Bring on the out-of-office responses and welcome to this recess edition of the First Branch Forecast, where we look into the Legislative branch and government transparency. Now, you’ll have time enough at last to encourage your colleagues to subscribe here.
The forgotten art of congressional oversight is the topic of a fantastic, extensive article by the American Prospect’s David Dayen. It explores — with smart examples — how congressional oversight has held the powerful to account, the ingredients to make it work, what has changed in Congress over time, and who is making it work even in our current political environment. This is the best kind of long read: it’s one you can use.
Transparency around the DOJ’s Office of Legal Counsel opinions is a key element of government accountability, which is why Demand Progress coordinated a letter with a bipartisan group of 20 organizations calling on Biden’s nominee to run that office to endorse proactive disclosure for the opinions (with minimal exceptions) and to release an index of all OLC opinions. The often secret opinions constitute a body of law that hides from Congress and the American people how the Executive branch is applying the law. Notably, nominee Christopher Schroeder himself endorsed transparency for the opinions in 2004, and a 2020 statement drafted with substantial assistance from former OLC attorneys described the office as being in “crisis” and endorsed proactive disclosure. Schroeder’s nomination will come before the Senate Judiciary Committee. Demand Progress continues to support appropriations language that directs the OLC to release the opinions, included in the House bills in FY 2021 and FY 2020.
Congressional Republicans killed the January 6th Commission even after Democrats gave them every possible point of leverage to protect their political interests. Luke Broadwater details the many questions that will be left unanswered in the absence of a coordinated and wide-ranging investigation. Meanwhile, many Republicans in state legislatures are stepping up their unrelenting efforts to undermine democracy through attacks on the ability to vote and how those votes are counted and reported, which is part and parcel of the Trump insurrection and will accomplish the same purpose. For those who still believe in bipartisanship as a value, I refer you to this excellent opinion piece by Jack Shafer, that not only declares it long dead, but explains why bipartisanship was neither real nor a political good. (I’d love to have a discussion of how each political party in itself is a multiparty coalition, but that’s a topic for a different time.)
Appropriations Timeline. President Biden’s budget came out Friday — order a copy from GPO — and it provides a starting point for congressional negotiations over top line numbers. If I’m reading it right (I’m looking at table S-7 on page 56): Biden is proposing the Defense Allocation increase from $740.7B in FY 2021 to $752.9B in FY 2022, an increase of $12.2B (or 1.6%); the Non-Defense Allocation would increase from $660.7B in FY 2021 to $769.6B in FY 2022, an increase of $108.9B (or 16.5%). The FY 2021 number does not include $191.0B in off-budget discretionary spending, so apparently total discretionary budget authority would actually decrease from $1,592.3B in FY 2021 to $1,521.0B in FY 2022.
What’s due in June? Congress often requires Legislative branch support office and agencies to submit reports to Congress and we track what’s due when. See our June update, which includes a U.S. Capitol Police report on the cost for creating an arrest summary data system (Demand Progress testified on this issue last year), a CAO report on House-wide leave policy, a report from the Clerk on automated committee roll call voting systems, and more.
House Democrats have upgraded DemCom, the incredibly cool internal website that provides context for legislative information. (More below)
Congressional accessibility was the topic of a Select Committee on the Modernization hearing on Thursday, which included panelists from the Office of Congressional Workplace Rights, civil society representatives who could address physical and technological barriers to access, a congressional staffer with deep expertise on the topic, and Rep. Langevin, co-chair of the Bipartisan Disability Caucus. (Watch the hearing and read the testimony).
Physical accessibility problems. Phoebe Ball, a Disability Counsel staffer for the House Education and Labor Committee, testified on the difficulties of navigating the halls of Congress in a wheelchair. Ball spoke about the design of the buildings, which were constructed before the ADA was enacted, and how difficult it is to travel underground given the lack of clear signage, inaccessible subway systems, and small dimensions of elevators throughout the complex. This sentiment was echoed by nearly all witnesses, including Associate Executive Director at the Paralyzed Veterans of America Heather Ansley, who testified that members of their group sometimes couldn’t fit their wheelchairs inside member offices, forcing them to hold meetings with lawmakers or staff in the hallway. In his testimony, Rep. Langevin laid out a menu of proposals to help address some of the physical barriers, including increasing the number of curb cuts outside office buildings, improving bathroom accessibility, and providing automatic openers for all doors.
