First Branch Forecast for March 21, 2022: Not the Supremes

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

TOP LINE

This week. The Senate is in; the House is out. This week, much attention will focus on the Senate Judiciary Committee’s hearing on SCOTUS nominee Hon. Ketanji Brown Jackson. Last week was packed with Sunshine Week programming — we’ve got recaps below.

Sunlight on secret laws. A bill requiring the DOJ’s Office of Legal Counsel to publicly disclose its binding legal opinions was introduced in the Senate by Sens. Duckworth and Leahy last week. Demand Progress organized a letter in support of the legislation, noting how OLC’s secrecy threatens Americans rights and Congress’s legislative and oversight roles; luminary Democratic lawyers cataloged these threats in this 2020 statement. The DOJ OLC Transparency Act would bring to light OLC promulgated secret law, mitigate Executive branch overreach, and allow for a congressional response to abuses committed under the aegis of results-oriented OLC opinions. More from us here.

FOIA is the topic of a belated memorandum issued by Attorney General Garland, who on Tuesday instructed agencies reviewing FOIA requests to adopt a presumption of openness, make proactive disclosures, remove barriers to access, and remediate backlogs. All this came after extended requests from civil society and Members of both parties. Does it go far enough? GovExec’s Courtney Bublé summarizes the memo and our own Ginger Quintero-McCall highlights the need for: commitments to “greater resources to FOIA offices, […] supporting legislative reforms including a public interest balancing test, rolling back the harmful Argus Leader Supreme Court ruling, and ensuring transparency of Office of Legal Counsel opinions.” In an essay, Quintero-McCall lays out three ideas for improving FOIA implementation.

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First Branch Forecast for March 7, 2022

TOP LINE

The House and Senate are both in session today. This week Congress will attempt to pass the spending omnibus — which may include emergency supplementals for Ukraine and Covid-19 — before government funding expires Friday. We’re keeping our eyes out for the final Leg branch appropriations numbers, which we hope provide for a significant topline increase and also invest in transparency and capacity within FSGG and elsewhere.

SCOTUS Ethics. A hearing on the need for a code of conduct for Supreme Court justices is scheduled for tomorrow, March 8 at 2PM. It looks like federal judges will soon-ish be required to disclose stock trades over $1,000 on an online searchable database as well as their financial disclosure forms, as S.3059 recently passed the Senate and a companion measure passed the House in December. The SCOTUS is empowered to regulate itself, as if that’s meaningful, so a code of conduct may be a useful pathway to address its, uh, failure to do so thus far.

Bulk Data Task Force. Discuss congressional data this Thursday, March 10, at 2 PM. RSVP here; find the agenda here. This long running working-group, established by Congress and composed of congressional and non-governmental stakeholders, is a great place to talk about improving congressional data inside and outside Congress, including to see a preview of new tech tools in the pipeline. Our recap of the last quarterly meeting is posted here.

In honor of Sunshine week, join a panel discussion on some of the biggest transparency and accountability issues facing our world today next Wednesday, March 16th. RSVP here. Hosted by the Advisory Committee on Transparency, the event will feature remarks from Rep. Quigley, founder of the Congressional Transparency Caucus, and Rep. Kilmer, Chair of the House Select Committee on Modernization. Panelists include Shanna Devine of the House Office of Whistleblower Ombuds, Kate Oh of the ACLU, Danielle Brian of POGO, and Nick Hart of the Data Foundation. Alex Howard will moderate; he is co-director of the Advisory Committee on Transparency and director of the Digital Democracy Project. (I’m the other co-director. :)) More Sunshine week events are listed in the calendar section.

Ethics online. 36 organizations urged ethics and disclosure documents “made publicly available” at the Legislative Resource Center should actually be made publicly available by publishing them online and in a structured data format. The letter, sent to the House Administration Committee on Friday, noted that the LRC has been effectively closed to the public for more than two years. What do they have exactly? Here’s our spreadsheet of what’s available at the LRC and its Senate equivalent, the Senate Office of Public Records.

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First Branch Forecast for February 28, 2022

TOP LINE

Calendar. The Senate is back today; the House is back tonight. We’re watching Wednesday’s House Admin hearing on unionization, the State of the Union is on Tuesday, and Demand Progress is co-hosting a panel discussion on presidential emergency powers on Wednesday (RSVP here) — ICYMI, lawmakers wrote this letter calling for an AUMF before any action by the president to introduce U.S. Armed Forces into hostilities or decline to remove any U.S. military personnel currently deployed inside Ukraine from unauthorized hostilities or imminent hostilities.

