The Top Line
From our shameless self-promotion division, Roll Call was kind enough to profile me this past Tuesday.
Do you support democracy? I mean, do you work at a foundation or are a high-net worth individual and want to see our political system work better? If so, the folks at Democracy Fund Voice have published a blogpost and white paper that outlines their successes and lessons learned in supporting congressional capacity and congressional reform work. I had the pleasure of working with Democracy Fund Voice and Democracy Fund for many years and their support and insight was essential to my success.
Congress is out and it’s my suspicion that news from Congress may slow down. While the press chases the campaign, in the background are important efforts to resolve the differences in the Appropriations and NDAA bills for passage in December, hammering out a Continuing Resolution to keep the government open, jockeying for positions on committees as members retire – and the work to update the rules for the House, the Senate, and the parties inside them. The rules in particular have long been an interest of mine – process guides the results – and the August recess is the unofficial kick-off for a lot of this work. Stay tuned.
Know a technologist who should work in Congress? The TechCongress fellowship has applications open through August 7th for their January cohort. Mid-career fellows receive a $93,000/year stipend and early-career fellows receive a $70,000 annual-equivalent stipend.
Senate looks at updating its confirmation process
The Senate Rules Committee held a hearing focused on streamlining the confirmation process with the hope of moving legislation while the results of the upcoming election are uncertain and there’s a zone of opportunity. Both Sens. Klobuchar and Fischer pointed to the calcification of the process in their opening statements. Three of Klobuchar’s statistics for executive branch (non-judicial) appointees stood out.
1. The average number of days to confirm each executive branch nominee in an administration’s first two years: Biden: 156, Trump: 107, Obama, 92, Clinton: 56.8.
2. Percentage of senate votes focused on nominations during the first two years: Biden and Trump: 55%; previous four presidents: 8.5%.
3. Cloture votes per president: Biden: 200; Trump: 170; George W. Bush: 9; Clinton: 11.
The president makes more than 4,000 political appointments. More than 1,100 civilian positions are subject to the Senate’s advice and consent, with 40% of those positions located in the Department of State and Department of Justice. Some appointments go up to 5 levels deep in an agency. Non-civilian and foreign service appointees processed by the Senate is approximately 45,000 people every two years.
Who is subject to Senate confirmation? Witness Sean Stiff, in a legalistic and non-judgmental way, explained the Supreme Court has made a dog’s breakfast of the Appointments Clause. The court created and muddled distinctions among principal officers, who must be confirmed by the Senate; inferior officers, who may be confirmed by the Senate or could be appointed by principal officers; and functionaries, i.e. pretty much anyone else. In case of vacancy, federal law allows for the appointment of acting officials in some instances, but with limitations. It seems impossible to know at the time a position is created how a court will view it. Stiff wouldn’t go there, but Congress could legislate its views on what constitutes principal and inferior officers.
How do confirmations advance through the Senate? Witness Elizabeth Rybicki explains that many nominees must first go through committee, where a majority of members present must vote to favorably report the nominee or the Senate votes to discharge the nominee. Around 300 nominees are considered privileged and need not go through committee, although any senator can move to send a nominee back to committee.
On the floor, unanimous consent is often sought to take up a bloc of nominees and they may either be confirmed by voice vote or unanimous consent. Any senator can put a “hold” on a nominee, however, blocking the unanimous consent process. In the absence of UC, each nominee must be considered separately, which is a laborious process that eats up significant floor time. The use of cloture, which was uncommon historically, is now routine. To really get into the weeds on how this works, read Elizabeth Rybicki’s testimony.
What are the consequences of this process? In part, you can look at the statistics I reproduced above. Witness Jenny Mattingly explained that the executive branch works to sidestep Congress through temporary appointments, Senate business is sidelined on a never-ending confirmation process, and agencies are hobbled by a series of short-termers who cannot plan for the long haul.
Mattingly had five major recommendations, which are worth reviewing. They include: bundling nominations together for their final Senate vote; improving the privilege calendar; reducing the number of positions requiring Senate confirmation; streamlining nominee paperwork and re-submission; and increasing information about senate confirmed positions and bolstering statutory language on interim appointments.
