Forecast for May 3, 2021

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Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. We had thought last week would be quiet, but we were wrong. Was this email forwarded to you? Subscribe here.

TOP LINE

Calendar. The Senate is out this week and the House is holding a committee work week, which means there are hearings but not floor votes. Still, it’s another busy week. On Monday — yes, today — House Oversight is holding a hearing on Improving Government Transparency and Accountability and the Lincoln Network is hosting an all-star virtual conference on GAO’s Next 100 Years. Tuesday is our Advisory Committee on Transparency event on Congress’s Transparency Agenda and House CJS will have A.G. Merrick Garland testify on the Justice Department’s budget. On Thursday the House Modernization Committee is holding a hearing on Congressional Staff Capacity.

Restoring staff pay to historical norms is the subject of an excellent letter sent by Reps. Hoyer and Jeffries, who call to return staff pay to its 2011 levels (when it was 20% higher).

Continuity of Congress. Sens. Portman and Durbin reintroduced a resolution to allow for remote voting on the Senate floor, which would allow for the Senate to continue to operate in an emergency.

This past week was incredibly busy. Below we recap the Senate Legislative Branch Appropriations Subcommittee hearing on budgets for GAO, CBO, and the Library; the House Modernization Committee’s hearing on interns and fellows, the House Budget Committee’s examination of the Power of the Purse, and a webinar hosted by Demand Progress where a dozen organizations gave five-minute talks on the requests they’ve made of the appropriations committee.

Quick bits. Sen. Manchin opposes DC statehood bill; House Admin received a third flash Capitol Police IG report on the same day a USCP intel official resigned; Sen. Leahy announced earmark regs; more news on when Approps testimony is due; and 4 new reports from the Clerk on implementing modernization proposals.

RESTORING STAFF PAY

Back to basics. Reps. Hoyer and Jeffries released a thoughtful letter calling to restore Congressional staff pay to its 2011 levels (adjusted for inflation); it is down by 20 percent. Pay parity isn’t a cure to sky-high staff turnover rates, but it would be a huge step towards bringing Legislative branch pay in line with the Executive branch and narrowing the gap with the private sector. To put this in context, back in 2010 I analyzed House staff pay and found that staff pay levels at that time wrtr significantly below their DC-area counterparts, driving turnover and brain drain. This proposal would only get us only back to those levels. (I also looked at the Senate pay gap in 2012.) I stand by my 2013 Slate piece on the topic, Why Congress Deserves a Big Fat Raise.

Over the last dozen years there has been a growing understanding that a strong Congress depends upon a capable staff and a robust and diverse workforce — and an acknowledgement of the deleterious consequences to our democracy of a Congress unable to go toe-to-toe with the White House. The best study I’ve seen on staff pay was done by Dr. Casey Burgat, although there is now an official study from the House of Representatives, various reports from CRS, a pending study in the Senate, and so on. We recently looked at overall funding levels for House Committees and Senate Committees, which are down by tens of millions of dollars. Cutting Congress cuts at our democracy, which is why Demand Progress co-lead a letter calling for a 10% increase in funding for the Legislative branch for FY 2022. (BTW, our report on House Committee funding levels is new this week!)

Staff pay is the subject of a BGOV article by Emily Wilkins, where she addressed recent testimony by members of Congress before the House Modernization Committee who called to redress inadequate staff funding and retention. “In the past 20 years, costs of living increased as the inflation-adjusted median pay for most staff positions declined, some by more than 20%, according to a study by the Congressional Research Service.” Demand Progress also has recommended decoupling staff pay from member pay and just released testimony concerning unionization of Congressional staff.

Will their pay level proposal go anywhere? We sure hope so. There are some clever ideas on how to make it possible to restore Congressional staff pay for 2011 levels while keeping funding for Congress at appropriate levels. Funding for staff in the House is determined through the Appropriations process, and with high level leadership support, there could finally be sufficient political will to fix it in the context of building a stronger Congress. We know restoring legislative capacity is a long-time interest of the subcommittee chair.

Just so you have it. We ran the numbers for the House Member Representational Allowance. They’re in the chart below in constant dollars. One thing to note: while the Senate uses a formula to regularly adjust the size of the personal office staff to take account population growth, the House does not. The average congressional district in 1980 had 520,000 constituents; in 2010 it is 711,000. The number of staff per personal office in the House has been capped since the late 1970s. So not only is the funding available for Member offices down significantly, but there has not been an increase in staff to support constituent or policy work even as the district populations have grown by 37%.

