Forecast for February 15, 2021

THE TOP LINE

Impeachment Trial. There’s no legitimate question about Trump’s guilt, the Senate confirmed its jurisdiction 56-44 (which is basically what CRS said), and jury nullification is not a legitimate option. What’s at stake for Trump: disqualification from serving again in high office. What’s at stake for America? Whether we suffocate our democracy. Sen. McConnell declared his support for acquittal of Trump prior to the vote and personally blocked the reconvening of the Senate to receive the House’s impeachment message, which would have eliminated the jurisdictional argument on which he says he based his vote. As we all know, actions speak louder than words and votes speak louder than belated floor speeches. The final result, 57-43 to convict — the ayes representing 62% of the US population — with 7 Republican senators worthy of the name of the party: Richard Burr, Bill Cassidy, Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse, and Pat Toomey. Whether we pass legislation to save our democracy will fall on the shoulders of Democrats for the next two years; it is obvious we cannot rely on help from ten Republican senators necessary to overcome a filibuster.

How to keep Congress safe and open? Congress will consider a “security supplemental” appropriations bill, but what should it address? We think the Capitol Police, remote deliberations, and cybersecurity. Our (newly released) recommendations are here. Also, we have a new coalition letter opposing permanent fencing out today; and Reps. Takano and Foster have questions about House cybersecurity. Meanwhile, the Capitol Police union voted “no confidence” in USCP management and ProPublica’s Joaquin Sapien and Joshua Kaplan have a devastating report about management failures.

Appropriations. The Leg branch appropriations subcommittee, which typically goes first, set a hearing on House Wellness and Office of Employee Assistance (Thursday @10). Other House appropriators also are starting to hold hearings this week. In the Senate, the new Murphy rule (Murphy’s law?) has led to an approps subcommittee chair shuffle. We’ve summarized the changes in this spreadsheet; for our purposes, the big news is Leg branch’s new leaders: Sen. Reed as chair and Sen. Braun as RM.

Rep. Wright died as a consequence of contracting COVID. He is the first sitting Member of Congress to die from the illness (Rep.-elect Letlow passed in December), although we do not know how many staff have died or how many people will suffer long term consequences. More resources on continuity of Congress during COVID are here.

APPROPRIATIONS AND COMMITTEE ASSIGNMENTS

Sen. Shelby won’t seek re-election to the Senate after serving seven terms; he serves as the top R appropriator and his departure will cause a shuffle.

Some approps resources. Our twitter bot, @appropstracker, automatically tweets news from the House and Senate approps committees. We’re tracking Leg branch approps documents on this wiki page, which has information going back to 2013 as well as the recently-released FY 2021 Leg branch budget justifications.

And from CRS: their appropriations status table has FY 2021 information and they have a new report breaking down how the approps committee structure has changed over the last century.

A note about our approps coverage. We focus on Leg branch (and to a lesser extent FSGG and CJS) because that subcommittee is at the heart of the functioning of Congress and rarely receives in-depth news coverage (with the exception of Roll Call). We will “attend” the hearings and mark-ups, read the testimony, and follow the legislation in detail. But, compared to last year, we have one fewer staff person, the pace of Congressional activities have picked up, we’re at the start of a busy new Congress, COVID negatively affects our availability, and this newsletter is a(n important) sideline from our other work. So we must ask you to extend us some grace because there’s no way we can keep up with everything — and to please flag important items for us. Send us a note at capacity@demandprogress.org.

STRONGER CONGRESS

Molly Reynolds at Brookings has a new report entitled Making Congress a better place to work. Her recommendations address protecting employee health and safety, ensuring congressional staff look like the Americans they serve, empowering offices to recruit and retain top talent, and streamlining some administrative operations.

Permanent paid remote internships would make a career in Congress accessible to a wider pool of candidates who would otherwise be excluded by the cost or physical requirements, according to a Dear Colleague letter circulated by Reps. Jayapal and Omar.

The newly created Chief Data Officer Council, which just stood up a website and issued its first report to Congress, is responsible for “improvement in the management, use, protection, dissemination, and generation of data in government decision-making and operations.” We had previously advocated for a Chief Data Officer for the Legislative branch to help support the great work of the Bulk Data Task Force and facilitate information-sharing related to the Legislative branch — now renamed as a Legislative Branch Data Coordination Office — and are hopeful that Congress will create this function as a legislative parallel to the CDOs.

LEGISLATIVE ACTIVITY

GAO could receive a $77m bump per a House Oversight recommendation “to promote transparency and accountability of all federal coronavirus relief funds” as part of its part of budget reconciliation.

Congressional Budget Justification transparency is the subject of a newly reintroduced bill by Sens. Peters and Portman (S. 272), who fortuitously are the chair and RM of the relevant Senate committee. A companion measure (H.R. 22), introduced by Reps. Quigley and Comer (the latter is the RM of House Oversight), passed the House on Jan. 5th. It has bipartisan civil society support. More from GovExec’s Courtney Buble.

House Admin held an eventful organizing meeting on Wednesday (watch here) where the committee approved its rules for the 117th Congress — largely unchanged from those of the 116th Congress — and approved nine resolutions governing Leg branch operations issues ranging from paid internships, student loan repayment plans, employees’ workplace rights & anti-discrimination policies, and regulations for eCMOs.

• Ranking Member Davis aired concerns that the committee held no markups and fewer than 10 full committee hearings in 2020, instead using committee polls to weigh in on matters. (CRS explains the polling process, which is an asynchronous way for committees to conduct business: The chairman (or designated staff member) asks each committee member to declare their position or grant consent to take a particular action. Polls may be conducted by telephone or through return of a written document.) By our count, the committee held 5 markups and 19 hearings in 2019. We haven’t looked at the committee activity reports to count hearings/markups in prior Congresses, but House Admin seems more active to us than in prior years.

