Category: Advocacy

Statement on Senate Judiciary Subcmte Hearing: “Office of Legal Counsel’s Role in Shaping Executive Privilege Doctrine”

Today at 2 PM ET, the Senate Judiciary subcommittee is holding a hearing entitled “The Office of Legal Counsel’s Role in Shaping Executive Privilege Doctrine” with OLC’s Assistant Attorney General Christopher Schroeder as the sole witness. 

Given that secrecy is an all-too-common aspect of the OLC’s work, and that its secrecy has at times undermined the rule of law and the operations of that office, we will be watching for any insights about how the subcmte would promote disclosure of OLC opinions as an antidote. Congress should act now to lock-in transparency of OLC opinions. 

This position in favor of transparency was embraced by AAG Schroeder before he was appointed and confirmed to his current role, as well as by a number of attorneys who formerly worked in the Office of Legal Counsel. They have pointed to abuses of the OLC process by that office’s issuing opinions that “arguably distort the separation of powers by brooking no recognition for Congress’s prerogatives as a co-equal branch, in high-visibility disputes with Congress over politically charged legal questions.”

Daniel Schuman, policy director at Demand Progress Education Fund, said: “OLC is a major mechanism by which Congress’s powers are diluted, limited, and ignored. Its opinions should be proactively disclosed to protect our democracy and the rule of law. There is no reason for Congress to wait to move on any of the three off-the-shelf ready-to-go OLC transparency reforms that have bipartisan coalition support.”  

Those reforms include: 

  1. authorizing legislation (Demanding Oversight and Justification Over Legal Conclusions Transparency Act or the DOJ OLC Transparency Act, S. 3858, and its companion House bill, the SUNLIGHT Act of 2022, H.R. 7619.
  2. the Duckworth amendment to the FY2023 NDAA (S.Amdt. 6246 to H.R. 7900);
  3. the directive in the appropriations committee report (H. Rept. 117-395, p. 59) accompanying the House’s FY 2023 appropriations bill for the DOJ.

And of course, Schroeder could proactively update the OLC’s “Best Practices” memorandum to instate proactive disclosure of OLC opinions without waiting for Congressional direction. Let’s not forget that in 2004, he was one of 18 former senior DOJ officials who signed a document entitled Principles to Guide the Office of Legal Counsel that specifically said: “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.”

Also, don’t miss the American Constitution Society’s Statement on OLC opinions, to which many former OLC attorneys contributed, that identifies many problems with OLC’s non-transparency practices — including harm to the office itself — and recommends “the Office should demonstrate its commitment to ensuring executive branch accountability through transparency by articulating a strong presumption in favor of publishing its final formal opinions.”

When Schroeder was a nominee in 2021, Demand Progress led a bipartisan coalition including Americans for Prosperity, the National Taxpayers Union, and the Federation of American Scientists that called for the OLC to adopt a policy of proactively disclosing OLC opinions. We’ve also testified to the Senate requesting OLC transparency language be included in the CJS Approps subcommittee bill — such language was included in the House; and the pending Duckworth-Leahy DOJ OLC Transparency Act.

Today’s hearing is described as focusing on the Executive branch’s views on the executive privilege doctrine, and is reportedly a follow-up to the previous executive privilege hearing in August 2021, during which several witnesses pointed to the OLC as the primary driver of executive privilege doctrine in the Executive branch and identified OLC as partly responsible for the increasingly aggressive legal positions the Executive branch has taken to thwart Congressional oversight in recent years.

Statement on House Staff Pay Floor Increase Going into Effect Sept. 1

“At long last, no Member of the House of Representatives is permitted to pay their staff poverty wages. As of September 1, every staff person in the House of Representatives must be paid at least $45,000 a year, which meets the living wage in high cost Washington, DC,” said Daniel Schuman, policy director at Demand Progress. “We applaud the House staff who have spoken out in support of a living wage for their colleagues, the Members of Congress who advocated for a pay floor, and Speaker Pelosi and House leadership for establishing this common-sense requirement that removes personal wealth as a precondition for public service. We urge the Senate to join the House and establish a $45,000 pay floor for all staff.”

