Strengthening Congressional Oversight: A ModCom Hearing

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

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

The Problem

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

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

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

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

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

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

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

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

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

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

Continue reading “First Reactions to Senate Democrats’ Commerce, Justice, Science FY 2022 Appropriations Subcommittee Bill”

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

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

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

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

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

1. Apportionment Transparency

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

2. Federal Government Internships

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

Continue reading “First Reactions to Senate Democrats’ Financial Services and General Government Appropriations Subcommittee Bill”

Demand Progress Proposals Included in FY 2022 Legislative Branch Appropriations Bill and Report

On Tuesday, June 29th, 2021, the full House Appropriations Committee favorably (33-25) reported the FY 2022 Legislative Branch Subcommittee Bill and report. The FY 2022 House Legislative Branch Appropriations Bill and Committee report are packed with good government reforms and significant investments in Congress’s capacity to legislate, conduct oversight, serve constituents, and more.

We and our civil society colleagues made recommendations of dozens of items to include — see our FY 2022 Appropriations requests, FY 2022 appropriations testimony, and 2020 report on updating House Rules  — a number of which made it into the bill and report. We are deeply appreciative of Chair Ryan, Ranking Member Herrera Beutler, and members of the committee for their thoughtful consideration of our requests.

As the Senate considers what to include in its Legislative Branch Subcommittee bill and report, we highlight some of the notable provisions included in the House bill and report. 

Find the complete FY Legislative Branch House Bill here, the report here, and the full committee adopted amendments here. For resources on prior Legislative Branch Appropriations bills, go here.

We did not address this below, but we believe this bill takes a giant leap forward to restoring strength to the Legislative Branch through its efforts to redress decades of underfunding. You can see how line item funding changed over last year. The following addresses some of the policy language included in the bill but there is too much to summarize in this blogpost. Although we were unable to include everything below, you can find a complete list of FY 2022 Legislative Branch Appropriations report items in this comprehensive spreadsheet.

Continue reading “Demand Progress Proposals Included in FY 2022 Legislative Branch Appropriations Bill and Report”

Spreadsheet: Items Included in the FY 2022 House Legislative Branch Appropriations Report

On Tuesday, the full House Appropriations Committee favorably reported (33-25) the FY 2022 Legislative Branch Appropriations House Bill and report, which contain dozens of good government reforms and significant investments in Congress’s capacity to legislate, conduct oversight, serve constituents, and more.

To help keep track of all items requested by the Legislative Branch Subcommittee, we built a public spreadsheet that maintains a catalog of items, broken down by title, entity responsible, timeline for completion, and due date. See the spreadsheet here and below:

What Items Are Due to Congress: July 2021

Congress regularly requests reports on strengthening Congress but there’s no central place to keep track of what they’ve requested.

To help keep track of things, we built a public spreadsheet that maintains a catalog of projects, broken down by item due, entity responsible, and due date.

The catalog covers reforms and requests ordered by the House and Senate Legislative Branch Appropriations Subcommittees, the Committee on House Rules, and the Select Committee on the Modernization of Congress. At the moment, the catalog includes major resolutions and measures: H. Res. 8, the House Rules for the 117th Congress, Legislative Branch Appropriations FY 2021, and H.Res. 756 from the 116th Congress.

Continue reading “What Items Are Due to Congress: July 2021”

Funding Bill Takes a Giant Leap to Rebuild Congressional Capacity

Today at noon the House Appropriations Committee’s Legislative Branch Subcommittee will mark up its funding bill for fiscal year 2022. This legislation constitutes a big leap towards addressing the devastating decline Members of Congress have inflicted upon the Legislative Branch over the past quarter century, including a nearly 40 percent staffing reduction at committees and legislative support agencies.

The bill includes a top line funding increase of 13.8 percent over fiscal year 2021; a 21 percent increase for personal, committee, and leadership offices; a 10.3 percent increase for the government’s watchdog, the Government Accountability Office; new funding for IT modernization initiatives; and many other important provisions. In recent historical terms, the legislation does not constitute an increase in funding to the Legislative Branch, but rather a restoration of funding levels from a decade ago. Moreover, the Legislative Branch has only grown at half the rate of the Executive Branch over the last few decades, and the lions’ share of those funds have gone towards security and infrastructure, not policymaking. This legislation begins to remediate those deficiencies.

These newly restored resources will be used to provide for better services for constituents, to support oversight work to root out waste, and to hire expert staff to help our elected representatives fulfill their Article I duty to lead in federal policymaking.

