Forecast for December 9, 2019.

ON CONGRESS’S RADAR

It’s going to be a big week on Capitol Hill, so grab a pen and mark your calendars:

Impeachment proceedings continue with House Intelligence and House Judiciary presenting their findings today at 9 in 1100 Longworth. The Judiciary Cmte report on the constitutional grounds for impeachment came out this weekend.

DOJ Inspector General Michael Horowitz will testify before the Senate Judiciary Committee on Wednesday at 10. He is expected to address his office’s investigation of FISA abuse, the report is expected today and AG Barr already is trying to discredit it.

The 2020 Senate Calendar was releasedwith all of January missing until the impeachment trial is scheduled. The House also changed its schedule and will meet the week of December 16th, most likely to accommodate a House impeachment proceedings and avoid a December 20th funding cutoff.

Watch for the appropriation bills, the articles of impeachment, the NDAA, and who knows what else. Expect things to seemingly accelerate out of control as recess gets closer.

The Senate is bored, at least according to a NYT article that explores whether McConnell has focused the chamber almost entirely on judicial confirmations (170 so far), steering it away from legislation. According to Senate Dems, “in 2019, there were 287 votes in the chamber related to nominations, compared with 98 regarding legislation.”
BEEP BEEP BEEP

Paid parental leave for federal employees may be included in the NDAA as part of a deal with Trump to create the spaaaaace fooooorce. It’s unclear whether leave would apply to the leg branch — but it should, including personal & committee offices. House Oversight is discussing paid leave tomorrow at 10. Also, watch to see if Dems cave in the NDAA on ending US support for the Yemen war.

Congress’s science and technology policy capacity (e.g., OTA) was the talk of the town, with a Science Committee hearing this past Wednesday, a Levin Center event on Friday, the release of a NAPA report, and our evaluation of the report. More below.

Good news for @approps & @budget techies: CBO added significant improvements to how it publishes data. Details below. (Kudos CBO!)

GPO Director Hugh Halpern. It’s official, he’s been confirmed. Congratulations, Hugh!

The House’s rules and procedures were the topic of a Fix Congress committee hearing on Wednesday, and the subject of one of our (in)famous letters. More below.

Congressional oversight of the intel community and its role as IC watchdog was the topic of a conversation at CATO’s Surveillance conference on Friday. Video will be here. Does this tie in to FISA? You betcha.
OVERSIGHT

Authoritarian views are on the rise, with conservative Republicans increasingly believing the presidency should be more powerful (and Congress and the courts less so), according to a new Pew report. “About half of Republicans and Republican-leaning independents (51%) now say it would be too risky to give presidents more power, down from 70% last year.” Ut oh. FWIW, Congress’s favorability ratings are up to 36%.

Congress is still having trouble getting answers from the executive branch. Here are all the witnesses refusing to appear before Congress on White House orders (courtesy of Kate Brannen); and the VP is allegedly playing classification games to keep info out of public view. How to fix this? Look to recommendations from the Benghazi committee (yes, we said Benghazi) as something the House should consider. It includes: mandatory reduction in pay for contumacious officials; a special counsel for criminal contempt citations; and expedited civil enforcement procedures.

The Courts. Congress could also turn off funding for non-compliant offices, but that is slow and requires presidential acquiescence. Instead, Congress has (belatedly) turned to the judicial branch, where several important opinions are expected soon:

• Former Executive Branch aides do not have absolute testimonial immunity, despite what DOJ and Don McGahn say. The District Court denied DOJ’s motion for a stay pending appeal. As we noted last week, oral arguments for McGahn’s appeal are set before a three judge panel on January 3, 2020. Briefs are due on December 9 and 16. (That’s today)

• Deutsche Bank must turn over Trump’s taxes to Congress, per the Second Circuit’s order. RBG issued an emergency one-week stay, until Dec. 13. That is, this Friday the 13th.

Another tool, impeachment, is ongoing. Speaker Pelosi asked committee chairs to draft articles of impeachment, expected out this week. Get up to speed with the HPSCI report (or the tl;dr from the Washington Post), this recap of last week’s Judiciary hearing, and Judiciary’s report on the constitutional grounds for impeachment, plus this phenomenal article on the history of impeachment from The New Yorker. House Judiciary resumes impeachment proceedings today at 9. When will this end? In the House, it’s beginning to look a lot like Christmas. We think the House should keep going in January and expand the scope. The NYT suggests 8 articles.
MONEY MATTERS

Will the government shut down in time for the holidays? Funding runs out December 20th, and while some lawmakers want to pass regular order spending bills, others don’t think that’s realistic in the time left and expect another short term CR. Senior lawmakers agreed on topline numbers for appropriations subcommittees in November, but they haven’t released those numbers publicly.

