Good morning, everyone. The House and Senate remain out of session until November 12th, although with the impending election results you can almost hear the scurrying in the corridors of power. The House press gallery maintains a list of non-returning members and we hope to soon know everyone who is successful in returning to Congress and those defeated in their reelection efforts.
Is it worth coming back? The AP asked that question of a handful of candidates.
We have a lot to look forward to post-election: new member orientation, votes on leadership and party rules, and a lame duck session where a lot of deferred work must get done. There is also a big ideological shift coming, with new Republican leadership in the Senate, potential new Republican leadership in the House, and the continuation of the ideological trend moving the center of the Republican party from mainline Republicans to MAGA Republicans.
Should Democrats retake control of the House, it will be interesting to see how a new triumvirate chooses to exercise and share power.
Since we are slowly easing towards Thanksgiving, I want to remind everyone that this little newsletter takes a lot of effort. We don’t currently have support from philanthropic foundations for this work, so any financial support you could throw our way would mean a lot.
Congressional Modernization
The Modernization Subcommittee should come back in the 119th Congress according to a newly released letter from a range of organizations (including mine). The key language: “We urge you to take the necessary steps to ensure that the Committee on House Administration’s Subcommittee on Modernization is reauthorized and adequately resourced for the 119th Congress.” As you know, the FAI and AGI went a step further in our rules recs and recommended a select committee – because we wanted to ensure the subcommittee includes appropriators.
Party time
House Republican leadership elections are confirmed for Nov. 13th, according to Axios. It appears the candidate forum will take place at 9 a.m. with the election at 2:30, all taking place at the Hyatt Regency. Per Punchbowl, Republicans will consider their conference rules on Nov. 14th and 15th. I am speculating, but should hardliners have sufficient sway they’d want to move the conference rules vote first or even delay the votes.
Punchbowl got their hands on draft Republican conference rules changes, which you can view here, as well as a section-by-section. Republicans have traditionally been good with transparency for their rules, so it’s odd I haven’t found these proposals yet on their website.
Senate Republicans, as we mentioned previously, have announced their party election will take place on Nov. 13. Punchbowl reports it will likely take place in the Old Senate Chamber. They also report “the details of the election process still have to be worked out.” An open question: who gets to vote? And will hardliners succeed in their efforts to push back the vote to extract concessions on party rules?
House Democrats, last we heard, have not decided when to hold their elections. Senate Democrats are expected to hold elections some time in December.
A gentle request to the parties: please publish online any draft amendments to your party rules under consideration, the outcomes of any votes, the final text of the new rules, and a list of your newly elected steering committee (including the regional regs). You can always send it directly to me. Just hit reply.
Leadership races are the subject of a House Ethics Committee pink sheet, which explains that official resources can be used to run in those races, but not committee funds or staff. It also explains when to use official resources vs campaign resources, e.g. when paying for food at an official reception, providing “token” gifts, etc.
New Member Orientation
Are you excited for new member orientation? It’s coming up soon, even if all the races are not decided. The House of Representatives runs a formal bipartisan program, the parties do their own thing for their co-partisans, and there’s lots of outside groups trying to get in on meeting the new members when their eminence is merely imminent. Folks with long memories may remember the brouhaha in 2018 around the Harvard Institute of Politics effort, which elevated influential advocates that reflected a narrow set of perspectives to pre-influence members-elect.
The most important decision new and returning members can make is on their party rules, which governs how leadership is elected and exercises power, who is appointed to the various committees, and so on. This largely is not addressed in NMO, but we have gathered a handful of resources for you on how that all works.
If you’re having trouble finding the party rules, or prior proposals to change them, we’ve got you covered. In 2022, the Freedom Caucus put out this somewhat jaded roadmap for the Republican conference, and it’s worth a read for everyone, even if you’re not a -R. I’m not aware of a -D equivalent document.
Ethics and sponsored travel
Israel is the destination for 1/4th of the 4,100 privately sponsored foreign trips over the last dozen years, of which 3/4th were sponsored by AIPAC’s charitable affiliate, the American Israel Education Foundation, according to a POLITICO report. The use of an “educational” proxy is how AIPAC circumvents a 2007 law limiting lobbyist direct involvement in most privately sponsored travel.