Congressional unionization is the focus of a House Administration Committee hearing this Wednesday. At the hearing, the committee is likely to consider H.Res.915, which would allow for House staff to unionize. This past week, the OCWR Board endorsed unionization in a letter that said: “The Board has conducted a thorough review and now unanimously endorses the regulations adopted by the 1996 Board and urges Congress to approve these regulations.” Per our spreadsheet, there are 152 co-sponsors of the measure and another 9 Democrats who issued a statement in support of unionization. The Congressional Workers Union has called for swift passage of the measure. For more, see our resources on unionization, Roll Call’s latest on why backers view the resolution as necessary, and LatinoRebels on the Dems who support unions, just (apparently) not in their own offices.

Curious about your rights under the CAA? The OCWR just launched quarterly training webinars to inform staff of their “rights and responsibilities” under the CAA, “including the protections against harassment, discrimination, intimidation, and reprisal.”

Capitol Security (1). A Republican-led coalition of Members of the House called for the House to be “reopened” to tourists in a letter to House SAA Walker last month, which seems unwise to us especially as the letter doesn’t address whether they would support a mask requirement. Meanwhile, BGov is suggesting some industry lobbyists are ramping-up fly-in days and are finding alternatives to meetings in the Capitol complex.

Capitol Security (2). Last week we covered GAO’s report on the Capitol Police, entitled “The Capitol Police Need Clearer Emergency Procedures and a Comprehensive Security Risk Assessment Process,” which should be raising alarms everywhere. With the upcoming SOTU and the arrival of a convoy of truckers protesting Covid restrictions, the National Guard authorized up to 700 members to assist local law enforcement if necessary.

Save the date: if you’re interested in public access to legislative information (and who isn’t?), the next Bulk Data Task Force meeting has been set for March 10th. The meeting is open to the public and to congressional stakeholders. RSVP here; agenda will be posted here.

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First Branch Forecast for February 22, 2022: The twos

TOP LINE

Happy recess. Last week the Senate managed to pass a continuing resolution to fund the government through March 11. Apparently appropriators have reached an agreement on the top line numbers for the appropriations subcommittees, but we don’t know what they are, only the reactions of a few subcommittee chairs. We’re still waiting on the Leg branch number. Get ready for the State of the Union, set for March 1st.

Go to work. Senate Republicans are stonewalling nominees by not showing up to committee proceedings. The arcane and insane Senate rules are understood to require a majority of members to be physically present for a committee to report out a matter — something we warned about as a booby-trap for Senate continuity in the event of an emergency — and the absence of a majority allows for a point of order on the floor, creating yet another veto point for the minority. (When the shoe was on the other foot, committees ignored their own rules requiring minority members to be present.) There is an irony between the mantra of many House Republicans, who say that the House is not working if it’s not in person, and Senate Republicans, who won’t show up (in person) to allow work to be done on the committees. For those with long memories, members refusing to say they were present was an issue in the House in the 19th century that led to an important Supreme Court decision with the hilarious name of United States v. Ballin. (Summary here.)

Three notable hearings took place last week: House Admin’s on the IG’s oversight of the Capitol Police’s handling of January 6th (where I testified), ModCom’s on modernizing district offices; and the Budget committee on abolishing the (superfluous and counterproductive) debt limit. We cover the House Admin and ModCom hearings below; BGOV ($) has a good summary of the Budget hearing; we point you to the majority’s explainer and report on the topic.

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First Branch Forecast for January 3, 2022: Trump Insurrection Redux

January’s 6th’s anniversary is this Thursday and so far no one of significance has been held accountable for the Trump insurrection, Republicans blocked a 9/11 style commission, the Select Committee will turn into a pumpkin at the end of the year (as will any contempt prosecutions, should we get that far), and the media still is talking about “partisan divides.” Trump will counterprogram the commemoration, likely to repeat the big lies that deny his election loss, assert the sacking of the Capitol was a peaceful protest led by good people, and falsely claim election fraud (as a basis to rig the elections going forward) — all of which we can expect to see winked at by congressional leadership and amplified by the press. The far right will use the attention to portray themselves as the victims — they (ironically) like comparing themselves to Jewish victims of the Holocaust — and will use their “victimhood” as a basis for further violent actions. Regarding the select committee, intended as an accountability mechanism: “Our legacy piece and final product will be the select committee’s report,” with an interim report expected this summer. That’ll show ‘em. Can we at least stop calling it “January 6th” and use a more accurate descriptor, like the “Trump insurrection?” We appear to be at the end game for efforts to arrest our democratic decline — a draw is tantamount to a loss.

