Forecast for July 6, 2021

First Branch Forecast Logo

Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Subscribe here. We hope you had a wonderful July 4th weekend.

THE TOP LINE

House Appropriations favorably reported six of the twelve spending bills, including a Legislative Branch bill and report that included desperately and long overdue investments in the Legislative Branch, and a Financial Services bill and report with welcome improvements to government transparency. More below.

Top line numbers for the twelve approps subcommittees, totalling $1.5 trillion, were adopted by House Appropriators. Funding is policy, so where will that money go? See below.

The August recess may be a mirage with Congress needing to address the debt ceiling, appropriations for the current fiscal year, the infrastructure/reconciliation bill, and much more (including election protection measures). Republican leaders have many incentives to run out the clock instead of legislate, which would be too bad; will Democratic leaders take advantage of the opportunity to put their agenda in place while they still can?

The Bulk Data Task Force, a working group of stakeholders inside and outside Congress focused on improving legislative information, will hold its next meeting on Wednesday, July 14th from 10:00 AM to 12:00 PM. The public, congressional staff from both chambers, support + agency staff, and everyone else is invited to attend and participate. However, you must register to get the email with the link to attend the virtual meetingRSVP here.

Webinar on freedom of the press. Next 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. If you missed it and as preparation for the event, you should definitely read last week’s testimony from Microsoft’s Tom Burt before the House Judiciary Committee: “But what may be most shocking is just how routine court-mandated secrecy has become when law enforcement targets Americans’ emails, text messages, and other sensitive data stored in the cloud.”

APPROPRIATIONS

Six of the twelve spending bills have been approved by the full House Appropriations Committee, including Agriculture, FSGG, Interior, Leg. Branch, MilCon-VA, and State & Foreign Ops. Appropriations subcommittees also approved the Defense and Homeland Security bills. The full House Appropriations Committee plans to finish its work on all twelve bills by the end of next week and the House is expected to approve all its bills by the end of the month. It is our expectation that the Senate will begin marking up its bills in July.

More than $1.5 trillion in discretionary spending was allocated by House appropriators, which you can see divided up in the 302(b) allocation table. But let’s provide some context on the House’s approach.

• The Defense Approps Subcommittee would receive by far the biggest piece of the pie — 46.87% of all federal discretionary spending, or $705,939 million. The Military Construction-Veterans Affairs Subcommittee, which is the third best-funded subcommittee, would receive 8.27% of all federal discretionary spending, or $124,500 million. Together, they would receive 55.24% of all federal discretionary spending, or $830,439 million. If adopted, they would jointly receive a $21,378 million increase over last years’ funding; that increase is 3.57x the funding for the entire Legislative branch and a little shy of the proposed funding level for the Agriculture subcommittee or the Financial Services subcommittee.

• Labor-HHS is the second highest funded subcommittee, at 15.77% of federal discretionary spending, or $237,466 million. In other words, Defense + MilCon-VA will receive 3.5x the funding of Labor HHS.

• The remaining 9 appropriations subcommittees would each receive ~5% or less of federal discretionary spending. In order of largest to smallest: Transportation-HUD at 5.58%; Commerce-Justice-Science at 5.40%; State & Foreign Operations at 4.13%; Energy & Water at 3.53%; Homeland Security at 3.51%; Interior and Environment at 2.88%; Financial Services at 1.90%; Agriculture at 1.76%; and the tiny Legislative Branch at 0.40%.

On funding for the tiny Legislative Branch, the right-leaning R Street Institute sent a letter to Sens. Reed and Braun, the chair and RM of the Senate Leg. Branch Approps Subcommittee, urging more funds for GAO and the Legislative Branch. “Good policy starts with good governance. In order to restore the rightful role and effectiveness of our First Branch, Congress, and the agencies that support it, must receive the resources necessary to keep pace with the size and scope of our federal government.” Similarly, the Lincoln Network issued a statement on June 24th praising the proposed increase in funding for the Legislative Branch. We remember the efforts of former Rep. Kevin Yoder (R-KS), who chaired the House Legislative Branch Appropriations Subcommittee and started the hard work of restoring the capabilities of the Legislative Branch after the terribly damaging cuts enacted prior to his tenure.