What caught my attention, besides the loophole itself, is how hard it is to access useful travel data. The Howard Center for Investigative Journalism at the University of Maryland did the hard work – they “created a database of all House travel during the last decade,” merging that information with info from OpenSecrets and Legistorm “to document the extensive links between lobbyists and travel sponsors.” The Senate’s data is less useful than the House’s: the 2,600 trips over the last dozen years do “not provide sponsors or destinations in a format that can be readily analyzed.”
In other words, the very design of the disclosure forms – here are the House’s disclosures and here are the Senate’s disclosures – make it difficult to conduct analysis of patterns and trends. All of this information *should* be gathered from staff in well-designed data-friendly formats and published in a bulk downloadable structured data format with the use of unique and common data identifiers wherever possible. (Yes, this is something Congress can do – in fact, both chambers are collaborating right now to improve how data about lobbyists are disclosed.)
The Howard Center explained in a blogpost what they had to do: “standardized the names of destinations and sponsors, and confirmed the identity of the lawmakers who traveled (or who had staff travel), fixing several mistakes in the House data. The Howard Center further augmented that data by performing high-quality optical character recognition (OCR) on the PDF filings, using the extracted text to build a searchable database of trips and the contents of the filings.” PDFs?! What is this, the dark ages? Structured data, please.
This isn’t the only story they generated from that dataset. For example, in their story “Lobbyists use nonprofits to sponsor trips for House,” the Howard Center reported “U.S. representatives and their staff have taken at least 17,000 trips since 2012 that were paid for by private parties, many of them nonprofits with deep ties to lobbyists and special interests.” Notably, the Congressional Institute sponsored 1/4 of the trips – 4,200 – and 3/4ths of the board members were registered lobbyists.
In “When House members travel the globe on private dime, families often go too,” the Howard Center reported that of the $4.3 million spent on official business paid for by private interest groups, ⅓ of those payments “covered the costs for a lawmaker’s relative to join the trip.” It’s not just the spouse: “The 24 House members who travel most frequently on the private sponsor dime took either their spouse, grandchild, sister, daughter-in-law or child with them on nearly 44% of their trips, congressional records show.” In the article, they name names.
And in “Think tanks, often funded by foreign governments, send House members on trips around the world,” the Howard Center reported on how think tanks often act as pass-through vehicles for foreign government money. “The Howard Center analysis found a House member or staff member reported taking an international trip funded directly by foreign governments approximately 270 times from 2012 through 2022. They took nearly four times as many foreign trips, just over 1,000, that were sponsored by think tanks that disclosed on their websites that they received foreign government funding.” Think tanks don’t always properly disclose their funding sources. “Only 13 of the approximately 20 think tanks that sponsored foreign travel disclosed some of their funding on their websites.”
I am not suggesting that foreign travel is meritless – in fact, I believe the opposite. Nor do I think there is a bright line between people who register as a lobbyist and those who engage in advocacy but do not need to register. My preference is for Congress to fund its international institutions, like the House Democracy Partnership, to pay for these trips.
To the extent Congress allows travel funded by outside interests, there should be full and appropriate disclosure of those funds in a way that makes it easy to identify all the possible conflicts of interest identified in the Howard Center reporting. That means better data gathering, better data disclosure, and better oversight. Where there are abuses and outliers, Congress should direct, empower, and require the ethics committees, the rules committees, and independent offices like the Office of Congressional Ethics to promulgate new rules and clamp down on abuses.
It all starts with better data.
Richard Neal’s interesting conflicts
Richard Neal, the once and perhaps future chair of the House Ways and Means Committee, is the subject of an extensive POLITICO report discussing a wide range of conflicts-of-interests and apparent water-carrying for special interests. One vulnerability might arise from entanglements in his son’s business interests and his father’s committee perch as well as Rep. Neal’s aggressive fundraising.
“With deep-pocketed special interests limited to the low four-figure caps on donations to lawmakers, ethics experts say there is a precedent of interests looking to pay a lawmaker’s relative to circumvent contribution limits and ethics restrictions — and thereby further grease the influence campaigns of K Street power players.”
“Richard Neal’s level of interaction with lobbyists has long struck those working on tax legislation as strong even by Congress’ standards…. Two people, including a former lobbyist and a former staffer turned lobbyist, pointed out that he regularly asks for campaign contributions from any firm doing business with his committee — for himself and all his Democratic colleagues.”
