TOP LINE
Abby Livingston has had enough. After carving out a successful career as a Capitol Hill journalist – becoming a one-woman DC bureau for the nonprofit Texas Tribune – she quit. The trigger, she shared last week, was realizing a corridor in the Capitol that had felt like the safest place in the world to her 15 years earlier had been the same spot where January 6 insurrectionists mercilessly beat Capitol Police officers. Even though she wasn’t there that day because of the pandemic, the ghosts of the mob were everywhere. Meanwhile, Members of Congress reinforced the mob’s message or focused on becoming internet famous.
Livingston didn’t go into Hill journalism to become internet famous: she did it because she found Congress to be a challenging puzzle she wanted to understand. We certainly can relate to that. If you’re reading this newsletter, you probably do, too. When word of her resignation spread, Livingston said that her fellow Hill rat journalists and staffers shared their own “private stress of finding their own paths through whatever it is this country is going through.”
Such folks, she writes, “came to Washington out of patriotism and wanted to devote whatever God-given gifts they had to the country’s business. They don’t make the big salaries or receive the kinds of validation that make the terrible days manageable. And the fact that so many of them are at the end of their rope should worry every American about what comes next.”
This feeling of exhaustion within the institution has bubbled for years, rising even to touch a Speaker of the House who quit Congress entirely rather than deal with ideologues in his own party one more time. (That former Speaker, it should be noted, first came to Congress at the head of a wave of bomb throwers who thought Reagan-style conservatism wasn’t ideologically pure or combative enough.) But we worry at the close of this Congress that what will come next will be a further exodus of people attached to the institution for all the right reasons who are sick of the bullying and the possibility of violence and are tired of political theater designed to extract one more dollar out of a MAGA constituency living in a closed feedback loop of their own fears and desires.
What would divided government yield over the next two years? Likely not further work by the January 6 Committee if Republicans retake the House. That is, unless a Democratic-controlled Senate can take up its work — an open procedural question even to experts. Or, maybe the Committee’s posture as a kind of grand jury over the 18 months will prompt the Justice Department to finally act.
Divided government will elevate the election-denying, antidemocratic faction of the Republican Party (potentially two-thirds of its partisans) to the most important and powerful constituency in the country. Getting into power simply has become the highest imperative, higher than holding to account the very people that tried to murder you and your peers and hint at your death. Republicans in the House cast this die almost immediately after the insurrection when many decided to vote against certifying the election on a fig-leaf Constitutional argument about remote voting rules in a few states, calculating that it was better to give in to the mob than risk being its next victim. Some Members simply are true believers, like, Rep. Louie Gohmert, who sent a January 6 perpetrator a flag that flew over the Capitol as an honor for his actions, but we think most know better and are suffering from a collective action problem that can be summed up as a lack of leadership.
Two years later, about 300 election deniers appeared on Congressional ballots, including 171 in safe Republican seats. At the state officeholder level, candidates are staking out election denial positions independently from the intensity of general voters’ belief that the 2020 election was stolen, either because they believe it themselves or only care what (some) GOP primary voters think. Because of our rural/urban political geography, that is sound politics if you just want to hold power.
It’s difficult to see how a greater number of election-denying Members of Congress catering to larger swaths of the antidemocratic base reduces the vitriol against Trump’s political opponents or stabilizes our politics. Violent threats against lawmakers already are at alarmingly high rates. Last week, someone left a threatening note at Rep. Bennie Thompson’s office. Trump supporters have been urging violence against January 6 Committee witnesses on forums like Gab, 4chan, and Donald Trump’s Truth Social.
Members still are concerned enough about their colleagues brandishing firearms that metal detectors remain at the entry to the House floor. We agree with Rep. Cole’s suggestion that everyone — including Members — go through metal detectors to get into the buildings. Students of American history know that violence and threats of violence on the chamber floor and in committees — including the brandishing of firearms and other weapons — have long been used to intimidate, silence, and physically harm political opponents. How safe will Congress feel when the insurrectionist allies are in charge?
Beyond Member and staff safety, what happens when we pass the point of return on policy hostage taking? All four prospective new chairs of the House Budget Committee are openly talking about using debt limit default as “leverage” to cut discretionary social spending. But it’s unclear if this is just a tactic or whether they’ll inadvertently or intentionally shatter the credit of the U.S. government now that most of the adults have left Congress to run universities in, say, Florida. There is time in the lame duck session, Norm Ornstein urges, for Democrats to take this weapon off the table by reforming procedures for raising the limit or doing away with the silly thing altogether. The debt limit is a stupid, dangerous weapon, and it shouldn’t be left lying around.
THIS WEEK
The January 6 Committee has made its case that all evidentiary roads for the insurrection lead back to Donald Trump. Last week, it subpoenaed the man himself as a chance to explain his actions – leaving his certain refusal to speak loudly. While we wonder why it waited so long to issue the subpoena, we also are reminded that the House and Senate need more effective and efficient methods to enforce their requests for testimony and documents.
