Forecast for June 21, 2021

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Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Subscribe here. We hope you had a good Juneteenth holiday weekend. The Senate is back on Monday and the House is back on Tuesday.

THE TOP LINE

Follow the money. The House deemed top line discretionary spending as part of an unrelated bill — avoiding a tough vote — and Appropriations Chair DeLauro communicated her views on top line funding levels to the 12 approps subcommittees chairs, which they will use in marking up their bills. The public won’t know those numbers in full until June 29th, when Appropriators vote to formally adopt those numbers. We are excited for subcommittee markups, the first of which are Leg branch and FSGG this Thursday. Keep an eye on Congressional staff pay levels, the subject of multiple member letters. (We’re tracking them here.) Rep. Clyburn expects floor votes on the bills by the end of July. Will the Senate cut short its August recess given the legislative pile-up?

The House voted to repeal the 2002 Iraq AUMF 2002 by 268-161. Presidents often twist AUMFs into a general license for military force and overseas intervention. Should the Senate agree, this repeal would mark a major first step toward restoring Congress’s authority over war, long undermined by the presidency and the Supreme Court. However, the 2001 AUMF repeal remains, which will be a harder fight; all war authorizing legislation should contain expiration dates and all administration legal interpretations of their scope should be available to Congress.

The Trump insurrection was the focus of three hearings this past week, by House Admin, House Oversight, and Senate Rules. Details below.

Improving the culture of Congress was the focus of a House Modernization Committee hearing. More below.

The Senate needs to ensure its continuity in times of crisis. Demand Progress and the Niskanen Center organized two coalition letters — one to Senate leadership and one to the Senate Rules and Admin Committee — commending Sens. Portman and Durban on S.Res. 201, a bipartisan resolution to amend the Senate Standing Rules to allow absent senators to participate during a national crisis. Under this resolution, senators would have access to the necessary technology to cast votes outside the Senate chamber when the situation calls for it. Building the infrastructure for senators to do their jobs when unforeseen or dangerous circumstances arise is a critical piece of protecting our democracy, as the events of this past year have hopefully made evident.

Senate Judiciary Committee has a nominations hearing scheduled for Wednesday. The committee has not yet publicly announced who is on the schedule, but we are keeping a close eye for Christopher Schroeder, nominated to head the Justice Department’s Office of Legal Counsel. Demand Progress led a bipartisan 20-organization letter calling on Mr. Schroeder to endorse proactive disclosure for OLC opinions, something he supported as a private citizen. This would help address an office that experts say is in “crisis,” effectively promulgating secret law with an undue bias in favor of the presidency. Transparency might help counter the pressure to decide in favor of its political masters. (Demand Progress also submitted appropriations testimony on OLC.)

APPROPRIATIONS

Legislative branch. Regular readers know that we are very interested in appropriations and funding levels, especially for the Legislative branch. We will be following the upcoming markups closely and have gathered many interesting approps resources going back to 2012. Check out Demand Progress’s list of approps requests; a letter supporting a 20% increase in staff pay and encouraging a double-digit increase in Leg branch funding; testimony on reforming the Capitol Police and addressing unionization for political staffrecommendations for the security supplemental and a report on how to rebuild our Congress. In addition, we are pleased to make available line item spending for the Leg branch going back 25 years and we will closely track the 302(b) subcommittee funding levels.

On staff pay. Pay levels for Congressional staff funding are down by more than 20% over the last decade. Reps. Hoyer and Jeffries sent a letter on April 28th calling for “a 20% increase in funding for MRAs, for committees, and for leadership offices.” Similarly, Rep. Ocasio Cortez led a letter endorsed by 110 House Democrats — a majority of the caucus — calling for “a 21% increase in the Member Representational Allowance (MRA), committee budgets, and leadership office budgets for FY2022 that will be used to increase staff salaries.” These proposals could restore pay to their funding levels of a decade ago. This is not enough to address the increased costs of living in the Washington, D.C. area and the increasing workload, but it would make a huge difference.