Building capacity in Congress is a sound investment. A stronger Congress can reduce opportunities for regulatory capture by lobbyists, mitigate the risk of unintended negative policy outcomes through stronger staffing, and increase accountability of the federal government through expanded and knowledgeable oversight. It also provides an opportunity to save taxpayers money: the Government Accountability Office consistently reports a savings of over $100 for each dollar of its budget and yet it has been consistently underfunded, leaving billions of dollars on the table.

This appropriations bill is a monumental break from decades of dysfunctional politicization of congressional funding, which undermined the legislative branch’s ability to fulfill its constitutional role under Article I. “Both Republicans and Democrats increasingly recognize that Congress has been unable to live up to the role envisioned for it by the Founders,” said Lincoln Network policy head Zach Graves. Adding that, “while there hasn’t always been agreement for how to fix Congress, we’ve seen a real shift in how both sides talk about Congress and a growing recognition that strengthening Congress should be an issue that everyone from across the political spectrum can agree upon.”

This new push for congressional capacity also comes after years of bipartisan coalition work by Lincoln Network, Demand Progress, the American Enterprise Institute, the Congressional Management Foundation, FreedomWorks, and other groups to reframe the conversation on Capitol Hill and educate stakeholders about this institutional challenge. “This important bill is the result of a decades’ hard work from a bipartisan cohort of reform-minded Members, working together with civil society, to strengthen Congress and create a new culture of institutionalism,” said Demand Progress policy director Daniel Schuman. Adding that, “while restored resources won’t fix all of Congress’s challenges, it will make it possible to gain traction on the remaining issues and move us closer to a healthier democracy.”

Lincoln Network and Demand Progress enthusiastically support these efforts to restore funding to Congress, congratulate members of the Legislative Branch Appropriations Committee for their leadership, and look forward to consideration and passage of the legislation.

Further reading:

Written by Daniel Schuman and Zach Graves

First Reactions to the Draft House Leg Branch Approps Subcommittee Bill

The House Legislative Branch Appropriations Subcommittee today released its draft appropriations bill accompanied by a press release. The subcommittee markup is tomorrow, and we won’t know what it in the committee report until the full committee markup on Tuesday. We reviewed the legislation and compared the proposed funding to the enacted levels from last Congress. (If your interested in the documents from prior Congresses, we have compiled them here.)

At first glance, this looks like a very, very good proposal. Congratulations to Chair Ryan, members of the Leg Branch Approps subcommittee, Chair DeLauro, and all the members and staff from both sides of the aisle that have worked long and hard to restore the Legislative branch’s strength.

Appropriators have proposed $4.802 billion, which is a $589.1 million increase over FY 2021, or a 13.8 percentage increase. Roughly 40% of the increase will go to the Capitol Police and Architect. We note that this proposal does not include the costs for the Senate, and we will not know their numbers until they do their own markup later this year and then the chambers reconcile the numbers.

Among the major funding features of this legislation:

  • A 21% increase in funding to personal, committee, and leadership offices, which will go a long way to help restore staff funding levels to where they were in 2010. This should make significant inroads in addressing Congress’s brain drain and making it possible for staff to afford staying on the hill instead of decamping to lobbying shops.
  • A 20% increase in internship funding, including funding for committee interns, which should help broaden pathways for students (and veterans) from all walks of life to experience working for Congress. Also the doubling of funding for the Office of Diversity and Inclusion means that this newly widened pathway will make it possible for more people to get their foot on the first rung of the Congressional ladder.
  • Real increases in funding for the support offices, like the Clerk (+14%), Sergeant at Arms (+19%), and Whistleblower Ombuds (+25%). The Clerk needed the funds to support its technology modernization, and the SAA has significant security components. We also note real increases for the important but often over-looked Office of General Counsel (+5.3%), Legislative Counsel (+5.8%), and Law Revision Counsel (+3.8%). The General Counsel is often busy protecting the prerogatives of the House; Leg Counsel drafts the bills and is overwhelmed; and Law Revision Counsel codifies the law. There’s also another $2 million for technology modernization under the CAO, which is very nice.
  • Increases for the legislative support agencies, like CRS (+5%), CBO (+6.4%), OCWR (+6.7%), GAO (+10%), and GPO (the actual amount is unclear because of how the revolving door fund works).
  • The Capitol Police will receive an additional 15%, or $88 million, which will pay for hundreds of new sworn officers and “civilians,” not counting the additional +35% of $16 million for USCP buildings, grounds, and security. There’s also language that would have the costs of basic training be paid for out of Homeland Security funding for use of the Federal Law Enforcement Training Center; I don’t know if this is new, but we know that training is a major cost for the USCP and could provide significant additional value to Congress.
  • Without the Senate side we cannot see how much the Architect will increase. The press statement suggests a $152.8 million over FY 2021, to $603.9 million, which looks like a +34% increase. This doesn’t include whatever comes in the security supplemental.

