Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
THE TOP LINE
The House and Senate are back this week, as I’m sure you noticed.
— Senate. You’ve probably seen all the commentary on Senator Schumer’s letter on the Senate schedule for the next month or two. Of immediate interest is the Senate considering the NDAA this week — we can expect a lot of legislation will ride along — and everyone seems to agree that an appropriations Continuing Resolution is necessary, although we don’t yet know for how long. BBB and voting rights also made his list of items to do, but they entirely depend on Sens. Manchin and Sinema (even with notional bipartisan support for a VRA update).
— House. We didn’t see anything unexpected on the House’s floor schedule, although BBB is apparently (tentatively?) scheduled for a vote. I don’t know when the censure resolution for Rep. Gosar will be considered, but he has earned it. In the olden days, wouldn’t his party kick him off his committees?
Personal and committee staff could unionize under the Congressional Accountability Act, as well as be afforded other labor protections, should the House or Senate adopt a one-chamber resolution implementing regulations promulgated by the Office of Congressional Workplace Rights that date back to the mid-90s, according to testimony from OCWR representatives before the House Administration Committee last week. Congressional staff work under incredibly difficult circumstances; there’s a long history of unevenly applying federal workplace laws to the Legislative branch, including labor laws, and OCWR’s testimony sharpens the political question of whether members of the House (or Senate) will push a resolution to put labor protections into effect. More below.
Contempt of Congress. We are watching the gears of the Justice Department slowly turn to address Steve Bannon’s refusal to comply with a House subpoena. Enforcement of a congressional contempt citation should not depend on the vagaries of the Justice Department. We agree with calls to modernize the statutory contempt process to include an independent counsel and an expedited review process — such provisions likely would be opposed by elements of the Executive branch, which is why they should be added to legislation the White House would be unwilling to veto (such as White House funding). We are also not fans of Executive privilege generally, and successful efforts by the White House to expand the ambit of the privilege (through DOJ’s OLC opinions) which is a matter that warrants significant attention. Just for fun: Here’s a survey of committee rules on subpoenas.
Senator Leahy will retire at the end of this Congress. He is a tremendous champion of transparency and open government and has pushed these issues from his positions as chair of the Appropriations committee, the Judiciary committee, and elsewhere. He waged a decades-long fight to have CRS reports made publicly available (first co-sponsoring legislation on that point with Sen. McCain in 1998) and has shepherded countless FOIA reforms into law.
THE OFFICE OF CONGRESSIONAL WORKPLACE RIGHTS
Congressional unionization, workplace complaint mediation, and outstanding cybersecurity concerns were among the highlights of last week’s oversight hearing on the Office of Congressional Workplace Rights and “lessons learned” from the 1995 Congressional Accountability Act, as amended in 2018. Witness testimony is available here; hearing video is here. Our recs for the 2018 CAA are here. In case any of the following moves you to action, OCWR is hiring a new director. Apply within.
Congressional unionization. We appreciated Rep. Jamie Raskin’s excellent questions about extending unionization protection to all Congressional staff. The Congressional Accountability Act provided for labor protections, including the right to unionize, for some Leg branch support agencies (including the Capitol Police, the Library of Congress, and GAO). The law also provides labor protections to all other Congressional staff (including personal, committee, leadership, and some support staff) — but that provision still hasn’t gone into effect because the House and Senate did not adopt relevant OCWR regulations to apply to their respective chambers. Not only does the CAA afford new protections, but the means to vindicate those rights. For more on the history of Congressional unionization, see our brief recent history.
Outstanding recommendations. The CAA tasks the OCWR Board of Directors with submitting a biannual report to Congress reviewing current laws protecting workplace rights in the Leg branch and recommending new ones. OCWR’s report to the 117th Congress also lists recommendations that have yet to be implemented. Having read the reports over the years, it is notable how many recommendations for legislative action come up again and again but have yet to be adopted by the chambers. On the list: employment protections for veterans; tracking workplace injuries; maintaining personnel records; ADA protections, and more.
