Forecast for May 17, 2021

Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Encourage your colleagues to subscribe here.

TOP LINE

Both chambers are in session this week and getting down to business:

A bill providing for a January 6th Commission likely will be considered in the House this week. The legislation, introduced by House Homeland Security Committee Chair Thompson and Ranking Member Katko, provides for the creation of an independent, bipartisan Commission. (More below).

The Emergency Security Supplemental Appropriations bill is the subject of a House Rules hearing tomorrow and is on the House floor calendar for later this week. It’s not smooth sailing, however: Republican leadership is hesitant and Senate Appropriations Chair Leahy “would be more comfortable pushing through a security supplemental once an independent commission has completed a review,” Jack Fitzpatrick reports. (More below)

The Capitol Police Board will testify at the House Admin hearing on “Reforming The Capitol Police And Improving Accountability For The Capitol Police Board” this Wednesday at 3. The last time the trio (excluding the Police Chief) testified together in the House was in the 1940s.

Capitol safety and the January 6th insurrection were the focus of a House Oversight hearing with the DoD, DOJ, and Metro Police, as well as two House Admin hearings with the USCP IG and the Architect of the Capitol Inspector General. The upshot so far: the people responsible for security don’t regularly update their security protocols and practices, don’t plan together, don’t think ahead, communicate poorly, and engage in turf battles. The IGs have at times made recommendations for fixes, which are routinely ignored. The power to fix many of these problems appears to rest in the hands of the Police Chief and her senior leadership, who have a long history of failing to act. The USCP Board appears to be a mechanism to avoid public accountability for the USCP but does not collectively exercise control or impose accountability, with de facto power residing in the hands of the House and Senate Sergeants at Arms. And DC’s unique status as a non-state combined with the fiction of a cohesive Capitol Police Board create unnecessary bureaucratic hurdles to requesting and receiving aid from the federal government. Money alone cannot fix what is primarily a management problem. (More below)

Marjorie Taylor Greene appears to be unwell and erratic. The most recent example was when she chased down and verbally accosting Rep. Ocasio Cortez, calling the New York congresswoman a terrorist sympathizer and other untruths. Video surfaced of Greene in 2019 acting in a bizarre manner, videotaping herself taunting AOC’s staff through her office mailslot and having a colleague deface her guestbook. Republican leadership does not appear to be taking efforts to rein her in or address the creepy and escalatory behavior. Greene is the poster child for why everyone entering into the Capitol, including members, should be subject to security screenings. Leadership should not sleep on addressing this problem.

THE JANUARY 6th COMMISSION

We’ve read the bill, H.R. 3233fact sheet, and section-by-section on the January 6th Commission. If enacted, the 10 member commission would be composed of non-governmental experts and have until December 31, 2021 to release their findings.

The commission’s 10 members likely will reflect partisan divisions and congressional leadership, with 2 members appointed by the Speaker, 2 members by the Senate Majority Leader, 2 members by the House Minority Leader, 2 members by the Senate Minority Leader, the Chair appointed jointly by the Speaker and House Majority Leader, and the Vice Chair appointed jointly by the House Minority Leader and Senate Minority Leader. We would hope that some of the appointees would have a demonstrated ability to work in a nonpartisan fashion. All actions will require bipartisan agreement, including constituting a quorum and issuing subpoenas.

The short runway, six months, suggests that the scope of the investigation must be triaged within its broad parameters. It must report on its findings and recommendations to (1) prevent future attacks of targeted violence and domestic terrorism (with a focus on attacks on democratic institutions, e.g. Congress); (2) improve the security posture of the Capitol complex while keeping it open; and (3) and strengthen the country against domestic terrorism. It also must report on what happened, review the investigations of other entities, and engage in fact-finding.

Our experiences with short-term inquiries suggest it can be challenging to find capable commissioners, to find staff, and to put the infrastructure in place (like getting an office space, computers, and so on). Doing so on an immediate basis can be quite hard. In addition, compliance with requests for information may be begrudging and incomplete, and it is foreseeable that (unfounded) claims of privilege may block the commission’s ability to investigate fully, an issue confounded by its short existence.