There are also some policy changes in the bill.

  • We are glad to see that confederate statues would be removed from public view and put into storage within 45 days. (This was in last years’ bill as well, but had been blocked by the Senate).
  • DACA recipients would become eligible to work for Congress.
  • It looks like the Capitol Police Chief and the Architect or Deputy Architect of the Capitol would have their pay raised beyond that available to congressional staffers or Members of Congress, somewhere in the SES level. The Capitol Police Chief, for example, would be paid at an SES level II, which looks to be around $199,300.
  • There are new provisions on how the Library of Congress takes gifts, particularly gifts of securities.
  • The Open World Leadership Center will become the Congressional Office of International Leadership.

I would expect that we will see many more policy changes in the committee report language, which won’t become available until 24 hours before the full committee markup.

What’s next?

  • Subcommittee markup tomorrow Thursday, July 24th
  • Full Committee markup scheduled for Tuesday, June 29th.

Here is our spreadsheet comparing FY 2021 and FY 2022. It’s a working document and subject to change. Here are the Leg branch line items over the last quarter century.

How to Track House Approps Markups

Tracking House appropriations markups can be more art than science. We’ve compiled this timeline to help everyone follow along.

Meeting notice

Public access to the proceedings

Subcommittee markups

  • Draft bill text, resolutions, and reports must be available to committee members (but not the public) at least 3 calendar days in advance of the date it is expected to be considered (although this language can be waived) — Committee Rule 6(j).
  • Draft bill text must be publicly available at least 24 hours in advance of the proceedings — House Rule XI(g)(4), Committee Rule 4(d)(4). (In practice, this is a literal 24 hours, so bill text may become available online on the Sunday before a Monday markup.)
  • Amendment text, if adopted, must be made available within 24 hours of adoption; if withdrawn or otherwise not adopted, must be made available within 48 hours — House Rule XI(e)(6), Committee Rule 4(e)(1).
  • Record votes at the markup must be publicly available in electronic form within 48 hours of the vote — House Rule XI(e)(1)(B). This includes a description of the amendment/motion/etc. and how members voted.
  • The draft committee report is not required to be made publicly available prior to its adoption by the full committee. However, as a matter of practice, the draft committee report is made publicly available 24 hours prior to the full committee markup.

Full committee markup

  • Draft bill text, resolutions, and reports must be available to committee members (but not the public) at least 3 calendar days in advance of the date it is expected to be considered (although this language can be waived) — Committee Rule 6(j).
  • Draft bill text must be publicly available at least 24 hours in advance of the proceedings — House Rule XI(g)(4), Committee Rule 4(d)(4). Note that if the subcommittee bill text was not amended, it will be the draft full committee text. (Although it can still be amended by the full committee.)
  • The draft committee report, as mentioned above, is not required to be made publicly available prior to its adoption by the full committee. However, as a matter of practice, the draft committee report is made publicly available prior to the full committee markup, usually at the same time as the draft bill text.
  • Amendment text, if adopted, must be made available within 24 hours of adoption; if withdrawn or otherwise not adopted, must be made available within 48 hours — House Rule XI(e)(6), Committee Rule 4(f). For the last two years, largely driven by the COVID pandemic, House Appropriators have distributed amendments to press as they are offered.
  • Record votes at the markup must be publicly available in electronic form within 48 hours of the vote — House Rule XI(e)(1)(B), Committee Rule 4(e)(1). This includes a description of the amendment/motion/etc. and how members voted.

Final bill text

  • There is no deadline by which the final bill text and committee report must be made publicly available after adoption by the committee. Rather, it is the duty of the Chair to file the bill and report “promptly.” Committee Rule (6)(a)(1). They become available after they are filed with the House of Representatives (being filed in the House (which occurs after the submission of minority, dissenting, additional, and supplemental views). Members who give notice they wish to file dissenting, additional, or supplemental views are entitled to two additional calendar days to file those views. Rule XI(2)(l), Committee Rule 6(i)(1).

Tracking Appropriations Testimony Deadlines for FY 2022

For the last few years Demand Progress has been tracking appropriations testimony deadlines in the House and in the Senate. Specifically, we have kept track of:

  • Public witness testimony deadlines and guidance
  • Member witness testimony deadlines and guidance
  • Member request deadlines and guidance
  • Subcommittee/ full committee markups.

Here is that information, in spreadsheet form, for FY 2022 (updated once a week), FY 2021, and FY 2020.

You can find the spreadsheet for FY 2022 below, or just click on the link above.