The Top Line
This week we’re covering everything from AI innovations to shifts in congressional power.
AI tools like NotebookLLM are making it easy to turn lengthy reports into podcasts, streamlining how we consume complex information. We illustrate some ways it could change the Congressional information environment.
There’s a lot happening in Congress post-Chevron, and we cover how the Legislative branch can regain its footing after the SCOTUS decision, especially as we have hit a point of cultural inflection on Capitol Hill.
We also explore new oversight tools, such as OpenOMB, which sheds light on how federal agencies spend taxpayer dollars. Plus, some notable retirements from government, and there’s progress on efforts to modernize Congress.
Using AI to absorb information
This past week I’ve been playing with NotebookLLM. One of its features is the ability to turn a document into a podcast. How well does it work? Pretty darn well.
For example, I transformed this 35-page CRS report on exceptions to the First Amendment into this 20 minute podcast (posted on SoundCloud). It’s a good rendering of the content in an engaging format.
I transformed this week’s First Branch Forecast into this 13 minute podcast. It only took about 5-10 minutes to generate the podcast. Is it better than the written product? You be the judge. As you know, I already turn CRS reports into ePub formats so you can read them on your Kindle. Imagine if you could listen to an engaging version of the report while on a run?
Here’s a new 50-page GAO report on preventing a dirty bomb that became this 16-minute podcast. You can even prime (sorry) the podcast to focus on a particular question.
NotebookLLM also will auto-generate a FAQ, a study guide, a briefing doc (it’s okay), and a table of contents – which could be very helpful for the lengthy NDAA that’s set to come out in December. You can ask it questions against the doc, like you can with other AI tools.
I’m fascinated by the ability that I could, for example, transform the 20,000 reports on EveryCRSReport.com into another engaging format and do so at scale. Or upload a few documents and have the AI generate a synthesis that you can query.
Obviously, all the issues that apply to AI regarding accuracy remain. But this is a significant use case in addition to the use cases I identified last year: drafting tweets, generating 1-pagers or press releases or Dear Colleagues, categorizing earmarks, naming bills, writing code, etc.
The Post-Chevron World
The American Prospect has an excellent article by David Dayen on what Congress must do to “get its groove back” in the aftermath of the Supreme Court’s decision to blow up Chevron deference in its recent opinion in Loper Bright. Dayen nails the key point: Loper Bright is “really an attack on Congress.”
“In speaking to over 20 lawmakers, current and former staffers, and experts in congressional procedure, I learned that Congress can legislate with clarity, purpose, and sufficient resolve to counteract judicial policymaking. It will require boosts in staff capacity, new processes to affirm legislative intent, stronger roles for lawmakers outside of leadership, and maybe even new agencies to assist Congress. And with almost no notice over the past few years, both parties have actually begun to work on this. Loper Bright could serve as a precipitating event to accelerate this modernization of Congress.”
“In the end, the outcome will depend on whether Congress respects itself. Thousands of bills are written every session, and hundreds pass into law. Countless hours are spent in deliberation and debate. Will elected representatives and their staffers summon the courage to defend their work, and make sure what they do for a living actually matters? Or will all that effort go to waste, tossed into the judicial meat grinder and transformed beyond recognition?”
There always have been people inside Congress working to strengthen the institution. Much emphasis has been given to the House Modernization Committee and its subcommittee successor for their remarkable efforts over the last half-decade, but my experience over the last fifteen years has shown that appropriators, the rules committee, House Admin, Senate Rules, leadership, committee chairs, individual members, and non-political staff at times have worked to move these issues forward in favorable and unfavorable environments.
Culture drives transformation. Institutions take time to change. We’re at an inflection point.
The transcript from House Admin’s hearing Congress in a Post-Chevron World is now available, including questions for the record, which start on page 980. There are a number of interesting interchanges worth reading, but let me point out two.
