Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Subscribe here.
Congress passed the stopgap funding bill on September 30, temporarily averting a government shutdown. While in theory there will be no House floor votes until the 19th and the next two weeks are committee work weeks, with the debt ceiling default almost upon us, the House will be back sooner than that. Also in theory, the Senate is in this week but will be out October 11-15. How will negotiations go on all this? For the Democrats, a lot depends on how it is framed in the media, and it seems pundits are giving Republicans a pass.
The end of the fiscal year also means that agency actions pursuant to FY 2021 appropriations report language (unless otherwise specified) are past due. Would it surprise you that we have a list of all items required and requested in the FY 2021 Legislative branch appropriations bill? (Among other things, there’s a lot of activity we have yet to see from the U.S. Capitol Police.)
STRENGTHENING SUPPORT FOR CONGRESS
Modernizing the Congressional support agencies is the subject of an upcoming House Modernization Committee hearing. (It was supposed to be last week, but was postponed.) Some written testimony is in, though: we are impressed by Wendy Ginsberg’s testimony on CRS and Zach Graves’ testimony on GAO.
Re: CRS, Dr. Ginsberg, a former CRS analyst who is serving as Staff Director of the Committee on Oversight and Reform Subcommittee on Government Operations, makes three major points: (1) CRS must revamp its product line and how products are distributed to Members, staff, and the public; (2) CRS must transform its culture to one focused on customer service; and (3) CRS must refocus its efforts on accomplishing its core mission. Her recommendations are a must-read. The examples she provides of receiving the run-around as a committee staffer despite her knowledge of how the agency works helps underscore her recommendations.
— Former CRS manager and analyst Kevin Kosar agrees with her recommendations, and in a mini-Tweet storm makes a few points of his own. Dr. Kosar says CRS should figure out what it needs to be in an era where committees are not strong. He also points out that “bad management and leadership“ plagues CRS. He also assails CRS for producing non-confidential reports and yet keeping them unfindable by staff, a point on which he has testified previously. (Dr. Ginsberg makes similar points about public availability of CRS products, and we go so far as to publish some archival reports for that very reason). Kosar also raises the issue of the American Law Division, where I used to work, saying that attorneys should be embedded in other policy divisions and not be their own bureaucratic silo. For more, see his 2015 article “Why I Quit the CRS.”
— CRS is a troubled agency and was the subject of a House Administration Committee hearing in 2019. Most notable was the testimony of Susan Thaul, president of the Congressional Research Employees Association (i.e., the union), who in the most gentle way possible raised four significant issues. Dr. Thaul’s gentle language points to serious management and structural problems, including a 19% annual turnover rate in the American Law Division over a 3-year period, at three times the rate of other divisions. Her testimony covered: (1) making CRS more diverse and inclusive; (2) improving the work-life balance, including telework (which was prescient especially in light of the pandemic); (3) ensuring a fair and hospitable work environment; and (4) performance appraisal and promotions. Hidden inside these points is a weakening of CRS products towards summaries instead of analysis, the replacement of more experienced staff with junior staff, and management issues.
Re: GAO: Zach Graves, the head of policy at the Lincoln Network, has much praise for the government watchdog and his recommendations focus on how to strengthen what’s right at the agency, which largely comes down to more funding for GAO (which has a huge ROI), improved tracking of its recommendations (to ensure they are completed), and strengthening and granting some measure of independence to its science and technology team (because it has a different mission and unique needs compared to the rest of the agency). We particularly like his recommendations to create different congressional protocols for the STAA, GAO’s science and technology assessment team, and granting it its own budgetary line item.
If you ask us, the focus on the legislative support agencies is spot on, and we suggest going out to an additional level of abstraction. Products provided by these agencies are siloed and the formats are driven by the bureaucracy. We should instead be thinking about the end users: legislative assistants, committee professional staff, members. What are their needs? How do they use information? Can we synthesize what’s happening across all-of-government to give them timely products in a format they can readily use that integrates everything from committee hearings to legislation tracking to agency regulations to news stories to court cases? You know, something like our newsletter, but targeted around particular issue sets and building off the expertise of thousands of legislative branch staff?
