Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe. In the words of Ted Lasso, “I appreciate you.”
THE TOP LINE
Send me in, coach. The House returns on Tuesday with a fairly light floor schedule that suggests bigger legislation is afoot. The Senate reconvenes on Monday. In addition to our list of notable events and hearings, it appears that the Attorney General will be testifying before the House Judiciary Committee on Thursday.
We’re watching the Senate to see if/when it will report out its FY2022 Appropriations bills. If, like us, you’re especially eager to see Leg Branch Approps, consider this an aperitif: CRS has a new report covering the FY 2022 Leg Branch Approps bill. As a reminder, our research shows that funding for the Legislative branch has grown at half the rate of the other non-defense discretionary spending and that the vast majority of new funds over the last quarter-century have gone to the Architect and the Capitol Police. This fiscal year the House has ponied up but will the Senate see the raise?
Congress is failing to retain capable staff and that problem is particularly acute among Black staffers, the New York Times reported. Among the recommendations outlined in a joint letter from the Congressional Black Associates and the Senate Black Legislative Staff Caucus: (1) living wages for all congressional staffers, (2) a stronger pipeline from college to the Legislative branch, (3) more opportunities to develop skills inside Congress, (4) purposeful and fair hiring practices. We note the Joint Center and Pay Our Interns have much to share on these points. In addition to the aspects cited in the Times article, we must emphasize the importance of having Legislative branch wide data, of the Senate establishing an Office of Diversity and Inclusion, of establishing pay floors for interns and staff and improving staff recruitment, and of considering unionization. Crucially, improving funding for the Legislative branch — and especially staff pay — is the price of democracy and the focus of calls from good government groups on the left and on the right.
There’s a bunch of transparency and oversight events this week and next:
• COVID-19 response transparency. 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 ET. Panelists include PRAC Chair and DOJ IG Michael Horowitz, Liz Hempowiz of POGO, Chicago IG Joseph Ferguson, and Deputy IG at the Department of the Interior Caryl N. Brzymialkiewicz. Register here.
• Modernizing the Library of Congress. An oversight hearing on LOC’s modernization efforts will be held by the Senate Rules Committee on Wednesday, October 20th at 3 PM.
• Modernizing Congressional Support Agencies (CBO/GAO/CRS) is the subject of another House Modernization Committee hearing scheduled for Wednesday, October 21st from 9-11 AM. We previewed Zach Graves’ testimony on GAO, and Wendy Ginsberg’s on CRS, in last week’s newsletter.
• Safeguarding Inspector General Independence and Integrity — especially topical for today’s newsletter — will be considered at an HSGAC hearing this Thursday, October 21st at 10:15 AM.
• Transparency lightning talks. New transparency policy ideas will be discussed in a quick, digestible format on Monday, November 8th at 11 AM ET at the Advisory Committee on Transparency’s fourth event of 2021. Presenters include transparency experts from across the political spectrum: Walter Shaub of POGO, Erica Newland of Protect Democracy, Corinna Turbes of the Data Coalition, Reynold Schweickhardt of the Lincoln Network, and more. RSVP here.
End the Debt Ceiling Drama? Reps. Brendan Boyle and John Yarmuth have proposed to transfer the authority to raise the debt ceiling from Congress to the Secretary of the Treasury, with Congress retaining the power to override. This would respect congressional prerogatives in theory but at the same time prevent mischief-making in fact. Normally we would say that Congress should be required to affirmatively act, but this is a not-unreasonable exception for something that shouldn’t exist anyway.
House Budget Chair Rep. John Yarmuth is retiring. Rep. Yarmuth has been a reliable advocate for restoring Congress’ power over federal spending decisions — its Power of the Purse — and has been a significant driver of hearings on that topic and the Congressional Power of the Purse Act. More recently, we’ve seen key budget transparency provisions show up in the draft FSGG Appropriations bill and elsewhere. If it became law, it would be a fine legacy.
On the topic of turnover, in an offhand remark, Speaker Nancy Pelosi reminded us of her promise that the 117th Congress would be her last term as speaker, raising questions about potential successors. Retirement notwithstanding, the House could face a dramatic transition in 2022 should Republicans claim a majority. Punchbowl has a deeper dive into potential changes to committee leadership. And on that issue….