The Foundation for American Innovation’s Satya Thallam was asked what “would be the most important elements of a successful legislative branch version of the Office of Information and Regulatory Affairs?” His answer:
“It makes sense for Congress to establish its own means of analyzing proposed and final rules, not with a de novo impact analysis, but with a clear rubric… For example, a ‘Congressional OIRA,’ in reviewing proposed and final rules[,] could determine the degree to which the agency: considered multiple alternatives; adequately responded to salient public comments; established logical outgrowth from proposed to final stages; and employed timely and relevant data…. Congress would have a means of ‘grading’ the rulemakings in a clear and objective way…”
Law professor Josh Chafetz was asked about whether you could codify Chevron deference to withstand judicial scrutiny by amending the Administrative Procedure Act. Chafetz’s answer was, in essence, that (1) the Supreme Court likely views Chevron deference as incompatible with Article III of the Constitution so fixing the statute would not resolve the problem, and (2) efforts to cabin the Supreme Court from being able to consider such a case through court stripping would likely result in an opinion striking down such language and limiting Congress’s power under the Exceptions Clause.
This is a realistic view of how the Court behaves so long as its composition remains the same. I appreciated his critical view of those who argue for sunset provisions and also his explanation of how agencies would “trim their sails” because of their fear of the judiciary’s willingness to “dispense with regulations that it dislikes.”
He did not address, although I had hoped he would be asked, about whether it is possible to draft legislation relying on canons of interpretation that would avoid being knocked out because of judicial preference. Some argue this is possible, although my experience with canons of interpretation is that there’s always one available that fits a judge’s personal views.
He testified: “Loper Bright ignores research demonstrating that Chevron was the interpretive tool most familiar to congressional drafters, far more so than canons relied upon by the Supreme Court with some regularity…. Just because these drafting techniques [i.e. writing deference into laws or using language vesting discretion in agencies] would be consistent with the facial reasoning of Loper Bright does not mean that the Court would not find other ways to skirt them or strike them down. The general anti-administrative posture of the current Court should make us skeptical that it will allow Congress to assert itself in other ways.”
What would it take to get SCOTUS back on track? One approach could be a new bill introduced by Sen. Wyden would expand “the Supreme Court to 15 justices over three presidential terms, prevent political inaction from bottling up nominations to the Supreme Court, and restore appropriate deference to the legislative branch by requiring a supermajority to overturn acts of Congress.”
Follow the money
Apportionments – wake up, this is important – are how the White House controls agency spending. OMB decides at what pace federal agencies can spend appropriated funds and at times add little footnotes to providing “direction,” i.e., assert administration control.
Our friends at Protect Democracy just launched OpenOMB.org which allows you to more easily track apportionments. The website draws from data that Congress required OMB publish online, published by the government in such a way that coincidentally (?!!) makes it hard to find and analyze the data.
Anyhoo, Protect Democracy explains why they created the website in this blogpost that reviews how presidents abused apportionments and how this new tool will empower oversight.
That oversight won’t be perfect. We’re hearing that since Congress required OMB to disclose apportionments, OMB has reduced the number of footnotes they’re using and are instead communicating directions to agencies in ways that avoid public reporting and are aimed at evading FOIA as well. The FAQ from openomb.org does a good job of explaining the minutiae of apportionments, including the importance of footnotes.
But there’s room for oversight here even beyond the footnotes by following the money itself. For example, take a look at OMB’s practice of reserving funds from no-year and multi-year appropriations for future fiscal years. (Watch this explainer.)
Kudos to Protect Democracy for building the wonkiest site of 2024.
Biden signs Congressional Budget Office Data Sharing Act
Congratulations, nerds. President Biden signed the Congressional Budget Office Data Sharing Act, which the Budget Committee explains is “the first-ever House Budget Committee bill to become law with unanimous support from Congress.” The law (yes, friends, the LAW) expands “CBO’s authority to request and receive data from executive branch agencies while safeguarding sensitive legislative information.”
In signing the law, Biden issued a signing statement. If you’re not familiar with the concept, signing statements are extra-legal statements made by the White House after the enactment of legislation. While sometimes these statements are merely ceremonial, other times the White House will make obnoxious statements that some of the law is unconstitutional and impinges on the president’s authority, and thus will not be implemented/enforced. At times, the president will require additional procedures or impose limitations beyond the bounds of the law. (If the president felt this were true, the way to make it known is through negotiations on the bill or a veto after passage).
The boffins at the American Bar Association have said these statements “undermine the rule of law and our constitutional system of separation of powers.” Did Biden say anything beyond the ceremonial?
