Forecast for August 9, 2021

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Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Subscribe here. A preview of coming distractions: if Congress takes a break, we may take one, too. Wouldn’t that be nice.

THE TOP LINE

Members of Congress can force policy change without moving a bill. Rep. Bush made that clear last week in a successful effort to extend the eviction moratorium. There were a lot of unusual circumstances, and we are highlighting her efforts only to make the point that moving the nature of the debate — which can’t be measured by counting up co-sponsored bills — can be just as meaningful as getting a bill enacted. In this case, she prompted Pres. Biden to act, which also highlights how much responsibility Congress has ceded to the Executive branch.

It’s critical to avoid the trap that a powerful Congress necessitates in-person Congress. In last week’s Slow Build newsletter, Nancy Scola connects Rep. Bush’s success with an argument around Congress operating in-person. We note (as Scola does) that the House was out. In our opinion, what helped Rep. Bush was that the Senate was in — and not much else was happening — which prompted reporters stuck on the Hill to tell other stories, i.e. Bush’s. In other words, it was the ability to get attention. In a fully remote House, Rep. Bush would have had legislative options available to raise the matter on the floor instead of having to sleep upright on the Capitol steps.

America unmasked too quickly — or failed to mask at all — that much is clear. The House will extend its emergency proxy voting stop-gap measures through the fall and potentially through the end of the year. 20 House Members declared “Congress should be considering a vaccine requirement for Members and staff of the U.S. Capitol complex or, at minimum, twice per week testing for those who are unable to verify positive vaccination status,” an issue which Speaker Pelosi dodged. We are unsure how a mandate could be enforced against Members, but it is a reasonable step; there’s an open question about whether the Senate would agree to extending a requirement to support agencies. Universal vaccination is the sine qua non of in-person deliberations — alongside mandatory mask wearing — while COVID infections increase, and may be insufficient should new highly-transmissible variants be vaccine resistant. Our own Taylor Swift, who has testified before Congress on its continuity, has some tough-love advise for the Senate.

House Admin’s hearing on renovating the Cannon House Office Building, which we detail below, prompts us to consider: What does a modern congressional office building look like? The changing nature of work demands accessible, safe facilities, ones that can accomodate our hybrid remote/IRL activities.

The debt ceiling still loomsUgh.

The Library of Congress will host a public forum on Congress.gov on September 2nd from 1 to 4pm ET. You can read what we wrote about the last one here — come with your recommendations on what you’d like to see them take on.

COVID + CONGRESS

Sen. Graham tested positive for COVID early last week — despite being fully vaccinated — following an event he attended with other senators at Sen. Machin’s houseboat, “Almost Heaven.”

Rep. Sharice Davids tested positive, too, in another “breakthrough” case on the Hill.

Rep. Letlow told the devastating story of losing her husband to COVID and urges those in her state, Louisiana, to get vaccinated now.

Does anyone have reliable numbers on how many staff have been vaccinated and how many have not? Or how many staff have fallen ill? Is this being tracked?

TRUMP + INSURRECTION

The select committee on Jan. 6th may now be responsible for conducting the House-led insurrection investigation, as the committee has taken on several scheduled interviews with former Justice Department aides regarding Trump’s final days in office. Meanwhile, former acting A.G. Jeffrey Rosen provided closed-door testimony to the Senate Judiciary Committee about ex-Pres. Trump’s efforts to subvert the election, including Trump’s use of a agency cats’ paw to push the DOJ into making false statements about the election.

Four officers who responded to Jan. 6th have now died by suicide: MPD Officer Gunther Hashida, MPD Officer Kyle DeFreytag, MPD Officer Jeffrey Smith, and USCP Officer Howard Liebengood. Smith’s wife, Erin, wrote yesterday about how DC won’t recognize his death as in the line-of-duty. Many people are struggling with the trauma of the Trump insurrection and the callous treatment and gaslighting of staff in its aftermath. You don’t have to carry it alone. Capitol Strong has a list of resources you can use. Please use them.

How powerful conservative groups amplify Trump’s attacks on democracy is the subject of this powerful New Yorker feature that identifies who is funding and exploiting the big lie.

There’s a lot of mistaken reporting concerning the number of employees of the Capitol Police, its funding levels, etc. CRS has updated its primer on this topic; we also have a primer.

