Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
TOP LINE
Morning, sunshine: this 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?
The appropriations soon-to-be-law is the big, big, big, big, big news and we like a lot of what we see. For a lengthier analysis of who’s up, who’s down, and by how much, see this blogpost. Leg branch approps goes a long way towards making Congress more capable of performing its duties by restoring 2010 funding levels for personnel (a 21% increase!), bumping up funding for the GAO, imposing (yet again) smart transparency requirements on the Capitol Police, providing significant funding to fix the dilapidated Capitol complex, and so on. There was also a gigantic bump in funding for the Capitol Police (+16.9%, to $602.5m), the only place in Congress that always gets a huge funding increase even when everyone else gets cut, although we’re pessimistic about their ability to use it well because fundamental problems arise from poor leadership and insufficient training. Just for your entertainment — if we did the math right — the Capitol Police’s $602.5m is greater than House and Senate committee funding combined ($349m); more than funding for all Senate personal offices combined ($486m), and 55% the cost of the entire Senate ($1.094m). On a per capita basis there’s no comparison, but if the USCP were a municipality, they’d have the eighth largest budget, between Baltimore ($549m) and Washington, D.C. ($655m). On a happier note, the enactment of an appropriations bill, even six months late, is an important example of Congress exercising control over government, and it’s one that should be welcomed.
Pocket money: It’s really hard to find the appropriations bill, joint explanatory statements, committee reports, one-pagers, and the like. So you have it: here’s the bill; the joint explanatory statements; the committee reports; and the one-pagers. If, like us, you’re focused on the Leg branch, we’ve got all those documents linked here. Also, since we’re about to go into the FY 2023 appropriations process — okay, it’s already started, but it will speed up — here is our handy guide on how to track House appropriations markups, which focuses on when notice is given for the proceedings. Right now, some personal offices are gathering approps requests for FY 2023 and a few House subcommittees indicated that they are accepting witness statements.
We’re not done. We are actively putting together line-item comparisons for every item in the Legislative branch appropriations bill, reading every policy provision in the JES and committee reports, and will be writing about it in the upcoming weeks. Don’t sleep on the other appropriations bills (and other stuff jammed into the package) — we’ve noticed a bunch of really important transparency provisions — some of which Demand Progress advocated for — and thus far have gone unnoticed by pretty much everyone.
Sunshine Week and committee-palooza. This week is busy, friends. There’s a bunch of congressional hearings and civil society events, ranging from the future of proxy voting to what to do about members trading stock, from responding to the ex-president flushing his records down the toilet to pandemic oversight. We’ve got the full event list in the calendar at the tail of this email. But since it’s our newsletter, let me just remind you of our event: FOIA, whistleblowers, press freedom, and more are the focus of Wednesday’s noon-time Advisory Committee on transparency panel discussion. RSVP here.
Also, attention nerds (yes, that includes us): Majority Leader Hoyer and Minority Leader McCarthy just jointly announced 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. Register to hack here. Yes, we’ve been at them all: see our recaps from #hackforcongress three, two, and one. This is one of the many, many announcements from this past week’s Bulk Data Task Force meeting, which we will write about in greater detail when we have a chance. If you can’t wait, ask me for my notes.
Open the Capitol for Sunshine Week? Congress is expected to unveil a plan for the phased re-opening of the Capitol in the coming weeks, NBC reports; Roll Call has more. Some lobby groups are foaming at the mouth to gain unfettered access; House Republicans are pushing for a return to the pre-pandemic status quo by ending proxy voting; and House Rules will hold a hearing on the practice this Thursday. What if, instead of prematurely rushing to physically reopen the Capitol complex, Congress focused on opening the Capitol another way: by implementing long-overdue transparency and accountability reforms? Physically opening the Capitol on pre-pandemic terms is remarkably unsafe given that the Capitol Police have yet to address their management dysfunction, the Architect of the Capitol will only now get desperately needed money to address hardening and repairing much of the campus, and COVID remains a lurking threat. And not just that, what about all the people who need to connect with Congress but won’t be visiting it in person any time soon? Perhaps we should focus on opening the Capitol in the sense of promoting transparency, upholding the public right to access, and rooting out corruption and abuse… and reopen the buildings when the appropriate political infrastructure and leadership changes are implemented to allow that to safely occur.