Where should the commission start? We’ve read all the public IG reports and watched the committee hearings; we expect the non-public IG reports and conversations with the Chairs/RM of the relevant committees are likely to provide additional insight. We’d also look at non-Congressional fact finding and sources of expertise. Good places to start: this investigation into the Capitol Police, this backgrounder on Congressional staff clearances; these recs for the supplemental; these primers on Section 215 of the PATRIOT Act; this work on continuity of Congress; this report on strengthening Congress; and, of course, all the incremental reporting and analysis in the First Branch Forecast.

THE EMERGENCY SUPPLEMENTAL APPROPS BILL

Where is the money going? The bill provides for $1.88 billion in security spending overall. Breaking it out by appropriations subcommittee: 45% or $839 million would go to the Legislative branch, 38% or $720 million to Defense, 12% or $229 million to Financial Services, 4% or $74 million to CJS, and the remainder to Interior and Homeland Security.

Inside the Legislative branch’s $720 million, the lion’s share — 80% or $669 million, would go to the Architect of the Capitol. The US Capitol Police would get 7% or $63 million. Everyone else would get under 4% each: Library of Congress, House Sergeant at Arms, Senate Sergeant at Arms, Office of Employee Assistance, etc.

• Of the $669 million for the Architect from the Leg branch tranche, $250 million is for future capitol grounds security, $162 million is for door and window hardening, $100 million is for security vestibules (i.e., 2 new exterior Capitol screening facilities), $100 million for COVID expenses, and $40 million for backfilled costs.

• Of the $63 million for the Capitol Police from the Leg branch tranche, $31 million is for salaries and $9 million for body cameras. We note that $3 million is going for intelligence and $3 million for riot equipment, which suggests (to me) that the USCP could easily have spent a small portion of its $500+ million in annual funding on these two items and not had defunct equipment or bad intelligence on January 6th.

The Defense approps piece is $720 million, divided between $520 million for national guard deployment and operations costs and $200 million to establish a National Guard quick reaction force.

We don’t want to bore you with the details, so here are some big things we noticed: First, these are big amounts of money with little legislative direction. Instead, the bill text at multiple places says the appropriated funds “shall be allocated in accordance with a spend plan submitted to the Committee on Appropriations.” In other words: here’s the money, come back and tell you what you want to do and a committee will okay it. Second, there are a number of reporting requirements throughout, but no requirement that the reports be made publicly available. And finally, this legislation does not address any operational details that would fix much of what went wrong, apparently relying on later legislative activities that may or may not happen. In the absence of a mark-up or report language, it’s hard to know what this will do.

CAPITOL SECURITY

House Admin held oversight hearings with the Capitol Police Inspector General (the videotestimony, and flash report) and the Architect of the Capitol Inspector General (the videotestimonyflash report 1, and flash report 2) on what happened January 6th and what needs to happen now.

Improvements to intelligence, training, and planning, as well as shifting from a police agency structure to a protective agency structure (think Secret Service) are key areas the Capitol Police need to focus on, according to the latest report from the Department’s watchdog. The (three page) flash report says expectations for Department employees are murky and protocols are not regularly updated. This structural issue came to a head-on January 6th; see officers’ first hand accounts of leadership’s lack of communication before and during the attack, via Chris Marquette.

• Even if we hire 1,000 officers magically… goals will not be accomplished,” the USCP IG noted during his testimony. If Capitol Police leadership does not improve training and communication, money and personnel will be insufficient to make the Capitol safe.

What happens when threats are made against Members or when Capitol Police officers interact with people of concern? Rep. Davis raised the issue last week, noting Capitol Police says threats are up 107%. This figure is confusing; as Rep. Butterfield noted during the hearing, reporting covers credible threats and essentially anyone suspicious or acting unusually.

• Detailed reporting on threats would allow for the public and Congress to know just how severe threats are, who is most targeted, whether there are repeat offenders, etc. This information is essential to planning accordingly. As for Rep. Davis’s question of what’s happening to people of concern (or our question of what happens to people who turn out to not be of concern), we think requiring reporting on outcomes of Capitol Police interactions — arrest, sentencing, indictment, or nothing at all — could provide insight.

Members and Hill employees don’t know what to do in an emergency andthe lack of integrated emergency training could be to blame according to the AOC IG’s testimony. There’s a siloing problem in the Legislative branch broadly speaking, and emergency preparedness certainly is no exception. The IG proposes quarterly integrated security trainings as a solution.