Our concern is that Leg. Branch gets short-changed again; the First Branch has notoriously second-rate funding, which makes it all but impossible for Congress to properly carry out its constitutional duties.

Way to go, CBO! As mentioned at the top, CBO added some helpful features to its website. There are now predictable URLs so you can easily identify where a bill’s score will be posted. In addition, each score now includes a link to the underlying bill. Plus, data going back to the 105th Congress is now available in XML and the website has new search filters like 10-year totals, revenue, and deficit spending. Some of these changes were requested by civil society; thank you to CBO for listening.
BUILDING A SMARTER CONGRESS

Do lawmakers and their staff have the science and technology policy capacity to make informed decisions? Last month NAPA released a report on that question, following a report by the Belfer Center. While we and our friends at Lincoln Network pushed for the NAPA study, the final product has both strengths and areas that could use further development.

What Congress should do about science and tech policy capacity was the subject of a House Science Committee hearing, which ventilated the various approaches, including analyzing the Belfer and NAPA reports. (Kudos to the Science committee — this was the first hearing on OTA in more than a decade.)

We’ve released our own report on the NAPA report, much of which was reflected in the hearing. We thought NAPA’s analysis of the gaps in congressional capacity was excellent and agree with their conclusion that a new entity should be created. However, we saw weaknesses in NAPA’s approach as well: an underdeveloped analysis of creating a modernized OTA, insufficient consideration of the funding landscape and long term structure, a superficial approach to evaluating CRS’s capabilities, and the seeming conflation of political and non-political factors.

The lesser-developed concepts in the NAPA report led to some confusion at the hearing. In particular, the NAPA report did not address whether to bring back OTA, but the absence of that discussion confused some members who thought NAPA opposed OTA. It emerged only from a colloquy that NAPA did not take a position on that question, and that its approach appeared rooted in an analysis of the political landscape.

The Levin Center symposium, which was post-hearing, noted the need for more staff with STEM backgrounds in Congress and the problem of Congress’s “absorptive capacity.” That is, that the underfunding of congressional committees and personal offices, combined with rapid turnover and generalist staff, means it’s hard for Congress to be able to understand technology issues. Congress is the most advised body in the world yet lacks the staff, time and resources to filter and digest S&T information.

More from GAO: GAO released a tech design handbook this week that’s meant to guide users through designing technology assessments. The agency also has a new report on its Enhanced Capabilities to Provide Oversight, Insight, and Foresight — i.e., the horizon scanning function described in the NAPA report.

The conservative case for a more tech-smart Congress: expect higher ROI on your tax dollars.
BUILDING AN EFFICIENT CONGRESS

House rules and procedures were the subject of a Fix Congress Committee hearing last week where lawmakers and panelists discussed rules and procedural changes to the House floor and committee operations. (We have a few ideas.)

There were interesting conversations around member attendance & committee scheduling. For example, the idea of tracking attendance in the committees, which some of our European counterparts already do, came up as a way of encouraging collaboration, as did the idea of block scheduling hearings so Members don’t have to be in two (or four) places at once. There was also discussion of committee administration improvements like publishing committee vote information and creating the equivalent of consent calendars, but for committees, where committee members could get a markup if they have sufficient support for a bill.

Another hot topic was the motion to recommit (MTR). The MTR has become the only guaranteed means for the Minority to debate and amend a measure; it’s mainly used for messaging politics rather than legislative work. Currently the MTR happens just before the Speaker orders the vote on final passage, providing the majority little notice and virtually guaranteeing a gotcha vote. The committee discussed how moving a mandatory amendatory motion earlier in the process could make it more substantive and less focused on messaging.

Civility was also a hot topic, with Members discussing ideas to increase cooperation with colleagues on the other side of the aisle; examples included greater input from the minority, attendance in committee hearings, and better staffing and resources for committees.

The Modernizing Committee continues to impress. Its work has stood out as bipartisan and congenial in the midst of a politically polarized climate, plus they’ve actually put out recommendations (29 so far).
IN & OUT

Vice Chairman of the ‘Fix Congress’ Committee Rep. Tom Graves (R-GA) announced plans to retire at the end of the 116th Congress. His role in leading the Fix Congress committee will rightly be part of his legacy. This brings the total number of House Republicans retiring this Congress to 21.

Rep. Denny Heck (D-WA) announced plans to retire at the end of this Congress. The House Intelligence committee member says investigations of Russian election interference and impeachment have ”rendered his soul weary,” and that has contributed to his decision to leave.

Georgia Governor Brian Kemp (R) appointed businesswoman Kelly Loeffler to fill Sen. Johnny Isakson’s seat when he retires at the end of the year. Loeffler will hold the position until Georgia holds a special election in November 2020. Perhaps her greatest asset is that she’s rich and will dump tons of money into the election.

