First Branch Forecast Podcast

Daniel and I chatted with Catholic University’s Matthew Green, who’s written on party leadership selection among a host of other congressional topics, on what will happen between the election and the start of the 120th Congress. This transcript is AI-generated and has been lightly edited by me. - CN
Chris Nehls: Hi, this is Chris Nehls of the American Governance Institute here with Daniel Schuman and our guest, Matt Green, a professor at Catholic University of America. We’re going to talk about some of the stuff that’ll be coming up between the election and the next Congress. It’s actually a pretty busy time for members, particularly if the majority flips to figure out who are going to be their leaders in the next Congress and get that all arranged. And Professor Green is one of the experts on that topic. So we’re going to talk about that and some other stuff about the organization in the next Congress. So thanks for coming on.
Matt Green: Thanks for having me.
Nehls: Sure thing. So let’s just kind of start high level when we have an election and we have an outcome for the midterms, the parties are going to get together ahead of time because they have a lot to do to organize the next Congress, and the first thing on their agenda is usually to pick their next leadership class. Let’s just talk about how that works. And just the mechanics.
Green: Sure. There’s this period between the November elections and January when the next Congress officially meets. During that period, the parties – both parties in both the House and Senate have some big decisions to make. So one of them, as you said, is choosing their leaders. We’ll talk more about that in a minute. They do also have the opportunity to revise their own internal rules.
So each party has its own internal rules. And that can govern things like how committee assignments are decided within the party. It can determine disciplinary action if a party member is not doing what they’re supposed to do, and so forth, that doesn’t get a whole lot of attention, but that can be pretty significant.
So there’s the writing, the rules, possibly rewriting or revising the party’s rules and then choosing leaders. So each party in each chamber has a set of leaders. So in the Senate, for example, each party has a floor leader. Majority is a majority leader, minority has a minority leader. They also have their whips in the House. Similar situation with one important difference I’ll talk about in a second.
And so the parties first meet internally to decide who that leader is going to be. That selection is usually pro forma because most leaders are incumbents and no one challenges them or whoever’s running, just no one else wants the job for whatever reason. And so it’s by acclamation. But occasionally these races can be contested within the party. And so there’s a lot of politicking that goes on.
And then you have this vote, and we can talk more about the mechanics of the vote, if you like. And the big difference here is the House versus the Senate, because in the Senate, each party picks their leader and the majority party has a majority leader, and then you win by majority, vote in both parties in each chamber and then the Senate. That’s the majority leader. So Chuck Schumer, who’s the Senate majority leader, was chosen by Democrats. And then that’s the last vote.
But in the House, you also have this speaker of the House position, which is subject to a vote by the full House on the House floor. So when each party is choosing their top leader, they’re also choosing their nominee for speaker. And then that nominee is formally nominated on the House floor on the first day that the House meets. And then you have an election again, this usually up until about ten years ago, where everyone votes with their party and whoever has more seats, that’s going to be the speaker. But as we saw with Kevin McCarthy, we learned that’s not always the case. And it can get quite complicated. But that is the one big difference in terms of leadership selection, I’d say that really stands out is that the House chooses its speaker. So you have this vote on the full House for the top leader, whereas the Senate, you don’t have that election take place.
Nehls: Great, great. Daniel. Go ahead.
Daniel Schuman: I was going to say that sometimes, as we saw, it’s a point of leverage, but we also saw it’s not just about picking who gets to be speaker, right? It’s also about what the speaker can do. And sometimes whether they can continue on. We saw with Speaker Pelosi when she was getting ready to run for her 97th term as speaker. Sorry, her, I think her third term as speaker. The sorry humor doesn’t always translate well.
Nehls: They’re laughing at home. Don’t worry.
Schuman: Yeah. I hope so. The conservative Democrats tried to put in place term limits for her saying that if you wanted to return, I think you need a three quarters vote. Can you talk about the pressure that may or may not be exerted around trying to either control who gets to serve in that role or to influence the direction of the caucus or the conference during the upcoming two years as they’re figuring out who gets to ascend or to retain these lofty positions.
Green: Certainly. Until recent years, this election for speaker, in particular in the House again, was pretty much pro forma. You had, particularly the Democrats, who had a leadership ladder. So if there was a vacancy, whoever’s next up like the majority leader would become the nominee for speaker, the whip would become majority leader, etc.. So there weren’t a lot of attempts to kind of use this vote as leverage occasionally behind the scenes. There’d be some talk about, well, tip O’Neill, who was speaker in the 1970s and 80s some conservative Democrats would say, we’re not so sure about you, but it was pretty much squelched because the norm was you vote for your nominee on the floor, and there wasn’t really an alternative candidate that wasn’t really the opportunity to try to exert influence these elections.
Now, that started to change after the 1994 election, especially Newt Gingrich. Republicans got the majority and Republicans, after the 1996 election who were unhappy with Gingrich, threatened to oust him altogether in what’s called a what’s colloquially known as a motion to vacate, but is really a privileged, privileged resolution to vacate. That kind of opened a door for these elections, for speaker to no longer be considered automatic and that you have to vote with your party. And when that door was opened, it was an opportunity for factions within each party or just disgruntled individual members to say, well, I’m not necessarily going to vote for our party’s nominee for speaker on the floor unless I get what I want.
So as you mentioned with Pelosi, after the 2018 midterm elections, she was the minority leader. She’d been speaker before. It seemed like that’s going to be the next speaker. But she had a lot of Democrats who had either wanted some leverage or they had promised on the campaign trail not to vote for Pelosi. Because if one thing is true about congressional politics, it’s as soon as you become a leader, you become unpopular. And so there was a series of meetings with Pelosi. Now, what she did do, and yes, some of them were saying, we want term limits, we want changes to the rules, etc. so she basically built a paper that I wrote with Doug Harris at Loyola Maryland, how Pelosi did this. So she met with these individual factions and basically cobbled together a majority that would vote for her on the floor for speaker. And some of it was sort of individual side deals. Okay, I’ll put you on the subcommittee or I’ll give you this special trip or something like that. Nothing really huge about changing the rules. There was talk about getting her out, like suggesting that she just this would be her last term. She would not commit to that, but she sort of implied that she, her, she wouldn’t be there forever. She found a way to kind of commit without committing.
Schuman: Can I press you on that? There have been news reports that they had agreed to change the caucus rules, I think, to increase the threshold to return. But that, at least as far as I can tell, didn’t happen.
Green: Threshold to return, meaning.
Schuman: That the threshold to return as the party leader and thus as the speaker was going to move from 50% to, I think, three quarters, and that there was some sort of a deal to do that. And that didn’t happen, at least that the rules ultimately weren’t changed to do that. But of course, the reporting, it’s nebulous. Was that a thing?
Green: I don’t recall it being a thing. It might have been. I don’t recall that. I certainly don’t remember seeing anything in writing that there was that commitment at all. That might have been an informal commitment that she had made, or a kind of discussion sort of thing. And I wasn’t terribly surprised because that’s a big ask for someone to say, yeah, I want I want you to change the rules of the party or the rules of the House in exchange for my vote, particularly Pelosi, who really kind of had many advantages going into these negotiations, not least of which Democrats really wanted to organize so they could fight Trump and not have a battle over who the next speaker was going to be. But she did make these other side deals and promises. And in fact, what we found in our analysis was those generally weren’t the folks who voted against her for, for speaker, in the end were those who either were just very, very ideologically distant from her. And so they can make a plausible case. Look, I’m going to lose reelection if I’m, you know, my constituents hate you. I can’t vote for you. And the ones who had no business voting against her, but did anyway, those were the ones who got punished.
Punishment is can take many forms. So if you would like to be on a special committee, perhaps your request is denied. So you’re not kicked off a committee necessarily. It’s not this sort of negative punishment, but it’s just failure to get a reward, which we found fascinating because it showed that she was really gauging. Do you have a legitimate reason to vote against me? Political reason. If it’s personal, then we’ll make it personal. So in any event, these races can get personal, obviously. But in any event, once she did that, right. So she did that. But that was mostly off the floor. Those are individual conversations and discussions.
Republicans took a different approach, which was to do this on the floor of the House. So when Kevin McCarthy is running as nominee in the party, first you have the party vote. And Andy Biggs, a member of the House Freedom Caucus, ran against him in the party, got, I think, 31 votes, but McCarthy got the most votes. So again, the norm is everybody gets in line and votes for the winner in the party on the floor. That didn’t happen. You had these dissenters who said, no, I don’t like McCarthy, I’m not going to vote for him.
Now, there’s a great book that came out recently by a guy named John Leganski, who worked for McCarthy. He talks about what was going on behind the scenes. Cannot recommend this book enough. It’s fascinating as they’re trying to figure out what these dissenters want and what they can do to win their votes. But the point is, this was now on the floor of the House. So everyone’s watching on C-Span, seeing that McCarthy can’t get enough votes to become speaker of the House. And this happens over and over and over again.
Now, there were some deals made, probably, as it turned out, the most significant. But we can talk in detail about the decisions, the rules, the deals that were made. But to your point, Daniel, deals were made to change the rules in exchange to get votes for Kevin McCarthy, which would have some pretty profound consequences for how the House operated. So yeah, that can happen and has been happening where you have at least two cases where it’s happened. Someone running for speaker can’t get their party in line, and they’ve got to make deals to win their votes.
Schuman: And there was at least with McCarthy, right? I think it was McCarthy. There were rumors of some other document that existed. That was the deal between the Andy Biggs types and around like the way there were reports of a four, I think, four page thing that no one ever found. No one ever saw that governed how things would operate or what would come up. But of course, no one. I have not run into anyone who’s actually seen it. There were just news reports of this mysterious document.
And I should ask, this is also you’re talking about members, particularly with the Democratic Party waiting in line. But Speaker Pelosi was an outlier there as well, right when she was breaking into leadership. She ran against Steny Hoyer in 2001. She ran against him and was able to knock him off to sort of jump in line. Is that right?
Green: Yeah, I would say jump in line isn’t necessarily the right way to put it, because both of them were fairly either not in the leadership structure or pretty low down. So it wasn’t like one of them was the heir apparent. But yeah, we go back to 2001. So this is so after the 1994 elections, Democrats are in the minority. Dick Gephardt becomes the minority leader. He’s their leader for a number of years. He finally decides to retire his eye on running for the white House, if I recall. And so then you have this race for minority whip not Minority Leader. But the idea here is that whoever actually was Gephardt. Now, I’m going to backtrack. Was Gephardt still the leader at the time?
Schuman: I think Gephardt was leader. I’ve been listening to this WQED series on the speaker that’s coming out, and they’re doing interviews, and it looked like the way Pelosi tells it, that they had all the people in line. They knew exactly what you described. They knew who was going to be the Democrat, all the spots down to like assistant dogcatcher, and everyone just sort of takes one step forward. And Pelosi’s like, well, they’re all white men. And I wasn’t going to wait. So I decided to go and challenge it and sort of insert herself into the process. And then Hoyer is interviewed also, and he’s sort of saying, you know, I had expected or there were expectations that I would be moving to this spot. But of course, at least that’s what it seemed like.
Green: Yeah. So I remember now. So it wasn’t that Gephardt’s leaving triggered this. It was David Bonior’s departure. So he was the whip and he decided he was going to leave the House. And so there was a vacancy for Whip. So that vacancy is the one that both Hoyer and Pelosi were running for. Hoyer had been in leadership before. He had been the caucus chair in the past, but he wasn’t in leadership at the time, so he wasn’t on a leadership ladder, and Pelosi wasn’t either. So it was very much an open race.
So when you have that kind of competition, things can get a little bit more interesting because when you have someone who’s on the leadership ladder, they often have kind of a built-in constituency and often expectation they’re supposed to be in this position. Now, each of them, like Hoyer, might have felt I was entitled, but he wasn’t next in line. That was actually Martin Frost of Texas, who was the caucus chair, was arguably next in line.
But in any event, that race people saw who would win, it would likely take over for Gephardt because people thought he was going to leave at some point and run for the white House. So that gave additional weight to this, to this position. Of course, it’s also important in and of itself, because the whip has got to build majorities or at least keep the party unified. And if you’re in the minority and you can keep the party unified, you put pressure on the majority party. So it’s a very important job. Both had a lot of skills associated with leadership and being whipped. But as Doug Harris and I have written about this race, Pelosi did a number of things that gave her a leg up over Hoyer, not least of which was her tireless campaigning for other members of Congress. Hoyer did it, too, but she raised a ton of money for members. She visited districts all over the place. And I think what is interesting about that race was that it actually lasted three years because people realized.
Schuman: How it lasted. How long?
Green: Three, about three years.
Schuman: Okay.
Green: Three years.
Schuman: That’s a long time.
Green: Before there was a vacancy. So one of the tactics that winning candidates and leadership races use is they get a head start. They want to start building up getting vote commitments. Early on there, once it seemed like David Bonior might leave, then this informal subrosa campaign started so there wasn’t any vacancy. Now we’re running. It was just you just knew these two were running and they would talk to you and say, if there’s a vacancy, I’d love your vote. And some members are like, I don’t. What are you talking about? I mean, come on, there’s no vacancy, right? Like, leave me alone. So. Well, just think about me, right? Just think about me. Keep me in mind, this kind of thing. So this went on for a long time.
And it was also very personal and it created a kind of division within the caucus that lasted for many years. So it was, are you a Pelosi person or are you a Hoyer person? And it would pop up in other races, kind of proxies to other candidates, to two other for another office, but they were each proxies for the Pelosi camp and the Hoyer camp. And so this kind of lingered for a long time in the party that can happen because again, these can be very personal. But then that race also shows how significant these can be because the winner was next in line and because Pelosi won, she’s next in line. And then Gephardt leaves. She becomes the minority leader. And then when Democrats win a majority in 2006, boom. She’s the first woman speaker of the House in history.
Nehls:. You mentioned one of the angles she could try to to play was, look at all this is like a long train of white men. And this is something I think, that the Democrats have really made central to the leadership selection process, at least like in the last decade, trying to balance not just the factional battles. Let’s just dig in a little bit. They’ve got to balance the Blue Dogs and the New Dems and the progressives, but they also have to balance the kind of the demographic broad ten of the party, whereas the Republicans to some degree have to do that. But it really is usually picking between guys named John for their leaders. But yeah, let’s just talk about how the, how this kind of evolved from Pelosi to now it’s like the Democrats have like a gazillion leaders because everybody needs to have a hat. It seems like.
Green: So I’ll just start by saying that it’s a it’s sort of an old tradition in both parties to try to have representation in leadership for different subgroups. Now you go back to the early 1900s. For Democrats, it would be Catholics, Protestants, right? Northerners, Southerners. What we see now is the parties, to some degree, trying to do that, but it also reflects the demographic base of their party. So the Democratic Party just has a more diverse demographic base. And they have embraced this idea of ethnic diversity and gender diversity in their leadership for a long time. So it’s not a surprise when you look at Democratic leadership, you see Latinos, you see women, you see a whole range of folks. And that is, yes, it’s political. It represents different factions in the party, but it is also reflective of the party as a whole.
The Republican party is less ethnically diverse, but it does still strive to some degree to get different interests represented. So it’s interesting. Mike Johnson, current speaker, never officially acknowledged that he was a member of the House Freedom Caucus. And his southern religious conservative. But he in some ways could be seen as representing that subset of the party, not just the Christian religious, the sort of the religious right side, but also the kind of like conservative activist, sometimes performative wing of the party based on his flirting with the Freedom Caucus. He’s not, again, not a member, but sort of that kind of thing. And Emmer, Tom Emmer, who’s the whip? He’s from the North. There are still Republicans from the north. I assume that to some in the party they’re like, okay, he’s like someone that we can deal with. He understands us based on where we’re from as opposed to these other leaders. So yes, you get some similarities if you look at it that way in terms of ethnicity, but it doesn’t mean the Republican Party isn’t also striving for some diversity. Political diversity in their leadership as well.
Schuman: That’s helpful. And within the Democrats, they also have the affinity caucuses, the tri caucus, which is the the Black Caucus, the Hispanic Caucus, the Asian American Pacific Islander, as well as the Democratic women’s group, which are all asserting influence in both parties and in both chambers, but in different ways. They’re also doing this under a set of where you started this under a set of party rules.
And it always struck me as kind of weird, right? The party rules. There’s a party committee and they’ve been meeting. And the Democratic side, I know for a while now about what the party rules will be, but the person who’s running this is chosen by the party leader, who is also the speaker or the minority leader, and they’re setting the terms of the fight over who will be able to run. And I guess a question I wanted to ask of you is like, how fair are the rules, the party rules in terms of one, your ability to move up if ascending into leadership is in fact moving up. Some would say that it’s the other direction, but, but also how fair are the rules in terms of or equitable, maybe in terms of having party members being able to set party priorities versus those priorities sort of coming down from the top? I’d be sorry, Matt. No, no easy questions today and no easy questions and bad jokes. But this is where we are. So I’d love your thoughts on that.
Green: That’s a great question. So first of all, I’ll just say that fairness is in the eye of the beholder. Everyone’s got their views of what is most fair. And there’s almost always going to be trade offs. So for example, if one thinks that parties should be more open in the decision making process and let rank and file have more of a say. That can lead to gridlock. It can lead to. It can make things a lot less efficient. It can actually exacerbate divisions within a party.
There’s this great apocryphal, apocryphal story about Sam Rayburn, who was speaker of the House and head of the Democrats from the 1940s to the 1960s. And John Nance Garner, who had been the vice president under FDR, the first vice president, told Rayburn, look, I know you got a lot of divisions in your party. Just do what we did in the 19 tens. Just have one big caucus meeting where you hash everything out, right? That’s fair. It’s open. It’s an open rule. You can amend things all you want. And Rayburn said, you’re insane. I’ve got Adam Clayton Powell, African American from Harlem in my party, and I’ve got these virulent racist Southerners in my party. I put them in a room together. They’re going to kill each other. Right? So we just can’t do that. So there’s always going to be trade offs.
I think one way to answer this is to think about the way that at least the Democratic Party in the House kind of changed its rules over time and centralized power, where they moved from the Rayburn model, which was yeah, he was a strong speaker. But you defer a lot to Southerners. You let the committees have a big say to this rise of the liberal wing of the party over time. And these folks on the left are saying, well, these southern conservatives are running the show. That’s not fair. We should make it more open. But someone still has to make decisions. So here’s the thing. The speaker will give the speaker more power. Because as Dick Bolling, who is a prominent Democrat at the time, said, the speaker is more accountable. At least the party can always, by majority, just vote them out. So the idea was centralizing power is a way to actually empower the collective like more members. But it’s not like leaders sit around passively and saying, well, what should I do next? Or what does the party want? They have their own Preferences, not least of which to be a leader and to stay in leadership. And what leaders in both parties, especially in the House, have done, is they’ve figured out ways to maintain that overall structure that the party decides.
But then the individual decisions that are made often are left to the speaker. So, for example, who’s going to be chairing a committee? We don’t want the speaker to make that decision entirely. We should have a committee that decides it. Yeah, but who gets to be on that committee? The people the speaker wants. Right. Either by appointment or by some weighted vote system, which the House Republicans use. So effectively, the speaker is setting sort of determining leadership. And as you say, these are some of the folks who then make decisions that affect the power of individual members. In the end, if a majority of either party says, we just disagree with this, they can vote to change the rules of their party. And of course, the majority of the House could vote to change the rules of the House.
But this is where I push back from theorists who say like, well, they could just do it. So it’s democratic. But you know what that takes to do that, right? Like you’ve got to have a majority saying, you know what, Pelosi, we’re not scared of you. We’re going to do this. Or to Mike Johnson. Well, we’re not scared of causing total chaos. We’re going to do this. That’s a big, big step to take. And so in practice, I do think leaders have a lot of say, sorry.
Schuman: I want you to know. No, I want you to play that out more. So like for our last podcast, Chris had me do a dramatic reading of the people who are on the Democratic Policy and Steering committee for which has rules that nobody has ever seen and I’m not sure exist to your knowledge. Do they exist?
Green: I don’t know, the party rules that I have access to are the ones you guys find and post on the internet.
