Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Subscribe here.
THE TOP LINE
The fence is (almost certainly) coming back around the Capitol building and Supreme Court in anticipation of an event featuring Trump insurrectionists and their allies. Representatives of white supremacist groups who were promoting the “rally,” such as the Proud Boys and the Oath Keepers, now say their membership will not show up because “it’s a government trap,” but we shall see.
Keeping Congress safe includes maintaining a safe working environment. Pres. Biden is requiring COVID shots for Executive branch employees. Will the House and Senate do the same? They should, especially as some legislators and staff are a public health danger: Rep. Marjorie Taylor Greene will be fined for failing to wear a mask on the House floor — this is the third fine for Rep. Greene — and half of House Republicans in July would not say whether they’ve gotten the shot. I don’t know whether Congress can require legislators to get the COVID shot, but likely it could impose such a requirement on staff.
Toxic congressional bosses, whether literal or metaphorical, often leave staff with little recourse when things predictably go wrong. Why Congress does not have a HR department is the subject of a Business Insider article that explains that, for those at the receiving end of bad behavior, “the odds [are] stacked in favor of members and superiors and against rank-and-file employees.” (Unions are one way employees traditionally respond to this kind of environment, but that requires the House or Senate to act.)
Staff want to leave Capitol Hill and who can blame them? Addressing quality of life issues is essential and the starting point has to be pay. Speaker Pelosi increased the salary cap for top aides last month, but retaining staffers — especially in the face of the private sector’s strategic head-hunting — also means increasing salaries for everyone. The House passed a significant restoration of funding for the Legislative branch at the behest of Reps. Hoyer, AOC, and half the Democratic caucus, but it cannot go into effect without the Senate’s assent.
Pay alone is not enough. A workable HR department, student loan repayment help, support for continuing education, assistance with child care, a safe workplace, flexible leave policies, and much more is necessary in a workplace where pay will never be competitive with the private sector. Telework policies also make sense, as does remote work … including for members who because of emergencies or other exigent circumstances cannot or should not attend in person. Of course, House Minority Leader McCarthy is petitioning the Supreme Court to end proxy voting after losing in lower courts. We prefer truly remote proceedings to proxy voting for a number of reasons, but we cannot agree with the Leader’s logic. Should Rep. Morelle, who announced on Sunday that he has COVID, be forced to choose between returning to the chamber and infecting his colleagues and forgoing the opportunity to cast a vote on behalf of his constituents?
FBI intelligence reports first warned of potentially violent rallies affiliated with #StoptheSteal back in early November 2020; hundreds of law enforcement officers were prepped for possible violence on January 6th.
The USCP provided Buzzfeed documents that suggest the Capitol Police did not do their due diligence to investigate who was requesting the Jan. 6th permits. “The chief of the Capitol Police and its top intelligence officer personally approved permits for six demonstrations to be held on Jan. 6, 2021, despite signs that one of the applications was filed for an organization that didn’t exist and that five of them were a proxy for a group staging large, violent protests across the country.” The top intelligence offer, Ms. Pittman, served as the acting Police Chief and still is among the leadership. The disposition of the lawsuit is unclear to us — Buzzfeed said “the Capitol Police opted not to fight the case” — which means the question of a common law right of access to Legislative branch documents remains an open question being litigated in Musgrave v. Manger, Musgrave v. Warner, and Judicial Watch v. USCP.
Capitol Police misconduct by officers is the subject of a koan-like USCP press release issued on Saturday. The USCP’s Office of Professional Responsibility launched 38 investigations post-Jan. 6th, although we do not know who asked for the investigations. We suspect the complaints were made by outside entities to the USCP and not started at the behest of the USCP, but we can’t tell. The USCP was unable to determine which officers were the subject of 18 complaints; the US Attorney’s office “did not find sufficient evidence that any of the officers committed a crime,” although at least six officers are being disciplined. We’ve dug deep previously into OPR investigation data over the last decade, although if you really want to come to grips with OPR and the culture at the USCP, Chris Marquette’s September 2020 article is a must-read, which used court filings to shed light on USCP behavior. Policing experts quoted in the article all call for more transparency — “I don’t think it should be a question that the public have access to their records of misconduct,” — but the USCP press release flatly asserts “USCP internal investigations, including any recommended disciplinary actions, as well as personnel matters are not public information.”
