The Pickpocket Veto
Trump’s rescission gambit would lift billions from Congress’s purse
Congress’ extra-long recess ends this week with 14 scheduled days in session remaining before the end of the fiscal year. The House has 10 appropriations bills to go while the Senate has nine. The two chambers are very far apart.
The Office of Management and Budget threw a major obstacle into the process last Friday by sending a rescission message to Congress without the required 45 days notice. OMB is seeking to unilaterally cancel nearly $5 billion in appropriated foreign aid. Senate Appropriations Chair Susan Collins promptly called the so-called pocket rescission “a clear violation” of the Impoundment Control Act. Pocket recissions are unlawful, a fact noted by GAO.
House leadership, however, is adhering to the White House’s position that the ICA is unconstitutional and therefore can be ignored by fiat. The House version of the Legislative Branch Appropriations bill takes dead aim at GAO on this issue. It forbids the office from filing a civil suit to recoup appropriated funds as it is empowered under the ICA unless the House adopts a concurrent resolution authorizing the Comptroller General to litigate. Presumably, this House would never give that assent. Ironically, a federal appeals court recently held only GAO can sue over impoundment. GAO has opened 40 such investigations of the Trump Administration and found six violations so far. It has not yet filed any lawsuits.
House appropriators also propose crippling GAO by halving its budget. As we explained when the House bill emerged from subcommittee, this level of reduction would effectively prevent GAO from producing oversight reports on federal programs beyond those already mandated by Congress. GAO typically has saved about $130 for every dollar allocated to it, so Congress will be forfeiting recovery of tens of billions of dollars lost to waste, fraud, and overpayments if this level of funding is not reconciled with the Senate bill.
The Senate Legislative Branch package, meanwhile, keeps funding levels for Legislative branch offices more or less constant, with modest increases for the Library of Congress and U.S. Capitol Police and a 13% bump for Senate offices. The House version slashes LOC funding by 10%.
We are also tracking a provision offered as an amendment to the NDAA by Sens. Amy Klobuchar and Ted Cruz that would allow members of Congress to expunge a wide range of information on themselves and extended family members from the digital public domain. The amendment ostensibly is intended to protect members and their loved ones from scenarios like the shootings of Minnesota legislators.
As written, however, it is both much too broad in its data restrictions and ineffective in actually preventing members’ personal information from being sold to data brokers. Details relevant to public political discussion like members taking vacation during natural disasters in their state, trips paid for by interest groups, or financial interests that may lead to conflicts of interest could be pulled from websites, and anti-corruption investigators would lose access to databases. Members eagerness to take action given the current climate should not mean accepting a poorly-drafted solution. The Senate Legislative Branch Appropriations bill contains provisions that would actually protect members – maybe Congress should enact that.
ARTICLE ONE
The Trump Administration continues to complain about the Senate’s blue slip practice on US Attorney and judicial nominations. The President threatened to file suit, which is nonsense constitutionally as Congress is free to set its own procedures and rules.
The Administration is challenging Senate confirmation power in a more substantive and troublesome way, however, by declaring members of independent government oversight boards to be fired and replacing them with “acting” members, even when the laws creating these boards have no mention of such a capacity. Although the Federal Reserve is the highest profile attempt of this effort – a new paper reminds us Congress historically intended the Fed to be independent from presidential influence and in May the Supreme Court used an unsigned procedural order to carve out an exception to the president's removal power for the Fed – it’s also happened at the Office of Special Counsel.
Trump fired Special Counsel Hampton Dellinger only a year into his five-year, Senate confirmed term and filled the position with essentially a random “acting” counsel. Dellinger challenged the action in court but dropped his suit in March when it became clear he would be fighting a lengthy and likely losing battle as an acting special counsel did his job anyway, despite the fact that Congress granted no power to name someone to the position temporarily and the Constitution is pretty specific about the Senate approving nominations. A 30-year-old recent law school graduate now has been nominated for the permanent role to turn the OSC cannons toward Administration critics.
