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)

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Barrett, Graham, Feinstein, and de Tocqueville

I watched a little of this past week’s Supreme Court confirmation hearings and can’t say I enjoyed — or was enlightened — by it very much. Alexis de Tocqueville observed 185 year ago that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” While members of the Senate Judiciary Committee and a certain Supreme Court nominee might publicly contend otherwise, there’s hardly a question about the fitness of a judicial nominee that isn’t actually a political question. That is what judicial confirmation hearings are all about: the judgment of the person nominated to become a Justice. 

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Pending Good Government Bills: 116th Congress

The 116th Congress is coming to a close, with Members getting ready to depart to campaign full-time and then return in late-November/December for a lame duck session. Time is running out before bills turn into pumpkins and have to be re-introduced at the start of the next Congress. According to GovTrack, 151 bills have become law so far. By comparison, 12,874 bills have been introduced, or 1.1%, although some of these bills are duplicates of ones that have become law. 

We and our friends in civil society have compiled a non-exhaustive list of pending good government bills that lawmakers should consider pushing across the finish line before time runs out. As legislation that’s further along in the process is more likely to become law, we’ve sorted our list by their status. We’ve further subdivided the list regarding the part of government they would affect.

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Foresight: A Tool for a Proactive Government

Someone on the Hill once told me that Congress was “constitutionally reactive.” That is, Congress and the law would always lag behind society, and the system was intentionally designed that way. The current rapid pace of change — in our culture and particularly with technology — only makes the gap between policy and our lives more glaring. 

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Foresight in the Federal Government

In “Strategic Foresight in the Federal Government: A Survey of Methods, Resources and Institutional Arrangements,”[1] authors Joseph Greenblott, Thomas O’Farrell, Robert Olson, and Beth Burchard analyzed foresight activities in 19 federal agencies (18 in the Executive Branch and 1 in the Legislative Branch). This article summarizes the findings (all numbers and quotes are from that article).

While approaches varied by agency, some common themes emerged.[2] Overall, Defense and Intelligence agencies seemed to have the strongest (and best funded) foresight practices.[3] Foresight in the Executive Branch is much further developed than in the Legislative Branch. 

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The PLUM Act: Transparency for Political Appointees

by Jason Briefel and Maggi Molina

A president will appoint more than 4,000 individuals to serve in an administration, yet “there is no single source of data on political appointees serving in the executive branch that is publicly available, comprehensive, and timely,” according to the Government Accountability Office in a March 2019 report.

Instead, these positions are compiled and published exactly once every four years in a congressional document known as the Plum Book (officially the United States Government Policy and Supporting Positions). This book is published only in December after a presidential election (before the president even gets sworn in) and includes important data for each position, including title, salary and location.  

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New Bill Reclaiming the Congressional Power of the Purse

Chair Yarmuth of the House Budget Committee partnered with House and Senate chairs (Chair Lowey of House Appropriations, Chair Maloney of House Oversight and Reform and Senate Appropriations Vice Chair Leahy) to introduce the bicameral (but not bipartisan) Congressional Power of the Purse Act (H.R.6628).  

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Presidential Signing Statements: Congressional Actions

(Update, 04/24/20): On April 3, we provided a summary of all the congressional actions related to signing statements. Here is an analysis of the common themes in the legislation: 

  • Requires the Executive to give Congress notice and reasoning for all statements.
  • Bars government entities (including state and federal courts) from using signing statements in interpreting the law.
  • Gives Congress standing to seek declaratory relief, allows Congress to intervene in cases or allows Congress to issue “clarifying” statement.  
  • Requires AG, Deputy AG, White House Counsel to testify before Judiciary at the behest of any single member to explain; can’t invoke executive privilege.  
  • Limits funds made available to the Executive to produce, publish, or disseminate any signing statement.
  • Cuts off funding authorized or expended to implement any law accompanied by a signing statement if Executive doesn’t comply with congressional restrictions on signing statements. 

(Original Article) Following up on our discussion of Signing Statements (triggered by the President’s signing statement on the coronavirus relief legislation), here are the hearings and legislation we found on the subject. If we missed something, please email [email protected]

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