Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Subscribe here. We hope you had a good Juneteenth holiday weekend. The Senate is back on Monday and the House is back on Tuesday.

THE TOP LINE

Follow the money. The House deemed top line discretionary spending as part of an unrelated bill — avoiding a tough vote — and Appropriations Chair DeLauro communicated her views on top line funding levels to the 12 approps subcommittees chairs, which they will use in marking up their bills. The public won’t know those numbers in full until June 29th, when Appropriators vote to formally adopt those numbers. We are excited for subcommittee markups, the first of which are Leg branch and FSGG this Thursday. Keep an eye on Congressional staff pay levels, the subject of multiple member letters. (We’re tracking them here.) Rep. Clyburn expects floor votes on the bills by the end of July. Will the Senate cut short its August recess given the legislative pile-up?

The House voted to repeal the 2002 Iraq AUMF 2002 by 268-161. Presidents often twist AUMFs into a general license for military force and overseas intervention. Should the Senate agree, this repeal would mark a major first step toward restoring Congress’s authority over war, long undermined by the presidency and the Supreme Court. However, the 2001 AUMF repeal remains, which will be a harder fight; all war authorizing legislation should contain expiration dates and all administration legal interpretations of their scope should be available to Congress.

The Trump insurrection was the focus of three hearings this past week, by House Admin, House Oversight, and Senate Rules. Details below.

Improving the culture of Congress was the focus of a House Modernization Committee hearing. More below.

The Senate needs to ensure its continuity in times of crisis. Demand Progress and the Niskanen Center organized two coalition letters — one to Senate leadership and one to the Senate Rules and Admin Committee — commending Sens. Portman and Durban on S.Res. 201, a bipartisan resolution to amend the Senate Standing Rules to allow absent senators to participate during a national crisis. Under this resolution, senators would have access to the necessary technology to cast votes outside the Senate chamber when the situation calls for it. Building the infrastructure for senators to do their jobs when unforeseen or dangerous circumstances arise is a critical piece of protecting our democracy, as the events of this past year have hopefully made evident.

Senate Judiciary Committee has a nominations hearing scheduled for Wednesday. The committee has not yet publicly announced who is on the schedule, but we are keeping a close eye for Christopher Schroeder, nominated to head the Justice Department’s Office of Legal Counsel. Demand Progress led a bipartisan 20-organization letter calling on Mr. Schroeder to endorse proactive disclosure for OLC opinions, something he supported as a private citizen. This would help address an office that experts say is in “crisis,” effectively promulgating secret law with an undue bias in favor of the presidency. Transparency might help counter the pressure to decide in favor of its political masters. (Demand Progress also submitted appropriations testimony on OLC.)

Continue reading “Forecast for June 21, 2021” →

Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Subscribe here.

THE TOP LINE

Justice Department surveillance. The Justice Department surveilled at least two Members of the House Intelligence Committee, some committee staff, and family members in 2017-8 as part of a  “leaks” investigation. Apple and an unidentified Information Service Provider were directed to provide information to the DOJ and were gagged from telling the targets of the surveillance that the DOJ had demanded their records. This follows on the heels of Justice Department surveillance of the press, which included obtaining email and phone call records and gagging the third party communications providers. Both the surveillance and how it came to light is highly irregular and dangerous to our democracy. More details below.

HSGAC/Senate Rules report on the Jan. 6th attacks. We read and review the 128-page bipartisan document and offer our key takeaways. 3 hearings on that topic are scheduled this week. More details below.

That the Senate must address its continuity in an emergency is the subject of two letters (one to the Senate Rules Committee and one to Senate leadership) by us, the Niskanen Center, and a coalition of 24 organizations and congressional experts.

The FOIA Advisory Committee unanimously adopted a recommendation to extend FOIA-like processes to Legislative branch support offices and agencies.

Repeal of the 2002 AUMF for Iraq will be considered next week by the House of Representatives, which is a first step towards repealing the many AUMFs that give too much power to the Executive branch to decide matters of war and peace. The CPCC has an explainer on the various AUMFs.

