On the calendar. The Senate and House are in today. The week before recess is often a whirlwind of activity and this week is no exception. In the committees, we have four — four! — House Leg branch appropriations hearings, a ModCom hearing on Continuity of Congress, a House Admin STOCK Act hearing, and … the Congressional Hackathon (RSVP here).
We’re still waiting…
⟶ Where is the House unionization resolution? House Admin held a unionization hearing a few weeks back, Rep. Levin introduced a resolution, leadership pledged their support along with 3/4s of House Dems, so what’s the holdup? Are we waiting for the House Admin Committee to report a resolution? Something else?
⟶ Where are the increased funds for committees? AFAICT, new funding for committees (to address staff pay) have yet to come through. As I understand the process, even after money is appropriated (when the president signed the omnibus on March 15th), the House Admin Committee still has to report out a resolution that allocates the funds to the committees, which must then be passed by the House. (Here’s how that process works at the start of a new Congress.) House Admin hasn’t held a business meeting since mid-March, postponed the STOCK Act hearing to this week, and there’s no indication of a committee poll on this issue, so the Committee has yet to report out a resolution for consideration on the floor and thus the new funds haven’t gone to the committees for them to disburse to staff. Maybe there are other ways for a resolution to come to the floor, but I haven’t seen anything that looks like a funding resolution on Congress.gov.
Pure speculation on my part is that both of these resolutions were held up in part because several Members, and possibly staff, contracted COVID at the Dem retreat, including House Admin Chair Lofgren. It could also be that it is hard to get a quorum of Members to show up with the House’s persistent scheduling conflicts. We hope that all the Members and staff have fully recovered and we wish them well. Hopefully this week’s STOCK Act hearing will have a business meeting trailer that will move both these issues.
THIS WEEK IS BUSY
I can’t speak to all the floor and committee activity set to occur, but for people interested in the operations of Congress and government transparency, there’s a lot going on. Here’s what to watch out for.
Congressional agencies’ FY 2023 budget requests will be discussed in four hearings before the House Approps Leg branch subcommittee this week. So you have it handy, we pulled out the Leg branch section of the President’s Budget so you can read the requests. ZZZZZZ. Demand Progress’s approps requests are here and we’re tracking when Members need to submit their approps requests to the subcommittees.
• GAO hearing on Tuesday at 10. We’ll be watching for a discussion on whether GAO will be sufficiently resourced should it receive its requested 9% increase to $785 million. (It probably needs more.) Demand Progress’s approps recommendations include a study on the ROI from further increasing GAO’s funding back to historic norms; directing the agency to compile an annual report on all its unimplemented recommendations; and buttressing the agency’s ability to oversee elements of the Intelligence Community, which often resist its oversight activities even when directed by a committee of jurisdiction.
• CBO hearing on Tuesday at 1. The agency requested a 6% increase to $64 million. Demand Progress’s approps recommendations include strengthening CBO’s ability to get information from Executive branch agencies (which was a focus of a recent ModCom hearing).
• OCWR hearing on Tuesday at 3. The agency has not requested a budget increase for FY 2023 or FY 2022, which is set at $7,500,000. This is problematic as the OCWR testified before the House Admin Cmte recently to say that they’d need increased funds should the House allow congressional staff to unionize. They should be asked how much they’d need. Demand Progress has recommended that appropriators consider adopting a resolution to provide for unionization of joint agencies (like the CBO) under the Congressional Accountability Act.
• House Officers (Clerk, CAO, Sergeant at Arms) hearing Wednesday at 2. The Clerk has (reasonably) requested a 10% increase to $40 million; the CAO requested a 9% increase to $211 million; the Sergeant at Arms requested a 40% increase to $38 million. Demand Progress has a number of appropriations recommendations for each entity, from which we’ve selected highlights below:
⟶ For the Clerk, Demand Progress recommended updating the list of all mandated reports due to Congress to include reports due to committees and subcommittees; publishing ethics documents available at the Legislative Resource Center online; improving the publication of data about lobbyists; creating a legislative branch data coordination office; providing sufficient support for building a committee document online management system; and participating in a congressional digital services task force. The Clerk does a ton of work, including with its comparative print project, and needs both better funding and the ability to pay staff at higher levels.
⟶ For the CAO, Demand Progress recommended publication of the data identifiers in the statements of disbursements so it is easier to follow the data; the creation of a congressional fellowship database; participation in a working group to create a congress-wide address book; and a plan to increase staff pay frequency to twice a month.
