First Branch Forecast: Democratic slippage, court accountability, and the mother of parliaments 11/29/2021

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Welcome‌ ‌to‌ ‌the‌ ‌First‌ ‌Branch‌ ‌Forecast,‌ ‌your‌ ‌regular‌ ‌look‌ ‌into‌ ‌the‌ ‌Legislative‌ ‌branch‌ ‌and‌ government ‌transparency.‌ ‌Tell ‌your‌ ‌friends‌ ‌to‌ subscribe.

THE TOP LINE

Welcome back. The Senate is in today; the House is in on Tuesday, with the Courthouse Ethics and Transparency Act on suspension and further appropriations bills possible. We’re curious about House Oversight’s Wednesday hearing into the Future of Federal Work and Thursday’s Senate Judiciary markup that includes a judicial security bill with some concerning language and a much less fraught bill to modernize PACER.

Omicron, which you may know as a planet from Futurama but is now the COVID variant du jour, is the latest (awful) reminder of the necessity of the House and Senate being capable of working fully remotely. Yes, we’ve been making this point for a while. While we’ve seen some progress, proxy voting on the House floor is an imperfect solution and the Senate still has not grappled with the shifts in power that could occur if a single member becomes ill and cannot attend in person. We continue to track all this on ContinuityofCongress.org. On that final point, isn’t it time for the House and Senate to impose both mask and vaccination requirements for persons who work in-person?

ICYMI, there was big news last week on providing clearances for Senate staff. The House Diversity Office released two important new reports on House compensation & benefits and demographics and diversityRep. Gosar was censured and removed from his committees for tweeting a video he made depicting his murder of a House colleague, which he promptly RT’d after his censure. And serial fabulist Rep. Boebert is bucking for attention after she made up a story that suggested a House colleague is a suicide bomber because she is a Muslim.

We’re not sure what to do. There’s a constant stream of unacceptable and bizarre behavior from certain members of Congress that is both an effort to move the Overton Window of what’s normal and an effort to fundraise. We don’t want to ignore it, and thus normalize it, nor do we want to draw attention out of fear of the Streisand Effect. For example, what do you do with Rep. Greene’s introduction of a resolution to give Kyle Rittenhouse a Congressional Gold Medal? Denver’s Channel 9 News has it right.

Democratic slippage. For the first time, the US was listed as a “backsliding democracy” in the Institute for Democracy and Electoral Assistance’s 2020 global democracy report, described as falling victim to authoritarian tendencies. “A historic turning point came in 2020–2021 when former President Donald Trump questioned the legitimacy of the 2020 election results in the United States. Baseless allegations of electoral fraud and related disinformation undermined fundamental trust in the electoral process, which culminated in the storming of the US Capitol building in January 2021.”

Continue reading “First Branch Forecast: Democratic slippage, court accountability, and the mother of parliaments 11/29/2021”

First Branch Forecast: Clearances, Compensation, and Censure 11/22/2021

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Welcome‌ ‌to‌ the Thanksgiving-week First‌ ‌Branch‌ ‌Forecast,‌ ‌a quick — abridged, even — ‌look‌ at ‌the‌ ‌Legislative‌ ‌branch‌ ‌and‌ government ‌transparency.‌ ‌Tell ‌your‌ ‌friends‌ ‌to‌ subscribe.

THE TOP (AND ONLY) LINE

OOO. We know most people are out, so here’s just the highlights — we’ll have a full report next week.

Clearances. Each senator can now designate one personal office aide as eligible to apply for a TS/SCI clearance and is no longer restricted to a mere TS level, a practice that had allowed the Executive branch to stonewall the nearly 2/3s of senators that did not have staffers cleared for highly classified matters. The modernization effort was led by Sen. Chris Murphy. The House, however, has not changed its policies that prevent staff from providing members the individualized support they need on highly classified matters even though there have been multiple letters on the topic and leadership is not similarly constrained. (Even members of HPSCI are not afforded personal staff with a TS/SCI clearance, unlike their SSCI counterparts who for years have been provided additional staffers that can obtain TS/SCI clearances.)