Steering Committee secrecy. House Democrats recently began publishing their Caucus Rules (with a fair amount of prompting), but they have yet to release the rules for the Democratic Steering and Policy Committee, a Democratic Caucus committee that is responsible for choosing who gets to serve on committees. The members chosen for this committee — and the rules that govern how it operates — should be something available for all to see.
Pramila Jayapal is the focus of a New York Times opinion piece that explores the role of the Progressive Caucus. It does a good job exploring the dynamics arising between the caucus and Pres. Biden on one hand, and a handful of conservative Democrats on the other.
LEG BRANCH OVERSIGHT
The GPO IG published its Fall 2021 Semiannual Report to Congress, which you can read here. The report alerted us to the fact that the IG has requested a separate budget line item as part of its FY 2022 Congressional Budget Justification, a request that we thought had been granted under section 1604 of the FY 2020 appropriations bill to the IGs for the AOC, LOC, and GPO. Answering this question would require more research than I want to put in on a Sunday afternoon.
— About those Congressional Budget Justifications. While a new federal law directs the publication of Executive branch agency congressional budget justifications in a central location, it does not apply to the Legislative branch. Eventually, the House compiles the reports it receives into this hearing document (this one is for FY 2021), although many entities are Senate-only and we’ve been unable to find an equivalent Senate compilation (if one exists). Demand Progress has asked for a fix, fwiw.
Dignitary protection. Recent events in the UK remind us of what’s at stake when we talk about USCP + SAA operations and transparency. MP Sir David Amess was tragically killed last week while meeting with constituents; in 2016, MP Jo Cox was killed while on her way to do the same. We have had similar challenges in the U.S., including the 2017 Congressional baseball shooting and shooting of Rep. Gabby Giffords in 2011. We offer our condolences to MP Amess and his family. We also wish to remind our readers that political violence is (unfortunately) not unusual in historical terms and it is essential to focus protection efforts in ways that protect elected officials and not separate them from those they represent.
Vaccination or reassignment. USCP’s Dignitary Protection Division — agents responsible for protecting members of congressional leadership — must get vaccinated under a new department policy, Roll Call reports. As employees of the Legislative branch, USCP officers are not otherwise subject to a federal vaccine mandate. According to Roll Call, the department has tracked 288 positive COVID-19 cases since March 2020. This, of course, leads us to ask: why is this information not being routinely released by USCP, Leg branch offices, and agencies generally? It’s unclear how many officers will be affected by the new mandatory vaccination policy, since USCP does not disclose the number of DPD agents, claiming security concerns. (Absent more context, this does not appear to be a valid concern, especially with the other information that is routinely released.) More generally, we are having trouble understanding why Congressional staff are not being required to vaccinate (with appropriate limited exceptions).
Publicly tracking which GAO recommendations have already been implemented by agencies would ensure that noncompliance doesn’t slip through the cracks. “As of 2020, GAO reported that 77 percent of its recommendations are implemented within four years, but only half are implemented after two,” Zach Graves of the Lincoln Network noted in his testimony to SCOMC on strengthening Congressional oversight this Wednesday, Oct. 21st. Better tracking is one way to maximize GAO’s already-considerable ROI.
Better late than never? The USCP Board committed last month to acting on GAO recommendations from 4 years ago by the end of 2021. Many of the recommendations — which pertained to USCP’s transparency, accountability, and stakeholder communication practices — were reiterated in the FY2021 Leg Branch Appropriations; evidently neither was enough to prompt USCP to comply. In a letter, Rep. Rodney Davis recently called out the Board for continuing “to reject and eschew compliance” with the recommendations — and even failing to respond “in any meaningful way.” For Demand Progress’ suggestions for independent oversight of USCP and overall allocation of the FY2022 Security Supplemental, see here.
Catch-22. Currently, USCP Chief J. Thomas Manger is an ex-officio member of the USCP Board. This arrangement gives the USCP Chief a voice on implementing reforms to the USCP mandated by the FY2021 Appropriations/COVID Omnibus. They include directives to create a FOIA-like process, determine which IG reports can become publicly available, publish arrest information as data, and address staff diversity and racial profiling by the force. In recent comments to Roll Call, Chief Manger suggested that he can’t make the decision on his own regarding FOIA and that the decision is not his to make on the IG reports. I’m not sure it’s accurate to say he lacks the authority on his own for many of these issues, but he serves on the Board that has the power to address them all. Let’s hope the Chief is an advocate for reform and that we soon hear the Capitol Police Board speak on implementing these congressional directives.
