Forecast for June 8, 2020

THE TOP LINE

Police reform takes center stage. Widespread outrage over the murder of George Floyd at the hands of Minneapolis police, combined with dozens of videos of police attacking non-violent demonstrators, the use of unidentified internal security forces to police DC streets, and more than 140 police attacks on the press have elevated public pressure on Congress to address systemic police misconduct. This may prompt the House to restart its floor proceedings sooner than planned, possible with police reform legislation.

Majority Leader Hoyer updated the House calendar last week in a very unusual way. Every weekday in June is a committee work day, with no floor votes expected except for June 30-July 2, followed by another two weeks of committee work days, and another two weeks of floor votes. Unusually, the House will be conducting business M-F — it usually only holds meetings in DC from Tue.-Thurs. — which means the House will have more days to get work done and, if members do not fly in-and-out, more meaningful time to work and a more efficient work schedule. This will be an interesting experiment; you might recall that fixing the House’s calendar was one of the priorities of the Select Committee on the Modernization of Congress.

Appropriations and NDAA markups scheduled. On Thursday, Approps Chair Lowey indicated approps markups will be held the weeks of July 6 and 13, with the expectation that bills could be on the floor the weeks of July 20 and 27. Meanwhile, the HASC scheduled the FY21 NDAA to begin on July 1, with subcommittee markups starting June 22. The Senate begins mark ups for the NDAA today. Your guess is as good as ours about whether and how the hundreds of NDAA amendments will be considered on the floor.

The first bill to be enacted by proxy voting was signed by Trump. On Friday, the president signed the latest PPP reform bill into law, even though many House members voted by proxy when the measure passed the House two weeks ago. What does this mean for the Republican lawsuit against proxy voting?

FISA legislation still in limbo. This bill is a great illustration of how Democratic and Republican leadership join together and use their positions and informational advantage to put one over on the rank and file. Reauthorization of surveillance legislation — the USA FREEDOM Reauthorization Act — remains in limbo after House Democratic and Republican leadership maneuvered the House to request a conference committee when it became clear that Republicans had joined with progressives on the bill’s substance and would succeed in killing the bill after leadership stripped out one very popular pro-civil liberties amendment (Lee-Leahy) and stymied consideration of another (Daines-Wyden). House leadership had previously prevented amendments in committee and on the floor, but the Senate passed a stronger version of the bill after civil libertarians sustained a filibuster and got concessions. The bill was moving forward until it became apparent that security hawks had added trojan horse language to the House version of the Daines-Wyden amendment, which would have inverted its effect. The House has named its conference committee members, but the Senate has yet to agree to conference.

The US Capitol Police and transparency is the subject of a letter we released this morning.

WHO RULES?

Prompted by nationwide demonstrations against police brutality, President Trump cited the Insurrection Act as a basis to deploy the military against civilians, which should scare anyone who has read Liza Goitein on the presidency’s expansive emergency powers. Many of these powers were granted by Congress and yet, when invoked, are a road to authoritarianism. Dems in both chambers plan on introducing legislation to limit the president’s power to deploy troops under the Insurrection Act.

Militarized federal law enforcement presence has elevated calls for DC statehood, and Majority Leader Hoyer said the DC Statehood bill will be brought to the House for a floor vote; it currently has 223 co-sponsors.

A word on language. I struggled with what to call the federal agents who act as police and refused to identify themselves or the agency they work for, but Defense One calls them “unmarked security forces,” which seems pretty close. Others call them secret police. So, for us, the term will be unidentified internal security forces, but suggestions are welcome.

OVERSIGHT

Congress snubbed on answers. Defense Sec. Esper and Joint Chiefs of Staff Chairman Miley refused to appear before HASC after Chair Smith requested they testify regarding the use of military force to drive out demonstrators near the White House. This is part of an ongoing problem where the House or Senate finds itself unable to compel testimony from administration officials. The current statutory contempt of Congress approach does not work (as the AG will not enforce), Congress finds itself unwilling to use its inherent powers, and other approaches (like appropriations) are too slow and have too high a bar to effectuate. FWIW, during Acting OMB Director Russell Vought’s nomination hearings before HSGAC and the Senate Budget Committee last week, Sens. Peters and Carper tried to get on the record commitments that OMB will comply with Legislative Branch oversight moving forward, but I wouldn’t bet on it.

Sen. Grassley halted Trump nominees over IG firings. On Thursday, Senate Finance Chair Grassley tweeted that he has placed a hold on two Trump administration nominees until Congress is given reasons for the firing of two inspector generals “as required by law”. WaPo has a great video on the history of IGs, and our friends at POGO are tracking IG vacancies. Also, there’s a new civil society letter calling on the Judiciary Committee to mark-up the Inspector General Access Act, which would allow the DOJ IG to investigate allegations of misconduct by federal attorneys; said markup is set for Thursday.

