Forecast for October 9, 2018. FutureCongress, Plus “Popular Bills” Can Be Substantive, Too.

LEGISLATIVE CAPACITY

That Congress’s tech savvy hasn’t kept up with the times isn’t exactly breaking news, but we should highlight that 20 bipartisan advocacy groups led by Demand Progress and the Lincoln Network launched Future Congress this past week, a resource hub for efforts to improve science and technology expertise in the legislative branch.

Do 218 co-sponsors make a difference when passing legislation? Yes, and surprisingly 2/3s of these popular bills are substantive in nature. Read our report exploring how this finding fits into possible House rules changes.

LEGISLATIVE PROCESS & POLY SCI

Kavanaugh’s testimony before the Senate would have disqualified him from consideration in previous congresses. R Street’s Joshua Huder explains how reducing the cloture threshold from 60 to 51 eliminated the need for bipartisan consensus on SCOTUS nominees. (ICYMI, here’s CBS’s John Dickerson questioning Sen. McConnell on judicial nominations.)

— Hearings? As discussed previously, some House Democrats said they will look into the allegations against Kavanaugh should they retake the House, although the scope of the investigation is unknown, with leadership signaling it would be limited and the rank-and-file suggesting otherwise.

— Antisemitism. Particularly troubling is Trump’s antisemitic dog whistle, claiming anti-Kavanaugh protesters were paid for by George Soros, a claim echoed by others.

— Journalists rarely cover FOIA requests, at least until you get the responses, but Minority Leader Pelosi said she will FOIA communicationsbetween the FBI and Senate Republicans. To the extent they implicate presidential records, the Presidential Records Act pauses FOIA requests for 5 to 12 years, with the clock starting at the end of the administration, or potentially never if executive privilege is invoked.

— Paired voting. In an instance of paired voting, Sen. Murkowski, who opposed Kavanaugh, voted present so Sen. Daines would not have to rush back to DC. Paired voting is designed to accommodate when members cannot make it back for a vote, but as this paired voting scandal in the UK illustrated, this is an imperfect solution for a modern legislature. And speaking of imperfect, Vox has a look at the decline of pairing in the US Congress.

Bots monitoring civil servants monitoring bots. A sideshow to the Kavanaugh imbroglio was an ex-staffer turned intern’s apparent effort to “dox”members of Congress by publishing the personal information on Wikipedia from congressional computers, prompting the Twitter-bot Congressedits to retweet their personal information. The bot was shut down by Twitter, although its code is up on GitHub. (The Wikipedia page was temporarily locked and the content reverted.)

— According to the Capitol Police affidavit, which we’re publishing here, the staffer had been asked to resign from a Senate office earlier in May was working as an intern in the House. He apparently made multiple edits at different times. In one unusual instance, the ex-staffer was able to enter into his former Senate office and used another staffer’s login and password to get on the network, where he was spotted. This raises numerous questions about the Senate’s use of password managers, two-factor authentication, and other security measures. Also, where did he get that personal information?

— The Twitter-bot Congressedits deserves special attention. The bot indicated whenever congressional staff edited Wikipedia, and likely helped discourage members from editing pages in which they had a personal interest. Its weaponization is an interesting development. Its builder said he would automatically check future tweets for personal information, but Twitter pulled the plug permanently. This wouldn’t stop anyone from starting it up again under another account, and there’s dozens of similar Twitter bots monitoring everything from the NYPD to the White House to White Hall.

— Dox-part-deux. Also part of this sad story is how some conservative outlets falsely painted another congressional office as the source of the Wikipedia edits. For example, Red State erroneously identified a Rep. Waters staffer by name and publishing her photo — the article is still online 6 days later — and now also is blaming a Rep. Jackson Lee “aide” without mentioning that the person (who was charged) was an unpaid intern (not an aide) and was fired by Rep. Jackson Lee.

OVERSIGHT

Oversight.gov, a central website that publishes many reports issued by 72 federal Inspectors General, almost 10,000 in total, turned one year old last week. While GAO, AOC, Library of Congress, and GPO publish IG reports on that website, the House of Representatives IG and the Capitol Police IG do not.

Providing interim reports to Congress could help protect Mueller’s investigation as uncertainty around Deputy AG Rod Rosenstein’s future at DOJ builds. Neal Katyal, the former acting solicitor general who helped write the regulation for the special counsel law, said nothing in the regulation forbids interim reports to Congress (through appropriate channels).

How does Congress talk about the FBI? Quorum takes a quick look.

TRANSPARENCY

A POGO FOIA appeal prompted the Justice Department’s Office of Legal Counsel to release four opinions interpreting the law that were being withheld from the public and Congress. OLC provides controlling legal advice to Executive branch officials that frequently is the final word on issues important to the functioning of the federal government. How can Congress conduct oversight, clarify language, or close legislative loopholes when they don’t know what OLC has said? Last time we looked, the names of more than one-third of OLC opinions we could identify existed were withheld from the public and Congress.

