This week. The Senate is in today as is the House. Next week is a House committee-only work week, followed by the Memorial Day break in both chambers. On suspension on the House floor is a bill to strengthen the VA IG. The committee schedule is filled with appropriations hearings, but we also note that the House Judiciary Cmte has a hearing on potential reforms to emergency powers and the House Leg Branch SubCmte is holding a Member Day hearing.
Because this IS appropriations season, here is our list of appropriations deadlines for member testimony and public witness testimony in both chambers.
The big news. Many political and nonpolitical House staff will be able to unionize now that Rep. Levin’s resolution, H.Res.1096, passed the House last week. The OCWR must publish the regulations in the Congressional Record and (oddly) the OCWR has not (yet?) exercised its authority to shorten the 60 day waiting period, which starts upon publication in the Congressional Record, for the protections to go into effect. OCWR had testified to House Admin that the House could speed up implementation if it elucidated good cause to shorten the window, suggesting (at the time) that those views could be published in an accompanying committee report. Maybe there’s some other way they could be communicated?
Resources. We’ve compiled a list of resources/useful documents on unionization and note good reporting on unionization in the New York Times; Roll Call; Vox; and a great column by two staffers in the New Republic.
Unionization is not a cure-all to improve working conditions for staff and strengthen the Legislative branch, but it creates a self-reinforcing mechanism by which this can happen, and civil society organizations are pleased to see House staff afforded the opportunity to organize. For our part, we believe the vote to allow House staff to unionize portends a significant advance in the working conditions for congressional staff and is a high point in efforts to restore Congress’s strength as a robust institution capable of working on behalf of the American people.
• Looking over the last few years, there have been significant increases in funding for the Legislative branch as a whole, including a 21% funding increase for House personal, committee, and leadership offices; a significant strengthening of the GAO; major funding improvements and policy modernization efforts embedded in the Legislative branch appropriations bill for FY22 and FY 2021; dozens of implemented recommendations from the House Modernization Committee; major reforms in the House Rules package (including the continuation of important offices like the Whistleblower Ombuds & Office of Diversity and Inclusion, which have enjoyed the strong support of the House Admin Committee); enacted measures that have addressed Congress’s power of the purse advocated by the Budget Committee; creating remote deliberating and voting procedures that provide for continuity in the House in the face of an emergency; passage of Congressional Budget Justification Transparency and (hopefully soon) transparency around agency mandated reports to Congress by House Oversight and HSGAC; and an agreement to extend TS/SCI clearances to personal office staff in the Senate (but not yet the House).
• More is still needed, and we have a list of proposed reforms for appropriators to consider, recommendations to strengthen congressional oversight, ideas for a new funding model for GAO, a series of recommendations for strengthening the Senate, a list of proposed House rules changes, ideas to improve the Library of Congress’s legislative information services, and a detailed report on how to rebuild our Congress. We are making steady progress. There’s no doubt that this House of Representatives has done more to strengthen the Legislative Branch than any Congress in the last 30 years. And yet, we are still a long way away from being back to good.
Congratulations. We commend Rep. Levin for championing the unionization resolution; all the Members of the House who co-sponsored the resolution; Rep. Zoe Lofgren, for her support and oversight efforts via the House Admin committee; Speaker Pelosi and senior leadership for bringing it to the floor; the anonymous person behind Dear White Staffers for elevating the treatment of staff; the press, for covering the issue; and most of all, the staff — especially members of the Congressional Workers Union — who advocated and organized for their right to form a union and collectively bargain without threat of retaliation.
What now? The struggle to secure fair working conditions for staffers is far from over. There’s still the need to legislatively authorize shared staff (like at CBO) the right to unionize, as well as staff in the Senate. We also are eyeing the proposal from Reps. Hoyer and Jeffries to improve benefits for congressional staff in FY 2023.
This past week included a Senate Leg Branch Approps hearing into the AOC, Senate Sergeant at Arms, and CBO, as well as a House FSGG hearing with representatives of the federal courts. The next Senate Leg Branch Approps hearing will be Wednesday, May 25th, at 3pm, and will include the Capitol Police, GAO, and the Library of Congress.
