Forecast for June 7, 2021

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Welcome to the First Branch Forecast, our weekly look into the Legislative branch and government transparency. Don’t miss an issue: subscribe here (it’s free).

THE TOP LINE

This week. The Senate is back and the House is holding a committee work week. Attorney General Garland will testify on Wednesday and the approps process is heating up.

Strengthening Congress. We look at the different avenues available to strengthening the Legislative branch, and who must do what. The clock is ticking.

Freedom of the Press. Journalists continue to be squeezed by the Executive branch with several new spying scandals in the last few weeks. We give the run-down.

The Capitol Police will hold a training exercise on Monday involving emergency vehicles and low flying helicopters.

STRENGTHENING CONGRESS

Congressional staff are significantly underpaid, thereby depriving Congress of the talent and policy expertise needed to make good legislative decisions, Business Insider’s Kayla Epstein reports ($). The starting salary range is laughable in the face of skyrocketing DC housing prices, and low pay rapidly pushes many staff out of the Legislative branch and into the private sector that pays two to three times as much for their legislative expertise. Our analysis suggests pay in the Executive branch for the same work can result in a 20%+ bump and that personal and committee offices are in steep decline. Meager congressional salaries most severely hamper efforts to hire and retain staffers of color, who are most likely to lack a financial support structure to subside their government employment.

What to do about it? In April, Rep. Steny Hoyer urged a 20% increase in funding for House salaries and expenses, which would return those funding levels to their 2011 baseline. Demand Progress and the Lincoln Network organized a bipartisan 30 organization letter in May endorsing a 20% increase in funding for personal offices and committees; it follows a February letter, also coordinated by Demand Progress and the Lincoln Network, that included 38 organizations + congressional experts endorsing a 10% or $530.9 million increase in funding for the Legislative branch. (This was before we knew hundreds of millions of dollars would have to be spent on Capitol Police and infrastructure.) Both the Chair and Ranking Members of the Select Committee on the Modernization of Congress have noted significant underfunding of Congressional staff and called for significant increases in resources, and the Committee last Congress detailed many of the deficiencies and endorsed modernizing funding levels. We also understand that Rep. Ocasio-Cortez sent a Dear Colleague requesting members endorse an excellent letter in support of a 21% increase for MRAs, committee funding, and leadership office budgets, with signatories due Thursday at 11 a.m.

How this could work: House Budget Chair Yarmuth says the top line defense and nondefense appropriations numbers likely will mirror the President’s proposal, which is $1,521.0 Billion in discretionary spending, split between defense at $752.9 Billion (+1.6%) and non-defense at $769.6 Billion (+16.5%). We would imagine the Senate will come out in a similar spot and both will “deem” these numbers instead of passing a budget resolution. That leaves Chair DeLauro and Chair Leahy (in consultation with leadership and committee members — although the evenly divided Senate makes this even more complicated) to allocate these funds between the 12 appropriations subcommittees, including the perpetually underfunded Legislative branch appropriations subcommittee.

What to watch: First, will Chairs DeLauro and Leahy bump the approximately ~$5 Billion funding level for the Legislative branch by enough to cover the huge new anticipated costs for the Capitol Police and the Architect as well providing funding to remediate the decimation of staff? If the discretionary spending increase of 16% is spread evenly, we should see another $800m for the Legislative branch, although it needs more than this. Second: will some spending inside the Legislative branch, such as for the Capitol Police and Architect, be treated as defense discretionary spending and thus come from a different pool of funds? Third, will other sources or mechanisms of funding be found for Legislative branch items? And finally, what recommendations will Leg branch approps — chaired by Rep. Ryan and Sen. Reed — make in terms of allotting the money inside each chamber. Remember: the Senate will defer to the House on its internal funding arrangements and the House will defer to the Senate on its internal funding arrangements.

