Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Subscribe here. The Senate is in recess for two weeks until July 12th. The House is in session this week but prepping for the 4th of July holiday; it returns for a committee work week on July 12th and floor votes start the week of the 19th.
THE TOP LINE
Congress to invest in itself — The House Legislative Branch Appropriations Subcommittee favorably reported a bill that includes a 13.8% increase in funding for the Legislative Branch. Should it be enacted, this could result in an 21% overall increase for personal, committee, and leadership offices — which would restore them to funding levels from 2010. Hopefully, the result will be significantly improved pay rates for political staff, who are massively underpaid and the focus of letters from Rep. Hoyer and Rep. Ocasio-Cortez (+ 109 other House Democrats). The Legislative branch has been underfunded for decades and this is a huge leap towards getting Congress back on track. One key open question: what will the Senate do? More details below.
A House select committee to investigate January 6th is in the works, according to an announcement by Speaker Pelosi. The committee would investigate what caused the insurrection and what measures can be taken to prevent something similar from happening again. Much about the nature of the select committees, whose members are usually chosen by the Speaker and Minority Leader, is TBA. A half-year has slipped by since the Trump insurrection, and the absence of sufficient Republican support for a commission — largely an act of obeisance to the man who incited the insurrection — strongly suggests we may still have dark days ahead.
Senate Foreign Relations delayed the vote on the 2002 Iraq AUMF repeal until sometime after a classified briefing slated for mid-July. This comes after last week’s developments, when the House voted for and the President spoke in support of the repeal. The repeal of this AUMF is an important step forward to re-asserting Congress’s war marking authorities. On Monday, the House will vote (on suspension) to repeal the 1991 AUMF against Iraq that authorized the first Gulf War. But still unaddressed is the 2001 AUMF, enacted in response to 9/11, that has been bent out of shape by subsequent administrations (through OLC opinions) as allowing most military action inside the Middle East.
The Congressional Budget Justification Transparency Act passed the Senate by UC on Thursday. The legislation would require all agency congressional budget justifications to be available online at a central website; OMB has largely resisted requests along these lines. The House version passed 412-2 in early January, and the Senate version will ping pong to the lower chamber for disposition. (Civil society strongly supports the bill, which is championed by Reps. Quigley and Comer and Sens. Peters and Porter).
Transparency webinar on freedom of the press. On Tuesday, July 13th, our team is hosting a panel discussion focused on the status of the free press in the U.S., concentrating on surveillance of journalists and their sources. Panelists include Jennifer Henrichsen of Yale Law School’s Information Society Project, Kathy Kiely of Missouri University, and Michael De Dora of the Committee to Protect Journalists. It will be moderated by Sean Vitka, Senior Policy Counsel for Demand Progress. RSVP here. On a related note, Attorney General Garland now appears to be supporting legislation to end subpoenas’ for reporters’ records — civil society has been urging Congress to act — but it is unclear whether Garland’s statement reflects his personal opinion or an administration position.
DOJ Office of Legal Counsel’s opinions were a focus of the nomination hearing for Christopher Schroeder, who is nominated to run that office and largely evaded Senate Judiciary Committee questions on whether he would put in place proactive transparency and be responsive to Congress when asked for the opinions. More below.
The Bulk Data Task Force, a working group of stakeholders inside and outside Congress focused on improving legislative data, announced its next public meeting will be Wednesday, July 14 from 10:00 AM to 12:00 PM. More info, including the agenda, TBA.
House Appropriations subcommittees began marking up the first of the fiscal 2022 spending bills last week, kicking off legislative work on the measures ahead of the Sept. 30 deadline to fund the government. No one expects that deadline to be met.
302b allocations, i.e, how much each appropriations subcommittee will receive, will be decided by the House Appropriations Committee on Tuesday; no idea of a timeline for the Senate. We kinda know six of the subcommittees:
• Agriculture will get a 12.3% increase, from $23.6B to $26.5B
• FSGG will get a 12.75% increase, from $24.3B to $29.1B
• Interior will get a 20.22% increase, from $36.1B to $43.B
• Leg branch will get a 13.79% increase, from $4.2 to $4.8B (this does not include funding for the Senate, which we estimate is around $1B)
• MilCon-VA will get a 11.16% increase, from $251B to $279B
• State-Foreign Ops. will get a 12.14% increase, from $55B to $62B
To put this in context, MilCon-VA will receive more new funds — $28 Billion — than the other 5 subcommittees put together ($22 Billion). Defense Appropriations, however, will blow them all out of the water.
