First Reactions to Senate Democrats’ Commerce, Justice, Science FY 2022 Appropriations Subcommittee Bill

On October 18, 2021, the Senate Appropriations Committee Democrats released draft bill text, an explanatory statement, and a subcommittee summary for the Commerce, Justice, and Science appropriations bill. We reviewed the contents and compared the proposed funding to the enacted levels from the last Congress.

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

We were disappointed to see that language requiring transparency for Office of Legal Counsel opinions was not included in the Senate version. This language, which would have encouraged the Justice Department’s Office of Legal Counsel to proactively release final OLC legal opinions, had been included in the House CJS Appropriations Committee Report (thanks, in large part, to the leadership of Rep. Cartwright). Here’s why final OLC opinions should be available to Congress and the public. However, so long as the explanatory language is not modified or negated in the version adopted by the Senate or agreed to by the chambers, the House’s pro-disclosure language will become operative.

The Senate CJS Committee 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) Demand Progress had requested language on FARA be included.

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 in the Senate Explanatory Statement. 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) A related provision was included in the House CJS Appropriations Committee Report, directing the FBI to share information about violent extremist infiltration of law enforcement with Congress. (p.61) 

The other provision in the Senate CJS Committee Explanatory Statement 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). A similar provision was included in the House CJS Appropriations Committee Report (p. 94). 

— 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. A similar provision was included in the House CJS Appropriations Committee Report. (p.62-63)

Classified annex. No information is published about the contents of the classified annex, but the fact that it exists for both the House and Senate CJS budgets and constitutes secret law is notable. (p. 69)

Aside from OLC opinion transparency and the provisions discussed above, the House CJS Committee’s Report contained several notable provisions:

Police Body Cameras. The Committee encouraged the agency to adopt police body cameras, and required that it do so with protections set forth in the George Floyd Justice in Policing Act of 2021 – including transparency and accountability. (p. 58). 

Facial Recognition Technology. The Committee expressed concerns about misuse of facial recognition technology by federal agencies. The Committee directed the Department to develop ethics policies for facial recognition technology that would protect privacy and incorporate recommendations by the GAO. (p. 59). 

Information Sharing. The Committee discussed law enforcement information in two provisions. The Committee encouraged the FBI to engage in more cybersecurity two-way information sharing with private sector partners and to use partnerships with academia and private industry to forward cybersecurity goals. (p. 76). The Committee also encouraged regional law enforcement information sharing activities. (p. 116).

Police Reform and Accountability. The Committee dedicated $400,000,000 in police accountability grants, and an additional $25,000,000 to develop pilot programs and implement standards for training, hiring, recruitment, and oversight. (p. 96). The Committee also included funding for anti-bias programs, civilian review board development, and community policing development. (p. 115).