Forecast for February 22, 2021

Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. (Was this email forwarded to you? Subscribe here.)

SUPPORTING CONGRESSIONAL STAFF + MEMBERS

The Office of Employee Assistance (OEA) and mental health inside the Legislative branch was the topic of the first Leg branch Appropriations subcommittee hearing for the FY 2022 appropriations cycle, which will have 14 hearings in total, the first three focusing on January 6th. We should note that Rep. Ryan has long made mental health and well-being a focus, and we applaud him and the committee for starting on this topic.

• Capitol Police. The hearing primarily revolved around resources OEA is providing USCP officers, congressional staffers, and essential workers on the Hill. OEA Director Tewsburky said the office currently has a total of 16 counselors, four of whom are professional crisis counselors with backgrounds in law enforcement trauma. Since January 6, OEA began deploying 24-hour counseling services for USCP officers, which have provided approximately 1,150 interactions, including 750 counseling sessions. These on-site counselors are being financed by USCP.

• Staff and essential workers support. OEA Director Tewsburky mentioned that OEA services were provided to over 3,000 people in 2020, and the office continues to work with contract companies to ensure contract workers are receiving the necessary support systems. Rep. Espelliat mentioned the critical need for diversity and representation for employees and officers of all backgrounds. Tewsburky mentioned that 50% of OEA professionals are African Americans, and they continue to connect employees to bilingual services to strengthen support.

• Telephone, not video. OEA is using telephonic services, not video, to hold sessions with staffers and officers. (In non-COVID time, some services would be offered in-person.) OEA said the transition to full telephonic support was seamless since they have used these types of services with district staffers for decades. Rep. Wexton mentioned she would like OEA to have the ability to use video counseling.

• More resources. Throughout the hearing, almost every single Member asked “What do you need from us?” The committee is apparently prepared to provide more resources so mental health and wellness services can be sustained at a higher level. Full Appropriations Chair DeLauro, who participated in the proceedings, echoed this sentiment during her opening remarks. Chair DeLauro and said she plans to attend as many Leg branch hearings as she can.

The experiences of Black staffers during the Trump insurrection — how close they came to violence, what it means for democracy, how they feel towards others — is the focus of an article by Luke Broadwater. In recent years there has been increasing research into the lack of diversity among Congressional staff and how that shapes the environment, with some of the most in-depth research conducted by Prof. James R. Jones of Rutgers, who has spoken about the Capitol’s racial caste system and is finishing up his new book, the Last Plantation, on racial inequality in the Congressional workplace. We have seen some efforts to address the staffer pipeline, such as the House’s creation of an Office of Diversity and Inclusion, the beginning of paid internships in both chambers (but not yet committees), a House study on staff pay and diversity, and a now quite-late Senate study on its staff, but there’s much more work to do.

PROCEDURE, NOMINATIONS, MORE APPROPS

Dems will continue the blue slip policy instituted by Republicans in 2017 — keeping home-state senator veto power for lower court nominees but not for the appellate courts. This appears to be one issue where there’s no daylight between Chairman Durbin and Sen. Whitehouse, who also made a play for the top spot.

How should the Senate handle nominations, especially for multi-member boards where acting officials are not permitted? The Revolving Door Project’s Eleanor Eagan explained that subcabinet positions wait on average 115 days and that only a fraction of Senate-confirmed positions are filled in the first year. Much of the delay, she adds, is caused by the scarcity of Senate floor time driven by lengthy “debate” on the nominee which is often unrelated to the person — it is not debate in any meaningful sense. Eagan recommends “allocating floor time to groups of nominees” as a work-around to grandstanding and elevating where there is actual disagreement on the merits of a nominee. We would add that better tracking of open spots, such as through PLUM Book reform, would be most useful.

The Senate Rules Committee will hold a business meeting today @5:30 to adopt its committee rules and budget authorization and adopt an omnibus committee funding resolution. Wait, wake up, this is important. The committee funding resolution decides how much money to make available to all Senate committees (except appropriators, who have a separate line item). We’ve written about this previously, and you can see how funding for Senate committees have declined by almost $100 million from its peak a little more than a decade ago, which is terrible news for the Senate’s ability to do its job.

• Online? The Rules Committee is expected to broadcast its business proceedings online, which draws a welcome contrast to a lot of the Senate’s business meetings last Congress that were not broadcast at all. While the House, per its rules, broadcasts all of its committee proceedings online (except for closed proceedings), some Senate committees routinely do not broadcast business meetings, even during COVID. Sen. Klobuchar, who now chairs the Rules committee, rightly decried a markup of the Senate Foreign Relations committee that was not broadcast, and we (and a coalition) sent a condemnatory letter on that topic, which was reported on by Rachel Oswald. As we said previously: “All Senate committee proceedings should be live-streamed so the public and press can watch what happens as it happens.” We are glad to see the change.

