The last business week before recess arrives with little sense of how the two chambers will come eye to eye on appropriations when they reconvene in September.
For your reading pleasure, we describe below the good news concerning civil liberties coming out of Congress as two important provisions cleared markups last week.
Also, the poor state of the US Capitol Police force’s transparency and accountability came into sharp focus last week when CHA held an oversight hearing with the department’s inspector general. Next up: an incredibly rare joint House-Senate oversight hearing with all members of the Capitol Police Board, the first since before the end of WWII.
This week both chambers are in session Tuesday through Friday. The Senate is scheduled to return from summer recess September 5, while the House is slated to return September 12. Unsurprisingly, the week ahead will be hectic.
Floor approval of the NDAA is the main focus for the Senate this week. How many amendments will be adopted among the hundreds offered? Any guesses?
The House will vote to approve two of the 12 appropriations bills — Agriculture-FDA and Military Construction-VA — this week, leaving it with 10 bills to complete in the 12 working days scheduled before the end of the fiscal year. Will leadership smush some bills into mini packages? Will a promised open floor amendment process melt away? Will far-right members’ in the House make things interesting? In the words of one member, FAFO.
In the committees, Senate Appropriations reminded the House that two chambers can play Calvinball. Senators Patty Murray and Susan Collins tacked on an additional $14 billion in supplemental funding in areas they concluded the House had “underfunded,” including aid to Ukraine. (It wasn’t an even split between defense and non-defense.)
After completing three markups last Thursday, the committee is shooting to complete its slate ahead of recess and wait for the House to come back to the toplines it’s agreed to.
In a measure of how that will go, the House Budget Committee may markup its FY 2024 resolution this week, setting toplines that are congruent with appropriators’ lower spending targets.
Reminder: We’re tracking the progress of appropriations bills in both chambers with this database. We also have a comprehensive listing of the items included in the Senate’s FY 2024 Leg Branch report language.
Senate HSGAC is set to markup a number of government transparency-related bills on Wednesday:
- S. 2286, Streamlining Federal Grants Act. Press release from Sen. Peters says “The Streamlining Federal Grants Act directs the Office of Management and Budget (OMB) to provide guidance to federal agencies on how they can simplify and streamline their grant application processes, including by making notice of funding opportunities easier to understand, updating software and systems that are used to apply for and manage federal grants, and implementing common data standards for grant reporting.”
- S. 1524, Expanding Whistleblower Protections for Contractors Act of 2023. The press release from Sen. Peters and Braun says the legislation would “expand whistleblower protections for government contractors and grantees. The legislation closes existing loopholes in whistleblower protection laws that have left employees of federal contractors who have disclosed waste, fraud or abuse in federal agencies vulnerable to acts of reprisal. These loopholes have also resulted in a lack of accountability for government officials who retaliate against whistleblowers working for federal contractors.”
- S. 2270, Executive Branch Accountability and Transparency Act of 2023. The press release from Sen. Grassley says the bill “would improve access to executive branch ethics records that are often shrouded by layers of bureaucracy.” It “establishes a new searchable database to house personnel ethics waivers, recusals and disclosures that must be publicly available under current law, but are difficult to locate or obtain in practice.”
- S. 2073, Eliminate Useless Reports Act. There was no press release or bill summary. Per its text, the legislation “require[s] agencies to include a list of outdated or duplicative reporting requirements in annual budget justifications”
- S. 2260, Grant Transparency Act of 2023. The press release from Sen. Cornyn says the measure “would require government agencies to provide competitive grant applicants with more information about their selection criteria and evaluation process.” It requires notice of competitive grants to include three particular data elements.
Finally, CHA and the Senate Rules Committee will hold a joint oversight hearing with the US Capitol Police Board Wednesday. There’s much to discuss.
SENATE’S CENSORSHIP AMENDMENT
As difficult as it is to track amendments filed on major Senate bills, we’ve flagged one proposed by Senators Amy Klobuchar and Ted Cruz to the NDAA that would replicate a similar amendment tacked onto last year’s bill that allowed broad censorship of information about members of the judiciary. The Klobuchar-Cruz amendment, no. 218 in your programs, would allow a broad range of people connected to members of Congress to pull information that is readily available in the public domain off the internet and public databases.
Demand Progress, the Freedom of the Press Foundation, and more than 50 organizations from across the political spectrum issued a letter last Wednesday urging senators to reject the amendment because it would censor information routinely utilized by government watchdogs, journalists, and ordinary citizens in broad violation of First Amendment rights. “Should this legislation be enacted nonetheless, the predictable result will be that virtually anybody who participates in congressional oversight or related public debates will face enormous incentives to sideline themselves,” the letter explains. The risks of litigation would be too much for researchers, small media outlets, and nonprofits. A drafting error, meanwhile, would exempt nearly all data brokers from its prohibitions, rendering the protections the amendment supposedly erects ineffective.
