Forecast for May 24, 2021

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

TOP LINE

The House is holding a committee work week and the Senate is in. Next week, both chambers will be out to coincide with the Memorial Day holiday.

The January 6th Commission bill (H.R. 3233) passed the House 252-175-3. (More below)

The security supplemental appropriations bill (H.R. 3237) passed the House by one vote and faces an uphill path from members of both parties in the Senate. (More below)

The Capitol Police Board. The Committee on House Administration invited the Capitol Police Board to testify; the Senate Sergeant at Arms, who serves on the Board, did not attend. (More below)

Safe in-person House proceedings require Members to be vaccinated, but up-to half of House Republicans are not vaccinated as they protest the consequences of their own behavior. (More below)

THE JANUARY 6th COMMISSION

The House passed legislation providing for a January 6th commission by a vote of 252-175, with 35 Republicans voting for the measure. Minority Leader McCarthy rallied House Republicans against the proposal and Sen. McConnell signaled his opposition, which moved Senate Republicans to largely shift toward opposing this legislation.

The commission, if created, is intended to supplement ongoing oversight efforts, which include hearings before the House Legislative branch Approps, House Admin, House Oversight, HSGAC and Senate Rules committees. There are also the (very limited) Capitol Police Inspector General reports, Architect of the Capitol Inspector General reports, the Honore report (reflecting leadership views), and a joint report from HSGAC and the Rules committee that will come out around June 7th.

Is a review still necessary? Yes. For example, see the recent statement by Rep. Andrew Clyde (R-GA): “there was no insurrection and to call it an insurrection, in my opinion, is a boldfaced lie.” As Vox points out, he’s not the only one gaslighting history.

Republican opposition to the commission is odd on the merits because its structure grants Republicans a veto over everything. Rep. McCarthy and Sen. McConnell would be personally responsible for appointing 5 of its 10 members. This means they could simply refuse to appoint members, i.e., the Merrick Garland approach; and through their appointees, they can prevent the commission from conducting business or reporting out recommendations, as a majority is required for a quorum. Furthermore as the commission would last only until the end of December, the short timeline means, as a practical matter, the commission could not effectively compel testimony, likely would not have been able to staff up properly, and would not have enough time to go in-depth on matters of concern to congressional Republicans. All these compromises were traded to shield leading congressional Republicans from political accountability for any ties to the insurrection in return for their support of the commission.

But, of course, ex-Pres. Trump urged McConnell and McCarthy to oppose the commission prior to the vote on the bill, which had been negotiated on a bipartisan basis, and I leave the drawing of cause and effect as an exercise to the reader.

Senate vote. Senate Majority Leader Schumer indicated the bill could get a vote this week — there  is reason to believe Republicans will filibuster — and it has been placed on the Senate calendar. I would have thought Sen. McConnell would be more indirect about killing the commission. A filibuster would open up another can of worms.

House Democrats missed the opportunity to create a select committee on this topic at the start of the year, but maybe they’ll be inspired to create a longer-lasting investigation with teeth and a desire to address the twin matters of rising authoritarianism and the nearly-successful attempt to decapitate the Legislative branch. As a nod to bipartisanship — which is pretty much pointless on this issue given the events of this past week and in light of McConnell’s publicly stated position — the ability to appoint members to the select committee could be delegated to the Chair and RM of the Homeland Security Committee, who reached the original deal, in the hopes of finding members who would actually investigate the matter, but making sure there is a majority of members who would wish to move forward.

THE EMERGENCY SUPPLEMENTAL APPROPS BILL

$1.9 billion in supplemental security funds were approved by the House last week 213-212. Some Republicans had been expected to support the measure, but the help evaporated when it was clear there would be a close vote. A few progressive members voted “no” or “present,” raising concerns over what some deemed as the instinctual response of throwing money at the police rather than investigating what went wrong and holding wrongdoers accountable, according to Ryan Grim’s reporting. Senator Leahy, the chair of the Senate Appropriations Committee, has suggested as well that Congress make “smart investments in our security based on lessons learned, per Brandon Lee’s reporting. This, combined with Republican opposition — based in part on having funding go to the National Guard — suggests the security measure in its current form will have difficulty moving.

What’s in the security supplemental? We broke out the numbers last week. We note, as we did last time, that there is little direction in the legislative language itself as to where the funds are going, leaving that determination to be made by the recipients in coordination with their overseers later on, and that the measure does not address any of the transparency, accountability, or structural issues that Demand Progress identified in its recommendations for the supplemental. We also note that some funds go to tenuously related matters, such as funding for judicial security, which are important but not necessarily tied to capitol security.

