TOP LINE
No, this is not the most wonderful time of the year for people who care about Congress. The twin must-pass bills that remain for this lame duck session – the NDAA and additional government funding – encapsulate the most dispiriting aspects of current congressional procedure and leadership. Tracking what gets thrown into the vat and what is held out of the pink slime of legislation that oozes onto the floor this week is icky business.
This week, Democrats in the House were planning to release a government funding bill a few days ahead of the Thursday deadline to keep the lights on — but they’ve put that on ice, citing progress in their negotiations this weekend. Their floor schedule is heavy on suspensions but nothing pops out. Senate Republicans sound disinclined to accept it, and the bill needs 60 votes so we’ll see if a short-term alternative emerges instead. The hitch is whether to keep parity between increases in defense and non-defense spending and how to accommodate spending on veterans’ health care.
The full Senate Rules Committee will hear testimony from US Capitol Police Chief Thomas Manger in an oversight hearing Tuesday in the Russell Building at 3 PM ET.
The Senate is expected to vote on a war powers resolution that directs the President to stop providing support to Saudi Arabia for its military intervention in Yemen absent congressional approval.
MAD SCRAMBLE
In principle, the NDAA would be the blueprint for arming a global superpower. It’s become so much more than that in the hands of modern House leadership, who determine what other pieces of legislation that would die on their own get to piggyback onto it. This year’s version arrived at more than 4,000 pages, including provisions never seen before. Once found by civil society or members, some disappear back into the ether.
Technology should provide a workaround to the “read the bill” mantra for a bill this size. The comparative print project the House Clerk has launched for congressional users at least in theory allows staff to track what is appearing and disappearing through different leadership drafts.
The NDAA (and to some extent the government funding omnibus) are tools for House leadership to maintain caucus discipline by creating an artificial pressurized environment and by tacking on bills to reward good team players and favored donors and interests. It forces members who want their provisions included or object to amendments conjured by leadership to play chicken with bringing the entire bill down. Progressives did so with Sen. Joe Manchin’s permitting reform proposal, for example. It’s a vote-free spectacle, not representative governance.
The Senate is far from blameless in this absurd practice as the preservation of the legislative filibuster and the control of precious floor time has made passage of small, single topic bills virtually impossible. Fixes that don’t make it through the sluice have to wait for next time.
Some good government reforms made it into in those 4,000 pages:
- The PLUM Act, which would require OPM to modernize its directory of senior federal officials
- The ACMRA, which establishes an online portal for congressionally mandated reports
- Counterintelligence assessment of foreign-owned spyware and prohibition of use by intelligence agencies
- The Financial Transparency Act, which would require consistently formatted data from all federal financial regulatory agencies
- Strengthen Inspector General independence and accountability
- America’s Taxpayers Act, which would require GAO to explain how much money the government would save if its recommendations were adopted by the federal government.
The version released last week also includes an unwelcome internet censorship provision that allows for the removal of information about federal judges, shielding them from oversight for ethical lapses. The ACLU says the provision “could impose unconstitutional restrictions on speech.” Organizations that conduct judicial oversight have expressed grave concerns that it will cause them and others to censor basic information about judges, such as their birthdays and where their spouses work. The bill also initially added a reference to Section 230 of the Communications Decency Act that would have held websites liable like Google for not removing such information, but that provision disappeared overnight.
(On the topic of judicial transparency, the House Judiciary Committee held a hearing on the SCERT Act, which would create a code of conduct for SCOTUS and require disclosure of dark money support or gifts to justices.)
It’s also notable that the NDAA did not include a repeal of the 2002 Authorization of the Use of Military Force. Nor does the bill include two anti-authoritarian measures. It did not take up blocking implementation of Schedule F, which President Trump proposed to use to fire federal civil servants en masse and shield policy roles from competitive hiring. The House also did not attach the John Lewis Voting Rights bill to the NDAA.
At this point in the lame duck session, Democrats have set at least one government finance trap for themselves. A short-term government spending bill creates a government shutdown opportunity for the hard right almost immediately into the new term. Without the time (and votes because of SineManchin) to pass debt limit expansion in reconciliation, the Republican hostage raid may hit before summer recess.