The agency has also been slow, fwiw, with implementing reforms to its own management practices, according to a 2019 GAO Report. In addition to those management issues, cybersecurity has also been a real concern at OCWR, when in 2018 Sen. Wyden pointed out that the agency’s practice of storing Congressional sexual harassment complaint information in a private, third-party data center places victims’ personal data at risk. OCWR moved the server to a secure facility following Wyden’s request — and cybersecurity is the focus of a 2020 GAO report — but staff could not respond at the hearing to member questions regarding cybersecurity, deferring questions until later. The possibility of leaks of complaints against members of Congress creates real concern about influence operations by foreign governments and others against those members. Yikes.
— OCWR, by the way, isn’t the only place inside the Legislative branch to have imperfect cybersecurity and management practices. We note that the Legislative branch has six IGs, but many gaps that they do not cover (including OCWR). Perhaps it’s time to consider having a central, independent IG office that oversees the entirety of the Legislative branch or to have an IG responsible for those support agencies that are not otherwise covered.
15-20% of employee requests for mediation of workplace complaints are turned down, OCWR finds. They recommend a fix so that employees have the option to ask for mediation and offices cannot reject that request.
CONGRESSIONAL BUDGET OFFICE
Everyone is interested in the CBO these days. CBO was created because the Legislative branch should not trust OMB and needs an independent mechanism to evaluate spending proposals. It has become an (underfunded) powerhouse used at times by fiscal hawks to put their finger on certain policymaking decisions to the detriment of other priorities and modes of analysis. Additionally, any discussion of CBO must also take into account how legislation is crafted to work around the idiosyncrasies of scoring rules — it is not necessarily CBO’s fault that the rules don’t always make logical sense, although they are responsible to the extent they are applied consistently, accurately, and fairly — and that a negative effect of using CBO as a legislative doorstop can be the creation of perverse financial incentives that that weaken the effectiveness of proposed legislative programs and undermine the goal of Congress of enacting the best possible national policy.
Show me the money? CBO, like other Legislative branch support agencies, has significant difficulty getting information from the Executive branch to perform their estimates. This issue came up at a recent ModCom oversight hearing; we think the agencies would all benefit from a legislatively-authorized framework to request and obtain information from the Executive branch (a form MOU), which would expedite the process for information sharing. Demand Progress had recommended that CBO submit a report on obstacles to accessing federal agency data necessary for CBO’s work to Congressional appropriators.
Whose money? CBO consults with outside experts, which exposes the agency to potential conflicts of interest — especially because the experts’ financial disclosure forms are not easily accessible. CBO’s standing panels of experts on health and economics include academics, private sector agents and lobbyists, and others; these advisers may have political or financial conflicts of interest, which they are required to disclose. Disclosure forms have been available in CBO’s office since 2019; as of February, scanned PDF documents can be accessed remotely through a cumbersome registration process. We’re glad CBO made these public records accessible — kudos for that effort — but we urge the agency to publish that information online without the rigamarole.
Who’s the boss? The informal process for selecting the director of CBO, detailed in this CRS report, is very curious. The House and Senate Budget Committees take turns recommending a nominee to the Speaker and President pro tempore of the Senate. What that means is that who is in charge of the budget committee at a particular time can have a significant effect on who is chosen. The issue of how Legislative branch support agency heads are chosen is weird and inconsistent — maybe something we’ll discuss in another newsletter.
Whistleblower protections would be extended to federal contractors by an amendment to the NDAA offered by Sen. Elizabeth Warren. Nearly 150 organizations including Demand Progress wrote in support of the amendment, noting that the bulk of government spending on infrastructure and COVID-19 recovery will go to federal contractors and that strong whistleblower protections are needed to “minimize fraud, waste, and abuse.”
The Biden administration should declassify the US government’s post-9/11 torture program, the Boston Globe Editorial Board wrote last week, including the partially-declassified 2012 Senate Intelligence Committee report and related case documents, such as those considered by the Supreme Court in the case of United States v. Zubaydah last month. (Notaby, several justices were skeptical about the government’s assertion of state secrets privilege to the torture of Abu Zubaydah at a CIA black site in Poland because, in the words of Justice Elena Kagan, “everyone knows what [the state] is asserting privilege on.”) The Editorial Board noted that declassification could lead to prosecution of perpetrators of the most serious crimes, and could allow torture victims whose medical records have been classified to receive medical care. This seems like the kind of requirement that should be included in the Intelligence Authorization Act or the NDAA. Just saying.