TRANSPARENCY IN REVIEW
In honor of Sunshine Week, the following sections review major policy areas that concern transparency and government accountability and provide some insights into the state of play and what Congress could be doing next. It’s Festivus come early. Let us know what you think.
Executive Branch Transparency
Public access to federal reports. Just a reminder: Congress still has not enacted the Access to Congressionally Mandated Reports Act (S.2838), which would require GPO to create and maintain a public online repository for all federally mandated reports. A slightly stronger version of the bill was passed by the House; the Senate bill was favorably reported by HSGAC back in November. The measure has been around for a decade and has been held up at the behest of one chairman or another who does not want to share public information.
AG Garland must be forced to lead on FOIA. A year into his term, does Garland intend to deliver on his promise to implement the FOIA in a manner that emphasizes openness and transparency, as he promised to do during his confirmation hearings? (Let me cry into my coffee.) Garland’s inaction despite repeated calls for action suggests transparency is not a priority for him — even though FOIA was an essential component of holding the previous Trump administration (and every prior administration for decades) to account and is one of the few mechanisms that worked. We wonder whether the DOJ has issued a timely response to lawmakers’ recent bipartisan letter calling for immediate action, noting the abysmal FOIA implementation in recent years, and requesting AG Garland’s response by March 6, which was, um, last week.
OLC transparency. The spending package *almost* put into effect the House’s report language requiring the Justice Department’s Office of Legal Counsel to publicly disclose its binding legal opinions that have the force of law inside the Executive branch, but then the Senate weakened it to the point of meaninglessness. As Ginger Quintero-McCall explains, neither the public nor Congress has any idea how many OLC opinions are in effect or what they conclude. The examples of abuse stemming from OLC’s secret opinions are myriad, ranging from the atrocities committed at Abu Graib and elsewhere under authority of OLC’s ‘Torture Memos’ to the Trump administration’s effort to deny an incoming president access to the previous president’s files. OLC’s secrecy means we don’t know which of these opinions — including a “laundry list of opinions intended explicitly to help Trump and his advisers subvert investigation and impeachment” — remain in effect, or how much work must be done to remediate this self-dealing, anti-democratic corpus. The existing “transparency” mechanism allows OLC to determine which opinions to disclose; predictably, OLC makes those opinions subject to multiple internal vetoes and lacks a regular process by which they are presumptively made publicly available. Only disclosure of the opinions can help curb Executive branch overreach that allows it to create secret laws and cut out Congress.
Whistleblower protections are dependent upon the operations of the Merit Systems Protection Board, which for more than 5 years lacked sufficient members to operate. Even now, the nominee for Board chair, Cathy Harris, is still pending, but at least the Board finally has a quorum. Last month, a coalition of organizations called on Senate leadership to fill the board.
Congressional Budget Justification Transparency Act. As of September, federal agencies are now required to publish plain-language explanations of how they’d spend appropriations monies online in this repository. They aren’t, yet, so let’s watch and see.
Actually-useful PLUM Book. We are still hopeful that a continuously-updated executive branch appointments directory will become available online, an idea whose time has come, but that will likely happen only when the PLUM Act becomes law. The Executive branch could just do this on its own, but, well, you know.
Court Transparency
PACER reform. Federal court records, which you own and pay for, are locked behind a pay-wall that is artificially inflated by the federal courts (and both unnecessary and inappropriate). Many organizations, including Demand Progress, have long supported eliminating the paywall restricting public access to federal court records. The Open Courts Act (S. 2614) would finally do that, and address existing cybersecurity vulnerabilities that are a result of court mismanagement. The bill was favorably reported by the Senate Judiciary committee in December. Fix the Court has more.
Make SCOTUS streaming permanent. Since live audio streaming of Supreme Court arguments began in May 2020, public engagement with the court’s activities have skyrocketed. 80 civil society organizations, led by POGO and including Demand Progress, called on Chief Justice Roberts to make live streaming of audio a permanent feature. Many have gone further and called for video of the federal court’s proceedings, which will likely happen only if imposed upon the court.