How to follow appropriations. The subcommittee appropriations markup process is confusing. The day before the subcommittee markup, the draft subcommittee bill will be published online, either on docs.house.gov or the subcommittee’s appropriations page. Both the bill and committee report will be adopted at the subcommittee proceedings, which are open to the public and viewable online (unless the committee votes to close the proceedings, which must be a public vote). The text of the bill to be considered by the full committee should be publicly available 24 hours before the meeting. I can no longer remember, but I believe the committee report must be available 24 hours after the proceedings (I cannot remember if it is available in advance, but someone can write in and tell me.) All the amendments (including text) and roll call votes will become publicly available within 48 hours. Don’t forget that the report language in approps bills is very important.

What else are we watching? House FSGG appropriations markup will also take place on Thursday. Demand Progress submitted testimony to House and Senate Defense Approps on FISC Opinion transparency; to House and Senate CJS Approps on transparency around OLC opinions; and to Senate Leg branch (along with NALEO and the Joint Center) on the creation of an Office of Diversity and Inclusion and a study on staff pay and retention. We are also tracking testimony submitted by our civil society colleagues.

On another note, pausing border wall funding is not a violation of budget law. GAO issued a report concluding “that delays in the obligation and expenditure of DHS’s appropriations are programmatic delays, not impoundments” because “the use of funds is delayed in order to perform environmental reviews and consult with various stakeholders, as required by law, and determine project funding needs in light of changes that warrant using funds differently than initially planned.” Roll Call reported Republicans have attacked this decision because GAO reached a different result regarding Trump’s OMB “withholding of Ukraine security assistance funds,” a point fairly easily distinguished by GAO because of the legal posture.

TRUMP INSURRECTION

Congress held three hearings on the Trump insurrection last week. We note that some of the insurrectionists have been accused of bringing firearms and other weapons into the Capitol.

Senate Rules

USCP IG Bolton’s testimony before the Senate Rules Committee provided a handy recapitulation of his testimony and findings over the last few months. This was the first time any USCP IG has testified in public before the committee, but likely will not be the last. IG Bolton explained how the Capitol Police had been advised of the need to make changes to their operations for years — for example, there were two IG reports on the USCP’s intelligence shortcomings — but Bolton said that there “was a reluctance to change based on long-standing, long term ways of doing business because … people resist change.” The biggest thing that could have made a difference on January 6th was the USCP having “a very detailed plan.”

Of the 65 IG recommendations so far, 50 could be implemented immediately without congressional approval, Capitol Police Board approval, or additional appropriations. Bolton embraced the recommendations and findings of the HSGAC-Rules report. (For example, he recommended the creation of a standalone civil disturbance unit with permanent staff that is trained on a regular basis.) The final 15 IG recommendations that would require additional action include (1) implementing proper training across the agency, including centralizing training in a training service bureau, (2) acquiring necessary equipment, and (3) centralizing the intelligence unit into a single bureau and hiring additional civilian analysts. Bolton cautioned that the USCP currently has too much autonomy and stovepiping inside the agency, especially with respect to training.

The most significant recommended change is transforming the Capitol Police into an agency with a protective model, not a policing model. It should focus less on minor crimes, even as it retains a uniformed division, but their focus should be on protection. (Our research has highlighted the USCP resources focused on extraneous matters.) Sen. Capito suggested that it may even make sense to rebrand the agency. The way you enact this cultural change is through implementing extensive and ongoing training for all officers around the new model. It would also address the morale problem, which can be fixed if you “give them good leadership that they can trust, provide them with a clear mission, train them to be able to accomplish that, and give them the tools to do their job.”

