First Branch Forecast: ModCom, PODA, PACER, + USCP 12/13/2021

Welcome‌ ‌to‌ ‌the‌ ‌First‌ ‌Branch‌ ‌Forecast,‌ ‌your‌ ‌regular‌ ‌look‌ ‌into‌ ‌the‌ ‌Legislative‌ ‌branch‌ ‌and‌ government ‌transparency.‌ ‌Tell ‌your‌ ‌friends‌ ‌to‌ subscribe.


Bonus week. The Senate is in today; the House is in tomorrow, with the ominous last vote predicted at “???” We’ll see both chambers vote to raise the vestigial debt ceiling thanks to legislation waiving the filibuster that apparently didn’t cause the demise of democracy or an end to the world’s greatest deliberative institution. Also on the Senate docket is a more pro-militarist version of the NDAA than usual, shepherded by the Armed Services committees outside of regular ordersans 1991 + 2002 AUMF repeal, sans independent protection for victims in sexual harassment cases, and with a $25 billion bump above what the Pentagon requested, equivalent to 50% of the cost to vaccinate the world against COVID. The House will ponder holding Mark Meadows in contempt and adopting legislation on Islamophobia. In committee: the Jan. 6th committee is expected to report out a contempt resolution on Meadows; the Coronavirus committee will consider the need to accelerate vaccinations — say, what about that extra $25 billion? Not listed on, but apparently happening: a Thursday House Admin hearing on the Smithsonian. There’s also a ton of nomination proceedings.

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The Capitol Police Should Issue FOIA-like Regs — Here’s our Model Regs That Show Them How

Today Demand Progress Education Fund released model public records request regulations for the United States Capitol Police Force. If implemented, these regulations would create a FOIA-like process for the Capitol Police, which our multi-year investigation had previously revealed to be particularly secretive.

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Senate Personal Offices Now Allowed a Staffer With TS/SCI Clearance

Every senator will now be able to designate one aide as eligible to apply for a TS/SCI clearance according to an announcement made by Sen. Schumer and reported by Politico. Clearances give staffers the ability to review matters deemed classified by the Executive branch. Senator Murphy is a long-time champion of this change, which had broad, bipartisan support.

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Congress’s Policy Support Agencies

How Congress makes sense of the world was the focus of a House Modernization Committee hearing today that honed in on the operations of three support agencies: the Government Accountability Office, the Congressional Research Service, and the Congressional Budget Office. It was one of the most insightful hearings of the 117th Congress.

Congress created its support agencies to provide the Legislative branch with information and analysis unsullied by Executive branch bias. Congress began funding its own expert policy support agencies because funding can shape an organization’s behavior and responsiveness, including the perspectives and focus of its staff.

Today’s hearing had the agency heads as witnesses: Gene Dodaro for GAO, Mary Mazanec for CRS, and Phillip Swagel for CBO; it also had a second panel of experts who provided critical insight into those agencies: Zach Graves on GAO, Wendy Ginsberg on CRS, and Philip Joyce on CBO. While the agency heads were not placed on the same panel with the experts, they were asked to respond to the experts’ recommendations that had through happenstance been released ahead of time, which provided a useful starting point. (This makes me wonder whether a best practice for committees might be to require and publish written testimony a week in advance and request that oral testimony incorporate responses to the testimony from others.)

This was a modernization hearing, not an oversight hearing, so the focus was on the direction the policy support agencies are heading and not specific details on where and why they are falling short. Oversight work generally falls upon the Legislative branch Appropriations Committees that have jurisdiction over all three agencies and, to varying degrees, the authorizing committees: House Admin and Senate Rules for CRS; House Oversight and Senate HSGAC for GAO; and the Budget Committees for CBO.

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Forecast for August 27, 2021

Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. This is an unusual Friday edition; we are hoping to not publish next week. Subscribe here.

The House returns for a committee work week on Tuesday; the Senate is out until September 13th.The House’s National Defense Authorization Act markup will start on September 1. There are a number of important deadlines: House and Senate committees are expected to report their portions of the reconciliation package by September 15th; appropriations bills of some kind must be enacted before the end of the fiscal year on Sept. 30th; and the debt limit will be reached in October or November.