Schuman: So the Steering and policy committee, when you talk about it, its composition are the speaker and the majority, the or the majority leader, majority, minority leader, minority whip, whatever. Two thirds of them. Are there people and the rest are like these regional folks. Party leadership controls who gets to be recommended. But in effect, control who gets to be on the committees then for select committees. The speaker currently has the power to name and remove from that as. And we’re like pulling up the drawbridge. So like more and more efforts to make motions to vacate, which aren’t the efforts to defend the speaker. There are efforts to make it harder and harder as well. So it feels like the party leaders are able to put a wall around efforts to affect his or her power. And I just wonder that’s what it looks like from where I sit. Is that an accurate description? So like overthrowing the current system, it’s not like you just get a bunch of people together and like, yeah, we’re going to get someone else. Like, it’s, it’s, it seems like it’s much harder than that. Could you talk about what that involves? And is it like even, you know. Is it really possible to do. How hard is it to do? I just welcome your thoughts there.
Green: Sure. Well, it’s true actually, that leaders in both parties have certainly found ways to make it harder to be especially removed on the House floor. Now, remember, this is a tricky situation because everybody votes. So you can have oh, I don’t know. Speaking hypothetically, a rogue member from Florida and four of his friends. But with all the Democrats and remove a speaker that a majority, a supermajority of Republicans wanted. So there’s that tension on the House floor between the majority of a party and a majority of the chamber. So in some ways, it’s not surprising that party leaders are making that harder because they can appeal to their party and say, don’t let a few rogue members basically let the other party have power. Like, okay, fine.
What’s interesting is, though, some of these other changes that have occurred, I think, over a longer period of time to effectively empower party leaders well beyond the way they were half a century ago. And again, to do that, in theory, you just need a majority. If it’s a party rule, you just need a majority of the party. But when you come into an existing institutional regime, like a new member of Congress and you’re like, these are the rules. This is the leader, right? We’ll just paraphrase what Sam Rayburn used to say to get along, go along, to go out and just basically say, we’re going to we’re going to weaken you as a leader in the party is very difficult.
And it’s interesting to me that the Freedom Caucus has done more, its members have done more to try to change that than any other group. I can think of a few members on the Democratic side. Pelosi. Fine. But actually, when John Boehner, the speaker of the House, resigned in October 2015, there was a document you may be familiar with that said, here are reforms that we want, and we want the next speaker to agree to them or they don’t get our vote. And that means not just the party, but the floor. Nothing came of it, as far as I can tell, which to me is a lost opportunity, less because I think they were good, but more because I’m just fascinated. That would have been so interesting, right? It would have been like Speaker cannon kind of again, when he was overthrown, he was weakened in 1910 like, wow.
And so the best that, you know, the closest we’ve seen is that race for speaker under Kevin McCarthy, where he agreed to put some dissenting members on the Rules Committee which determines the special rules under which bills come to the floor. And he agreed to make it so only one member could remove and make a privileged resolution to vacate the chair. I didn’t think that privileged resolution rule would make a difference. I was totally wrong. That’s how McCarthy got kicked out. But it didn’t. That rule change didn’t really lead to the kind of broader democratization of the process that a lot of reformers call for.
Actually, interestingly, the appointment of dissenters on the Rules Committee did have an effect, which not many people realize, which is that the number of amendments allowed to bills that were very conservative and supported by Freedom Caucus members went way, way up. So it empowered that faction of the party. But they generally lost. And in fact, the percent of votes on the House floor on anything, bills or amendments in which a majority voted for it, but it still failed, called disappointment votes went way up because all they were doing was saying, we want the whole House to vote on our ideas. But like all Democrats and a handful of moderate Republicans are like, we hate that idea. So they just kept losing. So maybe that was a good thing because it opened up the process. But then as soon as McCarthy left and Johnson came in, or pretty much or not long afterwards, he got some of those folks off. Tom Massie left, right. And then it was back to the way it was before.
So to me, if you want to fundamentally change the way the House operates, you’ve got to think first. Are you talking about your party and party rules, or are you talking about the whole house, number one and number two, are we talking durable rules, changes making, requiring more open rules, or are we just talking about change in personnel? And I think the latter is not durable. And it’s not really, in the end going to change things the way the House operates in a really fundamental way.
Nehls: I was going to ask you if people had studied the legislative outcomes of the centralization of power, and that’s not anticipating you were going to get into the Freedom Caucus change. That was really interesting. But have other people looked at in the political science literature, the effect of we talk a lot about opening up the floor to more debate and legislative processes being more open as an organization, but I’m curious if people have been able to figure out what the impact of a lockdown system has been in terms of policy.
Green: In terms of policy is a good one. I’m not sure how many have looked at that. I know a number of scholars have looked at just the way the House operates, and compared it to changes in the distribution of power in the chamber. A lot of that is correlative. It’s hard to draw a causal link, but it’s certainly intriguing, like what we’re seeing, right?
As you probably know, we’re seeing very, very few open rules, almost none really. So everything is now structured. It limits the debate time and amendments that can be offered more closed rules where you can’t do anything, sometimes more, depending on how tricky it is to pass those rules. More bills pass under suspension. So it’s just a two thirds vote, but it’s like 40 minutes debate, no amendments. And we’re also seeing, and I think this is part of the leadership is partly to blame for this. Fewer bills passing, but they’re longer. So the same amount of legislating might be happening. But the opportunities to debate and discuss individual legislative proposals is diminishing because you get this bill with like 15 things in it. So you got this Christmas tree and it’s like am I gonna vote no? Because I don’t like that one. That one decoration, right. Or I’d love to debate maybe taking the tinsel off, but I can’t do that because I’m not allowed to. It’s just the one big package to continue this metaphor.
And I do want to say this though, again, the cause is key. And it’s not always clear what the cause is, because we can certainly blame leaders, but we also have to consider the extent to which members themselves don’t want to debate. They don’t want these votes. They’re afraid of voting too much. They’re afraid it’s going to hurt them in their next election. They like the Tuesday to Thursday schedule, where they come in Tuesday and leave Thursday. And so it’s possible there’s members saying, please don’t make me have open rules there. I do remember talking to a member of Congress about open rules on appropriations bills, and he was on the Appropriations Committee and he’s like, oh, they’re so annoying. I’m like, But isn’t that. Which is not the job. Right. Let people debate and discuss. So if the members are telling their leaders we like this system, then changing who the leader is isn’t going to change the system.
Schuman: Yeah. I think they like openness to the extent that it’s open to them and not open to anyone else. Right. If you’re on the committee and you get to fix it in the committee, then you don’t want it to be on the floor. If in your leadership, you want it open to you in leadership, but you don’t want anyone else having a say, you want your voice to be heard, but nobody else’s.
Green: Yeah. And I’ll just add, because I’ve been reading recently about reading old literature for this project I’m doing in the old, old days, you would have a lot more open rules before the 70s, but you had two things. One, the rules on amendments were secret. So yeah, sure, we’ll let you have a debate and vote, but you’re not going to be able to do credit claiming on it. And also, I might be able to persuade you to vote against your constituency. And the second is that committee chairs had a lot of informal influence. So the thing was, okay. My bill will come. I’m a chair. My bill will come to the floor. Open rule. But none of you better vote for any amendments or if you know what’s good for you. So in some ways, it wasn’t that much more open back then, but at least you could at least offer an amendment. You could have a vote. And I don’t know if committee chairs just don’t want to do that. If they’re lazy, they don’t have the influence to keep people from doing it.
But to your point, Daniel, it’s like, okay, open as long as I get my say and oh, that’s yeah, I would be really curious to see what a rule of a legislature would be that said, open rules, but only Democrats can offer amendments or something like that. It’s not a rule of a chamber, right. That’s just partisanship.
Schuman: It’s kind of what you described with the Freedom Caucus, with having a couple members on the Rules Committee where they, you know, they got to have votes on their thing, but it doesn’t mean that they won more often. They just got to force people to take a position.
I wanted to flip back to the Senate for a second, although just before we did so to the book that you had referenced by Lagansky. It’s called Glory, Grief in the Gavel: An Insider Guide to Running for Speaker of the House. Just in case folks who are listening might want to go out and look for it.
And also, one other thing I was thinking about just in the context of the House, particularly with the Democrats, is when you realize that you can’t move up, you see a lot of exit as well. So if Gephardt or Pelosi or whoever looks like they’re going to be there for a long time, and you’re and you have to start this long chain to move all the way up, there comes a certain point. You’re thinking, well, maybe I’d be better off as governor or as mayor or as anything else.
The Senate seems different, right? The Democrats haven’t amended their caucus rules. I mean, they made one change with respect to subcommittee chairs, but they haven’t done it in quite a while. And of course, the Senate rules itself don’t really change except for John Fetterman’s attire. They changed the rules by voting the interpretations of the rules. So it seems that their mechanisms are very different from the house. And we’re about to see on the Democratic side, major turnover in leadership with Senator Durbin is not coming back. Number two, Senator Klobuchar is not coming back. Senator Schumer, of course, is not up for reelection this time around. But there is some pressure on him, and there are questions about what will be happening to him in two years. And Schatz looks like he’s moving. So it looks like long periods of stasis and not a lot of obvious changes in the chamber or party rules as compared to the House, which also seems fairly static. But at least people get pushed out slightly faster. I wonder, what do you think about the Senate in the context of the operations of the party?
Green: So I do think I don’t have data to support this. So I’d have to look at it, but my sense is that there’s more stasis in Senate leadership or more stability than in House leadership. And in some ways that makes sense because first of all, senators are serving six years. So if you voted for someone your first year in the Senate, presumably you’re going to support them five years later. And second of all, there’s fewer senators. Now, the old saying is that every senator wants to be a president, right? So there’s a lot of ambition in that chamber. But at the same time, there are just fewer folks like you just have a smaller pool of potential candidates. And there have been periods in history where there’s been some turmoil, some significant turnover. There was probably most famously, Ted Kennedy ran in the late 60s for whip. So he ran for whip and got elected in 1969, kicked out the incumbent, Russell Long. But then he got booted two years later by Senator Robert Byrd as whip. So those things do happen sometimes. But yeah, you tend to see more stability.
But at the same, you know, I don’t want to, but at the same time, there is this thing that’s happening in the Democratic Party in both chambers, this kind of folks who are there and they’re just there forever. You had the Pelosi, Hoyer, Clyburn trifecta for a long time. And frankly, Durbin, how long has he been whip? He’s been whip since 2005. Yeah. He said 20 years as whip. There is some something that might be going on in both parties where folks are there and they just sort of establish themselves.
Schuman: And he’s interesting because he got, he got passed over too.
Green: Right. Well, yeah, he was thinking about possibly when Harry Reid left Yep. Durbin was next in line, but Schumer ended up being elected. And even weirder, Durbin and Schumer are old friends. They used to be roommates when they were both House members. They had this crazy house on the Hill. So again, these things get really personal.
But yeah, I’ll just say this, that part of being in leadership House or Senate, Republican or Democrat, is protecting yourself from challenges from folks who have an eye on your job. One of the really interesting observations in that book by Lagansky is that whole battle for speaker, for McCarthy. He talks a little bit about other Republicans who started to smell blood when he didn’t win the first round, and so he had to keep their eye on Emmer. They had to keep their eye on other leaders. Be like, what are they up to? And he points out the cover of the book, which is when he finally gets chosen speaker. Okay. And everyone’s all the Republicans are applauding like, oh my God, this took forever. We’re so glad we’re done standing right next to McCarthy. Mike Johnson right. And he writes in the book, like, look at the cover of the book. It’s not an accident that Mike Johnson was just sort of hanging. He was hanging out, just kind of like listening in and seeing what we were up to. He clearly had his eye on the speakership, if not this time, then when the opportunity arose, which is what happened. So when members stay in office for a long time in Congress, it’s often not just because they’re popular, but also because they’re making sure that they know if anyone is unhappy, that they’re talking to them and dealing with them.
Schuman: Yeah, it’s reallys really interesting. I’m looking, I pull up the cover of the book now and you and as he’s got like McCarthy is on the left, and then Mike Johnson is just kind of like, yay, I’m waiting for you. You hear the jaws music in the background or something. Just I don’t know who wrote the book. Like, why not me? Right? Like all the members of thinking, why not me? It could be me.
Green: Book would be too long to read, Daniel.
Schuman: Well, like most, most politicians’ autobiographies would certainly not worth reading either. It seems that it can be hard to follow the machinations, both the machinations with respect to the the factional, like the party rules. And then who’s trying to ascend and who there were. There was Rosa DeLauro and was it Nita Lowey? I forget, like when they were running for appropriations chair and like it was a one vote difference. And that was a thing for like 20 something years. There are all these things that seem to happen, but it’s those that shape the policy outcomes and the political outcomes. But they’re really hard to see right from the outside. The reporting generally isn’t on that. You know, I long thought that if you could look at the way that members voted when there are these divisions inside the party, that would be one of the best ways to actually understand. Factions, not factions from ideological or affinity, but the old school, like the mafia, right? You’re this is my person, right? They did me a favor. I’m going to do them a favor. This patronage system that also seems to exist to some extent that we really can’t talk about very well at all. But like I’m a Hoyer person or I’m a Pelosi person, and it goes back to 2000, and here we are in 2026, and Pelosi is endorsing a different person than Hoyer wants to succeed him in Maryland because of this, which, hell, I mean, it may go back to when they were interns together in in the 14th century.
Nehls: Then they seed their staff fall over into other offices. So it’s almost permanent. Right?
Schuman: Yeah. And I can you is there any visibility at all into this what looks like an old school patron client kind of member relationship. Like how would one even observe that or try to understand the way that that works? Or is it just too hard?
Green: Well, it is hard. And I don’t want to overstate the Pelosi Hoyer example, because that was very much a case of two very different politicians and their personalities, and it got personal. And so when that happens, you can see it kind of spread throughout the caucus or through the party. Not all races go that way, but it’s hard to know. Chicken or egg, is it that these leadership races create these things, these differences or these subgroups or factions or those were already there and they come to the fore in these leadership races? One of the things to note here is that these leadership elections are by secret ballot. So you don’t know within the party how folks are voting.
Now, Doug and I have analyzed these races in our book about leadership races in the House. And we had to go back because the stuff you have to wait till it’s been. It’s in archives, but you can see how members promised to vote for each candidate. And if you’ve got more than one whip count, you can cross check it to see if they’re being quote unquote honest. And you do find that while ideology is a part of it, so there’s a more liberal candidate, more moderate or more conservative, and some people sort of glom on that candidate because of shared preferences.
Other stuff can matter as well. So if we’re going to talk about groups that matter, at least in the old days in the House, state delegations were really important. So large delegations or largish ones like the Illinois delegation, Democrats, like we’re voting together. That’s what we do, right? We stick together. Maybe they’re taking orders from a boss at the state or local level back then. But that kind of thing comes out in these leadership races. So what I find so fascinating about them is I don’t think about it like, like the mafia. I think about it more like when you have a large group of people, even if they all say we’re on the same team. They don’t all agree on everything. There’s other stuff that matters to some people. It’s friendships, it’s identity. It’s where they’re from. And then in these leadership races, that’s where it can come to the fore and say, yeah, I know you and I agree on this bill, but I’m from Illinois. Okay. You’re from Louisiana. Sorry. But yeah, just different.
Schuman: Yeah. I think the sociology of that is interesting and sometimes overlooked, both in terms of like, committees are too big, the chamber is too big for members to get to know each other. And that’s not a function of the members not wanting to. It’s just a function that it’s larger than. There’s a number of relationships that a human can normally maintain, and it’s larger than that. Hoyer talks about when Pelosi and he were competing, that Pelosi was from California, and California has a lot of members, and she had been the party chair, I believe, and like she raised crazy amounts of money because that was what she did in the 1980s. She was a huge fundraiser. And Hoyer says, I’m from Maryland, and we’re just not that big a place. And I do wonder about, you know, New York has a big delegation and that supports Jeffries, in part because it’s such a large. And the financial district is there, which is another power source.
When LBJ was powerful on the rise, he was taking. He was getting money from what became, I think, Halliburton. Right, and handing out checks. And that helped his rise to power. And I just wanted to clean up a mistake that I made. Rosa DeLauro lost the race for the assistant to the Democratic leader in 2002 by one vote when she was defeated by Bob Menendez. That’s what I was thinking of. And that was one of those interesting sort of divisive things that happened a little bit as well, where you see folks reaching in. And there was a similar story of what Pelosi did to Dingell. Right.
Green: So again, we’re going to go back to Pelosi.
Schuman: I’m sorry. Keep going back to her.
Green: It’s fine. But remember Pelosi got her start working helping out, volunteering in her dad’s political machine in Baltimore. So a lot of when we talk about Pelosi and a lot of people underestimate her because they’re like, oh, she’s a woman. She’s from California. People were saying she wasn’t bright and all this kind of stuff. And man, she just showed time and again, she understood politics from that perspective. You build coalitions. You are not afraid to signal to people when they’ve displeased you. You don’t have to do something violent, but you make it clear you’ve displeased me. Right?
So Dingell is a classic example. She and Dingell were always butting heads because they’re just different, right? He was conservative, particularly on environmental stuff. He’s from Michigan. She’s from California. She’s more liberal. And Dingell also has a similar approach to politics. There’s stories about the way Dingell treated people on his committee who displeased him, Pelosi as her, as she’s rising in power, I think she sees Dingell as a potential problem. So what does she do? What one of the first things she did is when they redrew the districts in Michigan, and he was redrawn into a district with a more junior member, a woman in the Democratic Party, Pelosi gave a contribution to his opponent, not to Dingell. And everyone’s like, what are you doing? You’re the leader of the party. You’re not supposed to take sides. And she was like, oh, no, no, no, it’s just a standard thing. She’s a friend. I did it before they redistricted. Yeah. Everyone’s like, no, that’s not what’s happening here. You are signaling to Dingell you are displeased with him. Of course, Dingell didn’t care because he wasn’t intimidated.
But finally, Dingell was challenged in the party for the chairmanship or the committee Leadership of Commerce by Henry Waxman. And as an indication of just how powerful Pelosi’s reputation was, everyone assumed that she had directed it, that it was personal against Dingle. She denied it. She said I have absolutely nothing to do with this. Maybe not. Who knows? Waxman won and Dingell was ousted.
So that kind of politics, frankly, you just don’t see that often in Congress because not many lawmakers are like that. There have been a handful that have been that way. I don’t think Jeffries is that way. He seems to be more of a – in another interview, said he’s more of a he’s more of a thermometer than a thermostat is a thermostat. I’m going to change the temperature. This is what I want. Jeffries at this stage is more of a thermometer. What does the party want? Nothing wrong with either of them. But if you’re more of the thermometer, you’re not going to do the kinds of things that Pelosi did because they’re risky. They make people upset.
Schuman: So the last question, just because we’ve been you’ve been very generous with your time and we’ve been unfair in abusing it. So looking forward over the next three months, Sorry, it’s a big question, but looking over the next three months, there’s going to be the factional fights that are going to play out in the two chambers and the two parties. The Senate, of course, is going to be very interesting if it changes, because the math there will be interesting. But on the House side, we’re seeing members getting educated about the power that they possess, which is not something that they really seem to have been all that aware of over the last six, eight, ten years. And there’s more conversations about party rules and chamber rules and factions than I’ve seen in a very long time. I was going to ask, what do you see as happening? But that’s not that’s probably not the question I want us to ask, maybe, what do you think should be happening? If you want to have a healthy house, say, what should the members be doing so that Congress can restore some of the power that it seems to have acceded to the executive branch or elsewhere?
Green: Well. There’s a laundry list of reforms that people have circulated, and. And I think they’re all worth looking at. But I think the two things just off the top of my head that need to be addressed are internal congressional capacity. So what can Congress do to improve what it does? So it works better.
And then the second is standing up for itself against not just the executive, but also the judicial branch. So education about what members can do internally also has to include education about what Congress can do. I give talks where I talk about all the things article one, section eight says that Congress can do, and people are like, but they’re not doing any of those things. I said, I know they need to understand those two things, but I think they both go hand in hand.
