First Branch Forecast: Police, PODA, and the Courts 12/06/2021

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THE TOP LINE

This week: the Senate is in today; the House is in on Tuesday. Congress cleared a CR that funds the government through February 18th so this week expect a debt limit vote, NDAA consideration, and likely the Protecting our Democracy Act (PODA). Watch as the House’s suspension list becomes ridiculously long. In committee, Senate Rules will look at the Capitol Police on Tuesday; House Rules will consider which of the 57 amendments to allow for the Protecting Our Democracy Act on Tuesday; Senate Judiciary will mark up a bill modernizing PACER on Thursday. ICYMI, the 2022 House Calendar is out.

A cranky note: appropriations are how Congress dictates priorities, so the ongoing use of CRs and the threat of a long-term CR is no less than an abdication of the responsibility to govern and an undermining of congressional prerogatives. It’s not the “Trump” or “Biden” spending bill, but Congress’s.

Capitol Police. In advance of Tuesday’s USCP oversight hearing, today we are releasing model public records request regulations (announcement) (regs). We got tired of waiting for the Capitol Police to implement Congress’s instructions to create a FOIA-like process — the agency is notoriously opaque — so our resident experts on FOIA and Congress spent the last few months drafting model regulations to (1) show that it’s possible and (2) create a standard to judge the USCP should they act. Perhaps it will liven up Tuesday’s hearing with the USCP IG.

Succession. It’s no secret there will be many changes in party and committee leadership in the 118th Congress and that jockeying is happening now. We are intrigued by the American Prospect’s deep dive into Hakeem Jeffries record and leadership style. On the Republican side, an opinion column from a senior fellow at a conservative think tank asks the question of whether McCarthy is suited to be Speaker. There’s also some drama around Elise Stefanik. For our part, we’re still wondering whether Rep. Jeffries will release the rules for the House Dem Policy and Steering Committee and Sen. Schumer will release the Senate Democratic Party Caucus rules.

Also: Our long-awaited recap of the 2021 Library of Congress virtual public forum on public access to legislative information is now available. (The Library has not committed to holding additional conversations with the public; the prior ones had to be requested by Appropriators). And see a new Twitter bot that tracks Leg branch procurements. The bot is how we know, for example, the Capitol Police are ordering 281 units of body armor.

PROTECTING OUR DEMOCRACY ACT

The Protecting Our Democracy Act, legislation intended to return to Congress powers arrogated to the Executive branch, will in short order be considered by the House Rules Committee and on the floor. Notable beyond the legislation itself are the 57 amendments offered by rank-and-file members, many of which would significantly strengthen the bill, if adopted. (We even see Rules Committee Chair McGovern is one of those offering amendments.)

PODA Status. PODA is likely to pass the House, but it’s unlikely the bill would be adopted unchanged by the Senate; perhaps provisions will be moved separately. Provisions may also inspire other legislation and perhaps be attached to must-pass bills. In addition, some of PODA’s amendments that concern House operations would become part of the chamber rules or standing orders if they are adopted by the House, so we will see whether they are permitted to come up for a floor vote.

Here are highlights from the amendments:

• TS/SCI clearances for personal office aidesAmendment 12 would provide every member of the House who serves on a committee with the ability to designate one personal office staffer as eligible to apply for a TS/SCI clearance, bringing the House’s practice in line with the recent policy change in the Senate. This is a fantastic idea, as members routinely need assistance with overseeing and legislating on classified matters and the Executive branch routinely up-classifies information to make that difficult. The amendment is offered by Rep. Sara Jacobs and joined by Reps. Stephanie Murphy, Jim Lanegvin, Rashida Tlaib, and Jesús Garcia — and we hear it will have bipartisan co-sponsorship. We note Amendment 55, offered by Rep. Issa., would allow incoming staffers who already have clearances to not count against the two TS clearances allowed per personal office.

• Intelligence community oversightAmendment 23 would strengthen the GAO’s ability to conduct oversight of elements of the Intelligence Community, an authority that GAO asserts but that the Justice Department’s Office of Legal Counsel says does not exist, often resulting in non-compliance by the IC. The very clever language appears to mirror that passed by the House in 2010 and addresses an issue raised by the Comptroller General that is discussed in the recent testimony by the National Security Counselors’ Kel McClanahan. Rep. Ocasio-Cortez offered the amendment.

• Executive branch transparency. There are several welcome Executive branch transparency amendments, including: Amendment 9, which would write into law disclosure of the White House visitor logs, offered by Reps. Quigley & Ocasio-Cortez; also Amendment 54 that similarly requires disclosure of visitor logs and adds salary and financial disclosure information, offered by Rep. Cicilline; Amendment 16, which would require agency reports to Congress to be in machine readable formats, offered by Rep. Correa; and Amendment 26, which requires reporting to Congress of incoming administration officials seeking clearances, offered by Rep. Gallego.