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

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 order— sans 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 Congress.gov, but apparently happening: a Thursday House Admin hearing on the Smithsonian. There’s also a ton of nomination proceedings.

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First Branch Forecast: Police, PODA, and the Courts 12/06/2021

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

THE TOP LINE

This week: the Senate is in today; the House is in on Tuesday. Congress cleared a CR that funds the government through February 18th so this week expect a debt limit vote, NDAA consideration, and likely the Protecting our Democracy Act (PODA). Watch as the House’s suspension list becomes ridiculously long. In committee, Senate Rules will look at the Capitol Police on Tuesday; House Rules will consider which of the 57 amendments to allow for the Protecting Our Democracy Act on Tuesday; Senate Judiciary will mark up a bill modernizing PACER on Thursday. ICYMI, the 2022 House Calendar is out.

A cranky note: appropriations are how Congress dictates priorities, so the ongoing use of CRs and the threat of a long-term CR is no less than an abdication of the responsibility to govern and an undermining of congressional prerogatives. It’s not the “Trump” or “Biden” spending bill, but Congress’s.

Capitol Police. In advance of Tuesday’s USCP oversight hearing, today we are releasing model public records request regulations (announcement) (regs). We got tired of waiting for the Capitol Police to implement Congress’s instructions to create a FOIA-like process — the agency is notoriously opaque — so our resident experts on FOIA and Congress spent the last few months drafting model regulations to (1) show that it’s possible and (2) create a standard to judge the USCP should they act. Perhaps it will liven up Tuesday’s hearing with the USCP IG.

Succession. It’s no secret there will be many changes in party and committee leadership in the 118th Congress and that jockeying is happening now. We are intrigued by the American Prospect’s deep dive into Hakeem Jeffries record and leadership style. On the Republican side, an opinion column from a senior fellow at a conservative think tank asks the question of whether McCarthy is suited to be Speaker. There’s also some drama around Elise Stefanik. For our part, we’re still wondering whether Rep. Jeffries will release the rules for the House Dem Policy and Steering Committee and Sen. Schumer will release the Senate Democratic Party Caucus rules.

Also: Our long-awaited recap of the 2021 Library of Congress virtual public forum on public access to legislative information is now available. (The Library has not committed to holding additional conversations with the public; the prior ones had to be requested by Appropriators). And see a new Twitter bot that tracks Leg branch procurements. The bot is how we know, for example, the Capitol Police are ordering 281 units of body armor.

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First Branch Forecast: Democratic slippage, court accountability, and the mother of parliaments 11/29/2021

THE TOP LINE

Welcome back. The Senate is in today; the House is in on Tuesday, with the Courthouse Ethics and Transparency Act on suspension and further appropriations bills possible. We’re curious about House Oversight’s Wednesday hearing into the Future of Federal Work and Thursday’s Senate Judiciary markup that includes a judicial security bill with some concerning language and a much less fraught bill to modernize PACER.

Omicron, which you may know as a planet from Futurama but is now the COVID variant du jour, is the latest (awful) reminder of the necessity of the House and Senate being capable of working fully remotely. Yes, we’ve been making this point for a while. While we’ve seen some progress, proxy voting on the House floor is an imperfect solution and the Senate still has not grappled with the shifts in power that could occur if a single member becomes ill and cannot attend in person. We continue to track all this on ContinuityofCongress.org. On that final point, isn’t it time for the House and Senate to impose both mask and vaccination requirements for persons who work in-person?

ICYMI, there was big news last week on providing clearances for Senate staff. The House Diversity Office released two important new reports on House compensation & benefits and demographics and diversity. Rep. Gosar was censured and removed from his committees for tweeting a video he made depicting his murder of a House colleague, which he promptly RT’d after his censure. And serial fabulist Rep. Boebert is bucking for attention after she made up a story that suggested a House colleague is a suicide bomber because she is a Muslim.