Low Barr. Political interference inside the DOJ will be the topic of a House Judiciary Committee hearing, after A.G. Barr declined to testify (after he committed to doing so), with whistleblowers as witnesses instead. On an unrelated matter, House Judiciary held Barr in contempt last year for refusing to cooperate on the census (to no avail, as Barr would oversee the prosecution of contempt citations); and the White House is pretty much refusing to allow senior officials to testify before the House. Notably, the White House is both refusing to let cabinet officials testify in person because of Coronavirus fears, and also refuses to let them testify remotely because it views the proceedings as not legitimate. Talk about having your cake and eating it too. PS, House Judiciary is proposing to cut Barr’s office budget by $50m, which one would assume would be the province of appropriators.

The PLUM Act was introduced in both chambers to increase transparency of Executive Branch senior leaders (H.R. 7101,S. 3896). Currently, a list of political appointees is published only once every four years as the Plum Book. This bill would require the OPM Director “to establish and maintain a public directory of the individuals occupying Government policy and supporting positions.” A bipartisan coalition of 18 organizations endorsed the bill. Read more here.

DOJ released 15 years’ worth of FARA letters that highlight how the government determines which lobbying firms and foreign news organizations must register under the act.

The Public Interest Declassification Board released its latest report to the president, which recommends the Executive Branch modernize policies to facilitate the use of advanced tech to improve classification decisions and further support automated declassification. Secrecy News comments that the “diagnosis is not new and neither is its call for employing new technology to improve classification and declassification.” It adds: “the new report therefore calls for the appointment of an Executive Agent who would have the authority and responsibility for designing and implementing a newly transformed classification system.” We cannot help but note that Congress does not have sufficient staff with clearances, and appropriators could push improvements in both chambers.

The Levin Center demoed Congressional oversight databases like the Lugar Center’s Congressional Oversight Hearing Index, the Brookings House Oversight Tracker, and the Comparative Agendas Project’s dataset coding 70+ years of Congressional Hearings by topic (watch it all here). The subject matter was similar to an Advisory Committee on Transparency event last year, where leaders like CIGIE Chair and DOJ IG Horowitz and Majority Leader Hoyer’s Senior Policy Adviser Steve Dwyer demoed transparency tools like oversight.gov and Dome Watch. There were also presentations from members of the Congressional Data Coalition, a cohort of people who have worked for a long time to improve the Legislative Branch through technology.

REMOTE PROCEEDINGS

Proxy voting is a political issue for Congressional Republicans, even though (as mentioned above) Pres. Trump signed a bill that passed the House with proxy votes. You can follow litigation in McCarthy v. Pelosi here, where the crux of their legal argument is whether the Constitution requires in-person assembly (or leaves the matter to the House to decide how to determine a quorum and count votes). the litigation is premature: it was filed before the first proxy vote occurred, the underlying law enacted through proxy voting is not yet in effect (so there’s no party with a particular injury), and proxy voting did not change the outcome. It’s also likely a political question where the courts shouldn’t intervene. We’ll be following it here.

House Rules Chair McGovern continues to push for full remote voting and deliberations after he penned an op-ed with activist Ady Barkan that calls for the House to embrace the use of modern technology to allow for remote voting and virtual committee proceedings during the pandemic. This approach has some Republican support, such as from House Republican Conference Chair Liz Cheney. Frankly, we think remote voting is much better (from a deliberative perspective) than proxy voting, and the House should adopt it now to moot the lawsuit. The House is only holding committee hearings this month, which should be enough time to turn remote voting on, unless it chooses to act on police reform.

The process of whipping votes “is just as effective,” (albeit a bit slower) under new remote working conditionsThe Hill reported. Typically, leaders gauge Members’ temperature on legislation through casual conversations on the floor, and can use the opportunity to push members. With Coronavirus those conversations haven’t stopped, they just look different: both parties’ Whips say individualized phone calls/texts/emails are sufficient for getting the job done. What is slower: socially distanced voting on the floor.

We don’t even want to talk about the Senate, but we will have a few articles and letters coming out on the need for remote deliberations in that chamber, and how hybrid proceedings are running into trouble.

How should House committees prepare for remote voting? We’ve made a graphic on exactly that question.

APPROPRIATIONS AND NDAA

July is officially Appropriations month (and probably August and September).Remember, Leg. Branch gets the smallest portion of the funds, and while there has been a slight funding increase over the last 25 years, most of that went to the Architect of the Capitol and Capitol Police.

What does this fast pace mean for Congress? Many members’ offices and committees were forced to put traditional must-dos on hold as constituents flood offices with urgent casework. In fact, the Fix Congress Committee held a virtual meeting on this topic. This approps schedule is unusually fast-paced. Let’s compare the House this year against last year.

* First subcommittee markup: April 30 vs July 6.

* First full committee markup: May 8 vs July 13.

Nerd out on our nifty chart that looks at non-defense discretionary spending over the last quarter-century. What you should note: non-defense discretionary spending has gone up by 55%, leg branch has increased at half that rate, and when you factor out the Capitol Police and the Architect of the Capitol, spending on the leg branch has barely budged (up by 8%). It’s why we can’t have nice things (unless leadership and senior appropriators decide otherwise).