The article reports that Neal is in the top two biggest recipients of PAC money just as his committee is primed to oversee a major tax overhaul.
The Democratic Caucus, but first the Democratic Steering Committee – dominated by Democratic leadership – will have to decide whether Neal’s closeness to special interests and his complicated family financial ties means someone else should helm the committee.
Fifty years of FOIA Amendments
The 1974 FOIA amendments were the most consequential – enacted when Congress overrode the President’s veto, which was made at the behest of law enforcement at the urging of a young Justice Department OLC attorney named Antonin Scalia, as well as the secrecy minded White House Chief of Staff Don Rumsfeld and his deputy, Dick Cheney. Oddly, Donald Rumsfeld was an original co-sponsor of the original bill, signed into law on July 4, 1966. The lead sponsor of the 1966 FOIA bill was John Moss, whose legislative achievements are so extensive that they’re hard to believe even reading them on Wikipedia. If we ever have another Congressional building, it should be named after him.
This past Friday I attended an excellent series of panels at George Washington University that included the Senate staffer who drafted many of the 1974 amendments, the attorneys at the Justice Department charged with implementing the law, and many of the open government OGs. They reminded us that the FOIA amendments were enacted only after a broad coalition of media organizations, civil society organizations, and individuals came together to address the yawning gap in public trust in government arising from Watergate, Vietnam, and the disclosure of widespread governmental abuses of the American people.
It’s easy to forget how revolutionary FOIA is. Anyone can write a letter to the government and ask for records, and the government has to provide them subject to a handful of exemptions. And the government is required to proactively release a lot of information. The key to making FOIA work was a backstop of the ability to go to court and have a federal judge conduct a de novo review of an agency’s determination to withhold records. Over time, the exceptions have grown at the behest of clever DOJ attorneys, obfuscatory agencies, and federal judges who defer to secrecy.
Even so, in 2023 the federal government received nearly 1.2 million FOIA, with the vast majority going to five agencies (DHS, DOJ, VA, NARA, and DOD) – and of the top five, 56% of requests went to DHS. Research from 2017 suggests the vast majority of FOIA users are businesses (39%), individuals (20%), law firms (17%), followed by the news media (8%), non-profits (8 percent), and universities (5%).
FOIA costs the federal government $660 million in 2023, of which $40 million were the costs of litigating FOIA and $2 million were recouped in fees. By comparison, the US military spent $437 million on military bands in 2015.
There’s a federal FOIA Advisory Committee that has issued dozens of recommendations for updating the law and its implementation. And the House Oversight Committee has an excellent citizen’s guide to FOIA.
While the federal FOIA is one of the earliest, many other countries have enacted their own laws. Nowadays, the U.S. is being outperformed by many other countries on the right to information. Our very legalistic approach, which is slow and expensive and prioritizes those with money, probably should be supplemented by empowering a FOIA commissioner or establishing a mandatory mediation program. Under those approaches, an official can direct agencies to respond promptly to information requests and to back down from over-broad efforts to withhold information, while preserving the right of the requester to appeal adverse decisions.
It’s likely that the move to born-digital documents, the broader use of Artificial Intelligence and e-discovery tools, and procurement of better technology to manage information could have a salutary effect on addressing backlogs, which have become an extreme barrier to access.
FOIA is an imperfect tool and it has revolutionized what we know about what the government is up to. The House Oversight Committee and Senate Judiciary Committees, which have jurisdiction over FOIA, should elevate their annual celebrations of Sunshine Week and continue the hard work to push significant legislative improvements to the law that reinforces the public’s right to know.
Executive branch
What’s happening with the Open Government Federal Advisory Committee? Federal News Network’s Jory Heckman spoke with me.
A federal framework for public participation and community engagement is the focus of new OMB draft guidance. They’re looking for your feedback by November 29th. Go to their website to learn more and comment. Here’s a high-level overview. Listening sessions are scheduled for Nov. 13th and Nov. 20th.
If you want to comment on the U.S. government’s open government National Action Plan, the deadline to submit your ideas to the federal register is November 12th.
Congressional oversight. At the recent iLegis conference, Dave Rapallo gave an excellent talk on Congress’s powers to investigate crime. I’m sharing his recent draft paper evaluating whether Congress has the authority to investigate illegal conduct – and the ability to investigate broadly. I suspect Congress’s oversight authorities will get a vigorous workout in the upcoming years. Rapallo’s article is worth a read.