A modern capitol security force would be able to protect First Amendment rights while taking potential threats seriously. How? Have a unified intelligence bureau with trained civilian analysts to disseminate the information up the chain and to the rank and file. It is the analysts who can help assess whether the threats are legitimate. In fact, IG Bolton dismissed the assertion that the USCP did not have evidence of a direct or substantiated threat. “If they’re waiting for that mystical letter to show up on their desk saying ‘you are going to have people who are going to grab your shields and break glass and storm the capitol’ … you’re never going to receive that.” One interesting footnote: IG Bolton appeared to support the creation of a USCP counterintelligence unit.

The Capitol Police Board. IG Bolton deferred to GAO on questions about the Board, including whether the Board delayed the ability of the chief to request assistance. He seemed to support, however, having a single point of accountability. In response to questions from Sen. Ossoff about who is in charge, IG Bolton said “that’s a difficult question to answer,” and ultimately suggested the question be put to the Board, which Sen. Ossoff said he would. With respect to implementing the IG recommendations, the Board has formed a working group that so far has had two meetings; the IG is not part of the working group.

Next steps. The IG will continue conducting reviews through the end of the fiscal year (presumably September), with the next report in July on the command coordination bureau, and produce a comprehensive report issued at the end of the process. Sens. Klobuchar and Blunt appear ready to introduce legislation to provide the Capitol Police Chief the authority to seek external assistance from the National Guard in the event of an emergency.

Cybersecurity. Sen. Ossoff mentioned that the Senate Sergeant at Arms worries more about cybersecurity than anything else. He asked whether IG Bolton knew of a plan to handle fallout if congressional networks were compromised. “Is there someone in charge?” The very disturbing answer: “There is no one singular individual overall for the Capitol complex.” (Demand Progress has recommendations on this.)

House Oversight

House Oversight’s hearing did not provide us any new information (testimonyvideo), but we only read 1/4 of the transcript. Notably, Capitol Police Chief Pittman was a no-show, although she has committed to testify on July 21st. The FBI and Department of Justice still are not fully cooperating with the committee. At the hearing, some Republican committee members complained about Dr. Fauci, Hunter Biden’s laptop, witnesses who had testified before the hearing on opiods, crime rates, gas prices, and insinuated that some insurrectionists were “almost… escorted in by the Capitol Police” and constituted “peaceful, rowdy protestors.”

Videos of the violence. The Justice Department released new body camera video from the insurrection. The nine videos — 123456789 — are quite disturbing, and only people with strong stomachs or the demonstrated willingness to deny reality should watch them. You can see the insurrectionists beating the Capitol Police, spraying them with chemical agents, and trying to rip the masks off their faces. Rolling Stone summarizes their contents.

House Administration

The House Administration Committee’s fourth hearing with the USCP IG and GAO still managed to surprise me. (Testimonyvideo). Did you know the Capitol Police Command staff have not met with the USCP IG since January 6th to discuss scores of recommendations? Or that the Capitol Police Board has not substantially responded to GAO regarding their 2017 report and recommendations? The hearing took place on the 4th anniversary of the Congressional baseball shooting, which one might have thought would have prompted the Capitol Police to significantly change how they operate.

The hearing’s focus for Democrats was on the Department Containment Emergency Response Team (CERT) and its First Responders Unit (FRU). USCP IG Michael Bolton’s written testimony was fairly confusing to me and the GAO Homeland Security and Justice Director Greta Goodwin’s written testimony said nothing new. Chair Lofgren summarized the bottom line: The CERT and FRU “should have played a key role in stemming the attack… but lacked sufficient operational planning and defined mission while they also suffered from inadequate training and inadequate and ineffective tactical command.” Some officers lacked certification on their M4 rifles, were not equipped with appropriate less-than-lethal weapons, lacked advanced tactical and medical training, and so on. In summary, the Capitol Police didn’t know what they were doing or what they should be doing.

The hearing’s focus for Republicans was on the failings of the Capitol Police Board. The Board’s key management document is a Manual of Procedures. The Board largely failed to communicate to overseers that it existed and apparently did not make it available to congressionals. Of six key GAO recommendations made in 2017, the USCP had only fully incorporated one into their manual, and the Board isn’t responding to GAO’s inquiries about their implementation, according to Goodwin. The specter of divided loyalties on the Board — with each Sergeant at Arms more likely to be loyal and responsive to their own chamber — may weaken its ability to function. The design of the Board itself does not represent best practices: it is too small; too siloed; and its members lack specific authorizing, management, and communication protocols.