As former House senior counsel Michael Stern masterfully explains, Trump’s actions in skirting the congressional role in populating independent boards and offices has become a Frankenstein’s monster of unitary executive legal theory stretching back to Antonin Scalia’s time on the Supreme Court (or perhaps even longer to his service at the Justice Department's Office of Legal Counsel). The monster has smashed through the Constitution’s gates. If granted the opportunity by the Judiciary’s insistence that the nominations process holds, the Senate could bring some discipline to the situation by rejecting replacement nominees. Doing so would require some members of Congress to finally stand up for the institution and the spirit of the laws it has issued.
FACTIONS
Regular readers of this newsletter will recognize our affinity for factions in congressional politics. We’re fascinated by how members of Congress choose (or don’t) to self-organize, particularly around a common vision of how the institution should work.
In constructing its "six warring factions" within "Trump’s" governing coalition, however, the Washington Post mainly used ideological differences among groups to draw distinctions, including among members of Congress. Parties – and party caucuses in Congress – aren’t just clumps of ideas, though. For starters, political elites often shape public opinion that the Post cites, not the other way around. More importantly to factions, however, is that they reflect choices of people with common purpose to work together, even if that means being in opposition to people they generally agree with on most policy preferences. One of the factions identified, the Religious Right, has been a force in Republican parties for more than 50 years. It’s hard to see Trump’s impact on its fortunes when one of its own finally is Speaker of the House.
For the congressional angle, we’d recommend digging in instead to political scientist Ruth Bloch Rubin’s new book on how factions have affected chamber leadership’s ability to drive the legislative agenda. She argues that leaders have to contend with the fact that their caucuses are more than just groups divided along policy preferences, but are sets of actors who have decided to collaborate in some way with like-minded copartisans. Leaders tend to hold their caucus together and achieve major policy victories when the efforts of competing collaborative factions are fairly equal. When one faction “outcollaborates the competition,” however, leaders have a difficult time corralling members around a unified agenda.
Within the Republican House caucus (and likely reflective of what’s happening in the Republican Party grassroots), the faction that has been best organized and clear-minded in goals has been the House Freedom Caucus. What most political observers described as chaos at the start of the 118th Congress, when Kevin McCarthy twisted in the wind through multiple leadership elections, was quintessential asymmetric factional organization and planning the likes Bloch Rubin describes. More moderate members, meanwhile, remained uncoordinated. With Trump back in office, most have been driven underground.
What happens in the House now that many of the HFC’s leading instigators are leaving Congress and running for state office and more members may join? Interestingly enough, some are leaving feeling they accomplished little – a look at this year’s spending cuts would tell otherwise. If the members who replace them stick with the original HFC team spirit, asymmetric factionalism may extend beyond this Congress.
On the flip side, the sun hasn’t quite set for members of Democratic factions closely allied with their House leaders. A number of elderly members, including some longtime members of the Congressional Black Caucus, are once again running for reelection in 2026. Their experience, seniority, and connections to leadership bring more symmetry to the Democratic side’s collaborative factional capacity as its biggest faction by membership, the Progressive Caucus, has many free riders. When the Democratic share of the 50 members over the age of 75 running for reelection finally fades from the stage, new collaborative efforts between fresher members may create in Bloch Rubin’s framework a less controllable caucus. That probably will be a good thing for the institution in our opinion.
The reluctance of elderly Democratic members to walk away now, as NOTUS explains, has a lot to do with the opportunity to regain prominent roles that come with being in the majority. Blame Democratic caucus rules for that, which privilege seniority and lack term limits on chairs that Republicans have. These rules create perverse incentives for members in their 70s and 80s to hold on after waiting through most of their careers for gavels. Those senior members who fall out of favor of party leadership, however, may opt to leave. See, e.g., Jerry Nadler's holiday weekend retirement announcement (he had been pushed out of his chairmanship by Pelosi, still unhappy that Nadler had championed Trump's impeachment against her wishes).
Term limits on chairs have their own downsides, as the flood of experienced Republican retirements in recent cycles demonstrates. A better solution, we think, is some more democracy in the system, like some form of election system for committee chairs and ranking members within the caucus that could reward expertise and political talent instead of tenure in a safe district seat.