THE JUSTICE DEPARTMENT SPYING ON CONGRESS

The Justice Department seized Apple metadata on House Intelligence Committee members, aides, and family members, including a minor. Prosecutors subpoenaed Apple for material from the accounts of at least two lawmakers, Rep. Eric Swalwell of California and Rep. Adam B. Schiff of California. This seizure happened during 2017-2018 while prosecutors hunted for sources behind media reports about contacts between Trump associates and Russia; Trump was known to have held a vendetta against Rep. Schiff, who, ironically, has long been an advocate for relaxing standards for surveillance. (We note that Trump’s vendetta is not necessarily the cause of the inquiry.) Upon becoming Attorney General under the Trump administration, William P. Barr revived leak investigations in 2020 that had lost steam under A.G. Sessions and he rebooted the investigation of Schiff and others. The Justice Department secured a gag order on Apple and at least one Internet Service Provider. This could suggest that these lawmakers may have been unaware until last month that their information was being sought, although it is equally plausible they had been notified or had reason to suspect this at an earlier date. At least one staffer was notified last year by the ISP, and there may be more. It is now being reported a focus of the inquiry was Michael Bahar, the Democratic Staff Director for the House Intelligence Committee; per the NYT the case concerning him was closed and no charges were brought. The circumstance of this investigation and its targets are particularly troubling.

The Justice Department’s Inspector General said it will investigate, but the focus will be on whether the DOJ followed its policies and procedures and will “not substitute the OIG’s judgment for the legal and investigative judgments made in the matters under OIG review.” Surely Congress should investigate; the House has given no indication it would launch an inquiry, though Rep. Schiff has said he has been in touch with the DOJ, which he said has not been forthcoming. Rep. Schiff called on the DOJ to investigate — and applauded it after the IG’s announcement — and Speaker Pelosi issued an unusually worded statement supporting Schiff’s call for an OIG investigation, which starts: “recently, it has become public that….” Surely an inquiry is a job for the House Judiciary Committee or a panel that can looks more broadly into activities of the Intelligence Community. Sens. Schumer and Senate Judiciary Committee Chairman Durbin have called for Barr and Sessions to testify before the Senate and Speaker Pelosi called for them to testify before Congress.

This whole thing is odd. Rep. Schiff and others certainly found out about the investigation in May, potentially sometime last year (which is when at least one staffer received notice), or maybe even earlier, but the first news report was June 10th. There was no press conference or release from the House Intelligence Committee, but instead a unnamed staffer was quoted by both the New York Times and the Washington Post, which gives rise to the question of whether the disclosure was authorized by the committee — if it was, why would these papers not name the staffer? The Post said the staffer “spoke on the condition of anonymity because the matter remains politically sensitive,” but how does that make any sense and why didn’t the Committee speak officially and for attribution? The delay in releasing this news meant that Attorney General Garland could not be questioned on the matter when he testified before the Senate on Wednesday or in the House last month.

This could be explained, at least in part, in that it is a job of the House Intelligence Committee (of which Speaker Pelosi is the longest serving member in history) to address matters of surveillance, especially those politically driven and aimed at Members of Congress and the press. There is a sordid history of the President using the Justice Department to go after his political enemies; the misuse of surveillance authorities was one reason HPSCI was created. Did HPSCI know this was happening? It seems that some members may have been aware. Why didn’t they push to put in place sufficient controls? Why haven’t they pushed for legislation to protect the press and public? As Reps. Schiff and Pelosi are surveillance hawks, perhaps this is politically awkward for them. Is it possible they did not share this information with their colleagues — maybe not even other members of the House Intel Committee?

The Senate did include a provision in the omnibus appropriations bill enacted in December to protect itself from this very circumstance. If you look on page 1953, the Senate Sergeant at Arms Cloud Services provision covers Senate electronic communications stored off-site. If someone (e.g. the DOJ) wants to obtain Senate records held by a third party (like Apple or Google), they must show up with a warrant and the third-party must tell the Senate and cannot be gagged from doing so; and the Senate has the right to intervene in court. Clearly there should be a provision that applies across the entire Legislative branch, including the House and support offices and agencies, but there is not. (There also are repeated legislative efforts to protect information stored by third parties for everyone.)

Is this is the tip of the iceberg? The House Intelligence Committee has long been a stronghold for increasing Executive branch surveillance powers  — and the Intel Community is less than straightforward — so HPSCI must itself be reformed to align its interests with the rest of Congress, the public (see this report and coalition letter), and strengthened to do so effectively. So too should every personal office be eligible to have at least one staffer with a TS/SCI clearance so they can better advise their bosses on matters the Executive branch deems classified (see this report on how Congressional clearances actually work). Congress should consider enacting a reporter shield law, which would protect the press against having their records seized, such as the Free Flow of Information Act. Because the DOJ has a history of secretly reinterpreting laws passed by Congress to the advantage of the Executive branch, final opinions by the Office of Legal Counsel should be proactively disclosed except when not possible and all opinions should be published online in an index. Data brokers should be unable to sell your information to law enforcement as part of an end run around the 4th amendment. The provisions protecting Senate information should be expanded to the Legislative branch and also cover personal devices used by members. And Congress should establish a modern Church committee to investigate whether there have been additional abuses by the intelligence agencies, including the DOJ.

