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

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.

Continue reading “Forecast for August 23, 2021” →

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.

Continue reading “Special Forecast for August 13, 2021” →

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.

Continue reading “Forecast for August 9, 2021” →

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

THE TOP LINE

Congress enacted the Security supplemental with a 98-0 vote in the Senate, a 416-11 vote in the House, and a signature from the President. Six House Dems voted no. (The amended bill text is here.)The $2.1 billion bill includes significant non-congressionally related funds, such as $1.2 billion to help Afghan nationals resettle and to provide aid to neighboring countries; $521 million to reimburse the national guard for its deployment to the U.S. Capitol; $300 million to harden the Capitol Complex; $70 million for the Capitol Police for overtime, bonuses, new equipment, and training; and $42 million for employees and contractors who otherwise would have been laid off during the pandemic.

Leg Branch Approps passed the House on Wednesday, which included a top line funding increase of 13.8% and a lot of good stuff in the report language. All the appropriations bills passed the House except Defense, Homeland Security, and CJS. CJS was set for a floor but was delayed because police unions objected to tying grants to taking steps to end chokeholds, end ‘no-knock’ warrants, eliminate racial profiling, and eliminate sexual contact between officers and people in their custody.” This appears to also have an election-related dimension.

Senate Appropriations start this week, with the chamber aiming to hold markups on Agriculture, Energy and Water, and MilCon.

The Access to Congressionally Mandated Reports Act passed the House and is now up for Senate consideration; the Congressional Budget Justification Transparency Act was brought up on the House floor but was delayed by Rep. Greene, who requested a roll call vote — part of an effort this past week to delay legislative proceedings. These bills embody significant wins for Congressional transparency. Democrats and Republicans praised the bipartisan work that went into the CBJTA prior to the objection; and had similar praise for ACMRA prior to its passage.

The House Modernization Committee favorably reported 20 recommendations — a literal score — that aim to strengthen staff benefits and diversity, provide more opportunities for interns and fellows, and increase Capitol Hill accessibility. More on this below.

Masks are back at the Capitol after the Office of the Attending Physician required House members and encouraged senators to wear masks on the floor and in the hallways. At the White House, staff will now be required to wear masks indoors regardless of vaccination status. Winter is coming.

Continue reading “Forecast for August 2, 2021” →

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

THE TOP LINE

Former Maryland police chief Tom Manger was sworn in as the US Capitol Police Chief. The Capitol Police are in disarray, with a dysfunctional and inadequate oversight structure, a poorly designed administrative structure, a well-founded absence of confidence in its senior leaders, a funding cliff that prompted the USCP to hold off on purchasing protective equipment like ballistic helmets, and have been pursuing the wrong mission — policing instead of protection — in an accountability-free environment that snubs committee oversight, the press, and the public and has left many police officers suffering with their trauma.

• A torrent of new money will eventually cascade on the well-heeled but financially depleted agency, just as it always has. The Chief spoke to Politico in a short interview — unusual in of itself because ex-acting police chief Pittman did not view it as part of the USCP mission to talk to the press — where he expressed a non-committal willingness to hold briefings and a desire for Pittman, who is reviled by the rank and file, to stay on his leadership team.

Meanwhile, the Select Committee to Investigate the January 6th Attack on the Capitol, which I guess we’re not supposed to call the Trump Insurrection Committee, will hold its first hearing on Tuesday. They don’t seem to yet have a website and the official meeting announcement has little info, but Reuters has their statement that the hearing will include testimony from USCP & MPD officers, which we found mirrored on Speaker Pelosi’s website. I won’t #bothsides our analysis, which is that Minority Leader McCarthy is just as opposed to allowing this committee to go forward as he was opposed to the commission — and for the same base political reasons — which is why he suggested two uncongenial members in the hopes of blowing it up when Speaker Pelosi declined to concur with the appointments. Minority Leader McCarthy gets to make his political point, I guess, but step-by-step he has moved into very dangerous territory for our democracy. With the appointment of Reps. Cheney and Rep. Kinzinger, he will lose the “bipartisan” talking point that has always been a reductivist and unhelpful way to talk about a pluralist political system.

COVID. Some Republican leaders are stepping up to encourage their members and staff to get COVID vaccines and even — gasp — to wear masks. Can you believe Minority Leader McCarthy didn’t get a first COVID shot until last week? It’s too soon to consider ending remote deliberations when we hear there are long lines and extended hours to accommodate staff (and members) who have yet to get the vaccine. Even if you wish to make a rhetorical point about this being a personal choice, you still have to exercise personal responsibility in actually getting one. Scientific modeling suggests a steep rise in COVID deaths, peaking in the middle of October, at 60,000 cases and 850 deaths per day under the most likely scenario, with a worst case for the most likely scenario of 240,000 cases and 4,000 deaths per day.