Appropriations. Just a reminder of our Leg branch wiki page (w/ primary source documents going back to 2013), our @appropstracker twitter bot, and our spreadsheet of Leg branch funding going back 25+ years.

Earmarks are a topic of ongoing conversation — see, e.g., this Washington Journal discussion with Stephen Ellis and Mark Strand — and while we are ambivalent about their merits, here’s our new analysis of what we think is the right way to bring them back should Congress choose to do so. Unsurprisingly, per Olivia Beavers, Rep. Budd and Sen. Cruz will lead an effort to ban them, perhaps because campaigning against corruption (no matter how symbolic) is a political winner.

A SECURE AND OPEN CAPITOL

Oversight of the Trump insurrection will continue tomorrow at 10 a.m. with a joint Senate HSGAC/Rules hearing, featuring testimony from former USCP Chief, the former House and Senate Sergeants at Arms, and the Chief of the Metropolitan Police Department — we expect it will be educational. I hope the questions and statements by Members will serve as a counterweight to the narrative the USCP has been pushing. On Thursday, House Leg branch Approps will hear from the Acting Capitol Police Chief and Acting Sergeant at Arms at 10.

• What should lawmakers do? Glad you asked: see our recommendations for the security supplemental bill, which addresses Capitol Police reforms, remote deliberations, and cybersecurity.

• We had a lot of questions for the USCP back in July 2019, which the USCP ignored. (If we were to grade them on transparency and accountability, we’d give them an F minus). This question is worth raising again: “Transparency is a means, not an end, but the USCP has a reputation for a lack of transparency and accountability. What is it planning to do next to improve its transparency to the public and accountability to Congress?”

The proposal to place a permanent fence around the Capitol is an illustration of the dictum “for every complex problem there is an answer that is clear, simple, and wrong.” A letter from 20 civil society orgs got some attention from local news outlet Popville and a boost from Rep. Eleanor Holmes Norton, who is championing legislation on that point. Meanwhile, the USCP is recommending to keep the fence up for months (i.e., indefinitely), which we think is just another way of saying forever.

100% of USCP employees who want to be vaccinated will receive at least their first dose by mid-March, according to a recent USCP announcement on Facebook; the USCP announcement added 80% were expected to have their first dose by the end of last week. The Capitol Police have come under withering criticism for months from the union for not vaccinating its employees and being unwilling to articulate a timeline by which this would happen. Appropriations Chair DeLauro raised this issue during the OEA hearing.

BTW, per Matt Fuller, it appears that the USCP are investigating allegations of Rep. Russ Fulcher (R-ID) manhandling a USCP officer at the House floor metal detectors and also about Rep. Andy Harris’ (R-MD) efforts to bring a gun onto the House floor. More astonishing than these details is that USCP management, which has a reputation for inaction and deference, is doing anything.

Capitol Police suspended six officers (with pay) for their role in the insurrection and the department is investigating the involvement of almost 30 other employees. Will there be any public reporting of the results? Currently the department only shares vague summary statistics of complaints and has a long record of secrecy.

Speaker Pelosi announced “our next step will be to establish an outside, independent 9/11-type Commission” and confirmed that a security supplemental appropriations bill is on its way. There are other proposals, but she’s the Speaker. Several House Republicans asked for details around the Capitol Police and Sergeant at Arms’s coordination with the National Guard, but only directed these questions at Speaker Pelosi, oddly omitting Sen. McConnell who was her counterpart at the time for the Senate.

TRANSPARENCY & ETHICS

The Congressional Budget Office has a new electronic system for disclosing conflicts of interest for outside advisers. We reviewed the system and added our own two cents about how to make it better.

FOIA’s successes and failures during the Trump administration are the topic of a thoughtful Columbia Journalism Review article, which concluded at one point: “one of the enduring lessons of the last four years is that, while FOIA may be badly broken, it’s far from useless or obsolete, particularly if you’ve got lawyers.” That is a very important caveat and a great set-up to Sunshine Week, which is coming up in mid-March.

If you’re curious about how Congress and the courts fit into the equation, the FOIA advisory committee is holding a meeting on March 3 that will feature the Free Law Project’s Mike Lissner and, uh, me. (Well, hello there). RSVP here.

