Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
Schedule. The Senate is in this week; the House has a committee workweek. Both are on recess next week. The committee calendar is light, but I’ll be busy. On Thursday the House Admin Committee will be holding a hearing on oversight of the January 6th Capitol Attack — the Capitol Police IG will be testifying, as will I. On Wednesday, the House Modernization Committee will hold a hearing on modernizing district offices.
FY 2022 Approps. A bipartisan, bicameral topline and framework have been reached for the omnibus spending bill and nothing beyond that fact is publicly known (except that we will, alas, see a huge increase on the defense side.) In an odd but hilarious twist of fate, one recent report suggests that earmarks may be making a budget deal harder to reach for some Senate Republicans — on that, we will see. The House-passed stopgap spending package, intended to fund the government through March 11, awaits a Senate vote. The CPCC’s latest explainer, uh, explains why a year-long continuing resolution is a bad idea. We will be closely watching to see the top line numbers for the Legislative branch, which will determine whether grossly underpaid congressional staff get some financial relief.
Congressional staff and their difficult working conditions have been in the news, which we discuss in the unionization section below. We note up front that congressional unions will help address many of the problems that congressional staff face by giving them a seat at the table. Much can be done in parallel to immediately to address low pay, long hours, mistreatment, discrimination, and other issues.
STOCK Act. Sens. Warren and Daines released bipartisan legislation to ban congressional stock trading and ownership of all stocks other than mutual funds and ETFs; Reps. Jayapal and Rosendale introduced companion legislation in the House. (Bill text here.) Rep. Porter and Sen. Gillibrand introduced bicameral legislation banning stock trading that they’re calling STOCK Act 2.0. Speaker Pelosi tasked Rep. Lofgren and House Admin with crafting legislation after the Speaker had previously come out against reform. In the Senate, Sen. Schumer voiced support for banning congressional stock trading and convened a working group of Democratic senators to come up with a bill. We wrote last week about the broader context for addressing conflicts of interest for and featherbedding by members of Congress, the interrelation with other congressional ethics concerns, and our hope this will become an opportunity to address the wide range of perverse incentives for members of Congress.
A firm resolution. Rep. Levin introduced H. Res. 915 to allow select House staff to unionize in accordance with the provisions of the Congressional Accountability Act, joined by 136 co-sponsors. (That’s a lot of co-sponsors.) Senator Brown says he plans on introducing a resolution to allow Senate staff to unionize and, as per our tracker as of Friday at 2pm, 22 senators have indicated their support for unions in the Senate. Congressional unions are vocally supported by the Congressional Workers Union, a volunteer group of staffers organizing to unionize the personal offices and committees of Congress, a host of civil society organizations and unions (including us), and Speaker Pelosi, Majority Leader Schumer, President Biden, and additional members of Congress who have yet to co-sponsor the legislation. (Next week we will publish who has said they support unionization but has not co-sponsored the bill.)
From zero to hero. In previous newsletters we’ve recounted all the research that shows how staff are generally underpaid, overworked, and subject to mistreatment and discrimination without viable recourse. We’ve pointed to how the accelerating congressional brain drain empowers corporations and the executive branch, how matters have gotten worse, and why. And we’ve written about what needs to be done to make things better, with some baby steps (and a few bigger steps) underway. But our decade-long advocacy on behalf of staff in no way compares to the raw stories told by the Instagram account Dear White Staffers, the journalists who drew upon those experiences to paint a picture of the larger truths, and how that storytelling finally has pushed members to act.
The path forward. You’re probably sick of our brief history of congressional unionization and my testimony before the approps committee, so let me point you to the new Progressive Caucus explainer on the right to unionize in Congress, which addresses many of the common questions about all this. To place this in context, staff are unprotected in their efforts to voluntarily unionize until the House or Senate pass a resolution that puts the Congressional Accountability Act into effect. Accordingly, to protect these unionization efforts, the House would need to pass its resolution immediately when it returns in a few weeks. That suggests the House Admin Committee would have to act as soon as this committee work week. (Fortunately they have two hearings scheduled, so they could easily tack on a business meeting.) The Senate is always a big question mark, but senators should introduce and try to move a Senate resolution as quickly as possible for the same reason. (A resolution might be subject to a filibuster, but it could be packaged with other measures.) A concurrent resolution is necessary to put the protections in place for employees of the CBO and Office of Congressional Workplace Rights.