APPROPRIATIONS

Chair DeLauro was the subject of a POLITICO article that simultaneously praised her for her efficiency in managing the appropriations process and wrangling all her colleagues while also describing her as “eccentric.” The basis for the claim of eccentricity: “brazen rhetoric, pattern-mixing attire and cropped purple-streaked hair.” Um. I’m not a fair judge as I was an intern for Rep. DeLauro 20 years ago and I found her to be warm, thoughtful, capable, inclusive, and committed to her work, and it was not a surprise that she is an effective chair of the appropriations committee.

An update on earmarks. For the FY2022 spending bill, 345 members of Congress put in 5,402 requests for a total of $22 billion in funding, according to an AEI analysis. New rules this year limited requests to 10 per member and capped project funding to 1% of discretionary spending (which is the historical norm). Data shows that over 45% of project requests were made to the Transportation and HUD subcommittee, which is noteworthy because prior to the moratorium, the dominant set of requests were for defense and military construction. While there was substantially more earmark participation among Democrats, the total amount of funding requested was equally split between parties — which could be viewed as odd given Democratic domination of Congress and the unwillingness of Republicans to vote for Appropriations bills.

More on restoring the power of the purse. The House FSGG Appropriations bill and report included a number of provisions that restore Congress’s power of the purse. Demand Progress signed onto a bipartisan coalition letter led by Protect Democracy and sent to Senate appropriators to urge lawmakers to keep these provisions included in the final bill.

Committee chairmen are made weaker when leaders bypass traditional committee procedures and instead handpick who works out big deals. While intent to command authority for the sake of expediting legislations, BGOV’s Nancy Ognanovich writes, these leaders erode the oversight capacities of those designated to lead committees. Does it matter that this process is opaque to the public and to most members of Congress?

TRANSPARENCY + ACCOUNTABILITY + ETHICS

The September 11th Transparency Act was introduced last week in a briefing by Sens. Menendez, Blumenthal, Cornyn, and Grassley. The bill calls upon the Biden administration, the FBI, and the Justice Department to declassify and release the Saudi files, which the government has long resisted publicly disclosing through invoking a “state secrets” privilege. There is a long history of trying to fix the privilege, which was recognized by the Supreme Court in 1953 on the basis of a lie to cover up government negligence. For more see this Senate Judiciary Committee hearing transcript.

This op-ed co-written by the former republican Chair of the Judiciary Committee Bob Goodlatte urges AG Merrick Garland to go beyond mere policy and implement a permanent departmental rule banning the seizure of reporters’ materials. They also argue for the passage of a federal press shield law and encourage Congress to support the PRESS act.

Three Dem lawmakers fail to disclose stock trades. Reps. Trahan, Wasserman Schultz, and Castor each may have violated federal transparency law by improperly disclosing financial trades.

Best practices for agencies to process video recordings is the subject of a recent paper published by the Video Redaction Working Group of the Chief FOIA Officers Council’s Technology Committee. The paper outlines strategies agencies can use when faced with requests for government video records — including body camera footage, footage of facilities, security training, and video conference recordings. FWIW, we’d encourage the Senate to start publishing video of all its committee markups — audio is not sufficient.

Federal spending questions have long gone unanswered, well before government spending levels increased during the pandemic. This new report by the Project on Government Oversight targets the root of the issue: large quantities of missing, useless, or problematic data. It highlights three main options that agencies can use to ensure more rigorous accountability for federal spending — 1) fixing current reporting systems; 2) filling in reporting gaps; and 3) fashioning stronger systems for tracking new data points.

The IG Independence and Empowerment Act is the subject of a new CRS report. Speaking of Inspectors General, why are 14 IG posts still vacant?

THE CANNON BUILDING

Oversight of the renovations to the Cannon House Office Building was the subject of a House Administration Committee hearing last Thursday. The committee heard from AOC J. Brett Blanton (written testimony), AOC’s IG Christopher P. Failla (written testimony), and GAO’s Infrastructure Operations Director Terrell G. Dorn (written testimony) about the Cannon building renovation project, which completed phase two of five over the past year but has seen a slew of delays and cost overruns. The last hearing on this renovation project was in October 2019, before AOC Blanton was head of the agency, and is summarized in this Roll Call article.

First, for some context, the Cannon House Building was built in 1908, making it the oldest House office building. Prior to its construction, most members of the House used desks in the House Chamber in place of individual offices; some rented space elsewhere. By 1913, a growing House saw increased demand for space and the building was expanded, followed by a more substantial renovation in 1924. Since then, the building had been periodically modernized and updated until the late 60s.

