Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
Happy recess. Last week the Senate managed to pass a continuing resolution to fund the government through March 11. Apparently appropriators have reached an agreement on the top line numbers for the appropriations subcommittees, but we don’t know what they are, only the reactions of a few subcommittee chairs. We’re still waiting on the Leg branch number. Get ready for the State of the Union, set for March 1st.
Go to work. Senate Republicans are stonewalling nominees by not showing up to committee proceedings. The arcane and insane Senate rules are understood to require a majority of members to be physically present for a committee to report out a matter — something we warned about as a booby-trap for Senate continuity in the event of an emergency — and the absence of a majority allows for a point of order on the floor, creating yet another veto point for the minority. (When the shoe was on the other foot, committees ignored their own rules requiring minority members to be present.) There is an irony between the mantra of many House Republicans, who say that the House is not working if it’s not in person, and Senate Republicans, who won’t show up (in person) to allow work to be done on the committees. For those with long memories, members refusing to say they were present was an issue in the House in the 19th century that led to an important Supreme Court decision with the hilarious name of United States v. Ballin. (Summary here.)
Three notable hearings took place last week: House Admin’s on the IG’s oversight of the Capitol Police’s handling of January 6th (where I testified), ModCom’s on modernizing district offices; and the Budget committee on abolishing the (superfluous and counterproductive) debt limit. We cover the House Admin and ModCom hearings below; BGOV ($) has a good summary of the Budget hearing; we point you to the majority’s explainer and report on the topic.
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No markup scheduled yet. The House — and the House Admin Committee — departed for recess without considering Rep. Levin’s staff unionization resolution, which now has 144 cosponsors listed on Congress.gov (apparently others are not yet reflected there). Time is of the essence. Until the resolution is passed, House staff organizing unions are without legal protection. Two week ago today, House Admin sent a (non-public?) letter to OCWR requesting a “review the regulations it proposed in 1996 related to collective bargaining…. It is my hope that an expeditious review will inform the House’s consideration of how to better improve the workplace for our Congressional staff.”
The letter’s language is quite vague and we hope it is a request for guidance on how the House can implement the resolution once it is passed. Regardless, the House should not delay in considering and extending protections to its staff.
Response requested. Seven congressional staff associations sent a joint letter to leadership to draw “attention to concerning recent reports regarding treatment of staff” and requesting a response within three weeks of February 17, 2022. The letter outlined a number of hardships faced by staff and requested responses on a series of questions (that you should click through to read.) They range from maintaining and sharing up-to-date info on staff characteristics to improving the handling of claims of harassment, from often exclusionary office cultures to pay equity and pay floors.
Oversight of the Capitol Police. On Thursday, House Admin held an oversight hearing into the USCP Inspector General’s investigation into the Capitol Police’s handling of the January 6th insurrection. USCP IG Michael Bolton and I testified. Read IG Bolton’s written testimony here, mine here, and watch the hearing here. An hour before the hearing, House Admin published excerpts from a few IG reports — you’ll likely find these undated documents hard to follow as they only include the executive summary and recommendations without the meat of the IG’s findings. To make your life easier, we’ve compiled all the IG flash reports, GAO reports, hearings into the Capitol Police and congressional security, and more into one online resource.
My testimony addressed two separate but related issues. First, I covered how the Capitol Police Inspector General lacks structural independence from and oversight of the Capitol Police Board (on which the police chief sits). Second, I addressed how oversight of the Capitol Police Board is inherently flawed. Pretty nifty, right? My point was that all the reforms and “reforms” being proposed and implemented at the micro level don’t mean much when the overarching structure is fundamentally flawed and incapable of accomplishing its mission. Worse, the “reforms” could be harmful and undermine Congress’s role in our democracy. We’ve seen the USCP ignore Congress’s directives for it to be more transparent and accountable, which are necessary but not sufficient for reform to stick over time, so I have no confidence in the current security posture or whether we’re going in the right direction. (Yes, I have recommendations on what we should be doing.)
A case in point: apparently “security officials” are reportedly recommending that the Capitol fence come back for the State of the Union. (See this terse USCP media release.) As you know, we are not fans of a permanent fence. “ The insurrection of January 6, 2021, and the attendant failure to protect Congress, were not caused by the absence of permanent security fencing. They were the result of failures by those responsible for managing security for the U.S. Capitol. That should be the focus of efforts to protect Congress and those who serve therein.” Is it necessary now? In our opinion temporary security fencing may be erected only as part of a “meaningful strategy to address an exigent threat that is part of a thoughtful, coordinated plan developed by a competent security authority.” No idea whether that’s happening here. We are keeping what happened in Ottawa, especially around Parliament Hill, top of mind. Back in the US, security officials have long wanted to (literally) wall off the Capitol complex, and we do not want this to happen, whether all at once or bite-by-bite.