I am not an expert on the Senate nomination process by any stretch of the imagination. While listening to the hearing, I wondered how many of the nominees were unqualified and how we would assess that. How often would senators who share the president’s party affiliation prevent a nominee from advancing, or of an opposing party support a nomination?
I thought a lot about how the executive branch has become overpowerful and how holding back nominees is a way to extract concessions from a “friendly” administration and a way to thwart an authoritarian or malign administration.
Surely the Senate shouldn’t waste so much time on debate that persuades no one. Causing the Senate to waste time is often the goal of the minority that wishes to run on the claims of a do-nothing Congress. This trench warfare view of politics is all about sapping your adversary’s energy and preventing them from building up momentum, whether they’re across the aisle or down Pennsylvania Avenue.
Sens. Klobuchar and Fischer have the right idea that the time to advance rules reform is when it’s not clear who can take advantage of those reforms. Sens. Klobuchar, King, and Cardin have a resolution to allow the en bloc consideration of certain nominees.
I’m not sure what the Senate should do, but I have some thoughts. First, someone should draw up a list of appointees who should not be subject to senate confirmation. (Perhaps the Partnership has already done this?) Second, a number of principal officers who hold minor positions should be made inferior officers by creating a principal office who in theory oversees them but in practice is responsible only for appointment and removal. Third, all the delays arising from switching between the legislative and executive calendars, and the various hold-over periods, should be eliminated.
Finally, the nomination question comes down to whether one member should be able to stop a vote because it is too onerous to burn floor time while seeking cloture. It seems to me there should be a threshold higher than one but lower than a majority whereby a set of members can force a vote – but through an expeditious process. There is where I think en bloc has promise, but with a twist.
For any nominee where fewer than five senators indicate their desire to object to unanimous consent, those nominees should be eligible to be placed on a combined ballot by the majority leader. That ballot would be eligible to go through a (hopefully expedited) cloture process. Should cloture be successful, members would be able to vote in favor or in opposition to each appointee by filling out the ballot. Because multiple nominees would be listed on the ballot, it would be a way to dispose of scores of appointees in a single vote, but members would be able to go on the record for each nominee.
I know, this is pie in the sky and probably too complicated. It would require either changes in the hotline process or a new way for members to indicate opposition to a nominee. In addition, while the Senate has changed the methods by which it votes, it is not known for its ability to innovate. And we aren’t solving two of the big underlying problems, which is the overpowerful executive branch and the desire to rob your political opponents of their energy to advance their ideas. Nonetheless, perhaps the idea meets the moment?
News bites from Congress
Diversity in the Senate Democratic Caucus is the focus of a new report from the Joint Center, which ranks diversity among senators and senate committees based on the data published by Senate Democrats. Their press release has the highlights. If you’re looking for the raw data from Senate Democrats, its here.
Trump assassination-attempt task force members have been named.
Supreme Court code of ethics, term limits, and ending presidential immunity
I was going to write a whole big thing on imposing a code of ethics on the Supreme Court, an exploration of term limits, and addressing presidential immunity, but many of you are OOO this week, others have explained it well, and I’m tired.
So instead, here’s a good overview from Politico on the effort to reform the Supreme Court. According to the AP, term limits would be very popular. Vox suggests the reforms would be mostly useless to meet the political moment. Sen. Schumer introduced legislation to roll back presidential immunity (although I have yet to see bill text or the press release). And now, a word from the arsonist.
Technology in Congress
Artificial Intelligence is the subject of a new flash report released by the House Administration Committee, part of their series on that topic. Here is how the AI Claude summarizes the report:
“The document outlines recent AI initiatives and progress across various legislative branch agencies and offices . Key developments include the implementation of AI governance frameworks, exploration of new use cases such as casework assistance and transcription services, staff upskilling efforts, and the application of AI guardrails to the acquisitions process. The report also highlights ongoing efforts to develop AI policies, evaluate potential AI applications, and collaborate with international parliamentary officials to share best practices.”
TikTok is now banned from House-managed devices and app tops, effective August 15th.
The Library of Congress Inspector General identified that it has issued a new report, not available to the public, entitled “Evaluation of Cybersecurity Controls for GitHub and GitLab.”
Hyperlinks. If you’re linking from your campaign to your official website, House Ethics has pre-approved boilerplate language for doing so.