Research rooms at the National Archives are selectively reopening, National Archivist David Ferriero announced last week. Check individual facilities’ websites for details.
Senate appropriators should fund State Department and White House internships at or above the levels included in the House-passed bill, a coalition led by Pay Our Interns and including Demand Progress wrote in a letter last week.
Modernizing the Congressional Review Act to expedite the process by which Congress can disapprove federal agencies’ rules and regulations is the subject of a new report prepared for the Administrative Conference of the US. ACUS has drafted recommendations for reforming CRA based on the report, which include provisions to improve the transmission of agencies’ regulations to Congress and better police noncompliance.
As expected, a DC District court rejected former Pres. Trump’s effort to restrict access to Trump Administration records on Tuesday. From Judge Tanya Chutkan’s ruling: “Presidents are not kings, and Plaintiff is not President.” Speaker Pelosi released a statement in support of the ruling and “the House’s broad investigatory powers.”
Backlash bluster. The 13 Republican members of the House who voted for the infrastructure bill may face a campaign led by other members of their caucus to strip them of their committee assignments, according to Punchbowl. One of the members, Rep. Fred Upton, said he received over 1.000 calls, including death threats, after voting for BIF. Rep. Upton’s office phone number, and those of 11 other members, was tweeted along with a critical message by Rep. Marjorie Taylor Greene after the vote. If we were kicking folks off committees, we’d probably start with Members who are inciting violence against other Members.
Censure watch. As we mentioned above, House Democrats introduced a censure resolution Friday to formally condemn a violent anime clip Rep. Paul Gosar tweeted out last week. The clip shows Rep. Gosar’s avatar killing Rep. Alexandria Ocasio-Cortez’s avatar and attacking Pres. Biden’s, interspersed with footage glorifying Border Patrol violence against migrants at the US-Mexico border. We’re generally not a fan of punishing Members for expressing their views — and we think there should be wide latitude even for coarse discourse — but this video and the cumulative effect of ongoing attacks by Rep. Gosar suggests a pathology that needs to be addressed. All Members are entitled to a safe workplace. Remember our discussion of the term stochastic terrorism?
Masks. We’re going to stop writing about Members of Congress fined for not wearing masks. The repeat offenders seem to be doing it for attention — and fundraising purposes — and we don’t want to amplify attention to their bad behavior. At some point, probably one that’s passed, the House should consider additional punishment mechanisms. We do fear a roll-back of common-sense protections for Members and staff in the 118th Congress.
Some ultra-wealthy politicians all but avoid taxes, just like other ultra-wealthy people, according to the latest ProPublica report in its series on the tax records of the 0.001%. They’re using a tax loophole inadvertently punched into the estate tax in the mid-90s.
ODDS AND ENDS
Last week’s Advisory Committee Transparency lightning talks were excellent and well-attended — thank you to the expert presenters and everyone who made this happen! Video from the event is available here. We’ll be cutting the presentations into clips, so expect them soon.
USCP officer Harry Dunn will challenge current Capitol Police union chair Gus Papathanasiou.
Proxy voting was extended in the House until December 30 by Speaker Pelosi.
Letter-writing is still one of the key tools at lawmakers’ disposal, especially in a gridlocked Congress. A great article from Protocol describes letters as an “obscure policy lever, convincing agencies they have political cover to take on more controversial enforcement, interpret statutes more broadly and even dust off powers they’ve long abandoned.” (h/t Katherine Tully-McManus)
The seating arrangements of parliaments worldwide are schematized in Parliamentbook, a wonderfully nerdy gift idea for the parliament-heads in your life (H/T Kevin R. Kosar). This is a good opportunity to remind you that “left” and “right” was originally used to describe seating in the National Assembly after the French Revolution. (Supporters of the king sat on the right; supporters of the revolution sat on the left.)
Canadian House of Commons Clerk Charles Roberts faces accusations of displaying bias towards Liberals from several officials who have left their posts, including allegedly falling asleep during question period and contributing to a disrespectful work environment.
“Obstacles to the Democratic Agenda on Capitol Hill” is the title of an event hosted by R Street this Thursday, November 18th at 12:00 PM ET. Register here.
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