Don’t forget: The Library of Congress has a virtual public forum (which means you!) on its digital services set for Sept. 2nd. This is an opportunity to ask for new tools, features, and information from the Library.

A “rally” by Trump insurrectionists and fellow right wing extremists set for Sept. 18th is alarming Capitol security officials who fear it will be violent; the event is set for a Saturday and reports do not indicate the expected size of the crowd. Earlier in the week is the 20th anniversary of 9/11, which also is raising alarm bells, although news reports provide no real information about what kind of threat, if any, may arise. We cannot tell the extent to which USCP operations have been reformed in the last 8 months, but transforming the agency into a capable security force will take years and we have grave doubts about the ability of its intelligence units to assess the circumstances.

After it was reported in the press, the USCP issued a press release acknowledging it completed its internal investigation into the shooting of Ashli Babbitt. The findings (or a summary thereof) were not released so we do not know what it says except flat assertions in the news release itself; the officer will not face internal discipline; and the officer (who is not being officially named) and their family have been “subject of numerous credible and specific threats.” The twitter thread in response to the USCP announcement apparently includes the name of the officer and a revolting amount of insurrection-related vitriol.

That officer, Lt. Michael Byrd, gave an interview with NBC news where he explained his actions were a last resort to protect members of Congress holed up in the House chamber. Lt. Byrd has received death threats and has gone into hiding for months as Trump insurrectionists and fellow travelers turn the unfortunate but likely inescapable shooting of insurrectionist Babbitt into a twisting rallying cry. We found this coverage provides the best context.

Ring, ring. The January 6th Committee is set to request telephone companies preserve phone records of certain Members of Congress, among other people.

The Capitol Police responded to a new IG flash report with this press statement. Oddly, IG flash report #5 is not publicly available, but the AP reported on it. The headline: “Report details mishandling of police emergency system on 1/6.” The USCP IG does not release reports to the public as a matter of policy (even though it’s routine for IGs across the government), although House Admin has been releasing the IG’s new flash reports, which appear to be designed for public consumption. Appropriators had requested the IG compile a list of reports over the last three years that it could release, and that report is due by September 30th. Maybe the IG should just go ahead and release this one instead of holding it for the likely House Admin hearing.

The August Capitol bomber, Floyd Ray Roseberry, has been “diagnosed with bipolar disorder and needs more medical treatment.” Roseberry, who said he had a bomb but did not have one that functioned, made a number of far right statements during a stand-off with security forces. To my mind, this highlights the danger of violent rhetoric that can activate all sorts of people.

Oddly, but not unsurprisingly, the U.S. Capitol Police’s weekly arrest summary does not include the arrest of Floyd Ray Roseberry. The Capitol Police put out a press release on 8/19 saying they arrested him, so we know they did it, and yet… nothing. This suggests, as we have long suspected, that the Capitol Police’s weekly arrest summaries are not comprehensive or reliable. When we dug into this previously, the USCP gave us a cryptic response about what they exclude from these reports.

7 Capitol Police officers have filed a civil lawsuit against ex-Pres. Trump and others “claiming they conspired to violently overturn the results of the 2020 election.” Josh Gerstein, as usual, does a good job of putting this all in context and links to the filing — bravo. You can follow the docket (including getting alerts) on CourtListener.

Appropriations requests are published online by Sen. Braun, which is something we don’t recall having seen before. This includes the date a letter was sent, the sender, the dollar amount, and the purpose, but not the text of the letter itself.

How does newly enacted legislation amend prior legislation? The use of technology to answer that tricky question has moved a step forward with GPO’s publication of statute compilations in USLM XML. If that last sentence is confusing, what it means is that we now have modern metadata for laws that are not officially included in the US code so it becomes possible to automate updates of that legislation and also to show how draft legislation would amend those laws.

The Congressional Budget Justification Transparency Act has passed the House and Senate, going to Pres. Biden’s desk for signature. It has earned bipartisan praise. It requires the publication of an agency’s current and historical Congressional Budget Justifications in a central place online so it is possible to find them easily.

