Forecast for March 15, 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.)

TOP LINE

It’s been a year since we wrote to every Member of Congress on how Capitol Hill should respond to COVID. If I were to grade the response, I’d likely give the House of Representatives a B+, the Senate a D-, and varying grades for the support agencies. The House, after a significant delay, changed its rules: implemented proxy voting on the House floor, remote proceedings in committees, modernized some of its procedures, and implemented inconsistent measures to protect staff. Meanwhile, the Senate failed to change its rules, implemented hybrid proceedings in its committees that didn’t address absences, and staff protections vary by the office. At least 71 lawmakers, or roughly 10 percent of Congress, has tested positive for COVID-19, and an unknown number of staff. We think the House should implement fully remote floor proceedings that do not rely on proxy voting, and the new Senate leadership — which previously committed to a better approach — should do the best it can to make changes over likely obstruction. For more on what’s happened, see continuityofcongress.org.

Approps season continues as the Office of Congressional Workplace Rights presents its budget to the House Leg branch appropriations subcommittee Thursday at 10. We are curious about whether Congress will implement the legislative recommendations they made in their once-a-Congress report and have some questions about staff unionization. Below we have recaps of last week’s many, many hearings.

It’s sunshine week, which started yesterday and focuses on government transparency. There are lots of events on the calendar. We note that HSGAC will be marking up the Congressional Budget Justification Transparency Act on Tuesday at 9:30, a bill we support, and we expect more opengov news as the week goes on. Video is now available on what increased transparency could look like in the Legislative and Judicial branches, discussed at the recent FOIA Advisory Committee meeting. And there’s a new civil society letter in support of court transparency.

Welcome, Ginger McCall. We’re pleased to announce that Ginger McCall is joining us as our first-ever Legal Director. She is an expert on FOIA, transparency, privacy, and much more. Ginger recently was the Deputy Associate Chief Counsel for Information Law at FEMA and before that was the first-ever Oregon Public Records Advocate. Prior to that she served as an attorney in the Office of the Solicitor at the Department of Labor, Associate Director of Electronic Privacy Information Center, and Federal Policy Manager at Sunlight. Her email is ginger@demandprogress.org. Don’t miss her on Thursday as she moderates an Open Government Summit panel focused on transparency in Washington, D.C.

Bipartisan? House Democrats increasingly are unwilling to co-sponsor legislation with Republicans who voted against certifying the Electoral College results, Leigh Ann Caldwell reports. Supporting insurrection, in their view, is a bridge too far. We have a lot to say about this — for and against bipartianship — but we’ll save that hot take for another time.

HOUSE COMMITTEE FUNDING LEVELS

Funding levels for and requested by House committees — except Appropriations, which is funded through a separate line item — were the subject of a hearing by the House Administration Committee on Friday. The chair and ranking members of every committee agreed on their budget requests except for the Judiciary Committee, where RM Jordan objected.

What we don’t know. Each committee’s funding request (e.g., their written testimony and draft funding resolution) is not yet online. We also do not know the proposed overall funding level for the committees in the 117th. As a reminder, committees are provided a funding level for the entirety of the Congress (i.e., from Jan 3, 2021 to Jan 3, 2023), as opposed to the normal appropriations cycle (October 1 to September 30). We should add that funding inside the committees will be split 2/3s for Dems, 1/3 for Republicans, with an amount taken off the top for shared administrative expenses.

Proper funding levels. Both Chair Lofgren and RM Davis agreed on the importance of properly funding House committees, which Rep. Davis noted is only 11% of the House’s budget. Chair Lofgren pointed out the huge dip in funding to the committees, illustrating the decline as follows: 112th Congress at $276m, 113th at $242m, 114th at $248m, 115th at $264m, and 116th at $283m.

The situation is even more dire, as our report on House committee funding shows. Comparing apples to apples, committee funding levels in the 111th Congress (adjusted for inflation and excluding the appropriations committee) were approximately $356 million. In fact, adjusting for inflation, our number for the 112th is approximately $310m, not $276m, which suggests we still have a way to go to get to parity, let alone to address spiraling costs for staff living in DC and keeping up with changes in technology.

