Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Subscribe here.

THE TOP LINE

The House will be back briefly on Tuesday to vote to raise the debt ceiling. With the quick turn-around during a committee work week, how many members will vote by proxy? Honestly, voting remotely seems appropriate here, although members should have their full powers to intervene on the House floor (i.e., make motions) regardless of whether they’re physically present, which current House rules do not yet provide for. The Senate will be back on October 18th.

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. Panelists include PRAC Chair and DOJ IG Michael Horowitz, Liz Hempowiz of POGO, Chicago IG Joseph Ferguson, and more. Register here.

Transparency lightning talks. If you’re interested in a series of quick pitches for making government more open and accountable, the Advisory Committee on Transparency will be hosting a series of short presentations that you can watch from the comfort of your desk. The all-star list of presenters includes Walter Shaub of POGO, Corinna Turbes of the Data Coalition, Erica Newland of Protect Democracy, Freddy Martinez of Open The Government, and more. The event is set for 11:00 am ET on November 8th. RSVP here.

Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Subscribe here.

Congress passed the stopgap funding bill on September 30, temporarily averting a government shutdown. While in theory there will be no House floor votes until the 19th and the next two weeks are committee work weeks, with the debt ceiling default almost upon us, the House will be back sooner than that. Also in theory, the Senate is in this week but will be out October 11-15. How will negotiations go on all this? For the Democrats, a lot depends on how it is framed in the media, and it seems pundits are giving Republicans a pass.

The end of the fiscal year also means that agency actions pursuant to FY 2021 appropriations report language (unless otherwise specified) are past due. Would it surprise you that we have a list of all items required and requested in the FY 2021 Legislative branch appropriations bill? (Among other things, there’s a lot of activity we have yet to see from the U.S. Capitol Police.)

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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THE TOP LINE

The upcoming 10 days are going to be crazy, but the tick-tock is adequately covered by other newsletters so you don’t need it from us. Here is this week’s House floor calendar, the Senate floor schedule, the combined committee calendar, and the House Rules Committee Monday meeting announcement that includes links to the draft CR and NDAA. (See this great NDAA explainer in advance of what will likely be a fun round of floor amendments.) Looking ahead, Senate Republicans say they will vote to allow a debt default, a cynical position staked out by Sen. McConnell, who “will vote for a policy outcome he says he doesn’t want to occur.”

You might think I’m being unfair in my criticism, but the Washington Post profiled former AP journalist and appropriations expert Andrew Taylor, who has quit covering Congress and the journalism business entirely and is now criticizing Republican leadership, including Sen. McConnell on the very topic of the debt ceiling. Generally speaking, he’s described their “approach to their jobs is too often bad-faith bullshit,” and says the rules of objective journalism “can often obscure the reality of what’s really going on.”

The Senate Appropriations Committee was set to have subcommittee mark-ups this week but BGOV ($) says they were postponed because of Republican opposition, although BGOV is unclear on whether Republicans were going to vote against the bills in the evenly-divided committee or boycott the proceedings. This raises a number of governance questions, and as you know, we are focused closely on the ability of the Legislative branch to do its job, including funding for its operations.

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THE TOP LINE

The fence is (almost certainly) coming back around the Capitol building and Supreme Court in anticipation of an event featuring Trump insurrectionists and their allies. Representatives of white supremacist groups who were promoting the “rally,” such as the Proud Boys and the Oath Keepers, now say their membership will not show up because “it’s a government trap,” but we shall see.

Keeping Congress safe includes maintaining a safe working environment. Pres. Biden is requiring COVID shots for Executive branch employees. Will the House and Senate do the same? They should, especially as some legislators and staff are a public health danger: Rep. Marjorie Taylor Greene will be fined for failing to wear a mask on the House floor — this is the third fine for Rep. Greene — and half of House Republicans in July would not say whether they’ve gotten the shot. I don’t know whether Congress can require legislators to get the COVID shot, but likely it could impose such a requirement on staff.

