Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
This week. The Senate is back today; the House is back tomorrow. Appropriations run out on February 18th, so expect a short CR, an omnibus bill, or a shutdown. Looking at scheduled committee proceedings, we see separate Tuesday HSGAC and Budget hearings on the nominations of the OMB Director and Deputy Director. Sunday was Fred Korematsu day in many states; read about him here.
Working conditions in Congress were the focus of three significant reports in the last week. We previously mentioned the House IG report, which recommends the “House establish and maintain pay parity with Executive branch salaries and make the necessary adjustments to the MRA to achieve pay parity” and has four specific implementation recommendations. The Congressional Progressive Staff Caucus released the results of its survey of 516 congressional staff (summary + data) that found that half of staff surveyed struggled to make ends meet and two-thirds are unhappy with their compensation level — the findings are summarized by Roll Call’s Megan Mineiro. And Issue One released an analysis of House expenditure data that found 1 in 8 staff are not making a living wage; Roll Call’s Niels Lesniewski has a summary. All this points to what we already know: staff are overworked and underpaid and the House must make some changes, including implementing the House IG report recommendations and making sure members of Congress are incentivized to help their staff (such as by allowing them to unionize).
CONTINUITY OF CONGRESS
The Supreme Court declined to take up Minority Leader McCarthy’s lawsuit to overturn proxy voting in the House of Representatives. The non-decision followed a string of defeats in lower courts that held the House and Senate are empowered to make their own rules. Ironically, Speaker Pelosi originally had to be pushed to implement remote deliberations in the House — she resisted those efforts — and many House Republicans not only have voted by proxy, but did so for unauthorized purposes such as attending political events. We have not forgotten how the start of the COVID pandemic hamstrung the House’s ability to act for weeks and how control of the Senate came within one sick senator of (theoretically) switching party control. As you know, there are other types of emergencies besides COVID where remote deliberations make sense. We were at the forefront of advocating for remote deliberations in the House and Senate so that an emergency would not end the relevance of the Legislative branch in making national policy; developments related to ensuring the Continuity of Congress are cataloged here.
We don’t really like proxy voting on the House floor and would prefer fully remote deliberations. (We define those terms here.) The system used by the House is slow and cumbersome, requires many members to be physically present, and does not give remote members the ability to make motions and participate in debate. This half-measure kept the House functional in an emergency, but it pulled power up to the leadership and away from the rank-and-file. Ironically, some House Republicans (such as Liz Cheney, now exiled to party purgatory) voiced support for a system of fully remote deliberations. The House Administration Committee held a hearing on the question of fully remote voting and Democrats and Republicans agreed that it was technically feasible to accomplish without raising security concerns — even Newt Gingrich, a witness, agreed — while disagreeing on its wisdom. (Here’s the staff report.)
House committees have made some proceedings fully remote and this seems to have worked well. Some members have lauded that it is easier to hear and see their colleagues on Zoom than in the hearing rooms. The creation of committee-only work weeks has allowed for committees to meet even with members far away, which has had a particularly salutary effect for non-priority committees that otherwise would have trouble scheduling proceedings. There are some downsides, such as when the hearings are contentious and it is somewhat harder to cross-examine witnesses, and we’re all familiar with some of the technical issues that can arise — “you’re on mute” — but snafus happen in person, too. Allowing committees to vote remotely means that committee decisions can go forward and neither emergencies nor the awkward congressional calendar are as much of an impediment.
The Senate, ah, the Senate — that’s a different story. Despite the bipartisan efforts of Sens. Portman and Durbin, the “upper” chamber did not update its rules, which poses a huge problem. Senate rules require committees to have a majority present in person to advance legislation. In practice, the Senate floor operates without the presence of a quorum, but any member can blow that up. We did see committees adopt remote debate, but we also saw shenanigans concerning whether voting remotely would be counted towards vote totals (it doesn’t). And on the floor, we remain in a situation where, should a senator be unable to attend, like Sen. Schatz was a few weeks ago because of COVID, urgent matters must be delayed. As a rules change requires Republican support (or at least the withholding of a filibuster), the Senate’s viability remains on a knife’s-edge. I was an intern in the Senate during the anthrax attack and remember how easily its proceedings can be disrupted. For those with shorter memories, the Trump insurrection could have resulted in the Capitol burning down, injuring or killing some of its members and delaying the electoral certification, which appears to be one of the purposes of the mass attack. The Senate should have a backup plan that does not require that a majority of members be physically present.
Technological modernization. The pandemic has driven technological modernization throughout the Legislative branch, although that transformation is much more notable in the House than in the Senate. In the House it is now possible to submit legislation and extensions of remarks electronically, for instance, something that still requires physical presence in the Senate. We’ve seen the widespread use of teleconferencing and remote collaboration software, which is a game changer not only for how the chambers operate, but for their ability to retain talent and potentially to increase the number of staff beyond the limitations of those physically able to fit in the handful of marble buildings. It also has allowed for a greater diversity of witnesses and to more fully integrated district offices into DC operations. Many of the bureaucratic arguments advanced to halt technologistical modernization in both chambers have been shown to be hollow.