How many staff? The question of how many staff are permitted for each committee came up tangentially — I don’t know the answer, although the Committees’ Congressional Handbook says “The Speaker sets a staff ceiling for each Committee which may not be exceeded unless specifically authorized by the Speaker.” (I tried to find the Speaker’s order without luck in the Congressional Record.)

Top pay? In addition, the Speaker’s Pay Order, which sets the top level a staffer can be paid, also came up. The Pay Order can be hard to find: it’s in the notes accompanying 2 U.S. 4532, with the top pay level set at $173,900. Note that some Legislative branch staff earn more than this, with pay rates set at SES levels, such as the Librarian of Congress and Comptroller General. We have recommended that, in the short term, this cap be lifted to just under the maximum pay level for the Speaker, which CRS says is $223,500, and then indexed to inflation. In the long term, top pay and staffing levels need to be fundamentally rethought. The Modernization Committee has recommended delinking staff pay and Member pay.

Shared services. An additional useful point arose in the context of the Judiciary Committee’s need for additional support to pay for tools like Westlaw and Lexis. Chair Lofgren suggests that technologies like these may be more inexpensively purchased on an enterprise-wide basis, i.e., by the House, which could result in a savings to committees and personal offices alike. We agree.

APPROPRIATIONS

The House Appropriations Committee has launched a “Community Funding Project” webpage, with instructions for members on how to request earmarks, excuse me, community funded projects. But more importantly, it contains helpful information on appropriations requests generally, including deadlines for each subcommittee and guidance for members to submit requests. We’re waiting and watching for information on how public-witness testimony will work — this is where members of the public can request to testify before appropriators. It’s no surprise we have a coalition letter on this topic.

ICYMI, last week in Leg branch approps: GAO, House officers, GPO, and the Architect of the Capitol all testified. Our recaps are below. Watch the GAO & House officers hearing here and the GPO & AOC hearing here. Here’s written testimony from the GAO, the Office of Legislative Counsel, the House SAA, the Office of D&I, the Clerk, the Office of General Counsel, the House IG, the Office of Law Revision Counsel, the CAO, the GPO, and the AOC.

Gulp. I’ve been doing back-of-the-envelope calculations and there’s no way even a 10% increase in Leg branch funding can take care of the immediate needs. The Capitol Police and the Architect together asked for an increase of $300 million, which doesn’t include all the additional USCP personnel or security fixes recommended by General Honoré, which we’d guess is probably another $100 million annually in new costs. That’s an 8% increase over current funding levels right there. The request from House officers is a combined $260m over last year, GAO is requesting $83m, and we’re not even talking about the MRA, committees, or the Senate. That’s at least a 15% increase, or $750m increase on a $5b budget, and probably a lot more than that. Congress is woefully underfunded. I have deep concerns that any new funds will go to buildings, police, and security while failing to pay a decent wage to the people who work in Congress as well as funding the new personnel it desperately needs to function, which has been the unfortunate pattern for decades.

What’s next. In the following sections, we survey the budget hearings on the GAO, House officers, AOC, and GPO, before moving on to additional topics.

GOVERNMENT ACCOUNTABILITY OFFICE APPROPRIATIONS

GAO is requesting $744.3 million in appropriated funds (and uses 50.0 million in offsets and supplemental appropriations) for FY 2022, which is an $83.2 million increase over last year. This roughly 12.6 percent increase would support another 220 FTEs, bringing the total to 3,400. According to GAO, the average return on investment in GAO over the last five years is $165 for every $1 spent, and the ROI for this past year was $114 for every $1 spent, yielding $77.6 billion in financial benefits. GAO turns 100 this year.

In the past year, GAO received 550 requests for investigation from 90% of the standing committees in Congress, issuing 586 reports and testifying 59 times. The Office of General counsel handled 2,100 bid protests and issued 500 decisions on the merits. GAO deployed “New Blue,” a platform to edit, fact-check, and distribute its reports, and grew its Science, Technology, Assessment and Analytics team from 70 to 104 members.

Notably, GAO has not answered a request from a personal office for a report in 15 years because of a lack of funding. In addition, GAO has $82m in deferred maintenance for its facilities. We also note that GAO employees have a significantly lower level of satisfaction with their information technology tools, with only 69 percent satisfied (an increase of 13 percent over the prior year).