Markup transparency timeline. It’s really hard to remember which appropriations documents become publicly available at a given time. So, we wrote a short blogpost to help everyone remember what happens when — and why.
Approps testimony deadlines. We’re going to stop updating our approps testimony deadlines tracker. All public witness deadlines have passed in the House with only State, MilCon, and Defense left in the Senate. (A few subcommittees never posted deadlines). As far as we know all member deadlines have passed in the House although Defense, Homeland, and Labor are still upcoming in the Senate.
LEG BRANCH APPROPS
Overview. Favorable reporting of the FY 2022 House Legislative Branch Appropriations Subcommittee bill constitutes a major step towards restoring Congressional capacity and strengthening the Congressional workplace, which we wrote about with Zach Graves at the Lincoln Network. (Kudos to the committee members & its leadership!) We await the release of the subcommittee report, which is set for later today ahead of the full committee markup tomorrow. The report language contains the policy provisions we are eager to see.
Materials: Draft bill, subcommittee markup video, and our requests. Please note we have gathered the last decade of Leg branch materials here.
The draft bill text includes a top line funding increase of 13.8% over FY 2021; a 21% increase in funding for personal, committee, and leadership offices; a 10.3% increase for GAO; new funding for IT modernization initiatives; and so much more. How much more? See for yourself: we did a line item comparison for every item in the Legislative branch. How about over the last 25 years? Suit yourself — we won’t include FY 2022 until it moves further along the process.
Among the major funding features of the legislation beyond the aforementioned increase in political offices: a 20% increase in internship funding, expanded to include committees for the first time; real increases in the support offices, including +14% for the Clerk and +19% for the Sergeant at Arms; a 5-10% increase for CRS, CBO, GAO, and OCWR; and a huge 15% increase for the Capitol Police (+$88m) and +34% increase for the Architect (+$152m), the latter of which does not include the Senate’s numbers.
Among the policy changes in the legislation: pay raises for the Capitol Police Chief and Deputy Architect of the Capitol above and beyond what Members of Congress earn; removal of the confederate statues; allowing DACA recipients to work for Congress; and renaming the Open World Leadership Center.
Report me. During the markup, Chairman Ryan made mention of two reports that Leg branch is requesting. (1) Directing the CAO to conduct a staff benefits and retention study, including a review of tuition credits, 529 accounts, a House-wide leave policy, and child care subsidies. (2) Directing a study by the CAO, in conjunction with the ODI, on the feasibility of recreating a centralized House internship program, which aims to provide support services such as housing, training, professional development, and focus outreach to minority serving institutions.
The Capitol Police will run out of funding sometime in August unless the Senate takes action to prevent it. Senate Appropriations Committee chairman Patrick Leahy asked GOP senators to participate in bipartisan funding talks for a Security Supplemental to address the aftermath of January 6th. The House passed a security supplemental that is apparently DOA in the Senate. All of the financial burden of address security and infrastructure cannot be borne by Leg branch approps alone — even though it is already providing gigantic increases for the Capitol Police, the Architect of the Capitol, and the House Sergeant at Arms. Here’s what Demand Progress thinks should be in the supplemental.
The FSGG approps bill includes $29.1 billion in discretionary funding, a $4.8 billion increase from the fiscal 2021 level. Highlights includes provisionsrequiring the OMB director to publish each agency’s budget justification materials publicly on a centralized website (p. 36), providing $1 million to OMB to create a system to make apportionment of appropriations publicly available in a timely manner (p. 45), and funding of $4.5 million to pay White House and Executive Office of the President interns (p. 33). (Watch this great interview with our friend Carlos Vera on the importance of these paid internships.) Our eyebrows collectively rose at the 39% increase in funding for the White House and 14% increase for OMB — only as a point of comparison to the Legislative branch.