Toxic congressional bosses, whether literal or metaphorical, often leave staff with little recourse when things predictably go wrong. Why Congress does not have a HR department is the subject of a Business Insider article that explains that, for those at the receiving end of bad behavior, “the odds [are] stacked in favor of members and superiors and against rank-and-file employees.” (Unions are one way employees traditionally respond to this kind of environment, but that requires the House or Senate to act.)

Staff want to leave Capitol Hill and who can blame them? Addressing quality of life issues is essential and the starting point has to be pay. Speaker Pelosi increased the salary cap for top aides last month, but retaining staffers — especially in the face of the private sector’s strategic head-hunting — also means increasing salaries for everyone. The House passed a significant restoration of funding for the Legislative branch at the behest of Reps. Hoyer, AOC, and half the Democratic caucus, but it cannot go into effect without the Senate’s assent.

Pay alone is not enough. A workable HR department, student loan repayment help, support for continuing education, assistance with child care, a safe workplace, flexible leave policies, and much more is necessary in a workplace where pay will never be competitive with the private sector. Telework policies also make sense, as does remote work … including for members who because of emergencies or other exigent circumstances cannot or should not attend in person. Of course, House Minority Leader McCarthy is petitioning the Supreme Court to end proxy voting after losing in lower courts. We prefer truly remote proceedings to proxy voting for a number of reasons, but we cannot agree with the Leader’s logic. Should Rep. Morelle, who announced on Sunday that he has COVID, be forced to choose between returning to the chamber and infecting his colleagues and forgoing the opportunity to cast a vote on behalf of his constituents?

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THE TOP LINE

Yesterday was Labor Day, which is as good a reason as any to ask why the House and Senate do not allow staff for elected officials to unionize? (They do in Ohio and overseas.) Labor laws are intended to give employees a voice, and yet congressional staff work in an environment with fewer labor protections than those afforded to other federal and private sector workers. In the mid-90s, Republicans enacted legislation that gave congressional support staff the right to unionize — which I recount here — and the House and Senate set up a process that, much to their chagrin, resulted in regulations allowing political staff to unionize as well. But they wrote the law in such a way as to require a House or Senate resolution to put those regulations into effect, at least as far as we can tell. So why hasn’t either chamber acted?

On the topic of workplace safety, congressional security forces are considering bringing back the fence on an interim basis in anticipation of a rally by Trump insurrectionists at the Capitol on September 18th; rising threats by racial extremists and anti-government extremists who seek to exploit COVID as a rationale for terrorism; and a packed calendar of religious holidays, event anniversaries, and a high-profile legislative calendar. The fence is a band-aid for what’s actually necessary: wholesale reforms of the Capitol Police and security on Capitol hill.

Two new Capitol Police IG reports, which contain the IG’s executive summaries and conclusions but none of the findings or narratives, were publicly released by the Committee on House Administration last week. The first report focused on “deficiencies with the Department’s Command and Coordination Bureau.” The second report addressed “deficiencies with the Department’s Hazardous Incident Response Division (HIRD) and Canine Unit (K-9 or Unit).” Roll Call summarized the findings. It’s the same story as the other reports: the Capitol Police leadership failed; there is inadequate training from the top to bottom, inadequate coordination, and inadequate guidance.

Congressional Technology. The Library of Congress held its second annual virtual forum on legislative data services last week. It was well attended, covered a lot of ground, and we will publish a write-up soon. We congratulate the Library on a successful event. (Video does not yet appear to be publicly available.) One big take-away: while the conversation was productive and included a well-received exchange of ideas and information, the Library — which was required by Appropriators to host forums in 2020 and 2021 — would not commit to holding them in the future. It may require Congress to once again ask the Library to meet with the public; the Library previously has made clear it will not share its evaluation of requests regarding legislative data services (e.g., Congress.gov) with the public without being directed to do so by Congress.

