Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Subscribe here.
THE TOP LINE
The House will be back briefly on Tuesday to vote to raise the debt ceiling. With the quick turn-around during a committee work week, how many members will vote by proxy? Honestly, voting remotely seems appropriate here, although members should have their full powers to intervene on the House floor (i.e., make motions) regardless of whether they’re physically present, which current House rules do not yet provide for. The Senate will be back on October 18th.
The Congressional Transparency Caucus will discuss the Pandemic Response Accountability Committee — the oversight committee created to monitor the disbursement of the CARES act and five other pandemic-related packages totalling over $5 trillion — on Wednesday, October 20th at 10 AM. Panelists include PRAC Chair and DOJ IG Michael Horowitz, Liz Hempowiz of POGO, Chicago IG Joseph Ferguson, and more. Register here.
Transparency lightning talks. If you’re interested in a series of quick pitches for making government more open and accountable, the Advisory Committee on Transparency will be hosting a series of short presentations that you can watch from the comfort of your desk. The all-star list of presenters includes Walter Shaub of POGO, Corinna Turbes of the Data Coalition, Erica Newland of Protect Democracy, Freddy Martinez of Open The Government, and more. The event is set for 11:00 am ET on November 8th. RSVP here.
TRACKING CONGRESSIONAL WITNESSES
Witness disclosures & conflicts of interest. Witnesses testifying before House committees are required to disclose foreign affiliations under the newly-updated Truth-in-Testimony rule, but many witnesses are still dodging the requirement. The New Republic uses New America CEO Anne-Marie Slaughter as an exemplar; the organization received “over $4 million in funding from the State Department and over $300,000 from Australia during the second quarter of 2021,” but did not disclose that information.
Making witness oversight difficult is the unfortunate fact that the House doesn’t publish all witness information in a central location and in structured data format, which is something Demand Progress has asked for. House Rules package directed “the Clerk, the Committee on House Administration, and other officers and officials” to improve the existing repository in order “to increase public availability and identification of legislative information produced by House committees, including votes, amendments, and witness disclosure forms,” but it hasn’t happened yet. (There’s also supposed to be tracking of witness diversity as well.)
Enforcement of this rule falls on committees, I guess, and some reportedly are better than others. The Armed Services Committee enacted a stricter standard in 2018 (after a history of particularly poor compliance) that could provide a model for other committees. But compliance will likely remain piecemeal until authorizers and appropriators direct and fund the creation of a centralized disclosure system, including charging someone (besides committees) with conducting oversight and making sure the information is disclosed as data.
It’s worth noting that the Senate does not have any rule that we know of requiring nongovernmental witnesses to disclose potential financial conflicts of interest.
State secrets. Has the DOJ complied with its own 2009 policy to regularly report to Congress its use of the state secrets privilege in court and its justifications for doing so? Sens. Blumenthal, Menendez, Booker, and Gillibrand are asking. They requested information regarding the department’s practices in a way that makes me think they know the answer, implying the DOJ has only filed two reports since 2009.
The state secrets privilege also came up in oral argument before the Supreme Court last week in the case of United States v. Zubaydah. Zubaydah was tortured at the direction of the U.S. government at a “black site” in Poland. The question presented in the case: “Can a detainee at Guantánamo Bay, Cuba, who has never been charged with a crime … subpoena testimony from the CIA contractors who supervised his torture.” The state secret privilege is a court-made doctrine that allows the government to withhold information from discovery when its disclosure would be inimical to national security. Many justices seemed skeptical of the government’s assertion of the doctrine here when it is already publicly known what the government is claiming is secret. In the words of Justice Kagan: “I mean, if everybody knows what you’re asserting privilege on, like, what exactly does this privilege — I mean, maybe we should rename it or something. It’s not a state secrets privilege anymore.”
Farcical, indeed. The case marks an ironic return to the origins of the state secrets privilege, which the Supreme Court first formally recognized in United States v. Reynolds. The families of three civilians killed by an Air Force plane crash sued for the accident report and were denied under the pretense that they contained classified information. When the documents were declassified 47 years later, it was revealed that there was no secret in the first place. For more on the state secrets privilege, see this 2011 CRS report or kick back and listen to the retelling of the Reynoldssaga from This American Life. (How many SCOTUS opinions that favor executive power are based on lies by the government? There’s Korematsu, but are there more?)
Reforms to the inspectors general system — including strengthening IGs’ subpoena power, insulating them from executive branch retaliation, and holding IGs themselves accountable —
are supported by Demand Progress and a coalition organized by POGO. Some of these measures are included in three separate bills (S. 587, S. 1794, and H.R. 2662) which were scheduled for markup by HSGAC, but the markup has been postponed.