Who is covered? This gets confusing. The House resolution would extend to more than personal, committee, and leadership offices. It also could cover components of the Clerk’s office, Legislative Counsel, the General Counsel, the Parliamentarian, the caucus and party organizations, House Employment Counsel, and more. These entities were omitted from the original implementation of the Congressional Accountability Act, which extended to the Capitol Police, Architect of the Capitol, and (I believe!) some support office staff. Senate staff need their own resolution.
Bipartisanship? A lot of people seem to be assuming no Republicans will support congressional unionization, but I’m not convinced that’s true. Treating employees humanely is not a Democratic or Republican issue, and Republicans were the ones responsible for passing the CAA in the first place. Surely they must still agree with the first plank of the Contract with America, which would apply to Congress the laws that apply to all Americans, right? Senator Grassley wrote a law review in 1998, Practicing What We Preach, where he vowed to keep working to extend unions to Congress. (Although Grace Segers in TNR quotes Grassley as saying “I’m not sure I hold that same view today.”) And Roll Call’s Jim Saska identified five Republicans who voted “aye” on the PRO Act.
Just for fun, we ran across this article by James Sherk, ex-president Trump’s Special Assistant to the President for Domestic Policy who was the lead on “labor policy & civil service reform,” who wrote a fun little article for the Heritage Foundation in 2009 entitled “Time for Congress to Work Under the Same Rules as the Private Sector.” What does it say? “Congress has developed two separate sets of labor policies: one for the private sector, another for itself. If Congress believes that expanding collective bargaining through legislation like the RESPECT Act and EFCA benefits workers and improves the workplace, it should have no difficulty living under these same laws….”
Like we said up top, congressional unions don’t solve everything. There’s a lot of nuance about the value that they bring — or could bring — but they are clearly a plus and would let staff have a seat at the table. We have seen unionization endorsements from the progressive caucus, the labor caucus, the Congressional Progressive Staff Association, Congressional Asian Pacific American Staff Association, Congressional South Asian American Staff Association, Congressional Korean American Staff Association, and the Congressional Hispanic Staff Association, and likely others. In our view, unionization should not halt other initiatives from moving forward, including increasing staff pay through an increase in the Legislative Branch Appropriations bill, establishing pay bands for staff (including pay floors), created an office of diversity and inclusion in the Senate, prohibiting the pernicious use of NDAs, making the protections against harassment more substantial, creating a central HR office, properly paying all interns, improving the pathways for all Americans to work in Congress, protecting Congressional whistleblowers, paying for continuing education and improving how student loan repayments function, expanding the number of staffers per office, and much more. We need an expert workforce that is neither overstretched across too many issues nor routinely pushed out because of low pay or poor work conditions.
— The New Republic: “Overworked, Underpaid, Traumatized, and Too White”
— Christian Science Monitor: “Who’s crafting public policy? A push to diversify Capitol Hill staff”
— Latino Rebels: “The Rise of ‘Dear White Staffers’”
— The New York Times: “On Capitol Hill, a Push to Unionize House Aides Gains Traction”
Insider threat part 1. On Tuesday, February 8th, Politico published a storyclaiming the House Inspector General generated a draft report, dated December 31, 2021, recommending the House Sergeant at Arms launch a “behavioral monitoring” program to identify and address “insider threats”: people who harm their colleagues and employers. In the same article, House Admin Chair Lofgren’s spokesperson said the report is not final. Attached to the report, according to Politico, is a letter from the House Sergeant at Arms that says, in part, “I am delighted to report that the [House Sergeant at Arms] Insider Threat Awareness and Risks Mitigation Program has been in development since July of 2021.” In a statement, reported by Politico, the House Sergeant at Arms is quoted saying that the SAA is rolling out “‘a strictly voluntary insider threat awareness and risk mitigation training opportunity’ for employees.” While House IG reports historically were routinely made publicly available, not only are they not published online since 2007 but the older ones were removed from the website, so we likely won’t know what the House IG report said.