Accessible communication and virtual participation. Judy Brewer, Director of the Web Accessibility Initiative at the World Wide Web Consortium, testified that publishing information as data empowers more people to be able to interact with Congress. Brewer mentioned the important steps the 116th select committee took to foster an accessibility assessment of all House websites, but also stressed the importance of having Congressional documents in accessible formats and recommended Congress take greater steps to address historical documents. (The CAO submitted a web accessibility status update report in July 2020 as requested by the SCOMC, but it is essentially 6 PowerPoint slides that we did not find particularly informative.) Throughout the hearing, many witnesses highlighted how the pandemic increased the ability for many individuals with disabilities to interact more with Hill offices through virtual meeting platforms. All witnesses recommended that these methods of participation remain in place after the pandemic ends.
Staff training and onboarding. Almost every witness recommended that offices and agencies develop plans and checklists for staff to use for when working with constituents and groups with disabilities. This includes providing training to members, staff, and interns so they are able to properly interact with individuals with disabilities. In addition, Reps. Phillips and Langevin noted a hiring pipeline should be extended to interns and staffers with disabilities so a greater range of people would become aware that they could work in Congress. Witness Heather Ansley discussed how training and guidance should also be applied to security screening processes when entering the Capitol buildings. Ansley explained that during previous visits to the Hill, there were inconsistent security protocols, ranging from screenings and wandings to invasive pat downs.
Barriers and solutions identified. John Uelmen, General Counsel of the Office of Congressional Workplace Rights, testified that OCWR identified roughly 1,600 accessibility issues in the House in its latest biennial report — including 466 in House member offices and 532 in multi-use restrooms. Unfortunately, this report apparently is not available on the OCWR website, as the last report of this kind appears to be from the 114th Congress, and we could not find the text in the Congressional Record. Uelman said many of the issues could be resolved, and recommended that the select committee push for the creation of an ADA coordinator in the House to help implement report recommendations, serve as a clearinghouse for information, coordinate with House ADA access efforts, and complement other House employee offices like OEA and ODI. He also noted that the OCWR should be provided access to the House Intranet so that it could promote its materials and guidance where Congressional staff would be more likely to find them.
Unimplemented recommendations to Congress. It did not come up at the hearing, but we note that the OCWR has issued recommendations on legislative fixes to Congress, as required by law, at the start of the 117th Congress regarding the entire scope of its work. Having read several of these reports, it appears that many recommendations to Congress have been pending for a number of years and continue to await legislative action.
Legislative data. Publishing congressional information as structured data has been a big focus of ours for more than a decade. One significant argument for doing this is because it helps make sure information is created and published in a format that facilitates accessibility. We recognize that the House of Representatives has had a standing order in the House Rules for a decade that endorses “broadening availability and utility of legislative documents in machine-readable formats.” Eventually we would like to see that requirement broadened and written into the House rules; and we would like to see the Senate adopt a parallel provision.
DemCom, the official intranet for House Democratic staff, just released a huge upgrade, per Majority Leader Hoyer’s office. For those not in the know, House and Senate Ds and Rs each maintain their own internal legislative information tools that are more robust and provide utility beyond those available from Congress.gov, docs.house.gov, or their brethren, in part because they draw from additional data sources and apply logic to that data to provide essential context. We note a major development is DemCom is now available to all Senate Democratic staff. Among DemCom’s features:
• It parses emails sent to the LD listserv and auto-populates the internal calendar with events and organizes the emails and Dear Colleagues into functional categories.
• It provides contact information for all Congressional staff — purchased from a third party source — that includes the issue areas on which staff work, so it is possible to find and email staff who work on the areas you care about.
• It provides helpful context to legislation, including adding communications sent to the LD listserv, so that you know what leadership, committees, and other members are saying about the bills; it even lets you see what some outside groups are saying.
• It also has a resume bank, a bank of LC letters, and a new tool to help each office manage staff vacation requests.
It is our opinion, w/r/t DemCom, that many of these resources should be provided on an institutional basis instead of by the parties, whether by the Library of Congress, the House Clerk and SAA or Senate SAA and Secretary of the Senate for chamber-specific information, and so on. (We have recommendations on how that could happen.) However, the story of the development of DemCom in part is the story of a multi-decade push to publish Congressional information as data, pushback from some components within the Library of Congress starting in the late 1990s and continuing for several decades, and the need to build bridges inside Congress and change aspects of the culture.
• This internal opposition drove outside innovators, like GovTrack, who were rebuffed in their efforts to obtain information as data from the Library, to become creative in how they obtained and (re)-published information legislative data as a public service. It led to the Sunlight Foundation’s Open House Project report in 2007, written by a wide array of civil society organizations and experts, and conducted with the blessing of then-Speaker Pelosi. Then it morphed into a line of advocacy that ultimately resulted in creation under Speaker Boehner of the Congressional Bulk Data Task Force; a report endorsing bulk publication of legislative data; changes in House rules; and the bicameral task force continuing on until today. Developers were organizing in conjunction with advocates, launching a major collaborative resource, the open source United States Project, in 2012, which is the backbone for access to data for millions of people. Civil society continued to organize via the Congressional Data Coalition and other means. This newsletter, in part, is a continuation of that process.