So there’s a partisan element, obviously, to both of these. So Democrats are like, yeah, we have a majority. We want to challenge Trump. We want to take him on. We want to impeach him. We want to remove him. I would implore Democrats, if they have a majority in the House and especially in the Senate, think longer term here. Think about what it is that Congress is not getting done because of the way it works. And we can start with the appropriations process, which most people agree is broken beyond belief. How do you fix that? And then number two, and related on the same, it’s like a separate track, but parallel is how does Congress figure out a way to establish itself as a more powerful branch? Frankly, I think the founders wanted it to be the most powerful. What is it? Can it be done legally? What can it do politically? So I’m not actually giving any specific answers to your question because there’s a lot of reforms, but I would want the majority party, frankly, either party to be thinking about those two things. And think longer term for the sake of Congress and for the Republic.
Nehls: That’s a great place to end. Thanks so much for taking the time here. Really appreciate it.
Green: Thank you for having us, having me. It’s been a lot of fun.



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For this episode, Daniel and I discussed the little-known but important set of rules that govern how Democrats and Republicans how to operate as caucuses within the House of Representatives. These rules determine how members are selected to committees, how leadership has to treat legislation, various punishments for misconduct and falling out of line, and a host of other things the parties need to decide on to work as a single unit. The Democrats keep theirs secret.
The caucuses typically revisit caucus rules at the start of every Congress. With the House majority potentially flipping in November, adopting caucus rules will be important for how the Democratic caucus decides how to share power and what potential the rank and file will have to impact the chamber.
Members arriving in Washington after the election, we explain, should be thinking not only about the rules that govern the House, but govern themselves as party members.
Chris Nehls: Hi, this is Chris Nehls with the American Governance Institute. Welcome to another episode of the First Branch Podcast. This time around, we decided to keep it local. I was thinking of a conversation to have with someone about caucus rules, and it turned out that the person that probably knows the most about them is Daniel Schuman, who is nearby and easy to contact. So here we are. We’re going to have a conversation about What the caucus rules are, how they relate to the chamber rules in the house and why you should care about them. So thank you, Daniel, for taking the time.
Daniel Schuman: Thank you for having me on my show.
Nehls: It’s the nightmare scenario. Two of us talking to each other.
At least it’s two of us because it could be even worse, right? That’s just be one.
Schuman: That’s true. It could be just be one. There’s a word for that. It’s called radio.
Nehls: Yeah, monologues are probably not the thing that we need to be promoting. But yeah. So each Congress, the parties get together and write their own rules in the House. And they’re usually held close. And by hook or crook, you’ve been able to get a copy usually of what took you some time. But why don’t you talk about what these things are and why the caucuses go through this process.
Schuman: Thank you for the question. As regular listeners of this podcast know, there are lots of different rules that relate to the legislative branch. Of course, there’s rules that come from the Constitution, the House of Representatives every two years, usually, but not always on the first day of the new Congress will adopt rules that governs its operations.
But in the 20th century, the congressional parties took on some new and different roles, and some of the authority or some of the mechanisms for governing the operations of members in the chamber happened in the caucus rules and not in the chamber rules. And this often flies below the radar, but it really controls a lot of how things work.
Nehls: And just to clarify, the caucuses, it’s basically everybody that’s of a party in the House. It’s not the specific caucuses, we’re talking about the entire body of Democrats or Republicans.
Schuman: Yeah, so of course, everything is lingo and Democrats and Republicans can’t even agree on what to call their thing. So the Democrats have a Democratic caucus... C-A-U-C-U-S, if you’re hearing me otherwise, that’s not what I’m saying. For Republicans, they have a conference. And basically, this means that the people that are affiliated with those parties that the party recognizes as being members of that party.
You don’t have to be a member of the Democratic caucus or the Republican conference, but since one of the things that these rules govern as it relates to the operations of the chamber is who gets to sit on committees, in the modern era, if you’re not a member of the caucus or the conference, then you don’t get a committee assignment, which is no bueno if you’re actually trying to do stuff. So even if you’re an independent, you probably have to say I’m affiliating with someone.
So the Constitution says that you need to have a clerk of the House. The chamber rules talk about the election methods. But then if the Democrats have a majority, they actually have a process by which they pick the people who would serve in those roles. They decided among themselves.
And then they turn around and they’re like, all right, hey, everybody, we’re going to vote. It’s called the fait accompli. Who’s ready? And that’s how it works for a lot of things. So when you wonder, like, how do Republicans pick Who’s going to serve on what committee or be the committee chair? Their party rules govern that.
So, they have term limits for committee chairs, which Democrats don’t have. That is not a function of the chamber rules, although it could be. It is a function of their party rules.
Nehls: So, let’s dig in a little bit. You mentioned committees. First off, let’s just start with who gets to determine what these caucus rules are? Does the caucus all get together and have a big Caucus conference and throw out a whole bunch of ideas and then they write them up or how do they? I’m pretty sure that’s not how that happens. How do they do that?
Schuman: That is not how that happens. Maybe at times. So, the party became more relevant, certainly on the Democratic side, when there was a significant effort to overthrow the Democratic committee chairs. Back in the days of old, if once you were on a committee, you got to stay on the committee by virtue of a seniority, not by virtue of being appointed. Not by virtue of election process where you could not be appointed, right? That basically always happened. And you ended up with a whole bunch of very conservative Democrats running both the policy committees and also the rules committee, having significant control there. And that was against the interest of the majority of the party.
Nehls: And we’re talking about the 50s and 60s.
Schuman: Yeah, that’s right. So they got together, they formed a working group called the Democratic Study Group. And they got together and they tried to revise these systems. In 1961, they expanded expanded the Rules Committee. And in later on, like early 1970s, they moved the locus of power away from the committee chairs that were very powerful — so powerful that they would make you come in for a vote and you wouldn’t know what you were voting on, right? They were just extraordinarily powerful to move that power to the party — So they create a mechanism by which people will get reappointed as their party’s leader on the committee or members of the committee, but also mechanisms by which you could not return necessarily in that role. And while they give a lot of deference to seniority, they don’t always defer to seniority. And just if you’re a Democratic member of a committee and they really don’t like you or a Republican member of a committee, they will kick you off. They will find ways to punish you and the party will vote to punish you. And then they bring it to the fore and the floor vote reifies that.
One weird thing is the detente between the parties, right? The Democrats will generally defer to the Republican choices for who’s on a committee and vice versa. So, if the Republicans decide to punish someone, the Democrats will be like, cool, and let it happen and vice versa. So there’s a lot of power that is asserted through this mechanism.
The writing of the rules, which was your question — See, I remembered it. So in theory, the party members can propose changes in the rules at any time. They have regular caucus meetings. They don’t usually have a quorum at those meetings. Those meetings are also not public, by the way, just for fun. So you can propose rules changes. The Democrats have a committee on caucus rules. I think the Republicans have something similar that is usually chaired by a person who is the right arm of the Speaker, whose job it is to protect the Speaker’s prerogatives, not necessarily to reflect the interests of the members.
So, you go and you talk to the chair of the committee on caucus rules or procedures or whatever it’s called, and you will try to persuade them of things. Good luck with that. This is basically a mechanism of both leadership control, but also where the factions will fight things out a little bit within the structure of something that is set up by leadership.
The reality is these rules don’t change very often. The last big change that I remember to the Democratic Party rules was like, changing the pronouns. There are other changes that can happen over time, but they’re really not that visible. Until just a handful of years ago, they weren’t even publicly available. You couldn’t see what the party rules were for the Democrats, although Republicans were much better, they had published their conference rules for a number of years.
It is possible to change them. Members have worked to change them. Members have used these mechanisms to change the way the party works because it changes the way the chamber works. But people don’t usually organize around this as a mechanism to do things.
Nehls: But originally,the Speaker, at least in the late 60s and 70s, the idea was that the caucus would get to what the majority wanted to do based the powers that they had collectively given to the Speaker to get stuff done. And over time, the caucus rules have remained fairly static as the power of the Speaker has increased and as the Speaker has taken on more and more of the actual House rules, right?
Schuman: Yeah. So that’s right. They have changed to some extent at different points. Leadership is very good about finding little points of leverage. You just change your word, you change the phrase, you move a comma and it significantly changes how power works. And some of these things you need in the rules themselves written down in black and white, but if you’re having a vote and the Speaker’s on the other side of that vote, things are not going to go well for you as a general rule, unless there’s a lot of people with you.
One of the most powerful mechanisms inside this is the steering and policy committee for the Democrats. The Republicans have broken their steering and policy committees separately. Steering, it makes you think of cattle, I think, makes me think of cattle or maybe a car, but it’s about who gets to be on the committees and who gets to be the chair. And that entity, the steering and policy committee is created by the caucus rules, but they operate differently. We don’t actually know what their rules are because while they in theory have adopted them, I have never run into anyone who has ever seen them.
So it is the secret committee that runs the democratic party to a fair extent, to the extent that they run anything. I don’t know if they meet, maybe they meet, do they have an independent existence outside what the Speaker wants? It’s an open question.
I will see if I can find it because I’ve got the document out in front of me. The people who serve on the steering and policy committee for the Democrats are by and large the speaker and majority leaders people. This is not the different factions being represented. There is some efforts to include regional representation. They elect a handful of representatives from each region, but the Speaker gets to pick a bunch of people. The Majority Leader gets to pick a bunch of people. I think the Whip gets to pick a bunch of people. I’d have to go back and look. And I think the speaker gets three votes just to make things even more fun.
Nehls: Oh, wow.
Schuman: I think that’s right. As a functional matter, this body makes recommendations to the caucus about who to name. And at times the Speaker’s preference can lose, but it’s just not that common.
Oh, here we go. I’ve got the list. So you’re ready for this? Sorry, this is going to be the most boring minute of podcasting, but let’s see if I can do it. The Democratic Steering and Policy Committee shall consist of the Speaker, the Democratic Leader, the Democratic Whip, the Assistant Speaker, by the way, who’s chosen by the Speaker, the Caucus Chair, the Caucus Vice Chair, the Chair of the DCCC. The DPCC chair, the DPCC co-chairs, the CLR, the FLR, the BLR, this is literally, it’s written, I’m reading it to you, right? The chair of the committee on caucus rules, the three co-chairs of steering and policy.
So the Democratic steering and policy committee shall include the three co-chairs of steering and policy. This is recursive. The parliamentarian of the steering and policy, the senior chief deputy whip, all the chief deputy whips, How many chief deputy whips are there? There’s a lot. A member of the freshman class, a single member of the freshman class, by the way, 12 members who shall be elected from the 12 equal regions to set forth in Rule 11, then up to 15 members who shall be appointed by whom? The Speaker.
You also get the Chair of the Appropriations Committee, the Chair of the Committee on Budget, the Chair of the Committee on Rules, the Chair of the Committee on Energy and Commerce, the Chair of the Committee on Financial Services, and the Chair of the Committee on Ways and Means. Ways and Means, by the way, was the formal process mechanism by which people were appointed to committees back in the days of old.
And when do you get kicked off steering and policy? When a successor is elected or appointed. That’s great. But you’re not allowed to serve more than two terms. And who gets to chair the steering and policy committee? Come on. One word. You know what it is, Chris. Who gets to be the chair?
Nehls: Is it the Speaker?
Schuman: Yes. Yes, it is. In fact, the Speaker. So Mel Brooks had it wrong: It may be good to be the king, but it’s really good to be the Speaker.
And what do you get to do? The functions of the committee is to report its nominations for House committee memberships, to report its nominations for House committee chairs. They could also recommend vacating committee chairs and removing members from committee. By majority vote, they can declare that a chair or subcommittee chair position is vacant. And that’s not a description of a member’s qualities, right?
Nehls: So you’re saying that they can just decapitate the leadership of a committee if they get mad enough?
Schuman: They can recommend to the caucus by majority vote, and then the caucus will vote. Then, should such a recommendation be made, the caucus shall meet to consider such a recommendation. I like to think that whoever wrote this was doing it tongue-in-cheek. Within five to ten legislators after the committee reports these recommendations, they can debate for up to 60 minutes, equally divided between proponents and opponents, and then they vote.
They also play a role in policy development to create policy priorities. And if a majority of the caucus votes for a policy priority, then the members are bound, whatever that means. I assume not literally, but the members are bound to follow that policy directive.
So we’ve got the regional whips, right? There is a voting mechanism for that. That’s like the only part of this thing that is actually democratic, right? Each of the people in a different region — there’s 12 regions of the country — the members get together and they vote for the person that they want. And if you serve them for 12 years, then you have to get booted. There’s also regional whips, right? The whips are the people who work for the whip to get members to vote the way that who wants? Right. And they’re elected by secret ballot. Isn’t that nice? What you have is a a nucleus, perhaps. Or a cadre of in this very Soviet process of how decisions, how people are appointed, how people can in theory be removed.
Some control over decision-making where the democratic leader, the Speaker in the majority is the one who’s in charge. And also just in case you were concerned, the caucus chair is also responsible for codifying and revising the caucus rules and for recommending modifications when advisable. So the person who’s in charge of this is the person who is responsible for overseeing the process by which the rules change that would affect potentially their power. Isn’t that special?
Nehls: That’s pretty well insulated. Yeah.
Now, let me take the other side. You have seen in this Congress a fair amount of freelancing in the majority party. By members who have been upsetting the Republican Party’s apple cart a little bit, and maybe you’ve got a big agenda. You’re coming into the 120th Congress, or pick your favorite Congress. You’ve got a big agenda you want to get accomplished. The leadership team has a big job of organizing everybody. So from the leadership perspective, what are they really trying to accomplish with this kind of level of lockdown?
Schuman: A number of things. One is control, right? Control of outcomes. Another is, so you’ve had to suffer through Chris like this annoying talk that I gave about three mechanisms of control in a legislature, right? You have control over what gets to the floor. That’s what the rules committee is for, largely, right? That is the Speaker dominated process. You have control over who gets to write the legislation. And then you have control over who gets elected. So in the caucus rules, we see who gets to write it in part back when the committees did the work you get to control is on the committees.
And then of course you also have the money side, right? It’s the DCCC, the campaign committee is also chosen through this mechanism. So that’s two of the three major levers are being asserted through here.
But it’s worth remembering that this is just a group of people who came together and wrote rules for themselves. How are they any different from any of the other parties that have existed over time and have chosen to organize one way or another? How are they different from a subset of members who decide they want to operate differently? Why should your committee membership be dependent upon the operations of the Democratic and Republican parties?
Shouldn’t all members get to sit on committees? Or maybe a lot of members shouldn’t sit on committees like at the British Parliament. A lot of people don’t sit in committees at all. When you look at the Senate went through five different variations on this as well. As it turns out, it’s really freaking annoying to try to figure out who gets to sit on what because everybody wants to be on the most powerful committees.
Part of the rules that we haven’t gotten into, it’s like there are exclusive committees and non-exclusive committees. An exclusive committee is a committee you want to be on. A non-exclusive committee is one that you don’t as much. So if you want to be an appropriator on Ways and Means or Financial Services — I believe those are the exclusive committees and you can only be on that one — there’s a process by which you serve on that.
And if you’re on those, you can’t be on others unless, of course, you get a waiver from whom? From the Speaker in the caucus that can give you a waiver to be on more committees than you might be able to be on otherwise. Jamie Raskin got to be on 27 different committees. I exaggerate slightly. Because he got waivers. And as it turns out, he’s an incredibly capable member, being on multiple committees is fine.
But this is how they start. Because you can sort by single transferable vote, right? You could do it by melee where you have them fighting whoever’s the strongest gets to do. You could do it that way. You can do it by seniority. We’ve seen the problems with that. You could do it by the chamber. You could do it by parties. This is a little bit of like a PR system, like a proportional representation, like a party-less system, kind of. It’s where those things kind of smoosh together a little bit where the political system has become.
Nehls: It’s interesting who’s the committees that weren’t on that list. Health, Education, and Labor.
Schuman: Who cares?
Nehls: Even some of the foreign policy oriented ones, right?
Schuman: I went to look here at the committee [caucus rules] and Appropriations, Ways and Means and Rules shall be the exclusive committees. But then also Energy and Commerce became an exclusive committee exclusively starting in the 104th. Then Financial Services became exclusive for the 109th.
Now, what do all these have in common? The ability to raise boatloads of money. Boatloads. Absolute boatloads of money. And the non-exclusive ones for those playing along at home. Agriculture is non-exclusive. Armed services, it says here, is non-exclusive. I find that hard to believe, but maybe it’s true. Budget. No one wants to be on Budget. Education, Labor, Foreign Affairs. Homeland Security. House Administration. Judiciary, Natural Resources, Oversight and Reform, Science, Space and Technology, right? And then the best of them all, the Small Business Committee. Yeah, no one’s ever heard of it. Transportation, Infrastructure and Veterans Affairs are non-exclusive. This is what it is.
Nehls: Some of these committees, these are the ones that are deeply invested in what we would consider public policy that affect most Americans. Obviously, financial services has a huge impact on the economy and things like regulation of crypto or whatever.
Schuman: It’s not valuable from a fundraising perspective, right, which is why you can serve on more than one of them. You can be on whatever, on Agriculture and Education and Labor, and that’s okay.
And I should say just, there are several committees that aren’t even on this list. The Ethics Committee, you’re appointed by the Speaker. House Administration Committee, which used to be a spoils committee, appointed by the Speaker. And the House Intelligence Committee, foolishly, is also appointed by the Speaker and the Minority Leader. So they pick the people that they want and not necessarily the people that would be best, which there’s a real disjunction here. Why does this, the party rules could say the Speaker or the minority they can recommend, but the part, nope, it’s just given to them. They can do what they want. And it’s very weird.
Nehls: So talk about how this impacts the way that a majority would operate in terms of you have a pretty big tent party in the case of the Democratic Party. We love to talk about the factions. You have a fairly large left of center progressive faction. You have a centrist New Dem faction. You have a small, but once mighty Blue Dog faction. You’ve got all the kind of affinity caucuses.
Schuman: And some people that are none of them.
Nehls: I think you’ll probably see this next Congress, people that ran against both party labels and might be interesting free agents out there. So if the caucus rules are shaping it around leadership, its preferences, let’s talk about what the impact of that is on the legislative operations of the House.
Schuman: So one, as the factions try to assert power, they can recommend people to the Steering and Policy Committee on the Democratic side or the Steering Committee on the Republican side about who they want to be on these things. So when you look at the committees, progressives and new Dems are not represented equally on the committees, as it turns out. House Intelligence, which is all national security hawks, just about., the Financial Services Committee are much more conservative pro-business Democrats.
You take the progressives, you put them on the House Oversight Committee, right? And the Republicans put the Freedom Caucus there because it makes a lot of noise, but they’re trying to put them in a place where they can’t do as much. So leadership and giving out chits and trying to balance the pressures that are on them or what they’re trying or to balance their agenda. It creates unrepresentative committees that focus around weird kind of things.
And also, Mr. Speaker, Madam Speaker, I really want to be on this committee. Okay, I’ll help you, but now you owe me. You’re creating this system of mutual relationships and dependencies where you do me a favor now, and maybe one day in the future, I’ll, you’ll do me a favor then. Right. It’s very Don Corleone-ish.
Nehls: Yeah. I’ll give you the rug, but eventually you got to help me out, get rid of this body. Right.
Schuman: That’s right. And we’re painting a unpleasant picture of it. It’s politics, but it doesn’t have to work necessarily this way. There’s many other ways that has worked, but what’s interesting is when was the last time — I was gonna say you opened up a newspaper — when you open a newspaper online and they talked about this. The Democrats and the Republicans don’t even publish a list publicly of all the members who have been appointed to the policy and steering committee, for example. You have to go and really dig for it. They sent an internal dear colleague, but it’s not online. And that’s kind of telling, right?
The way that power is being exercised and decisions are being made, and not just decisions on an issue, but decisions around the range of issues that a committee might consider, it is all set by who’s on there.
Nehls: So there’s a super conference or super Congress that we don’t know about.