• Many of the substantive announcements regarding Library activities already were covered at the July Bulk Data Task Force meeting, which we wrote about here. However, there was some new information, which we will cover in a future article. While the panelists did a good job with their presentations, as usual, the best part was the live Q&A with the public.

• Public requests. The Policy Agendas project, a consortium of political scientists that “assembles and codes information on the policy processes of governments from around the world,” organized a letter signed by 18 political scientists to Dr. Hayden in advance of the virtual forum “to advocate for greater publication of documents and data by the Library of Congress on Congress.gov.” Among their requests, the Library should: make historic bill text available online; review and publish CRS reports from the CRSX archive; collect Congressionally mandated Executive branch agency reports; publish all hearing information and committee reports from 1970 forwards; and adopt the Policy Agenda’s project coding system. They also endorsed our letter from 2020 that contained recommendations on how the Library could improve its legislative information sources. The Library was taking feedback through this webform, although it is unclear whether they will continue to do so.

Tracking legislative memes. One idea raised several times at the forum, and which we have been working on for more than a year, is tracking legislative ideas across multiple bills in the same Congress and over multiple Congresses. We have a new tool, BillMap, that allows you to track these legislative memes — we’re still working on it and feedback is welcome. The task of identifying legislation related to a particular bill is more complex than most people would imagine. You can’t simply brute force the process by mechanically comparing legislative text, as much more finesse and understanding of the legislative process is required. One of our developers wrote about how we track legislative memes and assess when bills may be related to one another. We have ideas for additional methods and refinements.

Restoring funding for GAO to address the reconciliation shortfall? The conservative Lincoln Network just released an excellent report that explores how GAO saves taxpayers money. GAO has said repeatedly that taxpayers save at least $100 for every $1 invested in GAO, and yet over the decades Congress has been defunding GAO. If we restored GAO to its 1992 funding level (calculated as a percentage of federal spending), an increase of $400 million or so, that would result in more than $40 billion in savings. I’m not a budget person, but I do wonder whether there’s a way to increase GAO’s funding and use it as a pay-for in the budget reconciliation package?

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THE TOP LINE

They’re back? The House of Representatives returns for two days to pass a Budget resolution, a voting rights bill, and 12 suspension bills (including, we hope, the Congressional Budget Justification Transparency Act.) The Senate does not return until September 13th. A classified briefing is set for House Members on Tuesday regarding Afghanistan. Except for a House Rules Committee hearing, we don’t see any meetings scheduled.

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.

OVERSIGHT OF CONGRESS

Public access to congressional records is the focus of two lawsuits filed by National Security Counselors on behalf of journalist Shawn Musgrave. The litigation is based upon the legal doctrine known as “a common law right of access” — that individuals have a right to inspect and copy public documents. We have long been frustrated by Congress’s non-disclosure of records it has required itself to make publicly available, although this litigation focuses on records that likely should be publicly available but may not be required to be available. For context, NARA’s FOIA Advisory Committee recently recommended extending FOIA or establishing a FOIA-like process to elements of the Legislative and Judicial branches. A few elements of the Legislative branch already have FOIA-like processes.

The two cases are Musgrave v. Manger and Musgrave v. Warner. You can read the court orders in the cases not because the federal courts make them available to you for free — they don’t and the courts are resisting open access efforts — but because a nonprofit organization created an online tool called RECAP (PACER spelled backwards) to crowdsource public access. But I digress.

Musgrave v. Manger contains four requests in one. The first request concerns U.S. Capitol Police surveillance footage from January 6th. The second request focuses on transparency at the U.S. Capitol Police, requesting records concerning their implementation of Appropriator-requested transparency measures to (a) create a FOIA-like process for the public to request USCP records, and (b) review and identify USCP Inspector General reports that could be made publicly available. The third request goes to the House and Senate Sergeants at Arms and requests the release of their Security Policy Manuals, which governs the handling of national security information. The final request is for a House SAA-prepared report concerning the levels of clearances held by Congressional staff. (An analogous document is released by the IC.)