Capitol police blocked off media access to the hallway outside Senator Collins’ office last week as tensions escalated over the Kavanaugh nomination. The Senate office buildings are open to the public, and yet this is not the first effort to curtail media access this Congress. In July 2017, reporters were told they couldn’t interview senators in the hallways without special permission; the effort was rolled back.

Sen. Jon Kyle, Kavanaugh lobbyist? The Judicial Crisis Network spent $12M supporting Kavanaugh’s nomination, and Senator Kyl was on their payroll as a lobbyist, although he took an unpaid role as Kavanaugh’s “sherpa.” And yet as senator he voted for Kavanaugh. Is this a conflict of interest? Perhaps. Should he ask the Ethics committee for advice? Yep. Did he?

TECHNOLOGY

The Library of Congress released a new strategic plan and a five year digital strategy plan. We weren’t consulted in the process and it’s unclear who was, although the Library said in a blogpost that “experts” were consulted for the strategic plan. The Library is encouraging people to share their thoughts on the digital strategy by emailing digitalstrategy@loc.gov. FWIW, at first glance the digital strategy looks thoughtful.

Linking bills up. A Library of Congress intern created a Congress.gov browser extension that links bill citations on third party sites to the primary source. Check out the beta version here.

ETHICS

A hired investigator’s draft report exonerates Rep. Keith Ellisonclaiming the allegations of assault leveled against Ellison can’t be verifiedShould this be the last word?

FREE SPEECH, POLITICAL PROTESTS, AND CONGRESSIONAL SECURITY

Two pro-marijuana protesters were arrested outside Rep. Andy Harris’ office. Harris claims they injured him as they tried to push open a door. Looking at the Periscope video of the encounter (go to the 1:00 mark), it appears Harris brushed past the protesters as he went into the back door of his office, apparently closing the door behind him.

The Justice Department demanded Facebook turn over private account information for thousands of Facebook users descried as “anti-administration activists who have spoken out.” The government sought a gag order along with the warrants, and Facebook fought a seven-month long legal battle to alert the subjects of the warrants. Even now, all court filings are under seal.

Rep. Mark Walker reported a bomb threat to Capitol Police based on a number of angry Tweets made by a man in Montana, including bomb emoji. The FBI searched his home and computer.

On Friday alone, the Capitol Police arrested 101 people. The Capitol Police do not publish their blotter, so we do not know many many people were arrested last week.

POLITICS

The FEC released new guidance on ‘dark money’ donors following a recent court ruling. The new guidance, which requires political nonprofits to publicly disclose names of donors who gave more than $200 toward political initiatives, applies to all donations after August 3rd. The FEC will release the information on October 15th and then quarterly. However, CLC warns the FEC may also be signaling dark money groups can ignore their reporting obligations until after the election.

Sen. Collins’ decision to back Kavanaugh means that more than $3.5 million raised by CrowdPAC to encourage her to vote in opposition will go to her 2020 opponent. Election law expert Rick Hasen summed it up in a great headline: “Susan Collins Complains of “Bribery” After Nonbillionaires Try to Influence Her Kavanaugh Vote: It’s not illegal when plutocrats do it.

Trump’s taxes likely will be reviewed by Congress should Democrats retake the House, as the Ways and Means committee chairman has the power to obtain and review any individual’s tax return. See 26 USC 1063. This has been made more likely with this past week’s NY Times report on Trump’s likely illegal schemes to avoid paying taxes. This CRS report from 1978 summarizes the law.

ODDS & ENDS

A RAND report finds America has ‘truth decay’ problem — the blurring of the line between fact and opinion. The consequences of this phenomenon include political paralysis, individuals alienated from civic institutions, and erosion of civil discourse.

If the last few weeks have you contemplating America’s future, you’re not alone. The Brennan Center is right there with you, and they’ve released a report of reform proposals to bolster the safeguards protecting our democracy(spoiler: transparency and accountability feature prominently).

How to design congressional commissions? Read the new CRS report.

The 17th amendment, on how senators are chosen, has been the topic of renewed conversation, with some conservatives pushing for states to choose senators instead of the general public. Why was the Constitution amended to take state legislatures out of the picture? According to CRS, three reasons: 1) Senate positions regularly were left unfilled for years; 2) The selection process was corrupt, captured by the rich and powerful, and senatorial loyalty was to their benefactors and not the people; 3) It was part of a broader movement to strengthen representative democracy.

CALENDAR

The House is on recess until November. The Senate is in session this week. The committee calendar is here.