Oversight is hard. It’s been difficult to fully understand the budget requests from the Legislative branch offices and agencies. Some, like the Architect, are now refusing to release their Congressional Budget Justifications even though that is common practice across the federal government, citing security reasons that shouldn’t preclude publication of the majority of that report (and haven’t limited others). While the House routinely publishes a report at the end of the cycle that contains all the CBJs it receives, the Senate does not, so there’s not much visibility into Senate entities, like the Senate Sergeant at Arms. (We hear this can be a problem for authorizers in the Senate, too, who have difficulty getting access to these documents.) Federal law requires all Executive branch CBJs to be published online in a central location, and prior to its passage OMB required all (executive branch) agencies to publish these documents online. In addition, not all Legislative branch agencies and offices are publishing their annual or semi-annual reports online, lending an air of mystery about what they’re doing with millions of taxpayer dollars. Not just that: civil society is often an adjunct to Congress, helping it conduct oversight, which isn’t possible in the same way in the absence of transparency. All the Leg branch budget justifications + semi/annual reports should be published online.
An in-person Congress? A significant line of discussion at the hearing for the Ranking Member was pushing to completely reopen all Congressional buildings to the public as they were in 2019. Senate Sergeant at Arms Gibson explained that COVID is no longer the limiting factor, but an insufficient number of uniformed police. Nonetheless, the Congress will enter phase two reopening on May 30th, with phase three, or “back to normal” set for sometime next year. When pushed on whether it is necessary to wait to restore USCP officer numbers to their 2019 levels before going to phase 3, SAA Gibson pointed out three recent instances of imminent threats: the death of a USCP officer on April 2nd, the man threatening to blow up the Library of Congress on August 19th, and the suspicious vehicle parked outside the Supreme Court on October 5th. While COVID no longer seems to be a factor in these calculations — which is odd to us — we do note that the Director of the CBO was unable to testify as planned because of a close exposure to COVID.
CBO Director Philip Swagel’s written testimony is here; but as mentioned above Swagel did not testify regarding the agency’s requested $64.6 Million topline for FY 2023 due to medical quarantine. We noted last week that CBO’s CBJ represents a 6% increase from FY 2022 levels and would allow for seven new CBO staff and a 4.6% pay increase for employees earning less than $100k. CBO’s congressional budget justification is available here. Like other Leg branch agencies, CBO faces difficulties accessing info from the Exec branch. The House raised whether CBO would publish its conflicts of interest disclosure forms online. The agency is facing staff retention issues that it suggests could be addressed in part by improved child care.
The Architect of the Capitol (video, written testimony) requested to nearly double the FY 22 topline for FY 23 — from $782 Million to $1.673 Billion. Senate appropriators, like House appropriators, expressed some concern about the request including insufficient information provided by the AOC. Chair Reed said that the AOC is requesting $500m for construction based upon a physical assessment of the campus and $100 million for security screening vestibules. The highest priority security issue, according to Blanton, is completing the updating of exterior doors and windows, and that the AOC is compiling a list of priorities from top to bottom. There is now an agreement on security standards campus-wide for buildings. As in the House, the Architect raised serious concerns regarding aging infrastructure, highlighting the utility tunnels that need immediate repair to avoid tunnel failure. A failure of those tunnels would cause service interruptions for an extended prior of time and also raise safety issues. In addition, the AOC is looking at how to best support emergency situations, such as what to do when an all-clear is sounded. Many of the significant issues that we hoped would be addressed, from reforming the USCP Board and transparency around its operations to more transparency around the AOC itself, were not addressed at the hearing.
Appropriations: Senate Sergeant at Arms
Senate SAA Gibson (video, written testimony) requested a $285 Million appropriation, which is a 3.5% or $9.7 million increase over the FY 2022 budget of $275.4 Million. The SAA’s office would grow to 992 FTEs, an increase of 35 FTEs. The Sergeant at Arms is the protocol and chief law enforcement officer and principal administrative manager for most Senate support services. The Office of the Sergeant at Arms is the largest in size of staff and budget in the Senate (according to the SAA’s webpage).