Declassification reforms are classified. Yes, the fixes pushed by Sen. Wyden are contained in the classified annex, so we can’t know what they are. What is classified legislation? Well…..

Lobbying. Lobbying by an industry increases when there is greater consolidation (i.e., fewer players) in the industry, according to a new report from the American Economic Liberties Project. The tentative conclusion: monopolies seek to acquire political power through lobbying to avoid competition in the open market.

Endless impeachments from here on out is the premise of Paul Kane’s opinion piece, pointing to Republican calls to impeach Biden over all sorts of stuff, including by Republican notables. He quickly pivots to #bothsides, blaming the bases of both parties, so I don’t exactly recommend his analysis. But Republicans do seem more likely to impeach any Democratic president and Democrats are more likely to impeach Republican presidents who follow in the Trumpian model.

You shouldn’t be afraid at work, but congressional staff are becoming resigned to political violence being part of the job.

Rep. Mooney may have used campaign funds for personal use and used gift cards to hide the recipients of campaign funds, which are no-nos and, according to Roll Call, the topic of an OCE report to the Ethics committee.

The Senate Secretary of the Senate, not the Sergeant at Arms, oversees the Office of Senate Security. I know that, having written a primer on it a while back, but I mixed it up in the last issue.

Down the road…

• The Library of Congress will host a public forum on on September 2nd from 1 to 4pm ET.

• Make Congress Great Again — the Lincoln Network is hosting a reception on Congressional modernization and reform on September 2nd from 5-7 pm ET. RSVP here.
• Internapalooza, a virtual orientation for interns, will take place on September 9th and 10th.

• The 30th annual LegisTech for Democracy Conference will be held online on September 13th and 14th — save the date now.

• The Senate will return on September 13th.

• Constitution Day is September 17th.

Funding Bill Takes a Giant Leap to Rebuild Congressional Capacity

Today at noon the House Appropriations Committee’s Legislative Branch Subcommittee will mark up its funding bill for fiscal year 2022. This legislation constitutes a big leap towards addressing the devastating decline Members of Congress have inflicted upon the Legislative Branch over the past quarter century, including a nearly 40 percent staffing reduction at committees and legislative support agencies.

The bill includes a top line funding increase of 13.8 percent over fiscal year 2021; a 21 percent increase for personal, committee, and leadership offices; a 10.3 percent increase for the government’s watchdog, the Government Accountability Office; new funding for IT modernization initiatives; and many other important provisions. In recent historical terms, the legislation does not constitute an increase in funding to the Legislative Branch, but rather a restoration of funding levels from a decade ago. Moreover, the Legislative Branch has only grown at half the rate of the Executive Branch over the last few decades, and the lions’ share of those funds have gone towards security and infrastructure, not policymaking. This legislation begins to remediate those deficiencies.

These newly restored resources will be used to provide for better services for constituents, to support oversight work to root out waste, and to hire expert staff to help our elected representatives fulfill their Article I duty to lead in federal policymaking.

Building capacity in Congress is a sound investment. A stronger Congress can reduce opportunities for regulatory capture by lobbyists, mitigate the risk of unintended negative policy outcomes through stronger staffing, and increase accountability of the federal government through expanded and knowledgeable oversight. It also provides an opportunity to save taxpayers money: the Government Accountability Office consistently reports a savings of over $100 for each dollar of its budget and yet it has been consistently underfunded, leaving billions of dollars on the table.

This appropriations bill is a monumental break from decades of dysfunctional politicization of congressional funding, which undermined the legislative branch’s ability to fulfill its constitutional role under Article I. “Both Republicans and Democrats increasingly recognize that Congress has been unable to live up to the role envisioned for it by the Founders,” said Lincoln Network policy head Zach Graves. Adding that, “while there hasn’t always been agreement for how to fix Congress, we’ve seen a real shift in how both sides talk about Congress and a growing recognition that strengthening Congress should be an issue that everyone from across the political spectrum can agree upon.”