The Senate still has time to take up bills to make access to PACER free and establish a reporters’ shield law. Majority Leader Schumer simply needs to put them on the floor. CBO recently estimated that making PACER free through the Enacting the Open Courts Act would slightly reduce the federal deficit over 10 years.
An important institutional reform also remains: enacting new overtime rules for congressional staff. Demand Progress, the Congressional Progressive Staff Association, and the Congressional Workers Union last week reminded House and Senate leadership to pass resolutions adopting the Office of Congressional Workplace Rights’ suggestions for updating congressional workplace rules on overtime, which haven’t been revised since the 1990s. A majority of Hill staff work more than 50 hours a week, according to a CPSA survey. New regulations would pay non-managers time-and-a-half for time over 40 hours a week. Given their hostility to the unionization drive currently underway in member offices, the changeover to a Republican majority makes the issue urgent in the House.
51-SEAT SENATE
The Senate likely will operate with a true majority in the 118th Congress after Sen. Raphael Warnock won re-election last Tuesday. The most significant impact of the notional one-seat majority will be on committees. As Jonathan Bernstein points out, ties can no longer clog up nominations and Democrats will have full control of committee oversight. The Senate Finance Committee, for instance, would be able to obtain Donald Trump’s tax returns, letting the House Ways and Means Committee off the hook in releasing them to the public.
Perhaps Democrats will consider eliminating blue slips for all judicial nominations now that the Judiciary Committee can forward nominees freely. Republicans eliminated them for appellate judges in 2017, which stuck in the 117th Congress. They remain in place, however, for district-level nominations. As a result, the Biden Administration has avoided nominating judges for the 37 vacancies on district courts in states with two Republican senators: only two have been nominated and one confirmed.
But, Sen. Kyrsten Sinema is changing her affiliation to an independent, likely in advance of an upcoming primary where her low approval ratings from pretty much every group in Arizona means she would be vulnerable to a primary challenge. For now, it appears she will support Democratic control of the Senate as it would be personally counterproductive to do otherwise. Congratulations to the senator from No Labels.
Speaking of hedging, no more nice McConnell, which his allies and aides say was on display over the last two years to woo Sens. Manchin and Sinema so that they wouldn’t do away with the filibuster. Are we back to the gravedigger of democracy?
FACTIONS
Generally speaking, the Republican conference in the Senate is less obviously factionalized than it is in the House. But the Senate being the Senate, factions do not have to be large to gain leverage. After failing spectacularly to challenge Sen. Mitch McConnell’s leadership position, Politico reported last week that Sen. Ron Johnson and a handful of others are coordinating to make the conference more responsive to arch-MAGAs demands in the next Congress. It’s something to watch, particularly now that the current Senate has run out of time to extend the debt ceiling. We can see it playing out now, as Sen. McConnell moves to protect his flank by playing an even more extreme version of brinkmanship and espouses maximalist, Trumpy positions.
For those keeping track —
- Senate Democrats largely will run back the same leadership team in the 118th Congress, with Sen. Debbie Stabenow filling in for Sen. Patty Murray
- The House Democratic Chief Deputy Whips (who oddly serve on the Steering and Policy Committee) have been named.
- Rep. Jeffries nominated the three co-chairs of the House Steering and Policy Committee and identified his 15 appointees to that committee.
- Here’s the new Progressive Caucus leadership
- Here’s the new New Dem leadership
Not to gripe, but why doesn’t the House Democrats press page have any information about the caucus elections, the appointments, and so on? If you can tell Politico, you can post it on your website. Tweeting (some) of it isn’t enough.
The ideological factions within both parties gravitate toward specific issue areas and therefore, particular committee assignments. In a new primer on House committees, Ross Brennan at the Congressional Progressive Caucus Center breaks down which committees have the most and least representation of the major ideological caucus in the House at the end of this Congress. It’s a little apples/oranges because of the differing size of the caucuses (and committees) but it’s very interesting to see where overrepresentation of each happens and where ideological diversity within parties may be underrepresented. New Democrats, for example, have a stranglehold on the HPSCI. It also indicates both flashpoints and opportunities for strange bedfellows between the parties like the Judiciary Committee, where Progressive Caucus and Freedom Caucus members are both overrepresented.
