Forecast for August 23, 2021

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Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Subscribe here.

THE TOP LINE

They’re back? The House of Representatives returns for two days to pass a Budget resolution, a voting rights bill, and 12 suspension bills (including, we hope, the Congressional Budget Justification Transparency Act.) The Senate does not return until September 13th. A classified briefing is set for House Members on Tuesday regarding Afghanistan. Except for a House Rules Committee hearing, we don’t see any meetings scheduled.

Don’t forget: The Library of Congress has a virtual public forum (which means you!) on its digital services set for Sept. 2nd. This is an opportunity to ask for new tools, features, and information from the Library.

OVERSIGHT OF CONGRESS

Public access to congressional records is the focus of two lawsuits filed by National Security Counselors on behalf of journalist Shawn Musgrave. The litigation is based upon the legal doctrine known as “a common law right of access” — that individuals have a right to inspect and copy public documents. We have long been frustrated by Congress’s non-disclosure of records it has required itself to make publicly available, although this litigation focuses on records that likely should be publicly available but may not be required to be available. For context, NARA’s FOIA Advisory Committee recently recommended extending FOIA or establishing a FOIA-like process to elements of the Legislative and Judicial branches. A few elements of the Legislative branch already have FOIA-like processes.

The two cases are Musgrave v. Manger and Musgrave v. Warner. You can read the court orders in the cases not because the federal courts make them available to you for free — they don’t and the courts are resisting open access efforts — but because a nonprofit organization created an online tool called RECAP (PACER spelled backwards) to crowdsource public access. But I digress.

Musgrave v. Manger contains four requests in one. The first request concerns U.S. Capitol Police surveillance footage from January 6th. The second request focuses on transparency at the U.S. Capitol Police, requesting records concerning their implementation of Appropriator-requested transparency measures to (a) create a FOIA-like process for the public to request USCP records, and (b) review and identify USCP Inspector General reports that could be made publicly available. The third request goes to the House and Senate Sergeants at Arms and requests the release of their Security Policy Manuals, which governs the handling of national security information. The final request is for a House SAA-prepared report concerning the levels of clearances held by Congressional staff. (An analogous document is released by the IC.)

• According to the pleadings: (1) The Capitol Police are claiming that surveillance footage from January 6th used in support of criminal prosecutions are not public records. (2a) The Capitol Police appear to be unaware of the Appropriator-requested FOIA-like transparency process they are requested to implement and (2b) the Capitol Police IG did not respond to the request for its analysis of reports it could release. (3) The House’s General Counsel has (erroneously, in my view) asserted that its Security Manual could only be released by a majority vote of the full House and that the Manual is not a record; the Senate Office of Legal Counsel says the common law does not apply to Senate records and, even if it did, “significant national security interests” implicated by the release would outweigh disclosure. (4) The House’s General Counsel asserts the request should be made to the Appropriations Committee — which seems in tension with their assertion concerning their Security Manual — and that the report is protected by the Speech or Debate Clause of the Constitution.

Musgrave v. Warner concerns the non-disclosure of the Senate Intelligence Committee’s torture report, which is 6,700 pages long and evaluates in significant detail the CIA’s “detention and interrogation” program, including many “inaccuracies” of claims made by the CIA and the agency’s efforts to mislead the public and the committee. Naturally, the Intelligence Community fought against the release of the damning document and only the Executive Summary was released in 2014 after an arduous declassification process that Senator Feinstein said included the CIA spying on committee staff. The report eventually will become subject to a declassification request in 2029 as part of President Obama’s records after significant shenanigans by Sen. Burr and the Intelligence Community that include Executive branch officials refusing to read the report and destroying the copies they held. The purpose of the report was for the Executive branch to learn lessons from its misbehavior, an effort that continues to be thwarted. The litigation asks for a copy of the report.

What does all this mean? This litigation appears to have two clever purposes. First, it is a good probe of whether courts would recognize a common law right of access to Legislative branch records, what such a right might encompass, and how it would work. Second, all of these records should be publicly available (with redactions in some instances) and this could be a good way to prod the House, Senate, and Capitol Police to address long standing deficiencies. In my view, the further we move from legislative deliberations — the work of member offices and committees — the stronger the arguments become in favor of disclosure of Congressional (and Judicial) records. There’s no good reason to treat the Capitol Police differently from the FBI or Secret Service. Will the courts get involved? IDK. Is it a good thing? IDK, but Congress could preempt this litigation by releasing the records and putting in place reasonable disclosure policies that would deprive journalists of such favorable factual circumstances.

