This week’s First Branch Forecast is a big one, so here’s your guide to what’s inside:
• Who’s the turkey now? The CR sets up a pre-Turkey-day approps showdown; meanwhile, the Fix Congress committee held a hearing on fixing the budget process.
• Congress’s power of the purse is its greatest weapon against executive overreach; more below on how the leg branch ceded power to the presidency and what lawmakers could do about it.
• OTA 2.0. A new bicameral, bipartisan bill from Reps. Takano and Foster and Sens. Hirono and Tillis would create a Congressional Office of Technology to provide science and technology policy support to lawmakers.
• Can whistleblowers talk to Congress? It’s long been obvious there are significant flaws with how intel community whistleblowers can reach out to Congress. This week it was compounded by an administration that apparently is blocking the ICIG from sharing a whistleblower complaint concerning an alleged presidential effort to induce a foreign country (Ukraine) into reopening an investigation into a political opponent (Biden’s son).
• Should sitting presidents be indictable? Speaker Pelosi called for a new law — possibly to relieve pressure from calls to start impeachment proceedings — but given DOJ’s role as an arm of the president and OLC’s often self-serving guidance, it’s tough to see how this is workable or whether it’s just a distraction.
• Hear, hear. Kevin Kosar suggested the Select Committee on the Modernization of Congress should be made permanent. There is no doubt that someone inside Congress must be responsible for taking the big picture perspective on how Congress should grow and modernize.
Next Monday isn’t just Rosh Hashana, it’s also the end of Fiscal Year 2019; lawmakers will avoid a shutdown via a short-term CR designed to ruin everyone’s Thanksgiving holiday when agreement takes more time than allotted. Like Lucy pulling away Charlie Brown’s football, leadership is setting everyone up to fall in line behind their budget priorities. Get refundable airline tickets and stock up in case of a shutdown.
A short-term spending agreement (H.R. 4378) passed the House with 3 D’s voting ‘no’ and 76 R’s voting ‘yes.’ (The CR contains language to help hemp growers, which is a growing business in … Kentucky.) Lawmakers waived the 72-hour rule, which requires legislation to be available for 3 days before a vote. The Senate will likely pass its own CR next week. Incidentally, the last 3 shutdowns have each cost taxpayers $4 billion.
Senate Approps unanimously reported Agriculture, FSGG, and Transportation/HUD bills in full committee markups as well as the Defense and Energy bills (which were a bit bumpier). There are subcommittee markups of the Interior-Environment and Commerce-Justice-Science bills set for Tuesday, with full committee consideration on Thursday.
Leg Branch approps will be marked in the full S. approps committee on Thursday as well, which is notable because it has not received a subcommittee markup. You might remember H. Leg Branch approps was reported by the full committee only to be stalled on the floor.
The S. Approps reported FSGG bill includes $1m for CIGIE’s oversight.gov website (section 630); and report language (p. 38) urging budget justifications be published in a central location (which we support).
APPROPS AND BUDGET PROCESS
Congress’s best weapon against executive overreach is the purse, but that constitutional power is in danger. Approps Chair Lowey & Budget Ranking Member Yarmuth sent a letter saying as much to OMB last week, complaining that OMB is flouting the Antideficiency Act and the Congressional Budget Act. Their specific concern: OMB’s actions are acting as de facto impoundments. “Withholding funds through the apportionment process until they can no longer be prudently obligated is a back-door decision without Congressional approval.”
So how can lawmakers strengthen the appropriations and budget process and keep a firm grip on the federal purse strings?
The Fix Congress Committee held a hearing on that very topic. The upshot of the testimony, which included Approps Chair Lowey and Budget RM Womack, was an apparent embrace of last Congress’s Joint Select Committee on Appropriations and Budget Process Reform recommendations. Lowey also embraced bringing back earmarks, and other witnesses endorsed biennial budgeting.
So much of the conversation was about where power resides, although no one talked about it that way. Earmarks is, in part, about whether the executive or legislative branch makes funding decisions, but unremarked upon was that earmarks also gives leadership leverage over the rank and file. The weakening of the Budget Committee in part is the result of leadership playing an outsized role in allocations — to the point where some were questioning whether the committee should exist. I’m having a hard time seeing the benefits of biennial budgeting, although that could be because there was a consensus among those testifying that it’s a good idea.