The Senate formally began consideration of the NDAA, already bursting at the seams with 900-odd proposed amendments. Which lucky few will make it through? We’ll find out in mid-November.
This week the House and Senate are on the campaign trail.
The Senate Judiciary Committee has scheduled a subcommittee hearing entitled “The Office of Legal Counsel’s Role in Shaping Executive Privilege Doctrine.” The sole witness: Christopher Schroeder, who runs the DOJ’s Office of Legal Counsel. OLC is a major mechanism by which Congress’s powers are diluted, limited, and ignored, and we will be paying close attention. Let me just remind everyone of this bipartisan letter to then-nominee Schroeder calling for the OLC to adopt a policy of proactively disclosing OLC opinions; testimony to the Senate requesting OLC transparency language be included in the CJS Approps subcommittee bill — such language was included in the House; and the pending Duckworth-Leahy DOJ OLC Transparency Act.
Majority leadership successfully crammed so much into the lame duck session already that the actual work of legislating will be controlled by the select few. Almost all members simply will register a predetermined vote on a menu of prearranged options.
This is an extreme version of calendar control as a mechanism of political control: The must-pass Appropriations and NDAA bills will carry the weight of two years of legislative activity, boiled down to leadership priorities, necessities, lowest-common-denominator versions of Member priorities, and special interest pleadings.
There are many causes, but the Senate’s filibuster gives every senator a veto and destroys the ability to debate most legislation on the floor. This exacerbates the pre-existing problem of the rural bias of the Senate, which privileges some views over others.
SILVER LININGS
Extreme workplace frustration can be channeled toward positive results, we should remember. After all, it was the anonymous venting on the Dear White Staffers Instagram account that elevated the multi-year organizing effort in support of the Congressional staff unionization that pushed House leadership to embrace it.
Last week, Rep. Melanie Stansbury’s staff voted to become the fourth Congressional office to unionize. Stansbury was one of the co-sponsors of the resolution introduced by Rep. Andy Levin that authorized staff unionization. As a reminder, Demand Progress Education Fund is tracking unionization progress here.
Unionized offices will develop collective bargaining agreements that, among other things, can set salary ranges, within the limits of the House MRA. Agreements ratified at the end of this Congress should carry over as long as the Member wins re-election (Stansbury’s in a safe seat). We expect the pace of votes to unionize and the adoption of CBA to continue.
As a reminder, we have prepared this memo for staffers interested in forming a union.
Staff pay fairness of course will be an issue for contract negotiations. The data to make informed decisions on pay scales for Congressional job descriptions, however, is difficult to analyze because of how it is published. (CRS’s new report on committee staff pay makes use of this data “as collated by Legistorm.”) The House of Representatives has come a long way in publishing its quarterly Statements of Disbursements, publishing it online first as a PDF and now as a spreadsheet file. Now they’re looking to further enhance the publication by adding metadata that makes it easier to crunch the numbers.
The House CAO, which publishes the quarterly Statement of Disbursements, has asked the public for feedback on what metadata to include and how to improve publication of this important accountability document. How they’ve asked for your opinion— by giving a presentation at the Congressional Data Task Force, publishing their presentation and a model data set, and asking for public feedback on their GitHub page — is a model for how Congress should operate. Kudos.
We submitted a comment on how they should improve publication of the SODs. If you have an opinion, you should, too.
The Senate publishes an equivalent semi-annual report on its expenditures, but they’re only publishing this information as a PDF, which is very hard to programmatically analyze. We hope that they will modernize their approach as well, a request we’ve made previously.
Staff overtime pay is the subject of updated OCWR regulations first promulgated in 1996 that still must be ratified by the House and Senate to go into effect. OCWR has promulgated other substantive and procedural regulations that have been waiting for years for Congressional approval, including concerning The Americans with Disabilities Act, the Family and Medical Leave Act, and the Uniformed Services Employment and Reemployment Rights Act. Maybe someone can slide them into the omnibus?
THE GOVERNOR’S MAPS
One of the structural reasons for our political dysfunction is the system we use to select elected representatives for Congress and almost all state legislatures. Single-member districts with winner-takes-all results all but guarantee a two-party duopoly (as does our Electoral College, but that’s another conversation with an elegant fix). Unencumbered by the coalition-building politics of multiparty parliamentary systems and freed from historical cross-cutting partisan alignments, the nature of a two-party system pushes the parties to be antagonic and transforms nearly every issue into a partisan issue.
Because of the urban/rural divide between the parties, it’s not a fair fight: generally speaking, the median Congressional district in a state is to the political right of the median voter in that state. This doesn’t just skew political control of the nation, but it’s bad for those inside the parties as well. The Democratic and Republican parties are coalition parties, and this political geography privileges some political views over others, pushing some factions into electoral oblivion.
The public, when asked about districts, prefers “fairness.” In 2010, Florida voters approved a constitutional amendmentthat required the state government to establish fairness in the way it draws Congressional districts, using existing physical and local government boundaries whenever possible. (Are following such boundaries “fair?”) In November 2021, the Republican-led state legislature drafted a new map that kept the partisan status quo: 12 seats for Democrats and 16 seats for Republicans.
