This transcript is automatically generated. There are consequently minor errors and the text is not formatted according to our style guide. If you wish to reference or cite the transcript please first check against the audio version. Timestamps are provided for ease of reference.

Intro: You are listening to Parliament Matters, a Hansard Society production, supported by the Joseph Rowntree Charitable Trust. Learn more at hansardsociety.org.uk/pm.

Ruth Fox: Welcome to Parliament Matters, the podcast about the institution at the heart of our democracy, Parliament itself. I'm Ruth Fox.

Mark D'Arcy: And I'm Mark D'Arcy. In this special episode, we talk to someone who's become a veritable oracle of parliamentary procedure. Not at Westminster, but in Washington. A few years ago an anonymous Twitter feed called @Ringwiss began to comment authoritatively on the work of the U.S. Congress. So good was it that people assumed the person behind it was some veteran congressional staffer informed by decades of experience on Capitol Hill.

Ruth Fox: But no, eventually @ringwiss was revealed to be the product of a 20 year old Durham University student, Kacper Surdy, who also happens to be a Hansard Society member.

With [00:01:00] Donald Trump seeking to bypass the normal procedures to make a series of controversial appointments to his cabinet, we thought we'd talk to Kacper about how it might work and what's at stake. But first, we asked him how he got into this unlikely role as an authoritative commentator on the US Congress.

Kacper Surdy: I really got into the 2020 presidential election. Like many people in the UK, I followed that with some closeness. And after that, I just thought to myself, why don't I take a look at Congress as well? So I started watching the organisation of the House of Representatives and the Senate in January of 2021.

And I was just fascinated by everything that was going on. All the little procedural things that they had to get done, processes that they had to go through.

Ruth Fox: Have you ever been to Washington? Or have you done it all remotely down watching it on C SPAN or something?

Kacper Surdy: Exactly. It's amazing what you can learn from so far away.

But hopefully, trip there in the not too distant future. I'd be terrified to [00:02:00] count up how much of my week this takes up, but I do enjoy it. So, in terms of doing it as a hobby, it's absolutely not a problem for me. I love doing it. And, if we get more procedural curiosities for me to look at in the next Congress, it would be great if it does take up more of my time.

To be honest. And, I've just never stopped watching.

Mark D'Arcy: And you've gone to a great deal of trouble to learn the rules as well because there's a completely different set of rules. It's not like just a slight twist on what the UK parliament does. The whole operation runs on completely different lines.

Kacper Surdy: Well, you do notice a lot of similarities because ultimately congressional procedure is based on the foundation of what British parliamentary procedure was in the 18th century.

So you do see the similarities here and there, but I do really enjoy it. So, whenever I come across something I don't understand, I'll look it up, I'll read up on it, and I just go down these rabbit holes all the time. Someone will ask me a question about one thing, and that'll take me down to something [00:03:00] entirely different.

And I just build up a knowledge base in my head of everything that's going on there.

Ruth Fox: You say it's in your head. Do you have like a database where you log all these precedents, or is it literally in your head?

Kacper Surdy: I wish I did have something more formal. I'm sure that would make things much more efficient. But for now it's just in my head.

Ruth Fox: Wow, okay.

Kacper Surdy: It's really a case of knowing where to look rather than memorising all of these things.

Ruth Fox: Interesting. And where do you look? What are the sources? I mean if I, if I'm looking at Westminster I get to look at standing orders, I get to look at Erskine May. I mean one of my criticisms of Parliament, Westminster, is that it's very difficult sometimes to find the precedents because there's no single source where you can go to to get all the precedents and work your way through.

You've sort of got to get them from multiple sources. But I think in America they, they possibly publish something that brings the precedents together, is that right?

Kacper Surdy: The House of Representatives does an excellent job of compiling its precedents. It's done on a continuous [00:04:00] basis. So once every few years, they'll release a new volume of precedents on a particular topic They started a new long series in 2017 to replace the previous one, which they had running for around 40 years or so. They have a house manual which is all the standing rules annotated with relevant precedents They release a new one of those every two years and there's a sort of condensed 1000 page version of all of this, which comes out once every seven years or so.