We live in the post 9/11 era and people sometimes ask who could have predicted how things would turn out. Ladies and gentlemen, I give you Hunter S. Thompson.
Unity? This past week many people have recalled the days and weeks after 9/11 as a period of national unity. What was remarkable at that time and in retrospect is how many terrible choices we assented to when our grief and horror was sharpened for political ends. In the future, Congress must be powerful enough and secure enough and, if we are lucky, wise enough to resist a jingoistic stampede. There is a distinction between dismissing bad faith arguments trotted out by team red or team blue (or team special interests, a.k.a. team money) and dismissing debate by thoughtful people acting in good faith who don’t want to be shoved into something half-baked or pre-cooked. We already will be spending the rest of our lives mitigating the mistakes made over the last 20 years, which have cost hundreds of thousands of lives, trillions of dollars, undermined democracy at home and around the world, and resulted in missed opportunities to address problems that have grown much worse during this period of neglect.
The Protect Our Democracy Act is one starting point to rein in executive branch overreach. The National Security Powers Act is another. It was never wise to assume that the President would be the voice of reason. Balancing powers among the branches is a more sensible approach and Congress must act to swing the pendulum back in its direction. Even with all of its weaknesses and limitations, you never want to have a single person as a possible point of failure.
On that point, we must take at least a moment to remember the brave crew and passengers of Flight 93. That plane was likely headed straight to the U.S. Capitol or the White House and despite the billions poured into defending the US, likely nothing could have been done to stop it from crashing into the citadel of democracy, killing many members, staff, journalists, visitors, and possibly me. The House was in session at 9:00 a.m. and the Senate cancelled its session right before it was about to start. Then, as now, there is no viable plan for continuity in the House in the event of mass casualties and the Senate would have been irrevocably altered had the plane struck. Perhaps the Executive would have decided not to wait for the reconstitution of Congress and taken power into its own hands during the aftermath. The bravery of those on Flight 93 bought us 20 years — until January 6 — to address the continuity of Congress. As former Rep. Brian Baird warned back in 2009, “[W]e still lack a solution that is either constitutionally valid or functional in practice. That fact suggests a failure to uphold our sacred oath of office.”
“Threats to the Homeland: Evaluating the Landscape 20 Years After 9/11,” is the topic of a recently scheduled HSGAC hearing. Immediately after 9/11, I was interning for GAC (before it got the HS) and I watched how it grappled with what had happened and what to do. It will be interesting to see how broadly the committee construes threats.
ETHICS AND POLITICAL SCIENCE
More than $135,700 was spent on congressional travel by special interest groups during August over 14 trips. One trip, to Ukraine, cost $47,000 and paid for 3 members, Reps. Moore (AL), Nehls (TX), and Tony Gonzales (TX). It was funded, I kid you not, by the Humpty Dumpty Institute. Not all the trips were overseas — one was to Las Vegas to learn about telehealth (LOL) — and the overwhelming majority of travelers in 2021 were Republicans. There is significant value in certain CODELs, but they also can become paid vacations that allow special interests to cozy up to members and their staff.
The House Committee on Ethics announced investigations of four members (Reps. Jim Hagedorn, Mike Kelly, Tom Malinowsi, and Alex Mooney) for various alleged violations. The Ethics panel will evaluate complaints to OCE that Hagedorn’s office may have on two occasions offered sweetheart deals to its employees’ private ventures; Kelly’s trades of steel stocks may be too close to his work on industry policy; Malinowski may have failed to disclose $671,000 of stock trades; and Mooney may have mishandled campaign funds. Politico did a really sweet job of rounding up the investigations.
We shouldn’t conflate the spectacle of unmasked Republican legislators with our understanding of the parties’ substantive responses to COVID-19. New research suggests that Democrats and Republicans in Congress responded similarly to COVID-19 in proportion to its incidence in their constituencies, although responses to specific precautions — namely masking — diverged along partisan lines.