Congress needs to exercise more oversight over the executive branch’s use of public funds, which is why the provision over apportionment included in the FSGG bill is helpful. This year’s budget process is a good opportunity to enact new, substantive transparency measures. Over the last few months, Congress has shown an interest in gaining back its watchdog capacity — which it could also do by passing the Congressional Power of the Purse Act, raising transparency around federal spending and bolstering the GAO’s capacity to provide spending oversight and act as a check on executive branch emergency powers.
The FSGG markup was brief. The subcommittee report will be released later today ahead of the full committee markup tomorrow.
Justice Department’s Office of Legal Counsel
Senate Judiciary held a nomination hearing last Wednesday for Chris Schroeder, nominee to run the Department of Justice’s Office of Legal Counsel. We’ve been closely following Mr. Schroeder’s nomination because he has previously expressed interest in a goal that we share: greater transparency for OLC opinions. In May, Demand Progress led a bipartisan 20-organization letter calling on Mr. Schroeder to recommit to his previous endorsement of proactive disclosure of OLC opinions. Demand Progress also previously submitted testimony asking Congress to require the OLC publicly release its opinions. 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. By making OLC opinions subject to Congressional and public scrutiny, transparency might help counter the pressure to deliver opinions that are tailored to suit the political desires of the President.
• Several members of Congress share our desire for greater transparency of OLC opinions and our concerns about political influence. Senator Grassley asked directly if Mr. Schroeder would “commit to transparency by releasing all of your opinions as an Assistant Attorney General for the office of legal counsel in a timely manner to help Congress properly perform its oversight role?” Mr. Schroeder replied that it is his “intention to release Office of Legal Counsel opinions in a timely manner and we will make every effort to do so.” But he held open the possibility that some opinions would still be withheld out of “confidentiality” concerns. Senators Ossof, Klobuchar, and Whitehouse all expressed concerns about political pressure affecting the quality of the OLC’s opinions. Mr. Schroeder assured them that he would address this problem.
• A close reading of Schroeder’s testimony, however, left us with a number of concerns. Schroeder effectively avoided the issue of whether he would proactively disclose the opinions (he cited the current process, which does not); equivocated on whether or the extent to which opinions would be disclosed to Congress (on a case by case basis); and made distinctions around whether an opinion is written instead of whether it has precedential value in the OLC and is reduced or summarized in written form.
• Even if Schroeder does everything we suggest, there is no guarantee that a future OLC would adhere to best practices. This is a strong signal that Congress must stand firm. House Appropriators already made strong calls over the last two years for transparency and accountability; will Senate Appropriators strengthen their call as well? We also look to the authorizing committees to see whether they will act.
TRANSPARENCY & PRESS FREEDOM
The Justice Department says it didn’t intend to target lawmakers in its subpoena to Apple revealed earlier this month. The leak investigation initially targeted a senior aide on the House Intelligence Committee, and the records of Reps. Schiff and Swalwell were added to the mix as the DOJ identified people connected to the staffer. At this point, these subpoenas are the subject of several congressional probes and an inspector general investigation to get more answers about why the Justice Department kept so much in the dark while taking such aggressive investigative measures. Last week, Apple implied that the same request for information may have gone to other phone companies and tech giants. Attorney General Garland is disinclined to investigate DOJ abuses prior to his assumption of that position; the House Judiciary Committee will hold a hearing this Wednesday on secrecy orders and prosecuting leaks.
Many in the GOP are seemingly unperturbed by the news of the subpoenas, arguing that of first and foremost priority is that any classified leaks are investigated. One would think that maintaining a democracy and protecting a free press might also be important priorities, especially as presidents routinely leak classified information and have the power to declassify information, which gives them a policy advantage as to what can lawfully be said to spin the press on an issue. Democrats are intent on investigating the circumstance of the subpoenas, calling to hear from Barr and Sessions. Any student of history knows the dangers of spying on the press, which is why civil society has been pushing for a federal reporter shield law and, as we mentioned above, A.G. Merrick Garland has just now indicated support for Congress enacting legislation.
Senate Judiciary Committee advanced the Cameras in the Courtroom Act, which would require video recording of Supreme Court oral arguments and opinion announcements, as well
as advanced the Sunshine in the Courtroom Act, which allows for media coverage of Federal court proceedings. The Judiciary Conference opposed the legislation for reasons that were not convincing to us.
