Take a break from wall-to-wall impeachment coverage and read about what else is happening in today’s First Branch Forecast.
TOP LINE
What’s the best way for Congress to strengthen its tech policy chops? The National Academy of Public Administration issued their recommendations in a new report, “Science and Technology Policy Assessment: A Congressionally Directed Review.” Experts will discussthe report’s findings, as well as strategies for reinvigorating the Legislative Branch’s tech policy capacity, Wednesday from 10 to 12 at an off campus location. Can’t make it? Watch online.
• A HUGE thanks Leg Branch Approps — former Rep. Kevin Yoder, Rep. Tim Ryan, Senator Cindy Hyde-Smith, and Senator Chris Murphy — for putting the report in motion. Thanks also to Zach Graves at the Lincoln Network who called for this report back in 2017.
Fix Congress Committee, Season 2: Coming soon. The Select Committee on the Modernization of Congress issued 29 recommendations to fix Congress, but the committee was scheduled to sunset in December. We’re thrilled the House voted to let them continue their work in 2020 (rule vote details here).
House Admin is having a Member Day hearing Thursday morning. @House Staffers – this is your chance to get your boss on the record with ideas to improve Congress (and federal elections). Testimony is due by Tuesday at 8:30 a.m.
Last week the Senate Rules held a hearing on the nomination of Hugh Halpern to serve as the Director of GPO—the agency has been without a permanent director since 2017. He is a former House Rules Committee and floor staffer and is liked by everyone, including us. During his testimony Mr. Halpern emphasized updating the traditionally paper-first organization for an increasingly digital world. He also underscored the importance of an independent GPO watchdog. (This has been a problem in the past). A committee vote on his nomination is set for today at 5:45.
BUILDING A STRONGER CONGRESS
Did you get that memo? The Fix Congress committee held a hearing on streamlining House operations. Members discussed updating tech capacity, centralizing administrative support, and using tools to manage hiring and travel. While some low hanging fruit included bulk purchases, Members went back and forth on increasing resources for internal processes vs outsourcing to vendors. Also, Rep. Cleaver highlighted the difficulties of renting district office space in federal buildings, which are very expensive compared to the private sector even though they are more secure.
We suspect that centralizing purchases would save money, at least in theory, but inefficient management practices and bad customer relations has pushed the pendulum to decentralized purchasing, which is costly and time consuming. The feedback mechanism to regulate service quality in Congress either is broken or doesn’t exist, and bureaucracies will impose unreasonable processes without constant oversight.
Losing staff can make you a less effective lawmaker. This may seem like a no brainer — hah — but some have argued that congress’s capacity is unrelated to staff numbers, and increasing staff wouldn’t make a difference. Fortunately, there’s a natural experiment that discounts this line of argument. In the 90’s, funding was cut for legislative service organizations (LSOs), which were essentially Congressional caucuses with House resources like office space and funding for staff. Andrew Clarke analyzed the efficacy of members of LSOs by looking at the example of the Democratic Study Group (DSG). Members of the DSG were considerably more effective in moving legislation — but only while the DSG existed, because they provided expert staff. There are proposals to bring LSOs back (like ours).
A bill to help parents (who aren’t independently wealthy) run for Congress, introduced by Rep. Katie Porter, passed the House earlier this month. A Senate companion bill was introduced by Senator Klobuchar last week.
THE BARR-BARIAN AT THE GATE
Attorney General Bill Barr gave a truly terrifying, ahistorical, and deeply disingenuous speech before the Federalist society on Friday. Read it here. Just to give you the tenor, he argued with an apparently straight face: “we have seen steady encroachment on Presidential authority by the other branches of government.” Like hell.
I won’t even get into this, except to note it for you: “I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power. But the sheer volume of what we see today – the pursuit of scores of parallel ‘investigations’ through an avalanche of subpoenas – is plainly designed to incapacitate the Executive Branch, and indeed is touted as such.”
But I cannot let this pass: “[W]e all understand that confidential communications and a private, internal deliberative process are essential for all of our branches of government to properly function. Congress and the Judiciary know this well, as both have taken great pains to shield their own internal communications from public inspection. There is no FOIA for Congress or the Courts. Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process.”