A cautionary note: It must be terrifying to have the powers of the Executive branch aimed at you for the apparent purpose of political retribution. Whether you are an average person with an opinion or the Chairman of a powerful committee, undue scrutiny can have a chilling effect and raise the specter of the weaponization of your private life against you. Our sympathy lies with those every innocent person who finds themselves at the wrong end of a microscope.

When we place all these powers in the hands of Executive branch agencies we create tremendous risks for our democracy. In the hand of an autocrat, they could mean the end of our republic. Absent meaningful, wide-ranging, and adversarial oversight, power will accrete to the presidency and the intelligence community. Surveillance hawks have underestimated the risks over the decades. We have to act now before the political wheel turns again.

Continue reading “Forecast for June 14, 2021” →

Welcome to the First Branch Forecast, our weekly look into the Legislative branch and government transparency. Don’t miss an issue: subscribe here (it’s free).

THE TOP LINE

This week. The Senate is back and the House is holding a committee work week. Attorney General Garland will testify on Wednesday and the approps process is heating up.

Strengthening Congress. We look at the different avenues available to strengthening the Legislative branch, and who must do what. The clock is ticking.

Freedom of the Press. Journalists continue to be squeezed by the Executive branch with several new spying scandals in the last few weeks. We give the run-down.

The Capitol Police will hold a training exercise on Monday involving emergency vehicles and low flying helicopters.

STRENGTHENING CONGRESS

Congressional staff are significantly underpaid, thereby depriving Congress of the talent and policy expertise needed to make good legislative decisions, Business Insider’s Kayla Epstein reports ($). The starting salary range is laughable in the face of skyrocketing DC housing prices, and low pay rapidly pushes many staff out of the Legislative branch and into the private sector that pays two to three times as much for their legislative expertise. Our analysis suggests pay in the Executive branch for the same work can result in a 20%+ bump and that personal and committee offices are in steep decline. Meager congressional salaries most severely hamper efforts to hire and retain staffers of color, who are most likely to lack a financial support structure to subside their government employment.

What to do about it? In April, Rep. Steny Hoyer urged a 20% increase in funding for House salaries and expenses, which would return those funding levels to their 2011 baseline. Demand Progress and the Lincoln Network organized a bipartisan 30 organization letter in May endorsing a 20% increase in funding for personal offices and committees; it follows a February letter, also coordinated by Demand Progress and the Lincoln Network, that included 38 organizations + congressional experts endorsing a 10% or $530.9 million increase in funding for the Legislative branch. (This was before we knew hundreds of millions of dollars would have to be spent on Capitol Police and infrastructure.) Both the Chair and Ranking Members of the Select Committee on the Modernization of Congress have noted significant underfunding of Congressional staff and called for significant increases in resources, and the Committee last Congress detailed many of the deficiencies and endorsed modernizing funding levels. We also understand that Rep. Ocasio-Cortez sent a Dear Colleague requesting members endorse an excellent letter in support of a 21% increase for MRAs, committee funding, and leadership office budgets, with signatories due Thursday at 11 a.m.

How this could work: House Budget Chair Yarmuth says the top line defense and nondefense appropriations numbers likely will mirror the President’s proposal, which is $1,521.0 Billion in discretionary spending, split between defense at $752.9 Billion (+1.6%) and non-defense at $769.6 Billion (+16.5%). We would imagine the Senate will come out in a similar spot and both will “deem” these numbers instead of passing a budget resolution. That leaves Chair DeLauro and Chair Leahy (in consultation with leadership and committee members — although the evenly divided Senate makes this even more complicated) to allocate these funds between the 12 appropriations subcommittees, including the perpetually underfunded Legislative branch appropriations subcommittee.

What to watch: First, will Chairs DeLauro and Leahy bump the approximately ~$5 Billion funding level for the Legislative branch by enough to cover the huge new anticipated costs for the Capitol Police and the Architect as well providing funding to remediate the decimation of staff? If the discretionary spending increase of 16% is spread evenly, we should see another $800m for the Legislative branch, although it needs more than this. Second: will some spending inside the Legislative branch, such as for the Capitol Police and Architect, be treated as defense discretionary spending and thus come from a different pool of funds? Third, will other sources or mechanisms of funding be found for Legislative branch items? And finally, what recommendations will Leg branch approps — chaired by Rep. Ryan and Sen. Reed — make in terms of allotting the money inside each chamber. Remember: the Senate will defer to the House on its internal funding arrangements and the House will defer to the Senate on its internal funding arrangements.

Continue reading “Forecast for June 7, 2021” →