CONGRESSIONAL OPS

Statue revocation. A bill to put a bust of Thurgood Marshall in the place of Roger Brooke Taney (who wrote the Dred Scott decision) in the Old Supreme Court Chamber, located in the U.S. Capitol, was intro’d last week (S. 3863) by Maryland Sens. Van Hollen and Cardin, with identical legislation to be intro’d in the House by Maryland representatives. Taney was from Maryland. Statues in the Capitol Complex can be a complex matter to manage. We’ve previously called for removal (or simply moving from public view) of the eight Confederate memorial statues around the Complex complex with our friends from the R Street Institute. The committee of jurisdiction is the little-known (but much lovedJoint Committee on the Library, which, according to the website, is currently chaired by Sen. Roy Blunt, with Rep. Zoe Lofgren as Vice Chair. We believe the Capitol should be a welcoming place for everyone.

Protests around the Capitol fall under Capitol Police’s jurisdiction; the department reported three arrests in last week’s arrest summary, including two individuals accused of defacing government property. Roughly 500 USCP personnel were deployed based on an internal document compiled for the Joint Chiefs of Staff. We wouldn’t take these three arrests as the total number of arrests USCP was involved with, as other police departments may have been primary.

The Capitol Police Department is infamously untransparent and unaccountable, particularly when compared to its peers. USCP’s funding is roughly comparable to the DC Police Department — $464m vs $556m — especially if they receive the bump to $516.7 million they requested for this fiscal year. But its mission is much narrower, both in terms of primary jurisdiction and scope, and the USCP does not follow the transparency and accountability practices one would expert for law enforcement or for a federal agency. We’ve been following them closely for 18 months, and this morning we sent this letter outlining our concerns with USCP practices and specific measures they should adopt to be more transparent and accountable. We have no hope of them acting without Congressional prompting.

Who determines when it’s safe to reopen offices and what steps offices should take if staff can’t or won’t return in person? Kristine Simmons of the Partnership for Public Services testified before the Fix Congress Committee, saying that the House must adequately communicate what metrics must be met to reopen while also granting flexibility for continuity. Simmons also provided a “Ready to Return” checklist that includes a multitude of questions for offices to consider, including telework policies and what to do in case of a resurgence in cases. Meanwhile, Rep. Amodei said he is considering laying off DC staff; it is odd if it is true that he can’t find enough for them to do.

ETHICS

Del. San Nicolas’ campaign has refunded the $9,000 in unreported money, the Guam Daily Post reported, after a report surfaced two weeks ago that Nicolas’ former campaign chairman told OCE that the Member accepted $10,000 “in unreported cash” and engaged in a sexual relationship with a campaign staffer.

The FBI is still investigating Senator Burr for insider trading; meanwhile, the bureau closed investigations into three other Senators (Loeffler, Inhofe, and Feinstein) for similar charges. The closing of these cases gives the green light for the Ethics Committee to open an inquiry, should they choose to do so.

Did Rep. Connolly push for billions to go to defense contractors in the latest coronavirus bill? According to a report by ProPubilca, the Heroes Act language pushed by Rep. Connolly concerned defense and intelligence contractor compensation and included exact wording used by an industry group. Oops. ICYMI, Rep. Connolly had put his hat in the ring for chair of the Oversight Committee last year and currently serves as Chair of its Subcommittee on Government Operations.

ODDS & ENDS

Welcome to GPO’s new Deputy Director, retired Colonel Patricia “Patty” Collins.

The newly minted House Office of Diversity and Inclusion is hiring several full-time positions, including a Comms Manager, a Professional Staff Member, a Research and Data Analyst, and a Staff Assistant.

OIP is out with FOIA statistics, but Lauren Harper of the National Security Archive writes the DOJ is puffing up the release rate to 94.4% when the actual release rate hovers between 50%-60%.

Congressional App Challenge 2020 has officially launched, with the House releasing the latest application portal and a list of rules and guidelines. Only middle and high school students can apply and applications will be accepted through October 19.

Interested in working with Congressional data in R? A new project launched by Josh McCrain provides a comprehensive guide to clean, merge, visualize, and model congressional data.

The European Parliament pushed for greater digitization and transparency by strongly recommending any software developed by and for the EU institutions to be made publicly available under Free and Open Source Software licence.

EVENTS

Monday

• Senate Armed Services Committee is holding “Subcommittee markups of the National Defense Authorization Act for FY2021” starting at 2:30 pm. Meetings will continue throughout the week and most are closed to the public.

Wednesday

• Senate Homeland Security and Governmental Affairs Committee is holding a “Business meeting to consider the nominations of Russell Vought, of Virginia, to be Director of the Office of Management and Budget, Craig Edward Leen, of the District of Columbia, to be Inspector General, Office of Personnel Management, and other nominations” at 9 am on 325 Russell.

• Senate Armed Services Committee is holding a “Full Committee markup of the proposed National Defense Authorization Act for fiscal year 2021” at 9:30 am. This is a closed meeting.

• House Judiciary Committee is holding an “Oversight Hearing on Policing Practices and Law Enforcement Accountability” at 10 am in 200 CVC the Capitol.

Thursday

• House Administration Committee is holding a hearing on “The Impact of COVID-19 on Voting Rights and Election Administration: Ensuring Safe and Fair Elections” at 1 pm.