First Branch Forecast for September 13, 2022: Fixing Congress

TOP LINE

The Select Committee on the Modernization of Congress held its final hearing last Wednesday, aptly on how Congress should continue its work.

The Committee has issued 177 recommendations over its three-and-a-half year tenure and likely will surpass the 200 mark before its work concludes at the end of this Congress. By its own count, only 37 of those recommendations have been fully implemented. In advance of the hearing, Roll Call provided this excellent preview of what’s done and what’s yet to be done.

Much of the hearing, accordingly, focused on how the House could see the remaining work of implementation through. Our colleague Taylor Swift has written a recap of the hearing on the First Branch Forecast Blog. Demand Progress expressed the view that the House Admin Committee should create a subcommittee on modernization, an advisory committee with outside experts, and encourage additional scholarly attention to Congress.

Chief Administrative Officer Catherine Szpindor provided an update on various technology projects and reorganizations endorsed by the committee. Diane Hill from the Partnership for Public Service presented four options for extending the committee’s work from the 45 organizations of the “Fix Congress” cohort that has been assisting its work:

  • Creating a new subcommittee on modernization in the Committee on House Administration
  • Renewing the Modernization Committee next Congress
  • Forming a modernization task force composed of legislative support offices like the Congressional Data Task Force
  • Pursuing a joint modernization committee with the Senate

Members of the committee seem to have a consensus on creating a new CHA subcommittee. But Chair Derek Kilmer and Co-Chair William Timmons are still wrestling with the challenge of how to go beyond implementing their committee’s work to sustain the process of modernization beyond its recommendations. Kilmer suggested perhaps forming a caucus with permanent staff if a permanent committee is a bridge too far.

During the Q&A, Dr. Casey Burgat of George Washington University addressed this tension by urging committee members to utilize the drafting of the new House Rules package for the 118th Congress to do bolder things or expand their efforts.

We agree that the rules process at the start of a new Congress is an excellent time for making substantive changes that affect the interlocking structures of how the House really works. That’s why we compiled a comprehensive set of reform suggestions at the start of the last two Congresses. A number of these suggestions were implemented at the start of the 117th Congress.

Other opportunities within the Congressional calendar, like the Legislative Branch Appropriations process and Congressional Data Task Force meetings, offer chances to advance important modernizations, especially on information technology and staffing issues. Unfortunately, both the chair and ranking member of the Leg Branch subcommittee on Appropriations are leaving the House after a very productive run for the institution.

The strength of ModCom has been to elevate disparate reform efforts going on in the corners of the House to a single, staffed locus, where they could be examined with some rigor. Reform efforts occurred before the ModCom was created and persisted through its existence, happening largely at the hands of appropriators, authorizers, the Rules Committee, the Budget Committee, and leadership, but they were often bespoke. It is still necessary for something institutionally to continue to exist to advance more difficult and transformational reforms that can make Congress less sclerotic.


This week the House has votes from Monday evening to Thursday afternoon. The Senate is in session, but will (no longer) be voting on a same-sex marriage bill before the midterms because of Republican opposition and an unwillingness by Democratic leadership to push the issue onto the floor. (FYI, CRS just released a report on privacy rights under the constitution.) On suspension in the House is the Press Act (H.R. 4330), an important reporter shield law. Other floor votes may include consideration of the Continuing Resolution and the Presidential Election Reform Act, the latter of which will receive a markup before House Rules on Tuesday and a similar bill is expected to be marked up in Senate Rules on September 27th.

In committee this week, the House Oversight will markup the National Archives and Records Administration Modernization Act (H.R. 8665) on Tuesday. Relatedly, the Senate Homeland Security and Government Affairs Committee will consider the nomination of Colleen Shogan to be Archivist of the United States on September 21 at 10 AM.

Also this week, the Library of Congress will hold a virtual forum on Congress.gov, its indispensable resource for the Congressional community/the nation. The forum will run from 1:30 to 4:30 PM ET on September 21. Register here. Also, everyone — yes, you — are invited to join the Congressional Data Task Force Meeting on September 29.

Anytime before September ends, the House is expected to consider stock trading reform legislation, although the Senate apparently will not at least until the lame duck. House Republicans say they are not part of the negotiations. Next week’s list of suspension bills in the House likely will be voluminous.