It really is just a huge amount of information. If you just think that the book dealing with the precedents on relevancy of amendments is longer than Erskine May. That's how good they are, all of this.

Mark D'Arcy: So there's a vast mountain for you to climb there, basically.

Kacper Surdy: Yes, I hope to make a lot of progress very quickly, but I don't think I'll ever get through all of this.

I talked about the House of Representatives there. They do a good job. Senate does not. They haven't released a book of precedents in about [00:05:00] three decades. So it really is just a case of observing how they do things and finding the precedents yourself when it comes to the Senate. It's a much tougher job.

Mark D'Arcy: Well, it looks as if the Trump administration that's now forming when it gets into office will want to set some more precedents by getting its Uh, cabinet members and other key appointments made more or less without the usual scrutiny that would be expected to go on in the Senate. As I understand it, the Senate has to advise and consent on the key appointments to government.

The Secretary of State, the Defense Secretary, other cabinet members. And Donald Trump wants to sidestep that. Can you explain what's going on there?

Kacper Surdy: So, normally the President would appoint the cabinet, not just the cabinet, but also executive officers, federal judges, and even routine military promotions.

There are thousands of these appointments that have to be made. The usual process, more or less, is that president nominates a person, then the relevant committee in the senate gives them a confirmation hearing, where [00:06:00] senators ask them questions, scrutinises their record, the committee votes on the nomination, and then the Senate votes on the confirming the nomination.

That's by a simple majority now. So if you have a majority of the Senate on your side, it's relatively easy now to get a nomination confirmed. So with Trump's more controversial nominations that he's announced, I assume the concern is that they won't be able to get a majority of the Senate on their side.

Now they're looking at making recess appointments instead.

Mark D'Arcy: Can you explain the concept of a recess appointment? As I understand it, this dates back to the days when the fastest way of getting a message from one end of the U. S. to the other was one horseback. So there had to be a procedure for when the Senate wasn't sitting.

Kacper Surdy: Exactly. Um, Congress was essentially a part time legislature. They would be out of session for months at a time. So it was absolutely crucial that the president would have a way of making appointments while the Senate was not sitting. That is obviously less relevant [00:07:00] nowadays. Now Congress is full time legislature and senators are quite protective of these prerogatives.

They haven't taken a recess long enough to enable this for a number of years. They always meet once every three days to prevent the president from making recess appointments, even when the president belongs to the party that's in charge in the Senate. We'll see whether that changes in the next Congress.

Mark D'Arcy: So Congress would have to voluntarily adjourn, basically, to allow these recess appointments to go ahead. Now, the Republicans control both houses of Congress, so in theory that may be possible, but it would involve them letting go of this prerogative to confirm or not confirm.

Kacper Surdy: Yes, and they would just be voting for allowing the President to hypothetically make recess appointments.

Because he has announced many of these nominations in advance, and he said he wants to be able to make recess appointments. Because the Senate, he says, won't be [00:08:00] able to confirm them quickly enough.

Mark D'Arcy: Is the concern then the speed with which the Senate would get around to confirming these guys? Or possibly is it because some of these people are so controversial that the Senate might not confirm them at all?

I mean, what's going on here?

Kacper Surdy: Trump has said that it's because it would be a very slow process. That's not really true. Because of a number of procedural changes

Ruth Fox: Trump saying something that's not true.

Kacper Surdy: Yeah. Because of a number of procedural changes that have been made in the Senate over the past decade or so, it's now easier than ever to confirm nominations.

The true reason for doing this must be because they can't get a majority in the Senate.

Ruth Fox: And is it just a simple majority that they need, or do they need a super majority for these confirmations?

Kacper Surdy: In 2013, the procedure was changed so that it is now just a simple majority.

Ruth Fox: So they're worried about whether they can get even a simple majority for nominations of people like, um, Robert F. Kennedy Jr. and, uh, Matt [00:09:00] Gaetz, the, uh, the Attorney General nominee.