Editing the net. The FY 2022 approps bill provides $705 million for judicial security, including courthouse security measures and giving the federal courts the ability to request the removal of information about federal judges off the internet. Judicial safety is a significant concern, but we can expect that this editing power will result in overreach. BGov has more.
Federal courts also have a financial disclosure problem, but fortunately the Senate passed the Courthouse Ethics and Transparency Act in February (S. 3059) and the House passed companion language (H.R. 5720) back in December. Maybe someday it’ll be passed into law. Wouldn’t that be nice.
Legislative Branch Transparency and Accountability
The Senate is a black box. The Senate still doesn’t provide real-time access to bills and amendments as they are considered on the Senate floor. Demand Progress, Lincoln Network, and a coalition of 41 other organizations and 15 experts sent a letter to Senate leadership back in December requesting the Senate publish bills and amendments online while they are still under consideration. The recent Bulk Data Task Force suggests there may be some progress on making individual Senate amendments available on Congress.gov, which is a small but important step. All of these documents should be available online prior to a Senate vote.
Congressional ethics. There may be the political will to ban Members of Congress and close family members from owning individual stocks (or sectoral funds), which is the only sure way to prevent trading on the information gained from public service. There’s a House Admin hearing on the various proposals this Wednesday. But potential financial conflicts of interest arising from stock ownership are just one among many perverse incentives that directly or indirectly influence member decisions. (Contrary to cynics out there, we don’t think most members or staff are corrupt, but everyone responds to incentives and operates within a system, which can bias their behavior.) Back in 2012, CREW’s “A Family Affair”report demonstrated the need to pass laws preventing members from unethically dealing to themselves and family members, such as those included in the unenacted 2014 MERIT Act, and to renovate the congressional ethics infrastructure at every stage. That means empowering the OCE, the House’s independent ethics watchdog; establishing a parallel entity to oversee the Senate; and — most relevant to Sunshine Week — requiring proactive disclosures of members’ potential conflicts of financial interest be publicly available in structured data format.
Members’ financial disclosures made “publicly available” at the Legislative Resource Center should be published online as structured data, a coalition of 36 organizations led by Demand Progress wrote in a recent letter to the House Admin Committee. The LRC has been effectively closed to the public for the past two years since many records can only be requested on-site. The transparency that online disclosure provides, along with the political feedback enabled through journalists who can tell the stories, is one of the few feedback mechanisms that can deter self-dealing.
The Capitol Police still have not implemented a FOIA-like process. Just as in the FY 2021 appropriations bill, the soon-to-be-signed FY 2022 approps bill contains report language directing the Capitol Police to establish a public records request process. If they’re stuck, we even drafted FOIA-like regulations for them to implement. We note that the structure of the USCP Board (on which the USCP chief sits as an ex-officio member) continues to impede oversight efforts. Implementing these provisions is something the Chief can do for the force, and the Board can apply to itself.
Capitol Police IG Reports, by the way, were the focus of stronger language in the shortly-to-be-signed FY 2022 appropriations bill. “The Committee believes that the Inspector General should try to make appropriate reports public if they do not compromise law enforcement activities, national security, or Congressional security and processes without redaction. The Committee instructs the Inspector General to institute procedures to make reports publicly available whenever practicable and to begin publishing reports on its website.”
Information requests to the Executive branch from Congress often face a stonewall. One often overlooked aspect is requests from congressional support agencies, which face significant difficulties getting information from the Executive branch — as was discussed at a ModCom hearing this past fall. We’ve suggested a statutorily-created framework for legislative branch agencies to request and obtain information from the Executive branch, which could significantly expedite the process of reaching agreements.
Many CRS reports still aren’t publicly available online. While Congress mandated CRS to publish online all the reports available on their intranet as of a specific data, and requested them to make earlier reports publicly available, CRS has flatly refused to do the latter. The only way CRS will ever follow Congress’s intentions with respect to public access to their non-confidential reports is for Congress to tell them specifically to do so — or to find management that embraces a more forward-thinking approach.
ODDS AND ENDS
GAO’s new report on USCP. GAO’s new report contains officers’ perspectives on the nature of USCP’s training and organizational problems. Its laconic title says it all: “Additional Actions Needed to Better Prepare Capitol Police Officers for Violent Demonstrations.” We’ve got a catalog of all relevant Trump insurrection reports and hearings here.