Insider threat part 2. On January 24th, Politico reported that the Capitol Police are examining the social media and backgrounds of people who meet with members of Congress. The article prompted a letter from House Admin Republicans to the Capitol Police Chief on January 25th. His response, dated January 27th and published on February 10th by the Hill, claims the Politico story got it wrong, declaring “The USCP does not conduct any ‘insider threats’-related surveillance or intelligence gathering on Members, staff, or visitors to the Capitol Complex.” Making this all the more confusing is that House Sergeant at Arms Walker is on the Capitol Police Board and, per the Politico story, acknowledged the existence of an insider threat program. Per the Hill, the USCP IG has been asked by the Capitol Police Chief to investigate claims that members and staff have been spied upon by the USCP, which may be awkward as the IG is responsible for overseeing the Capitol Police and the Chief also is an ex officio member of the Board that oversees the IG. But wait, there’s more: the Capitol Police, in the letter, say they do investigate participants at events at the request of a Member or of the House Sergeant at Arms, but only through “open source” methods, which are not defined in the letter, but is generally understood to include the use of commercial databases, which collect a vast amount of information. The USCP also will conduct investigations for “major congressional events” and conduct criminal background checks at the request of an office for job applicants. (No mention is made in the letter on how USCP addresses journalists.)
All of this will make this Thursday’s House Administration Committee Hearing on the USCP IG’s flash reports more lively. The official title is: “Hearing: Oversight of the January 6th Capitol Attack: Ongoing Review of the United States Capitol Police Inspector General Flash Reports,” and I would expect the focus will be a summation of the flash reports issued by the USCP IG and published (in part) by the House Administration Committee and perhaps the release of new reports. It seems likely members will have a lot to say.
Concrete threats of violence against Members continue apace. Over a third of the cases analyzed by the New York Times arose from “Republican or pro-Trump individuals threatening Democrats or Republicans they found insufficiently loyal to the former president.” One quarter of the cases were Democrats threatening Republicans.
USURPATION OF POWERS
Presidential signing statements, where the president declares he will not follow the law in a statement accompanying his signing the law into effect, is the focus of a letter sent by 42 organizations, including Demand Progress, after Pres. Biden declared he would not share information with Congress required under the NDAA. The Brennan Center’s Katherine Yon Ebright explained why this is important in this Hill op-ed entitled “Defense Department needs to start following the law.”
No license to spy. “The Central Intelligence Agency has for years been collecting in bulk, without a warrant, some kind of data that can affect Americans’ privacy, according to a newly declassified letter by two senators” reported Charlie Savage in the New York Times. Per Sens. Wyden and Heinrich, who serve on SSCI and pushed for declassification: “‘the CIA has secretly conducted its own bulk program,’ authorized under Executive Order 12333, rather than the laws passed by Congress.’” The CIA would not declassify the report by the Privacy and Civil Liberties Oversight Board (PCLOB) that detailed the warrantless domestic spying, and only now have released these PCLOB staff recommendations, which say, among other things that “analysts are not required to memorialize the justification for their queries” into US persons. This is important because, in our view, “the CIA has been hiding bulk spying programs, infringing on the rights of literally every American, and completely evading the the oversight of Congress and the courts,” and the issue of warrantless domestic spying was before Congress in the debate over whether the Patriot Act should sunset. A prior indication that the Executive branch would take a lawless approach to domestic surveillance should congressional authorization lapse was a slip by Senator Burr, who said in debate that should the Patriot Act authorities expire, the President “can do all of this” without guardrails, implying that the chair of SSCI would do nothing to stop it or was even tacitly offering his blessings. (Of course, the FISA process itself is extraordinarily problematic.)
Congressional oversight over intelligence functions remains disputed territory, with Congress ceding much of its authority through institutional choices that fail to learn the lessons of the Church Committee, which reported on gross abuses by the IC. In more recent years, the CIA spied on the Senate as it tried to issue the Torture Report, and a key person responsible for withholding punishment for spying on the Senate is now the Director of National Intelligence, Avril Haines. The Intelligence Committees continue to fail to be a proxy for the American people — whether by failing to inquire into these matters, failing to insist on answers, being too lenient on the IC, or adopting their perspective, which is why:
— A bipartisan group of organizations published this report on strengthening Congressional oversight of the IC (endorsed by a broad coalition), with a range of recommendations that include restructuring the intelligence committees.