Archives kerfuffle
The National Archives’s planned addition to the Record of Rights exhibit in the agency’s Museum has resulted in complaints first reported in the Wall Street Journal that the agency – under its recently confirmed new leader – “sought to de-emphasize negative parts of U.S. history. ” Examples include decisions to not add additional references in the exhibits to the Japanese internment camps, the patent for the contraceptive pill, the removal of several major historical figures from a photo booth, and so on.
The underlying concern is that Archivist “Shogan has gone out of her way to appease Republicans” who had opposed her confirmation in committee and pushed to remove the Archives’ contextualization of American history. The current exhibit, which apparently would be retained, does make reference to a wide range of issues concerning our evolving democracy, including civil rights, the treatment of Native Americans, gay rights, the right to contraception, and so on. Unlike other agency heads, the Archivist is generally a non-political expert and serves for a lengthy period of time; her predecessor served from 2009 to 2022.
Dr. Shogun responded to the allegations in this blogpost, affirming her “commitment to leading NARA without partisanship or ideology” and “to preserve, protect, and share the records with all Americans.” Accordingly, “[t]hat does not mean we shy away from difficult topics; but it does mean that we need to be thoughtful in how we engage with our past and focused on fostering understanding and dialogue.” She committed to “ensur[ing] the agency tells a more complete story of American history. It is why we have announced the forthcoming additions of the Emancipation Proclamation and 19th Amendment to the Rotunda that holds the Declaration of Independence, the Constitution of the United States, and the Bill of Rights.”
Odds and ends
Listening sessions. One of the better things I’ve read in a while is this cynical take on how the government “consults” with the public. It describes and rates the utility of the various kinds of meetings that officials routinely convene.
Mandatory Declassification Review is a process by which the public (and members of Congress) can ask for classified documents to be released to the public. What can you get? To start, a big story on how the U.S. bungled Millennial Challenge 2002, a war game designed to test how well the military responds to low-tech warfare.
Bertie Bowman, who passed after serving on Capitol Hill for more than 60 years – the longest serving African American congressional staffer – had a tree planted in his memory in the Russell Building courtyard.
The House Foreign Affairs Committee hearing room renovation got a close-up in the latest issue of the AOC’s magazine, THOLOS. It looks good.
But I can’t help but wonder if we’re going about the whole thing wrong. For decades, congressional committee rooms had a central table around which everyone sat. Until the House Rules Committee added its sixteenth member, it was laid out this way. Moving to a dais where members sit in rows facing the public changes the way the members interact with each other, and I can’t help but think it has not been for the better.
Unless the House acts, we’re likely to see this pattern continue as other committee rooms are upgraded. “It’s expected that the flagship designs created for Rayburn 2172 — particularly the new dais — will likely be recreated across hearing rooms on the Capitol campus for years to come.” Maybe this is an issue for the Modernization Subcommittee?
Per the THOLOS story: “The custom dais now features a computer monitor for each seat that lays flush with its wood surface, assistive technology to help Members with disabilities better communicate with the rest of the committee, and room for chairs and wheelchairs to pivot. It’s also outfitted with space for better wiring and allows for future upgrades to be built in seamlessly.” There also were major changes with respect to AV.
The AOC also touts in THOLOS some stunning historical photos from around the Capitol complex, including their “well-organized photographic database” of half-a-million pictures, although it’s not clear to me whether the photo collection is available online or for public inspection. Perhaps some of the content can be found on the AOC’s various social media websites.
Woman chiefs of staff are the focus of an Elle profile.
What’s my name? Vice presidential edition.
Events
Can we revive the Senate? is the focus of an online conversation hosted by AEI and featuring Tony Madonna, Kevin Kosar, and James Wallner. RSVP for the Nov. 8 event, set to take place from 9-10 am.
An Evolving Legislature: How Historical Moments Influenced the Modern US. The Library of Congress hosts a special discussion on the evolving House Rules Committee with Breanna Gray and Sarah Binder on Nov. 13th. Join in person or watch online. Also, a good read, if somewhat dated, is “A History of the Committee on Rules.”
DC Legal Hackers will host Colin Raby, a congressional AI specialist, to discuss AI in Congress on Nov. 14.
