Power Grab

by Jason Chaffetz

  Imposing a Double Standard

  For anyone who was paying attention to the work of oversight during the Obama administration, prepare to get whiplash. The script has flipped. With Democrats in the majority and a Republican in the White House, leadership has succumbed to the temptation to revert to a whole different standard of rules. We’ve seen a 180-degree shift in the Democrats’ attitude toward witness preparation and what they used to refer to as taxpayer-funded fishing expeditions. Behavior they routinely engaged in during the Obama years is now considered reprehensible. Behavior they routinely and inaccurately accused Republicans of engaging in is now virtuous.

  I’ve been around long enough to remember way back two years ago when it was inappropriate for witnesses to meet with committee members or partisan staff outside the presence of the other party. I was routinely questioned by my Maryland Democratic colleague Elijah Cummings as to whether I or my staff had interacted with a witness prior to a hearing. I never dreamt of having those types of meetings without inviting the Democratic staff. It just didn’t happen.

  Likewise, if we wanted to go on an overseas trip to perform oversight, with few exceptions we had to get a member of the other party to join us. The only time I got an exception to that rule was immediately following the 9/11/12 attack in Benghazi when I traveled to Tripoli. Time was of the essence and no one on the Democratic side had accepted my invitation to go. Because of the emergency nature of the incident, I was permitted to go without a Democratic counterpart, but only after offering them the opportunity and having them turn it down.

  That rule is not being observed in Speaker Pelosi’s House. When former Trump attorney Michael Cohen testified before the House Oversight Committee, Cohen sheepishly admitted to Republican ranking member Jim Jordan of Ohio that he had spoken with Democratic Intelligence Committee chairman Adam Schiff of California “about topics that were going to be raised at the upcoming hearing.” After the hearing, Republican Oversight Committee member Mike Turner of Ohio sent a letter to Cohen’s team asking for more information about those contacts. All of us who have served on the House Oversight Committee know that such a meeting is far outside the norm. Turner wrote, “These questions are important for the public to understand whether or not they were watching witness testimony, a public hearing, or well-rehearsed theater.”

  Cohen later acknowledged to House investigators that Schiff had traveled to New York four times (presumably at taxpayer expense) and that he or his staff spent ten hours meeting with Cohen. Democrats played it off as standard procedure. Schiff told CBS News’ Margaret Brennan, “that’s what you do in any credible investigation.” Committee spokesman Patrick Boland, in response to Turner’s letter, said:

  We are running a professional investigation in search of the facts, and we welcome the opportunity to meet with potential witnesses in advance of any testimony to determine relevant topics to cover in order to make productive use of their time before the Committee. Despite this professed outrage by Republicans, it’s completely appropriate to conduct proffer sessions and allow witnesses to review their prior testimony before the Committee interviews them—such sessions are a routine part of every serious investigation around the country, including congressional investigations.

  No. They are not routine. There is nothing standard about this procedure. Keep in mind, this is not a court proceeding where the rules of discovery are in play. But there is a long-standing norm and a deep understanding that the minority has rights. The minority should be invited to such meetings. They are not held with staff or members from one party except under very unusual circumstances. Certainly not in dealing with a scheduled witness. And certainly not when that witness has an attorney through whom the staff should be communicating.

  For Schiff and his partisan staff to meet a scheduled witness in person, without the minority present, is not remotely appropriate or routine. These responses are incredibly dishonest in that they conflate routine bipartisan investigation and witness preparation with partisan witness tampering and testimony rehearsal. These two things are very different. Chairman Cummings would have been livid had I pulled such a stunt. I never did. I’m sure if a reporter pressed him, he would have to acknowledge that Schiff’s behavior was inappropriate. But no reporter will.

  Other rules and norms have also shifted with the flipping of the script. Remember when taxpayer-funded fishing expeditions were a bad thing? Those days are over as far as Democrats are concerned. Remember when executive privilege was a valid defense for withholding information from Congress? No more. And remember when failing to respond to congressional subpoenas was okay with the Democrats? Suddenly they don’t feel that way anymore.

  With Democrats now on offense, their strategy has changed. During the Obama administration, Democrat members of Congress saw themselves as a defensive team for the president. They went to great lengths to keep embarrassing information from being discovered or revealed. With President Trump in office, Democrats have miraculously discovered a newfound commitment to accountability.

  One of our Republican Oversight Committee staffers tells the story of a meeting she once attended in which the chief counsel for the Democrats introduced herself and said, “I’m in charge of defensive investigations.” She was paid by the legislative branch, but her job was literally to defend the administration. That really set a tone. The staff all knew that was essentially her job, but for her to openly admit it was audacious. If congressional Republicans got caught using a term like “defensive investigations” I wouldn’t be surprised to see a dozen mainstream stories within twenty-four hours.

