Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
This week. The House is scheduled to be in from Monday to Wednesday, with a light legislative calendar that might get heavier to address the FY 2022 appropriations bill and unionization in the House. After Wednesday, the House is currently scheduled to be out until March 1, with a committee-only work week next week. The Senate is in on Monday, with a week-long recess scheduled for next week, which also is fraught considering the expiration of the CR on the 18th. We didn’t see anything of relevance on the committee calendar.
Remember last week when we wrote about continuity of Congress and the problems that could arise in both chambers, but most acutely in the Senate? Unfortunately Sen. Luján had a stroke last week and reportedly will be out for a while, which not only is a personal tragedy but has serious implications for the ability of the majority to act on the committees in which he serves and to advance measures on the floor.
Union! Prompted by a question from journalist Pablo Manríquez, Speaker Pelosi’s office indicated she’d support allowing House staff to unionize; Senator Schumer indicated the same. As of 1pm on Sunday, we have identified 72 members of the House and 11 members of the Senate who support allowing congressional staff to unionize. We wrote a brief history of unionizing efforts in Congress and I submitted testimony on this topic last year.
• The necessity of allowing staff to advocate for better working conditions are obvious, with one in eight staff not earning a living wage, half of staff struggling to make ends meet, and a long history of staff suffering from harassment, discrimination, unsafe working conditions, and having their benefits used as a political football. The Instagram account @dear_white_staffers elevated many of these concerns, which have drawn the welcome attention of journalists in publications like Business Insider, Roll Call, Politico, and the like. We’re now seeing the emergence of the Congressional Workers Union.
• Next steps on unions. Unions already exist for many in many Leg branch support offices and agencies. Their testimony have provided early warnings on the dysfunction inside the Capitol Police, the problems at the Congressional Research Service, and more. The House can pass a simple resolution to apply the Congressional Accountability Act to its staff and the Senate can do the same for theirs. (It would look somewhat like this.) In the meantime, members can voluntarily recognize staff unions, although their legal protections and bargaining rights only are protected should the House or Senate act. There’s no reason for the House or Senate to wait as the OCWR adopted regulations for House and Senate staff two decades ago.
Trust me. The New York Times‘ Charlie Savage has the best explanation I’ve seen in a while why the press should not trust the government when it says “trust me.” He didn’t say it, but I will: this goes double for Congress when probing any administration, and it’s why you need well-paid, well-trained, experienced, senior staff with the tools, resources, and clearances to get answers.
Taking stock: the movement to ban congressional stock trading seems to have staying power, with several bills pending in both chambers and bipartisan calls for a floor vote in the House. We note some of the more cynical efforts to allow the trading of individual stocks to continue or to limit the scope of the legislation so it does not include immediate family. Addressing these obvious conflicts of interest is just the tip of the iceberg and we should not confuse redressing these conflicts of interest with the broad reforms necessary to strengthen the congressional ethics process to where we can have trust that members are not acting in their own pecuniary interests.
The momentum around addressing apparent insider trading prompted us to dive deep into some of the perverse incentives that warp how Congress functions and who it serves. Reform, from our perspective, means creating structural barriers to avoid temptation for members and staff, empowering congressional watchdogs to investigate instances of possible wrongdoing, and promptly holding wrongdoers accountable.
Up top, it’s worth remembering how we ended up with the STOCK Act in the first place. The law resulted from the last big ethics reform push of 2011-2, kicked off in large part by “A Family Affair,” a report by Citizen for Responsibility and Ethics in Washington that was the basis for this 60 Minutes report. Beyond insider trading, the report exposed other unethical behaviors, including the misuse of campaign and PAC funds and sweetheart deals for members’ family members who are lobbyists, contractors, or hired as “campaign employees.” The STOCK Act addressed the trading of stocks and other legislation, such as the MERIT Act, went nowhere.
