First Branch Forecast for March 28, 2022: Statler and Waldorf

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This week. The Senate is in today; the House is in tomorrow. We’ll be watching Tuesday’s much-anticipated Senate Judiciary Cmte FOIA hearing, which we hope covers strengthening the law and asking whether AG Garland’s long overdue FOIA memorandum goes far enough? (No.) The Capitol Police’s budget will be the focus of a first-of-the-season House Leg Branch Approps hearing on Wednesday; you know our views about their management and oversight problems as well as their persistent failures to implement Congress’s transparency directives. Also on Wednesday is a HSGAC business meeting to consider the PLUM Act, which is civil society approvedHouse floor proxy voting is also set to expire (unless it doesn’t). Expect a Senate vote on the Hon. Ketanji Brown Jackson’s nomination to SCOTUS by next Friday; while we’re talking SCOTUS, maybe the Senate will finally move the Supreme Court Ethics Act?

House staff turnover is at a 20-year high, we learned from a LegiStorm analysis released last week that underscores all the reports of staff burnout over the past year. With the insurrection, pandemic, and Congress’s abysmal response to and ill preparation for both crises, House staff left Congress at a 55% greater rate in 2021 than in 2020. The 21% increase in funding levels for personal and committee offices in the FY 2022 approps bill should help the situation… if Members use it to restore pay levels for the more junior staff who need it most. The MRA increase (and the equivalent for House committees — have those funds been allocated yet?) still is insufficient to reach pay parity with Executive branch salaries, a key recommendation from a recent House IG report. The House’s quarterly expenditure reports will reveal whether Members address pay levels for staff.

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First Branch Forecast for March 21, 2022: Not the Supremes

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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 in; the House is out. This week, much attention will focus on the Senate Judiciary Committee’s hearing on SCOTUS nominee Hon. Ketanji Brown Jackson. Last week was packed with Sunshine Week programming — we’ve got recaps below.

Sunlight on secret laws. A bill requiring the DOJ’s Office of Legal Counsel to publicly disclose its binding legal opinions was introduced in the Senate by Sens. Duckworth and Leahy last week. Demand Progress organized a letter in support of the legislation, noting how OLC’s secrecy threatens Americans rights and Congress’s legislative and oversight roles; luminary Democratic lawyers cataloged these threats in this 2020 statement. The DOJ OLC Transparency Act would bring to light OLC promulgated secret law, mitigate Executive branch overreach, and allow for a congressional response to abuses committed under the aegis of results-oriented OLC opinions. More from us here.

FOIA is the topic of a belated memorandum issued by Attorney General Garland, who on Tuesday instructed agencies reviewing FOIA requests to adopt a presumption of openness, make proactive disclosures, remove barriers to access, and remediate backlogs. All this came after extended requests from civil society and Members of both parties. Does it go far enough? GovExec’s Courtney Bublé summarizes the memo and our own Ginger Quintero-McCall highlights the need for: commitments to “greater resources to FOIA offices, […] supporting legislative reforms including a public interest balancing test, rolling back the harmful Argus Leader Supreme Court ruling, and ensuring transparency of Office of Legal Counsel opinions.” In an essay, Quintero-McCall lays out three ideas for improving FOIA implementation.

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New Office of Legal Counsel Transparency Bill Would End Secret Law by OLC Opinion

Official sign depicting entrance to Department of Justice's Office of Legal Counsel
Sign outside the Department of Justice’s Office of Legal Counsel

Senator Duckworth, along with Senator Leahy, just introduced the Demanding Oversight and Justification Over Legal Conclusions Transparency Act (DOJ OLC Transparency Act), a bill to require the Department of Justice to publicly disclose all Office of Legal Counsel opinions, with appropriate exceptions for classified material.

Demand Progress has long advocated for such transparency, and applauds the efforts of  Senators Duckworth and Leahy to introduce legislation that would protect a foundational principle in our democracy: the right of Congress and the public to know how the laws of the land have been implemented by the executive branch. 