A CAPABLE CONGRESS

Continuity of Congress. Sen. Portman, joined by Sens. Durbin, Warren, Sanders, King, and Schatz, reintroduced a resolution to allow for remote voting on the Senate floor once it is determined there is “an extraordinary crisis of national extent exists in which it would be infeasible for Senators to cast their vote in person.” S. Res. 201 is a thoughtful approach to a thorny problem — keeping the Senate operating when it is not possible to convene in person — and we applaud Sens. Portman, Durbin, and the others for their responsible, bipartisan approach. For more on this issue, see continuityofcongress.org.

Don’t forget: The Advisory Committee on Transparency will preview what’s on Congress’s transparency agenda at 3:00 pm. Panelists include Demand Progress’s Daniel Schuman, POGO’s Liz Hempowicz, Open the Government’s Freddy Martinez, and moderator Courtney Buble from GovExec.

FELLOWS AND INTERNSHIPS

Fellows and internships were the focus of a House Modernization Committee hearing on Thursday. We have recommendations in our latest recommendation package for improving congressional internships and fellowships here.

Pay our interns. The House needs to increase the pot of funds available for personal office internships and make money available for committee internships. Pay Our Interns‘ Carlos Vera testified that each congressional office’s intern fund must be raised from $25,000 to $40,000 to provide more funds for each intern so they can afford to live while interning in DC. Additionally, while personal and leadership offices provide funds for interns, House committees do not, and Mr. Vera recommended that each of the 20 committees receive $70,000 annually.

• Pay a living wage. Meanwhile, Rutgers Assistant Professor Dr. James Jones, author of the Color of Congress report, recommended in his testimony that interns need to be paid a living wage to foster a more diverse talent pool. College to Congress founder Audrey Henson echoed this sentiment and suggested that Congress should raise intern wages to the D.C. minimum wage, which is currently $15 an hour.

• More intern data and transparency is required to help improve intern recruitment and diversity the intern-to-staff pipeline. Dr. Jones mentioned it was difficult to track down the data on paid internships and there are no records of unpaid interns, making it impossible to measure the diversity of that talent pool. Carlos Vera spoke about the creation of an Intern Resource Office, which could be a centralized office within Congress that could collect intern data, provide onboard training to interns, best practices for offices, and more. We included the recommendation on a creation of a House Intern Resource Office in our March recommendations package.

• Expanding fellowships for tech, national security, and wounded warrior fellowships would create stronger pipelines for STEM grads to reach Congress. Tech Congress’s Travis Moore testified that of the 3,500 staffer on Capitol Hill, fewer than 20 have meaningful substantive technology backgrounds. Broadening opportunities for these fields will help make progress in building a stronger tech capacity in Congress. Demand Progress also strongly recommends tracking fellows and addressing fellowship conflicts of interest.

The second panel of witnesses validated the best practices of engaging in an intentional hiring process, tracking diversity and outcomes, providing educational opportunities, and so on.

ICYMIRoll Call‘s Jim Saksa had an excellent article on the racial gap among congressional interns. It explores the logistics of how prospective interns find internships and how feeder programs works.

POWER OF THE PURSE

Reclaiming Congress’s power of the purse from the Executive branchwas the focus of a Budget committee hearing this past Thursday that featured Brookings’ Molly Reynolds, POGO’s Liz Hempowicz, GAO’s Edda Emmanuelli Perez, and the Center for Renewing America’s Mark R. Paoletta. Congress needs access to information about Executive branch actions to make quality policy decisions in a timely manner. To make that happen, panelists suggest increasing staff pay so Congress can retain experts who are skilled in oversight, strengthening Congress’s subpoena enforcement power so it can get information in a timely manner instead of relying on drawn out court proceedings, and requiring transparency in apportionments so Congress can know where money is actually going. BTW several of these changes are provided for in the Power of the Purse Act.

Since 1977 there have been 20 government shutdowns and 192 Continuing Resolutions, according to Ranking Member Smith. Enhanced information sharing will facilitate timely decisions in the appropriations and budget process. What does not help is misinformation: one witness, a former OMB official from the Trump Administration, made several erroneous claims.

LEG BRANCH APPROPRIATIONS

The Library, CBO, and GAO presented their budget requests for FY 2022 to the Senate Legislative Branch Appropriations Committee on Wednesday; they had previously submitted their request to House Appropriators — we previously covered GAO’s requestCBO’s requestand the Library’s request.

GAO may need more resources for oversight and coordination with Inspectors General if Congress passes additional spending measures, according to Comptroller General Gene Dodaro. GAO issued half a dozen status reports and over 70 recommendations last fiscal year, but may need to scale up as the scope of federal spending increases.