CONGRESSIONAL OVERSIGHT

Intelligence Community whistleblowers will become able to talk to (some) members of Congress, a provision that Intel hawks thought was the law but was undermined in practice by the Trump administration, should SSCI’s Intel Authorization bill become law. As people may remember, the DNI kept a whistleblower complaint from Congress by asserting it was not ‘urgent’ and used the Justice Department to buttress those claims. The new process would create ‘security officers’ at the agencies, which would assist or delay the process by up to 30 days, at which point a whistleblower could contact the Intel Committees directly. Does this seem unnecessarily complex to you?

Congressional technology policymaking could improve because of the increase in the House’s staff pay ceiling — especially when accompanied by increases in overall funding for personal offices and committees.

CONTINUITY OF CONGRESS

A political fanatic spouting anti-government views threatened to blow up Congress while parked on the sidewalk outside of the Library of Congress. This could be an example of stochastic terrorism, where “the public demonization of a person or group result[s] in the incitement of a violent act, which is statistically probable but whose specifics cannot be predicted.” Why? Look to Rep. Mo Brooks, who was quoted in the Huddle: saying “that he understood citizens’ ‘anger directed at dictatorial Socialism’ as a pro-Trump North Carolina man was threatening Capitol Hill with an alleged bomb in his pickup truck.” It’s too soon to know whether Capitol Police or the Intel Community should have anticipated this particular attack, but we were impressed that the U.S. Capitol Police Chief held a press conference and answered press questions. This is a low bar, but given the USCP leadership’s history of secrecy and unaccountability, it is likely one they would have failed a few months ago. Please, please, please: this is not an excuse to build a fortress Congress, as some want, even while it does suggest that we should accelerate efforts to strengthen its infrastructure and transform the Capitol Police into a security force.

Three senators announced they have COVID on the same day: Sens. King, Hickenlooper, and Wicker. The cases, they say, are mild. Were the Senate meeting in person to transact business, just one member being quarantined is enough to shift the balance of power; three absent Senators on the floor or in a committee can dramatically alter whether legislation can move. The ability to deliberate remotely would strengthen the Senate’s resilience in the face of emergencies — and there’s a bipartisan proposal to do that, but alas. Rep. Troy Nehls has tested positive for COVID as well and is symptomatic.

Proxy voting in the House was extended by Speaker Pelosi until October 1, 2021, as she has many times before.

Former Rep. Paul Mitchell, who left the Republican party over ex.-Pres Trump’s election lies, has died. We didn’t know him, but we did see his thoughtful comments on continuity of congress and remote deliberations from March 2020. He argued that members should be able to fully participate remotely, not just vote, and he was right.

ACADEMIA

The demand for expert information in Congress is the topic of a new academic article written by political scientists E.J. Fagan and Zachary McGee. They analyzed all the CRS reports at EveryCRSReport.com from 1997-2017 (thank you!) to evaluate “the extent to which legislators consult expertise in order to address salient problems.” (They used our database and not Congress’s because it is a “better database, with a comprehensive list of all reports, revision history, and metadata.”) Their findings: there’s a consistent short-term relationship between demand for expert information and issues that the public lists as the most important problem facing the country. While the result seems self-evident, apparently this is a contested issue within political science.

The Congressional Budget Office, and why it has persisted virtually unchanged as a gatekeeper for federal legislation, is the focus of Marquette University’s Philip Rocco new academic article. He offers three reasons: (1) the money committees use CBO to prop up their authority; (2) its utility for deficit hawks; and (3) members have learned how to play the agency to game the scoring process. The article provides a useful overview of the growth and evolution of CBO as well as conversative and progressive proposals for reform.

A note on academic articles. Both articles are beyond paywalls; if you work for Congress, ask the Library for a copy. If you are an academic and you have an interesting article on legislatures/parliaments, please send it our way.

WAR POWERS

The era of American assertions of its control over Afghanistan last week came to an end for a war that outlasted the objectives described at the start. We have failed to remember our history. Take it from David Halberstam’s book The Best and the Brightest:

“The capacity to control a policy involving the military is greatest before the policy is initiated, but once started, no matter how small the initial step, a policy has a life and a thrust of its own, it is an organic thing…. There is always the drive for more, more force, more tactics, wider latitudes for force.”