Rising costs. The Cannon House Building is home to more than 140 personal offices, several committee hearing rooms, the historic Cannon Caucus Room, the Rotunda as well as space for congressional support services. For decades, the building has had a number of environmental, health, safety, and operational problems. The renovation project began in 2014 and was expected to take 10 years — two five-year phases (numbered 0-4) — with a proposed budget of $752.7 million. While phases zero through two have been completed, the expected completion cost has already increased $137.4 million to $890.1 million.

Progress. Blanton reassured the committee that previous recommendations from previous phases were incorporated into phase two, including greater transparency and communication with stakeholders. Blanton said the AOC continues to hold routine meetings with all stakeholders including oversight staff — which were instrumental for the agency to finish phase 2. IG Failla supported Blanton’s claim and said the AOC has improved in communication and responsiveness for this project.

Setbacks. Over the last year, the project has been beset with delays and problems. In the first half of 2020, the pandemic caused substantial delays in the project due to 42 AOC employees + 35 contractors testing positive for COVID. Today, Blanton said the AOC hasn’t had a positive COVID case since March 2021, but pandemic expenses have cost roughly $6 million so far. Blanton also mentioned that the January 6 insurrection caused the AOC to halt its renovations for 44 days while the National Guard was securing the campus. Blanton indicated that this incurred a cost of roughly $2 million.

Legal fees for hearing prep? During the Q&A involving reimbursements, AOC IG Failla stated that they found 34 invoices that they felt were not reimbursable including invoices for flowers, alcohol, and travel. Failla also mentioned a $234,000 invoice for legal fees that was charged to a law firm who prepared AOC employees for CHA hearing prep — a number that raised eyebrows from lawmakers. Blanton said that while the invoice was before his time, it is quite common for agencies to bring in law firms to prep for hearing, but thought that the amount was excessive.

Concerns over phase four. Blanton also mentioned his major concerns about phase four, mainly due to the rising cost of goods combined with ongoing labor shortages. Blanton said the cost of lumber has doubled, fuel is up 80 percent, steel is up 70 percent, and copper is the highest price in 10 years. He also said labor shortages have been apparent for a long time, and mentioned the agency used “every single plasterer in the mid-Atlantic region to finish phase two.” GAO Infrastructure Director Dorn echoed these cost and labor concerns, and mentioned that the AOC may want to reduce scope to help keep costs down, but it is up to Congress to set that expectation.

ODDS & ENDS

The Executive Director of the Office of Congressional Workplace Rights, Susan Tsui Grundmann, was nominated by President Biden as a Member of the Federal Labor Relations Authority.

OpenCorporates appointed new CEO Sarah Arana-Morton, who will help scale up the operation in its mission to render company data transparent and publicly available.

Former Sen. Michael Enzi, who passed away late last month, was a critical piece of the effort to modernize Senate operations, launching an endeavor to digitize and streamline the antiquated system soon after he joined the Senate in 1997.

The National Archives and Records Administration is soliciting requests for comments on their draft strategic plan for 2022–2026. You can find the strategic plan document here and instructions for providing feedback here. You can also see what’s changed by comparing it to the 2018–2022 version, currently in use.

Advice for novice congressional staffers is the subject of the latest Understanding Congress podcast episode hosted by Mark Strand, coauthor of Surviving Inside Congress.

How do agencies submit reports to Congress? CRS has a new report on the topic. It’s often hard to find these reports — CRS has another report on strategies to do so — which is why we are hopeful that legislation such as the Access to Congressionally Mandated Reports Act, which would solve some of these problems, will finally make it into law.

We are tracking reports requested by appropriators, the rules committee, and the SCOMC here.

The Civic Design Conference, which will take place virtually December 8th–10th, is soliciting presentation ideas. Submit yours by August 12th.

America250, the U.S. Semiquincentennial Commission’s 250th anniversary commemoration, announced that it will collaborate with 20 federal agencies to develop commemoration activities for 2026. IIRC, the bicentennial was the lever used to encourage Chief Justice Warren Burger to step down and be replaced with Rehnquist.

All this talk about Joe Manchin’s houseboat begs the question: where, and how, do members of Congress live? And secondly: if “Almost Heaven” is where senators go to get COVID, then what’s the real place like?

The Office Of The Senate Legislative Counsel got a shout-out from Sen. Schumer for their work on the infrastructure bill.

CALENDAR

Down the road…

• The 30th annual LegisTech for Democracy Conference will be held online on September 13th and 14th — save the date now.

• The Law Library of Congress is hosting two webinars later in the 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.

• The International Conference on Legislation and Law Reform has been postponed because of the spread of the Delta variant until next year.