Kacper Surdy: Yes, it is a relatively narrow majority that they will have in the Senate, 53 to 47. So just losing four members would prevent a nomination from being confirmed.

Ruth Fox: And based on your knowledge of who is in the Senate on the Republican side, do you have any sense of, you know, are there four senators who might decline to confirm some of these characters?

Kacper Surdy: I think there definitely could be. I mean, if you think about the fact that there are three republicans who voted to convict trump in a second impeachment trial, yeah, it's definitely not an easy relationship between the White House and the Republican Senate. But I think the other thing to consider is that it's very rare for the senate to outright reject a nomination.

It's much more likely that the nomination will simply never be brought up and the president will have to withdraw them and nominate someone else.

Mark D'Arcy: You could imagine a set of hearings before a particular committee that might get extremely embarrassing for the nominee. [00:10:00] Imagine senators quizzing Robert F. Kennedy on his various theories about vaccines and the nature of COVID and all those kind of things. You could imagine them quizzing Matt Gaetz on, on the various allegations against him of sex with a minor, amongst other things. But it's possible that these hearings could be so damaging to the nominees that in the end, either they decide to duck out or the president decides he can't proceed.

And, and that's fantastically damaging for an incoming administration, isn't it?

Kacper Surdy: Yes, and actually that's the other reason that Trump might want to use recess appointments. Because that would avoid all the scrutiny, background checks that the Senate conducts on nominations that are made by the president.

It's much easier for the president to have unilateral control over who's in his administration.

Ruth Fox: One of the, uh, the issues that's come up in recent days, Kacper, is, is the question of an ethics inquiry report into the nominee for the attorney general post, Matt Gaetz, who was until this week a, uh, a congressman.

And there's all sorts of scurrilous accusations about his behavior over the years, which we'll perhaps not go [00:11:00] into. This is a family podcast. But, um, he's now resigned from Congress, and there's an argument going on, as I understand it, that, as a consequence, that ethics inquiry report can't be published because he's no longer in Congress.

And I think just the read across to Westminster is this whole debate we've had over recent years about the role of Standards and Privileges Committee inquiries into some of our most senior politicians and what happens if they stand down from Parliament, what sanctions are there and so on. What do you think may happen there?

I mean, is that inquiry report likely to come out in Washington or is it just going to get leaked or what may happen?

Kacper Surdy: Well, the Ethics Committee can certainly release that report if it wants to, even though he's no longer a member of Congress. The only thing is that Congress can't punish him. The Democrats are currently trying to force the Ethics Committee to release that report.

There's likely to be a vote on that either in the coming days or after the next [00:12:00] recess. But just the fact that they're trying to prevent this report from coming out says a lot and that will be a factor that senators will consider if they have the opportunity to scrutinize his nomination.

Mark D'Arcy: I'm looking at your Twitter feed, @ringwiss..

I noticed that you were talking a little while ago about some precedents on this. This isn't the first time that there's been a question about publishing an Ethics Committee report.

Kacper Surdy: Yes, so there is precedent where a resolution was offered to force the Ethics Committee to release the report by an outside council on some actions by the then Speaker Newt Gingrich.

That resolution was eventually rejected, but it is a suggestion that this is something that can potentially be done if the votes are there.

Mark D'Arcy: If Congress and in particular the Senate just allows Trump to do this recess appointment thing, doesn't stand in his way, have they given up something fantastically valuable?

Would they be setting a precedent then that other presidents would take forward, and they'd essentially be [00:13:00] abandoning the idea of congressional scrutiny of these big appointments?

Kacper Surdy: Yes, they would. And it really ties into Trump's vision of a stronger executive and a weaker Congress. And so I think it's very important that the House and Senate are proactive in preserving these prerogatives, because if they don't, well, what's the point of even being there?

Mark D'Arcy: Is there a way of resisting this just to refuse to adjourn?

Kacper Surdy: Well, that brings us on to another question, because if the House and Senate disagree on the time of adjournment, then the President has the power to adjourn Congress, and that would be just a terrible position for Congress to be in. If you think back to the 2019 prorogation, it's never something that is unresisted.