The insurrection did not happen because of a lack of police funds, according to Rep. Bowman, but rather because of “a lack of coordination, preparation, and sharing of intelligence,” as Billy House has recounted. We generally agree that without more specific directives and department reforms, additional funds will not enhance Capitol security. For example, Chris Marquette’s latest reporting details dramatic Capitol Police equipment failures; despite having a half a billion dollar budget, officers’ requests for gas masks and helmets going back to at least 2018 were ignored, and on January 6th officers who did have access to helmets were working with decrepit equipment. Our close review of the USCP over the last few years suggests there are many other issues that have not been publicly addressed.

CAPITOL SECURITY

Testimony by the Capitol Police Board, except the Senate Sergeant at Arms, who apparently declined the invitation, took place last week before the House Admin Committee. See the videoHouse SAA testimony, Architect testimony, Senate SAA statement (not testimony!), and more expert witness testimony. (There is also supposed to be a CRS report on how often the Board has testified en banc, but so far we have been unable to find it.) I found the whole proceedings deeply unsettling.

The Board will not committee to sharing records of its meetings with the congressional committee staff that oversee it. House Sergeant at Arms Walker made this clear in an answer to RM Rodney Davis, and the Architect of the Capitol, who also sits on the Board, basically threw up his hands after the SAA’s statement. The Board operates on “consensus,” which is a nice word for unilateral veto. (Our Senate friends may be familiar with how this works.) Maybe this kerfuffle is about the Board not sharing information with the minority — that point is not clear — but GAO’s reports make clear that the USCP has not historically viewed itself as accountable to congressional committees.

Where’s the staff: The US Capitol Police Board has no staff except for a single executive assistant. Board members are just now talking about donating staff from their respective offices — 1 person each — to help with the Board’s work. And apparently the IG attends Board meetings and can speak up, which makes you wonder what’s been raised at Board meetings, if anything. There’s no way to know, apparently, because the Board may not even house its own records.

Where’s the Senate Sergeant at Arms? We can understand (if not agree with) a Senate leadership determination that directed the Senate Sergeant at Arms to not testify before the House Administrative Committee — if that’s what explains the no show — but it suggests that the House Administrative Committee is thus unable to conduct unimpeded oversight over the full Board. (Nor can Senate Rules.) This is a fundamentally unworkable circumstance, if we understand it properly. The House and Senate could consider creating a joint committee to jointly conduct oversight — modeled after the largely defunct Joint Committee on the Library — although we would imagine that joint hearings would be few and far between and would be hard to coordinate because members likely would not make it a priority.

Overclassification is not only a common problem, but it actively hampers security preparations, according to the Architect’s written and oral testimony. AOC Blanton yet again noted there’s a problem of “over-classifying items that do not need to be classified…information is often defaulted to a higher level of classification than needs to be.” Because of that practice, “when everything is classified, one can not enter into a logical discussion with leadership and oversight on Board proposals because of the limited number of individuals who have appropriate clearances.” The lack of clearances for Hill staff is a huge barrier to oversight broadly speaking, and we can only imagine what it is like to try to brief police and AOC staff.

How would we fix this? We have little confidence in Capitol Police senior leadership and we are deeply concerned about oversight and operations of the Board. The security supplemental provides little guidance as to what will be done and the Jan. 6th Commission, even if it becomes law, seems too skeletal and with too many veto points to be able to succeed at moving more than lowest common denominator reforms. (We hope to be surprised on that point and welcome the commission nonetheless.)  We’ll be looking to HSGAC/Rules’ recommendations, although they may be limitations in scope, and the House Admin hearings have been helpful in surfacing significant problems. We’d suggest starting with Demand Progress’ recommendations and putting them in place immediately, but the entire structure of security for Congress needs to be redone from scratch and all of the positions, including the House and Senate Sergeants at Arms, need to be rethought.

While you’re thinking, CRS updated its primers on the House Sergeant at Arms and Senate Sergeant at Arms.

COVID & CONGRESS

COVID safety measures remain in effect. Proxy voting has been extended in the House until July 3, 2021, as the SAA has indicated the COVID public health emergency is still happening. According to clarified guidance from the Office of the Attending Physician, masks are still required in committee spaces whether you’re vaccinated or not. (Given this role, we wonder whether there are public health officials inside the OAP.)

