Strengthening Congressional Oversight: A ModCom Hearing

Congressional oversight powers were the focus of a House Modernization Committee hearing this past week. We were impressed because the discussion went past many clichéd, inaccurate observations that are often advanced concerning what’s broken in Congress and moved to diagnosing the impediments to Congress holding the Executive branch to account and making recommendations on fixes.

By way of background, here is the video of the hearing and here is the written testimony for witnesses Elise Bean, Josh Chaffetz, and Anne Tindall, who all did an excellent job. Demand Progress submitted a brief report containing four major recommendations on how Congress can strengthen its oversight, and you might also be interested in our 2020 primer (with POGO) on Congressional staff clearances. We also would be remiss if we did not point you to the excellent congressional oversight handbook written by the inimitable Mort Rosenberg entitled When Congress Comes Calling.

The Problem

Congress has a difficult time obtaining timely, accurate, complete, and insightful answers from the Executive branch on its activities. It is not unusual for the Executive branch to slow walk responses to Congress, provide non-relevant information, or simply stonewall demands for information.

Traditional mechanisms by which Congress can vindicate its requests for information, such as through the appropriations process, are slow and often obstructed by a combination of Congress’s consensual mechanisms, problems arising from timeliness, and Executive branch defiances. Other mechanisms, such as holding up nominations, only work (at times) in one chamber — the Senate. More direct methods to force witnesses to comply, such as through statutory contempt, must go through the gauntlets of a Department of Justice unwilling to enforce such findings and federal courts that are glacially slow, unwilling to get involved, and often partial to Executive branch perspectives.

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First Branch Forecast: Better Later Than Never– What’s In the Approps Bills? (Nov. 2, 2021)

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

THE TOP LINE

Notable events this week: Strengthening Congressional Oversight Capacity is the focus of a ModCom hearing on Thursday; ACMRA and several IG bills get a HSGAC mark-up on Wednesday; and save the date for next Monday’s lightning talks on eight new transparency ideas.

We still need your help. Hundreds of FBF readers were automatically unsubscribed from our newsletter a few weeks ago because of a technical snafu — and we can’t resubscribe them. Please forward this email to folks on the hill + journalists who might be interested in our little publication and encourage them to re-subscribe here; and please add my email address (daniel@demandprogress.org) to your contact list so I don’t get relegated to spam. Thanks!

APPROPRIATIONS

Senate Democrats’ draft CJS bill and explanatory statement includes a new push for transparency around the Foreign Agents Registration Act — nice! — but does not include a parallel provision to the House’s language directing transparency for OLC opinions, which is something Demand Progress had requested. It’s inclusion is not necessary as committee report language controls so long as it’s not contradicted elsewhere. Our rundown on transparency-related CJS matters is here.

Senate Dems’ draft FSGG approps bill had at least two notable items — transparency around apportionments and increasing the federal government’s intern capacity — and we’ve looked at the transparency provisions in that bill here.

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First Reactions to Senate Democrats’ Commerce, Justice, Science FY 2022 Appropriations Subcommittee Bill

On October 18, 2021, the Senate Appropriations Committee Democrats released draft bill text, an explanatory statement, and a subcommittee summary for the Commerce, Justice, and Science appropriations bill. We reviewed the contents and compared the proposed funding to the enacted levels from the last Congress.

Senate Democrats’ CJS appropriations bill includes a discretionary funding level of $79.7 billion, an increase of $8.55 billion over the FY 2021 enacted levels, a 12% increase. By comparison, the House version was favorably reported by committee but has not passed the chamber; it provided for a funding level of $81.3 billion.

We were disappointed to see that language requiring transparency for Office of Legal Counsel opinions was not included in the Senate version. This language, which would have encouraged the Justice Department’s Office of Legal Counsel to proactively release final OLC legal opinions, had been included in the House CJS Appropriations Committee Report (thanks, in large part, to the leadership of Rep. Cartwright). Here’s why final OLC opinions should be available to Congress and the public. However, so long as the explanatory language is not modified or negated in the version adopted by the Senate or agreed to by the chambers, the House’s pro-disclosure language will become operative.

The Senate CJS Committee Explanatory Statement included several notable provisions that caught our eye:

— The Foreign Agents Registration Act is the focus of a request that directs the Attorney General to evaluate the feasibility of requiring all filings be submitted in an electronic, structured data format and published in a searchable, sortable, downloadable format. (p. 89) Demand Progress had requested language on FARA be included.