Capitol Police. GAO issued a thoughtful report on the U.S. Capitol Police Board in 2017. To GAO’s knowledge, however, the recommendations on improving the Board’s operations were never implemented by the Capitol Police. In addition, the Board never responded to GAO on its recommendations. (See below for the House SAA on why no response was forthcoming.)

Intelligence Oversight. GAO historically has had poor cooperation from the Intelligence Community on its efforts to conduct oversight. Those circumstances improved somewhat in 2011, when Congress passed legislation on the topic, and the responsiveness of the IC has been “gradually building.” A big factor, however, is whether the House or Senate Intelligence Committees support the GAO request, as the IC (based on our understanding) only treats requests from those committees as legitimate. This year, GAO still had difficulty obtaining budget requests from the Intelligence Community, but a pattern of behavior was otherwise not observable because COVID limited the ability to do classified work.

Science and Technology. GAO’s STAA issued 12 reports and hopes to further grow its team to 140 staff to support Congress’s science and technology needs.

Closing thoughts. Considering the great financial value that arises from investment in GAO, perhaps it would make sense to find a way to capture some of those savings to the Executive branch and reinvest them in GAO. Right now, GAO is funded solely from the Legislative branch budget, which is tiny. What if we were given proportional funding from across all 12 appropriations subcommittees? This would allow the investment of more funds into GAO and lessen the financial burden on the Legislative branch.

HOUSE OFFICERS APPROPRIATIONS

The Office of the CAO is requesting $191.3 million, an 8 percent increase over FY 2021, or $14.1 million. Of that, $5.3m is to make congressional websites accessible, upgrade CAO services, pay for studio broadcasts, and software updates. $4.5m is for tech support, cybersecurity, Microsoft Office 365 licenses, field hearings, and moving to the cloud. (The written testimony did not contain a lot of information.) The CAO is in the process of moving to new data centers, so if there is a disaster CAO will be able to continue operations.

The Sergeant at Arms is requesting $24.3m; we understand the FY 2021 enacted was $23.26m, which is a $1.049m increase, or 4.5%. This would fund 166 current FTEs plus 2 new FTEs, and $9.616m for non-personnel items. The budget request is likely to change significantly upward in light of the Honoré report. One major new item: funding for a replacement to the decades-old wireless annunciator, known as JAWS. Throughout the Q&A, we had the impression that the SAA was holding his cards close to the vest.

• On whether the USCP chief should be able to request external law enforcement in emergencies, the SAA dodged, but eventually raised the concern that if the USCP is the sole decision maker, there could be problems if the Chief is under or over-aggressive — and that there should be a layer of accountability.

• On the 2017 GAO report, the SAA said responses are consensus-based and that some of the Board were reluctant to respond to GAO. Later on, he suggested that whether to respond to an outside question may be determined by the Board Chair and is not necessarily a decision of the Board.

• On USCP Board staff, it appears there are not any. The Board does have an executive assistant, but that person is housed inside the Capitol Police. It does not appear to have independent staff for the Board itself. Chair DeLauro suggested additional proceedings to dig into the structure and functioning of the Board.

• On whether to reimburse local police forces for helping members in the district, the SAA said this might need more study, which is a position the SAA has taken in the past. Committee members were not satisfied with kicking the ball on this topic yet again.

Office of Legislative Counsel is requesting $12,425,000, an increase of $488,000, or 4%, over FY 2021, which would add 2 FTEs to the 79 current full time staff. HOLC has been shedding experienced staff over the last 5 years, and they note real wages have declined by 24% since 2009. Demand on HOLC services is beyond maximum capacity, causing significant burn-out, with the number of bills introduced in the 116th Congress exceeding those introduced in the 115th Congress by 30%, and over the 114th Congress by 40%. Chair DeLauro noted that work on bills from Members often stops when resources are diverted to large pieces of legislation set for floor consideration, and asked what resources would be necessary to prevent that stoppage. The HOLC did not address the question of additional resources. HOLC did explain its excellent work on the comparative print project, which makes it possible to compare versions of legislation, explaining there are roughly 100 users in the House in an early alpha pilot project to test the tool.