Schuman: There is, except as far as I can tell, don’t think it’s real. I think that it’s really just the Speaker having tools that are available to hide some of the assertions of these power, or maybe there’s a balance in that. I can’t really tell. It’s tough to tell what’s really happening behind the scenes. In addition to these rules,  there is this huge culture of deference that these rules inculcate, in part because if you piss off the wrong person, they're... I'm just thinking about what Nancy Pelosi would do to AOC repeatedly, just massively undermining her. Or what Speaker Pelosi did to help people like Abigail Spanberger, who's now governor. Yeah. Who put her put rockets on her career.
Nehls: Or lead balloons on Katie Porter.
Schuman: Yeah, that’s right. So it’s really interesting to see This is really how power is asserted, or one of the ways that power is really asserted. And it’s just not talked about that much.
Nehls: For the rank and file that want to have impact on policy, obviously, the more junior you are, you get the one freshman.
Schuman: Its a big deal to be elected by your freshman class. As president of the freshman class of the 120th Congress it’s a thing. 40 years later, they still mention it in their bios. It’s still a thing.
Nehls: So it’s, yeah, weird summer camp stuff. I don’t know.
Schuman: I was thinking the movie Election, right?
Nehls: Yeah. Pick Flick. So there are going to be limits to some of the rank and file out of the gate, right? You’re going to have to incur some level of seniority. But for the folks that have been there, know how the place works, these seem like they’re pretty limiting to — and we’ve talked a lot about The legislative process being pretty bottled up by leadership anyway — But let’s just pull on that of how does this really limit the legislative possibilities for the rank and file?
Schuman: One, if you’re placed on the Committee on Macrame and Ballroom Dancing, that’s what you’re doing. And you can change committees, but it’s hard. And then you have to kiss the ring to do it. And they’re going to take into account, did you pay your party dues? And have you been sufficiently deferential to leadership? Party dues, I didn’t mean this as a metaphor. Did you kick up money, right? Like to Tony Soprano, did you take bags of money and transfer it as part of your dues process?
You combine that with not enough staff. You combine that with the challenges of forming these intergroup collaborations like congressional member organizations and if you’re a member just hanging out by yourself, you don’t have a lot of capability of doing stuff.
And so you have some incentives, right? Incentive number one is you try to climb the caucus power structure. You have the stations of the cross, right? You got to serve an Ethics Committee for a while. It sucks, but you got to do it. And you go to House Admin and you do it and you do these other things and you slowly, and after 173 years, then maybe you have a chance to be the deputy dog catcher, right? And that is one mechanism by which you rise.
The second mechanism by which you rise is you just have to outlive everybody else on your committee. And you get to be subcommittee chair eventually, even though all the caucus rules, gives the committee chair the power to control the staff, the power to set its direction. You can do things, but there’s limitation. You can be really vigorous and you can rise, but even talent must give way to seniority and other assertions of power.
Every so often you get members who are no longer competent to be chairs of their committee or people who are rising up. Eleanor Holmes Norton was vying to be the chair of the House Oversight Committee and she was just not capable of it. So sometimes what they do is they layer you where they give you someone else who actually does the work, but you get to keep the title until you retire. That’s not great. And sometimes every so often they will let someone jump over you as well. Just because you are manifestly incapable. And they only do that if you’re in the majority and it really matters, but otherwise they tend to defer to seniority.
That’s also tied up with the tri-caucus that is the [Congressional Black Caucus] and so on that are very interested in seniority as a anti-racism mechanism that allowed them to rise, but in return for this rigid, you’re rising based upon how long you’ve been in that particular place. So for a lot of members, it’s really limiting. So you try to rise to the committee, you may try to rise through leadership.
The other place you may try to rise is through your faction, right? Progressives, New Dems, Blue Dogs, or maybe something else. And that is another way where if you can get enough members standing behind you, then you can assert political power outside the structure a little bit. And that works too. That is an effective way to gain and assert power and some members will pursue that.
Nehls: So, Daniel, what should members be thinking about in terms of changing the caucus rules or approaching the caucus rules in the next Congress?
Schuman: That’s a great question. The first thing they should be thinking about is actually knowing what the rules are, both for the caucus and also for the steering and policy committee for the Democrats or the steering committee for the Republicans, which apparently has rules, but no one has ever seen them and they’re not publicly available.
So the Steering and Policy Committee is what is the larger leadership control at this moment, people that recommend who gets appointed to the various committees, but we don’t know how it operates. We don’t know what its rules are, although it says that it has rules, but we don’t actually know what the rules are. And when I’ve talked to members, they don’t know what the rules are either. So they should have rules. There should be minutes from the decisions that should be made available to everyone. The decisions that they make members should probably be thinking about changing who sits on steering and policy. So that is more reflective of the members of the caucus because right or the conference, because right now it’s dominated on the Democratic side by leadership. They get two thirds of the members so it’s really hard to kind of do stuff.
That said, they may want to pull some things into that away from the Speakers or the party leaders. So right now the party leader chooses who is on House Admin, Ethics Committee, the super-powerful Rules Committee, and the Intelligence Committee. But maybe that should be decided or recommended by the Steering and Policy Committee. Or maybe that should be decided through some other mechanism. But it probably shouldn’t just be one person.
A good starting point is let’s require the information about Steering and Policy to be made available at least to the members and probably publicly available. That would be a really smart thing to do. That’s one set of things because it governs composition of the committees.
Nehls: So what do you think we would learn if we had those, the steering and policy committee rules open?
Schuman: No way of answering that question. We have seen reporting and rumors that you have to kick in a certain amount of money to be appointed to one of these committees. Is that a rule? We would learn if there are real rules or if this is Calvin ball, if it’s just the vibes, right? If it’s they make these appointments based upon God knows what, we would find out, particularly with how the decisions have been made in the past, we would find out how it works so that people would know what they’re supposed to do besides just endlessly sucking up. This could help, but we don’t know what else is in there, but we should.
Nehls: You mentioned changes to appointments to the other, the standing committees in the House. For people who might not be so familiar with why the Rules Committee matters so much or why the Ethics Committee doesn’t do so much at all…
Schuman: The Rules Committee matters because the Rules Committee controls what goes to the floor. And if you have members that are not able to be appointed or removed by your party leader, then they can more represent the different perspectives from inside the faction, for one. So with the Freedom Caucus, they got three of their members on there, which meant that for things like surveillance that they disagreed with, they were able to defect and extract concessions from leadership that was trying to jam through things that their party didn’t support. The Ethics Committee is a different matter.
Nehls: Let’s talk about Admin [the House Administration Committee] just for a second, because Admin Committee is about operations
Schuman: It used to be about spoils, but maybe a more responsive Admin Committee or people that are there differently. Maybe they lean toward the election stuff, which is less exciting for me, but maybe they lean more towards the chamber operation stuff, which would be more interesting. Making the place work better, that is a great place to get.
You want people from your caucus or conference to be doing that work, as opposed to it just simply reflecting whatever it is that the speaker wants. There’s a balance there. In the Intel Committee, because the last couple of speakers have all been intelligence hawks, they basically mass surveillance forever, right, instead of operating as intended, which is oversight of the intelligence community, it’s their biggest cheerleader. It’s a bunch of lapdogs. So maybe it should more reflect the perspectives of the members of the caucus and not the perspective of the person who’s the Speaker.
Nehls: Just going back to House Administration, it’s the authorizing committee, but the Speaker gets to determine who’s on it — authorizing committee for the legislative branch’s offices, which most of which the Speaker gets to select the person that’s going to run those offices, too.
Schuman: The Speaker has a lot of say.
Nehls: And you’re, oversight is of the Speaker’s person. And in the past that hasn’t really gone particularly swimmingly in terms of making the things that members need to do their jobs effective, like making sure these offices are run well. I think we’re in a better place now.
Schuman: And it goes back and forth. It’s useful to have folks who have relationships with the Speaker because they support all of what the Speaker does, but they also need to have an institutional perspective. That can get lost. And they have to be the right person for the job.
One time we had a person who was named chair of the Admin Committee and they picked her because she was a woman because they had no other women who were chairs of any of the other committees. So that was how they decided. And that’s not right. One, you shouldn’t have only one committee chair by a woman, but then you shouldn’t choose the chair of the House Admin committee on that basis.
Nehls: She probably wasn’t super enthusiastic about doing that.
Schuman: And you had a bad result, right? You just shouldn’t operate things that way.
But looking at the party rules, there’s lots of other things to do as well. So we’ve talked before about ethics, where there’s the Ethics Committee that sometimes it operates, but largely it doesn’t. There are some minor ethics rules within the party rules. If you’re the chair of a committee and you get indicted, then you’re supposed to temporarily step down. But one, why is indictment the trigger? And why is it only the chairs?
And if there are other things that are going on, if you’re working on Financial Services and it seems like you’re engaged in financial crimes and the Ethics Committee is investigating, maybe that should be a basis on which you step down. But so there’s other things that could be enforced through these mechanisms as well. It doesn’t necessarily have to just be through the Ethics Committee. You can do policing through other processes.
We also see members who have high turnover rates. There should be someone that goes and investigates that’s not just the party leader who has mixed incentives to kick someone out who’s doing really bad stuff or to try to help them. So there’s lots of these operational things that get bound up within these [rules.]
This is the secret Congress. This is where power is asserted in some ways. There should also be regular meetings of the caucus. You can imagine opportunities through this, too. Find the caucus to vote for certain ways on legislation, for example, to move things or to prevent them from being advanced. To direct the Rules Committee to report amendments or not. This stuff happens, that’s what’s happening underneath, right? They’re not just free agents deciding on their own. They’re doing, in many respects, or at least some respects, the bidding of the party or the bidding of the party leader. That could have more of a direct connection to what the members want and not just what a couple of members want.
And you can imagine other pieces that sort of connect to this as well. They work hand in glove, chamber rules and party rules, but the party rules are largely not visible. This is where a lot of power can be exercised, where the decisions to shape who gets appointed and how they can exercise power.
The rules talk about the staff on committees are controlled by the committee chair. Maybe some of them should be controlled by the subcommittee chairs. Maybe the staff should serve all the members. It says something to that effect, but that’s not how it works in practice. But maybe it could be set up where it does work that way in practice. You could do a lot of different things.
And look, this is not an anti-leadership rant, right? I’ve got one of those, but this is not it. In this era, the parties are relevant. The parties need to be able to exercise some level of control as should the factions, as should the committees, as should individual members. And there needs to be a better balance and the caucus rules or the conference rules are one place to do this.
Nehls: I love that idea of the caucus and the chamber rules going hand in glove. I think people are much more aware, at least I hope they are, because we’ve been talking about it for years and years of the importance of the chamber rules in determining what happens in terms of the power that members can have legislatively. People now are more people are interested in suggesting new House rules, but the caucus rules seem still a little under the radar and probably something that members-elect are not going to really, the incoming freshman class are not going to hear about until they show up and are told, all right, here’s what they are, vote yes.
Schuman: That’s right. And members don’t even think about this, even the senior members, this isn’t something they really think about. It’s just not on the radar as an effective way to exercise power, but it should be.
We saw the Republican Conference in 2022. They figured out for incoming members, we’re going to teach you about the Republican Conference rules. We’re going to give you this really great document that they produced that talks about what happens after you’re elected before you’re sworn in and how the conference rules work and how you can assert power and how leadership uses this to assert power over you. And for the Freedom Caucus wing, that seems to have worked out really well for them to actually organize around that. You would think that other folks would learn from that example?
Nehls: They did outreach directly to like, like the people that they wanted to have join their caucus and said, you’re going to hear from leadership, but don’t listen to them. Here’s what you should do. And it was a great PowerPoint. I think we put it in the First Branch Forecast and wrote about it a bunch of times.
Schuman: The only other place I’ve ever seen recommendations for caucus rules is from us.
There is a Democratic Caucus Committee, which is run by leadership. So here’s your suggestion box. It’s a great way to identify, address some minor problems, but also identify malcontents. Does that work? Maybe it does, but there could be much better ways to do all of these things.
Nehls: Whenever anyone mentions the Freedom Caucus out loud, it sounds like you’re looking for a new recipe for a new group of the obstructionists, but it’s really not about That necessarily, right?
Schuman: This is what the Democratic Study Group did, right, when they wanted to overthrow the Southern Committee chairs. They spent years organizing. They caused the Democratic Caucus to meet on a monthly basis. They proposed a series of reforms in 1970 and 1972 or three in the 1974 that fundamentally changed the way the Democratic Caucus worked so that it was more representative to the people that were electing Democrats to Congress, right? This is not anti-leadership. This is about The different factions and the different power points, leadership, rules, committee, party, committees themselves, factions in the rank and file, all sharing power in ways that make some kind of sense. And when you have secret rules, then things get out of whack and things need to be more back into balance.
Nehls: Yeah. Well, thanks so much, Daniel. Thanks for joining our show.
Schuman: I’m always glad to join our show. Anytime you need me to join our show, just let me know and I will make it a point to be there. Thank you. I know this was fun to do.


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For this episode, I spoke with two experts in appropriations law who have worked in and out of government — Cerin Lindgrensavage of Protect Democracy and Christie Wentworth of Citizens for Responsibility and Ethics in Washington — about White House attempts to appropriate funds as it sees fit, not as Congress has directed, and the legal and political means available for Congress and civil society to push back.
Lindgrensavage is counsel at Protect Democracy and previously worked at the Department of Justice’s Antitrust Division and for Senator Barbara Boxer. She also clerked at the U.S. Court of Appeals for the District of Columbia.
Wentworth is a senior policy counsel at CREW and previously served as an attorney at the Government Accountability Office and as counsel for the House Budget Committee.
Chris Nehls: Hi, this is Chris Nehls with the American Governance Institute. I’m here with Cerin Lindgrensavage and of Protect Democracy and Christie Wentworth of Citizens for Responsibility and Ethics in Washington. We’ll do our best to put all of that on the title card of this podcast. We’re here to talk today about appropriations and appropriations law and how when Congress approves appropriations, how does the federal government spend it? And what’s been going on in this administration that’s made it kind of unusual. So, thanks for joining me today.
Christie Wentworth: Thanks for having us.
Cerin Lindgrensavage: Yeah, happy to be here.
Nehls: We have 12 appropriations bills a year, theoretically, that Congress approves. Sometimes, it doesn’t get there and does a continuing resolution, but there’s still the money it gets out to the federal agencies to spend. Well, how does that work after these bills move from the president’s desk to the agencies.
Wentworth: A great question to start with. I’m going to take us back a second and just emphasize at the top here, because Cerin and I are both very power of the purse friendly individuals in that Congress does have the power of the purse, which is why they are the ones that are in charge of actually figuring out how much money the federal government has to spend. So that’s based in the Constitution. And as you mentioned, Chris, that usually results in 12 different bills appropriating funds for the federal government, including all three branches.
After those funds are appropriated, they go through a process called apportionment at OMB. This is a responsibility that Congress gave to the president back in the day because agencies were blowing through their appropriations. They would enter into contracts, they would promise to spend money, and then they’d say, well, Congress, you know, we already said we’re going to spend this stuff. I know that you only gave us $10 and we spent $100, but we’re obligated now, and you have to give us this money. Congress said to the president, do a better job managing these funds and gave the president the responsibility to say, okay, agencies, you’re going to get 25% of your funding in quarter one for salaries and expenses, and then you’ll get another 25% in quarter two and so on and so forth. So, OMB now has that responsibility pursuant to a delegation from the president and they can apportion funds by time. They can apportion funds by program and they can do it through a combination of those two things. The purpose of that is still to make sure that the agencies aren’t spending funds too quickly so that they have to go back to Congress and ask for a deficiency appropriation. So that is the general framework for apportionments.
I will say when I worked at GAO, we spent two and a half days teaching appropriations law principles to folks at agencies, so doing this in 2 to 3 minutes is a challenge. But that’s the apportionment process.
I’m going to briefly share some of the components that we see in appropriations acts that agencies have to look for when they’re actually spending the funds. And then, Cerin, I’ll kick it to you to talk a little bit about the Impoundment Control Act and how Congress can act to actually claw back some of that money if it agrees with the president that it should. In the appropriations acts, the three things that agencies are looking for are the purpose, time, and amount of the appropriation: So, what they can spend this on, how much they can spend and how long they have to spend it. And there have always been disagreements between Congress and the executive about what exactly falls into each of these buckets, especially with respect to purpose. But those are the three general things that you’re looking for and that the agencies have to comply with when they’re spending these funds. So Cerin, do you want to talk about the Impoundment Control Act?
Lindgrensavage: Sure. One thing of interest to know about the apportionment process is that it has at some various points in history been abused. And that’s important because it’s the mechanism that OMB and past presidents have used essentially to rob Congress of its power of the purse to steal some of that power for the president, the White House, in this case, the Office of Management and Budget. If you went back and looked at the hearings in 1972 and three over the Nixon era impoundments, what you will find is actually page after page of accounts where they’ve used the apportionment process in some cases to actually affect delay to what they did at the time, called creating a reserve. And there was a provision in law that was a little bit squishy, a little bit of a choose your own adventure for the president and his budget officers to try and say, oh, well, we’re just creating a reserve for this sort of broad purpose.
Nehls: So, what was Nixon actually trying to trying to do there?
Lindgrensavage: What he was trying to do was actually say, hey, I don’t want to spend these funds. Congress passed the money, but I don’t want to. And he was trying to just essentially assert his power not to spend the funds.
As you can imagine, Congress reacted poorly to this assertion of the executive authority. And the law that they passed was both a remaking of the budget process that really put foundationally in place the fiscal years and steps as we know them today, and also what we call the Impoundment Control Act. That passed in 1974 and essentially said, no, we’re, we’re erasing that provision that made you think that you could just hold on to money for whatever purpose you wish to. And now you have three options: you can defer; you can delay spending the money -- but then you have to tell Congress, and Congress has a chance to tell you not to through a resolution they can pass. You can propose a rescission, but that only goes into effect if Congress passes a law rescinding the appropriations that were previously passed in a law. And the third option is you can spend the money. Those are the three options contemplated by the Impoundment Control Act.
Here are some things that are not contemplated in the Impoundment Control Act: unjustified delays for programmatic review -- the entire category of programmatic delay invented in the early ‘70s -- none of that is contemplated in the act. The act contemplates those three options: deferral, rescission, spending the money. It also left three different purposes that OMB can use to establish reserves, but they’re narrower. It’s to provide for contingencies to achieve savings or as specifically provided by law. So if you have a law that you can point to that says, okay, you can hold on this money for these purposes, that’s okay, but it has to be specific in the law. It really did ground and narrow OMB’s ability to screw around with money using the apportionment process or any other process because it doesn’t just bind OMB, it also binds folks at the agency level as well.
Nehls: Well, we’ve had a couple of rescissions bills, this Congress and, and there have been some in the past. So how has that how has that worked generally since the passage of the Impoundment Control Act as a congressional tool?
Lindgrensavage: I would say that your mileage may vary. There’s been some hiccups in the road. I think one of the things that’s happened more recently is that deferrals haven’t been reported in this century. We’re going on our 26th year of the administration not using the deferral provision. If you look at OMB management of funds, there are arguably a bunch of things that probably would or should qualify and be reported as a deferral, but I wouldn’t hold your breath on that happening anytime soon.
One of the things that’s happened is but I think that entire third of the sort of statute of the scheme has been rendered inoperable in a really significant way. And for whatever reason, Congress and GAO haven’t come back at OMB or the administrations across Democratic or Republican administrations for not for not adhering to that part of the statute. And the other thing that went awry is that OMB has interpreted the rescissions provision in a way that at least the current OMB has said what gives them the authority to essentially cancel funds unilaterally. And Christie, do you want to walk through the mechanics of how that rescission gone awry can happen?
Wentworth: Sure. In the law, it says that funds can be proposed for rescission, and it doesn’t provide a specific time frame for which those funds can be proposed for rescission. What that means is, we talked earlier about how funds have certain time limitations. And some funds might expire at the end of the fiscal year. Some funds might be available for multiple years and some funds might be available forever. They might be no-year funds. For those funds that expire at the end of the fiscal year, you have this problem where under the Impoundment Control Act, while a rescission proposal is pending, the president is authorized to withhold those funds.
