bill in real time; and the new staff directory tool LegiDex, which when fully implemented will allow staff to search across the Legislative branch by policy issues that a staffer works on. Neither of these tools are available to the public at the current time.
Civil society organizations like mine have worked hard to close these gaps, launching websites like everycrsreport.com and allowing users to see the relationships among various bills, as well as working with Congressional stakeholders, most notably through the Congressional Data Coalition. I have a list of instances where we've addressed some of these shortcomings, as well as scars from certain agencies who have fought improvements every step of the way. These are all tools Congress should build for itself – some have been built already – and we need more capability to build better tools faster.
Fortunately, with support from leadership, committees, personal offices, some support offices and agencies, as well as from civil society organizations, journalists, and some businesses, we have made significant progress over where we used to be. Alas, diminishing support in recent years from funding organizations like foundations has slowed civil society's ability to pilot new tools, but perhaps that trend will reverse. There is nothing wrong with the private sector building tools – that has always been one of our goals – but that only works when folks give back to the public commons.
If you want to be part of the solution, the Congressional Data Task Force will hold its next meeting on December 12, 2024 from 2-4. This is the congressional-public task force that works to improve access to data and coordinates on building new tools.
Ethics-Gaetz
Pres. Trump's bid to elevate Matt Gaetz to Attorney General has failed, but in doing so it illuminated interesting aspects of how Washington works in the Trump era.
Many Republican senators were unwilling to come out and publicly oppose Gaetz for the job. Instead, a few worked behind-the-scenes to privately suggest that he would not survive a confirmation process, and members in both chambers worked to elevate his ethical issues as disqualifying. Looking at who else has been nominated, and the characteristics of Trump himself, it appears that neither ethical problems nor a lack of experience are disqualifying by themselves.
So what did Gaetz in? We could point to his pugnacious personality, but he shares that characteristic with others. I suspect a significant factor is his policy views. But since criticisms of those views cannot be addressed publicly, this is the process we got instead. A test of this theory is to see how Tulsi Gabbard is handled.
Of equal interest was the debate over whether the House Ethics Committee should release reports for which the substance is completed but the release is interrupted by the resignation of a member.
There were a handful of factually incorrect statements made in an attempt to prevent the Gaetz report from coming out, as well as some norm-breaking behaviors. For example, the Speaker usually does not speak out in an effort to influence Ethics Committee proceedings. It is untrue that these reports are always withheld after a member resigns.
The Ethics Committee evenly split along party lines on whether to immediately release the Gaetz report as is. Some asserted it was not complete, which appears to be misleading – it is apparently substantially complete, but it did not incorporate any final letter from Gaetz. The Committee did vote to release the report when it was "finished," presumably incorporating any statement from Gaetz.
With Gaetz's withdrawal, we can imagine there will be once again an effort to prevent the report's release. This is unwise: these reports should be routinely released once they get to this stage. Doing so incentivizes bad actors to get off the stage before reports get underway and it allows for the public to be alerted when a member has engaged in conduct that violates House ethics, including matters that are criminal and otherwise should be viewed with disapproval.
The problem does not end when a member resigns, either. Why should former Rep. Gaetz be allowed on the floor of the House of Representatives, one of the privileges afforded to him by virtue of his previous office, if the Ethics Committee has reason to believe that his conduct is so egregious that he should be sanctioned, censured, or even removed from office?
My favorite argument was that Republicans would make privileged motions to release Ethics Committee reports concerning Democrats should Democrats push for the release of Gaetz's report. This encapsulates the detente theory of ethics, or why most reasonable observers would conclude an independent ethics process is needed. I won't get into all that now, having written about it in the context of Rep. Santos.
If there's a substantially completed report, then it should be released. This should be the policy of the House of Representatives and it should be enshrined in the House Rules.
We now have two members who have offered privileged resolutions to cause the Gaetz report to be released. Johnson, a lead Gaetz defender, pushed to postpone any votes until after the Thanksgiving break. I suspect he may now argue that the issue is moot. It is not and I am hopeful that many Republicans will use this opportunity to distinguish themselves and push for the report's release. If not as a matter of honor, then because publication would be very, very, very politically popular. The public believes the Ethics Committee is a member protection racket, and the public believes the House should do better.
Rep. Nancy Mace
Speaking of doing better, Rep. Nancy Mace decided to personally target an incoming member of Congress by policing what bathrooms she could use. Mace forced the matter through a special resolution and ultimately Speaker Johnson decided to enshrine this policy through his authority. The policy requires the House Sergeant at Arms to somehow determine what genitalia people possess when using the restroom and to police which bathroom they can use. Mace, encouraged by her "success," now seeks to enforce such a policy in the District of Columbia.
It is common in repressive regimes to find or create an unpopular enemy and place restrictive measures on them.The people who put in place such measures may not necessarily hold those beliefs themselves but use it to gain power or notoriety. Such behavior, and the people who employ these measures, deserve every bit of opprobrium we can offer.
Rep. Mace has opened a Pandora's box. The House Practice Manual on page 743 provides examples of privileged resolutions. It would not be hard to think of other resolutions to offer.
House Rules
We haven't heard much recently concerning what Republicans intend to include in the House Rules. I presume this is because Members have given most of their feedback to the majority Rules committee staff who are now busy finalizing the House rules.