The Library of Congress — speaking of oversight — will be the focus of a Senate Rules Committee hearing on Wednesday on its “modernization efforts.” This seems like a possible follow up to the Senate Rules hearing on modernization back in 2019, which focused mostly on technology modernization in the copyright office. Should the focus be broader, we have a number of recommendations on modernizing the Library’s legislative information services, which include: (1) publishing information as data; (2) putting legislative process context; (3) integrating information from multiple sources; (4) publishing archival information; and (5) collaborating with the public.
EXECUTIVE BRANCH OVERSIGHT
Three bills strengthening Inspector General independence are scheduled for markup by the Senate Committee on Homeland Security and Government Affairs on October 6th. They are the Securing IG Independence Act, S. 587, which limits the circumstances where the president can remove an IG; the IG Testimonial Subpoena Act, S. 1794, which allows the IG to issue subpoenas; and the IG Independence and Empowerment Act, H.R. 2662, which already has passed the House, encompassing some of the foregoing bills as well as some additional important provisions. Demand Progress and 15 organizations endorsed H.R. 2662, describing its value in this letter.
The implementation of the new Congressional Budget Justification Transparency Law is the subject of a Data Foundation podcast episode. You can listen to the discussion here.
The House Office of the Whistleblower Ombuds has released a number of helpful resources for staff. This includes a short video on Maintaining Whistleblower Confidentiality, an Intake Case Management Infographic, and an Intelligence Community Whistleblowing Fact Sheet. You can also search its interactive Whistleblower Legislation Tracker. And House staff can now access its Whistleblower Learning Path through the Congressional Staff Academy.
Undoing a Trump-era sabotage of executive branch oversight is the aim of Senate Republicans’ letter calling on Attorney General Merrick Garland to throw out a 2017 OLC opinion insulating departments and agencies from minority-party document requests and a more expansive opinion in 2019 saying that agencies should process requests by individual members of Congress through the FOIA. The opinion rests on the (false) premise that only the majority party possesses the power to conduct oversight, but as the senators’ letter notes, that premise is not Constitutionally supported. We love this line: “it seems as if the Department of Justice drafted the opinion more to protect the Executive Branch from congressional scrutiny than provide constitutional order to the sharing process.”
FOLLOW THE MONEY
35 Members of Congress have been found this year to have failed to disclose stock transactions in violation of the 2012 STOCK Act, Business Insider reports. They’ll face nominal fines (unless even those are waived) for trades that may earn millions. Correction: 36 members.
— How many foul-ups do we need before we conclude the system is broken? Just to start, all these disclosures should be published in a structured data format, which was the original intent before Congress quickly and quietly undermined the legislation. To reveal violations of the 45-day window to report stock sales or purchases over $1000, civil society groups and journalists painstakingly compare Members’ year-end financial disclosures to that year’s personal transaction reports. Ugh.
Since 2010, 131 federal judges have failed to recuse themselves from cases in which they had a “legal or equitable interest, however small” according to a Wall Street Journal investigation. The investigation has already had an impact: 56 judges have issued mea culpas so far, which could lead some rulings to be overturned.
— The Free Law Project built a new financial disclosure database for the federal judiciary, which the Wall Street Journal used in its reporting. It will soon be publicly available and will be browsable at courtlistener.com. FLP’s work overcomes several regulatory hurdles by transforming financial disclosures that have been technically public since 1978 into data and ensures they do not disappear after six years. This immense accomplishment is only the latest of FLP’s “contributions to protect and promote greater public access to government information” — in recognition of which the FLP has won the American Association of Law Libraries’ Public Access to Government Information Award.
— Reps. Jerry Nadler and Hank Johnson are expected to introduce the 21st Century Courts Act in the coming weeks, which would require the federal judiciary to create and maintain an online database for disclosures, like the one the FLP built, among other important ethics reforms. The version Reps. Nadler and Johnson introduced to the 116th Congress (H.R. 6017) included provisions requiring the Supreme Court to promulgate a code of conduct for itself, requiring written recusal explanations, and modernizing the federal case management and filing system (i.e., PACER).
