Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
WE NEED YOUR HELP
Many First Branch Forecast readers were unsubscribed from our newsletter for technical reasons that have nothing to do with us. The upshot: hundreds of people lost their subscriptions; many others had our emails go to spam folders. We cannot directly re-subscribe those who were removed.
If you were unsubscribed from the First Branch Forecast, you must resubscribe by clicking here. You will receive a verification email and you must click on it. If you’ve received this message, as far as I can tell, you are still subscribed. But —
Everyone must please make sure that my email address ([email protected]) is in your contacts books, and check your spam folder and rescue this newsletter.
Congressional employees were particularly affected by this. If you have a friend on the hill who might like this newsletter, please encourage them to (re)-subscribe.
FYI, our archives are on our website.
THE TOP LINE
Congress is in. The House is back today and has both the Infrastructure and Build Back Better bills tentatively set for floor consideration; the Senate also is back today. The committee schedule is here, and we’ve put notable (to us) hearings and events in the calendar section, below.
Senate Appropriations. Senate Democrats published nine draft appropriations bills after months of requesting Republicans negotiate over the contents; Senate Republicans immediately condemned their publication as “unilateral” and resulting from a “one-sided process.” With government funding expiring on December 3rd, we appreciate Senate Democrats making transparent their positions, which appear to incorporate a number of Republican priorities. It seems likely that Republican disagreement will result in a skipped markup process and behind-the-scenes negotiations among the parties. Read on for our first reactions to approps, with more to come.
Reimagining the congressional support agencies was the subject of two separate hearings last week: a House ModCom hearing on modernizing three policy support agencies (CBO, GAO, and CRS), and an oversight hearing before the Senate Rules Committee on modernizing the Library of Congress (of which CRS is part). As you might imagine, we’ve got a lot to say — and said it in this new blogpost.
— Support agency modernization. How Congress makes sense of the world was the focus of the House Modernization Committee hearing that honed in on the operations of the Government Accountability Office, the Congressional Research Service, and the Congressional Budget Office. It was one of the most insightful hearings of the 117th Congress. Four issues, in my opinion, encapsulate the challenges facing these agencies. They are (1) funding, (2) Legislative branch agency access to Executive branch-held information; (3) congressional and public access to Legislative branch agency information; (4) workforce management. When I enumerate this list it seems kinda dry, but the hearing was juicy and we’ve identified a number of next steps that reimagine how Congress receives support from its legislative branch policy support agencies.
— The Library of Congress was the focus of a Senate Rules Committee modernization hearing, which seemed largely focused on the copyright office, although directors of CRS and National Library Service for the Blind and Print Disabled also testified. Oversight hearings concerning the Legislative branch are generally rare, staid, complimentary, and superficial — unless there is a scandal. (House Admin’s 2019 hearing into CRS is a notable counterexample — it addressed significant dysfunction at CRS.) We were impressed, however, by Sen. Ossoff’s question to CRS’s Director, Dr. Mary Mazanac, about what she thought the agency should do if it had unlimited resources. The answer, alas, did not express any long term vision or insight into the changing needs of Congress.
Planners of pro-Trump rallies who organized and planned the Jan. 6th “protest” participated in dozens of planning meetings with Members of Congress and White House staff, including Reps. Greene, Gosar, Boebert, Brooks, Cawthorn, Biggs, and Gohmert, Rolling Stone reported. Rep. Gosar reportedly told the organizers that Pres. Trump would issue blanket pardons for an unrelated investigation if they went forward with the “protests.”
Senate Democrats released their nine draft appropriations bills, explanatory text and summaries, as we mentioned above. We’re working on both a top line analysis comparing the House and Senate bills as well as deep dives into what’s in the Senate bills and explanatory texts. We hope to have more for you next week.
Two years’ worth of funding may be at stake in the negotiations, top Senate Appropriations Republican Richard Shelby told Roll Call. In theory, a two-year deal could save time and tribulations next year. Current Republican insistence on so-called “parity” on defense and nondefense spending increases is unreasonable and ignores that defense discretionary spending is already too high, too large a percentage of federal spending, and that the 2011 Budget Control Act had an outsized negative effect on non-defense spending. We’re generally not a fan of multi-year deals because they undermine Congressional control and flexibility as circumstances change, but assuming that a reasonable deal can be struck, it could be better than renegotiating before the midterm elections.
So you have it handy, three appropriations bills — Energy and Water, Agriculture, and MilCon VA — were marked up by Senate Appropriations in August and the House Appropriations Committee reported all 12 approps bills, 9 of which passed the House. For bill text, explanations, and summaries, see here.
We’re paying particular attention to which of civil society’s FY2022 Appropriations Requests are included in these bills.
APPROPRIATIONS: LEG BRANCH
Senate Democrats’ Legislative Branch bill includes a discretionary funding level of $5.924 billion, an increase of $0.624 billion over the prior year and $0.161 billion lower than the FY 2022 budget request. This is an 11.75% increase. By comparison, the House-passed top line is $5.896 billion (we are adding the new Senate-only funding level of $1.094 billion to the House-passed $4.802 billion, which excluded funding for the Senate.) Access the Senate Democratic bill text, explanatory statement, and subcommittee summary here.
