Forecast for May 13, 2019.

THIS IS YET ANOTHER long winded, discursive First Branch Forecast. What’s inside?

• What happened when the Modernization Committee examined transparency as a means to strengthen Congress?

• What exactly was included in the leg branch’s budget bill? The contents may surprise you.

• Oversight Wars: the phantom privilege

• Freedom of the Press

• Swamp and Scandal
THE FIX CONGRESS COMMITTEE HEARD FROM TRANSPARENCY EXPERTS (and me, too) at Friday’s hearing “Opening up the Process: Recommendations for Making Legislative Information More Transparent” (watch the video here). It’s great that the committee is focusing on transparency in the context of strengthening Congress.

My written testimony explained that I don’t care about transparency for transparency’s sake, but transparency for democracy’s sake. I suggested that there are many kinds of transparency, including transparency to members of Congress about the meetings and markups in which they are expected to participate. (Links to everyone’s written testimony likely will become available here.)

The main take-aways from the hearing included:

• Creating a Legislative Branch Chief Data Officer to work across congressional silos to facilitate congressional access to legislative information, public access to legislative information, facilitate the emergence of legislative data standards, and transform legislative information into data.

• Building a legislative ‘track changes’ type tool that shows how proposed amendments would change bills and how proposed bills would change laws. The House Clerk is currently in phase 2 of building such a tool, expected to be available (only) to members of the House by the end of 2020.

• Improving how we track political influence by having a user-friendly database of lobbying and other influence-related activities. This suggestion, made by Rep. Mark Pocan, prompted the recommendation for Congress to release the unique ID for lobbyists already tracked in its lobbying tracking system, and allow the data held by Congress, the DOJ for foreign lobbyists, the SEC for corporations, and the FEC for political entities to use common identifiers to facilitate the meshing of the datasets. The website Open Secrets, built by the Center for Responsive Politics, was cited as the best currently example of an effort to do this.

• An anti-transparency argument. Dr. Frances Lee made the case against transparency in conceptual terms, rooted in what she described as an increased ability for special interests to track committee votes post the 1970s and thereby hold members accountable for making concessions in return for moving legislation. She was specifically concerned that transparency allowed organized groups to influence the political process, which she believes comes at the expense of unorganized individuals. And that being observed changes member behavior. Dr. Lee did not articulate specific recommendations for how Congress might address the concerns she identified.

Dr. Lee also expressed the reasonable concern that members must have space for private deliberation, a view shared by Dr. Tauberer and myself. Some lawmakers took that as an opportunity to express concerns about allowing the media or public into currently public places where discussion occurs, which they described as creating pressure on lawmakers to play to the public.

Dr. Tauberer advanced the line of argument that if one has concerns about a particular aspect of transparency, it would be helpful to have some kind of metric or tool to evaluate its effects.

For my part, I argued that those with great wealth and power have always had access to members of Congress and have always informed and shaped the deliberations taking place in committees and subcommittees. Transparency is an effort to allow more people to be able to participate in the process and to reflect more views, not fewer. I did not fully express this perspective at the time, but it is unclear to me why efforts by the public to self-organize and advocate on their behalf — after all, they are the people who historically have been locked out of the halls of power — should be viewed as akin to the narrow, monied special interests that historically held great sway in the halls of power. Nor why members should be reticent about the proposition that they should have the obligation to explain the votes they take that matter to the constituents that elected them.

I did allude to the way politics used to be practiced, which was that special interests had the inside track on vote counting and bill drafting — and the financial influence to match. Everyone should read this interview with Bobby Baker, Lyndon Johnson’s bag man, conducted by Senate Historian Don Ritchie, particularly about the power lobbyists had back in the day. (Many members of Congress were beholden to special interests almost inconceivable today.) If you have a lot of time, you should read this interview. It’s 230 pages long and is amazing.

I suggested that one approach to create a space for members to deliberate could arise from the restoration of congressional caucuses with paid staff that existed until the mid-90s. These Legislative Service Organizations (LSOs) — as contrasted with current Congressional Member Organizations — like the now-fabled Democratic Study Group, had independent budgets and staff and allowed members to organize around issues in which they cared, separate from other political structures driven by leadership or committees.

The witnesses were Deputy Clerk Bob Reeves, who facilitates the Bulk Data Task Force; me; Josh Tauberer, who built GovTrack.us and EveryCRSReport.com; and Dr. Frances Lee, a professor of political science at the University of Maryland.
THE LEGISLATIVE BRANCH APPROPRIATIONS BILL was favorably reported at a full committee markup on Thursday along party lines. The committee had a surprise additional $29M from leg branch’s 302b allocation, described as arising from a recalculation of available money by CBO. Chair Ryan put forth two amendments on what to do with that money, including a measure to increase the Member Representational Allowance.

It’s clear that Chairman Ryan and Ranking Member Herrera Beutler worked hard on this bill, and a lot of excellent suggestions from members were included in the legislation. There’s no two ways about it: this is very thoughtful, salutary legislation.