• According to the pleadings: (1) The Capitol Police are claiming that surveillance footage from January 6th used in support of criminal prosecutions are not public records. (2a) The Capitol Police appear to be unaware of the Appropriator-requested FOIA-like transparency process they are requested to implement and (2b) the Capitol Police IG did not respond to the request for its analysis of reports it could release. (3) The House’s General Counsel has (erroneously, in my view) asserted that its Security Manual could only be released by a majority vote of the full House and that the Manual is not a record; the Senate Office of Legal Counsel says the common law does not apply to Senate records and, even if it did, “significant national security interests” implicated by the release would outweigh disclosure. (4) The House’s General Counsel asserts the request should be made to the Appropriations Committee — which seems in tension with their assertion concerning their Security Manual — and that the report is protected by the Speech or Debate Clause of the Constitution.

Musgrave v. Warner concerns the non-disclosure of the Senate Intelligence Committee’s torture report, which is 6,700 pages long and evaluates in significant detail the CIA’s “detention and interrogation” program, including many “inaccuracies” of claims made by the CIA and the agency’s efforts to mislead the public and the committee. Naturally, the Intelligence Community fought against the release of the damning document and only the Executive Summary was released in 2014 after an arduous declassification process that Senator Feinstein said included the CIA spying on committee staff. The report eventually will become subject to a declassification request in 2029 as part of President Obama’s records after significant shenanigans by Sen. Burr and the Intelligence Community that include Executive branch officials refusing to read the report and destroying the copies they held. The purpose of the report was for the Executive branch to learn lessons from its misbehavior, an effort that continues to be thwarted. The litigation asks for a copy of the report.

What does all this mean? This litigation appears to have two clever purposes. First, it is a good probe of whether courts would recognize a common law right of access to Legislative branch records, what such a right might encompass, and how it would work. Second, all of these records should be publicly available (with redactions in some instances) and this could be a good way to prod the House, Senate, and Capitol Police to address long standing deficiencies. In my view, the further we move from legislative deliberations — the work of member offices and committees — the stronger the arguments become in favor of disclosure of Congressional (and Judicial) records. There’s no good reason to treat the Capitol Police differently from the FBI or Secret Service. Will the courts get involved? IDK. Is it a good thing? IDK, but Congress could preempt this litigation by releasing the records and putting in place reasonable disclosure policies that would deprive journalists of such favorable factual circumstances.

Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. No, it’s not Monday, but with the Congress away, it seemed best to send this lest we get inundated with out-of-office responses. We’re planning on taking a little break with Congress out unless something major happens… or we get bored. Subscribe here.

THE TOP LINE

The pay ceiling for senior House staff has been raised. Speaker Pelosi issued a pay order that increases the maximum potential salaries for many House staff to $199,300, which just happens to be the equivalent of an SES Level II. Staff salaries had been kept below pay levels for rank-and-file members, which themselves have been frozen at $174,000 since 2009 and are down the equivalent of $75k since 1992 (in constant dollars). By decoupling staff and member pay, it becomes possible to address long standing pleas from support offices and members alike that it is increasingly difficult to retain senior staff because of increasing costs of living and the tremendous opportunities to earn more elsewhere. This is a retention issue for support office computer programmers and skilled legislative drafters as well as staff directors and chiefs of staff — and an issue of equity with their Executive branch equivalents.

For non-senior staff, don’t feel left out: the House included in its Legislative Branch Appropriations Bill a 13% overall increase in funding, including funding to increase salaries for personal, committee, and leadership staff by 21%, which would return them to 2010 levels (adjusted for inflation). Thank Steny Hoyer; Rep. Ocasio-Cortez and the 110 Dems who signed her letter; every member of the Select Committee on the Modernization of Congress; Reps. Ryan, Lofgren, and DeLauro; and a bunch of civil society groups who have been tirelessly pushing this issue. This isn’t a zero sum game, btw: it’s possible to pay all staff significantly more and to increase the top line. The big question is whether the Senate agrees to the House’s proposed funding levels for the first branch of government.