Gibson’s oral testimony emphasized the development of a consolidated operations center; migration from a legacy data center; improved graphics; improved contingency readiness, including the purchases of satellite phones; modernizing IT systems; and a multi-year senate security initiative.
• On the Capitol Police Board, Gibson said the Board is more transparent, inclusive, and responsive — although perhaps she was referring to internal stakeholders because that has not been our experience. The Board is now memorializing decisions, which was a point of criticism from GAO for years as they did not do so. It is also unclear if the USCP has finished updating the manual of procedures, as GAO requested. Gibson made a point of emphasizing that the policies for sharing intelligence between the executive and legislative branches were written with oversight in mind, not making operational decisions, and need to be recrafted, especially around cybersecurity threats.
The written testimony. The Sergeant at Arms provided 20 pages of written testimony that contains details helpful for oversight of planned activities but is not organized in an apparent way. Only in some instances does it state the current and proposed budget increases for the various offices, seemingly organizing some sections by organizational structure and others by function. While comprehensive testimony is always welcome, it would be improved by better structure and signposting, adding an organizational chart, and adding a tabular appendix breaking out each item by current and proposed funding as well as current and proposed FTEs. In her oral presentation, Gibson explained that 10 new FTEs would go to the OCIO to work on resiliency and unified communications; 10 FTEs would focus on the threat to the capitol (presumably in the Office of Security and Emergency Preparedness); and 15 FTEs would provide better operational support to the Senate and the SAA (presumably split between Capitol Operations and the Operations Division, which are two different entities). Here are some highlights from the written testimony:
• The Senate Recording Studio’s video switching, routing, and audio systems are now past their serviceable life and need to be replaced. Maybe this is an opportunity to update how the Senate makes video available online — to have it centralized, archived, findable, and in more modern formats.
• Cybersecurity. The Senate has finalized its methodology to evaluate cybersecurity risks and will begin assessing offices. As the Senate ID badge software has also hit end of life, perhaps the SAA will take advantage of the opportunity to modernize the Smartcards to serve as two-factor secure network access authentication and other purposes.
• Staying in touch. The Senate is replacing its phone systems and also increasing “communications resiliency,” including the purchase of satellite phones, radios, access to emergency cell phone networks, mobile classified connections, and more. The new phone system will provide voice-to-text transcription, video integrations, a common directory, and more. The common directory has caught my eye — as the ability to identify people across the campus in a reliable way is a consistent problem across agencies and offices.
• Other security. The SAA has plans to train Senators and those who spent significant time on the floor on emergency procedures. There is also increased efforts to track threats to senators, protect them when they are traveling and at home, and review security at district offices.
• Remote. The Senate is upgrading its digitization of incoming constituent mail, a service used by 81 offices. The next iteration technology will allow keyword scanning. It is also now possible to process flag requests remotely.
• Custom software. The SAA supports custom software applications, including Quill, Otis, e-Financial Disclosure, Calendar +, and others. 90% of Senate offices use Quill. Under development is a Security Portal, to receive all security alerts in one place.
• Pages. The Senate is preparing to extensively renovate the page dorm, Webster Hall, that will require the program to relocate for a year. The last time this was done, it cost $8 Million, back in 1995. (I suspect the heaps of money spent on pages would be better spent on paying all interns the DC minimum wage.)
• Postal Square lease is ending and the SAA is looking where to house those employees and contractors.
On our agenda for the SAA: (1) push for transparency as a member of the Capitol Police Board, including implementing approps directives of creating a FOIA-like process and releasing USCP IG reports; (2) fundamentally restructuring the USCP and its overseers, which are not meeting the challenges of the moment through a failed leadership structure; (3) creating a central repository for Senate committee hearing and markup videos; and (4) publishing senators’ official personnel and official expense account (SOPOEA) reports as data.
On USCP accountability. Del. Eleanor Holmes Norton and Rep. Don Beyer have yet to receive a response from the USCP Board regarding their request, made in September 2021, that officers begin using body and dashboard cameras. The Members followed up in a letter last week. Also, Rep. Hoyer made a request for clarification on the rules for firearms.