Because fewer than half of House Republicans have been vaccinated (or will admit to being vaccinated), safety measures are still necessary; as a reminder, the CDC guidance relaxing mask requirements applies to vaccinated people.

By refusing to be vaccinated,House Republicans are creating an unsafe working environment; meanwhile, some — led or potentially encouraged by leadership — have staged several stunts in protest of the safety measures. These included a letter to the Speaker requesting an end of proxy voting and remote proceedings; a privileged resolution submitted by Minority Leader McCarthy to eliminate the rule requiring masks on the House floor for vaccinated Members (it was tabled in a 218-210 vote); and roughly a dozen Republicans refusing to wear masks on the floor — an act that triggers a warning on first offense, $500 fine on second offense, and $2,5000 fine on the third.

Meanwhile, the House Democratic Caucus, 100% of whom are vaccinated, will resume in person meetings after recess, Melanie Zanona reports. Vaccinated people can also eat in dining facilities, while non-vaccinated folks will have to go to a separate section that Chris Cioffi compares to “a modern-day smoking section.” (Hey! I remember smoking sections. It wasn’t that long ago.)

Is it a good idea for remote proceedings to continue post COVID? On the one hand, remote proceedings allow witnesses to participate from afar, lowering barriers to participating in the legislative process and increasing diversity of participants. On the other hand, some people think that remote conversations disrupt the exchange of ideas and can foster power imbalances. How often do we see Congressional debate that changes people’s minds? Anyway, we think it’s more complicated than the binary choice above, but more importantly: remote proceedings must be available in case there is another emergency. More details are available in the National Journal ($).

What about proxy voting? Brookings’ Molly Reynolds, Kennedy Teel, and Jackson Gode,analyze how proxy voting has been used so far. “There are several individuals who have used proxy voting to cast votes because of life circumstances that kept them away from Washington—situations that, in the absence of proxy voting, would have required extreme steps to vote or would have involved missing votes entirely.” We continue to be supportive of the move to fully remote proceedings, which we believe are superior to proxy voting.

For more information about proxy voting and continuity of Congress, check out continuityofcongress.org.

CONGRESSIONAL AUTHORITY

The Congressional Power of the Purse Act was re-introduced by Budget Chair Yarmuth last week to address the long standing and bipartisan issue of Executive encroachment on congressional spending powers. The bill, which moves to address separation of powers issues, provides for Congress to more effectively hold the Executive branch accountable by increasing access to information and requiring congressional approval of national emergencies, for example. The House Budget Committee released a pamphlet on the legislation.

A legislative attempt to strengthen Congress’s power to enforce subpoenas was introduced by Rep. Lieu last week (H. Res. 406). We haven’t had a chance to review it closely, but it looks like an effort to enhance the inherent contempt power.

How can Congress exert oversight authority in practice? The courts were on course to weigh in on the matter after the House sued to obtain testimony from Don McGahn when the now-ex-President asserted ‘absolute testimonial immunity’ for his former advisor.This must read from Jonathan Shaub in Lawfare indicates that an agreement between the House and Biden White House to drop the case is unequivocally a missed opportunity to clarify Congress’s subpoena powers. This missed opportunity creates ambiguities that the Executive branch will continue to exploit.

BUILDING A STRONGER CONGRESS

Examining higher benefits for staff. Last week, Reps. Hoyer and Jeffries and Lofgren wrote a letter to CAO requesting a study on the current benefits Congressional staff receive and the impact of extending additional benefits to improve recruitment and retention. The study will aim to compare benefits between House staff versus the private sector.

Outside support for more House MRA and committee funding. Last week, 30 organizations and 11 congressional experts led by Demand Progress and Lincoln Network sent a bipartisan letter to House appropriators calling to restore historic funding levels for congressional personal office and committee staff, amounting to double-digit percentage increases. It’s no secret that decade-long cuts to Legislative branch funding have had an adverse effect on the institution, hampering staff recruitment, mobility, and diversity. Without the increase, the Legislative branch can’t adequately meet the challenges facing the country due to cuts to funding for staff decades ago. This letter echoes the call for MRA and committee funding increases that were made by House Majority Leader Hoyer and Caucus Chair Jeffries several weeks ago.

Top Senate committee staff lacks diversity. The Joint Center for Political and Economic Studies released its newest report card examining the diversity of top staff (i.e. staff directors, deputy staff directors, chief counsels, general counsels, and policy directors) across all Senate committees.

