Forecast for March 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.)

TOP LINE

The security supplemental funding bill could reach $2 billion, according to Billy House, and is intended to strengthen security at the Capitol and enhance member protection. To place this number in context: combined funding in FY 2021 for the Capitol Police and the Architect of the Capitol was $1.2 billion; total funding for the entire Legislative branch was slightly over $5 billion; and the AOC & USCP asked for more than a 20% increase in funding this year — and already said their requests will significantly increase in light of the Honoré report.

There are likely billions in “deferred” or otherwise necessary maintenance in the Capitol complex, so an infusion of billions in multi-year funds would be welcome if it addresses these unmet needs. By contrast, throwing money at the Capitol police, unless we first reform its management and oversight structures, likely would squander those funds. Members are terrified about their personal security, but giving money to an incompetently-managed security force without fixing it will only promote the illusion of security.

• We are gravely concerned that the carrying costs for the new personnel — the Honoré report recommends 854 new full-time employees (FTEs) and the AOC wants nearly 100 FTEs — would simply crush Congress’s budget. The Legislative branch is the lowest funded of the 12 appropriations subcommittees — the next smallest subcommittee is 5x larger — and all those costs must be borne somewhere. The last 25 years of growth in USCP & AOC budgets has come at the expense of Congress’s policymaking capabilities, including personal offices, committees, GAO, CRS, and the like. If not addressed, the current trend would result in beautiful, well-protected buildings filled with no one experienced enough to do the policymaking work.

• How to fix this? There are three big options that we can see. First, we can increase the amount of funding for the Legislative branch. We naively called for a 10% increase in Leg branch funding, but self-evidently we need much more than that. In addition, there should be a firewall that separates funds for policymaking against those for protecting the campus. A second option is to draw funding for the USCP and the AOC for other sources — such as defense discretionary spending (050) — which would be logical because a big portion of the Capitol’s post-9/11 expenses are defense related and this would provide a huge new pot of funding, and are where a few hundred million dollars wouldn’t be missed. A third option is to have the other appropriations subcommittees provide funding for components in the Legislative branch that serve the rest of the government, such as the GAO. (We already have the Judiciary kicking in for the Capitol power plant, so there is precedent.) In this schema, you could imagine a pro-rata assessment of the other 11 appropriations subcommittees to cover GAO’s funding, which would free up obligations from the tiny Leg branch budget.

The outer layer of the Capitol fencing is coming down, according to acting House Sergeant-at-Arms Timothy P. Blodgett. The inner layer around “capitol square” will remain. For how long? Good question. Last month, we led a coalition letter opposing permanent fencing.

The Capitol Police’s misconduct report for 2020 is one page long and raises more questions than it answers, according to Emmanuel Felton. His article draws from our report: from what we can tell, more than 40% of charges against USCP employees were substantiated by department investigations. The report from the USCP is virtually worthless as is, and raises more questions and answers. We note that most people don’t know how to file a complaint concerning the USCP. This is one of many areas where the USCP needs more transparency. Our recs for immediate next steps are here.

Congress’s embrace of technology during the pandemic was crucial for its continuity, according to me and POPVOX’s Marci Harris. Even more importantly, Congress must continue to innovate.

Hearings. We note in particular House Oversight’s hearing on DC statehood on Monday; House Rules & House Foreign Affairs hearings Tuesday on War Powers; Wednesday’s Senate Rules Committee hearing on S.1, the democracy reform bill that mirrors H.R. 1; and the first meeting of the Select Committee on the Modernization of Congress on Thursday.

Appropriations deadlines. Now that the House has started to release guidance on its deadlines for Members and the public to submit their testimony, we have begun to track it here.

Solidarity. Asian Americans continue to suffer attacks and mistreatment on the basis of race. Our country has a long history of otherization of Asian Americans, and only now is that fact starting to break through into mainstream consciousness. For example, we need only look to the Chinese Exclusion Act and Japanese Internment Camps. We stand in solidarity.

