Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Subscribe here.
THE TOP LINE
Former Maryland police chief Tom Manger was sworn in as the US Capitol Police Chief. The Capitol Police are in disarray, with a dysfunctional and inadequate oversight structure, a poorly designed administrative structure, a well-founded absence of confidence in its senior leaders, a funding cliff that prompted the USCP to hold off on purchasing protective equipment like ballistic helmets, and have been pursuing the wrong mission — policing instead of protection — in an accountability-free environment that snubs committee oversight, the press, and the public and has left many police officers suffering with their trauma.
• A torrent of new money will eventually cascade on the well-heeled but financially depleted agency, just as it always has. The Chief spoke to Politico in a short interview — unusual in of itself because ex-acting police chief Pittman did not view it as part of the USCP mission to talk to the press — where he expressed a non-committal willingness to hold briefings and a desire for Pittman, who is reviled by the rank and file, to stay on his leadership team.
Meanwhile, the Select Committee to Investigate the January 6th Attack on the Capitol, which I guess we’re not supposed to call the Trump Insurrection Committee, will hold its first hearing on Tuesday. They don’t seem to yet have a website and the official meeting announcement has little info, but Reuters has their statement that the hearing will include testimony from USCP & MPD officers, which we found mirrored on Speaker Pelosi’s website. I won’t #bothsides our analysis, which is that Minority Leader McCarthy is just as opposed to allowing this committee to go forward as he was opposed to the commission — and for the same base political reasons — which is why he suggested two uncongenial members in the hopes of blowing it up when Speaker Pelosi declined to concur with the appointments. Minority Leader McCarthy gets to make his political point, I guess, but step-by-step he has moved into very dangerous territory for our democracy. With the appointment of Reps. Cheney and Rep. Kinzinger, he will lose the “bipartisan” talking point that has always been a reductivist and unhelpful way to talk about a pluralist political system.
COVID. Some Republican leaders are stepping up to encourage their members and staff to get COVID vaccines and even — gasp — to wear masks. Can you believe Minority Leader McCarthy didn’t get a first COVID shot until last week? It’s too soon to consider ending remote deliberations when we hear there are long lines and extended hours to accommodate staff (and members) who have yet to get the vaccine. Even if you wish to make a rhetorical point about this being a personal choice, you still have to exercise personal responsibility in actually getting one. Scientific modeling suggests a steep rise in COVID deaths, peaking in the middle of October, at 60,000 cases and 850 deaths per day under the most likely scenario, with a worst case for the most likely scenario of 240,000 cases and 4,000 deaths per day.
The House will consider up to ten appropriations bills next week, including this minibus, State & Foreign ops, and of more interest to us: Leg branch approps and CJS. More below on the 37 Leg branch floor amendments. The minibus will be considered by the Rules committee on Monday, and the rest on Tuesday.
• Making matters more complicated is that the Senate Armed Services Committee decided that the House’s proposed increase to defense spending, which constitutes nearly half of the $1.5 trillion in total discretionary spending for everything, is not enough. They proposed to increase overall defense spending to $777.9 billion, including $740 billion for DOD, which is a $25 billion boost for the department over Biden’s already generous proposal which is on top of decades of generous funding. This places Armed Services numbers way out of line with the top line numbers proposed by Pres. Biden and those approved by House Appropriators. And of course they did it all essentially in secret, so only Lockheed Martin knows the nature of their deliberations. As a useful point of comparison, vaccinating the entire world would cost $50 to $70 billion, and paying for that would contribute mightily to improving global security. And, unlike a lot of Pentagon programs, the vaccine actually works.
The Senate plans to hold markups on FY 2022 Agriculture-FDA, Energy and Water, and Military Construction-VA bills before breaking for the August recess. The rest comes after? And sometime between now and then, the debt limit must be raised or suspended — it expires on August 1st — and Sen. McConnell is urging Republicans to oppose this effort in what some deem hostage-taking, which risks destroying the U.S.’s ability to borrow money on favorable terms.