ACE INVESTORS OF CONGRESS

Many industries and workplaces that work with sensitive business information have strict rules about financial disclosure and trading of individual stocks to limit the risk of insider trading or financial impropriety. Congress is not one. Last week, the New York Times analyzed the activity of 182 Members who traded individual stocks between 2019 and 2021. Of those, 97 made 3,700 transactions that had some potential for conflict with business related to their committee assignments.

The 2012 STOCK Act notionally provides transparency into Members’ activities, requiring individual stock trades of more than $1,000 to be reported within 45 days. But earlier this month, Business Insider found 72 Members had violated this provision. We recommend you visit BI’s incredibly expansive “Conflicted Congress” feature for more context to the Times story. Sludge also built a comprehensive database of Senators’ holdings for the last Congress.

Several Members executed very profitable trades shortly before hearings on which they sat or regulatory actions by federal agencies. In some cases, these transactions were the only individual stocks bought or sold by the Member’s family. Although he avoided criminal charges for dumping stocks at the start of the pandemic, the SEC is still investigating Sen Richard Burr, including for a similar selloff his brother-in-law made after a call from the Senator.

Many Members responded to the Times that trades were executed by financial advisors or family members without their knowledge. Rep. Angie Craig scolded her college-student son for his day-trading habit.

As we noted last week, a bipartisan group of House Members are trying to hold Speaker Nancy Pelosi to her promise back in February to bring a bill banning individual stock trades and requiring blind trust to the floor by the end of September. (We think a blind trust is a loophole that would swallow the rule.) Pelosi repeated the promise for a floor vote at a press conference last week. The Senate apparently has decided to punt its stock trade ban until the lame duck session.

Civil society organizations ranging from FreedomWorks to CREW weighed in last week asking for the same. Pelosi’s husband Paul has amassed a fortune of more than $46 million, mostly through massive stock trades. In fact, two Congress-stock-trade tracking funds, NANC and KRUZ, are on their way, according to Bloomberg. The 1% expense ratio on these funds, which is quite high, suggests you’d be better off building your nest egg the old fashioned way, through inheritance and marriage.

Pelosi is hardly the only rich person in Congress. But the Congressional stock trading issue reflects deeper issues about class and representation. Trading individual stocks is generally something affluent people do. Only about 14% of American households own individual stocks. As the Times data reveal, 34% of Congress does. The exploding expense of campaigning for a Congressional seat has made candidates capable of self-funding campaigns all the more attractive to both parties, and those political whales may be actively recruited for office over other (possibly more qualified) candidates. A majority of Members are millionaires.

Although the current laxness in trading rules make it possible for Members to become much richer through the information they glean on the job, there is a broader corrupting consequence of a representative body becoming increasingly available only to the financially elite. Most affluent Members of Congress simply don’t have the kinds of life experiences, social and professional networks, worries and concerns as most of their constituents. They’ve often floated through elite educational and business circles throughout their lives. Poverty, working-class, and middle-class issues just don’t have the same salience.

The evidence from political science suggests the consequences. In her study of the representation of the poor in Congress, political scientist Kristina Miler found that three-quarters of Members are “entirely inactive on poverty-focused issues in any given Congress.” High concentrations of poverty were poor predictors of how active Members are on such issues. In other words, many thousands of Americans are invisible to their Congressional representatives.


PROXY VOTING

Voting through a proxy became an inelegant method in 2020 to keep Members of the House working during the COVID-19 pandemic, when being on the floor risked killing one another. Two years later, Members are using the privilege more than ever. The Daily Beast reported that since January, more than 23,000 votes have been cast for a Member by a proxy, nearly 6,000 more than last year. A total of 370 Members have proxy voted.

With COVID infection now more manageable, it certainly is unfortunate that Members are less present on the floor. But the story raises two more relevant issues to the contemporary Congress than so-called work absenteeism. (Can we, once and for all, dispense the notion that Members of Congress are absent from work unless they’re in the Capitol building?)

First, Congress proxy voting on the House floor is a poor solution compared to fully remote deliberations, where members retain the ability to make motions and engage in debate. Other countries, most notably Brazil, have developed technological solutions that allow real remote voting and consultation with colleagues.

We are not pollyannaish to believe that floor debate matters much in the U.S. Congress in terms of affecting the outcome. But the ability to make privileged motions does provide individual members more leverage to pursue their agendas. And, for better or worse, remote deliberation deprives leadership of the ability to effectively summon the rank-and-file to a physical location where they are shorn of staff and more susceptible to pressure.