That Congress must once again reject DOD’s proposed FOIA exemption in the NDAA was the subject of a letter signed by 45 organizations. This is the seventh time DOD has asked for this provision to be included.
The Speaker’s Lobby reopened to credential media last Tuesday — the first time since the pandemic began, after which it was open exclusively to lawmakers. Lots has happened in the Lobby since it closed its doors to visitors.
TRUMP INSURRECTION + CAPITOL SECURITY
Legislation to empower the USCP Chief to unilaterally request assistance from the national guard was introduced by Senate Rules Chair Klobuchar and RM Blunt, and six others, per their press release. The legislation also provides for joint oversight hearings between Senate Rules and House Administration with all members of the Capitol Police Board, noting the Board (including the ex officio police chief) have not jointly appeared at an oversight hearing since 1945. The legislative text is not yet available.
Trump aides knew January 6th could get bad. ProPublica concluded senior Trump staffers were aware the day’s events could turn chaotic and potentially overwhelm Capitol Hill security.
No apologies. Minority Leader McCarthy refused a request from a DC Police officer injured in the insurrection “to stop downplaying the storming of the building, blaming left-wing extremists for an assault carried out by former President Donald J. Trump’s right-wing supporters and spreading the baseless conspiracy theory that the F.B.I. secretly planned it,” the New York Times reported. Rep. McCarthy, who reportedly had dodged Officer Fanone for weeks, apparently said he would not openly criticize party members for spreading these lies. Apparently Sen. McConnell was a similar profile in courage, urging A.G. Barr at the end of 2020 to speak out against claims of a rigged election, but refusing to do so himself because it could have upended the Georgia Senate elections.
LEGISLATURE PROCESS & OPERATIONS
The Joint Committee on the Library and the Joint Committee on Printing had a double-inaugural meeting on Wednesday, with each proceeding lasting fewer than 5 minutes, a marked contrast to the hours-long proceedings before the House Judiciary Committee occurring at the same time. The Joint Committee on Printing elected Sen. Klobuchar as Chair and Rep. Lofgren as Vice Chair, adopted committee rules, and quickly adjourned. The Joint Committee on the Library elected Rep. Lofgren as Chair and Sen. Klobuchar as Vice Chair, which was unusual in part because Rep. Lofgren was unable to attend in person — she was at the Judiciary markup — and then it adopted committee rules.
• But next, in a surprising move, Rep. Loudermilk mentioned that Rep. Davis, who was not present but was on his way, wanted to bring up two matters for the committee’s consideration: opening up the Botanic Gardens and addressing a North Carolina statute. In the 10 years I have watched these meetings never have I seen them conduct any business except to gavel in, adopt leaders, approve rules, and gavel out. Today was my big day! Alas, Rep. Davis was too far away and the committee gaveled to a close.
• These joint committees used to have their own staff, but a successful campaign by the Executive branch to undermine the Joint Committee on Printing — embodied in this infamous OLC opinion — and congressional decisions to end funding for joint committees staff, has left the committees a shell of their former selves. They still have legislative authority, however, even though it usually is exercised in the background.
The Congressional Budget Office released an assessment of providing formal cost estimates before the full committee markup in the FY 2021 Leg Branch House Report. CBO determined that providing formal cost estimates in a timely manner would require an increase of FTEs and an increase in costs ranging from $18 million to $84 million a year depending on what approach is adopted. CBO also determined that this system may affect the legislative process.
The House Intelligence Committee is seeing high turnover among top staffers on its Democratic side as the new administration poaches their “specialized expertise” for the National Security Committee, Department of Defense, Department of Homeland Security. Some are also choosing jobs in the private sector after years of public service. Political scientists have a word for this phenomenon.
