A trip to the legislative graveyard

What we can learn from two bipartisan bills sentenced to death.

AI generation for “legislative graveyard”

Yesterday, Sen. Ron Wyden (D-OR) strode onto the Senate floor and sought unanimous consent to pass the Protect Reporters from Exploitative State Spying Act, better known as the PRESS Act.

As Wyden noted, the measure has bipartisan support; in fact, it was approved unanimously by the Republican-controlled House in January. “Not only that, our bill has been endorsed by folks from across the political spectrum, including Fox News and Tucker Carlson,” Wyden added. “I can’t think of much that’s more bipartisan than that.”

But unanimity in one chamber doesn’t always equal unanimity in the other: after Wyden finished speaking, Sen. Tom Cotton (R-AR) rose to object, denying the PRESS Act the unanimous consent it needed to pass. The measure is likely dead, at least for this year.

On Fridays, I generally highlight bipartisan bills that successfully made their way through Congress. Today, I want to look at two pieces of legislation that won’t be so lucky — bipartisan bills that appear doomed for defeat — and see what lessons we can take away from their demises.

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The PRESS Act was devised as a bipartisan solution to a bipartisan problem: how presidents of both parties have treated the Fourth Estate while in office.

Barack Obama’s Justice Department secretly seized the phone records of several Associated Press reporters and named a Fox News reporter as a “criminal co-conspirator” when he refused to name his source in a leak investigation. The Obama administration also carried on a legal battle initiated under George W. Bush to subpoena a New York Times reporter’s testimony.

Just yesterday, at around the same time Wyden and Cotton were on the Senate floor, the Justice Department’s inspector general — its internal watchdog — released a report concluding that Donald Trump’s DOJ failed to follow the proper procedures when investigating leaks tied to the Trump-Russia probe. The most notable revelations were that the DOJ secretly obtained the phone records of two members of Congress (later identified by CNN as Democratic Reps. Adam Schiff and Eric Swalwell) and 43 congressional staffers (including, ironically, then-GOP staffer Kash Patel, now Trump’s pick for FBI director).

But the IG’s report also noted that the Trump DOJ seized phone records from journalists as part of the same investigation, including reporters from the New York Times, Washington Post, and CNN.

“In our judgment, the Department’s deviation from its own requirements indicates a troubling disparity between, on the one hand, the regard expressed in Department policy for the role of the news media in American democracy and, on the other hand, the Department’s commitment to complying with the limits and requirements that it intended to safeguard that very role,” the inspector general wrote.

After the Trump-era seizures were first revealed in 2021, Attorney General Merrick Garland responded by instituting a major new policy, which barred the DOJ from using subpoenas, warrants, or court orders to seize reporters’ records. (Exceptions were made, including when a subpoena might be necessary to “prevent an imminent or concrete risk of death or serious bodily harm.”)

But that policy could always be lifted by a future Justice Department; the bipartisan PRESS Act aims to codify it into law.

Under the bill, the federal government would be prohibited from issuing subpoenas to obtain a journalist’s communications — either from the journalist themselves or from a tech company. Again, exceptions were made if the information at hand could “prevent, or to identify any perpetrator of, an act of terrorism against the United States” or “prevent a threat of imminent violence, significant bodily harm, or death.”

If you have some time today, it’s worth watching the back-and-forth between Cotton and Wyden on the Senate floor:

In his speech, Wyden said that the bill is necessary to protect freedom of the press “My father was a reporter,” he said. “He taught me that a journalist’s job is to ask tough questions every single day. Reporters can’t ask tough questions about the government if they’re being spied on, and without a strong, independent press our whole democratic system is at risk.”

Cotton responded that the measure is a threat to national security, giving journalists excessively large protections with potentially dangerous consequences. “This legislation would make it all-but impossible to compel a reporter to reveal their sources or compel them to return classified information in their possession,” Cotton said. “Reporters would become the only class of people legally permitted to possess classified information in an unsecure and unmonitored environment. It gives reporters rights no other American possesses — no senator even has these protections.”

Both points are well-argued, and worth spending some time with. Ultimately, because the bill was put up under a unanimous consent request, Cotton’s objection was enough to block it — although Wyden expressed hope that the two could eventually arrive at a compromise. “My door is open,” Wyden said, “and we’ll be talking to your folks to see if we can get this resolved.”