Demand Progress Action and Congressional Progressive Staff Association Call on Senate Leadership to Increase Staff Pay Floor to $45,000

The CPSA letter was signed by 150 current congressional staffers, while the letter led by the advocacy organization Demand Progress Action was signed by over 15 organizations.

WASHINGTON, D.C. – Today, the Congressional Progressive Staff Association (CPSA) and Demand Progress Action sent two letters to Senator Pro-Tempore Patrick Leahy and Senate Leadership calling for the upper chamber to match the House’s commitment to paying their staff a minimum salary of $45,000 a year.

Following the release of CPSA’s survey data analyzing workplace conditions of over 500 staffers in both the House and Senate, House Speaker Nancy Pelosi announced a pay floor of $45,000 for all congressional staffers in the House. This will officially become House policy on September 1st, but thousands of staffers in the Senate will still be making less than $45,000 a year without further action from Senate Leadership.

Writing as the “staffers who make up the fabric of your offices,” the signers of the letter say that “establishing a minimum salary floor of $45,000 for Senate staff would be a welcome change for the staffers who commit their lives to this institution. Like House staffers, Senate staff struggle to pay rent, bills, and keep food on the table. 

Compensating Senate staff fairly would not only enable current staff to keep their heads above water while the cost of living rises across the country, but it would also open more doors in the halls of Congress to those who wish to make their country a better place.

Continue reading “Demand Progress Action and Congressional Progressive Staff Association Call on Senate Leadership to Increase Staff Pay Floor to $45,000” →

Statement on passage of the Periodically Listing Updates to Management (PLUM) Act

The House included the Periodically Listing Updates to Management (PLUM) Act as an amendment to the FY 2023 National Defense Authorization Act (NDAA) passed last week.

“In passing the Periodically Listing Updates to Management (PLUM) Act, Congress just took an important step to increase transparency of political appointees, who are among the most senior leaders of the Executive branch, and known for having ‘plum positions’ because of their close and confidential relationships with key officials and ability to steer policy matters with little public oversight,” said Daniel Schuman, policy director at Demand Progress.

“The PLUM Act provides Congress and taxpayers with a tool to hold administrations and their appointees accountable by requiring the Director of the U.S. Office of Personnel Management to create a frequently-updated online directory of senior government leaders and vacant senior Executive branch positions. This is a vast improvement over the current practice of publishing a paper-only book every four years and should also increase the visibility of public service opportunities and widen the pool of diverse candidates pursuing high-level positions in the federal government.

Demand Progress has long supported the bill, and we commend Representatives Connolly, Castro, Mfume, Ocasio-Cortez, Sarbanes; Del. Norton; and Senators Braun, Duckworth, and Merkley for advancing this bipartisan legislation to resolve an important issue raised by the Government Accountability Office, which noted in a March 2019 report that ‘there is no single source of data on political appointees serving in the executive branch that is publicly available, comprehensive, and timely.’”

Statement on House Union Rules Taking Effect

Today, the House is marking a major milestone that will forever change the rights of staff as recently-approved Office of Workplace Rights regulations permitting unionization go into effect.

“Staff in the House of Representatives work long hours at low pay to meet the needs of the American people and we are pleased they will finally be able to enjoy a crucial right long available to workers across the country: the right to collectively organize to improve their working conditions,” said Daniel Schuman, policy director at Demand Progress. “Providing House political and non-political staff the ability to join a labor union, an effort a quarter-century in the making, illustrates one avenue to transform the institution from within, as Congress’s ability to function well depends on a well-trained, expert staff devoted to making our democracy work for all. Additional work remains, including extending these labor rights to Senate political staff and some support agency staff currently excluded from collective bargaining laws.”

FY23 Appropriations Bill Text Tracking

It can be, at times, somewhat difficult to track appropriations bill text, report language, and press releases and the legislation goes through its paces. Congress.gov maintains a thorough appropriations page, but as of the time of this writing it still has not been updated for FY2023. It’s UI could also be improved.

So we are trying an experiment and will see if we can track the bills as they go through their paces — at least the initial paces. Accordingly, find below our FY 2023 appropriations bill text, report, and press release tracking spreadsheet. Let us know what you think.

