Before we start, it’s worth rereading MLK’s letter from a Birmingham jail. I found this section resonant: “I have tried to make clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or perhaps even more so, to use moral means to preserve immoral ends.”
THE TOP LINE
Press under attack: the Senate has implemented ridiculous press restrictions for impeachment trial coverage. Coalitions of transparency advocates (like us), free press representatives, and the Senators themselves all are saying the restrictions must go. There’s no public-facing written guidance on the rules, but that’s not stopping the Capitol Police from ending voluntary conversations between Members and press if they’re outside the press pens. More details in the impeachment section below.
The Fix Congress committee discussed how to reclaim Congressional power last week; we summarize the discussion below.
Freedom for all press: the DCCC filed a House ethics complaint against GOP “trackers” for recording video in public House hallways.
Senator McConnell released a resolution that will govern floor procedure for the impeachment trial. It notably will speed through the proceedings, make it hard to consider evidence, and does not parallel other impeachment proceedings like the one concerning Bill Clinton. It moves things along in a direction akin to jury nullification of the articles of impeachment against Trump.
The Senate is placing undue (and ahistorical) limits on press access to the impeachment trial, including press pens (to stop the press from walking-and-talking with senators) and yet another magnetometer. FWIW, reporters with access to the Chamber have already been vetted and have special press passes. Video will be controlled by the Senate, despite a press request for a feed that they control; this means the view will be limited and the feed can be cut at any point.
The SAA and USCP say the measures are to “protect senators and the chamber” but senators on both sides of the aisle, including Rules Ranking Member Amy Klobuchar, say these restrictions are a huge mistake. We think the security justification is a red herring to undermine public accountability, especially in light of the Capitol Police’s 2,300 employees (including 1,800 officers) and implementation of a secure perimeter.
The Umpire Strikes Back. The Senate Parliamentarian will advise Chief Justice Roberts on procedural questions. Dig into the details of the trial ground rules, via RollCall. The House can still add additional articles to the impeachment resolution.
Broken law. GAO says Trump violated the law by withholding Congressionally appropriated funds from Ukraine: “Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.” GOP Members are pooh-poohing the finding. Also notable: the DOD refused to respond to GAO’s request for information, and GAO will continue to pursue “the potential impoundment of FMF funds,” where others in admin did not provide info.
ON OUR RADAR
We asked what you thought of the First Branch Forecast, the short answer is ‘not too shabby.’ 10% of readers just like you shared their thoughts. People like the Monday delivery (67%) and the length of the letter (78%). Segments on important legislation, oversight news, and tools for policy nerds were crowd favorites. Tell us what you think: fill out the survey by COB Friday while you watch the impeachment proceedings.
We heard your feedback, and present you with a new weekly segment highlighting industry tools and resources: Making Your Job Easier. This first installment features our newest twitter bot, @Global_OTA, which helps pull science and technology reports from the European Parliamentary Technology Assessment. Check out the details.
You oughta know: No hearings (so far) in our wheelhouse this week, but mark your calendars for February 19 at 3pm in 2168 Rayburn, where GAO will give an overview of their expanded science and tech capacity.
POWER OF THE PURSE
This is your regular reminder that if all discretionary funds ($1.4 Trillion) were represented as $100 to allocate to the 12 appropriations subcommittees, $50 goes to the Defense SubC, 10 subcommittees that roughly correlate with Executive Branch agencies get $49 and the Legislative Branch gets about 50 cents.
Trump plans to spend five times the amount Congress appropriated on the border wall, pointing to a statute meant for security or military crises as legal justification. Congress took the Administration to court over this matter, but the Courts have sided with Trump for now.
Trump continues to buck or ignore Congressional spending directives, and House budget Chairman Yarmuth is working on a bill to do something about it. The legislation will likely be introduced this winter. Republican Senate Budget Chair Enzi has introduced his own reform bill.
• Publishing OLC opinions that would, among other benefits, create a level playing field when Congress wants to resolve disputes with the Executive in the courts. Incidentally, the OLC Sunlight bill would accomplish this.
• Changing time limits on Member questions at hearings; the current five minute rounds lends itself to social media sound bites more than tough oversight questions.
• Restoring earmarks in a transparent way: despite the ban, appropriations money still gets earmarked anyway (Members just don’t call it that). Plus, the Executive Branch still earmarks and spends disproportionately in swing states before elections, according to Dr. Hudak. Transparency could add some accountability and shift power back to Congress.
• Increasing staff and paying them well enough to stay: Low pay drives staff to the exits; they (and their institutional knowledge) end up in the Exec Branch or K Street. Members can get constituents on board by emphasizing that capacity building means better customer service.
Got space? We talk all the time about needing more congressional staff, but where would they sit? Most offices literally don’t have desk space for more staff (which also limits the ability to take fellows). In the Rayburn Building fewer than 20% of its floorspace is offices.
CONGRESSIONAL OPS + POLITICS
Congress in 2019: BGov has an excellent, data-driven analysis of Congress in 2019 (subscription required). 75% of the Senate’s 428 floor votes were for federal court and executive branch changes. They confirmed 100 district and appellate court judges (more than 2017+2018). The House sent 400 bills to the Senate — to the graveyard, and House Democrats were largely unified on those votes. However, there were significant bipartisan agreements (like the 9/11 Victim Compensation Fund and the trade deal), and also notable splits inside the Democratic party, such as on the border funding bill.