The Capitol Police Board is unaccountable and untransparent, and according to last week’s testimony from the AOC IG, it’s not making use of the AOC’s knowledge and expertise. The Board cuts the AOC and its security team out of decision making and reportedly ignored intel from the AOC prior to January 6th. We note specifically that the IG indicated the Capitol Police and Capitol Police Board routinely ignore the AOC’s Office of the Chief Security Officer and the IG recommends placing the OCSO on the Capitol Police Board, likely as an ex-officio member.

We watched the first two hours of House Oversight’s 5-hour hearing on the Capitol insurrection, with Washington Metropolitan Police Chief Robert Contee, former acting Defense Secretary Christopher Miller, and former acting Attorney General Jeffrey Rosen. We suspect the behavior of the witnesses is a presage of what’s to come with the Jan. 6th commission, which suggests a very tough road is ahead.
COVID & CONGRESS

What does the new CDC guidance mean for Congress? It is now recommended for fully vaccinated people to skip masks in outdoor and most indoor scenarios, but on Capitol Hill it is impossible to say who is and isn’t vaccinated. As congressional operations slide back towards normal(ish), members and staff take a gamble when they walk down the halls of Congress. CNN’s Kristin Wilson reports that fewer than half of House Republican Members say they are vaccinated; figures are better for their Senate counterparts and Democrats are at 100%. I don’t see how Congress can open up to millions of visitors without ensuring that all Members and staff that can be vaccinated are vaccinated, and to put in place appropriate precautions knowing that some visitors will not comply.

Proxy voting and remote proceedings are necessary while COVID is still a risk. Speaker Pelosi’s decision not to lift the mask requirement for floor recognition (h/t Manu Raju) is an appropriate precaution.

A former staffer’s lawsuit against Rep. Lamborn — who allegedly told staff he does not care if they get COVID and mocked aides who wanted to wear masks — for his reckless approach to the pandemic only underscores the need for protections for staff in the absence of universal vaccination. We think there must be universal rules for the entire House, not bespoke rules for each of the 435 offices, and these charges illustrate why that is necessary.
CAPABLE CONGRESS

Recruiting, empowering, and retaining a diverse Congressional staff was the focus of the latest House Modernization Committee hearing on Thursday. We have recommendations in our latest recommendation package for recruiting and retaining congressional staff here.

More intentional hiring practices. Maria Meier, former Director of the Congressional Hispanic Caucus and Senate Democratic Diversity Initiative, testified that Congressional offices need to be more intentional about their hiring practices, and a lack of representation within staff has an implication about how Congress develops legislation and policies. Meier recommended that the House further bolster its new member orientation to address HR-related issues, as well as create certification programs for all chiefs of staffs and staff directors to include core competencies that would foster office diversity plans and statements within offices.

• More representation from top to bottom is needed, according to testimony from Kemba Hendrix, director of the House Office of Diversity and Inclusion. Hendrix laid out ODI’s barrier analysis of the House workforce that demonstrated there is lack of diversity in senior staff roles. Vice Chair Timmons asked if a stronger internship program would help strengthen the diversity issue, Director Hendrix emphasized that the House needs stronger pipelines from interns all the way to chiefs of staff. Hendrix stressed that stronger partnerships with outside organizations are critical for growing the talent pipeline, and while ODI continues to lay the groundwork for these practices, each office must also be responsible for developing this long term.

Greater investments in inclusive Congressional workplaces. Keenan Austin Reed, former Chief of Staff to Rep. McEachin and Co-Founder of the Black Women’s Congressional Alliance, testified that retaining staff goes beyond quality pay and benefits, it also requires a healthy workplace. Reed left the Hill after a 10-year career and stressed that staff feel angry, unsafe, and unprotected after the January 6 insurrection. Reed recommended that the House further invest in ODI to hire more recruitment staff; provide cultural competency training; and have each office establish a diversity, equity, and inclusion person to help hire staff and intern, lead offices in culturally sensitive conversations, and engage stakeholder engagement.

• Staff burnout. Gregg Orton, National Director of the National Council of Asian Pacific Americans and former Chief of Staff to Rep. Green, testified many staff of color have reached burnout already, mainly due high workload, consistent microaggressions, and lack of upward mobility. Orton recommended that House increase its MRA funds and intern programming for greater recruitment, institute additional unconscious bias training to make sure work environments are healthy and microaggressions are eliminated, and further support staff community spaces like the Congressional Asian Pacific American Staff Association so staffers have additional spaces to build relationships and support systems. We note that Majority Leader Hoyer and Democratic Caucus Chair Jeffries have called for a 20% increase in funding for the MRA.