Is he arguing with a straight face about executive branch internal deliberations, which in the executive branch are exempted by FOIA from disclosure and also are the subject of a bunch of recently made-up privileges that executive-branch appointed judges have foolishly adopted?
By comparison, for the federal courts, you can attend the entirety of the proceedings, every order is up on PACER, and you can read the opinions online, which may not be final until all appeals are exhausted.
For Congress, you can attend the vast majority of committee hearings and markups, which are announced online and webcast, you can watch the deliberations in the forms of legislation being amended in both chambers in near real time, and there are phalanxes of reporters that cover every move in a branch of government with fewer than 20,000 employees.
In short, judiciary and congressional deliberations are routinely proactively disclosed whereas obtaining information from the executive branch often requires litigation and large amounts of patience.
The federal government is gigantic. Spending on Congress is the smallest sliver of federal spending, and experience — like Crédit Mobilier, Teapot Dome, Watergate, Iran-Contra, and whatever it is we will call the Trump administration — has taught us that executive branch transparency is how we know what our government is doing, especially when senior officials “go rogue” on the Constitution.
If you want to understand why FOIA and other transparency measures are important, just read about the history of the state secrets privilege. It is based on a lie told by the government in 1953 to avoid paying three widows whose husbands were killed in a plane crash caused by military negligence — the government asserted a need for military secrecy that was not needed at all. (Similar such lies supported terrible evils like the round-ups of American civilians of Japanese ancestry during WWII.)
POWER OF THE PURSE
Short term funding is set to expire this Thursday. The good news is a shutdown seems less likely, as the House will vote on a funding bill this week; the bad news is lawmakers have kicked the proverbial can to Christmas with a CR that will keep the government funded through December 20th.
Before those spending bills can be passed, appropriators need to agree on topline spending numbers for each appropriations subcommittee. Top appropriators from both chambers met last Tuesday to discuss 302(b)s, and it looks like a deal could be coming soon. Or not. Who knows?
We looked at the 302(b)s over time to see how the slices of the pie have changed, compiling numbers from FY 2007 to FY 2019 into a downloadable data set (XLS) drawing from CRS reports. We’re missing several figures, if you have leads on where we can find them, drop us a line at Amelia@DemandProgress.org.
From the data we do have one thing is clear: Congress gets the smallest slice of the pie; Leg Branch comprises approximately 0.4% of total discretionary budget authority according to CRS.
PARTY SHAKEUP
The House Democratic Steering Committee will vote on its recommendation for House Oversight Committee chair this week. In the running are Acting Chair Carolyn Maloney, Rep. Stephen Lynch, and Rep. Gerry Connolly.
Rep. Veronica Escobar was elected to House Democratic Caucus leadershiplast week, filling the freshman position vacated by former Rep. Katie Hill.
Rep. Justin Amash is the subject of a fascinating Rolling Stone feature. Among the tidbits about how Congress is often about team sports and unbending loyalty: “Ryan and the other Republican leaders couldn’t control what Amash said or how he voted, but they could prevent him from ascending within the party or landing important committee assignments.”
OVERSIGHT
The latest in Executive attempts to buck Congressional oversight:
• Mick Mulvaney refused to testify before Congress at the President’s request.
• The trend of circumventing Senate powers of “advice and consent” continued last week when Chad Wolf was confirmed as a DHS undersecretary just so he could take another job, acting DHS Secretary.
The Executive branch won’t obey the first branch, butwill it listen to the third?
• The executive branch fight against Congressional subpoenas may go to the Supreme Courtafter a lower court ruled the IRS has to turn over Trump tax returns.
• While it’s fine for Congress to turn to the courts, it shouldn’t be necessary; Congress has inherent powers. The mechanisms that foster compliance with oversight efforts need to be stronger, and the time to strengthen them could be sooner than you think. Former CRS attorney and constitutional expert Mort Rosenberg has a fresh off the presses article arguing the House has the constitutional authority to direct the appointment of private counsel to prosecute criminal contempts of Congress against executive officials who refuse to comply with legitimate committee subpoenas.
• The “highly unusual amount of judicial precedent generated” during this Administration, could have a “potentially enormous impact on the balance of congressional and executive power,” according to Point of Order’s Mike Stern. CRS has the details on how exactly a legislative body can sue and what the limitations are.