• Continuity of Congress issues came up in both the Chair and Ranking Member’s remarks. Chair Lofgren noted the committee must prioritize keeping Hill employees “safe and healthy during a global pandemic,” and Rep. Davis flagged that the internal COVID Task Force hasn’t met since last summer.

CAPITOL SECURITY

No confidence. As mentioned above, the US Capitol Police union voted “no confidence” in USCP leadership following the January 6th attack. Speaker Pelosi has introduced a bill to award Capitol Police congressional gold medals for their efforts during the attack; the Senate unanimously voted to award Officer Eugene Goodman a congressional gold medal.

They tweet! Mark your calendar: the Capitol Police joined Twitter in September 2008 and tweeted for the first time on February 5. While the general rule is never tweet, in their case, it should be the opposite. We’ve been calling them out on their insufficient public communications for years.

• There’s now a truther movement claiming the death of Officer Brian Sicknick, who died as a consequence of protecting the Capitol on January 6th, was the result either of natural causes or he was murdered to tarnish Trump’s name.

Will we get answers about the January 6th insurrection? 9/11 Commission Chairs Thomas Kean and Lee Hamilton are suggesting a bipartisan, independent investigation, Congressional overseers have signaled intent to start their own investigations, and Capitol Police’s watchdog and office of professional responsibility are conducting review for the department. Will any of this be public? Has anyone heard from Gen. Honoré?

• What about insurrectionists? See for yourself. Fix the Courts’ request for live streams of January-6th-related-cases and waivers of PACER fees for those cases was not exactly granted. That said, the Administrative Office of the Courts is prioritizing technical support for courts handling the Capitol attack cases, and noted that while the office can’t grant PACER waivers it can recommend that courts post information including high-profile cases.

The Architect of the Capitol’s watchdog released an evaluation of the agency’s emergency response preparedness. It found that while COVID-19 response was effective, preparation in training exercises was not always consistent. The IG recommends the AOC implement quarterly review of preparation for emergency management exercises and that the AOC coordinate with the CAO to develop and update policies to comply with pandemic related legislation.

TRANSPARENCY AND ACCOUNTABILITY

FOIA Exemptions. While there are 9 major exemptions to FOIA, that bedrock transparency bill has been turned into Swiss cheese over the decades. FOIA exemption b(3) exempts from disclosure “nondisclosure provisions that are contained in other federal statutes.” How many statutes are there? How often are they used? GAO was tasked with answering that question for FY 2010-2019, finding that federal agencies cited 256 different statutes as the basis for withholding information, resulting in citation of these statutes 525,000 times; only 81 of those statutes have been subject to judicial review. Appendix III catalogs the b(3) statutes and appendix IV identifies statutes first used in 2017-2019.

Mexico’s FOIA is under attack — by many accounts it is faster, cheaper, and more effective than the US FOIA law — on the basis that transparency alone is insufficient to provide accountability and the law is blamed for not reforming Mexico’s corrupt political institutions. (How could it?) Per this article by Mary Beth Sheridan, Mexico’s FOIA requires a response in 30 days, allows an independent institute to overrule recalcitrant agencies (as opposed to the US where litigation can take years and years), and is responsible for the disclosure of many corrupt practices.

Bills enacted at the end of last Congress include legislation to provide anti-retaliation protections for antitrust whistleblowers (S. 2258) and a bill authorizing the Sergeant at Arms and Doorkeeper of the Senate to delegate authority to approve payroll and personnel actions (S. 5076). A bunch of good government billsdidn’t make it across the finish line; we have a non-exhaustive list of those bills here.

The DOJ IG, Michael Horowitz, details his views on what is necessary for presidential accountability reform.

Tech in the Senate. We note two interesting resolutions on technology in the Senate during the impeachment trial. S. Res 41 allows 7 laptops on the floor; and S. Res 39 allows for the use of “equipment,” such as video monitors and microphones. Because of COVID restrictions and security concerns, this is the first modern impeachment trial closed to the public, making tech and press access all the more important.

ODDS AND ENDS

Speaker Pelosi has extended the emergency “covered period” that allows for proxy voting through April 4th.

Commemorating January 6th. Rep. Soto is looking for cosponsors on a resolution to designate January 6th as Capitol Insurrection Remembrance Day.

Rep. Claudia Tenney’s victory over ex-Rep. Anthony Brindisi (D-NY) is confirmed.

GAO’s innovation lab has a new website.

Bend the knee. McCarthy requested that Cheney apologize to the GOP conference for her impeachment vote against Trump.

New reads from CRS this week include primers on National Emergency Powers, House Conferees, and Bill Sponsorship in the Senate.

The winners of the 2020 Congressional App Challenge have been announced.

My FOIA valentine. Muckrock has some fun FOIA valentines.

CALENDAR

The House and Senate committee calendars are aggregated here. Should there be House floor activity, it will be here. Information about the Senate floor schedule is here. Select events and proceedings are listed below.

• The Project on Government Oversight is hosting a virtual town hall on “Our Federal Response to Domestic Security Threats: How to Avoid Past Mistakes” on Tuesday, February 16th at 3:00 pm ET.

Thursday

• House Leg Branch Appropriations has a hearing with the House Wellness and Office of Employee Assistance (OEA) at 10.

Down the Road

• FOIA Advisory Committee will be meeting on March 3.