Former Pres. Trump fired several IGs who would’ve sat on PRAC in the first few months of the council’s existence, leading experts and former IGs to call for greater protections for inspectors general. David C. Williams, former IG of several agencies, expressed concern at the time that these firings hampered the early operations of PRAC and noted the need for greater protections.
Where are the new IGs? Pres. Biden announced plans last week to nominate three more inspectors general; fifteen IG positions remain unfilled overall. A lack of permanent leadership poses an obstacle to IG offices’ crucial oversight duties; the Biden Administration has been slow to fill the positions. Liz Hempowicz of POGO told Government Executive that strengthening protections for IGs could help attract and retain “quality individuals after former President Trump demonstrated how easily a president can remove an inspector general to impede independent oversight.”
While we’re on the topic of IGs, why doesn’t the U.S. Capitol Police Inspector General and the House Inspector General make their reports publicly available like pretty much all other IGs? The House IG used to do so — we created a catalog of all the previously available reports — and appropriators have been pushing the USCP IG to move in this direction, with little success so far. USCP IG disclosure is within the power of the Capitol Police Board to address, as they can direct a policy change. Also, it seems like there are agencies and offices inside the Legislative Branch that are not overseen by an IG, which seems like an obvious area for improvement.
House Admin Republicans launched a new whistleblower webform for officers and security personnel at the USCP/SAA to report issues relating to security. We’re not entirely sure what to make of it, although it seems like a natural extension of that committee’s efforts to gather information.
JANUARY 6TH — Capitol Police
Broken windows? Most of the Capitol’s windows are reinforced with bomb-resistant glass and a metal frame — but not the ones January 6th rioters breached to enter the building, according to an extensive L.A. Times story. That some windows were not reinforced was not widely known — the decision on which windows to upgrade was made by the USCP Board as part of a below-the-radar security renovation, funded through a “mix of classified and unclassified appropriations” and largely carried out at night. Surveillance footage shows rioters running past reinforced windows to get to the unreinforced ones.
— What portion of Capitol security operations are classified? We were intrigued by references to classified appropriations, which are an aspect of secret law that makes us twitchy. Secrecy expert Steven Aftergood provides a good (and readable) overview of secret law in his 2008 testimony before the Senate Judiciary Committee. While most secret law arises out of the Executive branch, there are documents outside of the laws passed by Congress that incorporate those documents by reference. If you think that this is a violation of Chadha and creates presentment problems, I think you’re right. But even more importantly, how can members of Congress know what they are voting for when they (likely) do not see these provisions and most definitely do not have staff cleared to support them as they review the classified provisions of the legislation? (Dakota Rudesill has the most comprehensive list of likely secret annexes to legislation at the end of his 2015 paper.)
Another drop in the bucket. Apparently private intelligence companies shared highly specific warnings with law enforcement two weeks in advance of the Trump insurrection regarding the threat of violence. Regarding USCP’s long list of failures, all you can do is look to the people at the top who set the policies and oversaw the training, many of whom are still there.
A whistleblower? Apparently this memo is flying around the hill from a former senior USCP officer that argues that Chiefs Pittman and Gallagher are unfit for their duties and have retained their roles only as a consequence of political favors and bad optics for congressional “entities” that have elevated them to their positions. Politico has the story.
January 6th — Trump Administration
The Biden Administration told the National Archives that it declined to assert executive privilege concerning Trump-presidency records relevant to the Trump insurrection requested by the Jan. 6th Committee.
Can Congress get information from the Executive branch? The post-McGahn era — McGahn being the former White House Counsel regarding whom the Trump White House asserted absolute immunity from testifying before Congress — was the focus of an excellent panel discussion that included a conversation on how the Executive and Legislative branches work out disputes over access to information. Hosted by the Levin Center at Wayne Law and POGO, one of the panelists is House General Counsel Doug Letter, who as you can imagine is quite busy, and it included other attorneys who served in that office and in the office of the White House Counsel, which are key players in disputes over assertions of executive privilege. Watch it here.
Meanwhile, the deadline for four former Trump aides to comply with the Select Committee on January 6th’s subpoenas came and went last Thursday, along with subpoenas for seven other Trump allies. Steve Bannon announced in advance his intention to follow Trump’s instructions not to turn over the requested documents, citing executive privilege (which is an unsupportable claim); the committee may ask the Justice Department to prosecute. Also on Thursday, the committee issued three more subpoenas: two from Stop the Steal organizers Ali Alexander and Nathan Martin, and a third from Stop the Steal, LLC.