Cybersecurity is at the top of every agency’s priority list. CBO Director Phillip Swagel said his team is transitioning to more cloud interfaces and working with the IRS and JCT to secure data. GAO’s Dodaro mentioned he has been working to manage cybersecurity infrastructure within the agency since the late 1990s, but warned the federal government overall is not keeping up with cybersecurity threats, artificial intelligence, and quantum computing. Librarian Dr. Carla Hayden said they have implemented all of GAO’s recommendations around cybersecurity, but wants to use some of its FY 2022 requested funds to modernize its 20-year-old electronic security system used by LOC and USCP for physical security monitoring of library facilities and collections, as well as replacing the library’s 3G cellular system, which currently provides connection to roughly 50% of the library’s facilities. We are not confident that the Legislative branch’s federated approach to cybersecurity is sufficiently reliable.

APPROPRIATIONS

Improving government transparency and accountability was the topic of a series of lightning talks hosted by, well, our alter ego. Because House appropriators did not provide the usual opportunity for public witness testimony because of COVID, Demand Progress provided a forum so folks could make their case over Zoom. Obviously, our effort was unofficial and we welcome the return to in-person testimony next year. Watch the presentations and dig into the testimony here. We’ve linked their written testimony below.

• Eli Lehrer, president of the R Street Institute, called for the removal of confederate statues from public view in the Capitol.

• Ginger McCall, legal director for Demand Progress, called for transparency around the Justice Department’s Office of Legal Counsel legal opinions.

• Nan Swift, resident fellow of the R Street Institute, called for a properly funded Congress and in particular providing necessary funds to GAO.

• The Hon. Brian Baird, former Member of Congress, addressed continuity of government.

• Daniel Schuman, policy director for Demand Progress, addressed congressional staff unionization.

• Jamie Neikrie, coordinator for Issue One, called to make the staff payroll paid twice-a-month and to increase investments in the congressional academy.

• Amelia Strauss, policy advisor for Demand Progress, addressed Capitol Police transparency.

• Irvin McCullough, national security analyst for the Government Accountability Project, called for the creation of a Senate Office of the Whistleblower Ombuds.

• Michael Stern, a former House attorney and founder of Point of Order, called for greater transparency concerning positions taken by the House’s Office of Legal Counsel to ensure the congressional perspective is given proper consideration by the courts.

• Andrew Lautz, director of federal policy for the National Taxpayers Union, called for greater transparency around OMB apportionment decisions and reform around the OCO.

• Kel McClanahan, executive director of National Security Counselors, addressed strengthening GAO’s oversight capabilities when it comes to intelligence matters.

• Bradley Moss, partner at the Washington, D.C. Law Office of Mark S. Zaid, P.C., called for a review of in camera FOIA declarations.

Earmarks. Sen. Leahy laid out his chambers’ new rules on earmarks. “The Senate Appropriations Committee will, on a bipartisan basis, accept requests for congressionally directed spending items for appropriations bills.” Two accountability provisions are built into the guidance: (1) Senators must post their requests online alongside a certification they do not have a financial interest in the earmark; and (2) GAO will audit a sample of the spending items. Demand Progress has recommendations how earmarks should be made transparent.

We’ve updated our appropriations tracker. Keep up to date with all of the deadlines by using our handy spreadsheet.

TECHNOLOGY AND LEGISLATING

What’s due to Congress in May? We published our latest article on what reports are due from Leg branch support offices and agencies for the month of May.

Four more reports were published on House Admin’s modernization webpage; they are the quarterly reporting required from the Clerk’s office on various modernization initiatives. (By the way, it’d be helpful if House Admin would put the dates on the landing page so you could know when a new report is submitted. Also, it appears the Q2 reports from January have yet to be published.)

• The report on the comparative print project is lengthy and detailed. As a reminder, this is the effort to provide a tool whereby users can see, in real time, how an amendment would change a bill, or proposed legislation would change the law, and to compare versions of bills. The bottom line: a beta-version is expected to be released House-wide by the end of 2021. More than 100 staff are in a pilot project and more are being recruited. This software goes significantly beyond what is available off the shelf to show changes in legislation, as it is both more accurate and more precise when handling legislation that has changes in its structure (e.g. combined a bill into a package) or the location of language (e.g. text is moved). Check out the report — the illustrations of the program in action are remarkable. The project also illustrates the benefits of agile development combined with human-centered design. It also underscores the necessity of having all legislative information available online in a structured-data format.

• The report on creating unique identifiers for lobbyists is one page long. What it says is that the Clerk has identified two possible solutions last May and is waiting for guidance from House Admin. While they wait, they’re working on building a component to review lobbyists’ first and last names.