• Executive branch accountability. There are several amendments on Executive branch accountability, including: Amendment 33, which strengthens provisions allowing for a president to be indicted or prosecuted while in office, offered by Rep Raskin; Amendment 20, which would codify Biden’s executive order on ethics, offered by Reps. Ocasio-Cortez and Lynch; and Amendment 44, containing numerous Hatch Act fixes, offered by Reps. Pascrell and Quigley.

• Emergency powers.There are a bevy of amendments addressing the expansive assertions of emergency powers by the White House. I don’t have the expertise to evaluate them, but see amendments 3, 4, 5, 28, 51, and perhaps others. I suspect Amendment 51 is likely to move — it would end permanent emergencies and expedite the review of emergencies — as it is offered by Reps. McGovern, Meijer, and DeFazio. Amendments 3-5, offered by Rep. Omar, seem reasonable to me on their face.

• Other notable provisionsAmendment 8, which would force the government to prove specific intent to harm national security when prosecuting Intel Community whistleblowers, was offered by Rep. Tlaib — one can imagine whyAmendment 37, which would create an OMB IG, was offered by Rep. Foxx; Amendment 43, which would require Executive branch agencies to reply to requests for information from 7 members of House Oversight regardless of whether they are in the majority or minority pursuant to 5 USC 2954, was offered by Rep. Foxx; and Amendment 57, which is not displayed on the website but is described as requiring disclosure of funding sources for House fellowships in the way they are already required in the Senate, was offered by Rep. Foxx.

WORKING IN THE LEG BRANCH

Many Congressional staff are at (or past) their breaking points, NBC Washington reports; Roll Call describes the holiday spirit as “fear, not cheer.” Staff are mad about feeling unsafe after January 6th, mad about a lack of COVID precautions, mad about terrible pay and long hours, and mad about feeling underappreciated. The congressional schedule isn’t helping things, either. We can see it in the unusual number of senior staffers that are departing — seems like someone should be looking at the turnover data.

The US simply can’t afford to pay Congressional staffers as little as it does, Matt Yglesias correctly asserted in Slow Boring last week, noting that Congress’ revolving door problem is the result of the systematic defunding of the Leg branch over the last decade. (It’s actually the last quarter-century, but he’s on the right track.)

Reports of rampant racism in Leg branch workplaces must also be addressed.The AOC settled a lawsuit alleging racial discrimination for $135k last weekRoll Call reports. AOC employee Anthony Green, who is Black, alleged he “found a noose hanging from equipment he was assigned to inspect and was called racial slurs by white colleagues.” Several other employees have sued AOC for discrimination on the basis or race and/or national origin in recent years; a damning IG report found proof of sexual harassment within the agency; and ongoing litigation alleges whistleblower retaliation. (H/T Chris Marquette for reporting this beat.) We know the AOC isn’t the only place this is happening.

The undermining of Congress imperils district workers too, as we saw last week with the break-in and vandalization of Rep. Debbie Dingell’s Michigan district office. The break-in highlights how funding decisions lead to major security problems: the most secure location for congressional district office is inside a federal building, but in some cases Members who would like to rent spaces in federal buildings cannot afford to do so. We’ve recommended a fix for that. (There’s also the stochastic terrorism made more likely by the behavior of members of the coup crew — yeah, I just made that name up — with the unforgivable antics of some far right members, successfully aimed at grassroots fundraising and effectively avoiding censure by co-partisans, that make working on the hill increasingly unsafe.)

Relaxed mid-pandemic sartorial norms are among the few bright spots for Congressional staffers these days, writes Elaine Godfrey in The Atlantic. I guess this article is on the lighter side. IMO, old fashioned requirements can pose significant costs for interns and junior staff as well as inadvertently contain exclusionary messages. There has to be a balance between the performative and the pragmatic… which does not include flip flops in the office or suits in August.

ETHICS

Lobbyist registration and financial disclosures. Did I get your attention with the catchy lede? A recent CRS report outlines the House Clerk and Senate Secretary’s role in enforcing the Lobbying Disclosure Act. We note, by the way, that last year the House Modernization Committee recommended and the House adopted provisions requiring the use of unique identifiers to keep track of all these lobbyists— and the Clerk issued this report in May 2020 outlining two options to address the problem. As far as we know, the decision about which path to implement is still awaiting official direction from the relevant committee of jurisdiction.