Myths About Bipartisanship. Norm Ornstein and Tom Mann had an excellent opinion piece on the 5 myths about bipartisanship that everyone should read. They argue bipartisanship is almost impossible right now, Republicans are largely at fault, there is no halcyon bipartisan past, and bipartisanship is not necessarily a good thing — think the consensus that kept segregation in place. In our experience, bipartisanship is not good or bad, but a tactic and not the goal—the goal is enactment of policy that represents our values. Bipartisanship shouldn’t be mistaken for actual fairness and equality in our political system, nor for (necessarily) bringing voices to the table—especially marginalized ones.
A remote Congress? Philip Wallach looks at proposals to allow members to vote from their district, delving into the delegate versus trustee models of democracy and the size of the House chamber.
Schiff is complaining the NSA + CIA are withholding information. We wish he had been supportive of efforts to strengthen Congressional oversight of the Intelligence Community, because he’d have more tools to vindicate the legislative branch’s oversight authority.
TECH & TRANSPARENCY
FOIA exemptions are abused to keep the public in the dark, with responsive documents frequently comically over-redacted or withheld altogether. The “Foreseeable Harm” standard, which is used to justify withholding information, is being put to the test before the DC Circuit Court, with a hearing this past Friday. Congressional action is needed to strengthen FOIA.
The ACLU says abuse of FOIA exemptions keeps the public from seeing how the Trump Administration is usurping Congressional power.
The National Freedom of Information Coalition found that 13.6% of all state level bills were transparency related in its report on 2019 transparency-related state-level bills.
Have ideas on improving electronic rule making? GSA is soliciting public comments.
Memory hole. We don’t know what to say about the National Archives retouching photos from the Women’s March to blur criticisms of President Trump, and then apologizing once caught. “Who controls the past controls the future: who controls the present controls the past.”
Update on war powers activity: the House will likely vote on war powers legislation from Reps. Barbara Lee & Ro Khanna the week of 27th. The Senate hasn’t voted on the war powers resolution from Sen. Kaine yet; it has some R support and requires a simple majority to pass.
A campaign finance rule makes life harder for working class candidates by preventing them from using campaign funds to pay themselves a salary until the primary deadline has passed.
Hill staff with a Congressional Accountability Act claim: OCWR says you’re entitled to a confidential advisor.
More than 50 Members of Congress (from both sides of the aisle) personally profit from war, according to Sludge’s report on Members’ holdings in defense contracting companies.
It’s been 10 years since Citizens United and Open Secrets has a new report on how money in politics has changed. For example, dark money has increased 646% and wealthy individuals, not corporations, are the biggest players.
Roughly 1 in 14 Trump political appointees are lobbyists. President Trump has appointed four times as many lobbyists (just in his first 3 years in office) than Obama did from 2009-2015.
RESOURCE ROUND UP
Did you know there’s a one-stop shop for ethics & financial disclosures, and more on the (Exec. Branch) Office of Government Ethics website?
A new United States Supreme Court Nominations Web Archive from the Law Library of Congress collects articles, press releases, etc. related to nominations of several Justices.
The US Congressional Serial Set digitization effort is starting; what’s the serial set you ask?
Good Reads from CRS: Salaries of Members of Congress: Congressional Votes, 1990-2019; Salaries of Members of Congress: Recent Actions and Historical Tables; Presidential Pardons: Overview and Selected Legal Issues; The Congressional Review Act (CRA): Frequently Asked Questions.
COMING & GOING
The new Architect of the Capitol, J. Brett Blanton, was sworn in on Friday by C.J. Roberts.
Rep. Ann Kirkpatrick (D-AZ) is taking time off from Congress to seek treatment for alcohol dependence. This means her seats on the appropriations and agriculture committees will be temporarily vacant.
Rep. Chuy Garcia will Chair the House Natural Resources Committee; the position opened up when Rep. Van Drew switched to the Republican party in December.
No. 3 House Republican Rep. Cheney does not plan to run for Senate; the Senate seat in Wyoming will be vacated by retiring Senator Mike Enzi.
ODDS & ENDS
The First Branch Forecast covers a lot (but not everything), round out your reading list with some of our favoritest: LegBranch.org is like First Branch Forecast but with an academic perspective; Jeff Hauser’s revolving door project newsletter calls out Exec. branch officials who put personal interest before the public; Legislative Procedure is exactly what the title suggests; and Mike Stern’s Point of Order is a little bit of everything.
Get a taste of Leg Branch’s content with their take on legislative diplomacy. Spoiler alert, Congress has a whole office dedicated to diplomacy.
Independent Rep. Amash told Rolling Stone, “rank-and-file members [are] abdicating almost their entire role”.
The Joker and a former President get arrested. Actors Joaquin Phoenix and Martin Sheen were two of the over 140 people arrested by Capitol Police for protesting in Jane Fonda’s final DC Fire Drill Fridays. Check out the complete USCP arrest roundup.
The House is in recess this week while the Senate takes on the impeachment trial.
• The Library of Congress is hosting a webinar on “Perspectives on Brexit” at 2pm.
• Emerging Case Law on Congressional Oversight is the Levin Center’s latest event at the National Press Club. If you’re interested, make sure you RSVP.
Down the Line
• State of the Union is set for February 4.
• GAO will discuss its expanded tech expertise on February 19 at 3pm in 2168 Rayburn.