PRESS FREEDOM AND GOV’T SURVEILLANCE

In another major violation of freedom of the press, the New York Times announced on Friday that the Trump Justice Department sought to identify sources who spoke with reporters by secretly obtaining email records of those journalists from Google, which manages the NYT email system, and the effort to identify sources by obtaining journalistic email records continued under the Biden Justice Department, which informed the paper’s executives of the effort but obtained a court order in March that prohibited them from revealing the fact to newsroom leaders, the journalists themselves, or the public. Only on Wednesday did the Biden administration admit to the four NYT journalists that it had seized records about email communications over a four month period.

Journalists at the Washington Post and CNN previously had been identified as targets of Trump administration efforts to identify the sources for journalists who are not the target of an investigation. On May 20th, CNN announced the Justice Department had obtained the email and phone records of Pentagon correspondent Barbara Starr over a two month period, including her work and personal email accounts as well as four different phone numbers (including her personal phone). Similarly, on May 7th, the Washington Post announced the Justice Department obtained phone call records from 3 Post reporters over a 3-month period, including their work and personal phones.

It is lawful for journalists to receive information from sources and it is highly inappropriate for the Justice Department to use legal processes to compel information about who is communicating with reporters. Surveillance of journalists — including identifying who speaks with them — undermines democracy, as they are our watchdogs and, at their best, our truth tellers. Actual surveillance and the perception thereof undermines the role they must play in our society. These inquiries are often described as “leak” inquiries — an often dubious purpose — but journalists have every right to receive information about government activities. Because of a long history of abuses around surveillance of journalists, Justice Department procedures require sign-off by the Attorney General prior obtaining a court order, but — as should be obvious to everyone — this makes the entire system dependent on the character of the person serving in that role. This is a terrible idea.

A much better approach is for Congress to prohibit investigations of journalists except when they themselves may have engaged in criminal activity. The Free Flow of Information Act, re-introduced by Reps. Raskin and Jordan in the 115th Congress (it goes back at least to the 110th), would address significant aspects of this problem. Section 2 prevents a covered person (i.e., a journalist) from being compelled to testify when they have engaged in an act of journalism, except in certain extenuating circumstances. Section 3 addresses government efforts to compel information from communication service providers, such as Google in the case of the NYT. Even so, this law would not address when the government wishes to purchase information about who communicates with journalists, for which you’d need enactment of the Fourth Amendment is Not for Sale Act.

Pundits are giving praise to the heavily-lawyered Biden administration statement on Friday, which said: “the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President’s policy direction to the Department, and the Department of Justice has reconfirmed it will not be used moving forward.” Oh. Let’s be honest: Republican and Democratic administrations are increasingly using legal processes to go after journalists and their sources — and there’s a long and unsavory history of unlawful presidential efforts to spy on the press. What happens if a president decides to change that policy direction and not announce it? What if a president secretly reinterprets the laws around surveillance — as we have seen happen — and uses that to go after journalists? These two circumstances are part of the fight over mass domestic surveillance under the Patriot Act and the efforts to require disclosure of opinions by the Justice Department’s Office of Legal Counsel, which often result in secret laws. The simple truth is that Congress must closely and narrowly define the government’s surveillance powers — including those aimed at journalists — and require overlapping levels of accountability for when it exceeds those bounds, as it does frequently.

If this isn’t all bad enoughUSA Today announced the FBI had obtained a subpoena demanding a list of everyone who read a particular article (specifically, their IP addresses, which can help you identify the readers) at a particular time. The subpoena was issued in AprilUSA Today fought it in court and claimed it went against the administration’s policies, and it was withdrawn only after the FBI declared it found the person it was seeking through other meansUSA Today reported the Justice Department spokesperson as saying: “this Department of Justice – in a change to its longstanding practice – will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.” Right.

Let us hope that Attorney General Garland, when he testifies on Wednesday, receives some very difficult questions. But more importantly, that prohibitions against the government spying on journalists (and the rest of us) are written into law, including oversight mechanisms with the power to look inside and see what’s actually happening.

TRANSPARENCY

The Justice Department violated FOIA by segmenting records to avoid disclosure, according to a DC Circuit Court ruling on a lawsuit brought by the Cause of Action Institute. The ruling didn’t go as far as to invalidate DOJ guidance advising agencies to participate in the segmenting practice, however, which means this problem could continue.