You can see the practical reason for this, right? If the president says, okay, you gave me $100 for DoD for this year -- just bear with me on that -- give me $100 for DoD for this year, I only need 50 of it, and so they propose $50 for rescission. You don’t want the agency to have to continue to spend that $50 while Congress is considering the rescission proposal because if they end up clawing back that money by law, then you have DoD in a position where maybe they spent more than they were allowed to because now they only have $50 and that money is now gone. And so it gives Congress time to actually give good faith consideration to a rescission proposal. And then the ICA prescribes a 45-day period for that temporary withholding, the funds have to be released. That is how much time Congress has for these expedited procedures. I think Cerin mentioned this earlier, but again, you only need a simple majority under the ICA to actually pass the rescission bill that that cancels these funds. That’s generally how the process works.
So, if you have a rescission proposal that comes in near the expiration date of those funds -- let’s operate on a fiscal year basis that ends September 30th. If you have a rescission proposal that comes on September 1st, then that withholding period in a very technical sense will span past the expiration date of those funds. And so, in theory, the president could withhold the funds for 45 days going into October 15th. The funds will have expired. They can no longer be used for obligation, and so they’re effectively unilaterally canceled.
Now, the reason that that is not allowed under the ICA is because the ICA says that the funds have to be made available for obligation after 45 days. And you just can’t do that if you withhold for the 45-day period. There are several folks, the GAO included, who believe that that is how the law should be interpreted.
The executive branch has taken a different view. And so last year, we saw this happen near the end of the fiscal year with a proposal to rescind billions of dollars in foreign aid funding. We got past October 1st, and the administration was still withholding the funds and they expired and were effectively unilaterally canceled. So that is a new use of the ICA. I will say it’s an abuse of the ICA. We are at August 12th right now, so we can see this timeline coming forward again at this time in the fiscal year. So that is one way in which this process has, has been abused. Go ahead Cerin.
Lindgrensavage: I will say that like there are folks at OMB who have pointed at a literal handful of historical examples from just after the passage of the Impoundment Control Act to say like, hey, Ford did it. Hey, Carter did it. This is like just a normal thing that people have done. But if you actually go and take a look at those examples -- and I absolutely did -- you find a lot of breadcrumbs to understand why this is a world apart from what those examples were. First, in response to several of those attempts, Congress actually passed laws forcing the administration to spend the funds. In response to that initial encroachment on Congress’s authority laid out in the Impoundment Control Act, when the administration put in a late rescissions request, Congress said no, thank you, and then they actually reappropriated the funds. They had a follow-up hearing. They looked the political appointee who had not spent the funds in the eye, and they said, you saw that we appropriated those, right? And they’re like, yes. And you’re going to spend it this time, right? And he said, yes. I think it’s important to unpack that history because if you just look at the fact that the request went in and you don’t look at how Congress responded, you might read it as sort of this initial grant of permission they try to claim and it’s really not. And so that’s one thing to put in context.
I think the other thing to pause and reflect on is how alone OMB is [on pocket rescissions]. Former appropriations and OMB staff have gone on the record saying that this is an impermissible interpretation of the law. A variety of law professors who are expert in appropriations laws have gone on the record saying that this is an impermissible interpretation of the law. Like literally the only folks familiar with these laws that are comfortable with this interpretation are the folks who are actively using that misinterpretation at OMB right now.
Nehls: This Congress hasn’t really taken up this issue, have they? You’ve been tracking this probably more closely than I have. How has the Congress 119th responded then?
Wentworth: So I’ll give an example from back in, oh, I’m going to forget the exact year, but I think it was 2018 or 2019. At that time, the Office of Management and Budget had implemented two different things. Number one was what they refer to as brief withholding of funds, while agencies provided an accounting of how much money was left in their accounts. This was supposedly so that they could get information to figure out how much money to propose for rescission. And this was in August of that fiscal year. So again, pretty close to the end of the fiscal year. That year, the president ultimately did not send up a rescission proposal, but they had paused this foreign aid funding for a certain period of time and then after that pause had started trickling out funding for foreign aid. So typically, that funding it depends on the account, how it’s apportioned, but typically it’s not given in one day, one week or one month increments because that is really hard for program implementation.
But that is exactly what OMB did: They said, okay, you’re going to get a certain percentage of funding every day from now until the end of the fiscal year. For anybody who’s ever implemented a grant program, you will know that that makes it pretty much impossible to get the funding out the door by September 30th. So, the agencies went back to OMB and said, can you please give us more money? OMB said, okay, you can have a weekly rate. And it made it really hard for that funding to get out the door.
At the same time, we saw that there was funding withheld for Ukraine. In that situation, the Office of Management and Budget had put a footnote on Ukraine funding that said, this is not available for a certain period of time. I think we’re all familiar with the facts of that, so I won’t go into that particular example [It led to Trump’s first impeachment]. But in that situation, the agency was not able to get all the funding out the door by the end of the year, even though OMB ended up giving it access to all the funds at a certain point. Congress went back and reappropriated that funding that had expired in the next fiscal year. They recognized that this had been a violation of the law, as we saw in the impeachment proceedings and then said, you know what? We still want the agency to execute this program, so they reappropriated the money. And so, it’s not an example of a pocket rescission per se, but it is a way, an analogy by which funding expired at the end of the fiscal year and then Congress took action to say, we disagree with how you did this and we’re going to re-appropriate this money to make sure that you can actually do this thing.
I think the question about the current Congress and how it’s responded is much more challenging, because we haven’t seen that same kind of response, bipartisan response to the actions from last year. But it doesn’t mean that across the board, Congress is acquiescing or agreeing that this is a lawful use of the Impoundment Control Act. We have seen some responses from some of the appropriations leadership. There was an initial version of I think what used to be the state foreign ops bill, but is now, I think the national security appropriations bill that would have put in a restriction against these kinds of rescissions proposals, particularly for those foreign aid funds, which were the ones that were subject to the pocket rescissions proposal last year. Now that came out when the bill went up to the full committee, but I think it was incredibly telling that was the subcommittee that even under majority leadership of the bill on the House side contemplated making that kind of movement.
Even though that one didn’t go forward, there are a lot of other places that if you’re looking at the details of the appropriations bills, you can see appropriators working to tighten the language and reduce the discretion that OMB has. For example, one of the things they did in the Labor, Health and Human Services bill, where there’s a lot of discrepancies between what Congress has funded and what the administration asked Congress to fund was, they started incorporating several of the tables that lay out specific funding amounts for specific programs within an appropriation or within an account into the text of the law. They made them binding on OMB and binding on the agency in a new way. Now, I think, again, the mileage is varied on how much those decisions were respected by both OMB and the agencies, but it was an initial attempt. And the thing that Congress has going for it is that it’s an iterative player in this back and forth with the administration. So, if that method doesn’t work, the Appropriations Committee in the Congress as a whole is going to have another chance in fiscal year ‘27 to take a bite at the apple that could actually constrain OMB and the agencies more effectively.
Nehls: Outside of a rescissions message or just the announcement, we’ve seen a lot of announcements of canceling of grants and things like that coming out of the white House. How can Congress kind of understand or if you’re, if you’re on the Appropriations Committee, how can you track what’s going on with spending and make sure that OMB is following the law.
Lindgrensavage: In 2022, Congress passed a wonderful law requiring the Office of Management and Budget to post apportionments online, including the footnotes. And they were very specific about it. And so, in 2022, OMB started doing that. Congress made the law permanent in ‘23, and we got to look at what apportionments looked like for the first time as the public. Then at the beginning of the current administration in 2025, they took the website dark. I think it gives you an idea of their preference that they would like to be able to manipulate this process without the sunlight of public scrutiny or congressional scrutiny on their day to day.
Christie and my organization sued OMB and secured an injunction requiring them to put that information back on the internet. And PD is actually supported what’s called OpenOMB.org, which is a site that you can go to, search and browse apportionments and you can subscribe to updates. For example, if you wanted to follow the money on the White House ballroom, you could actually put in White House as a search and just subscribe to updates. Every time there’s a new apportionment giving the ballroom more ballroom money, you can find out at the same time as the [Washington] Post and Congress and everybody else. Those are actually done on a two-business day delay, so it’s not real time, but it’s pretty great. It can give members of Congress and also like folks like you and me, advocates, reporters, whoever needs to know a lot more visibility into at least that one part of the process where OMB is deciding whether or not to push the button or not to move money out to make it available for agencies to spend.
Nehls: That’s great.
Wentworth: I think I’ll provide one example that was pretty extreme about how the availability of this information allowed public civil society members of Congress to push back on an OMB apportionment action. So back in, I guess it was almost a year ago, the end of September 2025, right before the beginning of fiscal year 2026, Congress got a letter from the from the Council of Inspectors General on Integrity and Efficiency, also known as CIGIE, that said, OMB has made a policy decision to not apportion any funds for us for the entirety of fiscal year 2026.
I’m going to pause for a second to flag another provision that Congress has included an annual appropriations acts every year that encourages that kind of communication with Congress and can flag when issues arise so that folks can go to places like OpenOMB and look to see what’s actually happening. I almost said behind closed doors, but it’s not behind closed doors anymore because of this law. Right? You can actually see what OMB is doing with the money.
There is there’s a rider in the in one of the appropriations acts every year -- and this is relatively new, but it requires agencies to tell Congress when OMB is not apportioning funds in the way that it should. We refer to this as the tattle provision and would love for that to go viral if we can make that happen. But typically, it’s section 749 of the Financial Services and General Government Appropriations Act, and this requires agencies, not OMB, to tell the Appropriations and Budget Committees if an apportionment is not made in the time required, if it [OMB] conditions the ability, the availability of the appropriation on additional action, or if it would hinder what we refer to as the prudent obligation of funds. So basically, can you get this out the door in a way that is responsible and that actually furthers the intent of the appropriation? And so instead of having OMB say, oh, we’re not going to apportion these funds, it’s actually on the agency that is affected by those apportionment actions to go to Congress and say, mom or dad is not giving us the money that we asked for.
Nehls: Now, do they have to do this in like a public letter, or is this an agency had to have to put their name on this, or is this done anonymously?
Wentworth: One of the flaws of the law is that it does not require that the letter be public, it just has to go to these particular committees. We on the outside do not know how often agencies are using this. My Spidey sense is that it is not as much as they should be based on all of the apportionment abuses that we are seeing at the moment. But the letter became public -- and I should caveat that the letter itself does not cite those provisions, so we don’t know that that’s why they sent it, but it lines up pretty well with the requirements of this provision and also gave us those particular committees the information that they needed to say what is going on OMB. We saw responses from Congress to OMB saying, why are you withholding this money? When do you plan to make it available? What is your legal justification for this? And asking all of the questions that you would want Congress to ask in an oversight capacity.
One of the beautiful things about OpenOMB and the requirement that this information be made public is that you can also go and see what’s not there. The apportionment statute requires that apportionments be made within certain time frames of when an appropriation is enacted or when or the availability of funds. If you’re wondering like, oh, usually I apply for a grant through this particular program. I wonder how much money they’ve gotten -- you can go and see, has there been an apportionment? How much is it for? Are there any conditions on it? And you can actually go there and look.
I’m saying OpenOMB because that is the only place that I go for this information. But you could technically go to OMB less user-friendly website as well, but you can go to OpenOMB, you can go to an apportionment and you can see how much money they got in prior years. You can see that typically they get a big lump sum at the at the beginning of the fiscal year that allows them to use their funding for the whole year, and that that did not happen this year, so it allowed for that oversight.
So, the story there is that CIGIE had to shut down, right? They did not get an apportionment because apportionments are legally binding and an agency needs one to be able to spend money they could not operate. They had to send all their staff home, they had to shut down all of their programs, all of their supports that they give to inspectors general. And for about a month and a half, they were totally shut down. Now eventually, they got a little tiny apportionment -- I’ll call it a pittance -- through January 30th that was available for salaries and expenses for legally required expenses while OMB conducted a programmatic review. So, they did get some money and that was on Open OMB. You could go you could look you could see how much money they got. And then when they later got an apportionment for the rest of quarter two, you could see how much money they got. You could compare that to prior years, and that allows you to see what is actually happening with these agencies and how much money they’re getting on this really piecemeal basis as OMB drags them along.
Now, one additional part of that that I’ll flag is that there is another public database that unfortunately, Protect Democracy has not made a more user-friendly version for yet.
Lindgrensavage: I’m going to try to do it someday. It’s on my list.
Wentworth: But you can look at SF 133, and this is a very comprehensive resource that that shows you obligation and expenditure data. You can see if you pull up cities’ SF 133 for example, that as they got fewer funds apportioned during this fiscal year, they’ve also spent a lot less. You can see that by the end of January in in prior years, they had obligated more than $8.8 million, and in this year they had only obligated $3.2 million.
Nehls: Inspectors general are the people that are investigating agencies themselves internally investigating agencies for all sorts of things, including waste, fraud and abuse. And they’re under kind of a slow shutdown.
Wentworth: So yeah. And CIGIE does more than that, right? They support those entities by providing trainings and providing facilitating peer reviews, but they also are the watchdog of those watchdogs, right? They run the integrity committee and facilitate those investigations so that if an IG is itself committing wrongdoing or fraud, waste and abuse, you have somebody else that’s checking that. With fewer funds and fewer staff now and in a lessened ability to do that, how can they effectively do that work? So, that’s one example of how you can see both apportionments, which are SF 132 and SF 133, and use that data together to see how this again, like hamstringing of the funding that was supposed to go to CIGIE that had been appropriated is affecting its actual ability to get the funds out the door.
Nehls: Let’s say you’re a public health or you’re a state and you have block grant programs, or you’re a hospital, you’re waiting for federal funds for something, and you’re not quite sure where the money is. This is beyond a Congress problem: civil society is probably in the same boat. So what can people do about that when their state program is delayed because of a delayed grant or what have you?
Lindgrensavage: Well, the first thing you can do is go look up your money on open OMB, and you can subscribe for updates. You can look it up and if it hasn’t come out, you can hit that little subscribe button, and the next time there is an apportionment, it will email you if you’re waiting for your money and you haven’t gotten it and you’re going to get an update. Especially if it’s causing heartburn, you should reach out to your member of Congress and complain because there’s a lot that members of Congress can do in response to these kinds of delays.
There’re two things that I’ve seen move funds after there’s a delay at the agency or OMB level. One of them is in particular bipartisan outrage. If there’s a bipartisan group of members who raise concerns, I’ve seen that really effectively overcome delays. Last summer, there was an announcement that there were concerns that OMB was holding up NIH funds, and there was a bipartisan group of members of Congress who raised concerns about that. You can actually see in the apportionment data, because we got a release after that, the apportionment was redone about four days later to remove the footnote that was holding things up. So, you can literally see the effect that that kind of opposition has. And you should absolutely advocate with your members of Congress. If you’re a member or their staff, you should be working together to get the folks that you need to weigh in with the agency or OMB leadership to make clear with them that Congress is paying attention and they’re concerned.
The other thing, unfortunately, that I’ve seen move money is litigation. That there are a number of folks who’ve taken a difficult step in a lot of cases to bring litigation. It’s time consuming. It’s resource consuming. It also causes, I think, a lot of heartburn for folks who really don’t want to be in the position of suing but did everything else right to engage with programs that serve their communities and their missions. I think, really unfortunate that now it’s not enough to advocate with Congress to get the appropriations at the committee level to get the appropriations law passed by Congress, but that you have this whole new sort of area of work that’s starting to open up to have to advocate to get the law implemented, which is crazy to me, but that is what’s happening right now.
Wentworth: I would plus one to all of that and just double plus one the squeaky wheel gets the grease aspect of this. There are so many different important government programs that have different constituencies that rely on them and either receive the funding directly or benefit from it as just people in this country who are relying on those services. Making sure that your member of Congress knows about that is incredibly helpful because figuring out what is being withheld is really hard.
There are a couple of reasons for that. Part of it is not everything is going to be in the public data. We have the data that we have, which is great, but there are sometimes legitimate delays in in program execution. If you look at GAO’s impoundment decisions from before 2016, for example, there aren’t many in this century at least, but you’ll see that there have been situations where there are legitimate reasons that funds aren’t going out the door. So, it’s not somebody sitting there saying, we have a policy disagreement with this appropriation, we have an issue with this program in general, but we don’t have -- let’s see, I was going to say something about not having enough staff, but that is a totally different issue that I don’t want to get into right now. But as an example, if an agency is trying to hire and nobody is applying, then that might be a reason that there aren’t as many salaries and expenses funds going out the door. If they are trying to implement a grant program and there aren’t applications, that might be a legitimate reason why they haven’t actually awarded the grants yet because they are waiting for better applicants. So, there are a couple of things that we’ve seen in the past that might legitimately delay funds.
Figuring out whether there are legitimate delays behind closed doors or whether this is part of a process that is not lawful and is not consistent with the appropriations acts, with the Impoundment Control Act, is something that it’s really hard to get information on. Making sure that you are raising these issues so that members of Congress can do that oversight and reach out and get that information that isn’t always public is just so it’s so important. I can’t emphasize that enough because without information, we don’t have anything to go off of, right? So again, it’s also really important to keep in mind lawmaking is not the only tool that members of Congress have. Like all these different incidents we’re talking about, it’s not like they passed a new spending law that’s like, hey, we really mean it. I mean, they can do that, but a lot of these cases, it was members raising things outside of the formal legislative process.
I’ll give you another example: There was a series of apportionments for Smithsonian funds that were on their face like a straight up impoundment. The president had asked for a lower amount of money, Congress had passed a higher number of money that provided the funds that the agency had had the last year, plus enough to account for inflation, and the apportionment literally said only take the amount that the president requested. Don’t touch any of the money that Congress gave you above that. And they re-upped it, I think, about 4 or 5 times until Senator Merkley asked in a question for the record, in Mr. [Hal] Duncan’s recent nominations hearing [for Deputy Director of OMB], hey, what are you doing? This doesn’t seem legal. And OMB defended the legality. They’re like, oh, it’s just an apportionment. That’s just us using our apportionment process. But the next apportionment did not have that language. And I found that like a really instructive example that even raising things in this method that’s not necessarily in the public eye, but is in the permanent record, can be effective in that back and forth between Congress and the agencies and OMB.
Nehls: That’s a great example. Let’s just say hypothetically or maybe, maybe semi hypothetically, that a presidential administration is ideologically against spending money on X, something it doesn’t like it, doesn’t want to spend money on and Congress appropriates it and they just refuse. What, consequences are there legally? What would happen to you basically if you just never spent the money? If you’re the director of the OMB. You’re both smiling and laughing at me like I just asked a question that you either ...
Wentworth: I guess let’s start by talking about the only appropriations law that has any teeth on its own. We probably should have started with this in the framework because I know we’ve referred to it without actually it’s the elephant in the room, right? So, the Antideficiency Act is a law that.
Nehls: Yes, of course we forgot the Antideficiency Act.
Wentworth: Well, we didn’t forget because we know that we know that our listeners know exactly what this is. But for those who would like to talk more about it specifically says that agencies cannot spend more than Congress appropriates. They can’t spend money before Congress appropriates it. Also, they can’t spend more than OMB, than the president apportions. And so, they have these limits, and if an agency goes over those limits, then an official shall be subject to administrative penalties and may be subject to criminal penalties. That could be jail time, it could be up to $5,000, which has never been adjusted for inflation. So, there are penalties associated with the Antideficiency Act.
Now I’ll share a couple of practical limits on that. Number one, nobody has ever been prosecuted under the Antideficiency Act. And you might be surprised to hear that the Department of Justice has never prosecuted somebody in the executive branch, but perhaps you are not surprised by that.
Nehls: Shocked.
Wentworth: Second, GAO collects and compiles Antideficiency Act reports from agencies. So, another quote-unquote consequence of the ADA is that agencies have to report these violations to the president with a copy to GAO and GAO takes these and puts them all together and gives them to Congress. If you read through them, when the agency is identifying the responsible official, they’ll say, oh, you know, Jan did this, but Jan retired last year. It’s all it’s very frequently somebody who is no longer with the agency who conveniently retired. When you think about the effectiveness of these administrative penalties, they’re not necessarily the strongest.