Questions must be asked. Remember how Jeff Fortenberry was indicted on October 19th for (allegedly) accepting illegal campaign contributions and deceiving federal investigators? Well good news, everybody: the House Ethics Committee has formed an official Investigatory Subcommittee and gave notice it had done so on December 3rd. One suspects that the investigation will be suspended while the prosecution is underway, which is not a great policy given the need to protect the House.

The House Committee on Ethics will continue its investigation into John Sample, an aide to Rep. Jim Hagedorn. The Office of Congressional Ethics report on Sample — not to be confused with the work of the House Ethics Committee — was published pursuant to House Rules. OCE described Sample’s alleged “use of official funds to procure services from companies owned or controlled by congressional staff members, including himself.” The Ethics Committee hastens to note that the extension of the review “does not itself indicate that any violation has occurred or reflect any judgment on behalf of the Committee.” You might remember Sample from Minnesota Reformer reporting that identified him as the author of tweets promising imminent civil war against the “communist propaganda network,” which came under the Twitter handle Quibbler.

COURTS

The Courthouse Ethics and Transparency ActH.R. 5720, which would strengthen financial disclosure requirements for the federal judiciary—and is sorely needed—passed the House last week.

The Open Court Act, S. 2614, had its scheduled Senate Judiciary markup put off for a week. The measure would dramatically improve the disaster that is the federal court administered electronic records system. For an explanation of the problem, read The Paywall That Continues to Stand in the Way of Government Transparency, written by Dylan Hedtler-Gaudette, Melissa Wasser, and Andrew Lautz. We are watching the bill closely, with the markup now this Thursday, as the Administrative Office of the Courts is doing everything it can to undermine the legislation — largely because a federal court (ironically) has found the courts have been misusing fees generated by PACER. We note that Sen. Joe Lieberman, who helped write the original law establishing PACER, filed this amicus brief along with Rep. Darrell Issa to contend the courts are overcharging users, failing to use modern technology, and violating the purpose of the law — to limit fees to the marginal cost of disseminating the information — and using those fees, which amount to hundreds of millions of dollars, for unauthorized purposes.

Judicial Security. The Senate Judiciary Committee did move forward a bill described as protecting judicial security, S. 2340, but I have to tell you frankly that it’s incredibly problematic. Our friends at Fix the Court note: “if the judicial security bill passes, Supreme Court justices could ask that their dates of birth be completely scrubbed from the Internet.” Based on my reading, federal judges will be able to sandblast basic information about themselves from most corners of the internet and out of most databases, which only sounds slightly insane until you start to think about how it would actually work and intersects with judicial accountability and modern forms of journalism (which rely on the work of civil society organizations). Physical security for judges is important, but the bill is a Trojan horse for a lot of bad stuff. (Also, is it really setting up what looks like a judiciary spying capability? That kind of thing would never be a problem, right?)

ODDS AND ENDS

Acting Director of the House Office of Diversity and Inclusion Christopher Lange announced his departure last week.

The latest updates to Congress.gov are here, and include email alerts and browser page updates.

Evaluating whether legislation achieves its intended policy objectives, i.e. post-legislative scrutiny, has been a goal of the UK parliament since 2008 and is the subject of a new report from the Westminster Foundation for Democracy.

Applications for the Levin Center’s Oversight Fellowship Program, which funds scholarship on congressional or state-level oversight, are open now.

TechCongress is accepting applications for its 2022 Congressional Innovation Scholars program, an “early-career pipeline” for technologists interested in shaping tech policy. Apply here.

Job Announcements. Is your office hiring? Send your announcement to the Progressive Talent Pipeline ([email protected]line.org) to share with their endorsed network of candidates and to receive candidate recommendations.

Senator Bob Dole has died.

CALENDAR

Corruption in government and democratic backsliding will be discussed today from 10 – 11:30 AM by panelists at Brookings’ kickoff event for the 2021 Open Government Partnership summit. RSVP here. (We note again that the Biden administration has not made any substantive commitments to democracy domestically ahead of the summit and we remain concerned that the focus on telling other countries what to do overlooks the US’s own backsliding and the many proposals from domestic civil society.)

Oversight of USCP following the January 6th attack on the Capitol, Part II, is the subject of a hearing before the Senate Committee on Rules and Administration tomorrow, December 7th, at 10 AM.

The House Committee on Rules will review the PODA on Tuesday, December 7th at 1 PM.

Virtual summit for Democracy. 
President Biden will host “bringing together over 100 participants, representing governments, civil society and private sector leaders.” This appears to be the landing page. Apparently events already started, although I’ve seen nothing about it and only luckily found some information this evening. There appears to be a parliamentary track managed by the House Democracy Partnership.

The Advisory Committee on the Records of Congress held its twice-annual meeting this past FridayMinutes will be online here in, say, 3 months.

Do you have an event you want to share? Let us know. Email [email protected]