As Freedom of the Press Foundation’s Caitlin Vogus explains, the amendment likely would have the additional chilling effect on social media platforms. Companies likely would pull news reports relying on such information out of confusion over what the amendment actually prohibits and related constitutional standards for free speech.
CIVIL LIBERTIES WINS
Last week brought good news in congressional strengthening of civil liberties. The House Judiciary Committee favorably reported the PRESS Act 23-0. The bill shields reporters and their technology providers from revealing confidential sources and abuses of federal subpoena power. Forty-nine states provide such protections. It was introduced in the House by Reps. Jamie Raskin and Kevin Kiley and has bipartisan companion legislation in the Senate, co-sponsored by Sens. Wyden, Lee, and Durbin.
Raskin has championed the issue since his freshman year in 2017. His version of the PRESS Act passed the House last Congress and was prevented by one obstinate member from being taken up for consideration on the Senate floor.
The House Judiciary Committee also reported out The Fourth Amendment is Not for Sale Act, which prohibits federal law enforcement and intelligence agencies from deep-sixing the constitutional warrant requirement by buying information from data brokers.
Both of these bills had strong bipartisan support and intraparty rivalries, demonstrating that not everything in Congress is a polarized deathmatch. This is a story not often told, but one that’s crucial to showing a pathway to a more broadly functional Congress.
To that point, we note a recent paper by a team of political scientists that explores how factions within Congress divided along several key issue areas, not the traditional left-right understanding of American politics, could coalesce into a new multiparty or multi-factional system if reforms like multi-member districts move forward. (We are supportive, if deeply pessimistic, about the odds of establishing multi-member districts in the near term, but there are realistic ways to get a multi-party system inside the House that work with the incentives current members already have.)
It’s a useful framework in seeing the granularity often obscured by our current two-party present and the productive complexity that is latent in electoral reforms and beyond the current conventional wisdom. Civil liberties, while not a dimension in their study, is one of those places as well.
USCP IG HEARING
The Committee on House Administration exposed the fractured nature of accountability within the US Capitol Police last week during an oversight hearing with the department’s new IG, Ron Russo. The upshot is that the Capitol Police Board, with the Chief as an ex-officio member, are undermining agency transparency despite Congressional directives. The non-independent nature of the USCP IG doesn’t help.
Notably, we raised our eyebrows at Russo’s answer Chair Bryan Steil, who asked why only two of some 650 reports by his department have been published online in the face of Congressional direction that the IG release many of the reports. The answer: the IG’s release of any report must be approved by the Capitol Police Board on a case-by-case basis. What?!!
Friends, let us reason together. Federal IGs are independent. They don’t give agency heads veto power over the release of their reports. The public release of the reports is one of the few things that gives IG power to push for change. That’s why they’re released as a matter of course (i.e., as required by law). And to create an apparently byzantine system where multiple players have veto power over the release of the reports, instead of doing what Congress directed, i.e., proactively releasing the reports unless there’s a very good reason not to, suggests that something is very, very, very wrong.
Since the hearing, two more reports were published to the IG’s site. We note that the House Administration Committee released more than a half-dozen reports last Congress, in an abbreviated form, and surely those could be posted with no problem. There are other IGs in the legislative branch that routinely manage to publish their reports online, like at the Architect of the Capitol, the Library of Congress, and GPO.Rep. Morgan Griffith returned to another issue uncovered during the committee’s questioning of USCP Chief Thomas Manger that former chief Yogananda Pittman was placed on unpaid leave by the department although she’d taken another job so that she could accrue full retirement benefits. Griffith noted during that hearing that such a decision violated the department’s policy on unpaid leave. Russo told Griffith that his office determined the chief had legal authority to alter existing policy on his own.
In another surprise, Russo’s own office, committee members discovered, has made some wiggle room in defining when its recommendations for policy change within the department were “complete.” Of the 103 recommendations related to the January 6, 2021 insurrection, just 14 remain outstanding, per the IG: but some of those marked complete were not actually, well, complete. How was Russo deciding? It wasn’t entirely clear, but the Capitol Police were undertaking reforms “in the spirit” of the recommendations and the IG was meeting them halfway. What?!!!! Changing recommendations in mid stream without telling anyone and doing it based on vibes does not seem how most IGs operate. Rep. Barry Loudermilk asked Russo to follow up on how his office made such determinations.
Russo also reaffirmed his support for protections for department whistleblowers based on questions from Rep. Anthony D’Esposito about how the former department IG seemingly had allowed retaliatory discipline by former chief Pittman.
The position of the OIG within the department and with the police board is one of many topics worthy of further discussion when CHA holds a joint oversight hearing with the Senate Rules and Administration Committee on the police board Wednesday. It’s the first joint oversight committee meeting on the USCP since the 1940s, and is necessary because board members include the House and Senate Sergeants at Arms, who routinely refuse to testify in the opposite chamber. The board doesn’t even publicize its meetings or share notes with the public. This culture of secrecy, on top of the fractured system of authority CHA has been probing in its recent hearings, undermines trust of both the committee and public in the entire USCP apparatus.