The Congressional Budget Justification Transparency Act, a bill to make spending request information available in a central location, was reported out by HSGAC in the Senate recently. This is fantastic news as the common-sense transparency legislation has bipartisan support on and off the hill.

OVERSIGHT

The Biden DOJ is protecting presidential powers at the cost of congressional oversight, a practice that is a bipartisan Executive Branch tradition. Two examples:

• The Justice Department is appealing a ruling that would release a Legal memo prepared for Attorney General Barr in conjunction with the Mueller report. The lower court had found that Barr lied about why it had to be kept secret.

• Congress demanded Trump’s tax returns, which the IRS is required by law to provide, but the Biden administration still has not handed them over and is in negotiation over whether to do so.

• Particularly infuriating are unattributed administration statements that they are “refraining from using the department to relitigate controversies from the previous administration.” This is the height of nonsense. The nature of oversight and accountability is retrospective. We investigate and prosecute people for what they have done. And the Trump administration was not exactly a model of legal probity. This isn’t relitigation — this is giving Congress the information it needs, has rightfully demanded, and has been stonewalled by the Executive branch.

Congress sacrificed the chance to strengthen its subpoena power in exchange for answers from former Trump counsel Don McGahn. Jonathan Shaub explains why it is a devastating loss in Lawfare.

What’s in store for federal watchdogs? Experts discussed the future of Inspectors General at a panel organized by the R Street Institute; you can watch the video yourself here.

For the DHS watchdog, it looks like a major overhaul is in order. According to a GAO report, DHS’s OIG has issues with “work quality concerns, high leadership turnover, and more.”

CAPITOL SECURITY

An investigation of the insurrection is not optional, and Democratic leaders have outlined options after Senate Republicans blocked a bill to create a bipartisan investigative commission: (1) Hold a revote in the Senate; (2) Let existing committees investigate; (3) Designate a particular committee as lead; or (4) Create a select committee. We think suggestions of having the Executive branch create a commission or asking the AG to name a special counsel are particularly poor ideas and reflect a supine deference to the Executive branch that is at the heart of the danger posed by Trump and others who would succeed him as president.

The select committee is the preferable option as the House will be able to really probe the issue (without time limits) and this work can draw on much of the investigations already done by the committees. Given Republican leadership’s behavior around insurrection investigations, however, careful thought should be given to the composition of the select committee and how members would be selected. We have some ideas on how to make this work.

House Admin has called its fifth oversight hearing on the insurrection, taking place in two weeks, for the USCP Inspector General to discuss his office’s fourth flash report on the January 6th attacks. The IG found deficiencies in the Department’s Containment and Emergency Response Team and First Responders Unit and made more than 20 recommendations in the yet-to-be-released report. House Admin aggregated some oversight materials related to the insurrection — e.g. hearings, statements from the Chair, and more — into a central page on the Committee’s website.

A proposed “retractable” Capitol fence is far more popular than a permanent one, but it’s still unlikely to pass. Many of the extreme security measures considered after January 6th have been reeled back, given strong pushback inside Congress against legislating prior to understanding all the failings. We believe erecting permanent fencing would significantly undermine transparency and open democracy, as does Del. Holmes, who introduced a bill earlier this year advocating against it. Funding for a “retractable” measure would come from a $1.9 billion emergency funding package that passed the House last month. Considering the nature of future threats, the money for a retractable fence likely will provide poor value for the funds considering the other options.

APPROPRIATIONS

The appropriations cycle keeps turning. Member request deadlines have been published for all Senate appropriations subcommittees, ranging from June 15 to July 9. Only 6 House subcommittees gave public notice of their member request deadlines — it is unclear whether the others have passed — and the full House Approps Committee is holding a member day hearing on Wednesday. For public witness testimony, all Senate committees have given notice of deadlines except for Leg branch, with most dates around the end of June. In the House, almost all the deadlines have passed, and Defense and Transportation did not provide public guidance about outside testimony. Keep up with appropriations deadlines and requirementsusing our handy tracking spreadsheet.