Transparency and CBO. The green-eyeshades budget office released this report on the agency’s future plans to improve transparency and a review of its actions over the past year. It highlights three goals for the upcoming year: (1) explaining the methods it uses for analyses in several topic areas; (2) providing more info to help people understand cost estimates; and (3) publish a compendium of options to reduce the budget deficit.
White nationalist members of Congress remain unpunished by their leadership.
Sanctions against Russia have cut off US lobbyists from oligarchs’ cash, Politico reports. I’m sure it’s only temporary. Money will find a way. Since we’re talking about FARA, here are Demand Progress’s 2017 recommendations for reforming the law regulating foreign lobbying — which, according to the most recent audit, is poorly enforced and frequently ignored. While we’re at it, it’s also important to disclose who actually owns corporations — using the jargon, the term is beneficial ownership. Pres. Biden’s new anti-financial corruption initiative doesn’t go far enough and legislative action is required.
Zelensky’s speech before the UK Parliament last Tuesday exemplified the sort of virtual proceeding the US Congress ought to consider — he spoke remotely before the full parliament — the speech is available here.
A former UK House of Commons speaker has been suspended from the Labour Party for “serial bullying.” I wonder if there’s a similar behavior available concerning white nationalists for domestic political parties.
New USCP Intelligence Director. Ravi Satkalmi will serve as USCP’s Director of Intelligence, the department announced Thursday. The announcement was expected months ago.
What exactly is a congressional criminal referral? Michael Stern ponders.
CALENDAR
~Monday~
Open government is the focus of a conversation between (retiring) Architect of the United States David Ferriero and Librarian of Congress Carla Hayden on Monday at 1 pm, hosted by the National Archives and streamed to your computer, and they may take your questions if you tweet at them (it’s more fun when you can ask it directly). RSVP here.
~Tuesday~
President Records, and how they should be managed (and not, erm, flushed) is the focus of a HSGAC hearing on Tuesday at 10 a.m. More here.
~Wednesday~
FOIA, whistleblowers, press freedom, and more are the focus of Wednesday’s noon-time Advisory Committee on transparency panel discussion, which we are co-hosting. RSVP here.
Should Congress ban or limit members from trading stocks? The House Admin Committee will hold a hearing on that issue on Wednesday at 2pm. More here. No witnesses have yet been officially announced, but Business Insider reports there will be representatives from POGO, CREW, and CRS.
RegTech and CX. GPO Director Hugh Halpern, and others, will be speaking on how regulatory technologies can improve customer experiences with online government services at the Data Coalition’s upcoming summit this Wednesday, March 16 at 9 a.m. Register here.
~Thursday~
What do you think of proxy voting? The House Rules Committee will hold a member day hearing on Thursday at 9 to explore members’ views on what’s worked well, what hasn’t, and where to go next. More here.
Modernizing House Office buildings, which certainly could use some rethinking (including how often people need to be physically present) is the focus of a ModCom hearing on Thursday at 9 am. There’s no official notice on docs.house.gov, but there’s a placeholder on the committee website. More here.
Pandemic oversight is the focus of a Thursday at 10:15 HSGAC hearing with a panoply of federal government oversight stars, including the Comptroller General Gene Dodaro and the PRAC Chair Michael Horowitz. More here.
~Down the Line~
SCOTUS confirmation hearings timeline. The Senate Judiciary Committee will begin four days of confirmation hearings for the Hon. Ketanji Brown Jackson on March 21.
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 to hack here.
ADDENDUM
I was reading Bill Bryson’s somewhat dated informal history of the English language and it had an interesting history of the work “bunk” and “debunk.” It appears congressman Felix Walker (1752-1828) gave a BS speech and when called out on it, he said “he was speaking to the people of Buncombe County, North Carolina, his district.” Soon his colleagues, and one can assume whatever press were around, were calling bombastic speeches as “speaking to Buncombe.” Over time, that was reduced to buncombe, bunkum, and finally bunk. The phrase debunk didn’t turn up until the 1920s, which merged hocus and bunkum. As a funny note, the current representative for that country is Madison Cawthorn. He clearly adheres closely to that venerable tradition.