Its biggest flawthere’s not nearly enough money for the legislative branch, not by a long shot, i.e. more than a half-a-billion dollars short of historical norms. That’s not something the subcommittee controls, though, and those numbers likely are coming from the front office. We did the math — turns out that leadership offices are getting a 10% increase in funds this year, and the long term trend always contains increases for leadership while the House suffers. How bad is the long term trend?

Take it from the committee report: “The budget of the House of Representatives is significantly smaller than it was at the beginning of this decade, largely because of a series of budget cuts enacted during fiscal years 2011 through 2013. The total House appropriation for fiscal year 2019 is about 10 percent below the fiscal year 2010 level in unadjusted dollars, and about 23 percent below 2010 after adjustment for inflation.”

It’s tremendously important to read the committee report, and we did (and its amendment). I think we’re going to have to do a longer article on all the great things in there, so here are the highlights.

• A bunch of excellent studies, including: on developing a House-wide policy for paid family and medical leave; creating tuition assistance for staff; increasing student loan repayment assistance for staff; what it would take to report out on staff pay and retention on an annual basis (done in consultation with the Office of Diversity), reports for the next two years on how many staff have clearances and how long it takes to obtain them, creating a unique ID for lobbyists, and reviewing immediate roll call vote availability.

• Requiring the Library of Congress to consult with the public on access to legislative information on an annual basis over the next two years and report out recommendations. Library leadership has been generally reluctant to meet with civil society and others, so this hopefully will get the dialog started.

• Facilitating Access to Legislative Information, i.e. encouraging the House Clerk to more readily publish legislative information as data (which they are doing already!) and to support the Bulk Data Task Force and the annual Legislative Data and Transparency Conference.

• Encouraging the use of multi-factor authentication for all legislative offices, and support digital workspace technologies — which looks to me like telework, although I’m not sure.

• Addressing electronic bill co-sponsorship by authorizing the Clerk to work on the issue.

• Okaying CAO efforts to develop/expand an app for constituents to give electronic consent to paperwork.

Other new items of interest: CBO is encouraged to share information with all interested parties simultaneously; improving accessibility of tours and facilities to persons with disabilities; addressing tours to make sure they appropriately contextualize Native Americans and slavery; supporting bike lanes; and CRS must report on its unfilled policy positions.

There are other provisions we’ve already written about, like restoring OTA, allowing DACA folks to work for Congress, providing paid interns to leadership (but not committees), that we won’t rehash here.

But, this should make you nervous. “Looming on the horizon are billions of dollars in cost to repair and modernize the Longworth and Rayburn House office buildings.” Leg Branch has commissioned a NAPA study on how best to save money for these costs, and these renovations threaten to eat the leg branch budget.
OTHER APPROPS AND BUDGET STUFF

On Wednesday there will be a closed DoD Approps bill markup at 10, an energy and water and related agencies approps markup at 12, and an interior, environment and related agencies markup at 2.

On Tuesday at 2:30, the Senate Budget Committee has a hearing titled, “Fixing a Broken Budget and Spending Process: Perspectives of Two Former Chairmen.” Remember a select committee tasked with fixing the budget process last Congress was unsuccessful and wound up not being able to agree on recommendations. If you’re submitting public witness testimony, Senate Homeland Security subcommittee is due Thursday and Senate Interior subcommittee is due Friday.
OVERSIGHT WARS

You know things are bad when you start agreeing with Washington Post editorials, or worse, they endorse positions you’ve long held. Rep. Jamie Raskin is right when he writes: “Congress isn’t just a co-equal branch. We’re first among equals.” And yes, this is true, too: “‘Executive privilege’ is a new concept built on a shaky legal foundation.” Oh, what a brave new world.

The Trump administration has consistently denied congressional oversight requests: Rep. Nadler threatened Former White House Counsel Don McGhan with contempt for failing to comply with a documents request; Rep. Neal had to issue a subpoena for Trump’s tax returns after Secretary Mnuchin denied request for Trump tax returns in a letter; the House Judiciary committee voted to hold AG Barr in contempt and he risks the same penalty from House Intelligence for refusing to turn over the full Mueller report & underlying evidence.

DOJ also threatened to have Trump invoke executive privilege over the Muller report and related documents. The move raised the question of whether the administration can use a privilege claim to shield material that has already been shared with investigators and disclosed to the public.

BTW, you can’t just declare executive privilege. House Judiciary is holding a hearing on executive privilege and congressional oversight Wednesday at 10, if you’re curious about where and how executive privilege can and cannot be invoked.

As House Oversight Chairman Cummings puts it, when the administration denies Congress access to key documents or witnesses, they’re “saying, ‘Congress, you don’t count. You have no ability to do your job under the Constitution.’” Congress is being tested, is it going to stand up for itself or continue to roll over?