“The Office of Legal Counsel has shaped lasting U.S. policy under a dangerous shroud of secrecy that has shielded legal opinions that are controversial, even dubious or shoddy, from both congressional oversight and legal interpretation. Had this bill been law in 2002, it’s highly unlikely the U.S. would have engaged in human rights abuses at Abu Ghraib, as the legal justification provided by the OLC’s so-called ‘Torture Memos’ would not have withstood public scrutiny,” said Demand Progress Legal Director Ginger Quintero-McCall. “The DOJ OLC Transparency Act would put an end to secret law via OLC opinion by empowering Congress to protect its own oversight capabilities, incentivizing OLC attorneys to produce high quality legal analysis, and ensuring that every member of the public understands what laws the country is actually operating under. We commend the legislation introduced by Senator Duckworth and Senator Leahy, and call on every member of Congress who cares about government accountability to support this important legislation.”

OLC’s “core function,” according to its own memoranda, is to provide “controlling advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government.” This legal advice “may effectively be the final word on the controlling law,” yet it is routinely withheld from both Congress and the public. 

Neither Congress nor the public is aware of the number of OLC opinions currently in effect, much less their legal conclusions. The OLC is typically able to thwart disclosure through FOIA requests, claiming its relationship to the Attorney General is essentially by attorney-client privilege. It took lawsuits that took advantage of a 2016 amendment to the Freedom of Information Act to compel the OLC to at least release opinions that are more than 25 years old.

Along with its House companion legislation led by Reps. Cartwright and Quigley, this Sunshine Week introduction of the DOJ OLC Transparency Act starts us on that path. 

Letter by organizations supporting DOJ OLC Transparency Act.

First Branch Forecast for March 14, 2022: The Ides of Sunshine

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Welcome‌ ‌to‌ ‌the‌ ‌First‌ ‌Branch‌ ‌Forecast,‌ ‌your‌ ‌regular‌ ‌look‌ ‌into‌ ‌the‌ ‌Legislative‌ ‌branch‌ ‌and‌ government ‌transparency.‌ ‌Tell ‌your‌ ‌friends‌ ‌to‌ subscribe.


Morning, sunshinethis week is Sunshine week, an annual celebration of open government and freedom of information The Senate is in today; the House is in tomorrow. The final FY 2022 appropriations omnibus is about to become law, just as soon as the House & Senate finish copy-editing, printing, and collating the document and send it over to Joe B; the short term CR was signed on Friday. It would’ve been nice to have the final bill text and joint explanatory statements publicly available for more than a hot minute before the vote, especially as many other measures rode along with the approps package into law (such as the Intel Authorization Act). The COVID-19 relief supplemental didn’t make it into the package in part because its contents apparently contained measures that surprised members, and leadership didn’t provide themselves with enough time to fix it; will it join Build Back Better in the boneyard of almost-was?

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Key Funding Items Included in the FY 2022 Legislative Branch Bill

The FY 2022 appropriations omnibus was passed by both houses of Congress this past week and President Biden is expected to shortly sign the measure into law. The FY 2022 Legislative Branch Appropriations Bill was rolled into the package, and it is packed with good government reforms and significant investments in Congress’s capacity to legislate, conduct oversight, serve constituents, and more. This legislation takes a giant leap forward to restoring strength to the Legislative branch through its efforts to address decades of underfunding.

We and our civil society colleagues recommended dozens of items to include as part of the bill text and committee report — see our FY 2022 Appropriations requests, FY 2022 appropriations testimony, and 2020 report on updating House Rules — many of which appropriations graciously considered and included.

As Congress turns to the FY 2023 appropriations process, this blogpost highlights some of the notable funding changes reflected in the FY 2022 Legislative Branch Appropriations Bill. You can find the complete FY 22 Legislative Branch portion of the bill here and the Joint Explanatory Statement here. For resources on prior Legislative Branch Appropriations bills, go here. In a future blogpost, we will look at the report language.

You can compare final line item funding for FY 21 versus FY 22 by looking at our spreadsheet. It is somewhat confusing, as some agencies/entities are funded by more than one line on the spreadsheet. We hope to have a summary version in the near future. Here is funding by line item over the last 25 years, not including the about-to-be-enacted fiscal year.

The FY 22 Legislative Branch bill appropriates $5.925 billion towards the Legislative Branch, a $625.0 million increase over FY 2021, representing 11.8 percent increase. Roughly 40 percent of the increase will go to the Capitol Police and Architect.