We have a few ideas on improving the ability of members to engage in the budget and appropriations processes.
CHECKS AND BALANCES
Federal Inspectors General are important, but there’s problems with how they work, according to a House Oversight hearing on CIGIE (the Council of Inspectors General for Integrity and Efficiency). Among the discussed fixes: having CIGIE vet and nominate IG offices; putting IGs on separate technology platforms from the agencies they oversee (so the agency can’t spy on their work); improve how CIGIE oversees allegations of misconduct against particular IGs; and expanding subpoena power. One bad idea, of creating a new FOIA exemption, was raised as well. We note that there are a number of legislative branch IGs who do not follow the best practices of releasing their reports (or even the names and dates of the reports they issue) to the public, including the U.S. Capitol Police IG and the House IG.
Last week Speaker Pelosi criticized Judiciary committee aides for pushing for the ousting of Trump “far beyond where the House Democratic Caucus stands” (even though substantially more than half the caucus publicly supports an impeachment inquiry). The Speaker says D’s don’t have the votes on the floor to impeach Trump. I suspect the votes are there on the floor, and her leadership would help round up any stragglers.
House Dems have been granted an extension in their court case for Trump’s tax returns. “The extra time is necessary because the Treasury Department filed additional information about previously undisclosed communication between Ways and Means Democratic staffers and an analyst in the IRS Office of Legislative Affairs,” BGov reports.
The House litigates numerous issues, but the position the House takes can be hard to follow because the entity overseeing the litigation — the BLAG — should but does not publish online its court filings and other materials online.
The ABA organized a 9 person task force concerning changes to the law that polices foreign lobbying in the US, the Foreign Agents Registration Act. Senator Grassley introduced a bill to strengthen the law’s enforcement powers back in June.
RELATED READS ON CONGRESSIONAL CAPACITY
• Former Rep. Allyson Schwartz endorsed bipartisan member orientations and the work of the Fix Congress Committee.
• Carrie La Jeunesse and Lorelei Kelly argued for congressional tech modernization to support a more democratic process.
IN AND OUT
21 Republicans and 5 Democrats have announced plans to leave Congress; only 5 of those lawmakers are running for new government positions. Rep. Paul Cook (R-CA) is the most recent member to announce retirement. (Rep. Doug Collins said he wants to replace Sen. Isakson, but we don’t know how to count that.) The partisan split suggests Republicans are less optimistic about their chances of being in the majority.
Sen. Isakson’s early resignation means the Senate Ethics committee needs a new chair and it’s up to Majority Leader McConnell to fill the position. The committee isn’t exactly known for having teeth — the National Journal reports that of the 380 complains the committee received in Sen. Isakson’s first four years as chair, only 10% of complaints received preliminary inquiries. Most notably, there is no Senate equivalent to the House’s Office of Congressional Ethics, the presence of which has led to more accountability from the House’s Ethics Committee.
Two former Republican Congressmen landed on their feet at lobbying firms after leaving Capitol Hill. Former Rep. Culberson is working for Clark Hill; former Rep. Pat Meehan, who used taxpayer funds to settle a sexual harassment claim, is lobbying for Almo Corp.
ODDS & ENDS
Wardrobe rentals could help make working in Congress slightly less unaffordable.
ICYMI, CONAN got an upgrade.
• The Bipartisan Policy Center is hosting an event exploring what Congress can learn from state legislatures as it looks to reform itself today at 9.
• Senate appropriators are marking up the CJS appropriations bill at 10.
• House Admin has an oversight hearing of the Federal Election Commission at 9.
• House Intelligence has a closed hearing at 9:30.
• House Intelligence has a hearing on Whistleblower Disclosures at 9.
• House Judiciary has a hearing on Ensuring the Public’s Right of Access to the Courts at 2.
• Senate Approps marks-up CJS and Leg Branch approps bills, among others, at 10:30.
• The Fix Congress committee has a hearing on “Promoting Civility and Building a More Collaborative Congress” at 10 in Canon 210.