Second, remote deliberations for committee proceedings has been a success. In particular, it addresses the scheduling issue because there are more opportunities to schedule meetings outside of Tuesday-Thursday when the House is in session. The House can conduct more business, including on those matters that are important but not high profile. In addition, by making distance irrelevant, members can more easily move between obligations in district and in D.C.

There is a cost to all this. Members more readily build relationships when they are forced into proximity with one another on the floor or in committee. The real harm arises when Members are less likely to meet with one another in private, which is where more of the real debate and horse-trading takes place. For group discussions, it may be useful to have the additional informational bandwidth that in-person meetings provide. It also may take time to develop better technology and societal norms to make these kinds of discussions more effective.

Proxy voting is the wrong yardstick to use to judge virtual collaboration options for policymaking. We should, instead, think of when remote deliberations are appropriate: in an emergency where gathering in person is unsafe; whether gathering in person is not practical in a timely fashion; where circumstances, such as illness or family obligations, make it difficult for an individual to attend in person; and where it does not negatively affect the outcome or shift who holds power.

Congress must always be ready to act to respond to world events and to check the Executive branch. So long as Congress can only officially act when assembled, it must be able to assemble at any time. World events do not only occur on Tuesdays-Thursdays during session weeks, and the first order of business for Congress must be keeping Congress in business.


OVERSIGHT

Senate personal staff now are eligible to receive TS/SCI clearances after a change to the chamber’s security manual. Senators Chris Murphy and Mike Rounds led the push for every Senate office to have the ability to have one cleared staffer, which greatly benefits offices’ oversight capacity. Demand Progress has supported that call. It has taken ten months for the policy change to be implemented by the Senate security office.

This remains a live issue in the House. For example, members who serve on committees that engage in intelligence oversight, such as HPSCI, HASC, and HAC-D, are not afforded the option to request a personal office staffer obtain a TS/SCI clearance. This is despite repeated and longstanding requests by committee members. The consequence is that members must rely totally on committee staff, who are hired by the chair, which can create mixed incentives. By comparison, Senate members of SSCI have their own staff designees who have TS/SCI clearances.

This is a chamber-wide issue. Members are expected to vote and review matters that are deemed classified by the Executive branch, but they are not afforded the staff support to help them do so. There have been efforts to equalize clearance availability for members, which was restricted in the 1970s through a secret deal between the CIA, who reneged on their commitment, and leadership, who were able to retain their cleared staffers.

Related: A Primer on Congressional Staff Clearances, by Demand Progress Education Fund and the Project for Government Oversight.

By the way, here’s how Congress handles classified materials: locked bags, not file boxes. (AP)

The Office of Legal Counsel steadily worked to strengthen the power of the President to wage war without Congressional approval from the end of World War II through the early 1990s according to a trove of memos obtained by the Knight First Amendment Institute. The Institute has published the memos on its website and maintains a collection of 1,400 OLC opinions.

This is an example of the long game. Those of us in civil society supported an amendment to the FOIA improvement act in 2016 to allow for access to these opinions, an effort that was fought behind the scenes by the Justice Department, which killed the first FOIA bill. The eventual weaker language, passed into law, allowed for older opinions to become publicly available through FOIA, illustrating the bad faith effort by the White House to undermine Congress on War Powers.

A similar effort is underway now. The House CJS Appropriations bill contains report language directing the creation of an index of all OLC opinions as well as a process to proactively make them available (with appropriate exceptions), an effort that, in prior Congresses, has been weakened in the Senate and ignored by the DOJ. There’s excellent bicameral authorizing legislation: the Senate DOJ OLC Transparency Act (S. 3858) introduced by Sens. Duckworth and Leahy, and the House SUNLIGHT Act of 2022 (H.R. 7619), sponsored by Rep. Cartwright. Both enjoy strong civil society support.

My testimony summarizes the current state of play, and don’t miss this letter to the OLC director nominee in 2021. Will Congress continue to pass laws that the Executive branch inappropriately and secretly lawyers out of existence? It’d be crazy for Congress to not require this information.

ICYMI, the Whistleblower Protection Enhancement Act passed the House 221-203 on Thursday. The legislation establishes, modifies, and expands certain whistleblower protections for federal employees, including with respect to petitions to Congress, whistleblower identity, and protected disclosures.