The House will consider up to ten appropriations bills next week, including this minibus, State & Foreign ops, and of more interest to us: Leg branch approps and CJS. More below on the 37 Leg branch floor amendments. The minibus will be considered by the Rules committee on Monday, and the rest on Tuesday.

• Making matters more complicated is that the Senate Armed Services Committee decided that the House’s proposed increase to defense spending, which constitutes nearly half of the $1.5 trillion in total discretionary spending for everything, is not enough. They proposed to increase overall defense spending to $777.9 billion, including $740 billion for DOD, which is a $25 billion boost for the department over Biden’s already generous proposal which is on top of decades of generous funding. This places Armed Services numbers way out of line with the top line numbers proposed by Pres. Biden and those approved by House Appropriators. And of course they did it all essentially in secret, so only Lockheed Martin knows the nature of their deliberations. As a useful point of comparison, vaccinating the entire world would cost $50 to $70 billion, and paying for that would contribute mightily to improving global security. And, unlike a lot of Pentagon programs, the vaccine actually works.

The Senate plans to hold markups on FY 2022 Agriculture-FDA, Energy and Water, and Military Construction-VA bills before breaking for the August recess. The rest comes after? And sometime between now and then, the debt limit must be raised or suspended — it expires on August 1st — and Sen. McConnell is urging Republicans to oppose this effort in what some deem hostage-taking, which risks destroying the U.S.’s ability to borrow money on favorable terms.

In some good news, two of my favorite bills are on suspension in the House this week. The Congressional Budget Justification Transparency Act, S 272, which is the Senate companion to HR 22, would put all agency congressional budget justifications online in a central place so you can actually find them. It will go to the president. And the Access to Congressionally Mandated Reports Act, H.R. 2485, would require all non-confidential legally-required agency reports to Congress be published online at a central website, and also for Congress to maintain a full list of these reports. The House has passed ACMRA many times before, and it enjoys bipartisan support and has been favorably reported by HSGAC several times. But, you know, the Senate….

Several right-of-center organizations and former Republican Members of Congress wrote to Senate Appropriators in support of strengthening Congress and restoring the balance between the executive and legislative branches, favorably citing funding increases included in the House appropriations bill. The letter underscores the need for lawmakers to assert congressional authority, leverage the power of the purse, and pare back excessively broad executive orders. This is a strong conservative case for why we need a strong Congress.

Continue reading “Forecast for July 26, 2021” →

Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. The House and Senate are holding floor votes this week; the House is currently scheduled to go into recess in two weeks and the Senate is scheduled to go into recess in three. We shall see. Subscribe here.

THE TOP LINE

House appropriators have favorably reported all twelve appropriations bills and are looking to move seven of those bills as a spending package during the week of July 26th — the last week the House is scheduled to be in before a month-long recess and two months before the fiscal year ends. Majority Leader Hoyer says the House may consider additional appropriations bills that week. Not in the package: the Legislative Branch, Commerce-Justice-Science, Defense, Homeland Security, and State-Foreign Ops. (What about the Senate???)

Transparency in appropriations bills. In the recently reported House CJS and Defense Appropriations bills are several measures to cheer fans of government accountability. The CJS appropriations committee report under the leadership of Rep. Cartwright once again included strong language encouraging the Justice Department’s Office of Legal Counsel to proactively release final OLC legal opinions. Here’s why final OLC opinions should be available to Congress and the public. And the Defense Appropriations committee report included language urging the Director of National Intelligence to release all significant opinions by the Foreign Intelligence Surveillance Court, not just those from 2015 forward. Here is why FISC opinion should be available to Congress and the public. This comes on top of significant government strengthening and transparency measures in committee reports issued by the Legislative Branch (under Rep. Ryan) and FSGG appropriations (under Rep. Quigley).

The Bulk Data Task Force, the Legislative branch’s working group of internal and external stakeholders focused on the use of technology to cultivate collaboration, foster data standardization, and increase transparency, held its quarterly meeting this past week. You can watch the video or click through the presentations here, but I do promise we will have a comprehensive write-up because a lot of material was covered. Among the news: Deputy Clerk Bob Reeves, who has capably led the task force since its creation in 2012, will retire soon from the House of Representatives; he announced Kirsten Gullickson will be his successor. Everyone has tremendous respect and affection for Mr. Reeves and we will miss him. I would struggle to name an entity within the legislative branch that has been more productive and effective.

Conversations. RSVP for an excellent panel discussion set for this Tuesday entitled “Keeping the Free Press Free.” And ICYMI, watch this panel discussion, hosted by ProLegis, that focused on congressional staff pay and benefits and featured Rep. Kilmer and a motley crew of congressional experts.

Continue reading “Forecast for July 19, 2021” →

Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. This week’s newsletter is shorter than most; enjoy it while it lasts. You can subscribe here. The Senate is in; it’s a committee work week for the House.