Staff pay, retention, and diversity. The House Office of Diversity and Inclusion released its 2021 study on staff pay and diversity. It’s a BFD — something we’ve wanted for years — and you should read Roll Call’s early reporting, which focuses on the significant pay decreases in personal offices. (If you want more, we’ve got an in-depth report on this topic.) It’s our understanding the Senate completed its staff pay study earlier this year, but we haven’t seen it. If you have a copy, email us at capacity@demandprogress.org.

Censure. Rep. Gosar was censured by the House and removed from his committees for tweeting a video showing him murdering a colleague; some colleagues defended him as apologizing (he didn’t) and not having bad intentions (really?). Astonishingly, party leadership did not punish him, only two fellow partisans supported his censure, and it was suggested that unnamed Democratic members will be subject to the same punishment for unnamed offenses that have not happened yet. One is reminded of Alice in Wonderland: “Sentence first—verdict afterwards.” After the censure, Rep. Gosar retweeted the video.

House Sergeant at Arms. The Defense Department IG says the new House Sergeant at Arms, when he was the head of the DC National Guard, did not act at 4:35 when authorized to deploy on Jan. 6th and had to be told a second time, raising concerns about the SAA’s accounting of events. House SAA William Walker, who also serves as a member of the U.S. Capitol Police Board, has called the report false and asked it be retracted.

The Capitol Police are not getting real scrutiny from the Jan 6th commission according to an anonymous whistleblower. We have ideas for fixes.

CLASSIFIEDS

TechCongress is accepting applications for its 2022 Congressional Innovation Scholars program, an “early-career pipeline” for technologists interested in shaping tech policy. Apply here.

ModCom. The House Select Committee on the Modernization of Congress is hiring a clerk. Apply here.

Applications for College to Congress’ funded Capitol internship program for low-income college students open December 1st. More info here.

ODDS AND ENDS

You might be wondering why we didn’t mention the House’s passage of Build Back Better, Rep. McCarthy’s magic minute, the NDAA, the debt ceiling, and other assorted matters. What else could we say that hasn’t already been said at length? Have a great Thanksgiving. And go get your COVID booster.

Senate Personal Offices Now Allowed a Staffer With TS/SCI Clearance

Every senator will now be able to designate one aide as eligible to apply for a TS/SCI clearance according to an announcement made by Sen. Schumer and reported by Politico. Clearances give staffers the ability to review matters deemed classified by the Executive branch. Senator Murphy is a long-time champion of this change, which had broad, bipartisan support.

Continue reading “Senate Personal Offices Now Allowed a Staffer With TS/SCI Clearance”

First Branch Forecast: Unions, CBO, & Leahy 11/15/2021

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Welcome‌ ‌to‌ ‌the‌ ‌First‌ ‌Branch‌ ‌Forecast,‌ ‌your‌ ‌regular‌ ‌look‌ ‌into‌ ‌the‌ ‌Legislative‌ ‌branch‌ ‌and‌ government ‌transparency.‌ ‌Tell ‌your‌ ‌friends‌ ‌to‌ subscribe.

THE TOP LINE

The House and Senate are back this week, as I’m sure you noticed.

— Senate. You’ve probably seen all the commentary on Senator Schumer’s letter on the Senate schedule for the next month or two. Of immediate interest is the Senate considering the NDAA this week — we can expect a lot of legislation will ride along — and everyone seems to agree that an appropriations Continuing Resolution is necessary, although we don’t yet know for how long. BBB and voting rights also made his list of items to do, but they entirely depend on Sens. Manchin and Sinema (even with notional bipartisan support for a VRA update).

— House. We didn’t see anything unexpected on the House’s floor schedule, although BBB is apparently (tentatively?) scheduled for a vote. I don’t know when the censure resolution for Rep. Gosar will be considered, but he has earned it. In the olden days, wouldn’t his party kick him off his committees?