⟶ For the Sergeant at Arms, Demand Progress recommended updating its manual to allow each Member of Congress to have one staffer who is eligible to apply for a TS/SCI clearance. We also have many recommendations to modernize the Capitol Police; the SAA sites on the USCP Board.
⟶ The House of Representatives itself does not have a representative who can testify on behalf of that body — maybe it should? — but Demand Progress has a number of appropriations recommendations. They include: increasing personal and committee staff pay levels by the amount recommended by the House IG to create parity with the Executive branch; creating a House Intern Resource Office; closing gaps in IG coverage inside the Legislative branch; publishing Leg branch Congressional Budget Justifications online in one location and House agency annual and semi-annual reports online in a central location; and allowing Members to choose to have Dear Colleagues automatically published online.
Non-appropriators are holding hearings this week as well. Notable proceedings include Tuesday’s Senate Judiciary Committee hearing on enhancing the law requiring reporting by foreign lobbyists, a.k.a. FARA — we have some ideas. The ModCom will hold a hearing on Continuity of Congress on Wednesday — see testimony from my colleague Taylor Swift on this from last year and our website on Continuity. (If you want to raise the hair on your neck, watch this FOIA’d DOE “newscast” on a (simulated) nuclear explosion in Indianapolis.) And House Admin will hold its much-anticipated STOCK Act reform hearing on Thursday — we have some ideas for a roadmap.
SPEAKING OF APPROPRIATIONS
President Biden’s budget went out last week. The full budget is up here; a pdf of just the Leg branch section is here. We crunched the numbers on the Leg branch so you don’t have to — see our spreadsheet comparing this years’ Leg Branch requests against the enacted numbers for FY 2021 and FY 2022.
Keep up to date on testimony deadlines with our handy spreadsheet.
What policy provisions were included in the FY 2022 Leg branch approps bill? Taylor Swift has a helpful (lengthy) blogpost that goes through all the provisions of interest to us that were included.
Defense spending is, like the blob, bloating to a request for $773 billion for the Pentagon, a 4% increase from last year’s enacted levels. POGO’s Bunker newsletter is on the money: “What’s really a hoot about Russia’s abysmal showing in Ukraine has been how quickly it has led to calls from various nooks and crannies of the U.S. military-industrial complex to boost the nation’s defense budget. The ‘logic’ boils down to this: ‘The Russians are stupid—and we have got to match them.’”
Earmark this congressional spending dataset published by the Bipartisan Policy Center. Appropriators did a middling-to-poor job publishing earmark requests in a useful format, so BPC did the hard work of transforming it into data. (They did a lot of work — kudos! The spreadsheet would be enhanced by adding the bioguide IDs to the members, agency IDs, and linking to the request letters, but the last part would require a fair amount of work. Doing so would make it interoperable with other datasets.) My guess is that appropriators once again received the lion’s share of earmarks. The NYT has a story on who got what. Oddly, many Republicans in the House who got the largest earmarks also voted against the appropriators package, which challenges the conventional wisdom that doling out earmarks gives members buy-in to the process.
Three significant transparency + accountability bills have recently dropped.
⟶ The Improving Government for America’s Taxpayers Act, introduced by Reps. Kilmer, Timmons, 3 committee chairs/RMs, and 6 Members, would create a consolidated, public list of GAO recommendations to agencies, a cost estimate for their enactment, and track the lag time between the issuance of GAO recommendations and agency action. Any senators looking to drop a companion measure?
⟶ The PLUM Act (S.3650), which transforms the paper-only PLUM book into an online directory of filled and vacant senior executive branch positions, was favorably reported by HSGAC last week; it has a companion measure, H.R. 2403, in the House. The amended bill text, which we have helpfully published here, reduces the frequency of updates to annually, sunsets the print version in 2026, and reverts the definition of a “Policy and Supporting Position” to the 116th Congress language. Demand Progress has long supported the bill and it is good to see the bill receiving bipartisan support.
⟶ The DOJ OLC bill was introduced two weeks in the Senate, but we’re still over the moon for it. We’re waiting on the reintroduction of a House companion. More here.
CAPITOL POLICE OVERSIGHT HEARING
Capitol Police Chief Manger testified before the House Appropriations Subcommittee on Wednesday (video, written testimony) in support of a blockbuster request for a $708 million budget for FY 2023. To put this in context: the Capitol Police received $602 million in FY 2022, so this is a $105 million or 17.52% increase in a single year; the USCP received $515 million in FY 2021, so this funding level represents a $192 million or 37% increase over 2021. Wow. The USCP currently receives 10% of all Legislative branch funds, up from 3% in 2000. The increase for the Capitol Police over two years ($192 million) is equivalent to the total funding for all House committees combined ($197 million in FY 2022). By comparison, the DC Metropolitan Police received (the comparatively smaller) $559 million in 2020, and they have primary jurisdiction over an area much larger and more populous than the Capitol Complex’s 270 acres.