CRS building out data analytics capabilities
CRS updated a solicitation for commercial products to help support its congressionally-directed efforts to improve its data analytics capabilities. Looking at the solicitation, CRS seeks to create or improve five different data models, which are:
1. Text Analysis of Public Comments on Regulations.gov – to allow CRS to show Congress how the commenters are responding to the proposed items found on the site
2. Individual Income Tax Calculator – to update an existing policy simulation tool to allow greater analysis of different tax proposals
3. Health Insurance Pricing Analysis and Dashboarding – to analyze and extend the functionality of an existing pricing analysis tool
4. Student Loan Calculator Analysis and Dashboarding – to expand an existing tool and to visualize the data.
5. DOD Budget Justifications Q&A Portal – to expand on an existing tools that pulls in DOD spending data so users can ask it questions focused on specific branches, years, etc.
In addition, the entities that build these tools would be responsible for pitching six new models near the end of their performance period. Also discussed in the solicitation is support for five existing data models. They are:
1. Department of Defense (DOD) Budget Justifications – a data tool that extracts text from defense-related budget justifications linked to the relevant line of spending to allow for queries to put together spending over time and across accounts, services, or other dimensions
2. Historic Appropriations – Department of State and Foreign Operations – a tool that created a large database that tracks SFOPS appropriations by account and legislative vehicle over a significant period of time and links account names and bill structures that may have changed over time and across legislation,
3. Workforce Information Systems – a tool that combines personnel records with CRS specific information (such as CRS job titles) to populate records used in the Consolidated Database for products.
4. Student Loan Calculator Project – model case simulations of key outcome measures (e.g., dollars paid, dollars forgiven) for user-inputted borrower scenarios under various existing and proposed repayment plan options.
5. Health insurance pricing project – compiles and makes available for analysis data from a public website that contains in-network rates for covered items and services.
These new and proposed projects are very interesting and I’m hoping they’ll be discussed at the next Congressional Data Task Force meeting.
Odds & Ends
How much damage can an authoritarian president do? The Brennan Center for Justice coordinated 5 table top exercises this past spring with former senior government officials with alarming results: “an authoritarian in control of the executive branch, with little concern for legal limits, holds a structural advantage over any lawful effort to restrain him.” One particularly soberging result: “Nothing came close to stopping the president from crushing demonstrations by force, but military leaders warded off talk of potentially lethal measures.” IMO, the role for Congress is to rein in presidential powers; pass laws protecting the press, freedom of speech, and the right to access government information; and strengthen the legislative branch’s capabilities.
CRS created an interactive tool for congressional users on district data, but there’s a catch: it’s only available for congressionals. Kudos to the agenda for publishing a downloadable Microsoft Excel file and moving past having tables in a report that get all messed up when you try to copy and paste.
Chevron. I’m intrigued by Sen. Rounds resolution on regulatory reform, which would establish a joint select committee on regulatory reform that would analyze creating a Joint Committee on Rules Review. The bill text is not on Congress.gov despite its August 1 introduction, but they do helpfully link to where it can be found in the Congressional Record.
The QFRs from a House Admin hearing into congressional safety are out. Of note: the Capitol Police wants jurisdiction around where members reside in the district and at congressional events. Also, the Capitol Complex has a low crime rate.
The Jan 6th DHS OIG report is now publicly available. In skimming the report, I thought it interesting that the Secret Service tried to prevents its publication (by claiming its LEO only), made it hard for witnesses to talk to the IG, and also that the Veep-elect came within 20 feet of the pipe bomb at the DNC. H/T to House Admin Republicans, who read the whole thing.
New GAO restricted report entitled “Cyberspace Operations: DOD Should Take Steps to Improve Coordination with Foreign Partners.” Staff, contact GAO for a copy.
Journalists don’t belong in jail. At long last, Evan Gershkovich is free.
The day a black newswoman first covered Congress.
Have a jumbotron? Congress is looking to lease one for the inauguration.
Johnny Cash’s statue will be unveiled in Statuary Hall on September 24th. Here’s your regular reminder that the confederate statues in Congress need to go, with advice on how to accomplish that feat from me and the R Street Institute’s Eli Lehrer.
Cool off why don’t ya.
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