The Office of Diversity and Inclusion requested an increase of $250,000 annually, although the testimony did not mention the baseline from FY 2021. OD&I currently has 7.5 FTE, is requesting 4 more FTE, and is charged with overseeing a survey of House staff diversity, completing a barrier analysis on constraints on equitable employment, tracking witness diversity, and tracking diversity among interns. The OD&I wants to move some of this work in-house, arguing if they had a team focused and familiar with the House and how it works, we could get more robust reporting and be more agile in adapting it to the House’s needs. This seems reasonable.

The Office of General Counsel requested $1,912,000, a 5.34% increase, or $97,000, over FY 2021. The largest expenditure is for OGC salaries, and the increase is for meritorious pay increases. If OGC cannot keep capable staff it will have to hire outside legal counsel, which is more expensive. OGC represents the House, and from time-to-time issues formal legal opinions on matters of interest to the House.

The House Inspector General requested $5,019,000, which is no change from last year, and its budget is below the budget request for FY 2011 (a decade ago!) and supports 25 FTE. OIG issued 12 reports in the 116th Congress, and 4 reports so far this year, with 9 audits ongoing. We note that OIG used to publicly release their reports, but have not done so in 15 years. Apparently OIG had completed a review of House emergency communications processes last Congress, although there was no discussion of their findings. The office is currently drafting its 117th Congress work plan. While some of its work is done at the instruction of House Admin, much of its other work focuses on conducting audits and providing analysis and guidance on House operations.

The Office of Law Revision Counsel requested $3,600,000, a 3.78% increase over FY 2021, to support technology and personnel. The funds are used for codification of the law, with 12 codification bills underway. Funding is also used for the House modernization project, and work is underway to implement a new system for editing and updating the U.S. Code.

ARCHITECT OF THE CAPITOL APPROPS

The Architect of the Capitol requested $865 million, an increase of $181.4m in appropriated funds, and 94 new FTEs over last year. Those numbers are likely to go higher as the request does not include physical security and landscape architecture changes that will be required as a result of the Trump insurrection and address the recommendations in the Gen. Honoré report. If we are doing our math right, that’s a 26.95% increase without addressing the Honoré report.

Why so much? There are $171 million in capital projects that need to be completed, including $78 million in deferred maintenance (things that needed to be done in prior years but were not funded) and $90 million in new infrastructure. Examples of items that need to be addressed are the failed waterproofing of the Cannon tunnel; 50-year-old piping at the Capitol Power plant that broke and caused 200,000 gallons of water to spill per day (we don’t know how long that lasted); and the fact that the Capitol Building is in desperate need of proper fire suppression equipment because it would not have been possible to suppress a fire had one occurred during the insurrection. (Floors 1-3 have a “hodgepodge” of systems, some 50 years old, and I’m deeply concerned about people who work there now.) Additional funds are needed to bring forward the RFP process for the next phase of the Cannon building restoration

What has the AOC been doing? Phase 2 of the Cannon building restoration is done — total costs for the project are anticipated to hit $890 million. Phase 3 of the Rayburn Garage is complete.

What’s next? Phase 5 of refrigeration at the Capitol Power plants needs to be started so that there aren’t major problems if another pipe breaks. The Library of Congress Jefferson building is in bad shape. There’s the next phase of the aforementioned projects. And there’s all the necessary work for COVID safety — some of AOC’s funds were repurposed to address COVID, which created problems in the budget and were not fully sufficient to address COVID. In addition, AOC is currently looking at building two security vestibules, is spending $1.2 million weekly on the fence, and is working with the Army Corps of Engineers physical security specialty center on making the campus more safe.

We take heart that the AOC wants to get its arms around the many problems it faces. At the top of its list: Create a campus-wide facility assessment to support the development of a campus master plan that is broken into 5 year strategic plans. This will allow the AOC to assess security and other risks and properly prioritize and coordinate work. In addition, the Honoré recommendations did not go into significant detail, and AOC will need to do engineering work to determine what’s necessary to execute the recommendations, help Congress prioritize, and provide to Congress budget level details. Finally, the AOC wants to establish a campus wide permit program so that it can make sure that building codes are complied with.