In some good news, two of my favorite bills are on suspension in the House this week. The Congressional Budget Justification Transparency Act, S 272, which is the Senate companion to HR 22, would put all agency congressional budget justifications online in a central place so you can actually find them. It will go to the president. And the Access to Congressionally Mandated Reports Act, H.R. 2485, would require all non-confidential legally-required agency reports to Congress be published online at a central website, and also for Congress to maintain a full list of these reports. The House has passed ACMRA many times before, and it enjoys bipartisan support and has been favorably reported by HSGAC several times. But, you know, the Senate….
Several right-of-center organizations and former Republican Members of Congress wrote to Senate Appropriators in support of strengthening Congress and restoring the balance between the executive and legislative branches, favorably citing funding increases included in the House appropriations bill. The letter underscores the need for lawmakers to assert congressional authority, leverage the power of the purse, and pare back excessively broad executive orders. This is a strong conservative case for why we need a strong Congress.
A bipartisan group of Senators wants to restore Congress’ war powers, which were eroded in part after the Supreme Court undermined Congress’s accountability mechanisms established after the Vietnam debacle and in part by the stampede towards war that often happens around exigent circumstances. The proposed National Security Powers Act would address the eroded state of Congress’ military oversight capacities and restore to Congress its ability to exercise its constitutional power regarding the authorization of war, determinations around weapons sales, and the like. It would begin by terminating the 2001 AUMF, which has been used and abused by presidents way beyond the bounds of that contemplated at the time.
Senate committee offices are struggling to bring in diversity at top-level positions. The Joint Center for Political and Economic Studies released a report that found that only 7.9% of staff directors and 15.7% of non-staff director top staff roles are filled by people of color.
Enhancing committee productivity was the focus of the latest House Modernization Committee hearing last Tuesday. We have a ton of recommendations on empowering committees and their members, but that’s not important right now. Among the discussion:
• Trust and personal relationships. The first panel featured Reps. Diane Degette and Fred Upton, both members of the House Committee on Energy and Commerce, testifying (written testimony not available) on the importance of engaging committee members in a bipartisan way to help build consensus and pass legislation. Both Degette and Upton spoke at length about the three-year process of enacting the 21st Century Cures Act into law. Both members suggested that the House should reform its orientation and onboarding process to make them more bipartisan so members can get to know each other at a more personal level.
• Capacity, transparency, collaboration. E. Scott Adler, a political science professor at the University of Colorado, testified on the central role committees play in Congress and how that role has diminished over time, something we have written about extensively (House and Senate). Adler suggested that Congress boost its resources for greater capacity as well as reform the way committee schedules operate to ensure members can be fully present. Jenness Simler, who served as professional staff on HASC for a dozen years and now runs leg affairs for Boeing, said HASC is successful because of its bipartisan nature: the NDAA drafting process featured hearing memos, briefings, and project requests that were all undertaken with both the majority and minority involved. Additionally, the NDAA amendments were kept in one single database open to the entire staff and allowed for the minority to make edits or suggestions at any time. Warren Payne, a staffer who worked on the House Ways and Means Committee and now works for the mega-firm Mayer Brown, testified on how creating staff relationships across the aisle was essential for the decision making process and recommended the House adopt bipartisan staff delegations to provide more personal interactions with members and staff.
Legislation to establish a panel to examine succession plans of presidential candidates was introduced by Rep. Davis in the House and Sen. Portman in the Senate last week. Demand Progress has previously endorsed this effort.
COVID + CONGRESS
Vaccinated and positive. Rep. Buchanan, an aide to Pelosi, and five Texas lawmakers tested positive for COVID last week. All were fully vaccinated. By comparison, Rep. Clay Higgins, who would not say whether he was vaccinated, has COVID for a second time, as does his wife and son — which he announced in a statement that contained misinformation about the origins of COVID.
Masks. Capitol physician Brian Monahan warned that indoor mask wearing may have to resume. Even when not required, they are a good idea.
No Capitol tours, except sometimes. While the Capitol Visitor Center remains closed to visitors, some lawmakers’ offices and summer interns are giving private tours to guests and constituents under the guise of “official business.”
Virtual congressional hearings are likely to extend beyond the end of the pandemic, at least in some format, as members believe they’ve been successful in bringing in the diverse viewpoints that these panels long lacked.