This new push for congressional capacity also comes after years of bipartisan coalition work by Lincoln Network, Demand Progress, the American Enterprise Institute, the Congressional Management Foundation, FreedomWorks, and other groups to reframe the conversation on Capitol Hill and educate stakeholders about this institutional challenge. “This important bill is the result of a decades’ hard work from a bipartisan cohort of reform-minded Members, working together with civil society, to strengthen Congress and create a new culture of institutionalism,” said Demand Progress policy director Daniel Schuman. Adding that, “while restored resources won’t fix all of Congress’s challenges, it will make it possible to gain traction on the remaining issues and move us closer to a healthier democracy.”

Lincoln Network and Demand Progress enthusiastically support these efforts to restore funding to Congress, congratulate members of the Legislative Branch Appropriations Committee for their leadership, and look forward to consideration and passage of the legislation.

Further reading:

Written by Daniel Schuman and Zach Graves

First Reactions to the Draft House Leg Branch Approps Subcommittee Bill

The House Legislative Branch Appropriations Subcommittee today released its draft appropriations bill accompanied by a press release. The subcommittee markup is tomorrow, and we won’t know what it in the committee report until the full committee markup on Tuesday. We reviewed the legislation and compared the proposed funding to the enacted levels from last Congress. (If your interested in the documents from prior Congresses, we have compiled them here.)

At first glance, this looks like a very, very good proposal. Congratulations to Chair Ryan, members of the Leg Branch Approps subcommittee, Chair DeLauro, and all the members and staff from both sides of the aisle that have worked long and hard to restore the Legislative branch’s strength.

Appropriators have proposed $4.802 billion, which is a $589.1 million increase over FY 2021, or a 13.8 percentage increase. Roughly 40% of the increase will go to the Capitol Police and Architect. We note that this proposal does not include the costs for the Senate, and we will not know their numbers until they do their own markup later this year and then the chambers reconcile the numbers.

Among the major funding features of this legislation:

  • A 21% increase in funding to personal, committee, and leadership offices, which will go a long way to help restore staff funding levels to where they were in 2010. This should make significant inroads in addressing Congress’s brain drain and making it possible for staff to afford staying on the hill instead of decamping to lobbying shops.
  • A 20% increase in internship funding, including funding for committee interns, which should help broaden pathways for students (and veterans) from all walks of life to experience working for Congress. Also the doubling of funding for the Office of Diversity and Inclusion means that this newly widened pathway will make it possible for more people to get their foot on the first rung of the Congressional ladder.
  • Real increases in funding for the support offices, like the Clerk (+14%), Sergeant at Arms (+19%), and Whistleblower Ombuds (+25%). The Clerk needed the funds to support its technology modernization, and the SAA has significant security components. We also note real increases for the important but often over-looked Office of General Counsel (+5.3%), Legislative Counsel (+5.8%), and Law Revision Counsel (+3.8%). The General Counsel is often busy protecting the prerogatives of the House; Leg Counsel drafts the bills and is overwhelmed; and Law Revision Counsel codifies the law. There’s also another $2 million for technology modernization under the CAO, which is very nice.
  • Increases for the legislative support agencies, like CRS (+5%), CBO (+6.4%), OCWR (+6.7%), GAO (+10%), and GPO (the actual amount is unclear because of how the revolving door fund works).
  • The Capitol Police will receive an additional 15%, or $88 million, which will pay for hundreds of new sworn officers and “civilians,” not counting the additional +35% of $16 million for USCP buildings, grounds, and security. There’s also language that would have the costs of basic training be paid for out of Homeland Security funding for use of the Federal Law Enforcement Training Center; I don’t know if this is new, but we know that training is a major cost for the USCP and could provide significant additional value to Congress.
  • Without the Senate side we cannot see how much the Architect will increase. The press statement suggests a $152.8 million over FY 2021, to $603.9 million, which looks like a +34% increase. This doesn’t include whatever comes in the security supplemental.

There are also some policy changes in the bill.

  • We are glad to see that confederate statues would be removed from public view and put into storage within 45 days. (This was in last years’ bill as well, but had been blocked by the Senate).
  • DACA recipients would become eligible to work for Congress.
  • It looks like the Capitol Police Chief and the Architect or Deputy Architect of the Capitol would have their pay raised beyond that available to congressional staffers or Members of Congress, somewhere in the SES level. The Capitol Police Chief, for example, would be paid at an SES level II, which looks to be around $199,300.
  • There are new provisions on how the Library of Congress takes gifts, particularly gifts of securities.
  • The Open World Leadership Center will become the Congressional Office of International Leadership.