Former Pres. Trump’s effort to install a new Attorney General in the final days of his presidency is elucidated in a new Senate report, which includes testimony from officials present at a key January 3 meeting. Senate Republicans’ counter-report highlights that Trump didn’t follow through on replacing then-acting AG Jeffrey Rosen; notably, top DOJ officials testified they said they’d resign en masse if he did so. (This is reminiscent of the Saturday Night Massacre; ironically, it was the official who followed Nixon’s orders, then solicitor general Bork, who prospered, and the massacre was a direct antecedent to the passage of the 1978 Ethics in Government Act, which created the Office of Government Ethics.)
A “frighteningly basic vulnerability” in PACER and CM/ECF, the federal case management and filing system, is the basis for renewed calls for passing the Open the Courts Act. Hackers took advantage of vulnerability in the websites to purchase confidential documents from PACER using other people’s credit cards, one consequence of the 2020 SolarWinds cyberattack. The Judiciary’s internal analysis subsequently highlighted the need to close the loophole at that time. The Free Law Project, the lead organization renewing the call for passage of the legislation, argues there is “ample evidence that the continued reliance on the outdated and crumbling PACER and CM/ECF system is a risk to Americans’ privacy and national security. Overhaul of the system via passage of the OCA can no longer wait.”
SCOTUS conflicts of interest. A resolution urging Supreme Court Justices to “make themselves subject to the existing and operative ethics guidelines set out in the Code of Conduct for United States Judges,” or promulgate their own code of conduct, was introduced to the House by Delegate Eleanor Holmes last week. This CRS report from 2019 looks at recent efforts to create a code of conduct for SCOTUS and describes the basic difficulty involved: that SCOTUS is Constitutionally empowered to regulate itself.
IT’S BEGINNING TO LOOK A LOT LIKE CHRISTMAS
The Big Short. Did you ever watch The Big Short or any of the other movies about the subprime crisis? You know, when lax regulations, unbridled corporate greed, and corruption destroyed the U.S. economy in the last 2000s, leading to the Great Recession, and no one responsible was held accountable while millions of people lost their homes? As I’m looking around now, it kinda feels like that, but instead of applying merely to our economy, it applies to our democracy. Like in the Great Recession, the seeds of destruction have been planted over long periods of time — the filibuster, dark money, disproportionate senate representation, gerrymandering, Citizens United, Trumpism — and may yield a very bleak harvest.
December 3rd is the big day. Funding for government operations will end then, and we will once again be at or close to hitting the debt ceiling, the legal fiction where the government must once again agree to pay for spending it already has spent. Another punt is possible — perhaps to Christmas, but if so, it will be a bumpy road. One portend of the future: Sen. McConnell’s Friday-night tantrum telling Biden that Senate Republicans DGAF about the debt ceiling chaos they intend to cause in December — i.e., damn the policy outcomes, full speed ahead on the politics — and that Biden and Dems can fix it on their own. Party uber allies and all that.
With 4/5s of Senate Republicans on record as unwilling to vote to pay for the funds they’ve already spent, a permanent suspension or elimination of the debt ceiling is yet another item on the to-do list of protecting our democracy. Can you imagine how this would have played out in a divided government? (Rep. Scalise still won’t say Joe Biden fairly won the election.)
The news frame is crucial to understanding the debt ceiling fight. Republicans and Democrats believe that the news media will be unable to properly explain what the debt ceiling is, what caused it, or who is responsible. Thus, Sen. McConnell apparently believes that he can falsely attribute the debt to Democrats and falsely tie it to future Democratic spending. The Columbia Journalism Review describes this dynamic in a thoughtful article entitled the shifting floor in debt ceiling coverage. For a taste, read this: “[McConnell] contrived a crisis practically from thin air, succeeded in wasting our time with it, and got to keep the filibuster, which is one huge, ongoing Republican victory. This, of course, is not a new playbook for McConnell; the press can’t stop it, but it could stop covering for his contrived stances by framing them, as Fallows notes, as things that just kinda happened. Each time we do, the ground underneath political journalism shifts in a direction that, ultimately, favors Republicans.”
— If you want to be depressed, look at (old) polling that suggests it’s very easy to trick Americans who don’t understand the debt ceiling to begin with. We don’t talk much about elections here, but we can point you to this Politico evaluation of Sen. McConnell’s motivations: “McConnell’s motivations are clear: He’s scrapping for any possible advantage he can claw away from Schumer to net a single seat and take back the reins of the Senate, even if it brings the nation closer to an economically paralyzing default.”