• Outside innovation supported inside innovation and organizing. Leaders in both political parties and in both chambers eventually joined together, along with technology-friendly members of Congress, to push for modernization at the Library, in each chamber, and internally. This was essential because internal innovators often could not get information in the formats they needed from Congressional sources and relied on outsiders to repackage data generated internally. (Yes: Congressional insiders had to rely on outsiders for access to information originating inside Congress because internal actors would not publish it in useful formats.) The prime example is bill text, summary, and status information, published by the Library for decades as a series of webpages but not as data. The ongoing work of the Bulk Data Task Force — especially its quarterly meetings between internal and external stakeholders — is a major example of where collaboration takes place. Much of DemCom was needed because it had historically been difficult to innovate elsewhere inside the Legislative branch either because of political opposition, funding constraints, or a combination of the two. These constraints still remain — especially funding and direction-setting — although the challenges have evolved. It also has driven outside innovators, like us, to build external tools to meet the unmet Congressional and public needs and to demonstrate what creative new uses can be found for information. Kudos to team Hoyer for a phenomenal upgrade and for continuing a decades-long effort to strengthen the legislative process.
• We should note that this brief history misses a lot of detail. For example, the Library of Congress has not been monolithically opposed to or disinterested in technology modernization — and there have long been staff that are champions for change. For example, the Law Library is engaged in a number of innovative efforts to make information publicly available, including its recent efforts to publish Law Library of Congress Legal reports and the digitization of the statutes at large (and much more). So too the new “by the people” project, which allows for public transcription of Library documents, is a welcome and laudable development. Opposition historically has been centered in the Congressional Research Service, whose leadership opposed publication of legislative information as data, opposed publication of the Constitution Annotated as information, opposed public access to CRS reports, and so on. Through reorganizations of the Library’s approach to information technology and congressional mandates, many of these issues are being resolved, although some reluctance remains. As the culture continues to shift, we hope to see more progress. And, of course, we also hope that all these projects throughout the Legislative branch become better funded.
Congratulations Derek! Noted Congressional data expert and really nice guy Derek Willis will join the Merrill College of Journalism as a lecturer in Data and Computational Journalism. He has democratized access to legislative data throughout his career, including at ProPublica, and is a vital part of civil society’s effort to make legislative data available to everyone.
Spoilers. Just under 8% of bills introduced last Congress were enacted, and several bills that didn’t make it across the finish line in the 116th Congress will likely be enacted in the future, Josh Tauberer noted in a tweet. This is a significantly higher number than some political scientists and pundits have accounted for. We’ll have more news on all this soon.
Statutes at large. The Library of Congress is continuing to scan the statutes at large, which is the text of legislation enacted into law. The Library announced it has added the enacted laws from 1951-1972. Congratulations! Note that the files are displayed as PDFs and have not (yet) been turned into data. Until the Library finishes, please note that civil society made uslaw.link a few years back, which allows anyone to look up all the statutes at large from 1789 forward. We included the metadata for all the statutes at large as well as PDFs of the text; everyone is welcome to use the data from this public Github repo. To use the Library’s search too, go to Congress.gov; change the “current congress” drop down to “legislation; and in the search bar type “cite:PLXX-XX”
The January 6th Commission was blocked in the Senate by Senate Republicans — only a few voted in support, and Republicans insisted on a 60-vote threshold to go forward. Sen. McConnell rallied the opposition in the chamber, apparently to protect its members from being caught between public disapproval as more facts come out and Trumpian disapproval as, well, more facts come out. Republicans were given everything they could have possibly wanted in the commission to protect their interests. We note that Republicans might have been unable to resist the commission had legislation moved earlier in the year….
What’s next? If Congressional Democrats are smart, they’ll move immediately to create a select committee. Republicans are playing for time and have wasted months. This opposition also seems to be solidifying opinion to end the filibuster, which continues to be deployed for revanchist purposes.
Some Capitol Police officers are advocating for the commission, as working conditions become untenable. More than 70 Capitol Police officers have left the Department since the attacks, and many of those who have stayed do not feel valued or like conditions will improve.
It’s not just officers who are demoralized, Congressional staffers continue to reel from the events on January 6th and the nonstop burnout culture on Capitol Hill, Katherine Tully-McManus reports. Many lawmakers and staff still feel unsafe, but some are trying to stress the value of seeking mental health and trauma support services. Within the House, OEA saw more than 5,400 individual reactions with staff between January 6 and April 16, but concern remains among many staff around using the services provided.
Resources to help Congressional employees can be found on the Capitol Strong page, a coalition of civil society organizations that was launched in mid-January to support congressional staff, essential workers, and journalists.