• The report on building a committee vote database is two pages long and says nothing has changed since their initial report was submitted to House Admin in July 2020. They appear to be waiting for a conversation with House Admin and other stakeholders.

• The report on standardizing formats for legislative documents also is two pages long. It says that efforts to update all bills and resolutions to USLM XML format (the modern data format) will be completed by the end of 2021; at which point they will begin on committee reports.

Impressive, Law Library of Congress. The Law Library of Congress announced a fantastic new effort where all of you can help it digitize its historical legal reports. As you know, the Law Library of Congress publishes reports on foreign law (as contrasted with CRS, which publishes reports on domestic law), and the Law Library has voluntarily undertaken a huge effort to scan and upload legal reports and other publications going back to the 1940s. The problem, however, is that some of these reports are difficult to read for various reasons, so they are asking for our help to “to provide accurate transcriptions of these original documents and ensure full-text searchability for this new collection.” They will continue to scan and upload the files over the next few years; we can help make sure everyone can access these important documents. So far: 520 have been completed, 1,009 need review, 185 are in progress, and 4,394 have not been started. Go here to help. (Honestly, give it a shot and tell your networks.)

How are foreign legislatures using technology to improve public participationRoll Call published two articles by Gopal Ratnam that explored Congress’ slow embrace of technology and how technology tools can deepen citizen engagement with drafting legislation.

SECURITY

The Capitol Insurrection was supposed to be the subject of a hearing by the House Oversight Committee on Thursday, but proceedings were postponed with a new date TBD.

In an interesting note, House Administration on Friday indicated it had received another flash report from the USCP IG that contained “troubling deficiencies” concerning the “Department’s threat assessment and counter-surveillance operations.” On the same day, POLITICO reported “a key intelligence official inside the department, Jack Donohue, has resigned.” Just a reminder that Acting Chief Pittman was the Assistant Chief of Police for Protective and Intelligence Operations on January 6, so it makes sense to wait to see the report to draw any inferences. Chair Lofgren said House Admin will hold a hearing in the next few weeks to hear again from IG Bolton.

Oversight and the Capitol Police. The Washington Post’s Nicole Dungca and Jenn Abelson thoughtfully explore why so many police departments are not subject to adequate oversight and accountability. Their conclusion: “Police nationwide have frequently defied efforts to impose civilian oversight and, in turn, undermined the ability of communities to hold law enforcement accountable.” Putting aside the weird concept of citizens as “civilians,” the U.S. Capitol Police and its Board have actively undermined transparency and accountability for their actions, as our research underscores, which is why Demand Progress made the following recommendations for the security supplemental. Today we also are releasing the testimony Demand Progress’s Amelia Strauss submitted to appropriators for FY 2022 on this point.

Maybe proponents of security clearances for Congressional staff will consider the lessons from the D.C. Police, who had 250 gigabytes of data stolen from them by hackers. So much tempting information in one place seems unwise. But it could never happen to clearances…. oh, wait, it did in 2016.

Insurrection commission. As you know, there’s a divide between Democrats, who want the Jan. 6 commission to focus on the insurrection, and some Republicans, who want to muddy the waters and blur the issues. But POLITICO reports that Rep. Liz Cheney wants the commission to be focused narrowly on January 6th and not engage in whataboutisms on political violence generally. “‘If we minimize what happened on Jan. 6th and if we appease it, then we will be in a situation where every election cycle, you could potentially have another constitutional crisis.” “If you get into a situation where we don’t guarantee a peaceful transfer of power, we won’t have learned the lessons of Jan. 6.”

TRANSPARENCY

Dark money in political campaigns is the ultimate focus of a U.S. Supreme Court case, Americans for Prosperity Foundation v. Bonta, which was the subject of oral argument this past Monday. Court watchers, like SCOTUSBlog, says it is likely the new-right majority — enshrined there by Sen. McConnell, who created our modern dark money system — will strike down “California’s requirement that charities and nonprofits operating in the state provide the state attorney general’s office with the names and addresses of their largest donors” on the basis of a spurious argument about donor intimidation. This is really about keeping the flow of dark money funding political campaigns, of course. Where’s Antonin Scalia, who rightly pointed out in an analogous case “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

SAFETY

Why did Members wear masks during the SOTU? How many are not vaccinated? Speaker Pelosi had an interesting answer at her weekly press conference:

“We cannot require someone to be vaccinated. That’s just not what we can do. It is a matter of privacy to know who is or who isn’t. I can’t go to the Capitol Physician and say, ‘Give me the names of people who aren’t vaccinated, so I can go encourage them or make it known to others to encourage them to be vaccinated.’ So we can’t – we can’t do that.” Later on she says she thinks 75% of the House is vaccinated.