The big questions, which we are looking into, are: (1) how do these numbers break out across components within the Senate (especially Senate personal and committee offices) and policy support agencies, and (2) what policy directions are included in the explanatory statement. Our analysis of funding levels proposed in the House bill was published back in June. Differences between the House and Senate’s proposed funding levels for components within the Legislative branch can have a huge effect on how much money is available for policymaking purposes and to address staff pay and retention.
The explanatory statement is where a significant amount of policymaking happens. (Appropriations Committee report language is one of the strongest versions of congressional control of Executive actions post the Supreme Court’s revisionist decision in Chadha.) I’ve read the Senate’s explanatory statement and was struck by how few new policy provisions were included compared to the House’s version. As a general rule, agencies will follow explanatory language favorably reported by the full appropriations committees in either chamber or included in the joint explanatory report accompanying the final bill unless it is contradicted in another committee report. Of particular interest to readers of this newsletter is the creation of a new Senate Diversity and Inclusion Working Group, which will work with the Senate community, including external experts, to recommend options for improving the recruitment and retention of a diverse workforce.
Stay turned. Until I have a chance to work through the line items in the Senate I am reluctant to make pronouncements on the legislation. However, the U.S. Capitol Police would receive a $91 million increase and the AOC would receive a $42 million increase, which leaves me hopeful that significant new resources may make their way towards policy-making functions that have been starved over the decades. As you know, there is bipartisan support for restoring Congress’s capacity to do its work and we are hopeful that this legislation reflects significant progress.
Senate Democrats’ FSGG appropriations bill includes a discretionary funding level of $29.4 billion, a $4.8 billion increase compared to FY 2021 enacted levels, or a 16.3% increase. This proposal represents $154 million less than the president’s request. (The House version — which passed in July as part of a minibus package — proposed $29.1 billion). Access the bill text, explanatory statement, and subcommittee summary here.
Highlights include provisions providing $1 million to OMB to create a system to make apportionment of appropriations publicly available in a timely manner (which Demand Progress has previously recommended) and directing OPM to develop a strategy to increase the number of interns in the federal government over a three-year period.
SEC budget rider budging? A rider included in every annual Financial Services appropriations bill since 2015 has blocked the SEC from regulating public companies’ political spending — but Senate Democrats’ draft FSGG bill appears to have dropped it, the Popular Information newsletter reports. We will see if Republicans insist on its inclusion; we know unregulated, undisclosed political money is close to the Senate Minority Leader’s heart.
Go in depth. Read our analysis for a more detailed examination of the Senate-version of the FSGG bill and how it lines up with the House-version.
Senate Democrats’ CJS appropriations bill includes a discretionary funding level of $79.7 billion, an increase of $8.55 billion over the FY 2021 enacted levels, a 12% increase. By comparison, the House version was favorably reported by committee but has not passed the chamber; it provided for a funding level of $81.3 billion. Access the Senate Democratic bill text, explanatory statement, and subcommittee summary here.
The explanatory statement included several notable provisions that caught our eye:
— The Foreign Agents Registration Act is the focus of a request that directs the Attorney General to evaluate the feasibility of requiring all filings be submitted in an electronic, structured data format and published in a searchable, sortable, downloadable format. (p. 89)
— Whistleblower protection at the Justice Department is the focus of two directives within the explanatory statement. The first raises concerns that contractors are not being protected despite a mandate, and the committee directs the DOJ to explain how the agency will implement unresolved recommendations. (p. 75) In addition, the FBI must report on how it will implement unresolved GAO recommendations from 2015. (p. 94)
— Serious misconduct identified by the OIG is not being prosecuted by the DOJ, and the committee directs the Attorney General to publish the number of cases referred for prosecution, the number of cases the DOJ declines to prosecute, and the reasons why. (p. 77)
— The Justice Department is ignoring Congress — “the Committee reminds the Department that deadlines directed in report or explanatory statement language are not merely suggestions” — reminds the agency to respond “courteously and expeditiously,” and that the committee can call on anyone inside the agency to answer questions. (p. 77)
— Domestic extremism and domestic terrorism are the focus of two provisions. One directs collaboration among federal, state, and local law enforcement, a report on whether violent extremists have infiltrated law enforcement, and an analysis of incidents over the preceding year. (p. 72) The other seeks additional information the FBI’s efforts to counter domestic terrorism, broken out by the four categories the FBI uses to classify their motivations, and the number of agents focused on each topic and the number of incidents and investigations. (p. 90)
— Online extremism is the focus of a request to explore creating a central clearinghouse for extremist content. (p. 114). An additional section on advanced threat analysis and data analytics hints at FBI collaboration with other entities on improving the FBI’s data-centric reach.