  The Democrats were very aggressive at playing defense for President Obama. Not for one minute should we let them get away with pretending to be offended by behaviors they routinely engaged in. Republicans should not be the least bit embarrassed to call out witness tampering, defend executive privilege, protect classified and grand jury information, or point out what they see as taxpayer-funded fishing expeditions.

  The Democrats’ newfound commitment to executive branch transparency and simultaneous commitment to legislative branch secrecy are predictable. Their sudden conversion to the need for subpoena compliance is welcome, but it must be channeled into permanent solutions that hold both parties to the same standard. They don’t seem to want that.

  They are using their oversight power to let the Deep State off the hook—losing interest in any investigations that might negatively impact their constituents in the civil service. They are instead using the subpoena power to engage in the very fishing expeditions they decried under President Obama. In the case of the Mueller Report, many called it contempt of Congress when Attorney General Barr wouldn’t give them access to grand jury material he is legally prohibited from providing. I remember well how vociferously my Democratic colleagues defended the need to withhold grand jury materials when those materials involved Hillary Clinton’s emails. Now they express shock and horror if the executive branch does not immediately turn over evidence they seek—as though they had not themselves promoted and defended the very practices now relied upon by the Trump administration to withhold documents or testimony.

  Some of their complaints are certainly valid, but unless they are willing to close the loopholes in the law that they themselves exploited under President Obama’s leadership, their complaints will continue to ring hypocritical and opportunistic. I wouldn’t object to reconsidering congressional access to grand jury materials under certain circumstances, for example. But Democrats don’t necessarily want to have that debate. They want Attorney General Barr to go to the courts and seek approval to release the information in this case and this case only. They have no interest in opening up a potential future Democratic president to congressional oversight of grand jury materials.

  Obscuring Transparency with Strategic Rule Changes

  Fulfilling the quixotic promises Democrats made to win the House majority will require some heavy, unpopular, and economically debilitating tax and spending
increases. To mitigate the damage and protect her members from the inevitable real-world consequences of those policies, Pelosi needs to obscure the harsh realities of the policies. Furthermore, she needs to shield the government from scrutiny that might undermine faith in the bureaucracy. She needs them to manage the decisions Americans have traditionally been free to make for themselves.

  Speaker Pelosi crafted a rules package that better serves her agenda to grow government, shield incompetence, and stay in power. These rule changes will also help facilitate her escalation of the war on the administration in the short term.

  Rules packages are introduced at the beginning of each two-year cycle in the House. With the ending of the 115th Congress and the seating of all newly elected members on January 3, 2019, all previous bills and rules expired and the 116th Congress began. With it came a new rules package developed by a new Speaker. By and large, the House of Representatives still follows the original parliamentary rules crafted by Thomas Jefferson and adopted in 1837. But each new Congress can adapt those rules to suit the body’s purposes. Upon her taking the gavel, the crafting of the new rules package was Pelosi’s first opportunity to set the stage for future power grabs. Predictably, she did just that.

  The rules package adopted in January 2019 acted as a preview of coming attractions. Some of the power grabs we’ve seen since Pelosi took the gavel—and what we will continue to see through the 2020 election cycle—were foreshadowed from the very first day of the 116th Congress.

  Comparing the new rules package to the one it replaced paints a vivid picture—if you know what to look for. Specifically, the new package does five things that signal where Pelosi is going. It eliminates government from the reform mandate, shields members who vote for tax and spending increases, hides debt ceiling increases, removes barriers to new taxes and spending, and finally, it changes the way Congress forecasts the impact of tax increases. Any question what Pelosi needs to do to get her agenda enacted?

  1. Eliminating Government Reform

  Right out of the gate, we saw what looked like a minor change to the standing rules—the Committee on Oversight and Government Reform became just the Committee on Oversight and Reform. The removal of one word my not seem like a big deal. But it foreshadows a completely different approach to oversight. For Democrats, government is never the problem. Government is always the solution. I predict we are unlikely to see any serious oversight of actual federal employees from Chairman Elijah Cummings’s House Committee on Oversight and Reform unless they are Trump appointees. Democrats have effectively taken the “government” out of government reform.

  We can expect Cummings’s focus to be twofold: providing political advantage for the 2020 election cycle, and expanding the committee’s oversight reach deep into the private sector. Such reach would take investigations beyond the proper role of government or the historical authority of the committee. Look for him to use his congressional authority to target and intimidate individual businesses and people who are perceived as harmful to the progressive agenda. We’ll dive deeper into that problem in the next chapter. Suffice it to say that the federal workforce can rest easy with Democrats at the helm. There will be little transparency to check their power as long as the Oversight Committee is focused on the private sector.

  2. Changing Rules for Accounting for Taxes

  Other changes to the rules package portended big changes in the way new taxes and spending would be adopted and accounted for. Unfortunately, we’re used to seeing Congress spend a lot of money no matter who is in the majority. The rules package indicated Democrats would be looking to take taxes and spending to a whole new level, but without having to answer for those votes. Indeed, their subsequent proposals have borne that prediction out.

