TOP LINE
We still don’t know many things after Tuesday’s congressional elections, including who will control the House of Representatives. It appears at the moment that Republicans can do no better than a two-seat majority in the House, and winning control is not guaranteed. Democrats will retain control of the Senate, and, pending a run-off, may be able to exit the power-sharing agreement with McConnell and take charge (to the extent the filibuster lets them do so).
One thing we do know is the current status quo is over. Congressional majorities haven’t been this slim in both the House and Senate since 1931-32 (which, of course, didn’t last long). This election is bizarre in historical terms. As James Fallows points out, “Every first-term president since World War II (except one) has suffered midterm election losses,” with an average loss of 30 House seats. By those metrics, this was a modest blue wave, albeit one tempered by the structural disadvantages in how districts for House members are constructed. It also suggests something new is happening within the plate tectonics of our political system.
The resulting razor thin margin in this era of high partisan polarization leaves us thinking of the myriad unknowns going forward in the near and longer term for Congress and the federal government. Rifts between hard-line conservatives and Republican leadership in both chambers already have opened up, as has Democratic infighting over messaging and resourcing of candidates.
This week Congress returns for the start of the lame duck session. The House will begin votes Monday evening as will the Senate. The House Clerk’s office will hold its first of two new member orientations, which are open to both candidates in races yet to be decided as well as members-elect.
House Republicans have scheduled their conference meetings to coincide with orientation and are scheduled to select leaders Tuesday, approve rules and steering committee structure Wednesday, and elect steering and policy committee members Friday. As of this writing, those meetings are still on. But we have to think that the Freedom Caucus, and likely others, would want to reverse the order — and leadership may need more time to negotiate. Senate Republicans still appear set to go ahead with leadership elections on Wednesday.
In Committees, House Rules will hold a hearing on how to seat a delegate from the Cherokee Nation, which a Jacksonian Era treaty promised. This is utterly fascinating.Look for the House Modernization Committee’s final set of recommendations on Nov. 17.
KNOWN UNKNOWNS
Forgive us for channeling former Defense Secretary (and former House Republican co-sponsor of the original FOIA bill) Donald Rumsfeld, but there’s lots we know will matter in the coming days, months, and years that will be shaped by the final results of the 2022 midterm elections, but we don’t know how. Here are the questions and issues we’ll be thinking about as it unfurls.
Like everyone else, we wait for the election results to be finalized. The final numbers matter because these offices exist in the real world and not just as computer graphics. Members get sick, they die, decide to run for other offices, resign for myriad personal and political reasons. As Daniel Nichanian notes, there hasn’t been a single day where the House had a full 435 members during the 117th Congress, and for most of it there were between four and six vacancies at a time. Rep.-elect Luke Letlow died of COVID in December, 2020. Illnesses have thrown the Senate calendar for loops for the last two years. And we note that Speaker Pelosi once again renewed proxy voting in the House through December 25, which affords the people’s branch the ability to maintain its partisan voting balance even when members are not physically present. Republicans have vowed to end this practice.
How our partisan moment will handle the inevitable chaos of such narrow majorities perhaps is the biggest question going forward. It’s not inconceivable that the House majority flips several times over the next two years for unforeseen reasons. (Nor would it be surprising for legislation to slip because the majority party does not have enough people physically present to move it forward.) Do leaders work out some arrangement ahead of time to manage this possibility? How would Democrats react to brief windows of unified government? How will state legislatures and governors respond to the unusually high importance of special elections? Will they even be held if they don’t advantage the majority party? How will state governments controlled by the opposite party of a senator game appointing replacements?
A 51-seat Senate also would end the power-sharing agreement between Democrats and Republicans forged after significant delay and heavy-handed negotiations for the 117th Congress. Democrats would regain majority control of committees, preventing Republicans from hijacking nominations by walking out. Potential Supreme Court nominations may depend on a true majority. It also would eliminate some of the time penalties they faced in the last Congress from discharge petitions and member absences.