— Classified annex. No information is published about the contents of the classified annex, but the fact that it exists and constitutes secret law is notable. (p. 69)
Secrecy about political appointees presents huge problems for government accountability. The identity of the Justice Department’s head of the Office of Legal Policy has been unknown since September 3rd, the American Prospect reports. Repeated requests were ignored by the press office but ultimately the DOJ admitted the official is former Big Law partner Susan Davies, who represented Facebook in a prior life. This underscores the need for Congress to enact the PLUM Act, which would modernize the reporting system for the president’s ~4000 political appointees and has bipartisan support from civil society. The House passed the PLUM Act and it’s also been attached to the House-passed version of the NDAA.
House Democratic leadership’s failure to disclose how committee members, including committee chairs, are selected by the party is similarly dismaying. Brick House has a great piece articulating why House Democrats should publish the rules governing its Steering and Policy Committee — the powerful group that makes committee appointments — and disclose a list of its members. (Republicans have historically been better about this, and publish lists of Policy and Steering members.) In recent times, the Speaker dominates the Steering Committee through her control of appointments. With possible changes at the top for the 118th Congress, the rank-and-file should demand greater insight and representation into the double-secret committee that effectively controls their fates.
80% of Capitol Police Inspector General Recommendations were not implemented, according to a Politico faux-tweet, the ~Congress Minutes~. The report summary cited by Politico is not publicly available, but reportedly says only 21 out of 103 recommendations have been completed. We note, as we seem to do often these days, that Appropriators directed the USCP IG to make a list of reports it could publicly release and the USCP to implement a FOIA-like process
ZERO. A letter obtained by The Hill suggests that the USCP may be still at zero with respect to two key transparency demands in the FY 2021 appropriations bills. The Capitol Police have not created any documents regarding a FOIA-like process, nor has the USCP IG created a report on which IG reports could be made publicly available. The document was offered in court Friday as part of journalist Shawn Musgrave’s common law right of access suit against the USCP (Musgrave v. Manger). Kel McClanahan, Musgrave’s lawyer, summed up the transparency problem well. Regarding USCP, McClanahan said: “They were told to do two things by Congress related to transparency and they did neither. And if we hadn’t filed this lawsuit, we never would’ve even known.”
While we’re at it, the Capitol Police still are not publishing their arrest information as data. These arrest summaries are not in a helpful format, despite direction from appropriators, and they continue deleting old arrest summaries off their website.
Independent Inspectors General was the topic of an HSGAC hearing last week; we hope to have a summary soon.
The Federal Reserve announced new rules around senior officials’ conflicts of financial interest on Thursday, just days after the American Prospect reported on Fed Chair Jerome Powell’s financial disclosure showing a sale of between $1 million and $5 million in personally-held stocks in advance of a significant market downturn in October 2020. The new rules “prohibit the purchase of individual securities, restrict active trading, and increase the timeliness of reporting and public disclosure by Federal Reserve policymakers and senior staff.” Such activities led to the resignations of two Fed presidents earlier this month — but Fed officials will still be able to purchase “diversified investment vehicles, like mutual funds.” The Prospect notes that Powell’s trade (on an index fund) would still be permitted.
Step aside, step aside. Rep. Jeff Fortenberry stepped aside from work on the Appropriations Committee after his indictment arising from alleged illegal foreign contributions to his Congressional campaign, per House Republican Conference rules. According to the rules, if sentenced to two or more years’ imprisonment, Rep. Fortenberry will be permanently removed from his committee appointments.
The House Committee on Ethics will continue its investigations into four members’ (Reps. Jim Hagedorn, Alex Mooney, Mike Kelly, and Tom Malinowski) alleged violations of “House rules, standards of conduct, and federal law.” Reps. Hagedorn and Mooney may have mishandled campaign funds; Rep. Kelly’s wife may have purchased steel stocks using insider information from the Member’s work on industry policy; and Rep. Malinowski may have failed to disclose $671,000 of stock trades.
ODDS AND ENDS
Steve Bannon is contemptible, according to the House of Representatives, which voted to hold him accountable for defying a congressional subpoena. But will the Justice Department enforce the contempt resolution? This shouldn’t be a close call.
Rep. Price is retiring from Congress; this leaves a vacancy at the top of an appropriations subcommittee, T-HUD. (We liked his book on Congress). We note that Rep. Tim Ryan will also be stepping down as a cardinal and current chair of Leg. Branch Approps. in the hopes he can step up to the Senate.
New additions to the Parliamentary Speech dataverse include text of Welsh, Scottish, and Russian parliamentary speeches. The ParlSpeech V2 data set already includes speeches from nine other representative democracies and yields new knowledge about parliamentary operations — for example, word usage over time (in German, but you get the point). (h/t Data Is Plural)
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.
Stable democracies rely on the consent of the losers, but how do we regain democratic norms once they’ve been abandoned? Losers’ Consent is the title of a New America and R-Street Institute panel discussion on democratic forbearance on October 26th at 1 PM (and the title of a 2005 PoliSci classic). Register here.
Judicial ethics and transparency, specifically the limits of statutes and rules on that topic, will be considered in a hearing scheduled for October 26th at 2 PM in the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet.
The Senate Judiciary Committee will hold anoversight hearing to examine the DOJ on October 27th at 10 AM.
The Congressional Women’s Softball Game will be played 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.
Lightning strikes November 8th. 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.
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]