ARTICLE II: WITH A VENGEANCE
There’s plenty in the New York Times’ story about Donald Trump and his conservative supporters’ plans to capture the federal bureaucracy and assert maximum power in the hands of the “president.” For starters, the resources available on the political right dedicated to promoting presidential authoritarianism to achieve policy goals dwarfs those made available to those seeking to deter or disrupt such plans, even after the obvious intentions of the first Trump Administration.
Much of the work for those seeking to uphold the separation of powers against unitary executive theory zealotry is convincing Congress to join the fray. (There’s also no comparably funded effort to push to hold the Executive branch accountable while pushing back against unitary executive theory.)
As a result, Congress, too, is lagging behind in responding to what is being openly telegraphed. As just one case in point, it took no action to push back against a proposed reclassification of federal employees into a “Schedule F” that would allow up to 50,000 to be fired for what Trump has described as political disloyalty.
Senator Tim Kaine has reintroduced a provision to forbid the creation of new job classifications by the Executive branch without congressional approval as an amendment to the NDAA. His similar effort last year failed.
Tracking Kaine’s amendment, unfortunately, is practically impossible because of the poor legislative tracking systems in the Senate. Unless the amendment (or the Klobuchar-Cruz mess addressed above) is announced publicly, it’s only discoverable by perusing the Congressional Record to find an amendment number. Congress.gov lists all the amendments proposed to bills, but lacks any description of amendments’ purposes unless clicked upon. (To be fair, this is an improvement over prior practices, which linked to the Congressional Record and not the amendment text.) For a bill like the NDAA, which has over 800 amendments, understanding what’s been proposed is very time consuming. It’s how problematic stuff sneaks into the amendment package undetected.
We suggest the Library of Congress pull in the first hundred or so words of the amendment text, which typically provide a brief description by the author that Congress.gov would not have to generate itself. It also would be useful to publish information on all the amendments status alongside info about the amendment. This data is on Congress.gov already, but spread across multiple pages. Heck, we could probably kludge together a better system.
For those playing at home, we did just that: we built a tool that allows you to see where bill text and amendment language comes from — i.e., where it shows up in other bills that Congress or in prior Congresses — and that code is available online as open source for those with the technical skill to deploy it. We would turn our website back on, but that would require a few more people to hit the donate button.
ODDS AND ENDS
TechCongress is hiring for several positions to support its congressional fellowship work.
GAO will conduct a review of potential harm caused by AI tools like ChatGPT upon the request of Senators Ed Markey and Gary Peters, Fedscoop reports. The story notes that GAO is not using generative AI itself for its auditing work.
A new White House working group will examine ways to avoid future debt limit standoffs, like the one it has teed up for the end of the 118th Congress. The group intends to consult members of Congress down the line, Bloomberg reports.
The Rules Committee gets its spotlight in the New Yorker.
Our friend Alex Howard has an audio recording and a rundown of the White House’s “virtual listening session” in which officials from OMB and OIRA discuss improving public input into the regulatory process.
~ Monday ~
The Office of the Whistleblower Ombuds will hold a Lunch and Learn on July 24 at 12 PM in the Capitol Visitor Center 217. It will be open to members and congressional staff. RSVP here.
The House Office of Diversity and Inclusion will have a virtual resume review workshop on July 24 from 1-2 PM. Register at this link.
The National Archives will host an interview and audience Q&A session with new Archivist of the US Colleen Shogan at 5 PM. Register here for the virtual event.
~ Tuesday ~
The House Sergeant at Arms will hold an open house from 9 AM-10 PM in B-208 Longworth.
The Capitol Hill Archivists and Records Managers Group will host an open meeting on the preservation of Senate office records on July 25 from 1-3 PM in the Capitol Visitors Center SVC 209-08. Email to RSVP.
The Senate Rules and Administration Committee and the House Committee on Administration hold a joint oversight hearing to examine the Capitol Police Board at 3:30 PM in Dirksen G50.
~ Thursday ~
The Office of Congressional Workplace Rights will offer a webinar on employees’ rights and responsibilities under the Congressional Accountability Act at 1 PM. Registration link is here.
Join the Modernization Staff Association at 5:30 PM at Union Pub (201 Massachusetts Ave. NE) Mix and mingle with other junior staffers starting out on the Hill. RSVP here
~ Friday ~
Responses to the House Office of Diversity and Inclusion’s 2023 House Workforce Study are due. An email from [email protected] should have arrived in all House staff mailboxes.
~ Down the road ~
The John W. Kluge Center at the Library of Congress will host a discussion led by former fellow Dr. Annelise Russel entitled “Representation Gone Viral: Digital Demand and Congressional Capacity” on August 3 at 4 PM in LJ-119 of the Thomas Jefferson Building.
Attorney General Merrick Garland is scheduled to testify in front of the House Judiciary Committee on September 20.
The Ridenhour Prizes, which celebrate whistleblowers, documentarians, and authors in support of government transparency and accountability, will hold its annual gala on October 25 at 6 PM. Subscribe to this link for ticket information.