This statement deserves some unpacking… but maybe in a later newsletter.

ODDS & ENDS

Disposition of contested elections was the focus of a House Admin Committee business meeting on Wednesday. One fact I didn’t know, per Chair Lofgren, the House of Reps. has adjudicated at least 150 contested elections. As of now all contested federal elections in the House have been resolved.

What happens to federal judicial papers after a judge retires? The Library of Congress has an excellent guest blogpost on the Manuscript Division’s federal judiciary collections.

Deeming resolutions. It appears we linked to an older CRS report last week when instead me meant to link to this report on deeming resolutions. Sorry!

How do voters respond to congressional scandals? Michael Miller & Brain Hamel have a spreadsheet for 1979-2018. (H/T Data is Plural) They were even kind enough to add bioguides to integrate the data with other datasets. We note our friends at GovTrack have a scandal repository going back to 1789.

Pres. Biden addressed Congress. The Congressional Record has the transcript; we note the Republican rebuttal said Biden was failing at unity — i.e., Republicans were withholding support for the President — at the same time the RNC spokesperson said “Mr Biden’s first 100 days in office were ‘an unqualified failure,”’ accusing him and his party of ‘hyper-partisanship,’” per the BBC. The CBC underscored that point around asymmetric polarization, contrasting how 44 out of 47 Democrats voted for the centerpiece of Pres. Reagan’s agenda because “the opposition party felt pressure to help Reagan.” Reuters puts this in political context: “Republicans in Congress already have their eyes on making gains in the midterm congressional elections in 2022 and are aligning a divided party around opposing Biden.” As BGOV notes, “Most of Biden’s social-spending program should be able to clear Congress with only Democratic support.” And the Financial Times notes, “The model of pre-coronavirus capitalism, with high levels of inequality, is losing popular support, suggesting the need for a post-Covid world with more support for the vulnerable and higher taxes, especially on extreme levels of income, wealth and profits.”

Statehood. Sen. Joe Manchin reportedly said he opposes DC statehood because he thinks it would require a constitutional amendment. What? As a reminder, admission of states can be done by traditional legislation. Fortunately, my former CRS American Law Division colleague Ken Thomas testified on the legality of H.R. 51 in September 2019. My reading of his testimony suggests the courts would give Congress great deference on the decision to grant statehood, matters concerning adjusting the size of the district have been addressed previously, and there is little case law on point. In other words, Congress can do it if it wants to and it is up to the House and Senate to make their own call on its constitutionality.

Rep. Gaetz was implicated in criminal activities in a pardon effort by Joel Greenberg handled by Roger Stone, where Greenberg apparently said he facilitated Gaetz having sex with an underage girl that they had paid for sex, according to the Daily Beast.

CALENDAR

Monday

• House Oversight and Reform Committee is holding a hearing on “Improving Government Accountability and Transparency” at 11:00 am. The Committee provided a preview of coming legislative attractions.

• GAO’s Next 100 Years is the topic of a Lincoln Network virtual conference today from 1-4. This is a can’t miss event, and it includes remarks from Gene Dodaro.

Tuesday

• CJS Appropriations Subcommittee is holding a hearing on “Fiscal Year 2022 Budget Request for The Department of Justice” at 10:00 am.

• The Advisory Committee on Transparency will preview what’s on Congress’s transparency agenda at 3:00 pm. Panelists include Demand Progress’s Daniel Schuman, POGO’s Liz Hempowicz, Open the Government’s Freddy Martinez, and moderator Courtney Buble from GovExec.

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

Wednesday

Thursday

• OGIS will host the Center of Disease Control FOIA Office for an event titled “Finding a Needle in a Haystack: Enterprise-wide FOIA Searches at CDC” from 9:30 am to 11:30 am ET.

• Modernization Committee is holding a hearing on “Congressional Staff Capacity: Improving Staff Professional Development, Increasing Retention and Competing for Top Talent” at 11:00 am.

• Brookings is hosting “A conversation with Rep. Rosa DeLauro on Priorities for Congressional Appropriations” at 12:00 pm ET. RSVP here.

Down the Road

• OGIS Annual Open Meeting is being held on Tuesday, May 12 from 10:00 am to 12:00 pm ET. Registration is not open yet.

• The Data Foundation’s four day virtual symposium focusing on the use of data for an equitable, data-informed society is happening May 18-21. Learn more here.

• FOIA Advisory Committee Meeting is being held on Thursday, June 10 from 10:00 am to 1:00 pm ET. Registration is not open yet.