Also on Thursday, GAO released a new report on USCP and January 6th entitled “The Capitol Police Need Clearer Emergency Procedures and a Comprehensive Security Risk Assessment Process.” Yikes. Fourteen months after Jan. 6th the Chief + Board have not finalized procedures “describing whether or when approval from congressional leadership was needed for the use of outside assistance during an emergency.” More: “The Capitol Police’s process for assessing and mitigating physical security risks to the Capitol complex is not comprehensive or documented.” And “without a comprehensive, documented process to assess and mitigate risks, there is no assurance that the Capitol Police and the Board are not overlooking potential security risks.” The LA Times has a summary.
At the risk of quoting myself: “Each day increases the likelihood of another attack on the Capitol and the people who work here. The only way to prevent or mitigate that attack is to significantly overhaul the Congressional security structures and the mechanisms by which they are overseen and held accountable. Left largely unreformed, the security apparatus represented on the Capitol Police Board will overreach into our civil liberties to create the appearance without the reality of actual security that leaves the seat of our democracy unprotected.” QED
Continuity of Congress. Proxy voting authorization was extended until March 30 by Speaker Pelosi last week. Pres. Biden extended the COVID-19 security emergency declaration. House Republicans continue to complain about proxy voting even while they make use of it for reasons not authorized in the original resolution. We’ve said before that we prefer remote voting to proxy voting (i.e., members have all their powers, not some of them) and have raised the dangers of requiring people to have to be physically present without exception. I’m sure we’ll say it again, too.
Modernizing congressional district offices was the subject of last week’s House Modernization committee hearing (hearing video, witness testimony). Chair Kilmer noted that this was the first time ever that current staffers have testified before their own bosses as committee witnesses. District staff testified that many district offices have ongoing issues with the House firewall, resulting in lower casework productivity, and would encourage the utilization of a more secure cloud-based system. Witnesses also mentioned the need for standardization of digital privacy release forms within government agencies so that constituents can have cases reviewed in a timelier manner. Others mentioned that the addition of committee work weeks actually make scheduling in-district activities more difficult due to the uncertainty of DC committee schedules. Roll Call’s Chris Cioffi has a summary of the hearing.
What’s next for ModCom? ModCom’s future beyond the midterms is uncertain, BGOV reports. The select committee will either be disbanded, reinstated, or potentially absorbed into another committee. In the meantime, the committee is hurrying to introduce a resolution in the coming weeks containing around thirty modernization recommendations, which could include expanded tuition assistance for staffers, contains overtures to bipartisanship (Member retreats), and address inaccessible infrastructure in the Capitol complex.
ODDS AND ENDS
Some judicial financial information may finally be proactively disclosed as the Senate passed the Courthouse Ethics and Transparency Act (S. 3059) on its way out the door, per a tweet from Dylan Hedtler-Gaudette. Congress.gov doesn’t have a summary of the bill yet even through it passed the upper chamber, or for its identical companion bill (H.R. 5720) that passed the House in December, so here’s how it’s described in the House committee report: “First, H.R. 5720 extends the STOCK Act’s requirement that senior government officials disclose securities transactions in excess of $1,000 within 30 to 45 days to judicial officers. Second, H.R. 5720 requires the Administrative Office of the United States Courts to make all judicial financial disclosure reports available in a publicly accessible online database in a full-text searchable, sortable, and downloadable format not later than 90 days after the reports are required to be filed.” You might remember the September 2021 Wall Street Journal article 131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest, made possibly only by the tremendous work of the Free Law Project in digitizing more than 250,000 pages from judicial disclosure forms.
STOCK Act. Walter Shaub and Liz Hempowicz argue in favor of banning congressional stock trading — ideally, by passing Sens. Ossoff and Kelly’s and Sens. Warren and Daines’ legislation. The Campaign Legal Center has this new report on how many members own stock and the kinds of instruments they own; an analysis of the pros and cons of various proposals for inclusion in any STOCK-acty legislation; and a 3-part series on what failed in the STOCK Act, why it failed, and the proposals on tap.
The snail-like Senate has 80 members in support of not having votes take forever. (80 might also be the average age for a denizen of the world’s great delaying —er, deliberative — body.)
Appropriations riders used for oversight purposes is the subject of a discussion hosted by the Levin Center today at noon, featuring two Vanderbilt professors.
LegisTech: Women in Leadership is the name of a conference set for March 8 and 9, hosted by Bussola Tech, focused on the institutional modernization and the digital transformation in national, devolved and sub-national legislatures that will highlight the work of women colleagues in leading that transformation.
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.
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