This is one piece of a larger puzzle to strengthen and diversify Congress: paid internships, an Office of Diversity and Inclusion, a central HR hub, proposals to unionize political staff and create pay floors and pay scales, and so on. You can find one of Demand Progress’s proposals to increase the pay staff cap here; and we would be remiss if we did not mention Rep. Graves’ amendment to the Leg Branch Appropriations bill, which was not ruled in order, and would have increased the staff pay cap.

What’s a pay order? Uhh, I don’t really want to talk about it right now, but the Speaker’s authority to do this in the House is set out in statute, although finding the actual orders can be challenging. As an aside, some members of Congress earn more than the base rate: according to CRS, the Speaker earns $223,500 and the President Pro Tempore and Leaders earn $193,000.

Caveats. I should add that some Legislative branch staff — according to CRS, anyway — already earn more than rank-and-file members of Congress, such as the Comptroller General, the Librarian of Congress, and so on. I can’t tell what they are actually paid, however, because there is a pay free for certain senior officials — political appointees? — which includes some members of the Legislative branch who are appointed by the president. (Why they are appointed by the president is another issue entirely.) In addition, this year’s Leg Branch Appropriations Bill sets the AOC and USCP Chief’s salaries at Executive Schedule II, leaving the potentially anomalous result that some Legislative branch agency chiefs will be subject to the freeze (and thus paid less) while others would not. It also could create anomalous pay levels for politicals versus non-politicals. You know, this would be a great question for CRS.

Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Subscribe here. A preview of coming distractions: if Congress takes a break, we may take one, too. Wouldn’t that be nice.

THE TOP LINE

Members of Congress can force policy change without moving a bill. Rep. Bush made that clear last week in a successful effort to extend the eviction moratorium. There were a lot of unusual circumstances, and we are highlighting her efforts only to make the point that moving the nature of the debate — which can’t be measured by counting up co-sponsored bills — can be just as meaningful as getting a bill enacted. In this case, she prompted Pres. Biden to act, which also highlights how much responsibility Congress has ceded to the Executive branch.

It’s critical to avoid the trap that a powerful Congress necessitates in-person Congress. In last week’s Slow Build newsletter, Nancy Scola connects Rep. Bush’s success with an argument around Congress operating in-person. We note (as Scola does) that the House was out. In our opinion, what helped Rep. Bush was that the Senate was in — and not much else was happening — which prompted reporters stuck on the Hill to tell other stories, i.e. Bush’s. In other words, it was the ability to get attention. In a fully remote House, Rep. Bush would have had legislative options available to raise the matter on the floor instead of having to sleep upright on the Capitol steps.

America unmasked too quickly — or failed to mask at all — that much is clear. The House will extend its emergency proxy voting stop-gap measures through the fall and potentially through the end of the year. 20 House Members declared “Congress should be considering a vaccine requirement for Members and staff of the U.S. Capitol complex or, at minimum, twice per week testing for those who are unable to verify positive vaccination status,” an issue which Speaker Pelosi dodged. We are unsure how a mandate could be enforced against Members, but it is a reasonable step; there’s an open question about whether the Senate would agree to extending a requirement to support agencies. Universal vaccination is the sine qua non of in-person deliberations — alongside mandatory mask wearing — while COVID infections increase, and may be insufficient should new highly-transmissible variants be vaccine resistant. Our own Taylor Swift, who has testified before Congress on its continuity, has some tough-love advise for the Senate.

House Admin’s hearing on renovating the Cannon House Office Building, which we detail below, prompts us to consider: What does a modern congressional office building look like? The changing nature of work demands accessible, safe facilities, ones that can accomodate our hybrid remote/IRL activities.

The debt ceiling still looms. Ugh.

The Library of Congress will host a public forum on Congress.gov on September 2nd from 1 to 4pm ET. You can read what we wrote about the last one here — come with your recommendations on what you’d like to see them take on.