And so Congress will have to be very careful in how it acts and how it prevents Trump from making these appointments.

Ruth Fox: One of the things, Kasper, that I pick up from your Twitter feed over the last few years is a frustration I sense you have [00:14:00] with people in Congress. That they don't always use the powers that they have at their disposal, that they complain about things, but they don't necessarily use the standing orders or the precedents to empower themselves to address the things they're complaining about.

I have sometimes similar complaints about Westminster, that MPs don't take sufficient interest in the, in the rules and the the ways in which they could, they could operate. Why don't they take more of an interest?

Kacper Surdy: I think now with the advent of social media, it's much easier to make a speech and then forget about something, than to actually do something to make those things happen. The public find it much more interesting to see a fiery debate rather than their member of congress taking some skewered procedural action that could actually change something and resolve these complaints that they have.

Ruth Fox: Are you ever contacted by congressional staffers, for example, direct for advice?

I mean, for quite a long time your identity was not known and people [00:15:00] assumed that you were based in America. Some thought you must be a senior congressional staffer. Some people wondered whether you'd worked in one of the senior offices. And, uh, there was a fair amount of astonishment, uh, on Capitol Hill when it was revealed that you were, in fact, a student at Durham University, a Hansard Society member, no less.

Mark D'Arcy: All the best people are.

Ruth Fox: And, um, I just wondered, now they know who you are, do they get in contact to get your advice on procedures, or how has life changed since you were revealed?

Mark D'Arcy: Unmasked, even.

Ruth Fox: Unmasked.

Kacper Surdy: Yes, they do.

Ruth Fox: They do. I

Kacper Surdy: Better not say more.

Ruth Fox: Oh, right, okay. .

Mark D'Arcy: Well that's very interesting of itself, but it's, it's just quite a thing to be an oracle on the procedure of a legislator.

To the extent that, that you became online, what do you want to do with it next? Is this going to just remain a hobby? Are you planning to, I know, go into public affairs in Washington or something?

Kacper Surdy: Quite some time I thought that this was just going to be a hobby, but as I've become [00:16:00] more and more interested in this. I do think I want to do something more with it, something more productive, something closer to Congress or Parliament, maybe. I don't know what form that will take, might be academic, might be professional, but I definitely do want to take this further in the future.

Mark D'Arcy: Kacper Surdy, thanks very much indeed for joining Ruth and me on the pod today.

Fascinating discussion.

Kacper Surdy: Thank you very much.

Ruth Fox: Thanks Kacper. Well, no sooner had we finished recording that discussion with Kacper than we got news from Washington that Matt Gaetz, Donald Trump's nominee for Attorney General, has in fact withdrawn from the process. But what he had to say was interesting, so we thought we'd leave it in there for you to have a listen to.

Mark D'Arcy: And Ruth, wasn't it fascinating to talk to Kacper. One of the things about him is how he's managed to kind of internalise a vast amount of data, a mountain of precedents, and understand the internal logic of the rulebook for both the Senate and the House of Representatives. They're of course [00:17:00] different rulebooks.

Ruth Fox: Yeah, I mean, the clerks in Westminster talk about having a sort of a proceduralist mind, and I think he's clearly got that. I mean, as he says, he's got the advantage, if you know where to look, and there's clearly good sources for all this material on the Congress, you know where to look and you know how to think about it in a sort of logical way, you can unlock some of this.

But the astonishing thing for me is I'd assumed he'd have a database where he sort of fed all this intelligence in and was able to draw on it. Because one of the things that I think has astonished a lot of people in the United States who work in and around Congress is how rapidly he can turn around responses to even the most, you know, arcane questions about procedure.

I'd assumed he'd got a database that he draws on, but apparently not.

Mark D'Arcy: Yeah, and it was very interesting to hear about the powers of the U. S. Senate, particularly to confirm appointments not just of cabinet members and really top officials, but almost every major or even quite small federal appointment, army officers.