Personal and committee staff could unionize under the Congressional Accountability Act, as well as be afforded other labor protections, should the House or Senate adopt a one-chamber resolution implementing regulations promulgated by the Office of Congressional Workplace Rights that date back to the mid-90s, according to testimony from OCWR representatives before the House Administration Committee last week. Congressional staff work under incredibly difficult circumstances; there’s a long history of unevenly applying federal workplace laws to the Legislative branch, including labor laws, and OCWR’s testimony sharpens the political question of whether members of the House (or Senate) will push a resolution to put labor protections into effect. More below.

Contempt of Congress. We are watching the gears of the Justice Department slowly turn to address Steve Bannon’s refusal to comply with a House subpoena. Enforcement of a congressional contempt citation should not depend on the vagaries of the Justice Department. We agree with calls to modernize the statutory contempt process to include an independent counsel and an expedited review process — such provisions likely would be opposed by elements of the Executive branch, which is why they should be added to legislation the White House would be unwilling to veto (such as White House funding). We are also not fans of Executive privilege generally, and successful efforts by the White House to expand the ambit of the privilege (through DOJ’s OLC opinions) which is a matter that warrants significant attention. Just for fun: Here’s a survey of committee rules on subpoenas.

Senator Leahy will retire at the end of this Congress. He is a tremendous champion of transparency and open government and has pushed these issues from his positions as chair of the Appropriations committee, the Judiciary committee, and elsewhere. He waged a decades-long fight to have CRS reports made publicly available (first co-sponsoring legislation on that point with Sen. McCain in 1998) and has shepherded countless FOIA reforms into law.

Continue reading “First Branch Forecast: Unions, CBO, & Leahy 11/15/2021”

First Branch Forecast: Top lines, bottom lines, effective oversight, and legislative nirvana (Nov. 8, 2021)

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Welcome‌ ‌to‌ ‌the‌ ‌First‌ ‌Branch‌ ‌Forecast,‌ ‌your‌ ‌regular‌ ‌look‌ ‌into‌ ‌the‌ ‌Legislative‌ ‌branch‌ ‌and‌ ‌government ‌transparency.‌ ‌Tell ‌your‌ ‌friends‌ ‌to‌ subscribe.

THE TOP LINE

OOO. The Senate is in recess until the week of November 15th; no floor votes are scheduled in the House until the week of the 15th, although there are a few committee hearings. Before you schedule your long lunches, RSVP for today’s Advisory Committee on Transparency’s lightning talks on Big Ideas for Improving Transparency and tomorrow’s House Admin’s hearing on the Office of Congressional Workplace Rights. With Congress’s approval of BIF last week, expect BBB, appropriations, and the NDAA on Congress’s plate when it comes back.

APPROPS UPDATE

Top lines. A bicameral, bipartisan topline agreement is urgently needed so that appropriators can negotiate on the particulars, Sen. Leahy said in a statement Thursday. Republicans have yet to make a counteroffer to Democratic proposals. Sen. Leahy accurately described the potential of an “endless cycle of continuing resolutions” as an irresponsible way to govern, pointing out year-long CRs as counterproductive to Republicans’ stated goals of increasing defense spending, countering China, and so on. We have yet another process stand-off: Dems want to negotiate top line numbers and then would be willing to discuss policy riders; Republicans want policy rider agreement prior to discussing top line numbers.

Increasing Legislative branch funding is the focus of a conservative coalition letter focused on congressional offices, GAO, and CBO. The letter, organized by the Lincoln Network, urged appropriators to “allocate an increased share of resources from the discretionary spending pool for Article I responsibilities.”

LEG BRANCH

Oversight of the Office of Congressional Workplace Rights — specifically, lessons learned from the 1995 Congressional Accountability Act, which applied some employment laws to the Legislative branch and was amended a few years back — is the topic of a Committee on House Administration oversight hearing set for tomorrow, Nov. 9th, at 3 PM. The hearing comes amid the nomination of OCWR Director Susan Grundmann to serve on the Federal Labor Relations Board; per Congress.gov, a hearing concerning her nomination was held on Oct. 20th. FWIW, we’d be interested to know OCWR’s views on moving forward with unionization for Legislative branch political staff; the original CAA had OCWR promulgate regulations for support agencies and congressional offices, but only the former has been put into force. Are OCWR’s union regs for political offices still in effect and just waiting to be turned on? Unions are the traditional tool for workers to protect their rights and to collectively advocate for better working conditions.