We’re not sure what to do. There’s a constant stream of unacceptable and bizarre behavior from certain members of Congress that is both an effort to move the Overton Window of what’s normal and an effort to fundraise. We don’t want to ignore it, and thus normalize it, nor do we want to draw attention out of fear of the Streisand Effect. For example, what do you do with Rep. Greene’s introduction of a resolution to give Kyle Rittenhouse a Congressional Gold Medal? Denver’s Channel 9 News has it right.

Democratic slippage. For the first time, the US was listed as a “backsliding democracy” in the Institute for Democracy and Electoral Assistance’s 2020 global democracy report, described as falling victim to authoritarian tendencies. “A historic turning point came in 2020–2021 when former President Donald Trump questioned the legitimacy of the 2020 election results in the United States. Baseless allegations of electoral fraud and related disinformation undermined fundamental trust in the electoral process, which culminated in the storming of the US Capitol building in January 2021.”

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First Branch Forecast: Clearances, Compensation, and Censure 11/22/2021

Welcome‌ ‌to‌ the Thanksgiving-week First‌ ‌Branch‌ ‌Forecast,‌ ‌a quick — abridged, even — ‌look‌ at ‌the‌ ‌Legislative‌ ‌branch‌ ‌and‌ government ‌transparency.‌ ‌Tell ‌your‌ ‌friends‌ ‌to‌ subscribe.

THE TOP (AND ONLY) LINE

OOO. We know most people are out, so here’s just the highlights — we’ll have a full report next week.

Clearances. Each senator can now designate one personal office aide as eligible to apply for a TS/SCI clearance and is no longer restricted to a mere TS level, a practice that had allowed the Executive branch to stonewall the nearly 2/3s of senators that did not have staffers cleared for highly classified matters. The modernization effort was led by Sen. Chris Murphy. The House, however, has not changed its policies that prevent staff from providing members the individualized support they need on highly classified matters even though there have been multiple letters on the topic and leadership is not similarly constrained. (Even members of HPSCI are not afforded personal staff with a TS/SCI clearance, unlike their SSCI counterparts who for years have been provided additional staffers that can obtain TS/SCI clearances.)

Staff pay, retention, and diversity. The House Office of Diversity and Inclusion released its 2021 study on staff pay and diversity. It’s a BFD — something we’ve wanted for years — and you should read Roll Call’s early reporting, which focuses on the significant pay decreases in personal offices. (If you want more, we’ve got an in-depth report on this topic.) It’s our understanding the Senate completed its staff pay study earlier this year, but we haven’t seen it. If you have a copy, email us at [email protected].

Censure. Rep. Gosar was censured by the House and removed from his committees for tweeting a video showing him murdering a colleague; some colleagues defended him as apologizing (he didn’t) and not having bad intentions (really?). Astonishingly, party leadership did not punish him, only two fellow partisans supported his censure, and it was suggested that unnamed Democratic members will be subject to the same punishment for unnamed offenses that have not happened yet. One is reminded of Alice in Wonderland: “Sentence first—verdict afterwards.” After the censure, Rep. Gosar retweeted the video.

House Sergeant at Arms. The Defense Department IG says the new House Sergeant at Arms, when he was the head of the DC National Guard, did not act at 4:35 when authorized to deploy on Jan. 6th and had to be told a second time, raising concerns about the SAA’s accounting of events. House SAA William Walker, who also serves as a member of the U.S. Capitol Police Board, has called the report false and asked it be retracted.

The Capitol Police are not getting real scrutiny from the Jan 6th commission according to an anonymous whistleblower. We have ideas for fixes.

CLASSIFIEDS

TechCongress is accepting applications for its 2022 Congressional Innovation Scholars program, an “early-career pipeline” for technologists interested in shaping tech policy. Apply here.

ModCom. The House Select Committee on the Modernization of Congress is hiring a clerk. Apply here.

Applications for College to Congress’ funded Capitol internship program for low-income college students open December 1st. More info here.

ODDS AND ENDS

You might be wondering why we didn’t mention the House’s passage of Build Back Better, Rep. McCarthy’s magic minute, the NDAA, the debt ceiling, and other assorted matters. What else could we say that hasn’t already been said at length? Have a great Thanksgiving. And go get your COVID booster.