We do see a lot of times agencies make really good faith mistakes that result in ADA violations. It might be a systemic issue. It might be somebody put in a zero. It might be that funds were apportioned and were rounded to a certain number, and so they went over by $0.20 because they didn’t realize that they actually had been apportioned fewer funds than they could spend. And so that might result in an additional training for staff. It might result in in better systems in making sure that they’re actually working. So, there are ways in which the ADA has positive consequences and also deterrent effects because nobody wants to have the threat of criminal prosecution hanging over them. None of that exists, flaws and all, for the Impoundment Control Act.
In recent years, Congress has required in the annual appropriations acts that agencies report ICA violations in the same way that they report ADA violations. But the administrative penalties and the criminal penalties have not carried over to the Impoundment Control Act. As far as what consequences there are, as far as what’s in the law there, there isn’t much there. I do think that because impoundments have an effect on people in a way that some other funding violations don’t -- for example, if I am relying on a service that is provided by a nonprofit who typically gets a grant from the federal government, and I no longer get that service, I feel that, right? I feel that withholding as somebody who is directly connected to the federal government in that way. There might be political consequences, right, if you can make those connections. But as far as consequences in the law, I don’t really see any. Cerin, have you thought of any consequences that might come from Impoundment Control Act violations?
Lindgrensavage: Well, no, I think it’s an area for improvement. I think it’s an area where absolutely like we would be looking to, if not this Congress, then the next Congress to really dig in on ways to improve it. And I think it’s going to be a difficult conversation to have, but one that’s necessary if Congress is going to guard its prerogatives over the purse.
The one thing that is a benefit of this is that we do have years of experience that are now, I think, making it quite clear that there is this need for a middle ground between the penalties that are too weak on the administrative side and the criminal penalties that are strong, but because they’re so severe, they’re so rarely used. And so, what that middle ground exactly looks like, I think there’s folks who have good ideas, but the thing that they really need is a bipartisan group of members who are willing to take on the project of pushing something like that forward.
I think there’s a few other things too that that Congress could come together on, but in the meantime, there’s also stuff on the books that they could use to combat this kind of stuff. There’s a provision that David [Super, Georgetown Law professor] and I wrote a piece in the Hill about section 739 of the government wide general provisions of the FSGG Appropriations Act that actually says that there are no funds provided for the administration to make effective cuts proposed by the president that were rejected by Congress. In each of the instances that you’re talking about, if they try and put through a pocket rescission, if, say, the OMB director puts through a pocket rescission, and it was a cut that was proposed by the president’s budget that the Congress rejected by providing the funding anyway, he could be held responsible, actually, under the Antideficiency Act, for any act that he took. There’s no de minimis requirement for these provisions.
There’s actually a really great Department of Transportation provision where they violated a rider on an appropriations bill by retweeting something and even something as small as hitting that retweet button on something you shouldn’t can trigger a no funds provision. So apportioning funds to withhold them in a way that can absolutely trigger it. The act doesn’t have to be huge. It doesn’t have to use a ton of government resources to trigger consequences.
And it’s really important to keep that provision in mind because there are a bunch of places where the president’s budget proposed cuts -- and we see in the data that Christie and I sued to make public that they’re actually using abusing this authority to make them. There’s actually a remedy that Congress has already given itself to start holding them responsible: they have only to use it. They can send letters to those people who are making those apportionments to put them on notice that if they continue that behavior, they could see a criminal referral. And while the criminal penalties haven’t been used very much, they do have a five-year statute of limitations, so you’re really making a bet on who’s going to be sitting at the DOJ in the next five years if you keep on doubling down on that kind of misbehavior.
Nehls: It seems to me, just as somebody kind of new this issue like that the worry because government seems to be primed to act that you assume that the bad actors are going to be spending more money on stuff that underneath the radar, right. And you’re not maybe it just didn’t -- aside from the Nixonian abuses that just didn’t want to spend money on a certain social safety program -- maybe people didn’t theorize that enough an administration that just didn’t want to help the people that were getting the grants right?
Lindgrensavage: It took it took 100 years for Congress -- year after year, Congress, after Congress of agencies blowing through their budgets too quick. It wasn’t until 1870 that Congress is finally like, okay, okay, we think that, when somebody shows up the way they’re going to show up, you gotta believe them about themselves. It’s been 100 years. We’ve finally learned about you. You are incapable of sticking to your own budgets. I kind of feel like we’re maybe now, just now coming up on the 100 years since impoundments kind of started becoming a thing.
Honestly, we did this retrospective called “The Myth of Presidential Impoundment Power,” and the person who has the longest section of the appendix is FDR. Whatever is 100 years from FDR, I feel like that’s about maybe when Congress might be ready to come back around and say, okay, we believe you. Impoundments are the shape of the risk we’re dealing with to the constitutional structure.
Wentworth: And I would also say that just because we are talking a lot about impoundments doesn’t mean that we don’t also see ADA violations left and right. So, I don’t want to take that off the table. When we think about different kinds of spending violations that folks should be looking out for, it’s also what type of thing you’re allowed to spend money on and how you’re spending it.
So as we see, for example, private donations coming into the government and kind of being shuttled around through different mechanisms, that is, if you’re looking to issue spot and think about what kinds of things might be working might be worth looking into as, as a congressional staffer, that that is one red flag that I would encourage folks to look into because the federal government cannot accept and keep gifts unless Congress gives it specific authority to do so. When it does so, it typically says when you take money in, you either have to give it to Treasury or here are the specific things that you can use it for. There are pretty much always going to be some kind of specific purpose limitation on those funds, so that is something to look out for. Obviously, we have seen during recent very, very long shutdowns, lots of programs that kept running that we did not think should keep running. So that is another red flag that I would say folks should look out for. That’s, that is not something that we’re sleeping on, but obviously, because impoundments have not always been the hot topic of the day, it is important to think about where we are now and what kind of reforms we think could elevate that issue to make sure that it’s something that we’re addressing.
Lindgrensavage: The ballroom funds actually provide an example. First of all, I could not agree more with what Christie said, but the ballroom funds provide an example of both of those issues that she raised about both the purpose violations and the gifts, because they’re actually combining both of those to find the funds they need for the ballroom. I think the purpose violations are particularly important to pause on because that also means that they’re robbing funds from something Congress did provide money for and taking it away to something that Congress didn’t.
At the same time that there was a conversation where the White House was asking Congress to provide funds in the second reconciliation bill for the ballroom, and there weren’t the votes for it, Congress effectively said no to the request. They repurposed like $400 million from Secret Service funds passed as part of the first reconciliation bill, the One Big Beautiful Bill Act, to White House security measures and transfer the money to the repair and restoration account they’re using for ballroom construction. At the same time, the Congress said, oh, no, thank you, not for us, the White House helped themselves. And they could because the flexibility and the reconciliations laws provide them some latitude to do that. And also, sometimes they’re just running roughshod over the guardrails that do exist to make those kinds of decisions. And then to the extent that that money wasn’t enough for the ballroom, they’re buttressing it with the gifts that they get from the National Park Service Gift Authority.
Nehls: Right, right. Well, I mean, the drones on the roof aren’t going to pay for themselves, right? So you gotta shake down some more folks.
Lindgrensavage: There is a whole different drone repurposed violation for Senator Cruz got his $170 million in the reconciliation bill for maritime domain awareness and they used that money for monitoring the World Cup games for security purposes.
Nehls: Oh goodness.
Lindgrensavage: So, purpose violations abound for all Chris.
Nehls: So we’ve got a lot of problems: where do we start on trying to bring this under some kind of order with some kind of reforms? What’s at the top of your list for things that either the next Congress or future Congresses should be thinking of? I should clarify if the goal is for the money that Congress appropriates to be -- with all caveats that, yes, it’s complicated to spend money sometimes -- that the money that it’s appropriating gets spent as the way that Congress has designed the programs and appropriated the funds.
Lindgrensavage: I think I would just plus one a lot of the suggestions Christie’s already made. And I’ll just sort of tick through them a little bit because we’ve been like, weaving them in something that prevents pocket rescissions that forces the administration to spend funds, even if they’ve been proposed for rescission before they expire. Again, that’s what we understand the law to require now, but clearly there is this difference reading by the current OMB, so buttoning it up to make it even more clear would be wonderful. A middle ground of penalties for the Antideficiency Act to make the act more effective and imposing penalties on Impoundment Control Act violations to prevent impoundments. And then I think guardrails on the gift authorities to provide some limits. And I think to make those guardrails, Congress is going to need some more information about how agencies are actually using these gift authorities. So initially some accounting of, okay, who’s taking in gifts and what for? And how much money are talking about? And where is it coming from? Which, let’s just pause, is probably answers to questions that Congress should have already been asking and should have already been getting, but better late than never to start doing that now.
Wentworth: I think on that, Cerin, I 100% agree with you. What I would urge Congress to do is to not hold all the information itself. One of the most powerful things about the apportionment transparency law is that it required that the information be made public. What that does is it allows groups like ours, the media litigators, members of Congress, anybody can go in there, look at the information and analyze it. And that’s really powerful to have so many people that can go in and do that. And I know, Chris, you all focus so much on Congress’s institutional capacity. It’s helpful to Congress to have groups like ours be able to go and look at the data and figure out what’s there, what’s not. What kind of trends that we’re seeing. To the extent that Congress is putting in new requirements in law that require agencies to provide information or data to Congress, make that to the public, there, there is very little risk in doing that. And there’s a ton of reward to getting others to be able to look at and evaluate this information.
And then something else that I would add coming from an organization where we file a lot of FOIA requests, is that FOIA is an incredible information law. And for those unfamiliar, it’s the Freedom of Information Act. But requests filed under FOIA require somebody to make the effort to make the request. They do not always comply with the statutory timelines. In fact, they frequently do not. It might take years to get information back. Particularly in the funding context, when you’re thinking about impoundments that are happening now or other funding abuses that are happening now, circling back to what we talked about at the top about the time availability of funds, appropriations related issues are inherently urgent. Getting information as quickly as possible to as many people as possible is important. As we’re thinking about reporting requirements or sending information to Congress, I would urge Congress to consider making those requirements public, whether it’s on a public website or having the agency disclose it otherwise, but that that is a really a really critical accountability measure.
Lindgrensavage: Two, I would also urge Congress to think about the schedule for updating. I think one of the reasons this information is so meaningful is because it comes out only two business days after it’s done. And so that means that it’s not real time, but like pretty close. It’s certainly actionable information when the public and when Congress gets it. Imagine how much more useful the Plum act database would be -- the database of all the political appointees across the federal government that was passed in law several years ago. Imagine how much more useful that information would be if it was updated every time a new person came on board in their next pay period or something like that instead of agencies updating the database once a year, so that actually multiple people could have held the job in different capacities over that period of time and nobody will have any visibility into that unless you have a tighter requirement for that reporting.
Are agencies going to be happy about reporting that information? No, of course there’s going to be some burden. But the opposite choice is to burden everybody else who’s trying to do business with those agencies with the ignorance of not having the information about who’s running our government. I think like questions about burden should be approached by understanding who the burden is falling on and the absence of the data and the absence of the data about apportionments, the burden is falling on, as Christie said, everybody who’s on the wrong end of an empowerment.
Nehls: I totally agree with you on obviously on the on the public angle, on the political pressure angle of the public being able to know things as it’s as it’s happening, as you said, pretty close to a daily accounting. And we just kind of stumbled upon this story on the Washington Post picked it up. This professor, Matthew Dull, was doing some research on the appropriations oversight capacity and there was actually a team of investigators they could hire detailees from the FBI and GAO and other agencies to go and do these stealthy fiscal investigations of big spending programs. It was started in the middle of World War II, so particularly on defense projects and programs. And it basically got starved for resources and winnowed down and shut down a couple of years ago. But, that’s another way that maybe Congress can take back some of its own power is reinvesting in some of its own capacity. I’m just kind of curious what you guys think about that.
Lindgrensavage: I would obviously be very happy to sign up for that kind of enterprise. In some ways, that is the kind of work that we spend at least some of our time doing now is we’re flagging apportionments that are at risk for withholding funds. And so to Christie’s point, one of the benefits of sharing information publicly is that even though you don’t have a staff of people doing that, in some sense, you’ve deputized everybody who has capacity to engage in the exercise to help you doing it. I think it would be great if there was a more regular form of cooperation and communication by folks who could use that information within Congress and the people who are generating that information outside of Congress. To the extent that there’s a mechanism to formalize that, I think that would be hugely useful. And so literally, call any time, please. But I think that Congress has a lot of capacity constraints and a lot of things that they could be putting resources towards. I think it will depend on their ability to do that. I would certainly be fascinated to see these records. But by and large, that’s true of most legislative records as well. And I just shout out to the legislative archives, the National Archives building for being really willing to entertain requests about appropriations and other laws that we’ve been digging into.
Nehls: Amazing. Any last thoughts or words?
Wentworth: If anyone’s if anyone’s still, still listening, I’d love to scream into the void about things that things that we can be doing. I guess what I would say as we wrap up here is power of the purse issues have historically, they have really great history of bipartisan support because it is an institutional concern. Members of Congress want their constituents to be supported and they want a federal government that that operates effectively and that does the things that Congress wants. And the money runs the world, right? And so this is the most powerful tool that that the legislative branch has to give money to the executive branch to make it do things, and to keep money from the executive branch to prevent it from doing things. There has been a lot of really positive engagement in this area in the past. I hope it continues into the future.
But I would just hammer home a couple of the top lines that that we’ve talked about today, which are number one, public pressure really matters. Number two, a lot of the work that folks are doing now to conduct oversight to investigate these issues is creating a historical record so that, as Cerin mentioned, as these 100 years keep passing, we can look back in ten years when there’s some new issue that we’re dealing with and say, you know, impoundments is something that we should still consider tightening up if this becomes an issue in the future. Building that historical record is incredibly important.
And then lastly, there are a lot of resources out there right now that that members can be using to both evaluate existing data and conduct that oversight, so use what’s out there now. Obviously, we are always happy to talk about potential reforms, way to make ways to make that data more accessible, more useful, other kind of information that in our list of dreams we would want to ask for. But there is a lot out there now that can allow members to really dig into what’s happening in the executive branch.
Nehls: Great. Thanks so much, both of you. This was a very illuminating conversation, and I’m sure folks are going to really enjoy. Thanks again for your time.



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Daniel interviewed the Foundation for American Innovation fellow James Wallner about how Senate Republicans appoint members to committees. The process is governed by Rule 24 of the Senate standing rules and Rule 5 of the Republican Conference rules, with appointments made through a "Committee on Committees" led by the Republican leader.
The discussion covered how committee assignments work at the start of each Congress. They also examined a specific example involving Lindsey Graham's absence from the Budget Committee and Appropriations Committee, where his sister needed to be appointed to replace him.
They also discussed how Democrats could potentially use procedural tactics to gain control of committees like Appropriations during this transition period. James noted that while procedural hardball is possible, party leaders typically resist such actions because they prioritize party unity and election strategy over immediate legislative action.
The transcript below has been edited for length and clarity
Daniel Schuman: I’m here today with James Wallner, and we’re going to talk about how Senate Republicans appoint members of committees. James, thank you for joining me. How do Senate Republicans appoint people to their committees?
James Wallner: So there’s a magical, storied mountain, at the top of which are a group of people in robes. They got some chicken bones and there’s a smoldering cauldron. And they just do some chants. And then the smoke rises. And then it’s this person shall be on the committee.
No, it’s not far off of that, to be honest with you. It is a very interesting process and it is a very insular and closed process. It’s hard to get a peek into. Right. There’s two kinds of governing authorities here. One is the standing rules of the Senate. Rule 24 governs the appointment of committees. The way this works is that the Senate shall approve a resolution, and that resolution will name the chairman of each committee or a committee, and it will also include the members on that committee.
So if we work backwards, you have a committee and it’s got a chairman and members. The way they get there is that the Senate takes action on the Senate floor. They approve a resolution that says, like the Energy Committee. And at the top there’s a chairman, and then there’s the Republican and Democratic members of the Energy Committee underneath that. And once the Senate approves that, those members are now on that committee.
The Democratic and Republican parties have different internal party rules that govern that process, and the Republican rules are written down. You can find them online. And rule five of the Senate Republican Conference really spells out that appointment process, where the party, in essence, is making a recommendation to the full Senate, saying, these are the members that we want on these committees.
Schuman: The Senate, unlike the House, considers itself a continuing body. So its committees continue on from Congress to Congress. So for the Senate, you have the committee, and then you’re just moving people around from chair to ranking member or moving people on the committee and off the committee. Is that right? Is that what the organizing resolution does?
Wallner: Yeah, more or less. Look, the Senate is a continuing body in the sense that only one third of its members are up for election at any given time. Now, in practice, committees in the organizing resolution are going to be populated at the beginning of each Congress. But the reality of the situation is, if you’re on a committee, you’re going to keep that committee for the most part. And the parties have their own rules. They don’t have to follow the seniority process. But for the most part, once you get a committee assignment, not always and not on every committee, but once you get a committee assignment, that’s your committee moving forward.
The Republican conference rules spell this out. Rule five says, except as otherwise provided by this rule, once selected and confirmed, no member of any committee shall be deprived of his assignment or his rank on a committee, except by the conference. It just makes a lot of sense that they, in essence, retain their committee seats.
Schuman: Let’s talk about what happens at the change of the Congress. How does the Senate put people onto these committees? What needs to be done specifically to make that happen or to move people around if they’re changing committees? The example that I want to get to is Senator Graham passed on July 12th, and his sister was sworn in on the 14th. He was the chair of the Budget Committee. He was a member of other committees, including the Appropriations Committee. So both of those committees now have vacancies. And she’s a new senator, but she doesn’t have any committee assignments. And this has implications for the way the Senate operates. Let’s just start with it’s the start of a new Congress.
Wallner: This gets back to how do you populate those committee rosters on either side in either party before you make that recommendation to the full Senate? For all intents and purposes, the Senate is going to approve that, although you can filibuster the resolution.
One of my favorite white whales was to filibuster the organizing resolution that populates the committees, but then also divide it. And this is getting farther afield. But you can divide that resolution by that. You can say you can force votes on each individual member, if you want, of each committee, and you can also amend it. Right. And so you can move people around, you can do all kinds of stuff you could do.
But working back from that, the Republican conference has what they call, and this is all spelled out in rule five of the conference rules, the process they use to populate their committees or recommend to the full Senate. The Republicans that want to serve on those committees are governed by what they call a committee on committees. And the Committee on Committees has a chairman. The Committee on Committees is, for all intents and purposes, one person working with the Secretary for in this case, the majority, the top kind of floor staffer for the Republican Party. And they basically, within the confines of the conference rules, are going to make these lists, and they’re going to solicit input from the rank and file members. Conference rules say you can retain certain committees over others. They’re going to work within that. Members will come and say, hey, I really want this spot or that spot. And going by seniority, they’ll work through the conference and basically putting people on these different committees.
The other thing that makes this a little bit more complicated is that you have what they call committees, and then you’ve got B committees, right? And so the Republicans many years ago decided, I think it started the in 108th Congress maybe, but they said that every Republican senator is going to be given A committee slots in order of seniority. And so your A committees are like your Energy or your Environmental and Public Works committees, Appropriations, like all of those committees. And each committee is going to be given two slots on two different committees in order of seniority, working down the list. Remember, you retain your committee seat, so you’re really just taking the vacancies that happen. And then they’re allowed to retain one B committee.
What’s interesting here is that the Republican Party has empowered the Republican leader to basically name half the A committee spots in all of the B committee spots without going through the order of seniority. And so you have this kind of convoluted process. So in this case, Lindsey Graham’s committees, they’re going to the A committee slots are going to be filled by the leader because there’s only one. Right. If you had two the leader would offer one fill one. And then the kind of committee on committee would work through the seniority process to fill the other one. But in this case, that’s not happening. So it’s just the leader. And then for the budget committee, which is a B committee, the leader is going to make that appointment as well.
Schuman: You said they follow seniority, but when I was looking at the Republican conference rules, it says that you don’t always have to follow seniority, that there have been instances, I think with foreign, foreign, I can’t remember if it’s foreign relations with foreign affairs, but it was with Lugar became chair of that committee instead of Helms. So they don’t have to do the appointments necessarily by seniority.
