Forecast for April 5, 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

Capitol Police officer William F. Evans died and another officer was injured on Friday after sustaining injuries when a vehicle driven by Noah Green apparently tried to break through a barrier on the Constitution Avenue side of the Capitol Complex. Capitol Police said Mr. Green had a knife; USCP officers shot him; Mr. Green subsequently died. Capitol Police held a press briefing just hours after the attack (full video here). USCP said there is no ongoing threat, and Tim Barber, a new spokesperson for the USCP PIO, said the department will continue to release updates. Our condolences to Officer Evans and those who knew him. We remind everyone that early news reports are often wrong. More recent reporting by the Washington Post, for example, suggests Mr. Green may have suffered from mental illness; it also says he did not stab the officers, as other reporting suggested. We encourage members of the Congressional community to visit Capitol Strong if they are experiencing feelings of trauma.

It is almost infrastructure week. Yes, Pres. Biden and congressional Democrats are getting ready to use budget reconciliation to move a long overdue infrastructure repair + jobs bill in the House by July 4th. Yes, Sen. McConnell is saying no Republicans will support the measure (per BGOV’s ($) Laura Litvan). Yes, the filibuster is distorting the political process, further incentivizing broad-based Republican opposition, which is why reconciliation is being used. Yes, we will learn shortly whether it’s possible to use reconciliation more than once per fiscal year, a process which James Wallner explains here. Yes, this doesn’t address the rest of the Democratic agenda — including overturning minority rule and protecting the ability of everyone to vote — which likely will require curtailing or eliminating the filibuster.

What should be in the appropriations package? Demand Progress and a variety of civil society organizations put together a menu of ideas to strengthen our democracy — focused particularly on strengthening Congress — for consideration by appropriators. The 56 recommendations are here. Additional recommendations for the security supplemental are here. (We have released recommendations for prior appropriations cycles, including FY 2021FY 2020, etc.) More to come as the groups begin to submit their written testimony and we surface additional proposals.

Former Speaker John Boehner’s new book is coming out so we will be seeing teasers everywhere. The former Speaker recycled a few paragraphs for POLITICO, available here, which explains how exactly Michelle Bachmann ended up on the Intel Committee, how the Steering Committee works, and how the vicious conservative media cycle used to make “people who used to be fringe characters into powerful media stars.” Oh? “By 2013 the chaos caucus in the House had built up their own power base thanks to fawning right-wing media and outrage-driven fundraising cash.” Grab a glass of merlot and read along. (By the way, Rep. Bachmann’s appointment suggests that a Speaker cannot be entrusted with keeping politics out of appointments to HPSCI, so perhaps we were right that the appointment process to that select committee should be reformed.)

APPROPRIATIONS

Public witness testimony. The House CJS Appropriations Subcommittee announced the deadline to submit public testimony is April 29th. Several other subcommittees have announced their deadlines, with more to come. We are keeping track of Member and public witness testimony deadlines here.

TRANSPARENCY

Protecting whistleblowers was the topic of a letter signed by 264 civil society organizations. They identify four areas that must be strengthened. (1) Grant employees the right to jury trial in court. (2) Give whistleblowers the right to challenge retaliatory investigations. (3) Extend temporary relief to whistleblowers when they make a prima facie case for retaliation. (4) Extend whistleblower rights to include legal protection against civil or criminal liability.

ETHICS

DOJ is investigating whether Rep. Gaetz had a relationship with a girl under the age of 18, according to initial reporting by the New York Times’ Mike Schmidt, Katie Benner, and Nick Fandos. Additional reporting suggests that Rep. Gaetz may have been paying multiple women for sex, according to Katie Benner and Michael S. Schmidt. Rep. Gaetz also reportedly showed photos of naked women he claimed to have sex with to other lawmakers during conversations on the House floor, according to CNN’s Jeremy Herb, Lauren Fox, and Ryan Nobles. Per the Daily Beast’s Matt Fuller & Sam Brody, Rep. Gaetz had dated a college student who came to Capitol hill as an intern (it is unclear whether she was an intern when they started dating). He also, as a state legislator, “was part of a group of young male lawmakers who created a ‘game’ to score their female sexual conquests, which granted ‘points’ for various targets such as interns, staffers or other female colleagues in the state House,” per an ABC report.

• Rep. Gaetz indicated that he won’t resign. House Republican Conference rule 25 sets forth requirements for a member indicted for a felony to step down from their committee assignments, which may be a ways off, and the House Ethics Committee likely will open and then suspend an investigation while the DOJ investigates; Ethics would then close that investigation without releasing results in the event that Rep. Gaetz resigns or is not reelected. It is unclear whether the Members who saw the nude photos will be subject to an ethics investigation for failing to report the matter. For a temperature check inside the office, start watching for staff departures — it looks like his communications director has quit, per Kyle Griffin.