Masks + vaccines + remote work are a winning combination for an open government. As for tracking illness spread…
The White House updated its disclosure process for new covid cases among staffers, whose names will now be revealed to the press if they were found to be in close contact with the president, vice president, or either of their spouses. I wonder what a policy of disclosing unvaccinated members in Congress would look like.
TRANSPARENCY + ACCOUNTABILITY + ETHICS
The Justice Department adopted a new policy that appears to significantly circumscribe its own powers to seize journalists’ records. But, of course, what can be done with one memo can be undone with another. Spying on the press for committing acts of journalism is wrong. As we highlighted last week, the final sentence in the memo states: “to ensure that protections regarding the use of compulsory legal process for obtaining information from or records of members of the news media continue in succeeding Administrations, the Department will support congressional legislation to embody protections in law.” This op-ed underscores the need for legislation that would enshrine press freedom going forward.
Speaking of surveillance of journalists, we hosted a panel last week entitled “Keeping the Free Press Free” that examined the status of the free press in the U.S. focused on surveillance of journalists and their sources. Watch it here. The discussion could not have been more timely, given the DOJ policy and disclosures around the Pegasus Project, where a private company built malware that apparently is used by countries to spy on the press, political leaders, and dissidents under the guise of going after criminals. Panelists urged Congress and leaders worldwide to support strong encryption and whistleblower protection laws to protect press freedom, privacy, and civil liberties.
The White House released its new policy concerning its contracts with agencies and departments.
AG Garland’s response is pending on Rep. Brooks’ request to certify that his actions leading up to Jan. 6th were standard fare for a government employee and not, in fact, direct incitement of the insurrection, as Rep. Swalwell alleged. (Track the litigation here.) The Justice Department will need to disclose its stance by July 27th. This is very concerning to us. On one hand, Rep. Brooks appears to have engaged in incitement of an insurrection. On the other, we would not want to weaken speech or debate clause protections. Former senior counsel to the House of Representatives Michael Stern has an excellent analysis of the contours of the Brooks litigation.There may be a way to square the circle, via the 14th amendment, but that provision has not been used in a long time.
Federal grand jury material could be withheld for 50 years if the Justice Department succeeds in its attempt to modify Rule 6(e). The Justice Department is also pushing to amend a rule to allow prosecutors to obtain gag orders preventing witnesses from sharing accounts of grand jury investigations.
Rep. Newman agreed to settle a lawsuit concerning allegations that she bribed her primary opponent, Iyman Chehade, into not running against her in the 2020 Illinois 3rd district congressional race. The lawsuit itself was dismissed, but it’s possible that Newman could face OCE or House Ethics Committee inquiries into violations of federal law or House rules.
The CAO terminated the House’s contract with iConstituent, the tech vendor that provides external constituent outreach services to House offices and which has been the target of multiple cybersecurity attacks over the years — last month’s incident being the most recent. The contract will expire at the end of the year, and in the meantime House offices will need to transition to alternative vendors.
HOUSE LEG BRANCH APPROPS
Thirty-seven amendments have been submitted to amend the House Legislative Branch Appropriations bill on the House floor and are pending House Rules Committee consideration. It’s always interesting to see the scope of these amendments. A few are worth your attention.
Rep. Sara Jacobs has an amendment (#31) described as “set[ting] aside funds within the Sergeant of Arms account to administer TS/SCI clearances for one personal office staffer of each member serving on a committee related to national security.” This is an excellent idea, and not just because POGO’s Mandy Smithberger and I submitted testimony urging the House to ensure that every member who serves on a key committee has a personal office staffer with a high enough clearance to support them as they handle materials the executive branch deems classified. A brief history of congressional staff clearances, which we wrote, explains that hundreds of thousands of people hold TS/SCI clearances; in the Senate, 284 people had TS/SCI clearances as of April 2019, meaning that 37 senators have staff who are able to access these materials. We do not know the numbers in the House, but the House does not allow personal office staffers to obtain these TS/SCI clearances as a consequence of a deal Speaker Tip O’Neill struck with the CIA in the 1970s that you simply have to read: it is all about special treatment for leadership. With the deflation of the value of lower level clearances and the proliferation of high level clearances throughout the Executive branch and to our overseas partners, the old wink-and-nod simply doesn’t make sense and members need support to do their jobs.