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Another bipartisan bill was ushered to its likely death on Tuesday: the Judicial Understaffing Delays Getting Emergencies Solved Act, or JUDGES Act. (Congress *loves* a backronym.)

I wrote about this bill back in June, when it sailed through the Senate Judiciary Committee. (It was later unanimously approved by the full Senate in August.) At the time, I hailed it as a bipartisan accomplishment on the unlikeliest of issues: court reform.

For the first time in more than two decades, the bill would create new district court judgeships — 63 of them — in response to the worsening backlog of cases at the trial court level. Here’s what I wrote in June:

No, the bill won’t impact the makeup of the Supreme Court — but remember that the vast majority of cases never make it up to SCOTUS. Upwards of 400,000 cases are filed in the federal district courts each year; of those, around 70 (or 0.02%) will be argued before the justices. Less than 10% will even make it to the federal appeals courts, which means the district courts are the last point of access for most litigants. The district courts are where civil and criminal trials are held; critically, they are also where evidentiary records are established.

And yet, despite their importance for the judicial system, federal district courts are really overworked. At the end of last year, there was more than 757,000 cases pending before the district courts — there are 673 federal district judges, so that comes out to more than 1,100 cases per judge, creating a serious backlog.

For most of the country’s history, Congress would regularly increase the number of district court judges to keep up with the caseload — but the number has been flat at 673 since 2003, the longest stretch since America’s founding that no new judgeships have been created. Congress hasn’t passed a comprehensive expansion of the federal court system since 1990, even though, in that time, both the U.S. population and the district court caseload have increased by more than 30% each.

The Sixth Amendment guarantees Americans the right to a speedy trial, but with so many cases and so few judges, that’s become hard to achieve. In 1995, the median interval between when a civil case was filed in a district court and when the trial was completed was 18 months. In 2018, it was 26 months. Last year, it was 35 months. If “justice delayed is justice denied,” then that’s a whole lot of denied justice.

The genius of the bill was that the new judgeships would be created in six separate phases, between now and 2035 — ensuring that no single president would be able to appoint a bunch of new judges at once. At least, it seemed like genius at the time. But now that Democrats know who the first beneficiary of the legislation would be, they’ve turned against the bill.

The House is poised to vote on the measure this week, and Democratic leaders are whipping against it.

“The idea before the election was: We didn’t know who was going to win the election, let’s do a bill now that will go through several administrations,” Rep. Jerry Nadler (D-NY), the top Democrat on the House Judiciary Committee, told Bloomberg. “Now that we know who won, why do I want to give [additional judges] to Trump?” (Democrats claim that leaders in both chambers had agreed to vote on the legislation before the election, but that House Republicans intentionally waited until after Trump’s victory.)

Notably, some Democrats are still for the legislation, which will set up an interesting vote. “We can’t just shut down the courts and slow down justice because we don’t like who the president is,” Rep. Eric Swalwell (D-CA) said. “I don’t want to play politics with judges and local courts. The stakes are too high to do that.”

But, no matter how the House vote shakes out, the JUDGES Act — like the PRESS Act — will end the year without becoming law. In a Tuesday statement, the White House said President Biden would veto the judicial expansion bill if it is presented to him.

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These two bills are striking because they are both being sunk by members of the party that control the chamber they unanimously passed in: the Democratic-led Senate passed the JUDGES Act, which a Democratic president is now set to block; the Republican-led House passed the PRESS Act, which a Republican senator has now prevented from passing.

What can we learn from these two bipartisan successes-turned-failures? A few things, I think:

1. The power of presidents as legislators. Biden’s role in the demise of the JUDGES Act is obvious: assuming it passes the House, it will be his veto stamp that kills it (and, in part, his objection that will lead to a lot fewer House Democrats voting in favor).

In the PRESS Act, it was a president-elect who helped deliver the death knell: “REPUBLICANS MUST KILL THIS BILL!” Trump wrote about the legislation on Truth Social late last month. To be clear, that isn’t the sole reason the bill won’t become law — Cotton was already opposed to the measure — but it’s still another case study in the role presidents (or presidents-elect) can play in rallying their party to oppose an otherwise bipartisan measure.