Strengthening Congressional oversight powers was the topic of the latest House Modernization Committee hearing last Thursday. We have an extensive recap here and Demand Progress released a report with four recommendations here. In our recap, we cover the problems Congress has in conducting oversight, the cliches that have arisen about what’s holding it back, and summarize important reform ideas.

Process determines policy. The House Rules Committee’s purview is House procedure, including the rules of the House and the terms for floor debate on specific legislation. As RollCall noted last week, those duties grant the committee — and the Speaker of the House, who controls majority appointments to the committee — extraordinary power. (The rules didn’t always work this way.) We’ve written extensively about Demand Progress’s recommendations to modernize the Rules of the House, some of which have been put into effect and all of which received a thoughtful hearing, and our recommendations to modernize the Rules of the Democratic Caucus, which largely have not been put into effect (although they are now, finally, publicly available, although the rules of the Steering Committee are not.) With the expected transition in leadership at the end of this Congress, there is no doubt that the rules governing party operations and House operations will be pivotal to determining who has power and how it is exercised. We have a video primer on how the House adopts its rules.

Good news for the AOC. A recent IG report found significant improvements in how the AOC is handling phase 2 of the Cannon Building re-construction project compared to phase 1.

Continue reading “First Branch Forecast: Top lines, bottom lines, effective oversight, and legislative nirvana (Nov. 8, 2021)”

Strengthening Congressional Oversight: A ModCom Hearing

Congressional oversight powers were the focus of a House Modernization Committee hearing this past week. We were impressed because the discussion went past many clichéd, inaccurate observations that are often advanced concerning what’s broken in Congress and moved to diagnosing the impediments to Congress holding the Executive branch to account and making recommendations on fixes.

By way of background, here is the video of the hearing and here is the written testimony for witnesses Elise Bean, Josh Chaffetz, and Anne Tindall, who all did an excellent job. Demand Progress submitted a brief report containing four major recommendations on how Congress can strengthen its oversight, and you might also be interested in our 2020 primer (with POGO) on Congressional staff clearances. We also would be remiss if we did not point you to the excellent congressional oversight handbook written by the inimitable Mort Rosenberg entitled When Congress Comes Calling.

The Problem

Congress has a difficult time obtaining timely, accurate, complete, and insightful answers from the Executive branch on its activities. It is not unusual for the Executive branch to slow walk responses to Congress, provide non-relevant information, or simply stonewall demands for information. 

Traditional mechanisms by which Congress can vindicate its requests for information, such as through the appropriations process, are slow and often obstructed by a combination of Congress’s consensual mechanisms, problems arising from timeliness, and Executive branch defiances. Other mechanisms, such as holding up nominations, only work (at times) in one chamber — the Senate. More direct methods to force witnesses to comply, such as through statutory contempt, must go through the gauntlets of a Department of Justice unwilling to enforce such findings and federal courts that are glacially slow, unwilling to get involved, and often partial to Executive branch perspectives.

Continue reading “Strengthening Congressional Oversight: A ModCom Hearing”

First Branch Forecast: Better Later Than Never– What’s In the Approps Bills? (Nov. 2, 2021)

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Welcome‌ ‌to‌ ‌the‌ ‌First‌ ‌Branch‌ ‌Forecast,‌ ‌your‌ ‌regular‌ ‌look‌ ‌into‌ ‌the‌ ‌Legislative‌ ‌branch‌ ‌and‌ ‌government ‌ ‌transparency.‌ ‌Tell ‌your‌ ‌friends‌ ‌to‌ subscribe.

THE TOP LINE

Notable events this week: Strengthening Congressional Oversight Capacity is the focus of a ModCom hearing on Thursday; ACMRA and several IG bills get a HSGAC mark-up on Wednesday; and save the date for next Monday’s lightning talks on eight new transparency ideas.