USCP personnel hiring and attrition was the primary focus of the hearing. In a normal year, the USCP loses 80 staff and is able to onboard around 120. The USCP lost 150 people between 2021-2022 and hopes to onboard around 200 new employees this year, although that seems optimistic. The USCP says they currently have 1,849 officers, 300 short of their goal, with 130 officers in the pipeline. The current proposal provides budgetary authority for 2,126 officers and 567 “civilian” positions. The USCP says they have no problem finding applicants, but only 10% are qualified, so IMO it will be a long time before they reach their goal, even with the retention bonuses and other sweeteners they are providing to employees.
Fundamental management problems, including the structural problems in the Capitol Police Board and major deficiencies in training and security planning, largely were not discussed or were glossed over in the written testimony and at the hearing. In my opinion, it doesn’t matter how many officers you have when leadership and training are lacking, a matter discussed in my testimony in January before the House Admin Committee.
Throw money at it. Members of Congress have expressed significant fear of being harmed by a member of the public, whether in their district offices or when walking down the Capitol steps after a vote. That fundamental fear, fed by alarming statistics from the Capitol Police that do not quantify the nature of the threats — even as we acknowledge the valid concerns — likely will result in the committee granting the USCP the funds they request. That fear, plus the current political imperative of “funding the police,” most recently expressed by Pres. Biden in the State of the Union, creates a political dynamic where the USCP will continue to grow as a percentage of Legislative branch funding and are largely (publicly) unchallenged so far as they argue that they are keeping members safe. Everything that I’ve seen since I started at Congress in September 2001 suggests that a failure to fundamentally reform the USCP, which does not appear to be happening, will leave unaddressed the fundamental security problems and fail to prevent future attacks, despite all the money thrown at the problem.
Regression to the mean. We’ve seen this scenario previously — where funding for the Capitol Police increases year over year while everyone else stays flat or is cut. It might happen again. This past year the Congress did a fantastic job trying to redress the underfunding of its political staff over the previous decades. But there’s more than a little concern in my mind that future Congresses may be unwilling to proportionally increase the top line number for the Legislative branch, which will again result in a hunger games for the agencies where everyone but the police and maybe the architect will start to suffer funding cuts. We should seriously consider moving funding for the USCP out of non-defense discretionary spending or their funding will eventually be all that’s left of the Legislative branch.
FOIA OVERSIGHT HEARING
The Freedom of Information Act was the focus of a Senate Judiciary Committee hearing (video) with a panel of government witnesses. Senator Leahy guest-chaired the hearing in light of his long-standing leadership on open government issues; the last Senate Judiciary hearing on FOIA was in 2018. He noted, in his opening remarks, the steadfast leadership of Sens. Cornyn and Grassley on FOIA matters. One of the biggest challenges for FOIA is the growth of electronic records and broad requests for information. To meet this challenge, the panelists agreed that agencies need more resources, more staff, and better technology in order to be able to manage this challenge. Sens. Feinstein and Ossoff notably asked pointed questions regarding agency backlogs and how agencies mismanage requests from Congress by treating them as if they were FOIA requests (and subject to the same exemptions, which they are not). We commend FOIAnouts to read the testimony POGO submitted to the committee on how Congress should improve the FOIA; the Revolving Door Project’s urging the DOJ to follow its own FOIA guidance; and Politico’s Josh Gerstein’s excellent recap of the hearing. (Perhaps timed with the hearing, CRS has updated its longstanding primer on access to government information, although oddly it does not cite civil society experts.)
ODDS AND ENDS
Manchin: case in point. Sen. Manchin’s career can’t be divided into coal man and legislator and we should be seriously concerned about the apparent self-dealing involved. Last week’s New York Times teases out how coal companies powered Sen. Manchin’s rise to power and how Sen. Manchin’s power energized coal company profits. His defense, that he didn’t break the law, doesn’t hold up. When you write/oversee the ethics and conflict-of-interest laws that allow self-dealing, it is not a defense to say that you have not violated the law. It is an admission.
Rep. Bennie Thompson, by contrast, has a career-long history of pushing for representation and services for those treated by society as second-class citizens. Grace Segers has Thompson’s profile in TNR, describing “his life’s work of subverting systems while still acting within them, using his relative power to methodically scrub the grout of racism and corruption from their halls.”