— Whistleblower protection at the Justice Department is the focus of two directives within the explanatory statement. The first raises concerns that contractors are not being protected despite a mandate, and the committee directs the DOJ to explain how the agency will implement unresolved recommendations. (p. 75) In addition, the FBI must report on how it will implement unresolved GAO recommendations from 2015. (p. 94)

— Serious misconduct identified by the OIG is not being prosecuted by the DOJ, and the committee directs the Attorney General to publish the number of cases referred for prosecution, the number of cases the DOJ declines to prosecute, and the reasons why. (p. 77)

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Forecast for October 25, 2021

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

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THE TOP LINE

Congress is in. The House is back today and has both the Infrastructure and Build Back Better bills tentatively set for floor consideration; the Senate also is back today. The committee schedule is here, and we’ve put notable (to us) hearings and events in the calendar section, below.

Senate Appropriations. Senate Democrats published nine draft appropriations bills after months of requesting Republicans negotiate over the contents; Senate Republicans immediately condemned their publication as “unilateral” and resulting from a “one-sided process.” With government funding expiring on December 3rd, we appreciate Senate Democrats making transparent their positions, which appear to incorporate a number of Republican priorities. It seems likely that Republican disagreement will result in a skipped markup process and behind-the-scenes negotiations among the parties. Read on for our first reactions to approps, with more to come.

Reimagining the congressional support agencies was the subject of two separate hearings last week: a House ModCom hearing on modernizing three policy support agencies (CBO, GAO, and CRS), and an oversight hearing before the Senate Rules Committee on modernizing the Library of Congress (of which CRS is part). As you might imagine, we’ve got a lot to say — and said it in this new blogpost.

— Support agency modernization. How Congress makes sense of the world was the focus of the House Modernization Committee hearing that honed in on the operations of 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. Four issues, in my opinion, encapsulate the challenges facing these agencies. They are (1) funding, (2) Legislative branch agency access to Executive branch-held information; (3) congressional and public access to Legislative branch agency information; (4) workforce management. When I enumerate this list it seems kinda dry, but the hearing was juicy and we’ve identified a number of next steps that reimagine how Congress receives support from its legislative branch policy support agencies.

— The Library of Congress was the focus of a Senate Rules Committee modernization hearing, which seemed largely focused on the copyright office, although directors of CRS and National Library Service for the Blind and Print Disabled also testified. Oversight hearings concerning the Legislative branch are generally rare, staid, complimentary, and superficial — unless there is a scandal. (House Admin’s 2019 hearing into CRS is a notable counterexample — it addressed significant dysfunction at CRS.) We were impressed, however, by Sen. Ossoff’s question to CRS’s Director, Dr. Mary Mazanac, about what she thought the agency should do if it had unlimited resources. The answer, alas, did not express any long term vision or insight into the changing needs of Congress.

Planners of pro-Trump rallies who organized and planned the Jan. 6th “protest” participated in dozens of planning meetings with Members of Congress and White House staff, including Reps. Greene, Gosar, Boebert, Brooks, Cawthorn, Biggs, and Gohmert, Rolling Stone reported. Rep. Gosar reportedly told the organizers that Pres. Trump would issue blanket pardons for an unrelated investigation if they went forward with the “protests.”

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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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First Reactions to Senate Democrats’ Financial Services and General Government Appropriations Subcommittee Bill

On Monday, the Senate Appropriations Committee Democrats released draft text, explanatory statements, and summaries for nine appropriations bills, including the Financial Services and General Government Subcommittee. We reviewed the bill text, explanatory report, and subcommittee bill summary and compared the proposed funding to the enacted levels from the last Congress.

Senate Democratic Appropriators proposed a discretionary funding level of $29.4 billion, a $4.8 billion increase compared to FY 2021 enacted levels, or 16.3 percentage increase. This proposal represents $154 million less than the president’s request. For reference, the House-version — which passed the House in July as part of a minibus (here’s the committee report) — proposed $29.1 billion. Senate Republicans disapproved of Democrats publication of these bills and are calling for an agreement on top line spending levels; Democrats have been calling for negotiations for months.

Prior to this appropriations cycle, we compiled a list of ideas to include in the FY 2022 FSGG Appropriations bill. They include creating virtual visitor logs, providing centralized access to agency congressional budget justifications, public access to OMB apportionment decisions, listing unpublished IG reports on oversight.gov, improving congressional and public access to IG reports, and a COVID-19 spending tracker.