Judicial ethics. The Supreme Court Ethics, Recusal and Transparency Act (H.R.7647), legislation to strengthen recusal and disclosure rules for the federal judiciary and require the Supreme Court to promulgate a code of ethics for itself, was favorably reported by the House Judiciary committee Wednesday. This bill is broader than the Supreme Court Ethics Act (S.2512, H.R.4766), which only includes a code of ethics requirement. It is narrower than the Judicial Ethics and Anti-Corruption Act (S.4177, H.R.7706), which bans judges from owning conflicted assets.
Financial disclosures. The Courthouse Ethics and Transparency Act, which is a financial disclosure + STOCK act-esque bill, was signed into law on Friday. We congratulate our friends at the Free Law Project whose painstaking work obtaining, digitizing, and analyzing federal court financial disclosure documents made this all possible.
House FSGG Approps: Judiciary. Two federal judges testified before the House FSGG appropriations subcommittee concerning appropriations for the federal judiciary (testimony of Hon. Amy St. Eve; testimony of Hon. Roslynn Mauskopf; video). We couldn’t make it, but we understand the witnesses focused on judicial security — specifically the Daniel Anderl Judicial Security and Privacy Act (S. 2340, H.R. 4436) — and their written testimony addressed workplace conduct, PACER transparency, and live streaming arguments. A few concerns on our radar:
• Privacy and the First Amendment. The Daniel Anderl Judicial Security and Privacy Act, introduced in response to the tragic murder of a federal judge’s son, started off as a fairly Owrellian bill although its rough edges have now been sanded off. It would permit federal judges to require third parties, including websites and data services, to remove some information off the internet, although we are unsure why this either is not narrowed, along the lines of its implementation in various states, or broadened to protect the privacy rights of all Americans. We also were significantly concerned regarding a prior iteration’s creation of a special spy capability for the court, although that seems to have been dialed back as well.
• Widespread reports of workplace harassment in the federal judiciary were suppressed earlier this year; Mauskopf testified that federal judiciary workers are protected from harassment, a matter on which employees do not concur. She did not mention pending legislation (H.R.4827) that would include judiciary employees under the Title VII protections against harassment, discrimination, and retaliation.
• Everyone agrees PACER reform is needed, but the federal courts continue their efforts to hamstring transparency. The approach favored by the federal judiciary would be much slower, more costly, and less effective than that laid out in the bipartisan Open Courts Act (S.2614). They’ve moved from outright opposition to mere obstruction of progress.
• Continuing to provide broadcast access. The federal judiciary has been doing a good job (H/T Fix the Court’s analysis) providing audio and video broadcast of arguments during the pandemic; all but one of the 13 circuit courts have indicated they intend to continue the practice post-pandemic.
SCOTUS spouses. The Senate approved a bill on Monday that would make families of Supreme Court justices eligible for 24/7 police detail protection. The bill originated with a draconian anti-protest measure that would have infringed upon First Amendment rights. Oddly, the bill was passed by the Senate BEFORE its final text was publicly available. This is an ongoing problem. Demand Progress and a coalition of 41 organizations continue to urge the Senate to publish bills and amendments online while they are under consideration so that the public, press, and Members of Congress can understand and respond to legislation. The Senate should proactively disclose bills before floor consideration, as is common practice in the House.
ODDS AND ENDS
Insurrection investigation. The Select Committee on Jan. 6th subpoenaed five Members of the House last week, including House Minority Leader Kevin McCarthy. Punchbowl outlines some possible scenarios that could result if the Members don’t comply. The Select Committee could pursue criminal contempt, but the Justice Department often is reluctant to pursue contempt cases — which is a fatal flaw with statutory contempt. Inherent contempt hasn’t been used in 100 years, although there has been extended discussion by Members of Congress and Congressional experts on reviving that power. The Ethics Committee is evenly divided between the parties, thereby turning an ethics decision into a partisan one. There’s always punishment in the House, with censure potentially attainable and expulsion most likely out of reach.
Dead or Alive? If you believe Punchbowl, efforts to ban congressional stock trading are stalled. If you believe Business Insider, efforts to ban stock trading are alive and well and deterring repeat offenders. Either way, the House Admin Committee is on the spot to report out legislation.