This week, the House Clerk’s Office conducts orientation for members-elect, including both candidates in races yet to be decided. The House Freedom Caucus actually got a jump on the official orientation at the end of last week at the Conservative Partnership Institute, where former HFC member, former Trump Chief of Staff, and Kevin McCarthy nemesis Mark Meadows is a fellow.
As of publication, House Republicans plan on going forward with conference elections this week. The House Freedom Caucus will try to extract the maximum number of concessions from Republican leadership for supporting Rep. Kevin McCarthy for Speaker. The caucus has been transparent about its intentions for months, trading supporting McCarthy for specific rules changes to empower them and the rank-and-file.
We’re still unsure if the Republicans Conference will allow contested members-elect to vote in their meetings. Will we have a scenario where votes for party leadership and chamber rules include those who ultimately don’t serve in the next Congress at all? And if Republicans postpone this week’s meeting, doesn’t HFC have time to extract even more? To say another way, why are HFC members rushing?
With vote margins so slim, items like committees electing their own chairs and increased HFC presence on the Steering Committee that may have been bridges too far with larger majorities now sound like starting points for negotiations. Individual members are pushing for plum committee assignments to drive impeachment efforts of President Biden and others in the Administration.
How much leverage will House Republicans not in HFC accept losing in order for Mr. McCarthy to achieve his personal goals? Or, does this empower them as well, like the filibuster does for each senator?
The 117th Congress has a ton of unfinished business to get back to this week, too. Democrats in the Senate apparently will prioritize judicial nominations over legislation, which is unbelievably short-sighted because they will have plenty of time for judges but major pending legislation will turn into a pumpkin in 45 days. With (likely-ish) Republican control of the House next Congress, Senate Democrats would be wise to take their fully baked legislation on important matters ranging from appropriations, defense, and the debt ceiling to the Electoral Count Act and gay marriage protection and turn them into law while the other chamber still has an interest in doing so.
We are watching as some Republican Senators are trying to strong arm McConnell to delay his conferences’ elections in part to scuttle deals on these important issues.
One of the closing arguments Democrats made was democracy itself was on the ballot on Nov. 8. Does the Senate revisit eliminating the filibuster to pass the John Lewis Voting Rights Act, or provide statehood status to Puerto Rico and the District of Columbia?
At the end of November, it appears likely that House Democrats will select their leadership, coinciding with the second new member orientation session of Nov. 28-Dec. 3. One big question remains the future of Speaker Nancy Pelosi, who has not revealed her intentions. (She did promise four years ago that she would step aside at this point.) If she does so, what happens next? Does Rep. Steny Hoyer finally get his shot? Does the alliance between Pelosi and key blocks of the caucus transfer and elevate Rep. Hakeem Jeffries to floor leader? Does Rep. Adam Schiff figure out an alternative path or use stepping aside as a chit for another office? Can Rep. Katherine Clark emerge as an alternative?
We are more interested in the chamber rules and the democratic party caucus rules, as the procedures will determine the policy outcomes. How do party leaders and caucuses revisit these arrangements as they set the legislative agenda in the lame duck blitz? How are committee assignments and lower-level leadership posts affected? Because she’s been a fixture for almost two decades, we generally understand Pelosi’s approach: centralize power in herself. But what about afterward?
January 3 is another watershed moment. We wonder how the losers will handle defeat. Final election certification in some states will take weeks. Given the number of 2020 election deniers running for congressional seats on the Republican side, it seems like a safe bet that some will contest their defeats. The Georgia Senate runoff could be very messy.
Roll Call’s Jim Saksa reminded us last week that Congress ultimately is responsible for seating its own members, which can create chaos. Members can and have objected to the swearing in of others whose elections they suspect were faulty — and they could do so for crass, political reasons. In that situation, the Clerk of the House by convention would ask members subject to the objection to step aside for votes for the Speaker and House Rules.
Traditionally, the House also adopts its rules on the first day of the new Congress. Nothing mandates this date, however, and Congress can function under “general parliamentary law,” which is spelled out in the House’s precedents. At times in the history of the House, adoption of the rules has taken weeks.There’s no real rush to approve rules in a complicated governing environment.
