THE TOP LINE
The “Senate is hiding from all of us,” writes longtime hill reporter Kathy Kiely, who said “the current security scheme appears designed to protect lawmakers from reporters’ questions.” The restrictions on press access, which we oppose, are a black eye on the Senate and a provocation for future restrictions.
Care about leg branch funding? We’ve built the definitive spreadsheet on funding, tracking every line item appropriation over the last 25 years.
Congress’s Science & Technology Policy capabilities were the subject of a recent NAPA report; our white paper covers the reports strengths and weaknesses and now we are pleased to release a 1-page summary. Stay tuned for news about an upcoming hill briefing on recs we co-authored (and will release soon) with the Lincoln Network.
Whistleblowers and CBO hearings: House Oversight will discuss whistleblower protections tomorrow at 2. The House Budget Committee has a hearing on “The Congressional Budget Office’s Budget and Economic Outlook” at 10 on Wednesday.
War and Peace. Tonight at 5, House Rules will consider a measure from Reps. Barbara Lee and Ro Khanna to repeal the 2002 AUMF and prohibit military strikes on Iran absent Congressional authorization; the effort is an aspect of the leg branch’s reassertion of its proper role. (Notable is the procedural posture to avoid defection from a handful of Dems by sidestepping a MTR.) In addition, newly introduced legislation would provide long overdue reforms of the government’s surveillance powers — some authorities are set to sunset in March — in the wake of revelations of misuse of those authorities and a recent DOJ IG report on FISA process abuses. See our primer on section 215.
Just for fun: the NYT made a 3-D tour of how the Senate was transformed for the impeachment trial.
The Justice Department’s Office of Legal Counsel issues authoritative — and often secret — legal guidance to the Executive Branch, providing legal rationales for the Executive Branch’s policy positions on all sorts of issues. While the OLC is supposed to interpret the law in the same way the federal courts would decide an issue — fairly and based on precedent — the OLC at times has put its thumb on the scale to support the Executive Branch’s policy goals, and has been slapped down by the courts when the underlying matter has made it to the courts. OLC keeps an unknown number of opinions secret from the public and Congress — even fighting FOIA requests for just the title of the opinions — in a move apparently calculated to avoid accountability. Recent legislative efforts would improve accountability and transparency for OLC opinions, and a new provision included in a report accompanying the recently-enacted appropriations laws strongly urges the OLC “to publish all legal opinions and other materials that are appropriate for publication.” (This waters down the original House request.)
Joint Explanatory Statements. Just as appropriations subcommittee reports explain the underlying legislation and are looked to for guidance by the implementing agencies, so too are joint explanatory statements when appropriations bills are reconciled by the two chambers. These documents are important because that is where new requests for agency behavior can be added and, in addition, it is where requests included in an already-reported subcommittee report are modified or cancelled. Unlike the committee reports, which are prominently featured on CRS’s approps tracking webpage, it is not obvious where to find the explanatory statements. Click on the “+notes” button on CRS’s approps webpage, located below the approps bill you care about, and you’ll see a link to the explanatory statement in the footnotes.
Tracking congressional separation of powers litigation? There’s a boomlet in litigation between the House and the Executive Branch for matters that the president normally would not contest, but it’s really hard to track. Fortunately, the Levin Center unveiled a new hub on Congressional oversight case law (which should suffice at least until the House’s Leg Counsel starts publishing all this stuff). Maybe someone will start blogging about the proceedings, a la SCOTUSBlog. The closest that exists right now is the excellent blog PointOfOrder. By the way, an appeals court decision on testimonial immunity for White House Aides is expected soon.
A record number of laws were introduced in 2019, but only 105 (a relatively low number) were enacted. We discussed the Senate’s shift from legislation to appointments last week.
House Rules highlighted, in a new video, procedures that the House enacted to make the House work better. The video covers the House’s implementation of a real 72 hour rule and its passage of 400+ bills, many of them bipartisan.
An earmarks trial balloon was floated in Politico, with retiring Approps Chair Lowey reportedly planning to hold meetings with freshmen on the matter.