The chilling take-aways. Some of the insurrectionists were armed. The Capitol Police had no plan; their various components did not talk to each other or make coordinated decisions in a timely and responsible manner; the officers were insufficiently trained, lacked appropriate equipment, and some were not certified to use their weapons. When asked whether Congressional leaders or the Vice President were endangered as a consequence of the CERT’s non-participation as a team in leadership evacuations, IG Bolton said the answer is “law enforcement sensitive.” I think that’s an answer that we all need to have publicly stated for the record.

Former California representative Dana Rohrabacher was found to have marched with the Capitol mob on January 6th, according to anonymous open-source intelligent sleuths running the Twitter account @capitolhunters.

CAPITOL SECURITY

Senators weigh in on the USCP Chief search. Sens. Klobuchar and Merkley led a letter to the Capitol Police Board, joined by six of their Rules Committee colleagues, requesting the Board “take steps to ensure meaningful input from the Senate community and ensure transparency in the search and selection process for the next Chief of Police for the United States Capitol Police.” The letter poses three questions: (1) What efforts have been made to solicit feedback from USCP officers, the Capitol Hill community, and external organizations and what additional efforts will be made? (FWIW, we’ve heard nothing from the Board.) (2) What measures have been undertaken to recruit applicants, including those from diverse backgrounds? (3) What experience, factors, and other characteristics will be prioritized in the selection process.

House Republicans are fighting magnetometer rules. The devices were put in place to enforce federal law against firearms in the House and Senate chambers after some members suggested they are armed at all times. Reps. Andrew Clyde and Louie Gohmert allege that the magnetometer process violates the Constitution and unfairly targets Republicans. Clyde — who has downplayed the events of Jan. 6th and recently described them as not so different from a “normal tourist visit” — was fined $15,000 for refusing magnetometer security checks. After his appeal was denied by the House Ethics Committee in April, Rep. Clyde filed the lawsuit in federal court alongside Rep. Gohmert, who also incurred magnetometer fines.

FIXING CONGRESS

Building a more civil and collaborative culture in Congress was the focus of the latest House Modernization Committee hearing on Thursday. The hearing was held in person and featured a non-traditional format where lawmakers had two hours to question the witnesses in any order after the witnesses gave opening statements. We have several recommendations around creating a more collaborative Congress, including bolsters capacity for Legislative Service Organizations, revising the Congressional calendar, providing more security clearances for staffers, and more.

Prescription is not a diagnosis. Yuval Levin, Director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute, testified that it’s crucial for members of Congress to understand the history of how the institution got to this point, but history should not offer a map on where to go next. Molly Reynolds, Senior Fellow in Governance Studies at the Brookings Institution, testified that voters today are more sorted and polarized than previously, which is changing the way members behave. She spoke about how the institution had low political polarization between the 1930s and 1970s, which grew to record levels in the 2000s because of major realignments in both parties in the early 1980s. Both witnesses cautioned that lawmakers should not reinstate old structures or rules simply because Congress used them effectively previously.

Focus on incentive structure. While both witnesses acknowledge the current structure centralizes a lot of power to leadership, there are reforms that can be made at the committee level to ensure all members can provide meaningful work to their constituents. Dr. Reynolds spoke about how creating incentive structures within the institution will help to foster more opportunities for rank-and-file members to claim credit, including formatting committee reports to make clear who included which amendments, providing more accounting around what standalone bills were incorporated into larger omnibus bills, and creating a bill lead co-author to signal that someone else made major contributions to a bill.