In fact, Trump’s message offered enough of a boost to Cotton’s position that he quoted the Truth Social post in his floor speech. “For the benefit of those who missed it, he wrote those words in all capital letters and with an exclamation point at the end,” Cotton said. “So please type that into the record as well.”

2. Unanimity in one chamber doesn’t guarantee unanimity in the other. The House and Senate are different, and prize themselves on their differences. Sometimes, it helps a bill if members of one chamber sees that their co-partisans in the other chamber have already endorsed it. Other times, members will buck against the presumption that just because their colleagues voted for something, it means they have to also. (After all, if we always followed that logic, what would be the point of having a bicameral legislature in the first place?)

“The Founding Fathers designed the Senate to be the sober second thought of the House of Representatives or even of transient and fleeting public opinion,” Cotton said. “[Wyden] cited a unanimous vote in the House. Sometimes, that’s an indication of widespread support for a sound and wise policy. But on occasion, it’s an indication that a rash, impetuous, hasty, impulsive decision by the House deserves a sober second thought in the United States Senate.”

3. Timing is everything. Just a few months ago, Democrats were all for the JUDGES Act. “Our federal courts, including those in Georgia, are understaffed and overwhelmed,” Rep. Hank Johnson (D-GA) said when he introduced the House version in September. “Massive backlogs and delays caused by this shortage of federal judges are symptoms of a judicial crisis that can be ended by Congress today.”

Now, Johnson says he will vote against the bill this week; apparently, the “judicial crisis” is no longer a crisis. Bipartisan alliances are fragile; circumstances change, and lawmakers’ minds often change with them. And no circumstance jolts Washington’s ways of thinking more than a presidential election. (I wrote last month about another bipartisan bill that lost Democratic support in the election aftermath.)

Timing is also relevant to the PRESS Act. The bill was brought up by Wyden as a unanimous consent (UC) request — which allows the Senate to fast-track legislation and approve it instantaneously, as long as not a single senator objects. Senate Majority Leader Chuck Schumer (D-NY) praised the measure Tuesday, but now that the UC request failed, he is not expected to put it up for a floor vote, a much more time-consuming process. With his final weeks in the majority, Schumer is focused on approving Biden judges.

Such a floor vote would be fascinating: despite Trump’s opposition, some of his closest allies in the Senate — including Lindsey Graham (R-SC) and Mike Lee (R-UT) — have lined up behind it. It’s hard to say if the bill would reach the 60 votes needed to advance on the floor, but it’s certainly possible. (And an opportunity to pass the legislation might not come again for several years.) But Schumer only has so much time — and he’s choosing to prioritize other objectives, even over a bill that he suggested yesterday was essential to democracy.

4. Be wary of post-hoc rationalizations. As I said above, many of Cotton’s objections to the PRESS Act bring up fair points. But I was struck by the fact that the reasoning he chose to post on social media was one he didn’t mention on the Senate floor: “The Press Act creates a federally protected cabal of legacy media at a time when the people are becoming the journalists on platforms such as X,” Cotton wrote.

You might think after yesterday’s newsletter that I’d be sympathetic to this line of reasoning — but, in fact, the PRESS Act’s language is pretty broad. Under the bill, a “journalist” is defined as “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”

Which, to me, seems like it would include people posting on X.

In fact, in a 2022 speech, Cotton seemed to suggest that the protections were too broad — covering “any individual who calls themselves a ‘journalist,’” he said then, using his fingers to make scare quotes. Now, they’re too narrow, only protecting a “cabal of legacy media”?

The White House message threatening to veto the JUDGES Act also seemed to engage in shaky rationalization to defend its opposition to the bill. “Neither the House nor the Senate fully explored how the work of senior status judges and magistrate judges affects the need for new judgeships,” the White House said.

But magistrate judges can’t do everything a district judge can, and senior status judges are aging jurists on the verge of full retirement. The Judicial Conference — the non-partisan administrative body for the federal judiciary — has made clear that those are not workable solutions to the problem.

If Biden doesn’t want to hand Trump more judges, he should just say that, instead of dancing around for an objection.