Wallner: But that’s regarding the top spot, right? Yeah. And that’s a slightly different process, right. So once you populate a committee, those committee members, according to the conference rules are going to meet and they’re going to select one of them to be the chairman. And the conference rules explicitly say that they don’t have to be governed by seniority. And conference rules also say, and I found it here, effective in the 108th Congress, all Republican Conference members shall be offered two A committee slots in order of seniority. There’s something similar with Warner as well.
‘I think the most recent is when Jim DeMint was still serving in the Senate. He wanted a slot on the Finance Committee. And McConnell at the time, who’s not best buds with DeMint. They don’t always get along. And there was a vacancy on the Finance Committee, but there was only one. And so McConnell got to name the Republican senator to sit on the Finance Committee. Jim DeMint made it very clear and known that he wanted that spot. And the conservative movement was really agitating for DeMint to get that spot. It put McConnell in an awkward position, because he’s trying to show people that he is a conservative and he doesn’t hate conservatives. But now he’s got to name his nemesis to this committee. Right. Because he’s the one who gets to make the pick or he has to, or he has to say, I don’t like DeMint, and I’m not going to put you on this committee. And he doesn’t want to do either one of those things. Right. And so he basically convinces Burr to give up one of his committees, because Burr was the only senator who was senior to DeMint who could get that spot. And then McConnell can put Burr on that spot and say to the world, I’m just following seniority. Right. But he had to convince him to give up a committee to take that spot. And so it shows you this kind of it’s a weird, convoluted process, but the basic outlines of it are pretty well set.
Schuman: So let’s play it out for a little bit. Lindsey Graham was the chair of the Senate Budget Committee. He is obviously no longer able to serve in that role. The Budget Committee is down one Republican. The Budget Committee doesn’t have a chair. Republicans want to do reconciliation. You need a chair of the budget committee, presumably to make that process work. Right? There isn’t as far as I can. There isn’t an acting chair. There’s either a chair or not a chair. So someone has to get that role, which means the Senate needs to pass a resolution which requires 60 votes if the Democrats are willing to filibuster. Like how? Like, how does that play out? Or does that play out?
Wallner: Just to start with an interesting aside, if the Democrats tried to filibuster an organizing resolution or not an organizing resolution, but a resolution to put somebody on a committee amid Congress? It’s pretty remarkable how little tolerance Thune and Senate Republicans will have for that. And you will see very readily how little the Senate rules empower senators, much less a minority of senators, to stop a majority. But when you juxtapose it to the talking filibuster debate and the Save America Act, it’s remarkable. They’re like, we can’t do anything. We want to do something. They just do it.
Schuman: Senator Schumer has said in the past he wants to get rid of the filibuster. And other Democrats have said this as well. This is a chance to chip away at parts of that. Right? You could give Schumer a win win. He could, on one hand, try to stop reconciliation or extract a concession from Republicans saying, we’re not going to do reconciliation 3.0. If you want to do it, your chair has to agree to not do this right. Or, on the other hand, go ahead, go nuclear. This seems like it’s a win-win from at least what he said publicly.
Wallner: It’s also a way to, regardless of how successful it is, to show action to your base, to get excitement, to raise money, all that kind of stuff. But the reality of the situation is that even if Republicans were unable to get the Senate to approve a new member of the Budget Committee to give them the votes to name a new chairman. They don’t need to in this instance. Look, the House can pass a budget resolution. Budget resolution could come to the Senate. The Senate can put it on the floor and vote on it. They don’t have to go through the committee process.
Schuman: Although it’s unlikely that the Senate is going to accept whatever budget resolution comes from the House. Right.
Wallner: And they can change it on the floor. And then if that does open up reconciliation, in essence, what happens then is that the House can pass a reconciliation bill. It can come to the Senate. We’ve seen this, the last reconciliation bill, and it doesn’t have to go to committee, and it doesn’t have to go to the Budget Committee. And in fact, if it only ends in one committee, the Budget Committee by law, is not involved in that process either. There’s avenues procedurally to having the Senate act, even if the Budget Committee is, in essence, defunct.
What I find very interesting is that when the Democrats have more votes on certain panels now, it’s remarkable. The Senate rules are very clear and committee rules are very clear. Majorities on committees have a lot of power. Certainly since the 70s, to call hearings, to schedule markups, to take action with or without the chairman’s permission. And it is remarkable when the Democrats are in these positions, how little they actually are trying to do anything. If you really want to do something to save the world, it seems to me you’re going to spring at any moment you can to take advantage of any advantage you have. But they don’t.
Schuman: Yeah. So let’s talk about that specifically. So the Senate Appropriations Committee. Senator Graham was a member of the Appropriations Committee, and now he’s not. Senator McConnell is ill and he’s not coming back anytime soon, as far as we can tell. And the Senate’s going to go into recess soon enough. And the appropriations process had been they’ve nixed all of their markups that were scheduled to happen. But the Democrats at the moment have a functional majority on the Appropriations Committee, and they could convene proceedings. They could move legislation if they were to want to. Is there anything that’s stopping them from acting?
Wallner: I think when I worked in the House and Senate, I started there were three parties on Capitol Hill, right? You had the Democrats, Republicans and appropriators. The appropriators, even to this day, conduct their work in a bipartisan way. I think that the first hurdle to the Democrats doing that would be the Democrats on the Appropriations Committee. My guess is that they would be very resistant to that kind of hardball on top of that. I think that the temperament of appropriators typically doesn’t, setting aside the bipartisan stuff, they’re just not the type of people who are going to press every procedural advantage. And if they’re not the ones leading the charge on this, the party’s kind of out of luck because it’s the committee members themselves that have to do it.
The other thing is appropriators are like a lot of the other committees – we saw appropriators this Congress, at least Republican appropriators, go along with the reconciliation process that basically takes their jurisdiction out of their hands and puts them into these other committees. You see the House this week, it’s remarkable. They’re considering a CR, right? They’re not even waiting until September.
Schuman: The House appropriations process, as far as I can tell, is totally broken down from an institutionalist perspective. The Republican leadership there is happy to go on with impoundments. They’re happy to go along with pocket rescissions. They’re happy to go along with multi-year funding in ways that would have never been permissible before. But the Senate, there is an opportunity right now if they wanted to make at least a political point where either they could put forward a proposal that Collins would say that she would support, and then they would actually.
James Wallner: They want to create distinction, but they also don’t act on a lot of stuff. But, you know, I think it’s very simple. You don’t try to hijack a plane that is falling out of the sky, right? You don’t, it’s just like you wouldn’t do it. You’re like, this plane’s a waste of time. And I think when you think about the Appropriations Committee and the appropriations process today, I think there’s lots of reasons why Democrats aren’t going to do that. But at the end of the day, why, if the committee is basically moribund, why on earth would you play procedural hardball and press the envelope and do things that you know, maybe the other side might also do? It’s like, what’s the point?
Schuman: So if you were a Democratic member of the Senate Appropriations Committee, you suggest limitations on ICE and CBP to act in places like border states like Maine.
Wallner: Well, sure, but they could also be offering these amendments on the floor without playing procedural hardball. And they haven’t been doing that right. I think it is a very telling thing to identify the procedural possibilities that members have at their disposal, because what that does is it exposes the gap between their rhetoric and their action, or lack thereof. And I think that is a very telling thing. But look, yes, can they do all this stuff right now and take advantage of this moment of 100%? But the kind of people that would do that are also the kind of people who would literally just offer an amendment, right? They’re the kind of people who would take all of these other steps before you get to that point, right? But they’re not doing that.
And so I think it’s I think that the most telling thing is the fact that a completely inactive Senate does not take itself seriously, does not see itself as a serious place where things of consequence happen. And when that is the case, people are going to spend a lot of effort to try to take over that place outside of the electoral process, precisely because what’s the point, right? And so they haven’t been.
Schuman: The context of the Senate, for example. There’s a lot of presidential nominees, right? There’s a lot of people that Democrats, in theory, would want to block, which it’s not going to go through Budget. There’s not a lot that goes through appropriations, but appropriations could limit things. There may be other committees that Senator Graham was on. I didn’t look at his other committee assignments that maybe they can’t move nominations as a consequence.
Senator Schumer, for example, has come under a tremendous amount of criticism for not being willing to fight. Right. The shutdown that happened, in part, was a consequence of the exposure of his unwillingness to fight, and he wanted to demonstrate that he was willing to do something for a period of time. And here is the opportunity to take control of the Appropriations Committee, the opportunity to exercise some influence over the Budget Committee and perhaps other committees as well. And they can use the rules in the same way that Senator McConnell used against the Democrats when he prevented the organization of that chamber for 15 days, until he got a commitment that the Democrats wouldn’t get rid of the filibuster.
Wallner: McConnell is a master at appearing to do one thing and doing something completely different. You know, very rarely do you take McConnell’s actions at face value. I think that the behind the scenes stuff, the machinations, the negotiations, he’s with the other side, with the other leader. They’re always there. And what he does is he will exploit the inevitable. He will exploit a situation that is going to happen anyway. And then he will use that to basically portray himself in a different light.
Look, Schumer, Democrat leaders in general notwithstanding, McConnell is loathe to normalize these types of behaviors, right? You do raise an important point with nominations in the Senate. You don’t have to go through committee for a lot of things. We call it rule 14. Any senator can just put a bill on the floor on the calendar. They can offer an amendment, but you can’t rule 14 nominees. Yeah, there’s ways around that, but they’re very rarely done. With that being said, though, we only have what, like two and a half years left in the Trump administration. And so once we get past December, any person that he puts in an interim basis in a position is going to serve out the term. And so the nominations, the leverage there isn’t as great.
James Wallner: Yes. An interim nominee can’t do everything. A regular nominee, a confirmed nominee can. But you have to put yourself into like, how are the leaders going to because they don’t want to normalize senators running around like crazy people using their power. That’s just not what they like doing. You have to think about how, what are the arguments that they’re going to make to try to dissuade you and your colleagues, or get your colleagues to think that you’re crazy, to isolate you so that you won’t ultimately go through with it. And they’re going to say things like on the nominees that he’s just going to do this anyway because it’s the end of his term, and he can just make these interim recess appointments, right? That’s what they’re going to say. He’s going to say that’s not going to work on the appropriation stuff. He’s going to stand up and say, look, I’m with you, I get it. But you know what we really need to do right now is let the Republicans blow this up themselves. Right? Let’s keep the focus on them right now because we have an election coming. Right. And then hold on. But that doesn’t.
Daniel Schuman: Isn’t it the inverse? Doesn’t Schumer want to show that they’re fighting so that there is more energy among the base to do things? He wants to take control of the Senate. He needs to fire up support.
Wallner: No, but fighting exposes divisions in your own party. And that’s what both sides don’t want to do. I think what they’re going to do is say, look, let’s keep the focus on them. Let’s show them what shows the American people that they’re not doing anything for affordability. They’re not doing anything. We’ve got this war in Iran. We got all this stuff. Why on earth would we want to become the situation, the focus right before midterm. That’s exactly what McConnell would say. The same thing. Thune will say the same. That’s what they do. That’s because the way you fight is not inside the Senate. It’s in an election. And the only way to win that election is to be unified and keep the focus on the other side.
So anytime somebody stands up like a Merkley or somebody and says, we should probably do this and do that, they’re going to these are the types of arguments they’re going to get back. And those arguments aren’t designed to persuade Merkley not to fight. They’re designed to persuade all of the other people that Merkley is a knucklehead and he shouldn’t follow him, because if you do, we’re never going to be back in the majority. And that’s the same dynamic that you get when you’re conservative Republican trying to get. It’s like, what’s happening to Lee and Scott right now when they’re trying to push the Save America Act internally, they’re getting these same types of arguments thrown right back at them.
Schuman: It’s better to wait and try to win the election than to do something when you have the opportunity to actually do something in power.
Wallner: Yeah. But the kicker is that there’s always another election.
Schuman: Which is why, as you were saying, they never do anything because it’s always about what’s next and not what’s happening right now.
Wallner: Look, I would just say Mike Mansfield put the Civil Rights Act of 64 on the Senate floor and a presidential election year in March. I think it was March of a presidential election year. He thought this was going to destroy his party. That’s how far we have come.
Schuman: So there used to be senators who were willing to do things because they thought that they mattered, or because they were important, or because it screwed the timing. We’re going to do it now because we have a chance to do something.
Wallner: In the halcyon days of long ago, the way you did, the way you did stuff, was that you tried to do it right. Today, the way you do stuff is that you literally don’t do it. You gotta wait. And if you try anything, then that’s going to mean that we can’t ever do it. That’s the kind of dynamic. You saw this with the Green New Deal, when leaders tried to push AOC to not push it in the House. Right. I’m with you. But if you do this, we’ll never be able to do it because we’ll lose the election and our Our moderates won’t support it, and then there’ll be Republicans in the future. So let’s not do it. So that one day we can do it.
Schuman: Yeah. This is why people keep throwing out the status quo candidates. They can’t stand it anymore. And they’re the maybe you feel this, but where I sit, it feels like the party system is starting to fundamentally change. You’re seeing the personalism in the Republican Party right now. You’re seeing Democratic candidates to some extent starting to lose against insurgents. The political organization of the House is breaking apart in ways that are really interesting. And the Senate just looks like the graveyard of any type of hope and ideas. And McConnellism is gone or is leaving. It seems like there’s just transitions that are happening in whatever the political system is. And the old keep your team together, screw the other side and wait till the election model of governing. Maybe that’s not the thing anymore.
Wallner: Yeah, you can’t keep pushing. You can’t keep punting forever. It doesn’t work. At some point, the system is going to demand action. The Senate has gone through the most dramatic, radical, significant and far reaching institutional change in its history over the last 20-25 years. I firmly believe that the Senate of today is not recognizable to the Senate of the 90s or the early 2000s. It’s not. And compared to the 60s, it’s like Mars. It’s not even on the same planet. And it is remarkable how thorough and swift and extensive this change has been. And I don’t think it’s sustainable. It’s not because Congress is a crucible of conflict. It’s where we send the people we elect to adjudicate our differences and make collective decisions. And you cannot avoid having arguments in that place forever. And all it takes is 1 or 2 people. And the next thing, the whole thing is going to be different like that.
Schuman: Yeah. And if we don’t fight in Congress, then we’re going to fight elsewhere. And fighting elsewhere is bad.
Wallner: Yeah. You don’t want to fight elsewhere. You want to fight in Congress. It’s important. It’s a hallowed place. I would always say in the 19th century, we had all these fights. I don’t think we should be fighting physically, but people fought over in the House and Senate. They hit each other, right?
Schuman: Yeah. Yeah. The book. There are 80 or 90. Yeah. Feel the blood. There are 80 or 90 incidents of members beating the ever loving crap out of each other in the 19th century that they could document with gang members waiting for other members to ambush them.
Wallner: I read a review of that book a while ago for Law and Liberty, and my opening line was, the problem with members of Congress today is they can’t take a punch. And I don’t mean that literally.
Schuman: But yeah.
Wallner: They people fought over the House and the Senate because those places were important. It is a signal if somebody’s giving a speech on the House or Senate floor, could piss you off enough to make you go down there and punch them in the face. Like this, a Democratic senator from South Carolina listened to another Democratic senator from South Carolina give a speech about Cuba. And like whether or not we should take Cuba. And he walked up to him and punched him in the face. If the Senate floor is important and it has to be for you to go punch somebody for something they say standing on it, that’s something we need. Not the punching, but the Senate floor being important today. If somebody said something on the Senate floor, you’re like, whatever. You probably don’t even know what they say. Nobody cares. They’re not listening.
Schuman: Yeah, yeah, it has to matter. And I guess that comes down to if the Senate matters, then the Democrats would be willing to play this type of procedural hardball, and the Republicans be willing to respond with this type of procedural hardball. And if it doesn’t matter, then, yeah, then then go do something else someplace else.
Wallner: The Senate floor is a liability to winning elections in each party. That’s how they see it. You see this with the Save America Act debate in the Republican conference. It’s we can’t they’re having this whole internal debate that is, the president gave a prime time address. This is basically ripping the party apart. Right. And the base is all agitated. It’s all over. Should we try? Since the debate you’ll see in the Democratic Party as well.
Schuman: If Schumer plays two dimensional chess. I’m making a joke here, or at least trying to instead of the not checkers. Right? Not three dimensional chess, but two dimensional chess. Like he could expose the Senate Republican thing. On one hand, we can’t do the Save America Act. On the other hand, we can go and get rid of the way that we put people on committees and high in that contradiction.
Wallner: Yeah, but Schumer also doesn’t want people doing this when he’s in control.
Schuman: Yeah. You’re right.
Wallner: Party leaders have no power in the Senate. It’s like they’re like a tin can village or something. They’re like, it’s just all an illusion. And the last thing you want to do is normalize aggressive behavior and procedural hardball. Because when you’re in that position and look, the Senate minority leader is the second most powerful senator, the majority leader is the first, most powerful senator. And those two work together, especially in the nominations process. Those two, Thune and Schumer, managed the Senate on a daily basis. The last thing that Schumer doing this would do was basically go in and be like, I’m not working with you. And then the whole Senate would be upended because then those two wouldn’t be able to manage the institution. And so I think, never underestimate the kind of bipartisan comedy between the minority and majority leader, even when Reid and McConnell were like, trashing each other publicly, they’re still working together privately on a regular daily basis because that’s how the Senate functions today.
Schuman: Yeah. The real adversary is the rank and file, not the other party leader.
Wallner: Yeah. The real adversaries are the progressive and conservative knuckledraggers who are like, you’re like, please don’t look at the rule book and realize what you can do and then try to do it. And that’s how they come down so swiftly against them because they want to make examples of them so that the other rank and file don’t go along with them. Right? It’s all about trying to keep everybody together behind you and not to think for themselves.
Schuman: James, you are a phenomenal resource and a treasure. Thank you so much for explaining this.


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Daniel Schuman: June 30th marks one year on the job. How are things going?
Chief Michael Sullivan: Terrific. This is an incredible organization with an incredible mission, much different than other jobs that I’ve had in major municipal cities. Really focusing on what we do here, which is protecting members, protecting this place, and protecting the legislative process.
And that protective mission-- while policing is certainly part of that mission -- security and the protection piece is something that is much stronger than any other place. I would say it’s flip-flopped. I had protective missions in other places; however, it was a small piece of my portfolio. I would argue that protection piece of this place and the members is a much larger piece of the portfolio here at the United States Capitol Police.
Schuman: The legislative branch has tremendous security needs and of course you can’t do everything, you can’t focus on everything. Is there something that you’re focusing on right now?
Sullivan: There’s a lot of things that I’m focusing on right now. I met with a lot of folks over the last year right after my entry, hearing members’ concerns about safety, the concerning emails, phone calls, and threats that were coming to them directly. And, I can tell you there was deep concern across the entire membership that I talked to directly and had those one-on-ones on how we’re handling those. Being able to have those conversations really made me understand that difference in that policing mission versus what I would call a protection or security mission. It was helpful in instructing some of the areas I needed to make sure that I assessed and focused and did the best we can with the resources that we currently have. That’s been part of what I’ve looked at.
I’ve also looked at, making sure -- because this agency made incredible strides since January 6th -- making sure that we have systems in place that embed that progress, that we don’t backslide. We have to make sure that we are always prepared, and a day like that, if it ever comes, that we’re there to meet that day and meet that purpose. I truly believe that we are today, but we’re going to kick the tires and if we’re failing in any way, we’re going to fix it.
Schuman: Can I just stay on this for a second? In prior years, with some of your predecessors, there were questions around are you focusing on training, because training was a big issue, particularly [on January 6th] Are you focusing on communications? Are you focusing on particular aspects of member security? There’s a million things that someone in your role, of course, needs to be paying attention to, and you had spoken about the security mission. You gave us a good top level, but is there a particular thing that you’re trying right now to address?
Sullivan: I can tell you as the chief of a major organization, I have to focus on all those things at once. Training is a huge issue. Making sure that we have leadership training, embedded in this organization.