We still need your help. Hundreds of FBF readers were automatically unsubscribed from our newsletter a few weeks ago because of a technical snafu — and we can’t resubscribe them. Please forward this email to folks on the hill + journalists who might be interested in our little publication and encourage them to re-subscribe here; and please add my email address (daniel@demandprogress.org) to your contact list so I don’t get relegated to spam. Thanks!

APPROPRIATIONS

Senate Democrats’ draft CJS bill and explanatory statement includes a new push for transparency around the Foreign Agents Registration Act — nice! — but does not include a parallel provision to the House’s language directing transparency for OLC opinions, which is something Demand Progress had requested. It’s inclusion is not necessary as committee report language controls so long as it’s not contradicted elsewhere. Our rundown on transparency-related CJS matters is here.

Senate Dems’ draft FSGG approps bill had at least two notable items — transparency around apportionments and increasing the federal government’s intern capacity — and we’ve looked at the transparency provisions in that bill here.

Continue reading “First Branch Forecast: Better Later Than Never– What’s In the Approps Bills? (Nov. 2, 2021)”

First Reactions to Senate Democrats’ Commerce, Justice, Science FY 2022 Appropriations Subcommittee Bill

On October 18, 2021, the Senate Appropriations Committee Democrats released draft bill text, an explanatory statement, and a subcommittee summary for the Commerce, Justice, and Science appropriations bill. We reviewed the contents and compared the proposed funding to the enacted levels from the last Congress.

Senate Democrats’ CJS appropriations bill includes a discretionary funding level of $79.7 billion, an increase of $8.55 billion over the FY 2021 enacted levels, a 12% increase. By comparison, the House version was favorably reported by committee but has not passed the chamber; it provided for a funding level of $81.3 billion

We were disappointed to see that language requiring transparency for Office of Legal Counsel opinions was not included in the Senate version. This language, which would have encouraged the Justice Department’s Office of Legal Counsel to proactively release final OLC legal opinions, had been included in the House CJS Appropriations Committee Report (thanks, in large part, to the leadership of Rep. Cartwright). Here’s why final OLC opinions should be available to Congress and the public. However, so long as the explanatory language is not modified or negated in the version adopted by the Senate or agreed to by the chambers, the House’s pro-disclosure language will become operative.

The Senate CJS Committee Explanatory Statement included several notable provisions that caught our eye:

The Foreign Agents Registration Act is the focus of a request that directs the Attorney General to evaluate the feasibility of requiring all filings be submitted in an electronic, structured data format and published in a searchable, sortable, downloadable format. (p. 89) Demand Progress had requested language on FARA be included.

Whistleblower protection at the Justice Department is the focus of two directives within the explanatory statement. The first raises concerns that contractors are not being protected despite a mandate, and the committee directs the DOJ to explain how the agency will implement unresolved recommendations. (p. 75) In addition, the FBI must report on how it will implement unresolved GAO recommendations from 2015. (p. 94)

Serious misconduct identified by the OIG is not being prosecuted by the DOJ, and the committee directs the Attorney General to publish the number of cases referred for prosecution, the number of cases the DOJ declines to prosecute, and the reasons why. (p. 77)

Continue reading “First Reactions to Senate Democrats’ Commerce, Justice, Science FY 2022 Appropriations Subcommittee Bill”

Forecast for October 25, 2021

Welcome‌ ‌to‌ ‌the‌ ‌First‌ ‌Branch‌ ‌Forecast,‌ ‌your‌ ‌regular‌ ‌look‌ ‌into‌ ‌the‌ ‌Legislative‌ ‌branch‌ ‌and‌ ‌government‌ ‌transparency.‌ ‌Tell ‌your‌ ‌friends‌ ‌to‌ subscribe.

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THE TOP LINE

Congress is in. The House is back today and has both the Infrastructure and Build Back Better bills tentatively set for floor consideration; the Senate also is back today. The committee schedule is here, and we’ve put notable (to us) hearings and events in the calendar section, below.