Asking yourself what the Senate Parliamentarian’s new opinion on reconciliation means for the budget?We are, too. Jim Newell’s breakdown in Slate of the pieces at play is the most straightforward we’ve seen, likely because he spoke with the brilliant Molly Reynolds. The upshot: no one knows what it means or when reconciliation would be off the table as it will depend on the views of the Parliamentarian on the particular circumstances. Seems like Calvinball to me.

But anyway, because a budget resolution will still need to clear committees, which are split 50/50 between D’s & R’s, Republicans could sabotage those votes by denying Dems a quorum — by simply not showing up. It might just be easiest to get rid of the filibuster — which 100 organizations endorsed in a letter on Thursday.

Senate appropriators are holding a hearing on Justice Department Appropriations — with Merrick Garland — this Wednesday; next Thursday the Defense Department will be testifying.

• Opinions by the Justice Department’s Office of Legal Counsel were the focus of Demand Progress testimony to CJS Appropriations, which called for what’s often tantamount to secret laws be brought into the sunshine through a policy of proactive disclosure for all opinions that can be released and an index of all the opinions. 20 bipartisan organizations called for Biden’s nominee to run the OLC to endorse proactive disclosure and we hope this issue will come up when Attorney General Garland speaks.

• Significant opinions from the Foreign Intelligence Surveillance Court are the subject of testimony Demand Progress submitted to Senate Defense Appropriations. All significant opinions should be publicly available, not just through from 2015 forward, which is in line with legislation passed by both chambers but not enacted into law for other reasons.

LEGISLATURE PROCESS & OPERATIONS

Power and expertise has moved from committees to leadership over the last several decades, according to former House Parliamentarian Tom Wickham. His extensive interview is too long and thoughtful to summarize here, but for House nerds it is worth your time.

Physical and technological barriers reduce accessibility on Capitol Hill, which limits the ability to serve or access Congress for a wide swath of people, reported Katherine Tully McManus in Roll Call. She also indicated there is no publicly-available data on how many Hill staff identify as having a disability, even as (limited) demographic data about other groups becomes available. The Select Committee on Modernization held a hearing on accessibility issue recently, which we summarized in last week’s newsletter.

The Phantom Motion to Recommit. Longtime reporter Jamie Dupree says the Republican-aligned American Action Network is claiming more than a dozen Dems voted against funding for Israel’s Iron Dome defenses — but the vote never took place. The actual vote was on recommitting the emergency supplemental to committee. Democrats changed House rules to disallow instructions along with these motions; Republicans likely would have included an instruction on funding the Iron Dome, but they couldn’t so they didn’t.

ETHICS

Ethics czar. Last week, a group of good government organizations sent President Biden a letter urging the administration to appoint a senior White House official to oversee, enforce, and communicate about the administration’s ethics program.

Rep. Roger Williams may have violated House ethics rules by using his position as a member of the House Financial Services Committee to help his friend and longtime donor maneuver around a bankruptcy case, according to Campaign for Accountability. Rep. Williams was also investigated by the Ethics Committee in 2017 for pushing an amendment that would have provided a personal financial benefit. The Committee, giving Rep. Williams the benefit of the doubt, said he “should have contacted the Committee for guidance, and to identify in advance any potential limitations on his ability to offer and support the Williams Amendment, in order to avoid any inference of improper action.”

A section of a 2002 campaign finance law intended to mitigate corruption was struck down by the federal court in Washington last week, citing infringement on free speech. Sen. Ted Cruz pushed to block this section in light of his 2018 Senate run, when he used solicited contributions to repay his personal campaign loans. The outcome will likely bolster wealthier candidates who finance their own campaign. FWIW, we like the old MERIT Act, introduced by Rep. Speier, that would limit the ability of members to personally financially benefit from their campaigns, including addressing the issues of loans to campaigns.

Follow the Members. A redditor who digitized senatorial trading information around the stock market crash as COVID took hold, focusing on senators with inside information, found that if you watched what certain senators were doing and ignored what they said, you would have reaped major savings on the stock market.

Architect of the Capitol J. Brett Blanton is under investigation for allegedly misusing his official government car for personal uses. We are curious about how this IG investigation came to light.