Rep. Gohmert tried(and failed) to fight the $5,000 finelevied against him breaking House security rules — he evaded metal detectors placed outside the chamber after January’s insurrection.

Get out of jail, free. Sen. Marsha Blackburn flashed her Congressional pin and got out of a Capitol Police traffic stop, according to Manu Raju. The Capitol Police say they have no record of the incident. Hmmm.

CAPITOL (IN)SECURITY

The largely unaccountable Capitol Police Board received a bipartisan letter critiquing them for their untransparent ways and urged them to do better. The letter had particular heft because it came from House Leg branch Approps subcommittee Chair Tim Ryan and RM Jaime Herrera Beutler, who showed a willingness to bring transparency to the USCP even before USCP’s failure to protect the Capitol during the Trump insurrection. They urged: (1) The USCP IG to publicly release interim and final reports with respect to Jan. 6 on “what went wrong from a planning, policy, and intelligence gathering perspective, and to make recommendations.” (2) The USCP to “hold regular press conferences updating the public on any threats to Congress” and to “share progress being made to strengthen USCP to protect the Capitol Complex, Members, staff, and the visiting public.” Katherine Tully-McManus has more context. Meanwhile, our security recs are here. We suspect Friday’s unusual briefing by the USCP was a result of their letter.

When people stop being polite and start getting real, they’re likely live on capitol security cameras. Capitol Police provided 14,000 hours of surveillance camera footage from noon to 8 p.m. on January 6th to committees investigating the attack, Kyle Cheney reported. When we crunch the numbers, this implies 1,750 recording devices. Cheney’s reporting pointed to a motion for a protective order that, in Attachment A, described the USCP camera system and contains some new information (which we discuss below).

• CCV. It’s no surprise to anyone that the Capitol Complex has a large number of closed circuit video cameras (including street cameras). “The first step whenever an incident occurs is … to pull up the CCV closest to the incident,” which allows a real-time view. Camera access is from dedicated workstations and monitors and the information is not in the cloud. Note: the USCP system does not use sound and USCP officers do not wear body cameras.

• Department Directive 1000.002 governs retrieval of archived video. The sharing of video requires approval at a high level. Notably, the Office of General Counsel has “taken a restrictive view” and “regularly deny footage to civil plaintiffs who may have been involved in accidents on the grounds unless they involved serious injury or death. (Even in those cases, I have only approved an attorney or investigator coming to the USCP and viewing the footage in our offices….)” There are exceptions: Members of Congress can come and view USCP footage of interactions with staff; video is viewable to the Architect of the Capitol.

• The USCP successfully requested in 2014 a protective order concerning the release of video of the arrest and processing of a DUI defendant to the defendant, whereby the defendant could not show to anyone unrelated to the case and had to return the video after its conclusion. The USCP has provided hundreds of videos under this restrictive process since 2015. The USCP asserted in 2019 that “the District has prosecuted hundreds of impaired driving cases brought by the Capitol Police.” If so, it seems likely the Capitol Police are not including the vast majority of their arrests in their public arrest reporting, which we have been tracking for the last few years — making their “disclosures” all but worthless.

• As a condition of providing video of the Trump insurrection to the FBI and MPD, the USCP undertook efforts to prevent public disclosure. This included ensuring the video would not be subject to FOIA, keeping it under the legal control of the USCP, and returning it to the USCP after the investigation.

• We finally have a definition of what the USCP considers security information and it is overbroad.“ Information that (1) is sensitive with respect to the policing, protection, physical security, intelligence, counterterrorism actions, or emergency preparedness and response relating to Congress, any statutory protectee of the Capitol Police, and the Capitol buildings and grounds; and (2) is obtained by, on behalf of, or concerning the Capitol Police Board, the Capitol Police, or any incident command relating to emergency response.” This matters because the USCP routinely withholds info they decide constitutes “security information.” Remember that the acting House Sergeant at Arms pointed to this as a problem with releasing materials concerning US Capitol Police Board decision making.

• The Capitol Police are making a mosaic argument, which is that the release of any video could help people understand the layout of the Capitol, notwithstanding the facts that maps are in fact readily available online at a pretty high level of detail. We wonder whether the USCP IG or GAO have looked into the use of CCV by the USCP.