Statement on Vote on May 10, 2022 to Allow House Staff to Unionize

“Today’s vote to allow House staff to unionize portends a significant advance in the working conditions for congressional staff and is a high point in efforts to restore Congress’s strength as a robust institution capable of working on behalf of the American people,” said Daniel Schuman, policy director, Demand Progress.

“In the wake of a series of revelations about mistreatment of congressional staff and in the aftermath of decades of neglect, House political and non-political staff will finally be able to organize and negotiate for better working conditions without fear of retaliation.

We applaud all the congressional staffers and particularly the Congressional Workers Union for their ceaseless advocacy in support of improving staff working conditions; we commend Representative Andy Levin for his championing of the congressional unionization resolution, co-sponsored by a wide array of Members of Congress; Representative Zoe Lofgren for conducting thorough oversight through the Committee on House Administration; and Speaker Pelosi and senior leadership for bringing the measure to the House floor.

In combination with adjusting office funding levels by 21%, providing significant investments in Congress’s oversight capabilities, ensuring that no staffer earns below a living wage, and strengthening workplace protections, this House of Representatives has done more to strengthen the Legislative Branch than any Congress in the last 30 years.”

Statement on House Unionization Vote + Establishment of Minimum Wage

“Today is a proud moment in congressional history and portends a significant advance in the working conditions for congressional staff,” said Daniel Schuman, policy director of Demand Progress, a non-governmental organization focused on strengthening our democracy that has led a broad coalition to advocate for the right of congressional staff to unionize and pushed for higher staff pay.

Continue reading “Statement on House Unionization Vote + Establishment of Minimum Wage” →

New Office of Legal Counsel Transparency Bill Would End Secret Law by OLC Opinion

Official sign depicting entrance to Department of Justice's Office of Legal Counsel
Sign outside the Department of Justice’s Office of Legal Counsel

Senator Duckworth, along with Senator Leahy, just introduced the Demanding Oversight and Justification Over Legal Conclusions Transparency Act (DOJ OLC Transparency Act), a bill to require the Department of Justice to publicly disclose all Office of Legal Counsel opinions, with appropriate exceptions for classified material.

Demand Progress has long advocated for such transparency, and applauds the efforts of  Senators Duckworth and Leahy to introduce legislation that would protect a foundational principle in our democracy: the right of Congress and the public to know how the laws of the land have been implemented by the executive branch. 

“The Office of Legal Counsel has shaped lasting U.S. policy under a dangerous shroud of secrecy that has shielded legal opinions that are controversial, even dubious or shoddy, from both congressional oversight and legal interpretation. Had this bill been law in 2002, it’s highly unlikely the U.S. would have engaged in human rights abuses at Abu Ghraib, as the legal justification provided by the OLC’s so-called ‘Torture Memos’ would not have withstood public scrutiny,” said Demand Progress Legal Director Ginger Quintero-McCall. “The DOJ OLC Transparency Act would put an end to secret law via OLC opinion by empowering Congress to protect its own oversight capabilities, incentivizing OLC attorneys to produce high quality legal analysis, and ensuring that every member of the public understands what laws the country is actually operating under. We commend the legislation introduced by Senator Duckworth and Senator Leahy, and call on every member of Congress who cares about government accountability to support this important legislation.”

OLC’s “core function,” according to its own memoranda, is to provide “controlling advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government.” This legal advice “may effectively be the final word on the controlling law,” yet it is routinely withheld from both Congress and the public. 

Neither Congress nor the public is aware of the number of OLC opinions currently in effect, much less their legal conclusions. The OLC is typically able to thwart disclosure through FOIA requests, claiming its relationship to the Attorney General is essentially by attorney-client privilege. It took lawsuits that took advantage of a 2016 amendment to the Freedom of Information Act to compel the OLC to at least release opinions that are more than 25 years old.

Along with its House companion legislation led by Reps. Cartwright and Quigley, this Sunshine Week introduction of the DOJ OLC Transparency Act starts us on that path. 

Letter by organizations supporting DOJ OLC Transparency Act.