Because the Florida state legislature still had responsibility to draw the maps, the opportunity remained for politicians to game the single-member district system to partisan advantage if they didn’t care much about political norms.
Governor Ron DeSantis had a much heavier hand in redrawing Florida Congressional maps into a deep partisan gerrymander, ProPublica reported last week. The new maps, drawn by consultants for the governor, significantly weakened African-American voting power in the state and created a 20-8 split for Republicans. Rep. Al Lawson lost his district almost entirely. DeSantis then rammed the plan through the state legislature over initial objections from his co-partisans. The report questions whether DeSantis’ actions violated the constitutional amendments voters approved.
Even states in which voters have chosen to take redistricting out of elected officials’ hands entirely, the 2020 process has fallen short. In Ohio and Virginia, independent commissions blew deadlines, returning processes to officeholders. Underrepresented groups criticized commissions’ maps in Michigan and Colorado for disadvantaging African-American and Latino constituencies.
The problem continues to be with the districts, not who draws them. Commissions receive conflicting orders: draw competitive districts, but don’t split up municipalities or counties too much. Partisans, unfortunately, cluster in specific geographic locations — i.e., urban or rural — meaning commissions either have to privilege competitiveness or a municipality’s own sense of self. Moreover, political geography punishes a surplus of geographically-proximate co-partisans.
Returning to multi-member districts for Congress would remove the issue of geographic sorting from the fair representation equation. It also would get legislatures out of the business of drawing districts. But how do we get there?
New Zealand made the transition from the single-member to multi-member districts successfully in the 1990s, allowing smaller parties to share in governing and reducing its own two-party hyperpartisanship. Democracy scholar Stephan Kyburz interviewed professor Jack Nagel about the transition on his “Rules of the Game” podcast earlier this month. Nagel shared a series of crucial factors (including luck) that contributed to the successful transition and offered prospects for such factors in the American context in a very informative unpublished paper he shared.
We are not sure how to get there, but an interim step may be addressing how the House organizes itself. Stay tuned.
ODDS AND ENDS
House committee staff pay levels are the subject of a new-ish CRS report. Two things stood out at a glance. First, comparing 2001-2021, the theoretical maximum a committee staffer could earn has dropped by $30k in real dollars. Second, while the data is incomplete, many positions have a roughly 15-20% decrease in pay levels, including professional staff members, committee staff directors, and subcommittee staff directors. By contrast, a few positions have shown a pay increase: the attorneys (chief counsel +34% and counsel +2%) and the communications director (+8%). CRS also released a meta-report of its reports on staff pay. An academic I trust suggests these numbers may be “extremely noisy” estimates. We need better data.
NDAA. I don’t know about you, but I’m having a hard time tracking the 900+ amendments offered to the NDAA, including which ones are included in the manager’s amendment and whether they are duplicates of other legislation. Should there be a public-facing NDAA tracker akin to what Congress.gov offers with respect to appropriations?
Reason #312 why every member should be eligible to have a staffer with TS/SCI clearances. Senator Leahy, File Eight, and WMDs.
The Office of the Whistleblower Ombuds has two new videos to support Congress’ work with whistleblowers – Quick Tips: Working with Whistleblowers to Advance Oversight and Whistleblower Referral: Quick Tips. House staff can access its Working with Whistleblowers Learning Path through the Staff Academy.
The FOIA terrorist. The Executive branch has a long and often antagonist history towards public requests for information about its activities. One of the most prominent requesters, Jason Leopold, was even (tongue-in-cheek?) deemed a FOIA terrorist by a government official at one point. But the Justice Department has gone even further in attacking him personally as part of an attempt to avoid his request for an exemption from certain FOIA fees, as allowed by law. TechDirt has the story.
PACER, the website run by the federal courts that allows the public to access court opinions and orders, has been massively overcharging the public and using the ill-gotten funds for unlawful purposes. A proposed settlement to a class action lawsuit would result in $100 million or more in refunds. We believe the federal courts should not have a paywall between this public information and the public, and note that the Open Courts Act of 2021 (S. 2614) has been favorably reported by the Senate Judiciary Committee and could become law, if the Senate allows it to advance. (More)
Helen Eisner will serve as the Acting Staff Director of the Office of Congressional Ethics while Omar Ashmawy is on leave subsequent to a DUI incident.
Senator Ben Sasse heads to the other Swamp.
The House Judiciary Committee is holding an oversight hearing on the Office of Legal Counsel on October 18 at 2 PM.
GPO and the Depository Library Council are hosting a virtual conference for librarians October 17-19.
The National Freedom of Information Coalition’s Summit, which includes training in filing FOIA requests, will take place virtually October 18-20. Register here.
Law reform. The Seventh International Conference on Legislation and Law Reform, a conversation about how laws are written in the US and around the world, will be held November 3 and 4 in-person in DC. Register here.