The path forward. House Republicans have made clear that, should they regain control of the House, proxy voting will come to an end. I *hope* this policy position does not mean they will foreclose technological solutions for continuity of Congress should an emergency arise or will regress on allowing committees to work remotely during committee-only work weeks. Addressing how such an emergency is declared and who has that authority — not the current fig leaf use of the capitol physician for decisions actually made by leadership — is a separate question from having options in place and ready to go should something terrible occur. The use of technology also suggests new modalities for how Congress, including its support agencies, manage the legislative, oversight, and constituent service processes, as there is significant value in both modernizing how the gears turn, so to speak, and also thinking about where Congress may derive value from decentralizing some aspects of its operations. As people who grew up with modern computer technology come into Congress, more and more of them will be comfortable with a hybrid workstyle where some things happen in person and some do not.
Regardless, congressional information and technology can no longer be managed on an ad hoc basis and in multiple silos. There’s a tremendous need to have more coordination across the chambers and support agencies. Congress should look to its existing solutions, such as the Bulk Data Task Force, and expand their roles; consider creating more Legislative branch wide entities, such as a Chief Data Officer (and CDO council) as well as a Congress-wide IG (so that there aren’t cybersecurity gaps), and so on. This would be a tough lift, and Congress is loath to focus on its internal operations… except perhaps in the face of an emergency.
ODDS AND ENDS
USCP has been spying on Members, staff, and citizens at least since the January 6th insurrection, Politico reported last week. “The Capitol Police’s intelligence unit quietly started scrutinizing the backgrounds of people who meet with lawmakers.” Yikes. We think the Republicans who raised the alarm have this right: “Regardless of whether the ‘insider threat awareness program’ is warranted, such an initiative should be based in statute with the appropriate transparency, personal liberty protections, and respect for constitutional guarantees in place.” Adding this on top of the Capitol Police’s already untransparent and unaccountable behavior, and concerns about the misuse of surveillance, and we have the making of a nightmare. We’ve seen this nightmare before. (And we remain concerned about the House SAA’s proposal to require identity cards and track everyone who visits the Capitol.) These efforts are a distraction from the failure to reform the Capitol Police Board whose negligence and incompetence was a key factor in the success of the January 6th attack.
Appropriations FY 2023. The semi-official start of the FY 2023 House appropriation season has kicked off with the first posting of a deadline for public witness testimony. It’s for the Interior subcommittee and has a March 10th deadline. (We hope this year will see public witness testimony by Zoom.)
House Committee witnesses. Is the House hearing from fewer witnesses? A new op-ed by John D. Rackey, Lauren C. Bell, and Kevin R. Kosar looks at a House dataset that they built from 1971-2016 and suggests “the House’s use of expert witnesses is at a generational low.” Looking at the dataset, I can see ways it could be usefully extended to enhance information the House publishes about its own operations — the House is supposed to start publishing info about its witnesses per the House rules.
Hold a STOCK Act vote, urged 28 Members in a letter last week. Addressing the trading of individual stocks by members would address a subset of the conflicts of interest that arise. Some bills suggest that members should divest, which would have the additional benefit of dissipating some of the enthusiasm of self-made multi-millionaires in running for Congress, who are disproportionately overrepresented and over-recruited by leadership. None of this works without effective oversight mechanisms, which is yet another reason to strengthen the OCE and create an independent watchdog in the Senate.
The Congressional Black Caucus will change in light of a wave of retirements, but how? “The ideological battle over which kinds of Democrats replace departing CBC members could either reinforce the preferred, cautious approach of current caucus leadership or push it more in the direction of a younger crop of boundary-pushing progressives with strong ties to the Congressional Progressive Caucus,” wrote Daniel Marans in the Huffington Post.
Pelosi’s running, but is she also running to lead the House Democrats? (She said in 2018 she would limit her time as Speaker to four years — if true, would it extend to minority leader?)
Rep. Madison Cawthorn reportedly spent part of a VA hearing cleaning a firearm, which is yet another reason to ban guns from the capitol complex. (He reportedly was in his office at the time.) Also: there’s an interesting challenge to Rep. Cawthorn’s congressional candidacy that turns on the question of whether he’s an insurrectionist under Article XIV, section 3 of the constitution.
GPO, which manages the Federal Depository Library Program, is creating a task force to consider the feasibility of an all digital FDLP. 97 percent of federal publications are born digital.
House technology. The House Clerk’s office has published two requests for information on technology solutions for building a central committee votes database and a committee scheduling tool, with a Feb. 18th deadline for responses. The committee votes database RFI (described here) “should enable improved automation and data management of committee votes, including the dissemination to Members, staff, and the public, as well as the integration and data exchange with other Legislative Branch organizations and systems.” The committee scheduling tool RFI (described here) should “enable improved scheduling processes for committee staff including the integration and data exchange with relevant House organizations and systems.”
New whistleblower resources. The House Office of the Whistleblower Ombuds recently updated its one-pager on working with whistleblowers as well as its (House intranet only) training manual for House staff.
Stephen Breyer announced he will step down from the Supreme Court. This will take up time in the already busy Senate calendar.
Transparency talks for Sunshine Week. Transparency experts will discuss FOIA, whistleblowers, press freedom, and more at the Advisory Committee on Transparency’s upcoming virtual conference on March 16 at 12PM. We’ll have the Zoom link for you soon.