The House Ethics Committee has released its biannual report on committee activities. (Just about all House committees are required to summarize their activities and we are tracking the release of those reports). During the 116th Congress, the Ethics committee conducted investigative fact-gathering on 50 separate matters, and formed six investigative panels looking into former Reps. Chris Collins, Duncan Hunter, and Steve Watkins, as well as current Reps. Matt Gaetz and David Schweikert, and Del. Michael San Nicolas. The Committee met 19 times in total and provided training to over 7,000 Members and staff. (Notable is that the committee lost jurisdiction over some members under investigation; we think they should be allowed to release substantially completed reports.)

Board stiff. At least 15 representatives sit on the boards of outside companies, according to Donny Shaw, which creates obvious conflicts of interest when they legislate.

What’s necessary for an ethical, effective, and accountable government? POGO’s Liz Hempowicz has a ton of recommendations.

ODDS & ENDS

The Statutes at Large, which are a compilation of enacted laws, are not all publicly available from official sources in a useful, searchable format. Until fairly recently, they weren’t available online at all, which is why we (GovTrack + Joe Carmel + Daniel Schuman) digitized and published a complete, unofficial version. With the support and encouragement of House Leg branch Approps, the Law Library of Congress & GPO are OCRing the content of the official source, so you can do full-text searches, and voilà — they just published searchable versions for the years 1973-1994. Kudos! More, please. (We wonder whether this is good enough to create digital-text only versions of the laws.) The digitization process was addressed at a Library of Congress Virtual Forum, which itself was mandated by Appropriators, and we issued a series of recs on improving the Library’s Legislative Information Services that touched on this project. If you’re curious, here’s the first US public law ever.

Congressional cybersecurity is the subject of a truly excellent Lawfare article by Canyon Brimhall, Mary Brooks. I agree with each and every one of their recommendations, and would add that another major Congressional cybersecurity vulnerability is Executive branch surveillance of Congress. So long as the Executive branch is sweeping up Congressional infoand the Executive branch has demonstrated it can’t securely hold on to information, this create a pipeline of Congress info to foreign adversaries. I’d also suggest that vulnerabilities in support offices and agencies is also worth reviewing.

GAO’s Technology Assessment Design Handbook has been updated by GAO; it contains “tools and approaches to consider when designing robust and rigorous technology assessments.”

CRS released updates to its reports on National Emergency Powers and Congressional Advisory Bodies.

Intern telework. 28 Members of Congress, led by Reps. Jayapal and Omar, sent a letter urging the Committee on House Administration to “make paid interns permanently eligible for telework.”

How freshmen should empower themselves to govern. Kevin Kosar has suggestions.

Hmmm. The folks at Just Security have been floating the use of the 14th Amendment to declare Trump ineligible for future office because he has satisfied its requirements to have taken an oath as an officer of the United States and then provided aid and comfort to those who have engaged in insurrection against it. This, they argue, would only require a majority vote.

The role of Members of Congress in national disasters is more than performative — they play a crucial role in coordinating the flow of federal resources to state and local governments. We just had another lesson on that very point.

Andy Biggs was profiled by the Arizona Republic in an in-depth article. One nugget: his life changed when he won $10 million in the American Family Sweepstakes, which made it much easier for him to run for state office, as the salaries for state legislators were too low to live on otherwise.

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.

Monday

• Senate Judiciary has a hearing for Attorney General nominee Merrick Garland at 9:30 am ET.

• House Budget is holding its markup on the Budget today at 1 pm ET.

• Senate Rules Committee has its committee rules and budget authorization hearing today at 5:30 am ET. The committee will also be reviewing the omnibus funding resolution for all of the Chamber’s committees.

Tuesday

• Senate Rules & HSGAC are holding a joint hearing on January’s insurrection at 10 am ETThe former USCP Chief Steven Sund, former House SAA Paul Irving, former Senate SAA Michael Stenger, and MPD Chief Robert Contee have been invited to testify.

• Senate Judiciary has a second hearing for Attorney General nominee Merrick Garland at 10 am ET.

Wednesday

• HSGAC is holding its organizational meeting and will hold a vote on the nomination of Neera Tanden to be OMB director at 10 am ET.

• House FSGG Appropriations has a hearing on the Judiciary budget request for FY 2022 at 10 am ET. Note: this is one of the few times the courts appear before Congress.

• House Leg branch Appropriations has a hearing onthe Health and Wellness of Employees and State of Damage and Preservation as a Result of the January 6 Insurrection at 10 at ET.

• Senate Budget is holding a hearing for OMB Director nominee Neera Tanden at 12.

Thursday

• House Leg branch Appropriations has a hearing on security failures with Capitol Police and the House Sergeant at Arms at 10 am ET.

• House Admin has a hearing on “Strengthening American Democracy” at 4 am ET.

Down the Road

• The FOIA Advisory Committee happening on March 3 will feature a presentation on access to Legislative branch information.