According to a new poll, 2/3s of Americans (and 3/4s of independents) say major changes are needed in the way our government works, with banning voter intimidation and donor disclosure at the top of the list. Adding another legislative carve-out to the filibuster, for raising the debt ceiling, might have been becoming more palatable to certain conservative Democratic senators instead of letting the economy go over the cliff, which may have been why Sen. McConnell pulled back this time. Notable for the purposes of our discussion: 53% of Americans support filibuster reform, including 72% of Democrats and 43% of Independents; that number declines slightly to 67% of Dems to raise the debt ceiling.
CONGRESSIONAL OPERATIONS AND REFORM
The history of congressional reform is the topic of a recently published CRS report. It includes context and background on the three joint reorganization panels created in 1945, 1965, and 1993, the mission of which was to study and make recommendations for improving the operations and role of the Legislative branch. We note the report was written by Walter J. Oleszek, who (among many other credentials) served as policy director of the Joint Committee on the Organization of Congress in 1993.
Speaking of Congressional reform, the Fix Congress Committee (a.k.a. the ModCom and the SCOMC) published a new report containing 20 recommendations to increase staff capacity, diversity, and inclusion; strengthen congressional internships and fellowships; and expand accessibility to Congress. We note the report is dated September 1, 2021, but the link was added to the committee website this weekend and the recs were adopted in late July.
Congrats, Christopher Lange, who is the new (acting) director of the House Office of Diversity and Inclusion.
House Benefits Available to Staff. Did you know you can get free help writing a will? Or discounted childcare? Or free access to the Washington Post? The CAO has a helpful guide to House staff services and discounts that lists many of these benefits.
Lawyers surge in the rankings (in Congress, as compared to PhDs, with respect to earnings according to new LegiStorm data). In recent history, PhDs earned significantly more than JDs, but this trend has reversed. Although an average of $90k annually for a J.D. isn’t all that great when you realize the mean salary for a lawyer in the executive branch is $140k and much more in the private sector.
ODDS AND ENDS
GPO’s IG’s management challenges is the topic of a new IG report. The top 4 challenges: (1) developing its workforce in a digital environment; (2) creating a single, documented strategic plan; (3) developing a sustainable business model; and (4) improving procurement oversight.
Tracking Enacted Bills. Have you ever had a bill that was incorporated into another bill and passed into law? It’s frustrating when your boss doesn’t get credit for their hard work. This Twitter thread shows how GovTrack.us is building on Demand Progress BillMap project to make it possible to do just that, using the Equal Access to CRS Reports Act of 2017 as an example.
A FOIA Ombuds blogpost points to the need for public education on FOIA processes — specifically, that “many FOIA requesters think that agencies can perform a ‘Google-like’ search of their IT systems and databases for FOIA requests in a centralized way.” The post draws on
a new paper from the Chief FOIA Officers Council’s Technology Committee that, in our opinion, makes a strong case for public outreach on FOIA and modernization of agencies’ databases and FOIA processes.
Parliamentary libraries and research services’ responses to the COVID-19 pandemic were surveyed and reported by the International Federation of Library Associations. Among other things, the report considers whether changes to research and operations wrought by the pandemic will be permanent.
Under what circumstances are government officials immune from foreign criminal jurisdiction? The International Law Commission addressed this question and others in a recent report, making specific reference to the International Criminal Court’s 2019 judgement that the Kingdom of Jordan should have arrested then-president of Sudan Omar al-Bashir on Jordanian territory.
Goings on: the new fencing on the west side of the Capitol is for construction purposes, not security precautions; USCP arrested the driver of a “suspicious vehicle” parked in front of the Supreme Court on October 5th, the second day the court was back in session; Capitol police officers were deployed to the Senate late last week, apparently to run some light press interference.
The Nobel Peace Prize went to two journalists — Maria Ressa of the Philippines and Dmitry Muratov of Russia — for promoting freedom of the press.
Rep. Cathy McMorris-Rodgers has COVID.
The International Conference on Legislation and Law Reform and UPenn Carey Law School are hosting two free legislative drafting webinars on October 21 and 22. Register here.
The Advisory Committee on Transparency is hosting a ‘lightning talk’-format webinar on Monday, November 8th, at 11:00 AM. Register here.
The future of law libraries will be discussed at the Library of Congress’ Jane Sánchez Memorial Lecture on November 9th at 3 PM. Register here .
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