Jan. 6th indictment. USCP officer Michael Riley has been indicted on obstruction of justice charges related to Jan. 6th, including allegedly instructing a rioter to delete potentially incriminating Facebook posts. The Facebook posts allegedly showed rioters inside the Capitol on Jan. 6th; the officer subsequently told one he agreed with their “political stance.”
ODDS AND ENDS
FLRA confirmation hearing for OCWR’s Grundmann. Current Office of Congressional Workplace Rights Director Susan Grundmann is one of three officials to be considered for posts on the Federal Labor Relations Authority this week. If confirmed in Wednesday’s HSGAC hearing, Grundmann will serve as a Member of the FLRA.
Contempt of Congress? On Tuesday, October 19th, the House Select Committee on Jan. 6th will vote on a motion to hold Trump affiliate Steve Bannon in criminal contempt following Bannon’s failure to comply with the committee’s subpoena. It seems likely the committee will also pursue contempt for other Trump aides who fail to appear for depositions. Former acting AG Jeff Rosen — at the center of Trump’s attempted slow coup — sat for an interview with the committee last week. Jeffrey Clark, another former Trump DOJ official, has also been subpoenaed.
The House Committee on Ethics announced it will investigate John Sample, an aide of Rep. Jim Hagedorn whose printing company may have received a sweetheart deal from Hagedorn’s office. The Committee previously announced its inquiry into Rep. Hagedorn’s potential violations in September; the due date for Hagedorn’s matter is this Thursday, October 21st.
Revolving door: Former appropriations chair Rep. Rodney Frelinghuysen recently registered as a foreign agent to Mexico, LegiStorm reports. Wouldn’t it be nice if members didn’t go straight from public service to corporate service?
Pres. Biden’s SCOTUS Commission has released some of the “discussion materials” the Commission used in its deliberations on the membership and size of the Court. The Commission has served its purpose: focus on reforms that cannot be accomplished (because they require a Constitutional Amendment) and drain energy away from those that could.
Yikes. The new owners of Politico — Axel Springer — seem to have a culture problem, to say the least, and view their media empire as center-right with a hard edge (including an alleged slant in the 2020 election towards the Donald). Notable from this late-breaking New York Times story, besides the incredibly gross and hostile internal culture towards women, was the German media empire’s thwarted effort to combine the punchy Politico with the bullet-friendly Axios, which they could have called Punch-Bull. Okay, I made that last part up. But still.
An Architect of the Capitol employee who repeatedly refused routine USCP security screenings and verbally abused USCP officers on multiple occasions in May 2021 has yet to be disciplined by either agency, Roll Call reports. The AOC IG report substantiating the claims and calling for “management action” was made public on Sept. 14th.
Felony charges for House employee. Fairfax County Police arrested Stefan Bieret and charged him with ten felonies related to the possession of child pornography, per their press release. According to CNN, the House Sergeant at Arms has employed Bieret since 2004, except for a recent 18-month stint with the U.S. Capitol Police.
(Note: see the Top Line for events and hearings scheduled for later this week.)
Working with Whistleblowers on Oversight and Investigations, the latest event in POGO’s Congressional Training Program series, will be held this Friday, October 22nd from 12-1 PM. Staff in Congress, GAO, and CRS can register here to listen to presentations from House Office of the Whistleblower Ombuds personnel on how to protect whistleblowers while advancing oversight efforts.
The International Conference on Legislation and Law Reform and UPenn Carey Law School are hosting two free legislative drafting webinars on October 21st and 22nd. Register here.
The State of Surveillance: 20 Years After the PATRIOT Act is the title of the Fourth Amendment Advisory Committee’s upcoming panel discussion on October 26th at 10:30 AM. Panelists include former Sen. Mark Udall, former Rep. and House Judiciary Chair Bob Goodlatte, Carolyn Iodice of the Clause 40 Foundation, and Laura Moy, Associate Director of the Center on Privacy & Technology at Georgetown Law. Submit questions in advance here; register here.
The Congressional Women’s Softball Game will be played Wednesday, October 27th at Watkins Recreation Center to benefit the Young Survival Coalition. Tickets here.
The Advisory Committee on Transparency is hosting a ‘lightning talk’-format webinar on Monday, November 8th, at 11 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 .
Do you have an event you want to share? Let us know. Email [email protected]