  Pelosi’s agenda is aggressive enough that even the scant spending restraints still in place were too much for her. Furthermore, she believes her members need to be protected from the blowback that will come when votes touted as “high taxes on the rich” inevitably morph into high taxes for everyone who works for a living. The Green New Deal is being pitched as something to be funded by raising tax rates on top earners. We are now seeing what Pelosi must have always known—top earners can’t generate enough pay for the Green New Deal. Massive tax increases won’t be limited to the wealthy.

  Perhaps the most convincing illusion in the package was a provision called PAYGO—which projected fiscal responsibility but in this case was actually designed to do the opposite. Pelosi ignited a show of controversy within her own caucus by inserting a PAYGO provision (pay-as-you-go) that ostensibly required lawmakers to offset spending increases with cuts elsewhere in the budget. That idea likely pacified the moderate members and their more conservative districts. But the small print of the provision was designed to please the most extreme members of the Democratic caucus. Pelosi’s version of PAYGO was designed to be easily waived either by a majority vote or for emergency spending. Is there any spending (other than for the Wall) that Democrats do not consider to be emergency spending?

  Inserting PAYGO was a great piece of theater, with members like Alexandria Ocasio-Cortez actually voting against the rules package, basically citing objections to paying for things we can’t afford. In reality, the pliable nature of the PAYGO rule was an open secret on Capitol Hill, with Progressive Caucus cochairs Democrats Mark Pocan of Wisconsin and Pramila Jayapal of Washington even issuing, prior to the adoption of the rules, a statement that read: “Chairman [Jim] McGovern and House Leadership have committed to us that PAYGO will not be an impediment to advancing key progressive priorities in the 116th Congress.”

  In other words, as long as the spending is considered a “key progressive priority” it won’t be subject to PAYGO. What will be subject to PAYGO? Spending Democrats don’t like—such as defense and border security. Meanwhile, members in swing districts will be able to go home and tout their commitment to fiscal discipline.

  3. Hiding Debt Ceiling Increases

  PAYGO is just the beginning of the sleight of hand in the House rules package. Pelosi also removed one of the few tools the minority could use to rein in spending, by reinstating the 1980 Gephardt Rule. Except this time the rule was “turbocharged”—as Roll Call described it—to remove what little leverage remained to constrain debt. Designed by Democratic former representative Richard Gephardt of Missouri, the rule shields House members from unpopular debt ceiling votes by conjuring up (what they refer to as “deeming”) a debt ceiling resolution automatically whenever a budget resolution is adopted.

  In other words, members don’t ever have to go on the record voting to raise the debt ceiling. That happens every year if we want to keep the government open. Does that fulfill Pelosi’s commitment to be more transparent? Not at all. It obscures from the public the realities of the skyrocketing debt ceiling.

  The Senate has never used such a rule, so Pelosi neatly shifted the tough on-the-record vote to the Republican Senate and left her members unscathed. Only this time, the rule goes one step further by triggering an independent piece of legislation that does not require Senate agreement. In the past, the Senate could trigger a subsequent on-the-record vote in the House. Now her caucus can drive up the debt as high as they wish without having to go home and justify votes for debt ceiling increases.

  The idea of ending the perpetual fights about the debt ceiling may sound appealing to voters fatigued by past conflicts over spending—especially since Republicans did little to rein in spending on their watch. But eliminating the debt ceiling vote is a very dangerous precedent. It truly was the only speed bump left on the soaring trajectory of the national debt.

  Upon taking the gavel in January 2019, Pelosi stood up and said that “transparency will be the order of the day” on her watch. But one of her first actions as Speaker was to change the rules and shield her members from a difficult vote to increase the debt ceiling. That’s certainly not transparent. She hopes to deemphasize the fact that the growth rate of our debt is screaming toward
all-time records, yet a member can be there for two years and never have to take a vote on the debt.

  4. Removing Barriers to New Taxes and Spending

  To add insult to injury, the new rules remove the supermajority requirement for increasing taxes—further paving the way for the Democrats’ ambitious government growth agenda. In the House, a supermajority is 290 votes, which means Democrats have to be able to garner some minority support to raise taxes. With Pelosi’s rule change, they don’t need any minority votes whatsoever. They need just 218 votes from their 235-vote majority to ratchet up taxes as high as they want. If you consider the cost of their legislative agenda this is a frightening development.

  Senator Sanders’s College for All Act will cost $750 billion in the course of a decade. Representative Jayapal’s Medicare for All bill will run $28 trillion to $32 trillion over a decade, according to the Committee for a Responsible Budget, which cites five other estimates in the same range. Jayapal’s estimate is half that number. Democrats are pushing to spend $1 trillion on infrastructure investment. A national paid family leave entitlement program, like the one implemented recently in Washington, D.C., would cost between $306 billion and $1.9 trillion. The American Action Forum estimates a 4 percent payroll tax at all levels would be needed just to fund the lowest-cost projection.