Speaking of the Rules Committee, there is a competition to see who will chair the committee. In the modern era the Chair is normally chosen by the Speaker – a major source of the Speaker's power – and there is a competition to see who he will choose. Roll Call profiled Pete Sessions, who chaired the committee in the mid 2010s. He is competing against four others, including Virginia Foxx and Guy Reschenthaler.
What's interesting to me is that Tom Cole, who was serving as chair of the powerful committee, left to become chair of the appropriations committee in the middle of the session. This says something about the changing value of serving on the committee. On one hand, you get to implement the Speaker's will. But on the other hand, do committee members have any authority to push their own agenda – or are they merely factotums?
We did see in this Congress a few members who were appointed to the Rules Committee because they had leverage over the Speaker, and thus an opportunity to shape the agenda. This highlights an institutional design question of whether you want Rules to be the arm of leadership or the arm of a majority of the chamber.
Musical chairs
Members in both chambers are either wielding seniority to move up the committee ladder or competing in elections (of a sort) to claim top spots. Punchbowl has a brief but insightful look at the House Republican steering committee, which is the secret party committee that recommends (and essentially controls) who is appointed to committees. What they've noted is that House Majority Leader Scalise's followers are challenging former Speaker McCarthy's allies for control of the Steering Committee. They write: "all these moves… serve to consolidate Scalise's power over the Steering Committee…. Potentially giving him outsized influence over the members who actually do most of the work" inside the Republican conference.
Folks may think of Scalise and McCarthy as allies, but of course they also were rivals for power. This is generally true of top leadership. For example: Pelosi and Hoyer were rivals for power. They may have fought against Republicans (or Democrats), but they represent different teams, cobbled together around ideology, geography, and most importantly: patronage.
Were I a Congress-focused journalist, I'd spend a lot of time focused on Steering Committee machinations. We don't even know the steering committee's rules, or whether they exist at all. As it is, I've written this short primer on how the House Democratic one works. There are a lot of ways to choose how members are appointed and rise up in Congress – it's one of the four major levers of power.
For example: You could use seniority to determine how people advance, which has the benefit of weakening the hand of leadership but the detriment of allowing incapable people to advance. You could let the Speaker (or majority leader) decide, but that means you must be in a political machine and be loyal – removing your ability to represent your own views. You can allow the party to decide by majority vote, but when tried people quickly tire of all the voting (although it'd be easier to do today). You could create various kinds of factional models, whether split over patronage or ideological grounds, which probably would be more fluid and representative. Or you can have what we have today: a mixed model where leadership has outsized influence and control but the party at times is able to override their decisions.
Good DOGE?
If you haven't heard of the not-so-secret plan to make Congress vestigial and centralize power in the presidency, just read this Wall Street Journal article The DOGE Plan to Reform Government by Elon Musk and Vivek Ramaswamy. It's not what they say they are doing, but invalidating regulations enacted pursuant to law, transforming the civil service into a spoils system, and reviving impoundment cannot be understood as anything but a power grab. It is interesting that the rhetoric is about empowering Congress even when the result is anything but.
In furtherance of the Department of Government Efficiency, which is not a department, is not governmental, and presumably not about efficiency, we are seeing the emergence of caucuses to further its efforts and the creation of a subcommittee in House Oversight led by Marjorie Taylor Greene.
I am a big fan of government effectiveness and efficiency, and transparency is key to making that work. There are many problems with how we have set up our administrative state, and good faith pursuit of making it better is always to be lauded. The Washington Post suggests that DOGE is motivated by retribution, not reform, and it's hard to read Trump's motives as otherwise. He doesn't seem the technocratic type.
It looks like Rep. Raskin, who has served as the Democratic leader of the House Oversight Committee, may be making a play to go over to Judiciary. Raskin is very smart and capable and it would be interesting to see where he goes – and who rises up on Oversight should he depart.
Judicial Ethics
The Federal judiciary released its first-ever report on workplace misconduct all the while complaining that they don't need independent oversight or to extend antidiscrimination protections to employees. There were more than 100 allegations of abusive conduct between 2021-2023; the judiciary is still resisting the release of a large-scale survey of court employees about workplace issues. Self-policing doesn't work, especially when it comes to protecting federal employees who work in the judicial branch.
Odds and ends
Fourteen former staffers have returned as incoming Members of Congress, according to Legistorm.
Rep. Buddy Carter makes the case for sleeping in his congressional office. The case against it, besides health and safety issues, is members sexually harassing night custodians and a whole lot of ick. With the new stipend available to help members afford a pied-à-terre, this practice should violate House rules (but does not).
Rep. Luna won't get her provision on allowing new moms to vote by proxy; Speaker Johnson opposes the measure.
House Dem top leadership election is ctrl+c ctrc+v.
Chevron papers, released by the FAI.
How can Congress provide oversight? The Levin Center uses the post 9/11 era to paint a portrait.
The word sabotage is rooted in the concept of malicious mischief, particularly "going slow with the process of production." Per Roll Call, Senate "Republicans have employed a series of procedural tactics to slow down the process" of confirming Biden's judicial nominees as much as possible.
Recess appointments are the focus of an excellent Christian Science Monitor article.
Popvox has released a series of podcasts for members-elect.
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.
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.