APPROPS: OFFICE OF CONGRESSIONAL WORKPLACE RIGHTS

The Office of Congressional Workplace Rights did not ask for a budget increase for FY 2022, but it did ask to be able to carry over funds from last year, according to oral testimony from Director Susan Tsui Grundmann on Thursday. (The written testimony is not yet online). Cases may often take longer than a year to resolve, so they need multi-year/no-year funding. The department is now conducting its mediations, hearings, and trainings in the virtual space. Dir. Grundmann said mediation requests are down over the past year while administration hearings are up — the most common complaint is discrimination on the basis of race.

A climate survey around sexual assault and harassment in Congress was conducted for the first time ever by OCWR over the last year. The survey was delivered to three committees, CHA, Rules, and HSGAC, and will serve as a baseline to compare to the follow up survey next year. As far as we know, it has not been made available to Members of Congress generally or to the public.

Strengthening the Congressional Accountability Act. As we mentioned last week, OCWR recently published its recommendations for improvements to the Congressional Accountability Act that includes: providing whistleblower protections to the Legislative branch, providing subpoena authority to aid in tracking safety and health investigations, requiring records be kept of of workplace injuries, adopting federal workplace record-keeping requirements, and approving the Board’s FMLA and Uniformed Services Employment and Reemployment Rights Act (USERRA) Regulations when they are resubmitted, and more.

GAO recommended OCWR increase its cybersecurity capacity and incorporate strategic management practices to recruit and retain talent. For those who don’t remember, Sen. Wyden sent letters in February and April 2018 because the OCWR (then called the OOC) had “serious cybersecurity and oversight lapses.” In short, OCWR was storing data about complaints filed with it on a server owned and operated by a third-party contractor in a private data center, which placed “sensitive data about victims of sexual harassment beyond the protection of congressional cybersecurity personnel.” If hacked, complaints could be used to blackmail members of Congress. In addition, OCWR and its vendor, according to Sen. Wyden, did not take rudimentary steps to protect that information. The April letter noted OCWR addressed that particular concern. GAO’s 2020 report found that OCWR “had not fully established an effective approach for managing organization-wide cybersecurity risk.” Per their testimony, OCWR continues to upgrade its systems in adherence with GAO’s cybersecurity recommendations and is still working on its strategy plan.

FILIBUSTER

The filibuster, and what to do about it, remains in the news. Based on reporting by Burgess Everett and Marianne Levine, the vast majority of Senate Democrats support scrapping the supermajority requirement, and Pres. Biden is shifting a bit. We note that Republicans have a structural advantage in the Senate that already leads to significant over-representation and, in effect, a strong minority veto. Who isn’t quite there yet besides Sens. Sinema and Manchin? Sens. Tester, Coons, Feinstein, Hickenlooper, King, Shaheen, Whitehouse, and Schatz. What’s surprising is how many of them are from very blue states. The longer they wait, the less likely it is Biden’s agenda will make it into law — and the efforts occurring in the states right now to undermine voting rights suggests the Dems won’t have another chance to fix that problem if they don’t act now.

Scorched Earth? Minority Leader McConnell continues to threaten to destroy the Senate’s (remaining) ability to act if Democrats reform the filibuster. He also said that the filibuster helps “slow things down, to kill bad ideas, and to force bipartisanship.” Is this the same senator who refused to organize the Senate for several weeks and rammed through Amy Coney Barrett’s SCOTUS nomination just eight days before Election Day last year?

SUNSHINE WEEK RECAP & TRANSPARENCY

Several Sunshine Week bills were introduced last week. Below is a quick recap and some highlights:

The Transparency in Government Act, Rep. Quigley’s comprehensive legislation that addresses just about everything transparency, was reintroduced in the House as H.R. 2055.

The Congressional Budget Justification Act was unanimously approved by HSGAC on Wednesday. It would make congressional budget justifications available online in a central location managed by OMB. The House overwhelmingly passed CBJ in early Janaury.