“I understand that this amendment to the statutory framework governing the provision of information to the CBO does not alter the established and constitutionally grounded accommodation process between the Congress and the Executive Branch, whereby the Executive Branch seeks to comply with laws that require the disclosure of information to agents of the Congress in a manner that both satisfies congressional needs and is also consistent with the need to safeguard classified, potentially privileged, and other sensitive information implicating Executive Branch interests. Moreover, this amendment does not alter agencies’ ability to negotiate written agreements with the CBO governing disclosures of information as part of that accommodation process.”
In other words, this law will be helpful to CBO, but the Executive branch reserves the self-proclaimed right to engage in shenanigans.
If you asked my opinion, Congress.gov should automatically link to presidential signing statements not because they are law, but because they are useful for Congress to be aware of. When we built BillMap, one of the things we included was a scraper for the signing statements and publication of them on the website. It’s my understanding, however, that current practice is to avoid linking to non Legislative branch-controlled websites.
The bottom line is that enactment of this law will strengthen CBO’s ability to get information from the Executive branch in a timely and comprehensive manner so that it can do its job of preparing budget estimates. Congratulations.
The Republican revolution
Newt Gingrich led the Republican revolution in 1995, and NOTUS looked at the Republican rebellion on the occasion of the October 3rd anniversary of when Republicans ousted Speaker McCarthy and the party’s factions openly fought for control. NOTUS quotes revolutionaries like Rep. Good who argued the main benefit “was striking fear into the hearts of GOP leaders.”
Some hardline revolutionaries had thought Democrats would save McCarthy. The result could have been to drive reactionaries like Rep. Fitzpatrick to create “some kind of coalition government. We would have just come up with a former member.” The ascent of Mike Johnson possibly stayed their hand, although it suggests a potential tactical error in the Democratic approach to that contest that emphasized party unity at the expense of a say in chamber control.
The revolution may not be over. Rep. Jim Jordan, the powerful Freedom Caucus founder, Chair of the Judiciary committee, and most hardline of the potential Speaker candidates who sought to succeed McCarthy, has been quietly laying the groundwork to win over the reactionaries, according to the Washington Post. “He is steering clear of the intraparty fights he once seemed to relish, selling himself as a potential bridge between House Republicans and the MAGA front line, and raising — and sharing — a lot more money with his colleagues.” Should he win, the revolutionaries would obtain full control over setting the agenda and the mechanisms of the party.
Is his charm campaign succeeding? “Several lawmakers who were skeptical of [Jordan] last year have become more open-minded about the idea because Jordan could play the role of messaging bulldog in the minority.”
What is driving Republicans to be increasingly hardline? Certainly a key element is a combination of Trumpism and a willingness to punish any dissent. But as ProPublica explains, at least in Texas, the extreme wealth of a few Christian Nationalists who have invested in building Texas’s most powerful political machine “has pushed the statehouse so far to the right that consultants like to joke that Karl Rove couldn’t win a local race these days.”
That money isn’t just staying in Texas, with millions poured into “dark money groups,” “conservative-media juggernauts,” and “federal races.” Texas may have become the laboratory for theocracy, with recapturing the White House the apotheosis of that movement. Whether or not that’s true, one big question is whether the reactionary Republicans will be willing to embrace possible speakers, like Jordan or Scalise, who would use their control of the agenda to move the party further away from their preferred positions.
If so, would the reactionaries be willing to play the same game as the revolutionaries and demand concessions over control over the chamber or party rules? Would they exit before they go extinct? Would they find a third way? The book Why Cities Lose provides useful case studies from the US and around the globe of what factions do when their party’s base moves away from them.
Making salary sense
Politico’s Katherine Tully-McManus provided a sneak peak at SalarySense, “a new tool helping chiefs of staff and staff directors across the Hill figure out how much to pay their teams, drawing on a trove of House salary data.” Per her reporting, managers have access to real-time, anonymized salary data for personal offices and committees, sortable by title, party, state delegation, etc.
Capitol Police Intel Bureau
POLITICO has a short interview with U.S. Capitol Police Chief Thomas Manager in which he touts the creation of an intelligence bureau. The interview is notable for three reasons.
