Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
THE TOP LINE
OOO. The Senate is in recess until the week of November 15th; no floor votes are scheduled in the House until the week of the 15th, although there are a few committee hearings. Before you schedule your long lunches, RSVP for today’s Advisory Committee on Transparency’s lightning talks on Big Ideas for Improving Transparency and tomorrow’s House Admin’s hearing on the Office of Congressional Workplace Rights. With Congress’s approval of BIF last week, expect BBB, appropriations, and the NDAA on Congress’s plate when it comes back.
Top lines. A bicameral, bipartisan topline agreement is urgently needed so that appropriators can negotiate on the particulars, Sen. Leahy said in a statement Thursday. Republicans have yet to make a counteroffer to Democratic proposals. Sen. Leahy accurately described the potential of an “endless cycle of continuing resolutions” as an irresponsible way to govern, pointing out year-long CRs as counterproductive to Republicans’ stated goals of increasing defense spending, countering China, and so on. We have yet another process stand-off: Dems want to negotiate top line numbers and then would be willing to discuss policy riders; Republicans want policy rider agreement prior to discussing top line numbers.
Increasing Legislative branch funding is the focus of a conservative coalition letter focused on congressional offices, GAO, and CBO. The letter, organized by the Lincoln Network, urged appropriators to “allocate an increased share of resources from the discretionary spending pool for Article I responsibilities.”
Oversight of the Office of Congressional Workplace Rights — specifically, lessons learned from the 1995 Congressional Accountability Act, which applied some employment laws to the Legislative branch and was amended a few years back — is the topic of a Committee on House Administration oversight hearing set for tomorrow, Nov. 9th, at 3 PM. The hearing comes amid the nomination of OCWR Director Susan Grundmann to serve on the Federal Labor Relations Board; per Congress.gov, a hearing concerning her nomination was held on Oct. 20th. FWIW, we’d be interested to know OCWR’s views on moving forward with unionization for Legislative branch political staff; the original CAA had OCWR promulgate regulations for support agencies and congressional offices, but only the former has been put into force. Are OCWR’s union regs for political offices still in effect and just waiting to be turned on? Unions are the traditional tool for workers to protect their rights and to collectively advocate for better working conditions.
Strengthening Congressional oversight powers was the topic of the latest House Modernization Committee hearing last Thursday. We have an extensive recap here and Demand Progress released a report with four recommendations here. In our recap, we cover the problems Congress has in conducting oversight, the cliches that have arisen about what’s holding it back, and summarize important reform ideas.
Process determines policy. The House Rules Committee’s purview is House procedure, including the rules of the House and the terms for floor debate on specific legislation. As RollCall noted last week, those duties grant the committee — and the Speaker of the House, who controls majority appointments to the committee — extraordinary power. (The rules didn’t always work this way.) We’ve written extensively about Demand Progress’s recommendations to modernize the Rules of the House, some of which have been put into effect and all of which received a thoughtful hearing, and our recommendations to modernize the Rules of the Democratic Caucus, which largely have not been put into effect (although they are now, finally, publicly available, although the rules of the Steering Committee are not.) With the expected transition in leadership at the end of this Congress, there is no doubt that the rules governing party operations and House operations will be pivotal to determining who has power and how it is exercised. We have a video primer on how the House adopts its rules.
Good news for the AOC. A recent IG report found significant improvements in how the AOC is handling phase 2 of the Cannon Building re-construction project compared to phase 1.
Transparency bills on the move. At HSGAC’s business meeting on Wednesday, the committee favorably reported the IG Independence and Empowerment Act (H.R. 2662) and the Senate version of the Access to Congressionally Mandated Reports Act (S. 2838); there is a companion bill to ACMRA with some substantive differences sponsored by Reps. Quigley and Comer that passed the House earlier this year (H.R. 2485) — ACMRA applies to fewer reports in the Senate version. Sens. Portman and Klobuchar both celebrated HSGAC passing the ACMRA, emphasizing the transparency, oversight, and education benefits of a public Congressional report repository.
A bill strengthening the disclosure system for foreign lobbying activities was introduced in the House on Thursday. The bipartisan Foreign Agents Registration Modernization Act would strengthen existing foreign lobbying disclosure laws (FARA) by creating a publicly-accessible, searchable database for disclosures. We note that the Justice Department committed to “investigat[ing]” publishing foreign lobbying disclosures as “structured data in a machine-readable format” in 2014; the most recent DOJ audit of FARA, completed in 2016, also recommended creating an e-filing system. The 2016 DOJ audit found poor overall compliance with FARA and recommended updating the FARA fee system; a coalition including Demand Progress echoed that recommendation and made many others in submitted testimony to the Senate Committee on the Judiciary in 2017. As we noted last week, the FY 2022 Senate CJS Appropriations draft bill directs a study on requiring all filings to be in electronic form, and more.