The STOCK Act initially required Members and senior staff to disclose their personal investment portfolios online as structured data. But Congress quietly undermined the original disclosure system by passing a law that undid the launch of an electronic database that published this information as data, creating the current dysfunctional system for tracking Members’ stock trades. Transparency in theory is different from transparency in practice. The database for members is not good and w/r/t to staff is extremely difficult for journalists or civil society to access and analyze. Members rarely face disciplinary action for even the most brazen act of apparent insider trading, encouraging rampant noncompliance. According to a recent report from Business Insider, at least 55 Members violated the STOCK Act in 2021 by disclosing stock trades late or not at all. To perform the analysis, Business Insider had to build their own databases, one for the House, the other for the Senate.
The STOCK Act saga illustrates the four stages of congressional ethics rules. First, Members should be required to publicly disclose information relating to all potential conflicts of interest. Members’ family members (including but not limited to their spouses) should be included in these rules to an appropriate extent. Second, those disclosures should be published in a centralized online repository in a structured data format. If it’s published only as a PDF, that’s a sure sign of transparency theater. Third, watchdogs should be empowered and encouraged to investigate these conflicts of interests and to promptly report on their findings. Finally, some categories of behavior should be illegal.
Punchbowl ran a roundup of some of the pending legislation to ban Members from trading stocks — or from owning them altogether — a couple weeks back. You can see which ones are focused on accountability and which ones are focused on accountability theater. Beyond stock trading, dozens of bills to address other ethics problems have also been introduced in the 117th Congress, including several bills regulating PACs and many restricting or prohibiting foreign funding of election activities. Common Cause has a roundup here.
STOCK Act reform should go hand in hand with other ethics reforms, but none of these rules changes will have much effect without addressing long standing enforcement problems in the House and the Senate. At least the House has an independent watchdog, the Office of Congressional Ethics, although it lacks subpoena power and is at times undercut by the House Ethics Committee. The Senate Ethics Committee is largely thought of as a nullity and the Senate has no parallel to the OCE, although it should.
Instead of an appetite for reform, we have seen efforts in both chambers to undermine the independent ethics process — the House tried to kill off OCE just a few years back, an effort we beat back. Dozens of reform efforts are stalled in both chambers.
All of what we’ve discussed — treating staff properly, encouraging proper behavior from members — is of a piece. The House and Senate have to work for the American people and not for any particular interest. When the incentives of those who work in the engine of our democracy are turned towards fending for themselves, whether those on the bottom trying to figure out how to survive financially or those on the top trying to cut themselves a bigger slice of the pie, the people’s business takes a backseat to the business of business. We can all see the results.
ODDS AND ENDS
USCP labor agreement. USCP and the Capitol Police union reached its first Collective Bargaining Agreement since 2010 last week after twelve long years. In 2019, union chair Gus Papathanasiou testified before the House Admin Committee about management’s apparent bias against women and people of color on the force, resulting in several wrongful termination lawsuits, as well as the Department’s minimal training of new officers and lack of transparency in dealings with the union. The labor agreement is welcome news; now, the USCP Board structure must be reformed — we suggest starting with a civilian oversight board.
The Department of Injustice. AG Garland has yet to clean house inside the Justice Department’s Office of Legal Counsel and rescind the “laundry list” of opinions intended “explicitly to help Trump and his advisers subvert investigation and impeachment in various ways,” writes Hannah Story Brown in the American Prospect. Publication of OLC opinions would clarify just how much work must be done to remediate this self-dealing, anti-democratic corpus. The agency still hasn’t delivered on Garland’s promise to implement a “generous” reading of FOIA in his DOJ.Last week, Open the Government and a coalition of 23 other civil society groups called on the DOJ (for a second time) to promote transparency and executive branch oversight through its FOIA memoranda.
The Office of the Whistleblower Ombuds’ annual report for 2021 is out and available for your perusal here.
Trump’s destruction of presidential documents is a crime, but we don’t expect the ex-president to lose any sleep over it.
Jim Thurber, an exceptional, well known, and well-liked expert on Congress at American University, has retired after almost five decades at the university. Congratulations on a fantastic career.
ODDS AND ENDS
HSGAC will hold a confirmation vote for OMB Director and Deputy Director nominees this Wednesday, February 9th at 3PM.
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 16th at 12PM.
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