Reforming culture means reforming the work of Congress. Both witnesses spoke about the importance of remembering that, much like any other business, the work of Congress drives the culture, and that spending time with each other won’t change the work. Mr. Levin stressed the illustrative value of thinking about budget process responsibilities and how Congress has struggled for years to pass a budget because of the challenges in its culture.

LEGISLATURE PROCESS & OPERATIONS

Sen. McConnell signaled he would block any Biden-appointed SCOTUS nominee if Republicans were to retake the Senate majority next year. This is a typical Sen. McConnell move: make a flat statement that violates all sorts of senatorial norms and undermines our democracy, make it far enough in advance so people gravitate towards it and accept it as fact when he pulls the trigger, and in the meantime allow political commentators to apply Marquess of Queensberry political rules to Democrats on “bipartisanship” should they move to counter Sen. McConnell.

The Intercept obtained the audio of a Zoom call between Sen. Manchin and ‘No Labels,’ a corporate-friendly organization that channels high net-worth donor money to corporate Republicans and conservative Democrats. Several billionaire investors and corporate interest advisors were on the call, including the heads of major private equity firms and hedge funds — all of whom have a major stake in preserving the filibuster (in part to keep from having to pay a fairer share of taxes.) At the meeting, Sen. Manchin revealed that he needed help convincing a handful of Republicans to vote yes on the January 6th commission in order to disprove “far left” arguments against the filibuster. Imagine that: a totally reasonable commission to investigate the Capitol insurrection is now described as a “far left” argument. (See Sen. McConnell’s statement, above.) Anyway, in a not-so-subtle suggestion that these well-heeled corporate-aligned donors might be able to help, Sen. Manchin suggested they talk with Sen. Roy Blunt about changing his vote, mentioning his imminent retirement and the fact that some of them might work with him in the future. I think we all get the implication. It was also revealed in this meeting that Sen. Manchin is more open to filibuster reforms than his posturing suggests, unless that openness in this private setting is a ploy to encourage activity by the No Labels donors.

Building bipartisanship is not a bad thing, although we prefer not to think of in it the binary, #bothsides, or corporate way that many users imply. However, there can be times when relationship building is a mask for special interest capture, which is what the Daily Poster has suggested in the linked article.

TRANSPARENCY & PRESS FREEDOM

Justice Department surveillance. The Senate Committee on the Judiciary wrote to AG Garland in light of last week’s reports that the DOJ subpoenaed metadata of Members of Congress, staff, and their family members, including a minor, as part of a so-called “leak investigation” in the early years of the Trump administration. The Committee plans to investigate the DOJ’s political motives in going after Trump’s perceived political enemies and the letter outlines their line of inquiry. A coalition of 23 organizations, including Demand Progress, wrote to the AG and Judiciary Committee leaders to condemn the Justice Department’s surveillance of Congress and to demand both a Congressional investigation and new legislation to ensure this never happens again.

The Committee report on the Congressional Budget Justification Transparency Act is out, requiring agencies’ budget justifications and appropriations requests to be made publicly available. The bill has been reported to the full Senate.

ETHICS & ACCOUNTABILITY

Sens. Wyden and Grassley introduced a bill that would strengthen the rules of the IRS whistleblower program. This legislation would exempt whistleblower award money from budget sequestration, require that the Tax Court gives the presumption of anonymity, and adjust how the Tax Court reviews whistleblower awards on appeal. The IRS would also have to annually report to Congress the top ten areas of tax avoidance as identified by whistleblowers.

The Office of Congressional Ethics is investigating evidence that Rep. Alex X. Mooney spent $49,000 of campaign funds on various personal endeavors, including vacation resorts, recreational equipment, meals, transportation, expenses at his hometown parish and gift shop, as well as several reimbursements Mooney received from his campaign.

The cost of access. Sen. Crapo, RM on the Sen. Finance Committee, is the subject of a Business Insider report ($) focusing on pay-for-access. For example, a $15,000 contribution, a donor gets access to seven exclusive events with Sen. Crapo. What makes this unusual? “Few are as specific as Crapo in how he guarantees his donors exclusive access to him.”