The White House has yet to make concrete commitments on transparency ahead of the 2021 Open Government Partnership Summit, a global initiative ostensibly focused on government transparency and accountability, wrote Alex Howard of the Digital Democracy Project in a brief submitted to US civil society leaders. Howard urged the leaders to refuse to participate in the summit unless the Biden Administration takes steps towards creating a “cohesive national strategy” around “good government, anti-corruption, freedom of information, press freedom, civic literacy, and participatory democracy.” The US government was always more interested in foreign commitments than moving forward domestic reforms even during the Obama administration, and US involvement in OGP dropped off precipitously during the Trump presidency, particularly after a weak plan was submitted in 2019. In spring 2021, OGP hosted an event and issued a report on how to reverse that trend. We are cynical about OGP and can’t help but agree with Alex’s concerns that this is #openwashing. There are a number of obvious confidence-building steps the Biden administration could undertake.
The Open Courts Act — a bill that would modernize and allow free public access to federal court records — was introduced to a House Judiciary Subcommittee on Wednesday. Companion legislation (S.2614) was introduced in the Senate in August. As we noted last week, the Courts have a lot of work to do to fix their technology and modernize public access to court records; we are still reviewing the scope of the bill, but it looks like a good start. Civil society organizations called for reform in this June letter.
Grand jury records. The federal judiciary’s Advisory Committee on Criminal Rules rejected a proposal to allow for public access to 40-year-old grand jury records that are of “exceptional historical or public importance.” Per Reuters, the committee voted 9-3 against release on the basis that releasing publicly significant but very old documents could have unintended consequences and endanger witnesses. The Garland DOJ had backed releasing the documents in limited circumstances to historians and others, a welcome turn-around from a prior DOJ position. The underlying question — do federal courts have the authority to allow for these disclosures — is the subject of a circuit split.
A DC District Judge will likely reject former Pres. Trump’s effort to restrict access to Trump Administration records, the Washington Post concluded based on Thursday’s hearing. Judge Tanya Chutkan indicated that the power to withhold the documents rests with the current president.
ODDS AND ENDS
A list of more than 300 FOIA online reading rooms was published by data librarian Lisa DeLuca here. (H/T Data is Plural newsletter). These reading rooms are where agencies publish records that have been requested by the public three times or are likely to be requested repeatedly by the public.
The UK parliament is considering weakening bullying and harassment protections for MPs and staff by making its independent review board’s findings subject to appeal. This is reminiscent of efforts a few years back to undermine the House’s Office of Congressional Ethics, an effort led by people who had been dinged for potential ethical violations. Regarding OCE, we have recommendations to strengthen that office, including restoring how its board is appointed and granting it subpoena authority over non-Congressionals.
TechCongress has placed technology fellows in Congressional offices since 2015 to provide much-needed expertise on legislative tech; decimated staff salary budgets are a major barrier to hiring tech experts as full-time staffers, according to founder Travis Moore.
Experts explain the many proposals to reform the filibuster on a new website from Protect Democracy, the Filibuster Reform Forum.
AirBnB will provide short-term housing coupons to 50+ fellows associated with three institutes that promote diverse congressional staff and racially equitable policy, the company announced. Eligible fellows with the Asian Pacific American Institute for Congressional Studies, Congressional Black Caucus Foundation, and Congressional Hispanic Caucus Institute will be able to “book weeks-long stays before the start of their fellowship placements.”
Two bills to reform the process by which Congress’ Attending Physician is selected are the subject of a recent GovTrackInsider report. Currently, presidents nominate the Attending Physician; one of the bills (H.R.4862) would require Senate confirmation and the other (H.R.5091) would fill the position using a joint agreement between the Speaker of the House and the Senate Majority leader. We have significant concerns about the autonomy of the Attending Physician, that office’s ability to make public health decisions, and its unwillingness to speak to the press about its decisions.
Congressional salaries and allowances is the subject of a recently-updated CRS report.
The Advisory Committee on Transparency is hosting a ‘lightning talk’-format webinar today at 11 AM ET. Register here.
The future of law libraries will be discussed at the Library of Congress’ Jane Sánchez Memorial Lecture tomorrow at 3 PM. Register here.
Partnership for Public Service’s Alliance for Congress is hosting an event titled Serving the People: Investing in Congressional Capacity, set for Wednesday from 1:00 to 2:15 p.m. ET. Register here.
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