We also note, as Politico reports, that the decision to give Rep. Foxx a waiver from the term limits rules to chase the chair of the Education Committee may create a mess later on. Term limits makes way for new talent, but also pushes current talent to retire.
Committee appointments was one of the many demands in a letter seven House Republicans sent to Leader Kevin McCarthy last Thursday. They noted that only two of the 27 slots on the House Appropriations Committee were held by House Freedom Caucus members, illustrative of general underrepresentation of the caucus in “A” committees. Furthermore, only one out of 20 ranking members on standing committees is a HFC member.
The letter goes on to make a number of demands that you might hear on the other side of the aisle as well: keeping leadership out of primary elections; avoiding kitchen sink bills with contents that come as a surprise — did someone say NDAA?; and the ability for any member to make a motion to vacate the chair. The letter also smartly encourages the use of must-pass legislation to check the Biden administration, laying out examples of how to do so. It contains some red meat as well: using the debt ceiling to enforce a balanced budget and forming a special committee to combat “weaponized government” — they don’t really describe what they mean.
I suspect that if the rank-and-file of both parties, including a fair number of committee chairs, put aside their ideological differences and collaborated, they would find a lot more in common in how the House should be run than differences.
WHAT ABOUT KEVIN?
It’s noteworthy that the signatories of the aforementioned letter do not include the five members who have gone on the record in opposing McCarthy’s bid for Speaker of the House. Two members-elect signed on, in fact. With a 10-seat majority, McCarthy is a vote short already if the entire Committee of the Whole votes on January 3. To get there, he might have to give in on restoring the motion to recommit, which those seven members insisted on in their letter once again. If he does, how long will he retain the gavel even if he finds the votes?
McCarthy’s hunt is creating collateral institutional damage. Punchbowl reported last week that McCarthy is holding off having the Steering Committee select committee chairs that are contested, which includes Ways and Means, Budget, and HSGAC, until January 3 as to avoid ticking off whoever loses. Ordinarily, those committees would be hiring staff at this time, but won’t without chairs in place. Punchbowl also suggested Rep. Vern Buchannan may retire before the new Congress if he’s not selected for Ways and Means, cutting McCarthy’s margin for error even narrower.
NAUGHTY OR NICE?
The letter from seven Republicans laying out what any GOP Speaker must deliver for their support.
ODDS AND ENDS
TechCongress has opened applications for its 2023-24 Congressional Innovation Fellow program, which will place up to 12 early-career technology professionals in congressional offices to serve as resources on policy. The deadline for the program, which has sent over 75 tech-savvy fellows to the Hill since 2016, is February 2. Learn more about the program and apply at the TechCongress website.
Another promotion for Generation X: Rep. Brendan Boyle will succeed retiring Rep. John Yarmuth as ranking member of the House Budget Committee. The 45-year-old Boyle is 30 years Yarmuth’s junior.
An even younger incoming freshman has hit a depressingly common challenge for his generation: he doesn’t have good enough credit to rent an apartment in DC. Rep-elect Maxwell Frost, who’s 25, shared his difficulty and lost application fee on Twitter, noting he’d fallen into debt because he was campaigning full time and wasn’t able to pay himself a stipend until the end of the race. His story is a classic example of why so few non-affluent people run for Congress. Maybe Congress should set aside money for housing stipends for members coming from regular jobs.
Flipping the bird. Twitter is still a platform of choice on Capitol Hill, but who knows for how much longer. Congress should hedge its bets and have its own Mastodon server.
The US Capitol Police have proposed robust and expensive security installations at members’ personal residences in response to the attack of Paul Pelosi. Meanwhile, former interim Chief Yogananda Pittman will become the Chief of Police on the campus of the University of California, Berkeley. Sleep soundly, everyone.
Need science and technology advice and support? Call on the GAO’s STAA Team.
A creator of Schoolhouse Rock, George Newall, has died.
CALENDAR
The next Congressional Data Task Force meeting will be December 13 from 2-4 PM online. Register to attend the event at this link.
The current appropriations Continuing Resolution will expire on December 16.
So far as we know, Christmas, scheduled for December 25, has not been postponed.