The PLUM Act was reintroduced in both chambers by Rep. Maloney (H.R. 2043) and Sen. Carper (S. 857). It would require OPM to keep a public list of the people holding senior government positions, including whether the position is filled or vacant. A coalition of civil society organizations, including us, endorsed the legislation.

A bill to increase the transparency of Federal advisory committees was introduced in both chambers by Rep. Maloney and Sen. Portman. We sent a letter with a group of bipartisan organizations to lawmakers supporting the reintroduction and passage of the legislation.

The Federal Employee Access to Information Act was reintroduced Reps. Maloney and Connelly and Sen. Leahy. The bill would protect federal employees from retaliation for exercising their right to FOIA. It previously passed the House last September.

A bill to bring cameras in SCOTUS was introduced by Sen. Durbin. A similar bill to provide for media coverage of Federal court proceedings was introduced by Sen. Grassley.

The Open and Responsive Government Act was reintroduced by Sens. Grassley, Leahy, and Feinstein. The legislation would restore a long standing legal interpretation of the FOIA exemption regarding confidential commercial information, which was recently redefined (in a bad way) by the Supreme Court.

The Presidential Records Preservation Act was reintroduced by Rep. Maloney. It would update the Presidential Records Act by requiring the President, VP, and other senior WH officials to preserve materials and records of official Presidential documents. The Federal Records Act already contains similar requirements, so this bill would align the Presidential Records Act with current law.

There are transparency problems in the federal court, and Fix the Court’s Gabe Roth examined several bipartisan bills that died last Congress that should be reintroduced and passed this year.

House Whistleblower Ombuds shared a few whistleblower-relevant resources as part of Sunshine week, including an intake checklist, a video on tips for whistleblower intake, and fact sheets on the Whistleblower Protection Act and Legislative branch whistleblowing.

The Government Accountability Project released the second edition of Truth-Telling in Government Guide, a resource for federal employees, contractors, and grantees to understand their rights, risks, and options for reporting abuses.

White House Ethics disclosure forms are available — requests for copies can be made online.

POGO’s Nick Schwellenbach analyzed FOIA’s Exemption 7, the law enforcement exemption — finding that out of all FOIA exemptions used in fiscal year 2020, the law enforcement exemption was used nearly 60% of the time… and often misused.

Americans for Prosperity Foundation posted a series of essays from government scholars across the political spectrum about why transparency is essential to accountable self-government. Among the many excellents essays was a discussion of the importance of public records by Demand Progress’s Legal Director Ginger McCall.

FIX CONGRESS

The Fix Congress Committee is holding its first meeting of the 117th session on Thursday and will hear from a series of congressional reform experts (us included) on what issues to focus on this session. Our own Taylor J. Swift will testify. You can expect the written testimony to be posted here.

Push Forward Now, new report from Lorelei Kelly of the Beeck Center for Social Impact + Innovation at Georgetown, provides an overview of the Fix Congress Committee and how its members achieved bipartisan success last Congress.

CAPITOL POLICE & CAPITOL SECURITY

Tear down this fence. Speaker Pelosi’s Dear Colleague on Capitol Security reiterated her call for an additional security supplemental funding in light of the conclusion of Gen. Honoré’s report, which emphasized the need for additional capacity for intelligence assessment, a reformation of the USCP board, and a four-figure increase in officers. The Dear Colleague also mentioned a letter sent to the speaker by the Acting House SAA that said the Capitol Police has determined that “there does not exist a known, credible threat against Congress or the Capitol Complex that warrants the temporary security fencing.” Speaker Pelosi called for alterations to the security fencing and the decrease of National Guard presence around the Capitol, the former of which happened this past weekend.

PAY THE INTERNS

Over 75% of paid congressional interns were white while less than 15% of paid interns were Black and Latino, according to a new report from Pay Our Interns. The paid internships, which are available to personal offices and leadership staff, were developed in part to help address the concern that interns were not diverse because not everyone could afford to work for free. The report analyzed more than 8,000 pages of new payroll data to compile racial and gender diversity on more than 3,800 interns who worked for Members between April and September 2019. Barbara Rodriguez of 19th News also has a story on the report that includes testimonials from Members about their unpaid internship experiences.