What about the insurrectionists? “Many of those who invaded the halls of Congress on Jan. 6 are likely to get little or no jail time,” reported Josh Gerstein and Kyle Cheney. Their analysis shows “more than 230 defendants formally and publicly charged so far face only misdemeanors.”

What about the Capitol Police Board? That’s the half-billion dollar question. Andrew Desiderio and Kyle Cheney elevate Sen. Blunt’s efforts in 2017 to reform the Board, which ran into headwinds from leadership… who control its membership (and like it that way).

The Capitol Police IG has conducted a preliminary review into January 6. House Admin Chair Lofgren has read his initial two reports — which we note are not publicly available (at least not yet) — and says she will convene the Committee to review the IG’s findings and recommendations in the next few weeks. The House Leg branch Approps subcommittee has been briefed on the reports, according to Katherine Tully-McManus.

Recap. On the Lawfare blog, William Ford and Rohini Kurup provide a recap of what we have learned so far from the House and Senate hearing on the Jan 6th insurrection.

CONGRESSIONAL SURVEILLANCE

Still unresolved: how is the government determines which electronic devices belong to people authorized to be in the Capitol and which ones belong to insurrectionists? The Washington Post’s Drew Harwell and Craig Timberg re-reported an interesting tidbit that raises more questions than answers.

What they reported: “In at least 17 cases, the federal documents cite records from telecommunications giants AT&T, Verizon or T-Mobile, typically after serving search warrants for a range of subscriber data, including cellphone locations. Investigators also sent ‘geofence’ search warrants to Google, asking for the account information of any smartphone Google had detected on Jan. 6 inside the Capitol via GPS satellites, Bluetooth beacons and WiFi access points. Investigators then compiled an ‘exclusion list’ of phones owned by people who were authorized to be in the Capitol on Jan. 6, including members of Congress and first responders. Everyone else was fair game.”

How did they build this exclusion list? There is no central list of people authorized in the Capitol, let alone their electronic devices. Such a list would include Members of Congress, leadership staff, committee and personal office staff, support office staff, support agency staff (from GAO, CRS, etc.), members of the press, contractors, and official guests (including family members and lobbyists).

One method would be to identify all the electronic devices that connected to cell phone towers, which is what the WaPo’s reporting suggests. (It also suggests the use of information collected through Android devices, made by Google, or smart phones using Google services.) Clearly using a warrant for January 6th to get this information from the cell phone and technology companies would be fine as there is probable cause. But how did they build their exclusion list?

• Brute force. They could build their list and brute force their way through the device IDs and try to determine connected ownership info. Is there such a list or set of lists that they could query? If the government has it or has access to it — a list of all our electronic device IDs and their connections to real people — that raises significant questions regarding mass surveillance and our collective privacy. If not, it may take a long time to compile, but reports suggest this was done pretty quickly. How detailed is the information collected by the cell phone companies and by Google?

• Comparison. They could compare people on Capitol Hill on Jan. 6 versus those present on other days. (For example, look at the records of people connecting to cell phone towers or that usually go to Capitol Hill as identified by Google.) Looking at people who regularly were on Capitol Hill would be an easy way to screen them out. But obtaining that list or information about travel pre-Jan. 6— potentially people who are not criminally suspect — seemingly would not be possible without a warrant. Would presence on Capitol Hill alone be enough to determine probable cause to obtain a warrant for days prior to Jan. 6? Maybe.

• Preexisting list. Maybe there is a preexisting list of people and associated devices authorized to be on Capitol Hill. We don’t think that’s the case, however, except in very limited circumstances.

• Something else? There is reason to believe the government uses StingRays, which are fake cell phone towers designed to capture caller information. Are there StringRays near Capitol Hill capturing Congressional and other communications or other such devices?

The upshot of any of these approaches is that the government, at the flip of a switch, could identify the electronic devices of Members of Congress, staff, and journalists. We can certainly imagine how dangerous it could be for the Executive branch to be able to look at the network of communications among Members of Congress/staff/press or even to try to access the content of those communications. Does the Executive branch routinely collect information about phone numbers that begin with 202-224? We know the Executive branch spied on Senate staffers less than a decade ago. What would limit the mapping of communications among Members, staff, and the press?

CONGRESSIONAL PROCEDURE + OPS

Of course interns should be paid, and a recent Pay-Our-Interns report explored how Members use their intern allowances. (“These data suggest an unequal racial and economic makeup of legislative interns.”) The Congressional Management Foundation followed up with 5 recommendations to diversify internships. FWIW, we recommend that all interns be paid no less than the local minimum wage and that an internship office be established to assist with recruiting and providing support to congressional interns.