This is one reason why Congress must reassert control over military adventures, which it attempted to do in 1973 with the War Powers Resolution, enacted over the veto of President Nixon. This can be accomplished in part by curtailing or ending existing Authorizations for the Use of Military Force, which are decades old, and ensuring any new AUMFs are time limited and require Congressional action to extend them. Presidents have bent the language of these resolutions far beyond Congress’s intent, and the best way to balance the inexorable military logic of increasing involvement is to put a strong counterweight on the other side.

The Intelligence Community’s inability to make clear to the president what it now says were its expectations regarding rapidity of the government’s collapse is troubling. See, for example: “As late as a week before Kabul’s fall, the overall intelligence analysis was that a Taliban takeover was not yet inevitable, the official said; “American intelligence assessments didn’t foresee such a rapid collapse of the Afghan military, and the U.S. now has a limited ability to aid allies stuck in Kabul, the Pentagon’s top leaders said.” Halberstam remains relevant, especially on the misleading tales told back home about progress in Vietnam, which was mirrored in the Washington Post’s series the Afghanistan Papers: “ A confidential trove of government documents obtained by The Washington Post reveals that senior U.S. officials failed to tell the truth about the war in Afghanistan throughout the 18-year campaign, making rosy pronouncements they knew to be false and hiding unmistakable evidence the war had become unwinnable.”

We are less concerned about Pres. Biden and more concerned about Congress. Have HPSCI and SSCI made sure the post-9/11 reforms around intelligence community coordination worked and the government received accurate and timely intelligence information? Has centralizing the intelligence function in these committees accomplished its purpose or has it thwarted oversight by the Legislative branch? There’s a member classified briefing set for Tuesday on the situation in Afghanistan, but members rely heavily on staff to help them conduct oversight, which raises a whole series of questions about why each member of Congress is still not eligible to allow one personal office staffer to apply for a TS/SCI clearance.

TRANSPARENCY

The prepublication review process, which former IC employees say is “overly expansive and untimely” and limits their speech rights, was upheld as constitutional by the Fourth Circuit Court of Appeals. We are sympathetic with the concerns raised by the plaintiffs and suggest policy reforms are appropriate.

Geofence warrants. One of the questions I’ve had is how investigators have been able to identify who was on Capitol Hill during the Trump insurrection. This may be one piece of the answer: Google released a report on the issuance of Geofence warrants “that order Google to identify users, based on their Location History information, who may have been in a given area within a certain timeframe.” We still don’t know whether or how they are sorting out Members of Congress, staff, and the press from this dragnet information request. According to the report, 521 federal warrants were issued in 2020 (up from 41 in 2018) and 17 warrants were issued for the District of Columbia (up from 0 in 2018).

ODDS AND ENDS

The Fall 2021 Intern Orientation (aka “Intern-a-Palooza!”) will be held virtually September 9-10th. The orientation is open to all Congressional interns for the Fall 2021 class — including district, DC, and virtual interns — and to prospective Congressional interns who are considering applying in the future. Register at internproject.org/events/internapalooza to reserve spots for Fall interns. Our team will be helping to host and will take part in several information sessions.

The Cornell Legal Information Institute issued its annual report on its efforts to make Americans laws and regulations available online to everyone.

The Democracy Award winners — an annual recognition made by the Congressional Management Foundation of Members of Congress who are leading their fields in the areas of constituent service, innovation & modernization, workplace environment, transparency & accountability, and lifetime achievement — were announced recently. Congratulations to the winners. A special congratulations to the non-partisan staff in the House and Senate.

The National Archives held a public forum on its draft strategic plan and answered questions from the public as part of its planning process.

The Capitol Police Officer who shot insurrectionist Ashli Babbitt was formally exonerated after an internal investigation according to NBC News, which obtained an internal USCP report that otherwise is not publicly available. The DOJ had previously announced it would not bring criminal charges. Our sympathies are with the officer, who was placed in a difficult situation and is now the subject of ongoing attacks by Trump insurrections and fellow travelers.

The AOC IG found the agency’s policies allowed employees to “double dip” by working at an outside employer while on administrative leave when employees fraudulently claimed they could not work. “The OIG feels strongly the employee’s actions are tantamount to payroll fraud whereby an employee has claimed a need that prevents them from performing their AOC duties and in turn receives compensation under FFRCA administrative leave.” The case will be presented to the US Attorney for potential prosecution.

Improving Congressional hearings that focus on science and technology has been a focus of the Federation of American Scientists. They fleshed out a new process to get key faculty involved in supporting members in asking better questions.