— We’re cheered by efforts to provide each member of Congress eligibility to have one staffer with a TS/SCI clearance, which has traction in the Senate but continues to be thwarted by leadership in the House — here’s an amendment to PODA from Rep. Jacobs that would have accomplished this, and here’s why it’s important.
— We were pleased to see an amendment offered to PODA that contained a provision to strengthen GAO Oversight of the Intelligence Community, which received nearly overwhelming support by Democrats in the House (even as nearly all Republicans who would normally support such a provision reflexively opposed it because of its inclusion in PODA). Kel McClanahan has testified repeatedly on including that language as part of the approps bill and GAO explained in 2010 why they would welcome it.
— A Republican amendment to PODA offered by Rep. Issa would allow staffers with previous clearances to retain them when working for Congress.
— We agree that the Congress needs a new Church committee to investigate the continued overstepping by the Intelligence Community and the president of Congress’s authorities, the infringing on the constitutional rights of every American, and the absence of institutional structures in the Congress that can push back on these infringements.
Don’t think for a minute that the Executive branch would carve out Members of Congress, congressional staff, or journalists from a warrantless spying program.
ODDS AND ENDS
TechCongress’ report on its inaugural Congressional Digital Service Fellowship, which paired three technologists with ModCom to support the digital needs of Congress, was released last week. “This report represents a collaborative effort and provides the background of the Congressional Digital Service pilot and the conditions under which it was launched. It highlights some of the issues the pilot sought to address, and the institutional offices and the SCMC recommendation projects the pilot supported. It also includes highlights from the global perspective, crises learnings during a critical period in Congress, and relevant findings of the program.”
The National Archives requested the Justice Department investigate Trump’s apparent violations of the Presidential Records Act after he turned over 15 boxes of documents previously stored at Mar-a-Lago. Some of those documents were classified. Other violations may include flushing official records, which Trump has denied in a statement unlikely to be believed by anyone.
FY 2023 Approps testimony. The deadline for non-tribal witnesses to submit testimony to the House Appropriations Interior, Environment, and Related Agencies Subcommittee regarding FY 2023 approps is March 10. Submission instructions here.
Turn the beat around. Some Republicans are considering whether to resurrect the January 6th committee after the election as a mechanism to pursue conspiracy theories and other unsupported accusations.
Committee prints going back to the 103rd Congress (1993-94) are now available on Congress.gov.
GPO was recently named one of the best midsize US employers by Forbes.
The Swiss descendant of a Confederate war criminal has become a central figure in trying to secure a posthumous pardon for his ancestor, Capt. Henry Wirtz, who was hanged at the US Capitol for, among other things, his misadministration of the infamous Andersonville prison. The photo, by the way, is from the old Capitol prison — which is an interesting story that we wrote about a few years ago. After the British burned down the U.S. Capitol, a brick Capitol was built where the Supreme Court now stands, and when the Capitol building was reoccupied, the old capitol was turned into a prison, which held confederates and other malefactors. Thus the Old Capitol Prison: read “(old capitol) prison,” not “old (capitol prison).”
Under new management. Looks like the House is looking for new management for its staff fitness center.
Whistleblower starter pack. A beginners’ guide for House staffers who are working with whistleblowers was recently released by the Office of the Whistleblower Ombuds.
FARA. The Justice Department requested comments on the clarification and modernization of FARA regulations, so DPEF submitted the following recommendations on modernizing e-filing and addressing the labeling of propaganda.
Metonym watch. Washington is much more than the swamp. A stirring defense of those who “dream things that never were and ask why not” — likely everyone who reads this newsletter.
Some fixes. In an essay, the Congressional Management Foundation endorsed a few reforms for Congressional offices.
Halp. We’re trying to keep this newsletter shorter but it seems likely most of the big things happening in Congress right now are relevant. I should have spent this weekend writing testimony. Wish me luck.
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. RSVP here.
Do you have an event you want to share? Let us know. Email [email protected]