Third Way, meanwhile, stirred the Democratic factional pot with a recent memo on mealy-mouthed phrases it claims party officials frequently use that confound almost everyone else. This memo seems like a case of inventing a problem, as professor Lindsey Cormack found precious few instances of Democrats in Congress using the stock phrases Third Way flags in her database of member emails to constituents. “The data show that many of these phrases barely exist in constituent communications,” she concludes, “and when they do, Republicans are often the ones writing them either to lampoon Democrats or to spotlight them as proof of ‘wokeness.’” Only eight members – all Republicans – ever used the phrase “birthing persons,” while only Matt Gaetz used “microaggression.”
To our ears, many of the eye-rolling phrases Third Way identifies are activist or foundation speak. It’s trying to attach civil society groups to its left onto elected Democrats to ding the faction most aligned ideologically with those groups as unelectable.
LEGISLATIVE DATA AND TECH
Congress will host a Congressional Hackathon on September 17th from 1-6 pm ET in the Capitol Visitor Center. The hackathon is an opportunity to learn about sources for data about the Legislative branch, to meet subject matter experts, and to collaborate on projects. Attendees must pre-register to participate.
This year’s hackathon will include an exciting new pre-event coding breakout session from 9 a.m. to noon. Participants will be briefed on a potential project for collaboration. This is a great opportunity to meet other leg branch coders and work on something of benefit to the public. To participate, you must agree to this participation agreement and IP disclaimer ahead of time.
As in prior years, the hackathon will include lightning presentations where participants can speak for three minutes, accompanied by three slides, to make their case for projects or ideas that directly affect Congress. Talks can be on a completed project, work in progress, or something aspirational. The deadline for submitting presentation pitches is Sunday, Sepember 7 via this presentation request form.
The Library of Congress announced its annual forum on Congress.gov on September 30th from 1-3:30 pm in the Jefferson Building. This open event is an opportunity to learn about new legislative data and tools from the Library of Congress made available on Congress.gov and make requests to the development team. Follow this link to RSVP.
Both events are intended for Members of Congress, their staff, staff at support offices and agencies, members of the public, civil society, hackers, journalists, academics, and anyone else interested in access to or sharing information about the work of the Legislative branch.
The Congressional Data Coalition has been tracking and participating in these events since their inception and more information is available on the CDC's website. In addition, we continue to maintain a list of Legislative branch technology proposals and a guide to sources of information and data about Congress.
ODDS & ENDS
Structure and culture: The organization of congressional offices goes a long way in explaining why members often struggle to engage with excessive governmental procedures that drive constituents nuts, explains POPVOX Foundation’s Anne Meeker. So, too, does treating constituent engagement from a “customer service” mindset. She sketches out some potential solutions in the piece as well.
Oversight: GAO has launched a new podcast series called “Your GAO” within its WatchBlog website to explain its work and impact. Check out "GAO is Nonpartisan: Here's how we do it" and "How GAO Serves Congress."
OMB Circular A-11, the White House's Office of Management and Budget's direction to agencies about how to prepare and submit their budget requests, was issued over the weekend. We haven't read all 940 pages, but already we spot shenanigans.
Batter up: We don’t usually mention congressional candidates, but I can’t help this one: Former All-Star first baseman Mark Teixeira has declared his candidacy for Rep. Chip Roy’s seat in Texas. The Maryland native was drafted by the Texas Rangers out of Georgia Tech and went on to hit 409 home runs — half of which for the New York Yankees. He’d certainly shake up the Republican roster for the Congressional Baseball Game.
This, please: We hope the Legislative Branch appropriations conference bill can find some money for a mascot like this one in Peru.
That Peru has a walking plushie version of its Congress isn’t entirely surprising given its ties to Japan culturally via immigration. Therefore, we were shocked to discover that the Japanese Diet does not have its own mascot given Japanese affection for municipal mascots (this guy is my favorite from my time in Kanagawa). Japan does have a parliament for its mascots, however.