Better training for staff will lead to more retention. Meier also stressed that 94% of employees within the tech sector said they would stay with their employer if they were offered more professional development opportunities.

APPROPRIATIONS

Approps season is behind schedule this year, with the president’s budget proposal projected to roll out May 27th. June and July will be very busy.

How do earmarks factor in? House lawmakers put in 2,887 requests totaling $5.9 billion according to Jack Fitzpatrick, and the accounts for House earmark requests and accounts for Senate earmarks requests don’t all line up. This could make for a bumpy reconciliation process according to Jennifer Shutt.

The silver lining: there’s still time to get your testimony in. Senate appropriators are accepting public witness testimony for the FSGG subcommittee until June 24th; see the full list of testimony deadlines here. Please note we have all the new Senate deadlines.

OVERSIGHT & TRANSPARENCY

House Oversight marked upcommon sense transparency measures includingthe Access to Congressionally Mandated Reports Act (H.R. 2485) and the Federal Advisory Committee Transparency Act (H.R. 1930) last week.

Congressional subpoena power question punted. Biden’s DOJ and House lawyers negotiated an agreement to compel former White House Counsel Don McGhan to participate in a closed door interview on whether Trump obstructed the Mueller investigation. Answers are welcome; however, ending the House’s lawsuit to enforce its subpoena for McGahn to testify means courts won’t weigh in on congressional subpoena authority at this time. The broader implication here is that oversight of the Biden Administration (and future Admins) will depend on Executive compliance for now. We saw a similar dodge in this week’s House Oversight hearing, with the former acting Attorney General. Congress must strengthen its subpoena powers by addressing its contempt powers.

A privilege frequently asserted to cover up government misconduct was the subject of a letter from Members of Congress to the Attorney General. Specifically, Congress wants the AG to review past decisions to invoke “state secrets” privilege, a doctrine that has no basis in statute and is entirely judge-made.

BILLS & REPORTS OF INTEREST

Visitor access records. H.R. 3118, introduced by Rep. Quigley, would require the disclosure of certain visitor access records. He has introduced this legislation previously.

OGE reform. S. 1546. Sen. Blumenthal introduced a bill to amend the Ethics in Government Act of 1978. The text is not yet up on Congress.gov, but if the bill is similar to the S. 896 from the 116th, it would allow IGs to issue subpoenas and order corrective actions.

CRS has an updated report on Congress’s authority to influence and control Executive branch agencies.

How do House rules changes for the 117th Congress affect floor proceedings?CRS has a new report.

Committee and floor procedure for Senate consideration of Presidential nominations is the subject of an updated report from CRS.

ODDS & ENDS

GAO’s 2021 report on duplication, overlap, fragmentation, and opportunities to achieve financial benefits was the subject of a HSGAC hearing last week.

The Democratic majority grew to 219 seats (vs. Republicans’ 212) last week when Rep. Troy Carter (D-LA) was sworn in as Rep. Richmond’s replacement.

Committee change ups: Rep. Neguse joined as the newest member of the House Rules Committee last week, and Rep. Scott Peter resigned from the Small Business Committee.

The Advisory Committee on the Records of Congress welcomed new member Tanya Marshall, chosen by the Secretary of the Senate.

Does anyone want to hear us opine on Rep. Cheney’s departure from Republican Leadership and her replacement by Rep. Stefanik? I didn’t think so. But if you do, drop me a line.

Stochastic terrorism is “the public demonization of a person or group resulting in the incitement of a violent act, which is statistically probable but whose specifics cannot be predicted,” per dictionary.com. With everything that’s happening, this seems like a helpful concept.

CALENDAR

Monday

Tuesday

• House Rules will consider security supplemental appropriations legislation and the creation of a bipartisan commission on the January 6th attacks at 9:30.

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

Wednesday

• House Administration is holding a hearing on “Reforming the Capitol Police and Improving Accountability for the Capitol Police Board” at 3:00 pm.

Thursday

Friday

Down the Road

• The Advisory Committee on the Records of Congress has its next meeting on June 7th from 11:00 a.m. to 12:30 p.m. EDT.

• 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.