Senate dining workers are facing layoffs now that federal pandemic aid is running out, according to the union representing the workers. Precarious conditions are nothing new for Senate food service workers, Chris Cioffi writes for RollCall. In part, it may be why many of them unionized last year. In 2008, the Senate privatized its dining workforce to save money (e.g., not pay when the Senate is out); without adequate labor protections, dining employees are vulnerable to Congress’ irregular schedule and unforeseen closures of Capitol eateries. Senate and House dining workers began labor negotiations with their employer, Restaurant Associates, at the end of last year, but have yet to see meaningful improvements.
Criminal contempt for Navarro and Scavino. On Tuesday, the Select Committee on Jan. 6 recommended the House hold Trump aides Peter Navarro and Dan Scavino in contempt of Congress on Tuesday; expect a full House vote later this week. As this 2019 CRS report details, the criminal contempt process is only one of three options at Congress’s disposal to enforce compliance with congressional subpoenas. The House or Senate can also bring civil suits against non compliant individuals, or invoke its long disused inherent contempt power. There’s an effort to revive those powers — for ex., through Reps. Lieu and Raskin’s Congressional Inherent Contempt Resolution (H.Res.869).
Sen. Ted Cruz’s involvement in the insurrection is another key question for the Select Committee, WaPo reports: Cruz may have been central to executing a coup from inside Congress.
New from NARA. The National Archives’ FY 2023 budget request is out, along with the agency’s strategic plan for 2022 – 2026 and its annual performance plan and report.
GPO’s draft strategic plan for 2023 – 2027 is out and open for comment. Submit comments via email to [email protected] by April 29, 2022.
Architect of Capitol improperly billed taxpayers, IG report finds. A new AOC IG report found the agency spent $93,764 on “unallowable costs” associated with the ongoing House Cannon Office building renovation including a baby gift, bike wheel, and thousands in unexplained expenses, Roll Call reports. The good news is these unallowable expenses were less than 1 percent of the total cost. The bad news is the project is $182 million over budget.
All thanks to the Clerk. House Bill Clerk Peggy Fields was recognized by Rep. McGovern last week on the House floor. Watch the speech here. (H/T KTM.)
Judge Kentaji Brown’s record on FOIA and and the First Amendment, according to the Reporters Committee, “demonstrate a deference to agency exemption claims, especially in the national security context, but a willingness to deny an agency summary judgment where government officials failed to provide sufficient evidence to keep records hidden from the public. Her record also reveals a willingness to rule in favor of record requesters on non-exemption issues pertaining to the sufficiency of an agency’s search for records and record fee disputes.” This is also not great: “she ruled that the U.S. Justice Department’s Office of Legal Counsel could shield its legal opinions from public disclosure.”
Coda. On the House floor on suspension this week is the DHS IG Transparency Act (HR 5633), which BGOV summarizes as directing the IG to share with committee and make publicly available IG reports (1) on workplace retaliation against whistleblowers who make protected disclosures of waste, fraud, or abuse; and (2) misconduct/policy violations by political appointees or SES. The measure was introduced because the “DHS inspector general stopped publishing findings of whistleblower retaliation and senior employee misconduct, struggled with management and operational challenges, and hindered investigations into alleged intelligence manipulation and whistleblower reprisal.” Coincidentally, the House Homeland Security Committee is holding a budget hearing with the DHS IG on Wednesday.
For this week’s Leg branch agencies’ FY 2023 budget request hearings, see the Top Line.
Enhancing FARA, the law requiring reporting by foreign lobbyists, is the subject of a hearing scheduled before the Senate Judiciary subcommittee on the Constitution, Civil Rights, and Civil Liberties scheduled for Tuesday, April 5 at 10 AM.
Congressional modernization efforts — including ModCom, legislative data, and the new House Digital Service — are the subject of a panel discussion hosted by Georgetown University’s Beeck Center scheduled for Wednesday, April 6 at 11 AM. Register here.
Continuity of Congress is the topic of a hearing before ModCom on Wednesday, April 6 at 9 AM.
The Fourth Congressional Hackathon will be held (in person) on Wednesday, April 6 from 1 – 6 PM in the CVC Auditorium of the Capitol Building. Majority Leader Hoyer and Minority Leader McCarthy will co-host. Register here.
STOCK Act reform is the subject of a hearing before the House Admin committee this Thursday, April 7 at 9 AM. Liz Hempowicz of POGO, Donald Sherman of CREW, Jacob Straus of CRS, and Donna Nagy of Indiana University Maurer School of Law will testify.
Legislative tech throughout the Americas is the subject of an upcoming Bússola Tech conference on May 5 and 6. Stay tuned for registration info.