We note two notable provisions in the Senate’s explanatory statement:

1. Apportionment Transparency

Providing $1 million to OMB to create a system to make apportionment of appropriations publicly available in a timely manner. Once the system is complete, OMB will be required to place each apportionment document on the public website within two days. (p. 45 of bill text and p. 28 of explanatory statement).

2. Federal Government Internships

Directing OPM to develop a strategy — which includes working with federal agencies and nonprofits — to increase the number of interns in the federal government over a three-year period. The strategy must include recruitment practices, onboarding, professional development, and offboarding (p. 83 of the explanatory statement).

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Forecast for October 18, 2021

Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe. In the words of Ted Lasso, “I appreciate you.”

THE TOP LINE

Send me in, coach. The House returns on Tuesday with a fairly light floor schedule that suggests bigger legislation is afoot. The Senate reconvenes on Monday. In addition to our list of notable events and hearings, it appears that the Attorney General will be testifying before the House Judiciary Committee on Thursday.

We’re watching the Senate to see if/when it will report out its FY2022 Appropriations bills. If, like us, you’re especially eager to see Leg Branch Approps, consider this an aperitif: CRS has a new report covering the FY 2022 Leg Branch Approps bill. As a reminder, our research shows that funding for the Legislative branch has grown at half the rate of the other non-defense discretionary spending and that the vast majority of new funds over the last quarter-century have gone to the Architect and the Capitol Police. This fiscal year the House has ponied up but will the Senate see the raise?

Congress is failing to retain capable staff and that problem is particularly acute among Black staffers, the New York Times reported. Among the recommendations outlined in a joint letter from the Congressional Black Associates and the Senate Black Legislative Staff Caucus: (1) living wages for all congressional staffers, (2) a stronger pipeline from college to the Legislative branch, (3) more opportunities to develop skills inside Congress, (4) purposeful and fair hiring practices. We note the Joint Center and Pay Our Interns have much to share on these points. In addition to the aspects cited in the Times article, we must emphasize the importance of having Legislative branch wide data, of the Senate establishing an Office of Diversity and Inclusion, of establishing pay floors for interns and staff and improving staff recruitment, and of considering unionization. Crucially, improving funding for the Legislative branch — and especially staff pay — is the price of democracy and the focus of calls from good government groups on the left and on the right.

There’s a bunch of transparency and oversight events this week and next:

• COVID-19 response transparency. The Congressional Transparency Caucus will discuss the Pandemic Response Accountability Committee — the oversight committee created to monitor the disbursement of the CARES act and five other pandemic-related packages totalling over $5 trillion — on Wednesday, October 20th at 10 AM ET. Panelists include PRAC Chair and DOJ IG Michael Horowitz, Liz Hempowiz of POGO, Chicago IG Joseph Ferguson, and Deputy IG at the Department of the Interior Caryl N. Brzymialkiewicz. Register here.

• Modernizing the Library of Congress. An oversight hearing on LOC’s modernization efforts will be held by the Senate Rules Committee on Wednesday, October 20th at 3 PM.

• Modernizing Congressional Support Agencies (CBO/GAO/CRS) is the subject of another House Modernization Committee hearing scheduled for Wednesday, October 21st from 9-11 AM. We previewed Zach Graves’ testimony on GAO, and Wendy Ginsberg’s on CRS, in last week’s newsletter.

• Safeguarding Inspector General Independence and Integrity — especially topical for today’s newsletter — will be considered at an HSGAC hearing this Thursday, October 21st at 10:15 AM.

• Transparency lightning talks. New transparency policy ideas will be discussed in a quick, digestible format on Monday, November 8th at 11 AM ET at the Advisory Committee on Transparency’s fourth event of 2021. Presenters include transparency experts from across the political spectrum: Walter Shaub of POGO, Erica Newland of Protect Democracy, Corinna Turbes of the Data Coalition, Reynold Schweickhardt of the Lincoln Network, and more. RSVP here.

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Forecast for September 27, 2021

Hey everyone, welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Subscribe here. We had written a lot more but pared it down because that seemed the humane thing to do. Here’s the top things you need to know.

Spending and budget. You already know that we’re in for a bumpy time with the end of the fiscal year, consideration of the physical and social infrastructure bills, and so on. Everything is being made worse by Senate Republicans who not only oppose raising the debt ceiling — a violation of Congressional norms — but will use the filibuster to greatly increase the likelihood of an economic catastrophe. They might profit from the gambit, too, as much of the reporting is focused on politics instead of governance. What’s the timeline on all this? IDK, but here’s your Sunday-night Dear Colleague from the Speaker.