The current rules regime is suited for majorities that are smaller but manageable by leadership, with heavy deference to leader agenda-setting and floor control. HFC has learned that the rules really matter and are prying them open. Their approach could lead to more fluid factions in the House and governing coalitions, or negative agenda setting power for the HFC, or an entirely ungovernable House. Perhaps it would be wiser for a Speaker McCarthy and Democrats to work out an alternative rules package that negotiates some power sharing or opportunity to create cross-partisan governing opportunities. There’s nothing to say that another Republican or two couldn’t make such an arrangement, either.
In the new Congress, some fundamental questions loom. First, what does the House Freedom Caucus want with its newfound power? Does it have policy goals, or is it content to Benghazi its way along for two years? There are issues it could work on with Democrats concerned with the power and surveillance capability of the national security state. Do its members prioritize partisan purity over advancing those goals with Democratic help? Maybe they’re not a monolith?
How will other Republicans respond to HFC agenda setting? When it gets old, how do they react?
How will Congress manage must-pass legislation like appropriations authorizations, or reauthorize programs set to expire? Will appropriations be frozen in amber through continuing resolutions, unresponsive to shifting governing priorities? Do things like disaster relief simply go unfunded because of broader spending hostage taking?
And then there’s the debt ceiling. Smaller vote margins make it all the more dangerous a ticking time bomb for HFC members to arm to try to force politically untenable spending cuts. Speaker Pelosi indicated the House would vote to extend the current limit during the lame duck session, although she has not indicated whether it would be temporary or permanent. As we have written previously, the debt ceiling should be eliminated.The danger to the global economy is too great not to neuter the issue permanently.
If this Congress ends up being incapable of legislating, how much additional power will the other two branches of government, especially the Executive branch, wrest away? Could political chaos be an actual goal with the hope of pushing the American people in a more authoritarian direction, if not with this administration, then with the next?
Perhaps some answers will come to light at the Lincoln Network’s Thursday event on modernizing the new Congress, which will include a look at the chamber, caucus, and conference rules. Register here. Maybe we’ll have some answers in next week’s newsletter.
ODDS AND ENDS
Patrick N. Findlay will become the new director of the Office of Congressional Workplace Rights. Most recently, he was the General Counsel of the National Security Division of the DOJ.
CHA Staff Director and Speaker Pelosi aide Jamie Fleet will testify at the criminal trial of Riley Williams, who is charged with stealing a laptop from the Speaker’s office on January 6, 2021 with the intention of selling it to Russian agents.
One of the greatest FOIA activists of all time, Ernie Lazar, died on Nov. 1. Over his lifetime, Lazar submitted about 10,000 FOIA requests to the FBI and other national security agencies and made his requests publicly available to journalists and researchers. Much of his efforts involved unraveling conspiracy theories in right-wing organizations and federal law enforcement. Much of what he collected has been digitized and posted on the Internet Archive.
Rep. Don Beyer is the first member of Congress, as far as we have been able to verify, to publish a micro-blogpost on Mastodon. We hope that the US Government is considering whether and how to create official instances — i.e., to host their own servers — so that official posts can be authenticated as real and information archived as required by law.
The January 6th Committee will deep six making findings on law enforcement failures, which is incredibly frustrating to us. Those who do not learn the lessons of history are doomed to repeat them.
CALENDAR
Proportional representation. On November 15 at 10:00 AM,New America, Fix Our House, and Protect Democracy will host an all-star panel of academics to discuss how winner-takes-all elections distort representation in Congress and how a move to proportional representation could change our politics. Register here.
Modernizing the House, housed by the Lincoln Network. November 17. RSVP here.
Legal research. The Legal Research Institute of the Law Library of Congress will hold a webinar on recently published reports in its Foreign and Comparative Law Webinar Series November 17 from 2:00-3:00 PM. Register here.
Applications for the Progressive Talent Pipeline program, which connects policy wonks with jobs in Congress and Executive branch, are due November 20.
Casework. The POPVOX Foundation hosts a webinar on the future of congressional casework December 9 at 1:00 PM ET. Register here.
The next Congressional Data Task Force meeting will be December 13 from 2:00-4:00 PM online. No registration is available yet.