As the Lincoln Network’s Dan Lips has pointed outfunding for the GAO alone has saved the federal government more than a trillion dollars. We note that efforts over the decades to cut funding for the Legislative Branch, which consequently reduced funding available for GAO, has resulted in hundreds of billions of wasted dollars that otherwise would have been saved. This year’s proposed $68 million increase to GAO is expected to save the federal government on the order of $7 billion, which is more than the total funding level for the Legislative Branch at just shy of $6 billion.

We were dismayed when a few of the Republican members rolled out some very old tropes suggesting that funding for the Legislative Branch should be held down and, by implication, transferred to the military. Considering that Defense Appropriations would receive a $10 billion boost, which is twice the total funding level for the Legislative Branch, and that Leg Branch funding is literally 0% of federal discretionary spending when you round to the nearest whole number.

LEG BRANCH APPROPS

The full House Appropriations Committee favorably reported (33-25) the FY 2022 Legislative Branch Appropriations bill and report last Tuesday. See the bill text and committee report. Note that 2 amendments were not reflected in those documents: (1) Rep. Ryan’s managers’ amendment, which (a) allows Capitol Police to bump up their pay rate basis when calculating retirement benefits based on overtime that they worked, (b) pushes funding for de-acidification which the Library of Congress declined to request, and (c) supports certain cultural exchanges; and (2) Rep. Herrera Buetler’s amendment for the placement of a plaque honoring USCP and MPD officers who responded on January 6th. (The USCP Labor Committee issued a press release thanking Reps. Connelly, Ryan, and Wexton for changing the law to allow overtime to count as base pay for retirement purposes.)

We read the bill and the committee report. You can read our first (very positive) reaction to the legislation here, where we also summarized the major funding features of the legislation and looked at how spending would change line-item by line-item. We catalogued every instance where appropriators directed a report or briefing be conducted, including the nature of the report and timeline for completion. And we highlighted some of the key items contained in the report language here. We will have a full analysis of what’s in the committee report in a future newsletter.

Thank you House Leg. Branch appropriators for strengthening congressional capacity and strengthening the congressional workplace! This, by the way, is the subject of the latest letter sent by 20 good government organizations (including Demand Progress) and 9 congressional experts.

OTHER APPROPRIATIONS AND AUTHORIZATIONS

The Financial Services and General Government appropriations report has too much to cover here, but we note that it includes a study on virtual visitor logs (p. 37), transparency around congressional budget justifications (p. 38), much more transparency around apportionments (p. 11), and demographic information about federal appointments (p. 93).

The $715 billion surface transportation and water infrastructure authorizing bill is the first major bill to contain earmarks since they were reintroduced earlier this year. (We had not realized until recently that authorizing bills have an earmarking process, which shows how little we know!) Only two Republicans in the Transportation Committee voted for the bill, and it’s unlikely to receive any Republican support on the floor. Despite this, Transportation and Infrastructure Committee Chair Peter DeFazio plans to keep GOP projects in the bill. But this does make us wonder: wasn’t one of the major points of bringing back earmarks that it would encourage bipartisanship because members of the opposing party would have skin in the game?

Senate Appropriators have begun publishing earmark requests. The format in which they are reported could stand some improvements. Here’s what we’d suggest.

THE SUPREME COURT

The Supreme Court struck down California’s disclosure law, ruling that making nonprofits that raise money in the state disclose their donors is a violation of donors’ First Amendment rights. This is a major defeat for those fighting the influence of dark-money groups in politics and a further tilting of the political playing field to the bomb-throwers. Former Justice Scalia had a lot to say about the importance of transparency in 2010 in Roe v. Reed: “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

Voting rights. The Supreme Court also upheld limits on the ability to vote, further weakening the Voting Rights Act, which bans racial discrimination in voting practices.

The White House commission on the Supreme Court had its first public hearing last Wednesday, prior to which several members of Congress voiced their concerns. What was most striking to me was the excellent testimony submitted by Harvard Law Professor Nikolas Bowie, who addressed the anti-democratic nature of the Court and took issue with the principle of judicial review, which has elevated the view of a majority of Supreme Court Justices over the other two branches, often with deleterious results. He presents a well-constructed and persuasive argument that I really commend to your attention.

TRUMP INSURRECTION + CAPITOL SECURITY

The House adopted a resolution creating a January 6th Select Committee last week and Speaker Pelosi named seven Democratic members of the committee — Reps. Bennie Thompson, Zoe Lofgren, Adam Schiff, Pete Aguilar, Stephanie Murphy, Jamie Raskin, Elaine Luria — and Republican Rep. Liz Cheney. The Committee held an initial meeting on July 1, although the Republican members have not been named.