The average stipend for a full internship in the House was $1,612.53 and $1,986.75 in the Senate. Each office defines the number of hours and length of internship differently, so it is difficult to determine an hourly rate. We believe that all interns should be paid, and that they should be paid no less than the local minimum wage. (DC’s minimum wage is $15/hour). Nearly 50% of paid interns attended or are currently attending private universities despite private institutions only making up 25% of undergraduate students. There is no representation from community colleges.

The five key recommendations to strengthen diversity within the internship pipeline includes (1) heightening data transparency around who is receiving internships and how much they are being paid; (2) increasing stipend funding amount per intern; (3) promoting remote internships even after the pandemic ends to make sure opportunities aren’t limited by the high cost of living in Washington D.C; (4) increasing engagement with, and recruitment from communities of color; and (5) prioritizing need-based applicants.

More data and transparency is needed. Both chambers must look to administer regular studies of demographic and pay information for staff and interns, and publish the reports as data. There is no institution-wide reporting on internships, including information on who interns, how much money they receive, and where they are located. A lack of high quality, official baseline data makes it difficult to track whether opportunities are being provided equitably. (Perhaps this is a job for the Office of Diversity and Inclusion? It came up during their testimony before House Leg branch appropriations, which we summarized last week.)

All roads lead to Congress. For good or ill, member offices want to hire staff with experience and they rely heavily on people who previously held internships in Congress. But most offices don’t have the funds to pay for internships, which is why having a separate pool of funding is so important. We were glad that House Legislative branch appropriators created funding pools for personal offices and leadership, and we hope they will add funding for committees and increase the funds for personal offices.

CONGRESSIONAL OPS

House Republicans reversed their party’s ban on earmarks by way of a secret ballot. Senate Republicans have yet to act, but as one member said, conference rules are just suggestions on how to behave. We have some advice on how to implement earmarks that would ensure transparency and accountability. The House Appropriations Committee launched a “Community Funding Project” webpage that contains guidance on earmarks, although it looks like the request process would create notional, but not functional transparency. AEI’s Kevin Kosar has some advice, too. And there’s a new CRS report on House rules and committee protocols.

The Senate’s new Sergeant at Arms, Karen Gibson, will be sworn in on Monday.

Congress will receive 8,000 new vaccine doses, according to an OAP memo sent to lawmakers last Tuesday. Each House and Senate office will have up to six aides receive doses while committees will have up to 16. The Senate plans to prioritize vaccinating essential workers like food service workers and custodians.

The House is desperate to meet in person in part because the process the House adopted for in-person voting on the floor is excruciatingly slow and in part because some Republican members are making frivolous motions to halt floor proceedings. So, would Speaker Pelosi consider remote voting during the pandemic as a way to untie that knot? It’s a fair question. It’s also fair to ask whether she would use proxy or remote voting after the pandemic, or allow for hybrid hearings, which is a question she apparently dodged several times at her news conference on Friday.

An increase to House and Senate committee budgets is long overdue. We promise we’ll have the analysis of Senate committee funding levels next week, and the House will have to pass funding for its committees by the end of this month. (This excludes funding for Appropriations, which funds itself through its approps bills.) We combed the congressional record for proposals from the House committees and put the published requests into this spreadsheet. The upshot? The largest requested dollar increase was made by Armed Services ($4.6 million), followed by Energy and Commerce ($3m). Excluding appropriations, this would make House Energy & Commerce the highest funded committee, at $24 million. Compare this to the $300 million increase the USCP + AOC are asking for this year. Lol, right? A number of committee requests, such as Approps, Ethics, House Admin, Intel, Oversight, Small Business, and both Select Committees, were not in the Congressional Record. As you recall, on March 12th House Admin held oversight hearings on committee funding requests, although there’s no documentation online from House Admin that contains these requests or the justifications for them.

Senate Finance may consider reforming conceptual markups — a process unique to just the Finance Committee. This is where the committee debates legislation first as a narrative text before reducing it to legislative form. In other words, the legislation is first written “in clear and concise laypersons’ terms,” according to HData.