Congress has created a learned helpless in how they operate: “for the past century, the legislative branch has steadily handed its authority to the executive.” Now it’s the moment of truth: Leadership is acting like they can wait until the election to act, and they’re putting (poor) political judgment ahead of protecting Congress. This is clear in leadership’s reluctance to move forward with forming an impeachment committee to make recommendations on whether impeachment is appropriate.

Articles of impeachment have proven to be a genuine threat to the president, which can make an administration more responsive. When Texas Democrat Rep. Jack Brooks wrote articles of impeachment against Nixon, he demonstrated “what an opposition party can do…to face down the president’s party” and didn’t let fears of looking too partisan stop him from pursuing “impeachment forcefully and unapologetically.” FWIW a gazillion Justice Department alumni wrote that the Mueller report provided “overwhelming evidence” for an obstruction case against the president and claim that Trump would have been charged with obstruction if he weren’t a sitting president.

Congress has but a few agencies and handfuls of employees compared to the executive branch’s 180 agencies and 4,000,000 employees, so how can it enforce its oversight powers? Here’s how:

One option is congressional contempt: the House could arrest Barr for contempt, although it hasn’t invoked this power for almost a century. As a side note, Roll Call’s KTM wrote a great piece on the Congress jail laying out what’s fact and what’s fiction. Like we mentioned last week, the Benghazi Committee has solid proposals for restoring congressional contempt powers and we’ve rounded up the major proposals on contempt that we’ve found here.

Another option is the power of the purse. There are some examples of this strategy in action already: House lawmakers have brought a suit seeking to block Trump from spending billions of dollars of federal funds without any authorization from Congress and eight former House attorneys are backing them up. Additionally, the House Oversight committee has threatened to withhold salaries of DOI officials who have blocked lawmakers from interviewing agency employees about Secretary Bernhardt’s compliance with recordkeeping laws. Chairman Cummings has also threatened to withhold Commerce department salaries to force officials to answer questions related to the 2020 Census. The Senate is a weakness with this approach, but aren’t they always?
FREEDOM OF THE PRESS

It’s no secret that the Trump administration has hurt press freedoms in the US: our ranking in the world press freedom index has dropped, plus capitol police have put their hands on reporters conducting voluntary interviews with members of Congress, and Trump has galvanized the public to attack reporters.

Now the administration is making it nearly impossible for reporters covering the White House to get credentials. One reporter who has been covering the White House for 21 years had his credentials revoked because he didn’t meet the requirement of being in the White House for at least 90 of the last 180 days. His seven Washington Post colleagues also had their credentials revoked. Exceptions are being granted at the discretion of Sarah Sanders, which means the administration can choose to remove “bothersome” reporters at any time.

Lawmakers have introduced legislation to protect reporters. We’re fans of the Free Flow of Information Act (H.R. 4382) introduced last Congress by Reps. Raskin and Jordan which allows reporters to opt out of testifying on the source of information obtained through their news gathering process. There’s also the Journalist Protection Act introduced by Rep. Swalwell and several others in the House (H.R. 1684) and Sens. Blumenthal and Menendez in the Senate (S. 751) to provide a penalty for assaulting journalists.
SWAMP & SCANDAL

Liberals have sworn off corporate PAC and lobbyist donations, so what are private interests who want an in with the majority supposed to do with their campaign funds? They’re turning to the party committees. The DCCC received $1.93 million from 143 corporate PACs in Q1 of 2019. Plus, eight federal lobbyists “bundled” more than $1.2 million in contributions for the committee in Q1 — that’s almost 40 times the amount lobbyists bundled for the first half of 2015. They’re also, uh, sponsoring “bipartisan” retreats like this one at a luxury spa hosted by health care lobbyists who opposed to Medicare for all. Pass the loofa and the foie gras.

A bipartisan bill focused on curbing anonymous shell companies abuse in the U.S., the Corporate Transparency Act of 2019 (H.R.2513), was supposed to get a vote in Financial Services Committee last week. Consideration has been postponed.

A former Rep. Scott Taylor campaign staffer indicted on two counts of election fraud in a petition forgery scandal faces 1 to 10 years in prison and/or a $2,500 fine. A local paper investigation found that more than half of the 115 signatures they checked were forged and four were the names of men who had died recently.
QUICK HITS

Stan Collender, “the Budget Guy,” passed away last week. He was a veteran of the House and Senate budget committee staffs. I had the opportunity to know Stan a little bit — he generously taught me and my colleagues about the budget process. In fact, he was so excited by our interest that he came back and talked to us several times, which is but one of a million examples of his generosity.

The bipartisan Congressional Cybersecurity Training Resolution of 2019, introduced by Reps. Rice and RepKatko will require members to undergo cybersecurity training, in addition to the officers and employees who are already required to participate in this type of training.

The House Energy and Commerce Committee has an oversight hearing for the FCC this Wednesday at 10.

Capitol police reported eight arrest incidents last week.

The Congressional app challenge was a lot of fun.