• The named committee members issued a statement describing their goal as to create a “comprehensive and authoritative report on events constituting the January 6th Insurrection, the relevant causes of the Insurrection and policy recommendations necessary to prevent any reoccurrence of this nightmare in the future.”

• House Minority Leader McCarthy threatened any Republican member considering appointment to the commission, saying he would strip them of their committee assignments should they allow themselves to be appointed (presumably without his authorization). If only he felt the same way about punishing the extremist, conspiracy-prone, white supremacist-adjacent members of his caucus. But I digress.

• House Minority Leader McCarthy may try to name members of what former Speaker Boehner would likely describe as members of the knucklehead caucus, but the terms of the resolution grant Speaker Pelosi the power to name committee members after consultation with the Minority Leader. This leaves open the possibility she may name other members or he may make selections that are considered too unreasonable.

Will Minority Leader McCarthy play politics with the select committee? Considering how many Republicans blew up the commission, which McCarthy had likely blessed before backtracking, we imagine that ex-Pres. Trump will continue to pull his strings.

Meanwhile, a man who participated in the insurrection joined GOP members on a trip to the southern border last week — and even served as a translator and chauffeur. The man is a close ally of Rep. Marjorie Taylor Greene, who is not known for her probity.

CONGRESSIONAL OPERATIONS

Congressional witnesses lack diversity, notably on committees that deal with climate-related issues, according to a letter sent by the environmental group Green 2.0. The 117th House rules package included a requirement that the Office of Diversity and Inclusion provide a report recommending a method to survey the diversity of witness panels at committee hearings, which was due last Thursday, July 1st.

Several AAPI staffers have come out to talk about what it’s like to work for Congress during a nationwide rise in anti-asian hate crimes compounded by the pandemic. Anti-asian racism has only persisted on the Hill, even as policy changes — a bill enacted to curb violent hate crimes — have suggested otherwise. This year, the Congressional Asian Pacific American Staff Association increasingly became a resource for those seeking mental health support.

Privately sponsored congressional travel has returned, though at far lower rates than in pre-pandemic days. These sponsors send members and staffers across the country and overseas in an effort to cultivate congressional allies and build “relationships.” By this time in 2019, private groups spent nearly three million dollars on congressional travel — 17 times as many thus far in 2021. Public Citizen has a useful summary of rules around private travel; reporting around congressional travel have many lacunae.

Proxy voting and remote deliberations will be the topic of further examination by the House Rules Committee. Last week, Speaker Pelosi extended proxy voting in the House until August 17, 2021. We are strong supporters of remote deliberations, whereby members can fully participate remotely, as contrasted with the House’s proxy voting system, which puts distant members at a disadvantage. Both options, however, are preferable to having Congress unable to function in an emergency. Additional issues have arisen, such as members who are unable to be physically present because it would pose a physical risk to them or a family member, which suggests there may be temporary circumstances where remote participation is preferable to no participation.

What’s due in July? Congress often requires Legislative branch support offices and agencies to submit reports to Congress and we track what’s due when. See our July update,

Confederacy. The House once again passed a bill to remove the statues of confederates and the bust of Roger Taney from display in the U.S. Capitol by a vote of 285-120. A similar bill passed the House last year but stalled in the Senate. The floor debate was bizarre. I was amused by the sudden love for the Joint Committee on the Library, which was denuded of staff a quarter-century ago.

The Office of Congressional Workplace Rights just published its second quarterly newsletter. This issue highlights the OCWR’s work to strengthen its occupational safety and health program as part of the office’s broader mission of bolstering staffers’ workplace rights and access to resources.

LIBRARY OF CONGRESS

A modernized Library of Congress? The Library’s press office must have been pleased about the Washington Post Editorial Board’s essay about the Library of Congress as a surprising (positive) lesson in digital government. All the examples they cited are great news — growing collections, digitizing some resources, using neural networks — although the essay did not address the nuts and bolts of whether all federal law, draft and final bills and committee reports, congressional documents, non-partisan analyses, and other contextual information are available online and in a format that supports re-use of that information by third parties. Nor did it address the extent to which the Library is collaborating with civil society and others on the development of new tools and publishing of new data sets. For the record, we have seen progress over the last 13 years, but it is uneven across the various silos in the Library and there is a lot left to do.