BILLS & REPORTS OF INTEREST

A resolution to remove the security fencing and National Guard was introduced by over 30 House GOP members on Thursday.

A bill to make CBO scoring data more publicly available was introduced by Sen. Lee on Wednesday.

The Office of Legal Counsel was the subject of a letter by Sen. Whitehouse, and we draw your attention to point #5. “I am not sure what should be done about OLC, but the response to its work, both from within the Department when secret OLC work later comes to light, and from the courts of the country when OLC opinions are presented for judicial scrutiny, is a signal that attention must be paid.” We agree, which is one reason we believe OLC opinions should be available to Congress and the public, and support legislation to that effect.

A resolution honoring the late Rep. Wright was introduced by Rep. Gooden last week. Wright passed away as a consequence of contracting COVID. He was the first sitting Member of Congress to die from the illness.

A Congressional emergency training bill was introduced by Rep. Norman, which would require each Member, officer, and employee of the House of Representatives to complete a program of emergency preparedness training during each Congress.

A resolution to kick Rep. Swalwell off of the House Intel Committee by Minority Leader McCarthy failed to pass last Wednesday. Axios reported late last year that Swalwell was the target of a Chinese national named Christina Fang.

CRS report on Senate committee funding requests and authorizations has been updated to include the 117th Congress.

The 117th list of Congressional Member Organizations is out.

ETHICS

Rep. Tom Reed was accused of committing a sexual assault during an 2017 dinner. These allegations could subject Reed to a House Ethics inquiry. On Sunday, Rep. Reed said he takes full responsibility and apologized, admitted he is an alcoholic and has been in recovery for four years. He also announced he will not run for re-election. Any inquiry by the Ethics committee, should one take place, will be cut short by his departure from the House. There is no indication he will not serve out his term.

More than a third of House members investigated by OCE refused to fully cooperate with the probes since the office’s inception in 2009 according to a new report by the Campaign Legal Center. OCE currently lacks subpoena power to enforce records or testimony requests against Members of Congress or third parties.

ODDS & ENDS

The FBI has been spying on FOIA requestors for decades, according to the latest FBI FOIA request by CATO Research Fellow Patrick Eddington. Documents from 1989 to 2004 indicated the FBI was monitoring National Security Archive employees, specifically employees that worked for DOJ and the Washington Post on FOIA-related matters.

Brazilian-based Bússola Tech released a new video series on legislative modernization efforts around the world titled LegisTech: The Transition Towards a Digital-Ready Legislature.

Good luck to Mandy Smithberger, of the Project on Government Oversight, who is testifying before the House Appropriations Defense subcommittee on ending the Overseas Contingency Operations (OCO) account.

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

• House Oversight and Reform Committee is holding a hearing on “H.R. 51: Making D.C. the 51st State” at 11 am ET.

Tuesday

• House Rules Committee is holding a hearing on “Article I: Reforming the War Powers Resolution for the 21st Century” at 11:00 am ET.

• House Foreign Affairs Committee is holding a hearing on “Reclaiming Congressional War Powers” at 1:00 pm ET.

Wednesday

• Senate Rules is holding a hearing on S. 1 (the companion to HR 1) at 10:00 am ET.

• House Appropriations Subcommittee on Defense is holding a hearing on “Future Defense Spending” at 2:00 pm ET.

 Institute for Technology Law and Policy at Georgetown Law is holding a webinar on “Burying Information: Big Tech & Access to Information” at 10:00 am ET. RSVP here.

 Brookings is holding a series of virtual panels on “Voting Rights and Wrongs: Democracy Legislation and the Filibuster in the Senate” at 4:00 pm ET. RSVP here.

Thursday

 The Select Committee on Modernization of Congress is holding a “Modernization Cohort Listening Session” at 11:00 am ET.

• AEI is holding a web event called “Does Congress still control the power of the purse?” at 11:00 am ET. RSVP here.

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.