Two Fed presidents announced their retirements this week amid continued scrutiny of their 2020 stock trades and investment disclosures, which drew criticism for showing profits in sectors in which the Fed aggressively intervened last year. Which is to say all sectors, but the officials, Dallas Fed Pres. Robert Kaplan and Boston Fed Pres. Eric Rosengren, have been criticized for active multi-million dollar stock trades and investments in real estate trusts respectively. Neither official has been found to violate Fed ethics rules, which is a pretty low bar. Noting that the Fed’s reach extends to all quarters of the economy, Sen. Elizabeth Warren urged all regional Fed presidents to move to ban senior officials from trading in individual stocks altogether by October 15th.
— Sen. Warren has previously called for a ban on individual stock ownership by “Members of Congress, Cabinet Secretaries, senior congressional staff, federal judges, White House staff, and other senior agency officials while in office” as part of the sweeping Anti-Corruption and Public Integrity Act, introduced to the 116th Congress and endorsed by Demand Progress.
Where are the enforcers? These revelations of misdeeds in Congress, the federal judiciary, and the Federal Reserve point to the same question: where are the official watchdogs? Why is the burden of building the databases, making them interoperable, and looking for conflicts of interest falling to civil society organizations and journalists? All too often, it seems that government-administered disclosure and accountability is a box-checking exercise designed to further the appearance of propriety and slow-walk the demands of reformers.
Count du Monet. I’m sure you’ve seen the stories emerging this weekend as part of the Pandora Papers, an investigation into the incredibly complex tax shelters the super wealthy and super powerful use to hide their money and build wealth and power. The existence of these systems depends on making it impossible even for civil society to engage in watchdogging — and a political system that allows for the laundering of a bit of that money and influence into legislative and regulatory action to keep it behind the veil. We’ve seen it at work, perhaps, in the debate over reconciliation.
Incentives to collaborate. The House Select Committee on the Modernization of Congress held a roundtable discussion with several experts on Congress on civility and collaboration. My colleague Taylor J. Swift represented Demand Progress and presented two proposals to help strengthen Congress’s collaboration by making it easier for legislation to get consideration in committees and the facilitation of member collaboration on policy issues in parallel to the committee structure. Interested in these ideas and others like it? We have over 120 recommendations to strengthen the House.
How can parliaments engage, educate, and reach out to their constituencies? The Commonwealth Parliamentary Association has a new handbook that addresses exactly these areas. We commend the CPA’s promotion of open parliaments within the Commonwealth, and note that the Declaration on Parliamentary Openness celebrates its 10 year anniversary next year.
— CPA’s latest in-depth magazine includes articles putting parliaments in a global context. Of particular interest: the UK Supreme Court’s relationship to the UK Parliament; parliaments going to war, including how the US revolution changed the British system; and modernizing codes of conduct in Parliament.
Kemba Hendrix is leaving her post as the inaugural Director of the House Office of Diversity and Inclusion. We wish her well. We also encourage the Senate to make a similar commitment to staff diversity by establishing an Office of Diversity and Inclusion of its own.
The recent spike in threats against members of Congress was the focus of an Associated Press story arising from an interview with the police chief. However, it left us with more questions than answers. How many threats did USCP substantiate? How many resulted in prosecutions? How many resulted in convictions? How have those numbers changed over time? We think the number of threats likely has increased, but if the methodology by which identifying the threats has changed or the nature of the threats has changed, the publication of a raw number without any context is alarming but not edifying.
The House Committee on Ethics released statements on its decisions not to impanel an investigative subcommittee regarding the arrests of Reps. Sheila Jackson Lee and Al Green during voting rights protests at the Capitol in July, and upholding the Office of the Sergeant at Arms’ decision to fine Rep. Mary Miller $500 for unmasking on the House floor in order to take a selfie with Republican colleagues. Rep. Miller’s appeal argued that the lack of repercussions for Speaker Pelosi’s failure to mask properly in the Capitol render the rule “arbitrary and capricious.”