THE TOP LINE

Follow the money. House Appropriators released text for the four remaining appropriations bills: T-HUD; CJS; Energy & Water; and Labor-HHS. I have a twitter thread dissecting where the money (and increases) go; if enacted, 55% of all discretionary spending would go to Defense+MilCon-VA. Of the $120 Billion in increased funding levels, 46% would go to Labor-HHS, 18% to Defense+MilCon-VA, and the remaining nine committees receive the dregs. Subcommittee and full committee mark-ups are scheduled to wrap up this week, and floor votes presumably will follow prior to the August recess— assuming there is a recess. Look at the report language, which is generally released 24-hours before the full committee markup, because that language could survive intact even as the bill text changes as Senate appropriators work their way to 60 votes.

In the Senate, Appropriations Chairman Leahy plans ($) to start markups the last week of July or the first week of August. There is no news about negotiations on top line numbers. Few people expect approps bills to become law before the end of the fiscal year on September 30th — more like the end of the calendar year if enough Senate Republicans are willing to deal.

The days (and nights) will be long. Meanwhile, policymakers suspended the debt limit for two years — until this August 1st — and once it is reinstated the US Treasury will hit the debt limit sometime soonish. The congressional negotiation process to suspend or increase the limit most closely resembles a game of catch with a troop of enraged monkeys that toss live grenades. Not only is it a bad idea, but there’s no reason to play that game to begin with.

Meanwhile, the U.S. Capitol Police will run out of funding in August and need an infusion of funding or it will be forced to furlough employees. The House passed a supplemental spending bill, which didn’t contain much detail and was dismissed by Senate Democrats and Republicans. Senator Leahy has been urging Republicans to negotiate for more than a month. On Friday Senate Republicans finally made a counter-offer, obtained by Politico, which is 1/3 of the funding level House Democrats had proposed. Well, well, well. Here’s what we think should be included in the bill.

The Bulk Data Task Force, a working group of stakeholders inside and outside Congress focused on improving legislative information, will hold its next meeting this Wednesday, July 14th, from 10:00 AM to 12:00 PM. The public, congressional staff from both chambers, support + agency staff, and everyone else is invited to attend and participate. However, you must register to get the email with the link to attend the virtual meeting. RSVP here.

July 21st Webinar on freedom of the press. Next Wednesday, July 21st, our team is hosting a panel discussion focused on the status of the free press in the U.S., concentrating on surveillance of journalists and their sources. Panelists include Jennifer Henrichsen of Yale Law School’s Information Society Project, Kathy Kiely of Missouri University, and Michael De Dora of the Committee to Protect Journalists. It will be moderated by Sean Vitka, Senior Policy Counsel for Demand Progress. RSVP here. (Note the change in date).

Continue reading “Forecast for July 12, 2021” →

Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Subscribe here. We hope you had a wonderful July 4th weekend.

THE TOP LINE

House Appropriations favorably reported six of the twelve spending bills, including a Legislative Branch bill and report that included desperately and long overdue investments in the Legislative Branch, and a Financial Services bill and report with welcome improvements to government transparency. More below.

Top line numbers for the twelve approps subcommittees, totalling $1.5 trillion, were adopted by House Appropriators. Funding is policy, so where will that money go? See below.

The August recess may be a mirage with Congress needing to address the debt ceiling, appropriations for the current fiscal year, the infrastructure/reconciliation bill, and much more (including election protection measures). Republican leaders have many incentives to run out the clock instead of legislate, which would be too bad; will Democratic leaders take advantage of the opportunity to put their agenda in place while they still can?

The Bulk Data Task Force, a working group of stakeholders inside and outside Congress focused on improving legislative information, will hold its next meeting on Wednesday, July 14th from 10:00 AM to 12:00 PM. The public, congressional staff from both chambers, support + agency staff, and everyone else is invited to attend and participate. However, you must register to get the email with the link to attend the virtual meeting. RSVP here.

Webinar on freedom of the press. Next Tuesday, July 13th, our team is hosting a panel discussion focused on the status of the free press in the U.S., concentrating on surveillance of journalists and their sources. Panelists include Jennifer Henrichsen of Yale Law School’s Information Society Project, Kathy Kiely of Missouri University, and Michael De Dora of the Committee to Protect Journalists. It will be moderated by Sean Vitka, Senior Policy Counsel for Demand Progress. RSVP here. If you missed it and as preparation for the event, you should definitely read last week’s testimony from Microsoft’s Tom Burt before the House Judiciary Committee: “But what may be most shocking is just how routine court-mandated secrecy has become when law enforcement targets Americans’ emails, text messages, and other sensitive data stored in the cloud.”

Continue reading “Forecast for July 6, 2021” →