A family business. At least five senior Biden aides “have secured coveted jobs in the new administration,” per the Washington Post. The Biden administration maintains everyone is qualified, but, as the Post notes, “it suggests that people with ties to high-ranking public servants might be getting an advantage over similarly qualified people for low-ranking positions.” Citizens for Responsibility and Ethics (CREW) used to publish a deeply researched report into these conflicts of interests for Members of Congress — which was fascinating; the last one was published in 2014 and can be found via the Wayback Machine.

TECHNOLOGY

The federal judiciary’s systems are overdue for modernization, according to a recent report by GSA’s digital services agency. The report made evident that CM/ECF and PACER are inconsistent, inefficient, outmoded, and vulnerable to security breaches. In light of this, we co-signed a letter to members of Congress who have introduced or co-sponsored judiciary modernization legislation.

Is there a future for hybrid Congressional work? The intelligence community is continuing hybrid operations even as in-person work resumes fully elsewhere, citing many employees who work better when they have the kind of flexibility remote work offers. In light of this, several IC agencies have shifted work to the unclassified space, giving staffers the option to work unconventional hours in staggered shifts in sensitive compartmented information facilities. I wonder whether folks who criticize Congress for its remote and hybrid work would also say the Intelligence agencies are not actually working unless they do it in person.

CAO asked to review staff benefits in a letter endorsed by several civil society organizations.

ODDS & ENDS

This is cool. There’s a conference scheduled for parliamentary speakers — e.g., Speaker Pelosi, the U.K.’s Lindsay Hoyle, and other G7 parliamentary leaders — set for Sept. 17-19. It’s also Constitution Day and my birthday — does anyone want to send me across the pond to attend? (Do you think I can wrangle an invitation?)

Rep. DeSaulnier was named Vice Chair of the Rules Committee while Rep. Morelle was named Chairman of the Subcommittee on Legislative and Budget Process. In addition, Rep. Joe Neguse was placed on the Subcommittee on Legislative and Budget Process and the Subcommittee on Rules and Organization of the House. These changes in the Rules Committee come after the passing of Rep. Hasting, who served as Vice Chair for the committee and Chairman of the Subcommittee on Legislative and Budget Process.

Melanie Stansubury, winner of the NM-01 special election to replace Deb Haaland, was sworn into the House and given committee assignments.

TechCongress’ 2022 Congressional Innovation Fellowship is now open for applications. Fellows bring their expertise in technology, engineering, and data analysis to shape tech policy on the Hill. Attend an info session on Wednesday, June 23rd at 5pm ET, and apply by Tuesday, August 3rd.

CRAs. The House is poised to pass bills to repeal three regulations in accordance with the Congressional Review Act. CRA measures are historically unusual because they in effect require the House, Senate, and White House to be in the same political hands; they were used extensively during the start of the Trump era.

John Bercow, the former Speaker of the House of Commons, has quit the Conservative party and joined Labor, calling his former party “reactionary, populist, nationalistic and sometimes even xenophobic.”

CALENDAR

The House and Senate committee schedules are here.

Tuesday

• Senate Homeland Security and Governmental Affairs is holding a hearing on “D.C. Statehood” at 10:00 am ET.

Wednesday

• Senate Appropriations Subcommittee on CJS is holding a hearing to “Examine Proposed Budget Estimates and Justification for Fiscal Year 2022 For The Federal Bureau of Investigation” at 2:00 pm ET.

• Senate Judiciary is holding a business meeting to examine “S.807 – Cameras in the Courtroom Act, S. 818 – Sunshine in the Courtroom of 2021, and other legislation,” at 9:00 am ET.

• 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.

Thursday

• House Leg Branch Appropriations subcommittee is holding a markup on its appropriations bill. As of the writing, no time has been announced for the meeting.

• House FSGG Appropriations subcommittee is holding a markup on its appropriations bill. As of the writing, no time has been announced for the meeting.