We have people up in Boston right now at the Senior Management Institute, which is an executive leadership school. I’ll be up there speaking to them and that entire cohort this Friday. That’s incredibly important to me. We’re investing in that. This is a very busy time of year, but we found time to send our senior folks there to get that training.
Then we look at how do we embed the training, because it’s different here, right? Every place else I’ve been there’s been a state post that requires and mandates so much training. We don’t have that here, and making sure that we get our folks the training that they need, whether it’s around their critical needs like just something as simple as... and it’s not simple, but screening at the doors. We can’t just ask people to do that without giving them the training.
We focused on improving policy, improving training. One of the things that I’ve learned over my time ... When I came up in this profession, you’d make a policy change, sometimes a significant policy change, and it would come across to you at roll call, you would sign for it, and after you signed for it, you were responsible for it. That was the impetus of your training of this many times a very important policy. We need to train our folks and if we make a significant consequential policy change, it needs to be followed up with training.
What that training looks like can be many different things depending on what the policy changes are. But policy changes, are great, but they’re only great if they’re actually embedded in the culture, followed up on, and then our people are trained to be able to be held accountable to them.
Chris Nehls: I want to go back to … you mentioned the threats that members have been experiencing, staff have been experiencing. We’ve seen the reporting and the information out from the department is there’s 15,000, almost 15,000 of these threats last year. This is up, almost double from just five, six years ago; but it’s hard for us to understand what that all means in terms of context. First, how do you define a threat?
Sullivan: When we talk about that 15,000-number, we talk about threat cases. Okay. These are concerning cases. Some of them have a criminal nexus. Some of them, I would say the majority of them, do not -- it’s First Amendment protected speech. But I can tell you, as the executive over this organization, if we did not capture something that is a concerning statement and causes a member’s offices concern, and then that person comes up on the radar again, we don’t see that escalation, that would be a bad thing. So, it’s incredibly important for us to make sure that we do our due diligence on each of these concerning statements, threats that are risen to us, because if an office is reaching out to us and has concerns about it, we should have concerns about it.
When I talk about that 15,000, those are 15,000 cases that are threats agents are working and have to manage. Certainly, First Amendment protected activity, that investigation is much different than a full-blown threat investigation where we don’t have somebody identified, where we have to go out and get legal service to be able to identify that person and then we have to engage with the US attorney, whether it’s here locally or somewhere out in the United States, to be able to facilitate a prosecution.
As you talk about these cases, we all want to look at prosecution as the bottom line. That’s a tool that we have in the tool belt. It’s certainly something that we want to use when it’s appropriate, but our mission is to keep these members safe. Sometimes keeping members safe means getting them engaged with family that they’re not engaged with right now because of some issue, mental health, so all of a sudden, this person that has been a consistent issue because of some other challenges that they have in their life. Maybe the prosecution isn’t necessarily the right way to go. Many times, if we can do those interventions, we solved a problem and we kept a member safe in the long run, maybe safer than prosecution.
With that said, we don’t hesitate to prosecute. We can’t stand for people to make, blatant, outright threats, to our members and to this place and to the people that work here. We’re focused on that and focused on keeping people safe.
Nehls: Could you give us a little bit of a sense of how you filter through... It seems like such an enormous amount of work that goes into investigating, as you said, investigating 15,000. How do you manage or filter through what sounds like it might be somebody just calling up randomly who’s mad and yelling at an intern versus things that go higher in a threat matrix? Can you just talk through how the department, works that through?
Sullivan: We stood up a protective intelligence operations center. It’s an operation center, so it manages all those operations that are outside the NCR [National Capitol Region] that are going on with members, making sure that we’re focused on and understanding what that looks like. In addition to doing that, the concern is with 15,000 cases coming in 18 different places, we needed one central collection point. So that one central collection point is our Protective Intelligence Operation Centers. It allows us to triage and then assign the cases. It makes sure that they all have that one entry point so we don’t miss something, which is always the fear that you have, that you miss that one string that you could have pulled.
There are assessments that go on during that process. There has to be communication with the offices because if you’ve given this to us, the follow-up that we have to have -- which has been one of the most challenging, just to be quite frank, one of the most challenging pieces that we’ve had because of the sheer volume -- making sure that we get back and keep members’ offices or other victims apprised of where we are, what we’ve been able to find, whether we’re waiting on maybe potentially legal process or a conversation of this doesn’t meet the level for a criminal prosecution: This is First Amendment protected activity.
This is why sometimes that doesn’t feel good. I’ve had threats personally against me that didn’t rise to the level of something, but threatened my family. It doesn’t feel good, and I can tell you that it doesn’t feel good to members, but being able to have those discussions are incredibly important.
We have talented and very skilled investigative agents look at this, but we also have PhD-level doctors that are skilled and experts in this that take a look to understand this person’s entire picture, to help us look for different mitigation techniques. So being able to filter it all to one place.
This is difficult. While I’m not going to share the number of threat officers I have, I’ve expanded that. It’s expanded significantly since I’ve been here and we have plans to continue to expand.
Nehls: There’s been a discussion about political violence and political language becoming incendiary. Does the department think about how do you get that number to go down from a policing standpoint, or is that not really a way that we should think about that?
Sullivan: I think everybody would like it to go away, but I can tell you we’ve had political violence for years, between Gabby Giffords, Representative Scalise and the baseball game. But it seems like over the last year, year and a half, you have the governor in Pennsylvania, you have Minnesota, you have the president, you have Charlie Kirk, you have the president. The level, it seems to be accelerating and becoming more the norm. Certainly, it’s our job, and I think it’s my job, to speak out against political violence. I have in a number of forums, whether it be on media or at conferences that I’ve talked to folks. It can’t become the norm. When we can hold people accountable, we will.
I’ve worked with federal prosecutors my entire career. Federal cases are some of the hardest to bring. There’s a reason when I came through that they have a 90-plus-percent conviction rate in the federal system compared to the state system: It’s because they only take those cases after they’re fully vetted and they’re confident in where they are. So, that’s a challenge, but I’ve seen a willingness to take some cases that I’d I would just say years ago maybe they wouldn’t take because of where we are today. I thank, the US Attorneys office around the country for their participation with us in that.
In addition to that, I think it’s our outreach. We have incredibly, good relationships with people around the country, and that’s been a focus of mine since I’ve been here. One of the other things that has expanded significantly is a program where we have memorandums of understanding with people around the country. We had about 100 when I got here, and we’re pushing 600 now. That’s because we’ve had a concerted effort. It’s not because we just sat back and said, “Hey, you want to come join us?” No, I’ve been on the phone, I’ve been at conferences, explaining what this program is.
The program really is, hey, let’s have this piece of paper in place, and if I pick up the phone as the Capitol Police and say, “Hey, we need help at this event,” and it’s something that you normally wouldn’t do, it’s outside of your regular course of business but you can provide potentially people to help us -- whether it’s on straight time, whether it’s on overtime -- but it’s for our mission that we will reimburse you.
While that’s expanded, it doesn’t mean the work’s expanded. What it means is our reach and our ability to reach out and touch people and pull them in to this work that we have is terrific. And it’s been well-received as I’ve talked to chiefs and sheriffs across the country.
Nehls: What else goes into the MOU besides, events? what other activities?
Sullivan: It could be events; it could be there are specific threats. There’re different mitigation techniques that other departments can use. I don’t want to go into the specifics of it, but it’s anything to do with member security and protection when they’re back in their home districts. I know the House and the Senate have their own programs now. It’s an ability for us to leverage all of these different tools that we have to keep members safe, which is what we’re all focused on.
Schuman: With the 15,000 concerning statements, is the language is concerning statements, behaviors, and communications and whatnot? can you break that down? How many of those roughly are deemed to be credible threats?
Sullivan: We break them down into threats and direction of interest cases. Direction of interest could have a whole lot of stuff in there. And like I said, the vast majority are direction of interest cases. It’s a small subset that are threats. I don’t have the breakdown with me.
Schuman: Your predecessor, Chief Manger, was asked about this, and he said it was a couple hundred things that were credible threats. So you’ve got this year it’s, 15,000 directions. But, there’s something out there that’s causing you to look more deeply, so you’ll maybe open a preliminary investigation. You’ll look at it in some facet, you’ll make an assessment.
Then of those you can’t, there’s no way with the resources that you have, even though they’re significant, you can look at all of them. There’s a point where you’re going to winnow it down significantly: these are the ones that are much more concerning we’re going to put more resources in, we’re really going to investigate this.
And then of those that you go and you put more resources into, and you deem them credible or substantive or whatever the term of art is, then there’s, a further cut, right? All right, we’re going to send this over to a prosecutor.
What I’m trying to get a sense of, when the press reports on this, they look at this number that’s gone from 8,000 to 15,000. That’s a huge increase. What I’m trying to get a sense of underneath that big number that can reflect a lot, how much it’s something that is actionable. It’s something that you guys are saying, “We have to go to the next level of investigation and do something about.” I’m not expecting you to have on the top of your head, but just to get a sense of it, is it 10% or 5%? Is it a couple hundred? that’s why I’m asking the question.
Sullivan: No, absolutely. And the vast majority, it’s hundreds versus thousands of DOIs. And of those threat cases, I can have a credible -- I don’t want to use the word credible-- I can have a threat case and it is something that if I identify who made this it’s prosecutable. The first step is identify who that person is, which can be a challenge depending on what media it comes in on and what information we have, what’s been preserved, how long has it been since we received the information. There could be a case that, yes, vis ery concerning. However, we’ve exhausted all our leads, which takes a lot of time, put out subpoenas potentially to the the different places and we can’t get it because of a number of reasons, so you could run into that.
Then, you run into cases, okay, I have the person identified: this person, did they truly have the means? They’re sitting in a basement in Alaska and making a threat about a member who lives on the East Coast. Do they truly have the means to facilitate what they’re doing? Probably getting a prosecutor to pick that up is slim. But those are conversations that we have to have going forward, and goes to my point of why we want to capture all of the escalating behavior potentially behind. Unfortunately, many of the things that we see, this is the first time people pop on our radar when they do something.
Schuman: Do you track the prosecutions? Do you keep track of the number of prosecutions that occur based upon the work that you’ve done?
Sullivan: We have numbers on what that is. I don’t have those with me today. Once again, it’s a subset of those hundreds.
Schuman: What we had heard before was that it was very difficult to get prosecutors to prosecute. The Capitol Police is subsidizing, I think, a couple of AUSAs to help focus so that they’re willing to spend time on something that they wouldn’t necessarily have been willing to do otherwise.
Let me turn my question to a statement. It would be helpful, to have a sense of, looking at the last couple years, just being able to break it down, not as a way of, diminishing the work, but I think to help the members better understand the nature of the work. Because we see every time the new number, the new top-line number comes out, there’s increasing panic from them. Yes, the threat number has gone up to 15,000 or 17,000, but we’re calculating a lot of people by social media. Some of these are threats from people in Tasmania, right? They may have a threat, but they’re not likely to be able to cause any type of injury.
Would you be willing to, or else would you be willing to look at, providing a little bit more detail in the numbers to help break down the directions of interest, the threats, the number of prosecutions, either going backward in time or going forward in time so we can just better understand that environment?
Sullivan: That was one of the things that I actually asked when I first got here, and I was concerned. We were managing the work that we did in a records management system, which is not the way you manage cases. The ability for me to get detail was very limited. Very limited, very time-consuming, hand counts, Excel spreadsheets.
USCP staff: Do you mind if I was just going to add something just for context. So, try to tell a member of Congress that if they get a voicemail that says, “I wish someone would cut off your f*****g head,” try to tell them that’s not a threat. But it’s not a threat.
Sullivan: It’s not a threat; that’s a direction of interest. So, the hysteria that you guys talk about, that is what they’re bringing to us because they’re getting those calls. We’re not dramatizing the numbers. We’re running down all the threat assessment cases. I think if we tried to say I’m just making a number They’re going to go, “No, it’s not. Do you know how many calls I have? Do you know how many emails I have?” They’re getting them every day. So we’re not causing the hysteria. No. The feeling of that threat is very real every day.
Schuman: Part of our job is to provide better context for them, and I think that’s -- and I don’t, I’m not to put words in your mouth, so I apologize -- but that’s part of your mission as well to help them understand how to be safe and what the threat environment looks like, and how to behave in those circumstances. And you’re releasing a number that is an alarming number. There’s nothing wrong with you releasing it. I think it is appropriate for you to do I think it’s great that you’re doing so. I think that providing these are the terms that we use: here’s a direction of interest. This is a direction of interest versus it’s, a credible threat. We define this way and this that way. We want you to know that we are tracking this well.
It sounds like there have been records challenges, and I’ve heard about that as well that the data has been difficult. Trying to go backward in time, it is not as reliable as one might necessarily want. But even just on a going forward basis, being able to help people understand a little bit better if there’s only a couple of prosecutions, that’s not necessarily a bad thing if you’re finding ways to divert the attention, if you’re finding, ways to better protect the members. I think that’s fine. Right now, all we have is the statement for each of the years for the last eight years. Would you be willing to, if you could to release it?
Sullivan: That’s one of my first assessments when I got here: this is crazy, we can’t manage 15,000 cases in an RMS system. It’s a records management system: We need a case management system to be able to do that, and we’re in the process of bringing on a modern case management system that will allow us to have better insight.
Schuman: I’ll just put a final button on that and move on: if Congress were to express support for you releasing this number, these numbers in a greater level of detail, you wouldn’t have any objections to doing so?
Sullivan: We work with Congress every day, and we follow their lead, we work to support them.
Schuman: A number of years ago, Congress directed the Capitol Police to create a FOIA-like process and to consult with civil society in developing those regulations. It was in the appropriations bill. Obviously, this is before your tenure. The department, in fact, did issue a FOIA-like policy. There are several legislative branch agencies that have done so. The GAO has a FOIA-like policy, the Library of Congress has one, and the Capitol Police has one.
But in doing so, while there was direction to have consultations with the public, those consultations didn’t occur, and the resulting policy seems to hold back categories of information beyond what would be typical for a law enforcement agency if we’re located in a city or even that applies to the executive branch. So, the information that the FBI normally would release is significantly broader than what’s currently coming out of the Capitol Police.
And by way of example, I had made a public records request for who else is filing public records requests and what were those requests, and that was denied. Those types of FOIA logs are routinely released. Is this something at all that you’ve been tracking? I know you’ve got a million other things going on. Have you been looking at these aspects of transparency? Obviously, your having a conversation with us is a significant commitment to doing so. Are you looking at the records practices as well? Is this something that you might be willing to look at?
Sullivan: Certainly, I’m going to follow the laws that Congress makes for me in this area and it’s something I’m tracking. I know that there’s been challenges and there’s ongoing challenges that are part of the legal process in this area. I rely on my team to make sure that we’re doing that. With that, I think it’s important to get information out and balance the information that the public needs to hear and the security of this campus and the members that we’re challenged with.
So, it’s that balance between the two. But to your point, I’ve sat down with everybody that’s asked and had conversations in the year that I’ve been here, and would continue to do that, making sure that we can get out what we can get out.
Schuman: And we would welcome the opportunity to have a conversation with you or with, with your colleagues about, how to further strengthen that process.
Nehls: I want to just shift: the Architect of the Capitol testified at the House Administration Committee last week. They didn’t really get into it but they’re going to produce a master plan by the end of the fall. Of course, the AOC is on the police board, they work with you on different security structures and things. I’m just curious, as they wrap that master plan up if the department feels like it has the physical infrastructure it needs, or if you feel like you’re getting behind on something.
Sullivan: I’ve only been here a year, and one thing that I’ve learned is you never give up space, and if you can get space, you better grab it and hold on to it. Space is at a premium here.
We certainly need additional space and we certainly are understaffed to complete the mission that we’re asked to do. That means I need to get people here, which many times means parking as they come to and from. It means locker space for them to be able to do this.
One of the things I was surprised at was when I heard roll call, I expected it to be what I had experienced roll call at a table like this. Everybody sits down and you have a nice conversation, pass information along and go forward. Depending on where you are, it’s a very different place, whether it’s down in the Senate roll call room or it’s on the House side or the library side. It could be in a hallway rather than a place that’s conducive to what I would call the most important 15, 20 minutes of the day: to be able to share the information that have gone across.
That being said, we understand, we’re here. They’re not here to support us, we’re here to support this entire operation. Being part of that, we’ve expressed the needs, challenges that we’ve had. I know that we’ve looked at opportunities to move that forward and we’ll continue to work with the Architect in partnership to be able to do that.
One of the other big challenges that we have is training, and the facilities at Cheltenham (Maryland) are less than ideal. We need to have significant investment to be able to get that where it needs to be.
One of the other organizations I came in, the place that we trained was abysmal. There was cardboard and duct tape on the windows. It was a terrible place to bring new employees in and say, “Hey, welcome. This is how much we value you, and we bring you to a place like that.” I’m not saying that’s where we are with Cheltenham, but it’s certainly not ideal.
And then just where we are right now with our staffing with the 9/11 folks that now can retire. This hiring is not going to stop for the foreseeable future, to grow us, and it’s going to take a number of years to get us to where we potentially need to be looking at it forecasting today.
Who knows what technology will be in place and what things that we can put in place in the future. But looking at what it needs just to staff where we are today, if we want to say, “Hey, how can we staff what we want to staff here on campus and on our protective model,” we’re hundreds short on both the protective mission and the mission here on campus.
Schuman: You have, and please correct me, it’s 2,350 authorized, and you need another 300 more?
Sullivan: I have a staffing office that’s working on a report that literally, they’re taking a look at every post that we have, which changes sometimes weekly if somebody wants another door open or there’s another security measure that requires us to fill that. We have the discussions about it, but when we’re asked to do that, it takes a toll on our folks. That means overtime, which means we’re holding people over or drafting people, which is a concern of mine when it comes to wellness of our officers.
Schuman: Part of why we ask about spacing is we know that there are challenges with the Rayburn Building. It’s going to need to be remediated almost immediately, and of course, there are some Capitol Police facilities in the sub-basement there. There are other buildings that are... Longworth is in deep trouble. One or two of the Senate buildings are also in a challenging circumstance and there are challenges inside the Capitol Building as well. And we’re not even talking about Ford and some of the other congressional buildings.
Of course, you have other facilities, that are separate from the main campus. And, we’re seeing House and Senate appropriators trying to grapple with investment in the campus has not kept up with the needs, and the buildings, some of them are in terrible shape.
And I think we’re going to see in the next five or 10 years a tremendous change in the way that we organize all of this. the Capitol Police has more than doubled in size in the last 25 years in terms of people and it’s quadrupled in terms of budget, right? You’re doing a much better job of keeping track of your equipment, which was a challenge for January 6th and before. So, I’m just trying to think about what the physical space needs and how to make sure that you guys can get to where you need to get to. Not to mention that you’re responsible for the entirety of the legislative branch with the exception of GPO, so it’s a tremendously large mission. So that’s why we’re asking about, your needs for the buildings.
Sullivan: Yeah, we have tremendous needs, and we’ll continue to have tremendous needs. There’s ways that we can mitigate that, whether it’s on campus or immediately off and the Architect’s looking at all those in the conversations that I’ve had with that office.
Nehls: What other things would you like to communicate to the congressional community, that we haven’t talked about yet?
Sullivan: We’re lucky that we have an incredibly resilient workforce, a workforce that is so positive. It’s unbelievable the interaction when I go out and talk with officers -- and this comes from somebody that … I’ve had experience across the country with law enforcement, but the positivity with which they look forward to this job is something that is refreshing.
And we have also a very young workforce. I talk about that workforce really changing over. We lost a lot of people after January 6th and we’ve been doing consistent hiring since then. We’re getting to that point that our workforce is getting younger, which means that we have to make sure that we give them the training and supervision that they need to be able to do their job and guide them so they have successful careers and complete and focus on the mission.
I’m incredibly proud to lead them. It’s a challenging mission every day. We’ve been challenged a number of times since I’ve been here and they’ve performed incredibly and will continue to do that every single day. When we fall down, we’re going to learn from it, and we’re going to move forward and be better the next day.
Schuman: Wonderful. Thank you so much for your time. Really appreciate it.



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