MONEY IN POLITICS

The two biggest players in monitoring money in politics, the federally-focused Center for Responsive Politics and the state-focused National Institute on Money in Politics will merge and create a new organization called “OpenSecrets.” Congratulations, friends!

Why transparency matters. The UN’s International Maritime Organization has largely been taken over by the industries it is supposed to regulate and prohibits journalists from reporting on who says what. The results are exactly what you would expect: crony capitalism with no mechanism for accountability, which mirrors the history of closed committee proceedings in the U.S.

BILLS & REPORTS OF INTEREST

The rules governing Senate committee and subcommittee assignment procedure is the subject of a new CRS report.

A bill that requires the creation of a national commission to prepare for future national emergencies was introduced in the House last month (H.R. 3584).

How the House Office of Congressional Ethics works — including its history, authority, and procedures — is all included in a new report from CRS. BTW, Demand Progress is supportive of granting the OCE subpoena powers for third parties.

CRS released an overview of the Judiciary budget for FY 2022.

ODDS & ENDS

Nearly 1,600 historical legal reports from the Law Library of Congress from the 1940s forward that address foreign, comparative, and international law are available online — with thousands more being digitized. Want to learn about what’s happening, why, and the process to digitize and transcribe the reports? Join the Law Library for a webinar on June 22nd at 11.

Members of the House Oversight Committee have directed ten federal inspectors general to investigate whether federal agencies’ telework during the pandemic created or exacerbated any cyber vulnerabilities.

The story of Dennis Kucinich details the unthinkable lengths undertaken by a private electric company in Cleveland to block the expansion of its public competitor in the 60s—from mass blackouts to corporate espionage. Learn about the unusual background of one of the more interesting people to ever serve in Congress, who has a new book out about his experiences.

It’s good to be the Queen (of England), who reportedly banned “coloured immigrants or foreigners” from serving in certain positions in the royal household. How? Why, an unusual parliamentary privilege called Queen’s consent, which she used to exempt Herself from anti-discrimination laws. David Pegg and Rob Evans have the report in the Guardian. No word if the UK has a filibuster.

And HRH’s courtiers. In the US we do an ok job of tracking lobbying with some information published in databases. Across the pond, it’s up to civil society to make sense of scattered disclosures; Transparency International UK has put together a database on 70,000+ lobbyist meetings here. Anyone want to compare what corporations are lobbying for there against those who are lobbying the US federal government?

Coaching the insurrectionists. Video of Oregon state Rep. Mike Nearman coaching armed protesters on how to enter the closed Oregon Capitol has surfaced.

CALENDAR

The House and Senate committee schedules are here.

Monday

• The Advisory Committee on the Records of Congress is meeting from 11:00 a.m. to 12:30 p.m. EDT.

Tuesday

• The Senate Budget Committee is holding a hearing to “Examine the President’s Proposed Budget Request for Fiscal Year 2022” at 11:00 am ET.

Wednesday

• The House Appropriations Committee is holding its “Member Day” hearing at 10:00 am ET.

• The House Budget Committee is holding a hearing on “The President’s Fiscal Year 2022 Budget” at 11:00 am ET.

The Senate Appropriations Subcommittee on CJS is holding “Hearings to Examine Proposed Budget Estimates and Justification for Fiscal Year 2022 for the Department of Justice” at 2:00 pm ET.

The House Appropriations Committee Subcommittee on FSGG is holding a hearing on “Office of Management and Budget FY 2022 Budget Request” at 3:00 pm ET.

• HSGAC has a markup at 9:30, tbd what’s on the agenda.

Thursday

• The FOIA Advisory Committee Meeting is happening from 10:00 am to 1:00 pm ET. You can register here.

Down The Line

• The Law Library of Congress is hosting a webinar on the process for inventorying, processing, and publishing these reports, as well as the recent launch of the Law Library’s second crowdsourcing campaign June 22nd at 11.

• Senate Appropriators will consider the Department of Defense budget proposal for FY 2022 June 17th at 10.

• Oversight of the January 6th AttackUnited States Capitol Police Containment Emergency Response Team and First Responders Unit; Committee on House Administration on June 15th.