The Library of Congress will hold a webinar on the Constitution Annotated on Congress.gov on Thursday, July 15 at 11:00 am ET. We spent 11 years pushing for this legal treatise to be published online as a structured data document, and we are glad that it finally happened.

The Law Library of Congress has updated their website law.gov. We have not yet had an opportunity to evaluate it, but the Law Library generally is a more forward-leaning component of the Library and we expect good things.

ACCOUNTABILITY

The IG Independence and Empowerment Act passed the House on Tuesday. The bill would address laws that have eroded the ability of inspectors general to do their jobs. It would protect inspectors general from retaliation by allowing them to be removed only for cause and also creates notification requirements and reports to Congress. The legislation also expands an inspector general’s subpoena power and allows the DOJ IG to explore alleged wrongdoing against DOJ attorneys. We, and other good government groups, wholeheartedly endorsed this legislation.

The Whistleblower Protection Improvement Act, which would give federal whistleblowers the ability to appeal their cases in federal district court, just cleared the House Oversight and Reform Committee. The bill would prohibit agencies from going after federal employees who disclose information to Congress and prohibit retaliatory investigations into whistleblowers, as well as expand whistleblower protections to limit public disclosure of whistleblowers’ identity.

The IG overseeing the Federal Housing Finance Agency stepped down following a watchdog report of her abuses of authority, acts of retaliation against her employees, and refusal to be further investigated. The report released by the investigation panel revealed numerous instances of Laura Wertheimer’s misconduct, confirming accounts by whistleblowers.

Glaring flaws in Congressional oversight and subpoena power remain evident after the Trump Organization and a top exec were charged with fraud and tax crimes last week. In theory, Congress has the power to compel answers to its questions, and there is a law that gives the tax writing committees the power to demand tax records, but it has been hamstrung in practice by a recalcitrant Executive Branch, unfriendly courts, and at times by getting in its own way.

ETHICS

Rep. Pat Fallon failed to timely disclose nearly millions of dollars worth of stock trades. Rep. Fallon claimed ignorance of the rules. Some significant trades concerned a committee on which Fallon sits.

House Ethics Committee dropped the fine against Rep. Foxx regarding failing to complete a security screening before going to the floor. We’re glad the Hill reported this because we read the Ethics Committee’s statement and press release three times and couldn’t make any sense out of it.

Exxon lobbyists inadvertently revealed how they manipulate the Senate to freeze Congress on climate policy.

ODDS & ENDS

The Information Security Oversight Office published its 2020 report on how the government handles and releases classified and controlled unclassified information. Among its many insights, the pandemic has changed the way the government handles classified information, including allowing employees to handle lower-classified information from home and agencies deciding to keep some of their work unclassified. With respect to the review and release of classified materials, it is important for Congress to provide support to agencies that serve on the ISCAP to ensure everyone has access to the classified network that enables electronic resolution of appeals and to provide support to ISCAP staff so they have access to secure video teleconferencing technology.

Rep. Ilhan Omar was the target of criticism last month after she had posted a tweet calling for more rigorous accountability standards for crimes against humanity. These attacks exemplify a disinformation tactic — the far right media twists what she says and then Democrats rise to the bait and amplify the attacks further.

OGIS worldwide. The FOIA Ombudsman’s office published a wrap-up of the first ever virtual gathering of the Internal Conference of Information Commissioners.

What does the Committee on House Administration do? AEI’s Kevin Kosar interviewed Rep. Rodney Davis, the committee’s ranking member. We are impressed that Mr. Davis asked to serve on House Admin, but not surprised.

The fence around the Capitol is set to be removed by this Thursday.

CALENDAR

The House and Senate committee schedules are here.

Tuesday

• The Brookings Institution is holding an event on “Reconciliation 101: An Explainer of the Budget Process” on July 6 at 2:30 pm ET.

Down the Road

• House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies will hold its markup on Monday, July 12.

• Transparency webinar on freedom of the press is set for next Tuesday, July 13th. We are hosting. RSVP here.

• The Bulk Data Task Force has its next public meeting on Wednesday, July 14 from 10:00 AM to 12:00 PM. You must register to get the email with the link to attend the virtual meetingRSVP here.

• Library of Congress will hold a webinar on Constitution Annotated on Congress.gov on Thursday, July 15 at 11:00 am ET.