I would expect that we will see many more policy changes in the committee report language, which won’t become available until 24 hours before the full committee markup.

What’s next?

  • Subcommittee markup tomorrow Thursday, July 24th
  • Full Committee markup scheduled for Tuesday, June 29th.

Here is our spreadsheet comparing FY 2021 and FY 2022. It’s a working document and subject to change. Here are the Leg branch line items over the last quarter century.

How to Track House Approps Markups

Tracking House appropriations markups can be more art than science. We’ve compiled this timeline to help everyone follow along.

Meeting notice

Public access to the proceedings

Subcommittee markups

  • Draft bill text, resolutions, and reports must be available to committee members (but not the public) at least 3 calendar days in advance of the date it is expected to be considered (although this language can be waived) — Committee Rule 6(j).
  • Draft bill text must be publicly available at least 24 hours in advance of the proceedings — House Rule XI(g)(4), Committee Rule 4(d)(4). (In practice, this is a literal 24 hours, so bill text may become available online on the Sunday before a Monday markup.)
  • Amendment text, if adopted, must be made available within 24 hours of adoption; if withdrawn or otherwise not adopted, must be made available within 48 hours — House Rule XI(e)(6), Committee Rule 4(e)(1).
  • Record votes at the markup must be publicly available in electronic form within 48 hours of the vote — House Rule XI(e)(1)(B). This includes a description of the amendment/motion/etc. and how members voted.
  • The draft committee report is not required to be made publicly available prior to its adoption by the full committee. However, as a matter of practice, the draft committee report is made publicly available 24 hours prior to the full committee markup.

Full committee markup

  • Draft bill text, resolutions, and reports must be available to committee members (but not the public) at least 3 calendar days in advance of the date it is expected to be considered (although this language can be waived) — Committee Rule 6(j).
  • Draft bill text must be publicly available at least 24 hours in advance of the proceedings — House Rule XI(g)(4), Committee Rule 4(d)(4). Note that if the subcommittee bill text was not amended, it will be the draft full committee text. (Although it can still be amended by the full committee.)
  • The draft committee report, as mentioned above, is not required to be made publicly available prior to its adoption by the full committee. However, as a matter of practice, the draft committee report is made publicly available prior to the full committee markup, usually at the same time as the draft bill text.
  • Amendment text, if adopted, must be made available within 24 hours of adoption; if withdrawn or otherwise not adopted, must be made available within 48 hours — House Rule XI(e)(6), Committee Rule 4(f). For the last two years, largely driven by the COVID pandemic, House Appropriators have distributed amendments to press as they are offered.
  • Record votes at the markup must be publicly available in electronic form within 48 hours of the vote — House Rule XI(e)(1)(B), Committee Rule 4(e)(1). This includes a description of the amendment/motion/etc. and how members voted.

Final bill text

  • There is no deadline by which the final bill text and committee report must be made publicly available after adoption by the committee. Rather, it is the duty of the Chair to file the bill and report “promptly.” Committee Rule (6)(a)(1). They become available after they are filed with the House of Representatives (being filed in the House (which occurs after the submission of minority, dissenting, additional, and supplemental views). Members who give notice they wish to file dissenting, additional, or supplemental views are entitled to two additional calendar days to file those views. Rule XI(2)(l), Committee Rule 6(i)(1).

Tracking Appropriations Testimony Deadlines for FY 2022

For the last few years Demand Progress has been tracking appropriations testimony deadlines in the House and in the Senate. Specifically, we have kept track of:

  • Public witness testimony deadlines and guidance
  • Member witness testimony deadlines and guidance
  • Member request deadlines and guidance
  • Subcommittee/ full committee markups.

Here is that information, in spreadsheet form, for FY 2022 (updated once a week), FY 2021, and FY 2020.

You can find the spreadsheet for FY 2022 below, or just click on the link above.