House Ethics. It looks like the House Ethics Committee has upgraded its webpage. (H/T to an alert reader).
TRANSPARENCY AND ACCOUNTABILITY
The Commerce Department won’t give Congress a report on its investigation into national security risks potentially posed by imported vehicles and auto parts — citing a hilarious OLC opinion that says the executive branch does not have to comply with a federal law requiring the report be turned over to Congress. Why? Executive branch privilege. (This must be the OLC version of the Aristocrats.)
The Administration is diverting $7.2 billion for defense projects to the border wall, and lawmakers want answers.
Impoundment. The House Budget Committee chair expressed interest in strengthening the Impoundment Act, which addresses when the Executive Branch refuses to spend money that Congress has appropriated. They are exploring increasing transparency and instituting fines for deliberate violations of the law. Congressional experts have voiced support for the effort, which has received attention after the GAO determined the Executive Branch improperly withheld appropriated funds from Ukraine.
The Administration sold nuclear technology to Saudi Arabia without consulting Congress; incidentally it was right after the Saudi government brutally murdered the journalist Jamal Khashoggi. The news about MBS’s apparently hacking Bezos’s phone, and possibly others (like Jared Kushner), is just icing on the cake. House Oversight minority staff opined last year, however, that notification rules were not skirted.
Agencies are trying to stymie responding to FOIA requests by sending “still interested” letters, and then summarily closing requests. OIP issued guidance on this practice a decade ago and the FOIA Whistleblower Ombudsman blogged about the best practices agencies should follow.
Who Owns the Law? It should be the public, no? But “the problem of private control is longstanding and growing worse in the advent of electronic publishing and publisher consolidation.”
The National Archives apologized for censoring historic images critical of the president.
What can we say? The impeachment process going on now is the culmination of trends that have weakened Congress as compared to the Executive Branch.
Read Kel McClanahan’s take on the toothless specter of executive privilege in the Senate. “The lengthy court battles the Republican Senators appear to fear would not be necessary, because the White House cannot impose a prior restraint on a former employee based on a claim of executive privilege. Because everything in the Senate trial is a question of majority vote, the only way Bolton would ever face any potential consequences would be if 51 Senators voted on the record to hold him in contempt of Congress, and if the Department of Justice were to actively try to prosecute him for it. That is not a reasonable possibility.”
‘Pro Bono lobbyist’ or working on spec? Some unpaid lobbyists are betting that regime change will lead to a payday.
The new corruption index, released by Transparency International, has the United States dropping to 23rd place (out of 169), saying the U.S. faces many challenges, “from threats to its system of checks and balances and the ever-increasing influence of special interests in government, to the use of anonymous shell companies by criminal, corrupt individuals, and even terrorists, to hide illicit activities.” Citing Pres. Trump, TI says the “‘pay-to-play’ culture has only become more entrenched.”
ODDS & ENDS
People were arrested for disorderly conduct including chanting, shouting, and dropping papers down the Rotunda in the Russell building on Friday. This and more in the weekly arrest breakdown.
March 3rd is the special election to fill former Rep. Katie Hill’s seat.
Congratulations to GPO’s new General Counsel, Kerry Miller.
Harvard business says congressional dysfunction is bad for business.
• House Rules Committee is meeting Monday at 5pm in H-313 to combine the 2 Iran bills into legislation.
• House Oversight’s Subc on Government Operations will be holding a hearing on “Protecting Those Who Blow the Whistle on Government Wrongdoing” at 2pm in 2154 Rayburn.
• House Ways and Means will hold a hearing on “Legislative Proposals for Paid Family and Medical Leave” at 10am in 1100 Longworth.
• House Budget is holding a hearing on “The Congressional Budget Office’s Budget and Economic Outlook” at 10am in 210 Cannon.
Down the Line
• State of the Union is set for February 4. Speaker Pelosi and Senate Minority Leader Schumer have named MI Governor Gretchen Whitermer and TX Dem. Rep Veronica Escobar to respond.
• Learn about GAO’s expanded capacity on cyber, data analytics and foresight on February 19 at 3pm in 2168 Rayburn.