First, the Capitol Police historically have been dismissive to the press and hostile towards any forms of public engagement or accountability. Post January 6th, the USCP was strongly pushed to hold press conferences, make use of public communications tools like Twitter, and generally be more responsive. Since then, they have made real efforts in that direction. It is good that Chief Manger sat down with POLITICO.
Second, the POLITICO video and accompanying text repeats USCP talking points on the threats against members of Congress. Unfortunately, it looks more like a USCP video press release than a journalistic effort. Among other things, it fails to quantify the information. Have the number of threats increased in part because they started measuring threats via social media? How many of the threats are determined to be serious? How many resulted in an investigation? A prosecution? A conviction? It would be wise to delve behind the talking points to understand the nature of the threats.
Third, the establishment of a new intelligence bureau is good news, especially in the wake of the fragmented intelligence gathering that preceded it. But what exactly is the bureau doing? Are they fully embedded in the intelligence fusion centers? Do their staff have the necessary clearances to do their job? Are they synthesizing intelligence only or gathering it as well? How are they protecting the open nature of Capitol Hill while performing their jobs?
Please don’t mistake what I’m saying. I’m on the record for how Congress should improve the management and oversight of the Capitol Police. I’ve been focused on the USCP for quite a while. It is essential that Congress be safe and open. Making the USCP more transparent only works as an accountability mechanism when civil society, the press, and congressional oversight offices are willing to ask the tough questions.
Retirements
Rep. Kilmer likes Star Wars, even the prequels, and other heterodox thoughts from the retiring dean of House modernization efforts. Alas, I think Corey Booker has the better of the space-faring franchises. LLAP
Robert Sunshine has retired after 46 years at CBO.
Bill Grennon, who worked at GPO for 41 years, following in the footsteps of his parents and grandfather, has retired.
Executive branch and around the world
How the House of Commons selects its committee chairs is bizarre from an American perspective but also instructive. For example, “the Public Accounts Committee and the Committee on Standards are to be chaired by an opposition MP.” The Hansard Society looks at the increase in competitive elections for chairs and how you evaluate success.
The new Open Government Federal Advisory Committee announced dates and agencies for its administrative and inaugural meetings: October 18 and 23. Joint virtually or in person. More.
A report on legislation to modernize the House Office of Legislative Counsel was released this past week. The legislation would allow House Legislative Counsel to designate more than one attorney to serve as Deputy Legislative Counsel and to allow the appointment of a deputy in the case of vacancy. I’m speculating, but the non-controversial Legislation is already on the House’s calendar and I wouldn’t be surprised if it didn’t move later this year, whether by itself or attached to omnibus legislation.
The National Archives released its open government plan for FY 2025-2027. Public feedback can be sent to opengov@nara.gov. The National Coalition on History recently released this report calling for more funding for NARA to support declassification and fulfilling FOIA and Mandatory Declassification Review requests. For more on NARA, don’t miss the recent 60 Minutes and Washington Post articles on the agency.
Odds and Ends
The Legal Landscape of Protected Whistleblowing is a new, online class from the Office of the Whistleblower Ombuds that provides an in-depth look at the laws and legal processes whistleblowers rely on when they share vital information with Congress and other key audiences. House staff only.
The Freedom of Information Act, at least the most consequential amendments to that law, are turning 50, and civil society is throwing a symposium to celebrate. Join the American Society of Access Professionals (ASAP) on November 1 from 9-4pm at George Washington University to hear about the past, present, and future for one of America’s key transparency laws. RSVP here and see the agenda here.
The Office of Congressional Workplace Rights Board denied Stephanie Richner’s appeal of a decision that favored the Library of Congress. Richner claimed the Library had discriminated against her by refusing to reasonably accommodate her disability and by firing her, but the Board did not find a sufficient basis to overturn a hearing officer’s determination to the contrary.
New IG Reports: AOC IG audit of the Capitol’s construction division – generated three recommendations. GPO IG on Plant Operations Metrics Inspection – generated five recommendations. AOC IG on management opportunities and performance challenges.
New GAO Restricted reports: “Ukraine Funding: DOD Needs to Improve Its Reporting, Guidance, and Evaluation Efforts” and “Export Controls: State Should Develop Procedures and Training for Reviewing Defense Services License Applications”
GPO biennial survey of agencies reveals high marks for the Government Publishing Office.