THREE NEW MEMBERS

Rep. Mary Peltola of Alaska and Reps. Joseph Morelle and Pat Ryan of New York were sworn in on September 13. They’ve received their committee assignments.

  • Peltola joins the Natural Resources Committee
  • Morelle joins the Appropriations Committee
  • Ryan joins HASC

As Rep. Kaiali‘i Kahele noted, this is the first time in Congressional history that the nation’s Indigenous population has full representation. Peltola is the first Native Alaskan to serve in Congress. Kahele is Native Hawaiian and four Members are Native American.

This is particularly notable because opposition to Alaskan and Hawaiian statehood were premised in large part upon racist fears. See, for example, this speech by Strom Thurmond. If you’re interested in how these views overlap with the history of U.S. territorial possessions, I strongly recommend this excellent book, How to Hide an Empire.


INSURRECTION UPDATE

Reps. Fred Upton and Josh Gottheimer have introduced their own update to the Electoral Count Act. The bill is similar to a package of bills awaiting a floor vote in the Senate, but does not include stiffer penalties for attacking poll workers or tampering with vote counting.

Audio released by the January 6 Committee of Oath Keepers members demonstrates their violent intentions and coordination.

Texts between Secret Service agents are part of newly-obtained material the January 6 Committee is sorting through, Rep. Bennie Thompson told reporters last Wednesday.

Republicans will investigate the intelligence and security failures on January 6 if they retake the House majority. New House Administration leadership also may consider changing how the Capitol’s security is managed by reforming the Capitol Police Board. (Roll Call) We are big supporters of reforming USCP oversight.

The man filmed crushing a Metropolitan Police Officer in a door and two others were convicted of several felonies by a US District Judge last week.

Internet memes played a key role in mobilizing insurrection participants because of their power to confirm existing worldviews and solidify in-group identities, a new book argues.


ODDS AND ENDS

Some Senate secrets stay that way. A federal judge has ruled that the Senate does not have to release its full report on the CIA’s post-9/11 detention and torture program to the public. The shenanigans to keep the torture report secret are astounding, and the Senate Intel Committee should be working day-and-night to release as much of it as possible.

The Federal Election Commission granted Sen Elizabeth Warren (and hence, all Members) permission to use campaign funds for personal cybersecurity costs for home networks.

Demand Progress Education Fund’s Daniel Schuman participated in a Congressional Transparency Caucus roundtable on the state of current reforms, alongside POGO’s Liz Hempowicz and the Free Law Project’s Mike Lissner. Nerds, this panel is for you. In case you missed the event, watch the video.

A Thing we learned: GAO publishes some of its reports in multiple languages to increase accessibility.

GPO will accept public comment on its draft report for a Digital Federal Depository Library Program until October 14. (Library Journal)

The Information Security Oversight Office is hiring two individuals to inspect, evaluate, and analyze federal agency programs concerning classified and controlled classified information, and advising on policies relating to those programs. Apply by September 26.


CALENDAR

Library of Congress virtual public forum on Congress.gov, set for September 21 from 1:30 to 4:30 PM. Register here and submit comments here.

The Modernization Committee will host two events this week to support the Modernization Staff Association. The first is a virtual meetup for district office staff September 21 from 3:00 to 5:00 PM EST. Register here. The second is a drop-in reception for DC staff in the Rayburn Gold Room on September 22, also from 3:00 to 5:00. Interns are welcome at both events.

The CATO Institute will host a panel discussion on the effectiveness of FOIA since its latest statutory update in 2016 on September 22 at 1 PM. Demand Progress Legal Director Ginger Quintero-McCall will be part of the discussion. Attendees can submit questions in advance.

The House Office of Diversity and Inclusion will host its inaugural open house on September 23 from 1 PM to 3 PM.

DOWN THE ROAD

The House Office of Diversity and Inclusion will present a Hispanic Heritage Month virtual roundtable at 12:30 PM on September 27.

The National Freedom of Information Coalition’s Summit, which includes training in filing FOIA requests, will take place virtually October 18-20. Register here.

Law reform. The Seventh International Conference on Legislation and Law Reform, a conversation about how laws are written in the US and around the world, will be held November 3 and 4 in-person in DC. Register here.