LOBBYING AND CAMPAIGN FINANCE
Narrowing the scope of the law regulating foreign lobbying activities is the subject of a new American Bar Association Task Force report on the Foreign Agents Registration Act. The report contends that FARA currently “goes beyond what is necessary.” We note the most recent DOJ IG audit of FARA, completed in 2016, found poor enforcement and rampant noncompliance. The ABA’s recommendations include changing the definition of ‘foreign principals’ to focus on foreign governments — rather than organizations or corporations — and abandoning the term ‘foreign agent.’ Politico has more.
— FARA Reform? In 2017, a coalition including Demand Progress submitted testimony to the Senate Committee on the Judiciary on its recommendations for FARA reform. The coalition concurred with the DOJ IG’s recommendation to review FARA’s fee and fine structure to improve compliance, and additionally recommended modernizing the lobbying disclosure system. Domestic lobbying activities must be reported online as data; the same rule should apply to foreign lobbying activities.
— Go big. Lobbying, whether foreign or domestic, and the various ways in which influence is exerted should be treated as a system wherever possible. We are more sympathetic to the 2011 ABA Lobbying Task Force report recommendations.
120 members of the 116th Congress spent more than half of their leadership PAC funds — money intended to make political contributions — on various non-political expenses, including travel and dining, according to a new report from Issue One and Campaign Legal Center. The groups have previously petitioned the FEC and supported legislation to the 116th Congress to make non-political spending of leadership PACs illegal, but as it stands now, leadership PACs remain unregulated slush funds. Remember that Jackie Speier bill from the 113th Congress, the MERIT Act? It had some helpful leadership PAC fixes as well.
ODDS AND ENDS
The Supreme Court will stream oral arguments on its own website when it returns in-person for the first time in 18 months. (Except, perhaps, Justice Brett Kavanaugh, who announced he tested positive for COVID on Friday.) We hope this continues beyond the October 2021 term: streaming arguments during the pandemic marked a major step towards an open judiciary. POGO and other transparency groups including Demand Progress Education Fund have called for making this a permanent change.
C-SPAN adds another Congressional proceedings app to the marketplace. Its live video app, “C-SPAN Now,” joins Majority Leader Hoyer’s DomeWatch and the live-streams available from individual committees. We note that over the last decade, all House committees began streaming all open proceedings, free of charge; the Senate does the same except for some mark-ups, which are audio only.
Publication of the Serial Set for the 69th Congress, or all numbered House and Senate documents and reports, was completed by GPO and the Library of Congress this past week. Kudos to both. We’ve got more on why access to our shared legislative history is important, recommendations for the digitization effort, and what more we think should be done.
The Dept. of Labor should collect data on the US internship economy, write Pay Our Interns and Rep. Tony Cárdenas’ in a letter to Secretary of Labor Marty Walsh. As you know, unpaid internships are a major barrier to diversifying Congress, but the problem extends far beyond the legislative branch. DOL oversight would lead to better understanding of the scope and composition of the intern labor force, and would clarify needs for labor policy pertaining to interns.
Rep. Daniel Crenshaw will face a $5,000 fine for failure to complete security screening before entering the House of Representatives, continuing a trend since January 6th of Republican Members bucking security precautions. Rep. Crenshaw has the opportunity to appeal to the Ethics Committee within 30 days.Rep. Kelly Armstrong tested positive for COVID, according to the Member’s tweet from last week. (GovTrack’s updated total for the 117th Congress is here.) Rep. Bob Gibbsalso tested positive.
I’m not just a bill. Politico updated the classic.
Library and Research Services for Parliaments is the title of an upcoming conference hosted by the International Federation of Library Associations and Institutions. Events run October 6th – 8th. Register here.
“Life after McGahn,” a discussion on the legacy of Trump aide Donald McGahn’s dismissed subpoena, will be held October 8th from 12-1:30 PM. It’s hosted by the Levin Center at Wayne Law and POGO, and you can RSVP here.
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