Among the key funding features of this legislation include:

A 21 percent increase to personal, committee, and leadership offices in the House.
The House saw a $134.4 million (21%) increase for the Member Representational Allowance (MRA) to $774.4 million, which represents the largest MRA increase since the line item was created in 1996. The House also saw a $6 million (21%) increase in Majority and Minority Leadership funding to $34.9 million, as well as a $34.2 (21%) increase in funding for House committee operations. This funding in the House signifies a significant investment in helping to rebuild congressional capacity and staff pay.

The Senate’s SOPOEA — the Senate equivalent to the House MRA — funding level saw a slight increase by $25.3 million from $461 million in FY 21 to $486.3 million in FY 22, representing a 5.5 percent increase. The Senate historically has incorporated an automatic increase in funding for its constituent service staff based upon growth in the states, so it has done a somewhat better job increasing its funding over the years.

Paying interns more.
In the House, personal offices saw a 40 percent increase in aggregate internship funding, with a $4.4 million increase to $15.4 million. Leadership office intern funds were increased by $240.5 thousand for the Majority and $197.5 thousand for the Minority, representing 20.5 percent and 19.8 percent increases respectively. For the first time, the House funded committee interns, at a level of $2.3 million.

In the Senate, funding for internships increased by $1 million, from $6 million to $7 million, representing a 16.7 percent increase. Senate committee internships did not receive any funding.

These internship funding increases should help broaden pathways for students (and veterans) from all walks of life to experience working for Congress. We note that funding for the Office of Diversity and Inclusion doubled from $1.5 million to $3 million, which means that this newly widened pathway will make it possible for more people to get their foot on the first rung of the Congressional ladder.

Substantive increases in support offices funding.
In the House, support offices like the Clerk (+14%), Sergeant at Arms (+19%), and Whistleblower Ombuds (+25%) saw significant increases. The Clerk needs the funds to support its technology operations and ongoing modernization initiatives, and the SAA has significant security components. The Chief Administrative Office, which continues to produce great work around staff and member training, saw a 9 percent increase from $177 million in FY 21 to $193.2 million in FY 22. We also note real increases for the important but often overlooked Office of General Counsel (+5.3%), Legislative Counsel (+5.8%), and Law Revision Counsel (+3.8%).

In the Senate, the largest percentage funding increase went to the Office of the Secretary of the Senate, which had a 141.5 percent funding increase from $9.5 million in FY21 to $23 million in FY 22. The Senate Sergeant at Arms and Doorkeeper saw a $9.68 million increase to $98.5 million, representing a 10.9 percent increase from FY 21. Policymaking support offices, like the Office of the Legislative Counsel of the Senate (10%) and Office of Senate Legal Counsel (8.5%), saw increases as well.

Increases for the legislative policy support agencies.
The Government Accountability Office saw a significant increase in funding, a $58.1 million increase to $729 million (+8.8%), although it is significantly below its historical funding levels when adjusted for inflation. Increases in funding for GAO has a high probability of leading to substantial long run savings — GAO estimates that every dollar spent on GAO has a 110-120x return on the investment.

There were increases in other legislative policy support agencies: Congressional Research Service (2.9%), Congressional Budget Office (6.4%), and Government Publishing Office (the actual amount is unclear because of how the revolving door fund works)

The Office of Congressional Workplace Rights saw no increase in funding. With the ongoing unionization push in the House, this flat funding likely will be insufficient in FY 23.

The Capitol Police Receive a Significant Funding Increase
The Capitol Police will receive an additional $87 million from $515.5 million in FY 21 to $602.5 million in FY 22, representing a 16.9 percent increase. USCP aims to use additional funding to pay for new sworn officers and civilian members, although they likely will find it hard to sustain that level of hiring. Unlikely other Legislative Branch entities, the Capitol Police are always well funded and routinely enjoy significant increases. As we have written elsewhere, the major problems at the Capitol Police lie with poor leadership, bad management, and a lack of training, something that funding cannot resolve.

The Architect of the Capitol Received a Significant Funding Increase.
The Architect of the Capitol saw an increase of $98.8 million from $675.1 million in FY 21 to $773.9 million in FY 22, representing a 14.6 percent increase. There is also an additional $16.3 million in increased funding representing a 35 percent increase, for USCP buildings, grounds, and security, which is housed under Architect funding. Funding includes $128 million to continue restoration of the Cannon House Office Building.