Bobak Talebian has been serving as DOJ’s Acting Director of the Office of Information Policy, the DOJ office that “coordinates” aspects of FOIA policy, since October.

The Project on Government Oversight’s Sean Moulton has joined the FOIA advisory committee. Advocate Ginger McCall had been up for a position, but FEMA did not give the go ahead for her to participate. This is unfortunate.
ETHICS

Ex-Rep. Katie Hill wrote an op-ed on her last days in Congress.

Rep. Duncan Hunter pleaded guilty to misusing campaign funds (an understatement) and faces sentencing on March 17th. The House deferred its ethics investigation pending the criminal investigation, which is why he’s still a sitting Member of Congress. Rep. Hunter announced he will retire “shortly after the Holidays,” but only after the Ethics Committee asked him to please not cast any votes. We’re not thrilled with this arrangement, nor with what we expect will be the Ethics committee scuttling their draft report (if they’ve written one) when he finally leaves.

• Paul Kane notes that Members of Congress get paid monthly, going back for the previous month worked; which means by delaying his departure Hunter will get paid 1 month’s worth of his $174k salary in early January. While we can see a rationale in not having House proceedings potentially interfere with criminal proceedings, for matters related to the House, the point of having an Ethics committee is to police member’s behavior, including kicking them out.

• The plea triggers a House Rule (XXIII section 10(a)) that discourages Members from voting when they are under indictment for federal crimes carrying a penalty of 2+ years of imprisonment. We have some suggestions for updating the House’s rules for when Members are indicted.

ProPublica’s Represent tool helps you track Members of Congress. You can follow legislators, bills, votes, statements, lobbying, plus a new feature now lets you see House Members’ privately-funded travel and who’s paying for it.
TRANSPARENCY

Is public law private property? We wrote about the Supreme Court Case over Georgia’s annotated code in last week’s First Branch Forecast; transcripts of the oral arguments are now available.

A SCOTUS opinion from earlier this year poked major holes in FOIA, and we’re seeing the consequences. The SCOTUS opinion widened “exemption 4,” and as a result a U.S. District Court ruled against a non-profit seeking records related to a Pentagon subcontracting program (which includes records implicating Lockheed Martin and other defense contractors). H/T to Cause of Action for reporting on the issue.

Government agencies are supposed to make publicly-funded research accessible to the public, but are they doing a good job? GAO has the answer.

Historical documents that should be declassified are trapped in the archives, and the cause isn’t (necessarily) a massive conspiracy or national security concerns. The culprit is underfunding: government records processing facilities don’t have enough money to do their jobs, and the result is documents living in limbo and years-long backlogs. There’s more to the story for leg branch, and we’ll tell that story another time.
TOOLS & TIPS

GAO has a database of report recommendations that agencies still need to address.

CBO’s website has new search filters; you can now search by 10-year totals, revenue, and deficit spending.
ODDS & ENDS

How can civic tech helps democratic deliberation? Just look at Taiwan. (This is a good read).

ICYMI, an airspace violation during the week of Thanksgiving that triggered a White House lockdown; US Capitol Police restricted access to the Capitol Complex for about an hour. From what we can tell, the USCP fell down on the job in informing staff + the public about what was happening. Maybe they should consider using their Twitter account, publishing more press releases & statements (the last one was from October), and generally think about how to be responsive to inquiries and engage in more proactive communications. USCP is notoriously opaque. Perhaps they should go further and establish an advisory board that meets regularly and is composed of press, civil society, and members of Congress. Or Congress should encourage them to do so.

No Nunes is Good Nunes. Devin Nunes got into a to-do with Intercept reporter Lee Fang, where he accused the journalist of stalking him, but video suggests it ain’t so.

Keep up with Capitol Police Activity by checking out this week’s arrest round up. They publicly announced six arrests, largely traffic related.

Is butter a carb? No need to stay for dessert. DC food critic Tom Sietsema reviewed the House Members’ Dining Room since it was opened to the public in October. He’s not a fan. We haven’t been there in almost two decades, but if you want to do lunch, the &pizza is yummy.
CALENDAR

Monday

• Impeachment proceedings continue with House Intelligence and House Judiciary presenting their findings today at 9 in 1100 Longworth.

• Today at 12, the Congressional Management Foundation is holding a webinar on what it takes to get a campaign off a junior staffer’s desk and in the hands of senior staff & lawmakers.

Wednesday

• DOJ Inspector General Michael Horowitz will testify before the Senate Judiciary Committee at 10 in 226 Dirksen. IG Horowitz will be discussing his office’s investigation of FISA AbuseThe IG report on the issue is supposed to come out today.

Thursday

NYU’s 4th annual Sidley Austin Forum on Congress’ Role in Oversight and National Security is happening from 12:30 to 5:00 at NYU Global Academic Center, 1307 L Street NW.