The budget crunch.This entire AOC to-do list is distressing and I got the impression that there’s much more behind it. At the proposed funding level, the AOC would become ~17% of the entire Legislative branch budget, and that doesn’t take into account the new security items. The discussion turned to how to fund all this. The AOC had two proposals: (1) a public-private partnership and (2) enhanced-use leases. On the former, I don’t see why the government should essentially borrow the money from the private sector when it could just give the money to itself at a lower rate. (That, of course, would require an increase in the 302b allocation to Leg branch or a huge, multi-year security supplemental.) In fact, it appears the AOC’s new “enterprise asset management” plan is basically an effort to make it possible for Congress to know how much in additional costs it will have to pay when it decides to defer projects.

GOVERNMENT PUBLISHING OFFICE APPROPRIATIONS

GPO requested its first budget increase in 7 years, a 7.3% increase to $125,549,000. Even if granted, the budget would be 34% lower than 2010 levels adjusted for inflation. Most of GPO’s funding is on a cost-recovery basis, with 88 percent of its revenue from billings to other federal customers, with overall revenues totalling $915.9 million. GPO has 1,586 GPO teammates, down from 1,920 ten years ago. The agency, founded during the Civil War, turned 160 years old this week.

Why does GPO need more appropriations? The agency took a huge funding hit during COVID. Revenue dropped tremendously in part because GPO’s funding model is currently based on the number of pages it prints, which decreased during the pandemic. For example, revenue from passport production alone dropped by $92 million from FY 2019 to FY 2020. In addition, GPO must pay its employees double-time during emergencies. While that provision was intended for snowstorms, it also applied during part of COVID. Also, essential supplies became more expensive as supply chains strained.

Where would the money go? The money would go into 5 buckets. First, 5 FTE for enhanced outreach to the Federal Depository Libraries, which are government document libraries throughout the country. Second, $3.37 million for the development of a new publishing format, XPUB, which will lead to modernized congressional documents and a different funding model for GPO. Third, a slight increase in funding for GovInfo.gov, the central website that publishes millions of government documents. Fourth, $150k to address cyberattacks. And finally, $1m to GPO can interface with the Treasury Department’s system of invoicing and payments, which matters because so much revenue comes through the Executive branch.

What is XPUB? XPub is the technology used to put together congressional documents. Moving to XPub will make it easier to make documents that are more readable and accessible — so they can be easily posted on the web, sent to mobile devices, converted into ebooks, use images and graphics, and so on. The goal: congressional staff can write their committee reports in MS Word, provide the data in MS Excel, and GPO can easily mash it all together and create modern reports. Current Congressional reports look a lot like they did in the 1860s, modern reports could look more like this.

How would GPO be funded? It wasn’t entirely clear, but we think GPO would move from charging a fee-per-page-printed to charging a licensing fee for composition software. (We suspect a hybrid model, as there would be a mechanism to pay for purely electronic documents, i.e., the licensing fee, and printed documents perhaps would have an additional charge.)

CAPITOL SECURITY

2,300 National Guard troops have been approved to stay at the Capitol through May 23rd as Congress continues to review January 6th’s events.

Adding a congressional staffer to the Capitol Police Board is just one of the many requests of a coalition of 10 congressional staff associations — representing 1,000 congressional aides, mostly people of color — presented to the Speaker, Senate Majority Leader, CHA Chair, and Capitol security officials, Luke Broadwater reports. Staff have come together to push for a safer Capitol following the attacks in January that have left many employees feeling unsafe in the workplace. We have a broad range of recommendations regarding the USCP.

CONTINUITY OF CONGRESS

Roughly 75% of House Members are vaccinated, according to information contained in a letter from Minority Leader McCarthy that requested an operational plan from Speaker Pelosi on how the House plans to reopen. Why is this number not approaching 100%? On Friday, the Office of the Attending Physician informed offices that it aims to track Member vaccinations to prepare guidance to relax social distancing rules and voting periods. The House gym and its shower and swimming pool facilities are also opening up.