Rep. Garret Graves amendment (#19) is intriguing: it is described as “Establishes an increased maximum rate of pay for professional staff of personal, committee, and leadership offices of the House of Representatives that may be as great as an annual rate that is equal to 92 percent of the salary of a judge of the district court of the US.” A federal district judge earns $218k annually, so this would set the maximum pay rate at $200k, which would be a welcome and equitable adjustment to ensure Congress can retain highly skilled staff.
Rep. Holmes Norton would prohibit a permanent above-ground fence (#1) and prohibit the Capitol Police from prohibiting scooters on the Capitol grounds (#2), both of which would be welcome improvements.
Amendments 10 and 16, by Rep. Takano, Foster, Beyer, and Casten, appear to provide an opportunity to once again make the point that Congress should restore the previously defunded Office of Technology Assessment. We have a white paper on that.
Rep. Raskin has an interesting amendment (#28) that would direct the Sergeant at Arms to look at the House switchboard and phone system to identify its “technical limitations and security risks.” I’m guessing here, but the Senate upgraded its telephone system to provide end-to-end encryption, and some House offices are encrypted, which would make it harder to spy on their communications, but this does not apply legislative branch-wide. Perhaps this measure, from a member of the Committee on House Administration, is intended to secure communications between the chambers? We hope they’ll look at securing communications between the chambers and GAO, CRS, and CBO as well.
Rep. Langevin, who recently testified on accessibility measures, introduced an amendment (#5) to accelerate making the Capitol Campus more accessible by spending $3.5 million to remove accessibility barriers.
Other measures. There are some fairly unwise amendments as well. Several members want to prohibit the requirement to wear masks or to impose vaccine passports or to stop fines for failing to comply with the security screenings. A particularly odious effort would stop the removal of the confederate statues and there are other equally unpalatable proposals. With the Rules Committee in essence the Speaker’s committee, it will be interesting to see which amendments, if any, are ruled in order.
It seems like we’ve been talking forever about appropriations, so I thought you’d like to see the first Congressional Appropriations bill. We used uslaw.link, a handy tool we originally built with Josh Tauberer, Joe Carmer, and a handful of volunteers that has since been extended, to look up 1 Stat. 95, enacted in 1789. In fact, you can look up every enacted law and a bunch of other neat stuff as well. Here it is — only 1 section, 13 lines long.
ODDS & ENDS
Former Rep. Joe Crowley just became a lobbyist at Squire Patton Boggs, where he joined as a senior policy adviser in 2019.
How to ask for a raise in Congress is the topic of the latest video from Melissa Dargan, who has been making videos on how to navigate being a Hill staffer. Part 2 is coming soon.
Veteran journalist Paul Cheung has been appointed to lead the Center for Public Integrity to advance journalism covering US inequality.
This year’s Levin Center Oversight Fellows, who will research and investigate legislative oversight, include Kenneth Lowande, Claire Leavitt, and Devin Judge-Lord.
TechCongress is hiring a new Senior Manager for Operations and Finance. Apply by August 2nd.
House Select Committee to Investigate the January 6th Attack will hold a hearing on “The Law Enforcement Experience on January 6th” at 9:30 am ET.
• House Rules Committee will meet to consider three appropriations bills, including Legislative Branch; Department of State, Foreign Operations, and Related Programs; and Commerce, Justice, Science, and Related Agencies at 2:00 pm ET.
Down the road…
• The 30th annual LegisTech for Democracy Conference will be held online on September 13th and 14th — save the date now.
• The International Conference on Legislation and Law Reform is holding its 2021 International Conference from October 21st to 22nd. Deadline to register is October 13th. RSVP here.
• The Law Library of Congress is hosting two webinars next month. The first, on August 12th at 11am ET, is on federal statutes; the second, on August 26th at 2pm ET, will provide a basic overview of using the congress.gov search features.