A War on War Powers: For decades, Congress has given up much of its constitutional power over war. Last week, the Legislative Branch Working Group held a symposium on the issue and the takeaway was that declining staff levels make war oversight an unfair fight. As Casey Burgat explains, none of the eight Congressional committees tasked with oversight has a median tenure longer than 6 years (we’ve been at war for 18). On top of that there are a combined 133 Senate and House staffers on the Homeland Security committees tasked with overseeing 240,000 employees in the Department of Homeland Security. Congress should reassert its oversight role and the first step is giving itself the capacity (funding) to act.
ETHICS
What’s the clearance, Clarence? The House Ethics Committee issued an unusual notice reminding members to “safeguard classified information and areas,” mentioning multiple SCIFs that are under the control of various House entities. There’s a lot more to this story, and KTM has a good starting point.
House Ethics disclosed several investigations last week:
• The committee is investigating allegations of an improper personal relationship between Rep. Alcee Hasings and one of his employees. Politico has more details.
• DOJ is investigating Rep. Ross Spano and asked the Committee to defer its investigation into whether he used improper loans that exceeded federal campaign contribution limits to support his election bid. If he did, it would be a violation of House rules and federal law.
• The committee is extending its investigation into whether Rep. Bill Huizenga accepted campaign contributions from employees in his Congressional office and whether Rep. Huizenga authorized expenditures from the MRA for non-official expenses
• The committee is extending its investigation into whether Rep. Rashida Tlaib used campaign funds for personal purposes.
A Capitol Police officer suing the department for gender discrimination says she was “fired when a superior officer found out she talked to internal investigators about alleged sexual harassment”. The trial (court filings) has been playing out over the last two weeks; Roll Call’s Chris Marquette has been covering the case: coverage from Wednesday and Thursday, as well as coverage of Day 1, Day 2, and Day 3.
Members are still filing paper financial disclosures. Why is that bad? These disclosure forms are how members report potential financial conflicts of interest. Paper filings often have errors or are illegible. The House Ethics Committee encourages members to “e-file” for quality assurance. Maybe they should require it, no?
ODDS & ENDS
Open Courts. Advocates want Congress to make PACER free. Currently, the Administrative Office of the US Courts “charges the public thousands of times more than it should cost to provide access to federal court documents.”
Reps. Eleanor Holmes Norton and Greg Steube have signed on as co-sponsors of Congressional Budget Justification Transparency Act of 2019, H.R. 4894. Learn more about the transparency bill here.
Congratulations to the inaugural Teddy Awards winners:Rep. Derek Kilmer, Rep. Mike Gallagher, Senator Amy Klobuchar, and Senator James Lankford. The award from Issue One is given to members who engage in bipartisan efforts to reform Congress and make the institution work better for the American people.
A long time Senate periodical gallery staffer is moving on. I’ve long been fascinated by the various press galleries and how they shape coverage of Congress.
CALENDAR
Monday
• Vote on Hugh Halpern as GPO Director, Senate Rules Committee at 5:45.
Tuesday
• The Open World Leadership Center is hosting “Women in Leadership & Legislative Diplomacy in the Modern Congress” at 9:30.
Wednesday
• Experts will discuss the NAPA reportonCongress’s science and technology needs, as well as strategies for reinvigorating the Legislative Branch’s capacity moving forward. The event will take place at the Bipartisan Policy Center from 10 to 12.
Thursday
The Committee on House Administration will be hold a Member Day Hearing at 8:30 am in 1310 Longworth. This is an opportunity for Members to submit written or oral testimony to highlight items for the House Admin to consider.
Down the Line
• The FOIA Advisory Committee will hold a public meeting on December 6 from 10-1. You must register to attend by December 3 by clicking this link, the proceedings will be live-streamed and the agenda will be here.
• The Advisory Committee on the Records of Congress will hold its semi-annual meeting on December 9 from 10-12:30. It’s open to the public. Contact sharon.shaver@nara.gov for more info.
• The New York Times is hosting a panel, “Women of the 116th Congress” on December 5th at 6:30 at the Newseum. They will be talking to Reps. Susan Brooks, Sharice Davids, Carol Miller, and Lauren Underwood.
• The Levin Center will host an academically-oriented conversation on Congressional oversight of science and tech.