The Senate parliamentarian’s recent guidance strays from budget rules, explains James Wallner. Congress last used the reconciliation process to bypass the filibuster to pass the American Rescue Plan Act of 2021, following instructions in the FY 2021 budget resolution. In order to do it again, parliamentarian Elizabeth MacDonough at first said that Congress would need to either pass a budget resolution for the FY 2022 or revise the FY 2021 budget. But early in the month, she concluded that Democrats could pass a second reconciliation bill only if unexpected changes in the Senate’s external environment warrant it, rather than simply to bypass the normal legislative process. The stipulation is vague; what “abnormal” conditions would justify the expediting of certain legislation? She also stated that Republicans on the Budget Committee can filibuster a FY 2021 revision and stop Democrats from authorizing a second reconciliation process. However, her interpretation contradicts senate rules and precedents.
Today’s technological innovations will likely forever transform how our government works. The Belfer Center at Harvard Kennedy School put out a report titled “Building a 21st Century Congress: A Playbook for Modern Technology Assessment” that plans for the implications of technological innovation on future congressional operations. This report is premised on the idea that producing relevant technology for the future requires that we examine and fund research on kinds of crises the future will hold. This report addresses the question of how lawmakers can better grapple with the next generation of emerging technologies and their implications, and how we can better go about applied research. It underscores the need for the discipline of technology assessment in this work. I co-wrote a report last year that offers recommendations and a road map for developing a technology assessment office in Congress.
The Federation of American Scientists just launched a new Science Council in collaboration with Rep. Bill Foster’s office. The Council, which includes seven scientists and technologists in a variety of fields, aims to boost the science and tech policy capacity of the Foster office, build relationships between policymakers and the science and tech community, and encourage nonpartisan, evidence-based information, research, and analysis in the policymaking process. The material the Council produces bridges science and policy, and is designed to be shared widely across congressional staff and Members of Congress.
BillToText converts PDFs of federal legislation into text files that you can easily download and edit using a word processor program. We made the website with the intention of supporting congressional offices in conversations about pieces of legislation; it’s a resource for cross-office collaboration and for identifying changes more easily across multiple versions of a bill. The website is free, and the code is open source and available here.
The 2021 Congressional App Challenge is now live. Middle and high school students can put their computer science skills to the test and submit original apps for a chance to be displayed in the Capitol. Students can check to see whether their Member of Congress is hosting a contest in their district. Submissions are accepted through November 1st.
ETHICS & ACCOUNTABILITY
An ethics investigation isn’t stopping Rep. Malinowski from buying and selling equities. The OCE has been investigating the New Jersey representative for failing to properly disclose numerous trades between 2019 and 2020. In addition to buying shares of General Finance Corporation, Doordash, Teradata Corporation, and CM Life Sciences, Malinowksi was found buying $50k worth of the plummeting Peloton stock in April — on the same day the company faced a class-action lawsuit concerning the safety of its popular treadmill and its failures to heed federal warnings.
Fine by me. House Ethics Committee rejected appeals by GOP Reps. Brian Mast and Beth Van Duyne for not wearing masks on the House floor. GOP Rep. Marianne Miller-Meeks was also fined for not wearing a mask, but did not appeal to the Ethics Committee. Masks are now no longer required to be worn on the House floor.
Democrats are treading lightly on the topic of age as they grapple with an unmistakable generational divide, in which Biden and top Democratic leaders are well over 70 years old and nearly all House members over the age of 80 are Democrats. At what point do older members of Congress have a responsibility to make room for the next generation?
Republicans are grappling with diversity as six GOP lawmakers compete for an open spot on the House Financial Services Committee, whose Republican membership “is nearly all white and male.”
The Congressional Progressive Staff Association is seeking to inspire more activists, labor organizers, and faith leaders to work on the Hill. Founded by Jacob Wilson — a former Maryland-based organizer for antiwar grassroots group Peace Action and now a press secretary for Rep. Andy Levin — the CPSA already has more than 250 members, 100 of whom are senior staffers. The association’s goals are trifold: to make room for progressive thought, create opportunities for networking, and eventually build the structures to recruit and hire more progressives in congressional offices. Their sign-up page can be found here.
Rethinking Congressional culture: Lessons from the field of organizational psychology and conflict resolution was the focus of the latest House Modernization Committee hearing on Thursday. The hearing was held in person and featured a non-traditional where lawmakers had two hours to question the four witnesses in any order after the witnesses gave their opening statements. We have several recommendations around creating a more collaborative Congress, including bolstering capacity for Legislative Service Organizations, revising the Congressional calendar, providing more security clearances for staffers, and more.