Oversight. A wild story arising from the CIA’s secret “war” on Julian Assange, including the possibility of his assassination and gunfights on the streets of London with Russian agents, raises significant congressional oversight and authorization concerns. Did Congress know about the CIA’s efforts to avoid reporting its activities to Congress by reclassifying Wikileaks as a spy service based on its internal secret law? Or its reclassification of journalists (like Laura Poitras) as “information brokers” in support of allowing greater degrees of surveillance? Or a whole host of unsavory, likely extralegal, and fairly insane potential misadventures? As always on these matters, look to Sen. Wyden, who raised the alarm as best he could in a statement accompanying consideration of the 2018 Intelligence Authorization Act. “My concern is that the use of the novel phrase ‘non-state hostile intelligence service’ may have legal, constitutional, and policy implications, particularly should it be applied to journalists inquiring about secrets. The language in the bill suggesting that the U.S. government has some unstated course of action against ‘non-state hostile intelligence services’ is equally troubling.” I guess this will make Thursday’s mark-up of the FY 2022 IAA more exciting — too bad the proceedings are closed.

Transparency. The infrastructure bill has a huge FOIA carve-out that exempts the $42 billion in broadband deployment from normal transparency requirements — will someone strip that odious provision from the bill? Our friends at OpenTheGovernment are being subpoenaed by ClearviewAI, which apparently is happy gathering your personal information off the internet but is less happy when investigated for their facial recognition tech and how it’s being used. Russ Kick, a well-known transparency activist and author who created the Memory Hole website and published many newsworthy documents, has died.

Legislation. The Congressional Budget Justification Transparency Act was signed into law this past week — it requires that all plain-language explanations of how agencies would spend the appropriated monies they’ve requested be available in a central location. (Yay!) Among the many amendments to the NDAA was the PLUM Act, which would modernize the PLUM Book by creating a continuously-updated repository of more than 9,000 executive branch appointees. (Also, yay!) The Access to Congressionally Mandated Reports Act was introduced by Sens. Portman, Peters, Klobuchar, and Hassan — it would require all reports required to be submitted to Congress from agencies be available on a central website, subject to appropriate redactions — a companion measure introduced by Reps. Quigley and Comer and a score of other members passed the House in July. The humongous Protecting Our Democracy Act (text not yet available) was (re)introduced in the House and contains numerous welcome provisions to rein in out-of-control presidents. (Among its provisions, visibility into apportionments.)

The Select Committee on the Modernization of Congress held a hearing last week on civility; Roll Call has a good recap, but we think the best way to promote civility is to learn from the SCOMC itself and also look at the incentives that leadership is creating for party members. We are excited for a SCOMC hearing this Tuesday focused on modernizing Congressional support agencies, with testimony from GAO, CRS, and CBO and civil society experts on each.

Operations. House Democrats have weakened chamber rules to restrict the minority’s ability to use resolutions of inquiry to get answers from the executive branch. Rising constituent needs are swamping poorly funded congressional offices. The CBC is pushing Sen. Schumer to remove confederate statues and we wonder why Congress doesn’t charge the Joint Committee on the Library with moving them out of sight in the interim? How will the new “ban the box” law, which prevents consideration of a criminal history in the early stages of hiring, change how the legislative branch operates? A new IG report into the GAO sheds a little light on its detailees. A new Brookings report shows 128 committee oversight letters sent within the first six months of the 117th Congress, 29% of which were bipartisan, the vast majority of which came from the House Oversight Committee! By the way, what’s the odds that spyware only exists on the phones of French ministers and not, say, members of Congress?

Capitol Police. The Capitol Police Board still hasn’t acted on recs from 2017, says House Admin RM Davis. The USCP can not keep secret some surveillance footage from the Trump insurrection despite their efforts to the contrary. Threats against members have increased significantly, to 4,135 in the first quarter per the Capitol Police versus 8,613 for 2020, but they aren’t saying how many threats were substantiated, resulted in prosecutions, or resulted in convictions — or whether they’ve changed how they’re gathering this info.

Trump insurrection.The White House might decline to assert executive privilege concerning Trump and his aides activities as part of the Trump insurrection. The Select Committee on Jan. 6th issued subpoenas to four Trump aides. Conservative legal notable John Eastman put forward an incredibly dangerous plan to throw out electors and install Trump as president — it took Dan Quayle to dissuade Pence of this approach. The FBI had an informant among the insurrectionists.

Ethics. TikTokers are using member stock disclosures as a basis to make their own trades, counting on the reps using insider knowledge to make quick profits.

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