DOJ infringed on press freedoms. The Justice Department Inspector General secretly subpoenaed records concerning Guardian reporter Stephanie Kirchgaessner’s phone, the Guardian reported last week. It’s highly problematic that neither Kirchgaessner nor the Guardian were informed and that it was the IG — who’s supposed to protect whistleblowers — pursuing the effort. We have great respect for the DOJ IG, so we have to wonder: what were they thinking? This is yet another reason why the congress should enact a reporter shield law, such as that contained in the PRESS Act (HR 4330, S. 2457).
STOCK Act transparency theater. Business Insider’s Dave Levinthal reports that some members of Congress are “submitting comically illegible stock-trade disclosures” and has the screen shots to prove it. While you think the House (and Senate) would require electronic submission of these disclosures as data, they do not, and some Members take advantage of this by submitting essentially illegible documents. It’s not like this is a new issue, or that it hasn’t been raised with the authorizing committees (Ethics & Admin in the House; Ethics and Rules in the Senate) for more than a decade, and a more cynical person would publicly state that this form of transparency theater is the purpose of allowing members the option to submit data in essentially illegible and essentially unusable formats. It’d be just awful if Dave created a dirty dozen list of Members in each chamber as part of his reporting, which would have the terrible effect of incentivizing voluntary compliance in the absence of congressional actions.
Two good government bills were marked up and favorably reported out of the House Committee on Oversight and Reform. The Improving Government for America’s Taxpayers Act (H.R. 7331), sponsored by House ModCom Chair Kilmer and Vice Chair Timmons, 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. (Sen. Portman has introduced a companion measure, S.4128). The Building the Next Generation of Federal Employees Act (H.R. 6104), would create a comprehensive federal internship and fellowship program with OPM to manage, administer, and promote all Executive branch internship and fellowship programs. Demand Progress endorsed both bills and has published draft appropriations language that would direct the Comptroller General to conduct and publish a report on the financial cost of unimplemented GAO recommendations.
Congressional intern mentorship program. Junior staff can now sign up to mentor summer interns through the Modernization Staff Association and Capitol Hill Intern Association’s new mentorship program.
Lawmakers’ fitness to serve is the subject of a recent piece by Chad Pergram of Fox News which scrapes the recent historical record for numerous examples of Members whose mental fitness has come into question… then says there’s nothing to be done. We disagree. The first place to start is for the press to be frank about what they observe about the Members with whom they interact.
C-SPAN’s rebrand. C-SPAN lost its corner on the congressional hearing coverage market when Twitter, Facebook, Instagram, and YouTube started competing for viewers and people started cutting the cord to the cable companies. We are fans of C-SPAN programming. We also note that the House rules have required for more than a decade that all hearings and markups be webcast — and they mostly are —and all Senate hearings and most mark-ups are broadcast. More recent proceedings are available via official sources than through C-SPAN, although the chambers do a poor job of making the content findable online in one place, with the Senate a notable offender in that regard. (In theory, the Library has a role here, but we digress.) C-SPAN’s historical archives include committee proceedings that are not available from the chambers.
Proxy voting in the House has been extended to June 28th.
DNI Haines reiterates that overclassification and pseudo-classification is a national security threat, which makes us wonder once again under what authority the Capitol Police Board is classifying all of its records when it lacks original classifying authority and we’ve seen the tremendous damage that results from USCP Board secrecy.
Our friend and GovTrack.us founder Joshua Tauberer will give an online presentation on the civic tech movement around open government data this Wednesday, May 17 at 8PM.
CHSA meet and greet with CAO coaches. Friends and members of the Congressional Hispanic Staff Association are invited to meet and chat with longtime CAO coaches this Wednesday, May 18 from 4 – 5:30 PM. Register here.
Calling congressional intern coordinators: join a webinar on improving accessibility for interns hosted by the Modernization Staff Association, Office of Congressional Accessibility Services, and Office of House Employment Counsel on Monday, May 23 at 12:30pm ET.
Senate Leg branch approps. The Library of Congress, GAO, and USCP will testify on their budget requests on Wednesday, May 25 at 3 PM.