Majority Leader Hoyer hinted at an extension of proxy voting post-pandemic. We would prefer a replacement of proxy voting with remote voting and deliberations: this would speed up the voting process and allow members to exercise their full range of privileges on the floor, which currently are curtailed when they are not physically present. A faction of the Republican party opposes continuing proxy voting, introducing a resolution to eliminate the practice (H. Res. 191). Some Republicans have previously spoken up in favor of remote voting.

CONGRESSIONAL OPS

Blocking small bills has the potential for a big impact on legislative capacity. The House Freedom Caucus blocked a request for unanimous consent on 13 non controversial bills last week. If Republicans continue to block bills on the suspension calendar (the fast track), small and medium size bills will suffer. There’s already rumblings about how Democrats will respond.

Senate Rules Ranking Member Roy Blunt announced plans to retire from the Senate. The announcement last week follows similar news from Appropriations RM Shelby earlier this year. The changes could portend a significant change in the Senate on how Republicans oversee the Legislative branch.

The House Intel Committee finally has a full complement of members — and one extra. The committee will consist of 13 Dems and 10 Rs, with the GOP gaining an additional Member for reasons that are unclear to us. Members of HPSCI are hand-picked by the Speaker and Minority leader, and Progressive Caucus Center research shows how the committee is way out of balance compared to the Dem and Republican parties in the House. In the 116th, HPSCI had the fewest number of CPC members of any committee and the second fewest members of the Republican Study Committee. The new members largely come from intel/nat sec backgrounds, which means it will be more likely to give the Intel Community the benefit of the doubt on various matters. We have recs for reforming HPSCI.

Select committee appointments: Rep. Dave Joyce has been named as the sixth Republican on the Fix Congress committee for the 117th, and Reps. Palmer, Carter (GA), Miller (WV), Armstrong, Crenshaw, and Gonzalez (OH) were appointed to the Select Committee on the Climate Crisis.

Committee rules & reports: Houseethics committee & House rules committee rules for the 117th Congress are now available. Plus, we have the House Rules committee activity report for the 116th Congress.

The “committee tax,” fundraising thresholds lawmakers apparently are required to meet to receive desirable assignments, means lawmakers are rewarded for raising the most money. A new report from Issue One goes into the details. We’d like to see the rules for the Steering Committees to see whether this requirement is written into how the parties choose people for committees.

BILLS & REPORTS OF INTEREST

A resolution honoring the essential staff of the Capitol Complex as unsung heroes (H. Res. 204) was introduced by Rep. Sean Patrick Maloney last week.

A bill to restructure the Capitol Police Board to include the Chief of DC’s Metropolitan Police Department as an ex-officio, non voting member (H.R. 1654) was introduced by Del. Holmes Norton last week.

A joint resolution to amend the War Powers ResolutionH. J. Res. 29, was introduced last week.

CRS has profiled the Membership of the 117th Congress & updated its resources on Congressional Member Organizations (CMOs) and Informal Member Groups.

ETHICS

House Ethics is considering appeals from Reps. Gomert and Clyde, who were fined for avoiding Capitol security by circumventing metal detectors on the House floor.

• The House Ethics committee received record-low number of referrals from OCE last Congress, most likely because of the pandemic.

Rep. Paul Gosar tweeted a meme featuring a white supremacist group’s motto and had coffee with the group’s racist & anti-Semitic leader.

ODDS & ENDS

Congressional interview questions can differ from the ‘typical interview’. Luckily two former intern coordinators, Melissa Dargan & Victor Yang, breakdown WHY those questions are asked and WHAT the Member office is looking for in a new video.

Budget reconciliation will next happen in July, House Budget Chair Yarmuth guesstimates.

Resources for LGBTQ+ interns are available here through the Victory Institute.

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.

TUESDAY

• SSCI has a closed meeting at 2:30 pm ET.

WEDNESDAY

• HSGAC has its first business meeting at 9:30 am ET; among the bills on the docket is the Congressional Budget Justification Transparency Act.

• HPSCI is holding its Organizational Business Meeting at 1 pm ET.

THURSDAY

• House Approps Leg branch subcommittee is hearing from OCWR at 10 am ET.

DOWN THE LINE

• Hack the Capitol 4.0 hosted by R Street Institute, the Cyber Bytes Foundation, and the National Security Institute is happening May 4th 9:00 am – 5:30 pm ET. Deadline for papers is April 16.