The Senate is starting to move away from remote deliberations with some committees, including the Appropriations Committee, planning to end hybrid hearings ($) after Memorial Day. The OAP & Sergeant at Arms advised the Appropriations Committee to continue social distancing at hearings and encouraged non-vaccinated people to wear masks.
Can masks be mandated? The EEOC on Friday said that U.S. companies can require employees who come into the office be vaccinated against COVID (with reasonable accommodations), and can also provide incentives for vaccination. We wonder whether Congress as a whole, or each chamber separately, could impose such a requirement — we think it probably would be wise to do. The only exception likely would be Members of Congress themselves, although such a provision could be treated as a matter of decorum to gain access to the floor.
One day? Jason Pye noted that the House has continued to suspend a rule requiring a bill to lay over for a day before it gets a vote on the floor.
APPROPRIATIONS & AUTHORIZATIONS
OVERSIGHT & TRANSPARENCY
Suing For Secret Court Rulings On Surveillance. The ACLU, Knight Institute, Media Freedom, and Theodore Olson filed a petition for access to rulings by the Foreign Intelligence Surveillance Court (FISC), which rules on government requests to conduct domestic electronic surveillance. See our testimony on the importance of releasing FISC opinions, which takes a legislative approach to resolving this issue, for more details.
Rep. Maloney’s bill to strengthen the capacity of Inspectors General to conduct oversight and protect IGs from retaliation,the IG Independence and Empowerment Act (H.R. 2662), was marked up by the House Oversight Committee last week.
GAO is the entity tasked with investigating congressional concerns over the White House’s spending (or withholding) of appropriated funds. The Legislative branch auditor and watchdog took timely action to look into the Biden Administration’s freezing funds for a border wall.
Department of Energy secrecy and declassification is the topic of this fascinating article from the Drive. This is a #longread, and totally worth it. A teaser: “The U.S. Government Hides Some Of Its Darkest Secrets At The Department Of Energy.”
Rep. Smucker was fined $5,000 by the House Ethics Committee for violating security screening procedures before entering the House chamber on Wednesday May 19th prior to floor votes.
Calls to kick Marjorie Taylor Greene out of the House Republican Conferenceare coming from colleague Rep. Kinzingerafter the Georgia Congresswoman compared mask requirements to the Holocaust last week. Conference leadership has made empty comments (and equivocal declarations) condemning Greene’s statements.
Public officials’ behavior could be further obscured from the public as a result of a recent ruling not to release records related to the insider trading investigation into Sen. Burr. The ruling’s wording suggests the public can’t access search warrant applications and associated documents at all if charges aren’t filed, which means investigations into public officials that stop short of charges won’t see the light of day.
Rep. Newman is being sued for allegedly offering her primary challenger a job (with a six figure salary) in her office in exchange for dropping out of the race.
BILLS & REPORTS OF INTEREST
A resolution appointing members to the Joint Committees on Printing and the Library was submitted last week (S.Res. 244). The resolution provides for Sens. Klobuchar, King, Padilla, Blunt, and Wicker to sit on the Printing Committee, and for Sens. Klobuchar, Leahy, Warner, Blunt, and Shelby to sit on the Library Committee. What this means, in part, is that now the Joint Committee on the Library has its membership and could direct the removal of Confederate statues from public view.
ODDS & ENDS
The Commission on the Supreme Court will take public comments in late July and July. Here is a list of the 36 commission members and this federal register notice created the commission. The commission website is here; public meetings are noticed here; and public comments are received here.
The federal court’s antiquated Case Management and Electronic Case Files system is the subject of an 18F report issued at the end of March. Among their findings: the court should “build a new, open source system with modern technology and architecture.” How? “Consider cloud computing as an option. Simplify AO operations and encourage courts to innovate through ApplicationProgram Interfaces (APIs).”
Policy Hackers. The Lincoln Network is encouraging technologists to apply to its fellowship program to become policy hackers. More here.
Hill internship are starting soon. Make sure you have them sign up for POPVOX’s Hill intern weekly newsletter.
Former Senator John Warner passed away earlier this month. Chad Pergram’s paid tribute to the late Senator.
What do you think? If you made it this far, I’m hoping that you find some value in our little newsletter. It takes a lot to put it together. Email me — just hit reply — and let me know what you like and dislike. (Yes, I get all of our out-of-office messages in my inbox.)
The House and Senate committee schedules are here.
• Data Foundation is holding a discussion on “What The Biden Budget Means For The Data And Evidence Communities” at 2 pm ET. RSVP here.
• “The Future of the Filibuster” is the subject of a National Journal event at 2 featuring Senate rules experts Matt Glassman, Molly Reynolds, and James Wallner. RSVP here.
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.