What We Know About How House Unionization Might Work

The House Administration Committee held a hearing on Congressional unionization on Wednesday, March 2, 2022. Congress approved legislation providing for unions a quarter-century ago and the Office of Congressional Workplace Rights (OCWR) promulgated regulations on how unionization would work at the time, but tricky language in that law requires the House to act (by a resolution) to implement labor protections for certain political and non-political staff. The hearing focused on whether the unionization regulation should be put into effect.

Witnesses included OCWR General Counsel John Uelman, who was there as an expert witness to explain how all this might work, as well as Mark Strand, who represented the conservative Congressional Institute in opposition to unionization. Demand Progress submitted this statement providing a history of how we got here, and Rep. Levin submitted a statement explaining why the time for unionization is now. In addition,  a coalition of 78 organizations called on the House to protect staff’s right to unionize immediately in a letter to House leadership timed to coincide with the hearing. We’ve got the witness statements, video, and everything else you could want on the topic here.

In sum, Uelman said the current OCWR Board unanimously supports the 1996 regulations and “urges Congress to approve these regulations.” More than 160 members of Congress have cosponsored Rep. Levin’s resolution. Following the hearing, the Congressional Workers Union released a statement in support of immediate adoption of the 1996 regulations; it’s available hereRollCall and BGov have good summaries of the hearing.

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First Branch Forecast for March 7, 2022

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Welcome‌ ‌to‌ ‌the‌ ‌First‌ ‌Branch‌ ‌Forecast,‌ ‌your‌ ‌regular‌ ‌look‌ ‌into‌ ‌the‌ ‌Legislative‌ ‌branch‌ ‌and‌ government ‌transparency.‌ ‌Tell ‌your‌ ‌friends‌ ‌to‌ subscribe.


The House and Senate are both in session today. This week Congress will attempt to pass the spending omnibus — which may include emergency supplementals for Ukraine and Covid-19 — before government funding expires Friday. We’re keeping our eyes out for the final Leg branch appropriations numbers, which we hope provide for a significant topline increase and also invest in transparency and capacity within FSGG and elsewhere.

SCOTUS Ethics. A hearing on the need for a code of conduct for Supreme Court justices is scheduled for tomorrow, March 8 at 2PM. It looks like federal judges will soon-ish be required to disclose stock trades over $1,000 on an online searchable database as well as their financial disclosure forms, as S.3059 recently passed the Senate and a companion measure passed the House in December. The SCOTUS is empowered to regulate itself, as if that’s meaningful, so a code of conduct may be a useful pathway to address its, uh, failure to do so thus far.

Bulk Data Task Force. Discuss congressional data this Thursday, March 10, at 2 PM. RSVP here; find the agenda here. This long running working-group, established by Congress and composed of congressional and non-governmental stakeholders, is a great place to talk about improving congressional data inside and outside Congress, including to see a preview of new tech tools in the pipeline. Our recap of the last quarterly meeting is posted here.

In honor of Sunshine week, join a panel discussion on some of the biggest transparency and accountability issues facing our world today next Wednesday, March 16th. RSVP here. Hosted by the Advisory Committee on Transparency, the event will feature remarks from Rep. Quigley, founder of the Congressional Transparency Caucus, and Rep. Kilmer, Chair of the House Select Committee on Modernization. Panelists include Shanna Devine of the House Office of Whistleblower Ombuds, Kate Oh of the ACLU, Danielle Brian of POGO, and Nick Hart of the Data Foundation. Alex Howard will moderate; he is co-director of the Advisory Committee on Transparency and director of the Digital Democracy Project. (I’m the other co-director. :)) More Sunshine week events are listed in the calendar section.

Ethics online. 36 organizations urged ethics and disclosure documents “made publicly available” at the Legislative Resource Center should actually be made publicly available by publishing them online and in a structured data format. The letter, sent to the House Administration Committee on Friday, noted that the LRC has been effectively closed to the public for more than two years. What do they have exactly? Here’s our spreadsheet of what’s available at the LRC and its Senate equivalent, the Senate Office of Public Records.

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