Internapalooza, a virtual orientation for Capitol Hill and prospective interns, took place over two days last week and was co-hosted by a variety of organizations, including us. The series of informational sessions and Q&A panels provided information about the Legislative branch and lawmaking process, tricks and tips to maximize an intern experience, and best practices on how to navigate and network on Capitol Hill. My colleague Taylor J. Swift helped host the orientation and took part in several panels and information sessions. All sessions were recorded and we will include video links once they become available.
• Navigating the virtual Congress. On Thursday, I took part in a panel presentation concerning the virtual resources available to Hill interns and staff. I was joined by Barbara Bavis of the Law Library of Congress, Monica St. Dennis from the House Reference Library, and Veneice Smith of the House Office of the Clerk. (They are excellent — interns, you should connect with them!) My portion of the presentation revolved around the resources outside of official Congressional websites including GovTrack.us, EveryCRSReport.com, BillToText.com, and our newest project: Bill Map.
• Schoolhouse Rock 2.0. My colleague Taylor J. Swift presented and moderated a discussion with Nan Swift of the R Street Institute and Franz Wuerfmannsdobler of the Bipartisan Policy Center titled “Schoolhouse Rock 2.0”, which examined how the Legislative branch is much more than just Congress and how the congressional ecosystem works to take an idea and turn it into a law. The presentation from all three panelists is available here.
ODDS AND ENDS
The “I told you so” report. WaPo columnist John Kelly’s dug up a pre-CRS report entitled “The Erroneous Predictions Multilith,” which posed a series of counterfactuals: what if the US had not purchased the Alaska Territories from Russia in the 1860s, or the USGS not funded in the 1890s? What if Spain had not funded Christopher Columbus? The report’s conclusions about the happy march of progress are perhaps not as self-evident as its author believed, but we note that horizon scanning and understanding counterfactuals are an essential part of policymaking, and one that does not happen as often as it should. At least with respect to science and technology policymaking, we have thoughts on how to accomplish this.
The Library of Congress’s annual report is now available online. One factoid: CRS responded to more than 75,000 congressional requests last year, published 1,300 new products, and updated 2,600 products. We are still waiting for CRS to publish its annual report — the most recent one available is from 2019 even though the agency testified months ago before House appropriators.
Across the pond, the UK’s Library of Commons research service is doing equally vital (and occasionally fun) work, such as compiling this database of all the reasons MPs have been kicked off the floor. The reasons range from general unruliness to civil disobedience with a bit more gravitas — including MP Dawn Butler Brent’s removal last month for accusing PM Johnson of lying to Parliament. The database, while amusing, is also a tool for oversight. (h/t Data is Plural newsletter for this one, and for surfacing “useful/curious” datasets each week. Check it out.)
Also notable is a lack of scrutiny applied to policies advanced by the UK government during COVID. Having seen legislation rushed through the House as well, it’s our view that this isn’t anomalous. But hybrid proceedings aren’t to blame per se, but rather in how they are implemented.
Congratulations to Kirsten Gullickson of the Office of the Clerk, winner of a 2021 Service to the Citizen award!
• The Senate will return on September 13th.
• The annual LegisTech for Democracy Conference will be held online on September 13th and 14th. 20 Parliament Houses from different countries will share how they implemented digital transformation projects that helped them to keep the legislature functioning. I’ll be speaking at 3:30 on Monday. The conference starts this morning — agenda is here. RSVP here.
• The Congressional Budget Justification Transparency Act will be the focus of a panel discussion hosted by the Data Foundation on September 14th from 2-3. I’ll be one of the panelists. RSVP here.
• Constitution Day is September 17th. Happy birthday.
• “How to Conduct Oversight of Afghanistan: A Conversation with the Special Inspector General for Afghanistan Reconstruction,” POGO’s virtual training on how to conduct oversight of recent developments in Afghanistan, will be held on September 17th at 12 noon. This event is only open to staff in Congress, GAO, and CRS. Register here.
• State secrecy and the war on terror is the topic of a town hall discussion set for September 17th. RSVP.
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