Senate Appropriations. Senate Democrats published nine draft appropriations bills after months of requesting Republicans negotiate over the contents; Senate Republicans immediately condemned their publication as “unilateral” and resulting from a “one-sided process.” With government funding expiring on December 3rd, we appreciate Senate Democrats making transparent their positions, which appear to incorporate a number of Republican priorities. It seems likely that Republican disagreement will result in a skipped markup process and behind-the-scenes negotiations among the parties. Read on for our first reactions to approps, with more to come.

Reimagining the congressional support agencies was the subject of two separate hearings last week: a House ModCom hearing on modernizing three policy support agencies (CBO, GAO, and CRS), and an oversight hearing before the Senate Rules Committee on modernizing the Library of Congress (of which CRS is part). As you might imagine, we’ve got a lot to say — and said it in this new blogpost.

— Support agency modernization. How Congress makes sense of the world was the focus of the House Modernization Committee hearing that honed in on the operations of the Government Accountability Office, the Congressional Research Service, and the Congressional Budget Office. It was one of the most insightful hearings of the 117th Congress. Four issues, in my opinion, encapsulate the challenges facing these agencies. They are (1) funding, (2) Legislative branch agency access to Executive branch-held information; (3) congressional and public access to Legislative branch agency information; (4) workforce management. When I enumerate this list it seems kinda dry, but the hearing was juicy and we’ve identified a number of next steps that reimagine how Congress receives support from its legislative branch policy support agencies.

— The Library of Congress was the focus of a Senate Rules Committee modernization hearing, which seemed largely focused on the copyright office, although directors of CRS and National Library Service for the Blind and Print Disabled also testified. Oversight hearings concerning the Legislative branch are generally rare, staid, complimentary, and superficial — unless there is a scandal. (House Admin’s 2019 hearing into CRS is a notable counterexample — it addressed significant dysfunction at CRS.) We were impressed, however, by Sen. Ossoff’s question to CRS’s Director, Dr. Mary Mazanac, about what she thought the agency should do if it had unlimited resources. The answer, alas, did not express any long term vision or insight into the changing needs of Congress.

Planners of pro-Trump rallies who organized and planned the Jan. 6th “protest” participated in dozens of planning meetings with Members of Congress and White House staff, including Reps. Greene, Gosar, Boebert, Brooks, Cawthorn, Biggs, and Gohmert, Rolling Stone reported. Rep. Gosar reportedly told the organizers that Pres. Trump would issue blanket pardons for an unrelated investigation if they went forward with the “protests.”

Continue reading “Forecast for October 25, 2021”

Congress’s Policy Support Agencies

How Congress makes sense of the world was the focus of a House Modernization Committee hearing today that honed in on the operations of three support agencies: the Government Accountability Office, the Congressional Research Service, and the Congressional Budget Office. It was one of the most insightful hearings of the 117th Congress.

Congress created its support agencies to provide the Legislative branch with information and analysis unsullied by Executive branch bias. Congress began funding its own expert policy support agencies because funding can shape an organization’s behavior and responsiveness, including the perspectives and focus of its staff.

Today’s hearing had the agency heads as witnesses: Gene Dodaro for GAO, Mary Mazanec for CRS, and Phillip Swagel for CBO; it also had a second panel of experts who provided critical insight into those agencies: Zach Graves on GAO, Wendy Ginsberg on CRS, and Philip Joyce on CBO. While the agency heads were not placed on the same panel with the experts, they were asked to respond to the experts’ recommendations that had through happenstance been released ahead of time, which provided a useful starting point. (This makes me wonder whether a best practice for committees might be to require and publish written testimony a week in advance and request that oral testimony incorporate responses to the testimony from others.)

This was a modernization hearing, not an oversight hearing, so the focus was on the direction the policy support agencies are heading and not specific details on where and why they are falling short. Oversight work generally falls upon the Legislative branch Appropriations Committees that have jurisdiction over all three agencies and, to varying degrees, the authorizing committees: House Admin and Senate Rules for CRS; House Oversight and Senate HSGAC for GAO; and the Budget Committees for CBO.

Continue reading “Congress’s Policy Support Agencies”