There was [00:18:00] a story running for quite a long time in the last congressional term of one senator who was blocking army promotions because he was unhappy with the way the army was providing medical treatment, medical care for abortion. Now, that seems to have gone away, but what you've got here is an incredibly powerful legislature, and then you turn around and you look at the way Westminster operates, and there is, I think, one official in the whole British quangocracy whose appointment can be blocked by a parliamentary committee, and that's the head of the Office for Budget Responsibility, whose appointment can be blocked by the Treasury Select Committee. And that's almost un, well, is unique. You begin to realise how underpowered parliamentary committees are. I mean, there's certainly at least one instance I can think of, of an appointment being advised against by a relevant select committee.

It was the Education Committee back when Labour were previously in government, before 2010 sometime, the committee recommended against someone's appointment and the then Education Secretary Ed Balls went ahead with it anyway and, uh, a lot of backs [00:19:00] were put up by that, but it underlines how little clout the Commons' committees have compared to their cousins over the water.

Ruth Fox: Yeah, I mean, if you talk to select committee chairs over the years, they often look to the United States wistfully, and thinking, oh, I'd quite like some of those powers. But of course, it comes, you know, the other side of the coin. I mean, the reputation of Congress is, frankly, worse than Parliament. You've got years and years of congressional gridlock over things like budgets, got all these allegations about pork barrel politics, and there are organisations not dissimilar to the Hansard Society in Washington DC that are campaigning for reforms to make Congress more effective, the sense that it's an institution that's so riven by partisanship that it's just not even remotely effective in doing its job.

And it'll be interesting to see, you wouldn't bet against Donald Trump, frankly, um, after the last few years, but it will be interesting to see whether a line in the sand [00:20:00] is drawn as far as the Senate's concerned, that if they give the power away in relation to advise and consent, it's so fundamental to their role constitutionally, if they willingly give that up, you might not get it back.

Mark D'Arcy: Certainly a Rubicon that could be crossed if this is allowed and the separation of powers and the delicate balance of the US Constitution really rests on the idea that there are all sorts of checks and balances around a president. They've created something that resembles an elective British monarch in the 17th century and then hedged them about with all sorts of controls to prevent them from running amok in the way that they thought George III had.

And what they'll get if they take those powers away and let Donald Trump do what he wants without vetting his nominees for cabinet post through the Senate in the normal way, for example, well, who knows where it'll end?

Ruth Fox: Yeah, and the irony is that it's a Brit that may well be schooling them in the rules necessary to hang on to that power and resist the monarchical ascendancy of [00:21:00] Mr Trump.

With that, it was fascinating, and hopefully we might get Kacper in for a future podcast to learn more, as things develop over the, the other side of the Atlantic and, uh, and see how things go. But that was, that was fascinating, Mark.

Mark D'Arcy: Yeah, but it was a delight to get him to explain at least a bit to us humble Brits how the system works over there.

And with that, I think goodbye.

Ruth Fox: Thanks, Mark. We'll see you soon.

Well, that's all from us for this week's episode of Parliament Matters. Please hit the follow or subscribe button in your podcast app to get the next episode as soon as it lands.

Mark D'Arcy: And help us to make the podcast better by leaving a rating or review on Apple or Spotify and sharing your feedback. Our producer tells us it's important for the algorithm to give the show a boost.

Ruth Fox: Mark, tell us more about the algorithm.

Mark D'Arcy: What do I know about algorithms? You know, I write my scripts with a quill pen on vellum and then send it in by carrier pigeon.

Ruth Fox: Well, before we go, a quick reminder also that you can send us your questions on all things Parliament by visiting [00:22:00] hansardsociety.org.uk/pmuq

Mark D'Arcy: We'll be discussing them in future episodes, including our special Urgent Questions editions dedicated to what you want to know about Parliament.

Ruth Fox: And you can find us across social media at Hansard Society to get more content related to the show and the wider work of the Hansard Society.

Intro: Parliament Matters Hansard Society and supported by the Joseph Rowntree Charitable Trust. For more information visit hansardsociety.org.uk/pm or find us on social media at Hansard Society.