Virtual lobbying is here to stay. According to BGov’s ($) Megan Wilson, the pandemic forced lobbying shops to adapt to the digital space to meet with lawmakers and staff, but it seems many are going to embrace virtual meetings even after the pandemic ends — mainly citing convenience and easier access. Moreover, planning is much simpler for groups to meet online rather than have to fly into D.C., especially with Capitol Complex accessibility problems.

On the fence, we remain concerned that it is a significant barrier to the public and those with business before Congress. We understand there is an impulse in some quarters to use Friday’s incident as an argument to keep the fence up — or skewer those who wish it removed — but the bollards and gates appear sufficient for the type of threat we just saw. Absolute security is unattainable, which is why we support reasonable precautions. We have visited many legislatures around the world and often walked right in — government should be accessible to the people. I visited the Capitol complex on Thursday for the first time in a year and it was heartbreaking. Security is a one-way ratchet and we must be smart about what measures we put in place.

We are watching House Committee funding levels, which have not yet been finalized. All but three committees have submitted committee funding resolutions, which we have been cataloging. Still missing is Oversight, Administration, and Ethics — and Appropriations is funded through a separate process. We recently wrote about funding levels for Senate committees in the 117th Congress.

The Jam Band. Will members of the Freedom Caucus continue to use delay and disruption tactics to take down uncontroversial bills and stop the legislative process? Olivia Beavers and Melanie Zanona unwrap the enigma of what level of obstruction will prompt House leadership to change the rules.

Town Halls. Democrats have held triple the number of town halls this past month — 187 to 66 — compared to Republicans, according to a Legistorm analysis. Nearly all Dem meetings have been virtual while 1/3 of Republican events have been in person.

The Fix Congress Committee published its rules in the Congressional Record last Thursday.

Proxy voting was extended to May 19 by Speaker Pelosi, citing the ongoing pandemic. To see the full timeline of extensions, visit our continuity of congress website.

OVERSIGHT

Pentagon Ordered to Consider $2 Billion in Malpractice Claims. This doesn’t really fit into our newsletter, but damn. BGOV’s Roxana Tiron ($) reports that in Dec. 2019 Congress made it possible for “troops or their families seeking compensation for injury or death at the hand of military hospitals” — an effort opposed by the Pentagon. Since then, $2.16 billion in claims have been filed, which, by point of comparison, is nearly half of the funding for the Leg branch. The DOD has been holding up implementation of the rule, of course, but one hopes this might drive the military to lower the error rates.

The Congressional Oversight Manual, a lengthy report first drafted by my former colleague Mort Rosenberg in 2004, was updated and re-released by CRS this past week. The document is a guide for congressional overseers on how to conduct oversight, with an explanation of various oversight tactics, a discussion of congressional powers, and a helpful sampling of forms throughout. After he left CRS, Mort was persuaded to update his report for public use, and the document is now in its second edition, available here.

Effective oversight. The Levin Center is taking nominations of legislators to receive the Levin Center award for effective oversight.

ODDS & ENDS

A bill to install a statue of Shirley Chisholm, the first black woman elected to Congress, was introduced by Rep. Clarke. She introduced this legislation last Congress with then-Senator Harris. Roll Call’s Chris Cioffi has a story on why more black Women representation in the halls of Congress means so much to so many.

Jane Sánchez, Deputy Librarian for Library Collections and Services and 25th Law Librarian of Congress has passed away after battling cancer. Our condolences.

Aslihan Bulut will serve as the acting Law Librarian of Congress.

H.R. 51, the DC Statehood bill, will be marked up and voted on by House Oversight on April 14th.

Rep. Raskin has been chosen as DCCC’s vice-chair for organizing.

The Commonwealth Association of Legislative Counsel has a thrice-annually published newsletter, the Loophole, that can be surprisingly fun to read. For instance, the March 2021 edition includes an article on euphemisms in legislation that is top notch. Euphemisms, it explains, are the ‘deodorants of language.’ (There also is a newsletter for members.)

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

• Brookings is holding a webcast on, “Filibuster 101: An explainer of the Senate rule and reform” on April 6 at 2:00 pm ET. RSVP here.

Wednesday

• Congressional Management Foundation, in partnership with SHRM, the Society for Human Resource Management, are hosting a webinar on, “Life in Congress: Managing Trauma and Stress.” at 2:00 pm ET featuring former Rep. Brian Baird. RSVP here.

Thursday

• Data Foundation and GAO are hosting a webinar on, “Issues in Evaluation: Improving Performance Measurement and Evaluation.” at 2:00 pm 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.