• Conflict culture. Kris Miler, an associate professor in the Department of Government and Politics at the University of Maryland, testified about the two types of conflict culture that exist in society: collaborative conflict culture, where dialogue and problem solving is encouraged between groups, and dominating conflict culture, where both sides emphasize winning the battle over working together. Miler mentioned that Congress uses both types of conflicts, including within their own parties. Miler recommended that Congress increase resources for CMOs; more staff, better websites, and more meeting spaces could be important tools to foster stronger relationships between members. Witness Amanda Ripley, an investigative journalist and author, testified about defining simple rules of engagement that could incentivize good conflict.
• Onboarding and building trust. Adam Grant, an organizational psychologist and professor at the Wharton School of the University of Pennsylvania testified (written testimony not available) around the importance of having a stronger member onboarding process so individuals can find uncommon commonalities and experience vulnerabilities with one another. This sentiment was echoed by William Doherty, a co-founder of Braver Angels and Professor and Director of the Marriage and Family Therapy Program in the Department of Family Social Science at the University of Minnesota, who testified about the Braver Angels workshops designed to show humility of one’s own views and perspectives. Doherty spoke about his 2020 workshop that brought together staff from Reps. Phillips and Stauber’s offices and encouraged lawmakers to promote his Braver Angels workshops for members, personal staff, and committee staff to encourage them to discuss how their life experiences influenced their policies and beliefs more deeply.
ODDS & ENDS
Vance Trimble, Pulitzer-prize-winning journalist on congressional corruption, died last week at 107 years old. He investigated rampant nepotism, secret payrolls, and financial misdoings among members of Congress, even filing suit to have payroll records made public. After initially dismissing the suit, the Senate eventually voted to make office expenditures public. Only in the last decade has the Senate put those expenditures online, and we have asked that they be published as data, just like the House’s expenditure reports.
Former Senator Mike Gravel has died. He read the Pentagon Papers into the Congressional Record, a move protected by the Speech or Debate Clause of the Constitution, which made sure the secret Defense Department history of the Vietnam war would be available to the public at a time where the Nixon administration was pursuing injunctions on its publication and prosecutions for its leakers. Sen. Gravel’s move was courageous; few members of Congress would be willing to risk their careers to release important but politically embarrassing secrets. Nowadays, House and Senate rules (foolishly) make it even more difficult for Members to release this kind of information to the public.
The Office of the Whistleblower Ombuds, a House support office offering training and best practices for working with whistleblowers across public and private sectors, has some exciting new website developments. Check out these three pages with useful resources, materials, services, as well as this video on “Safely Vetting a Whistleblower Disclosure.”
The Project on Government Oversight is hiring a Policy Analyst. POGO is a watchdog organization that investigates abuses of government power in a fight for a more transparent and accountable government; as a member of the policy team, you’d use those findings to help craft recommendations and lead legislative or regulatory campaigns. Apply by June 28th.
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 one of their events this summer, and apply by Tuesday, August 3rd.
Congrats to Kirsten Gullickson, the 2021 Service to the Citizen Award Winner in the House Office of the Clerk and Office of Legislative Computer Systems.
The House and Senate committee schedules are here.
• The House Rules Committee will meet to consider a number of bills, including the IG Empowerment Act (H.R. 2662) and legislation to remove a variety of confederate statues (H.R. 3005); we have long called for the removal of the statues. Both bills, as well as legislation to establish a select committee to investigate the January 6th attacks, are expected on the House floor.
• House Appropriations Full Committee will mark up the Financial Services and General Government bill, the Legislative Branch bill, and the subcommittee allocations at 11.
• The Committee on the Judiciary will be having a hearing titled “Secrecy Orders and Prosecuting Leaks: Potential Legislative Responses to Deter Prosecutorial Abuse of Power” at 10:00 am ET.
• The House Defense Appropriations subcommittee will hold a closed markup on Wednesday at 10.
Down The Road
• The Brookings Institution is holding an event on “Reconciliation 101: An Explainer of the Budget Process” on July 6 at 2:30 pm ET.
• House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies will hold its markup on Monday, July 12.