House accessibility for the disability community is the subject of a House Modernization Committee hearing Thursday at 11.

APPROPRIATIONS & AUTHORIZATIONS

We are continuing to track appropriations deadlines.

Delays. President Biden plans to (finally) release his FY 2022 budget on Friday. The consequence of the late submission is a domino effect that has placed appropriations bills behind schedule.

NDAA. House Armed Services may not write the must-pass defense authorization bill until September due to this year’s pushed back timeline on the budget and other priorities, Roxana Tiron reports.

Earmarks: Michael Smallberg reports that House members requested about $6 billion in appropriations earmarks (3.3m D’s, 2.7m R’s) and about $15 billion in transportation earmarks (10.7m D’s, 4.1m R’s), according to initial disclosures.

OVERSIGHT & TRANSPARENCY

Nearly half of FOIA requests last year were partially or totally denied, according to the FY2020 Annual FOIA Report. About half of the over 790,000 requests went to DHS, another 11% went to DOJ. The report also indicated that the average processing time for simple requests is 30.2 days, and the request backlog is up 17.7% from FY 2019.

A slate of good government bills, including the IG Independence and Empowerment Act (H.R. 2662), are being considered by House Oversight Tuesday at 2.

ETHICS

Marjorie Taylor Greene’s behavior can be investigated immediately and the Ethics Committee doesn’t need to wait for a Member complaint, according to an op-ed from former Ethics Committee Member Donna Edwards. Rep. Greene has made headlines for accosting colleagues, and most recently violated House floor rules. And now for this gem of wisdom: “comparing members of Congress being required to wear masks to: “You know, we can look back at a time in history where people were told to wear a gold star, and they were definitely treated like second class citizens, so much so that they were put in trains and taken to gas chambers in Nazi Germany.”

Members are racking up fines for evading magnetometers on the House floor. Most recently, Rep. Foxx was fined $5,000 for skipping magnetometers on her way to vote. She does, however, still have the option to appeal, as Reps. Clyburn and Roger have done successfully.

Rep. Malinowski potentially profited off the pandemic. He traded as much as $1 million in medical and tech stocks related to virus response since early last year, and these trades were a part of up to $3.2 million in stock trades that he did not properly disclose, Brian Slodysko reports.

Whether Del. San Nicolas had an improper sexual relationship with a staffer in his office and accepted excessive campaign contributions, are the questions at the center of a House Ethics Committee probe that began in 2020, and will continue according to a new Committee release.

Susan Collins’ campaign finances are being investigated by the FBI. Lachlan Markay reports that an unsealed search warrant indicates a defense contractor illegally funneled $150K toward Collins’ re-election, however, there are no indications that Sen. Collins was aware of this.

BILLS & REPORTS OF INTEREST

A bill to modify requirements for whistleblower complaints made by employees of an Office of Inspector General (H.R. 3338) was introduced by Rep. Connolly.

The Capitol Police statement of disbursements for the period October 1, 2020 through March 31, 2021 are final, but the document (H. Doc. No. 117—39) isn’t available on GovInfo yet. See our compilation of available USCP statements of disbursements here.

A bill to amend temporarily halt pension payments for Members of Congress sentenced for certain offenses (H.R. 3327) was introduced by Rep. Norman and co-sponsored by Reps. Maloney, Comer, Khana, and Rice.

Bills censuring Reps. Clyde, Gosar, and Hice were introduced by several House Democrats last week — H. Res. 419, H. Res. 420, and H. Res. 421 respectively.

ODDS & ENDS

Rep. Stefanik’s seat in party leadership on the GOP Steering Committee will be filled by Rep. Katko, who has been in the news lately because of his role as co-sponsor of the bipartisan January 6th commission bill.

The House has 430 members following Rep. Stivers resignation.

CALENDAR

The House and Senate committee schedules are here.

Monday

• POGO is hosting a town hall on The Cost Of Police Misconduct Act with Rep. Beyer and Sen. Kaine today at 1:30 pm ET.

Tuesday

• House Oversight is considering a slate of good government bills at 2 pm ET.

Wednesday

Thursday

• House Appropriations Committee is holding its “Member Day” hearing at 10 am ET.

The Select Committee on the Modernization of Congress is holding a hearing on making the House more accessible to the disability community at 11 am ET.

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. You can register here.