Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. (Was this email forwarded to you? Subscribe here.)
TOP LINE
Officials tasked with keeping the Capitol safe and open testified before Congress last week — see the video & written testimony from the HSGAC/Senate Rules hearing with all the former security leaders and from the House Leg branch Approps hearings into the Capitol Police/ SAA (written testimony) and employee health and wellness + Capitol physical damage (written testimony). I shared my thoughts with the Bulwark on the testimony by the former security chiefs. We have more analysis below.
RE: the Jan. 6 insurrection, this upcoming week will feature a joint HSGAC/Rules hearing on Wednesday at 10 into the Executive branch response, with witnesses from DOD, DHS, and the FBI. At the exact same time, the Capitol Police will return to House Leg branch Approps to testify in support of their budget request for FY 2022. The House’s proceedings will go beyond Jan. 6 and may delve into all operations of the USCP. You can find last year’s USCP Budget Justification here (on page 225) and here is our primer on the agency. Don’t forget there’s a supplemental security funding bill that will emerge at some point — no hearings or markup into that so far — our recs for that bill are here.
H. Leg branch Approps budget hearings also are scheduled for this week —- this is where the Legislative branch support agencies sing for their money. On the schedule: the Open World Leadership Center and CBO are testifying Tuesday at 10 & 2, the Capitol Police and the Library of Congress are testifying Wednesday at 10 and 12:30, and the Office of Congressional Workplace Rights is testifying Thursday at 10.
• The Office of Congressional Workplace Right’s biannual report to Congress was just released and contains a half-dozen recommendations to update the Congressional Accountability Act. They include providing whistleblower protections to the Legislative branch, providing subpoena authority to aid in tracking safety and health investigations, requiring records be kept of of workplace injuries, adopting federal workplace record-keeping requirements, and approving the Board’s FMLA and Uniformed Services Employment and Reemployment Rights Act (USERRA) Regulations when they are resubmitted, and more. (An easier-to-read version is available on their website.)
• As a reminder, we keep track of Leg branch approps bills & documents here and also track requests and requirements put into the Leg branch approps bill. (See the graphics far below.) Also, full disclosure, we routinely request bill text and report language regarding Leg branch agencies — see, e.g., last year’s requests. A final note: these hearings can move around at the last moment, so double-check docs.house.gov.
The $5 Billion question: how much money will be available for the Legislative branch? We know Congress and its support offices are significantly underfunded, which is why we and a bipartisan coalition called for a 10% increase in Leg branch funding. One historical problem is that even as funding for Congress has lagged behind the rest of government, 2/3s of any new funding has gone to the Capitol Police and the Architect of the Capitol. We expect Congress will dump a ton of money into the Capitol Police via the supplemental to address decades of mismanagement, even though the USCP has a huge budget and has always gotten its giant requests, which likely will further undermine non-USCP congressional ops in the out-years. Watch leadership + the budget committees as they determine the top line defense vs non-defense spending numbers, and see how the new Approps chairs divide that money among the 12 approps subcommittees.
TRUMP INSURRECTION
Too much to cover. Faithful readers, you know we love getting into the weeds, but there’s too much information to faithfully cover everything that has come out of the hearings with the Capitol Police, House and Senate Sergeants at Arms, the health and wellness offices, etc. Instead, we’re going to highlight either the most important things you should know and/or items that have not received enough attention. We are still synthesizing what we have learned and there is still more information to come, so please understand that our conclusions, even when boldly stated, are tentative.
The Capitol Police Board is a failure. House Approps Chair DeLauro described it as vestigial, like an appendix, although we suspect it is more horticultural, like a fig leaf, or mycological, like a mushroom. It is apparent the Capitol Police pay no mind to the Architect of the Capitol, who sits on the Board, and run whatever decision they wish to take through the House or Senate Sergeants at Arms. How exactly that works is deliberately unclear, probably as a mechanism to avoid accountability. The acting AOC testified in favor of more transparency for the Board, which meets monthly for 90 minutes, and said the USCP up-classifies physical security information, which, in addition to their other policies, severely limit dissemination of USCP Board decisions. This is not a new problem: a 2017 GAO report suggests that many authorizing and appropriating committee staff feel out of the loop — but not leadership. It is clear that the structure that oversees the USCP must fundamentally change and that there’s an appetite inside Congress to do that.
Speaking of a credibility gap, Acting Chief Pittman appeared unable to give straightforward answers to appropriators. She seems to be angling for more power and resources for the USCP. Simultaneously, she is trying to move past acknowledging the agency’s many failures and addressing the root causes of why they failed. Why did USCP communications break down with the rank and file during the insurrection? Why did they not use, share, and disseminate the intelligence they received — or make their own determination — and properly prepare? Why did they not use their half-a-billion dollar budget to buy the necessary equipment? The USCP demonstrated a fundamental lack of preparation, imagination, and flexibility — and that failure comes straight from the top.
Speaking of the public and the press: We were astonished by Acting Chief Pittman’s testimony that she has not held a press conference and expects she will never hold one — and that press releases are more than sufficient to educate the public. Wow. Her statement explains a lot about the behavior we’ve seen from the USCP over the years. Chair Ryan, Rep. Wexton, and others pushed back on this position and we expect the USCP may start to sing a different tune. But opacity and unaccountability appear to be built into the USCP leadership’s DNA, which suggests that it is time for personnel and rule changes.
Money isn’t the problem. Senator Leahy asked former USCP Chief Sund and the former House and Senate Sergeants at Arms whether they had always been given the resources they requested. They all said “yes.” Can you imagine that? All the money they needed and they still didn’t have enough helmets. The Capitol Police will never, by themselves, have enough employees to stop the 10,000+ people who protested outside the Capitol and the 800+ who entered it, which is why we need to look at how they request help from other agencies. We cannot help but wonder: didn’t they hold joint practices — war games — with other agencies to work out any snags?
We don’t need a wall, er, a permanent fence. The Capitol Police seem to want one, however, but Leg branch Approps Chair Ryan and RM Herrea Beutler have indicated their opposition. To us, the fence seems like an effort to change the conversation from how to keep the Capitol complex safe to a discussion around a barrier. I suspect the USCP will never again under-prepare for a protest mob like the one on Jan. 6, and that a permanent fence would be a monument to fighting the last battle.
We must note that Acting Chief Pittman served as the Assistant Chief for Protective and Intelligence Operation, i.e., the person who oversaw the intelligence unit in the lead up to the Trump insurrection. The Capitol Police Labor Committee issued this statement after her testimony: “Acting Chief Pittman testified for more than two hours and her testimony further served to explain why 92 percent of the officers who voted a few weeks ago have supported a vote of no confidence in Acting Chief Pittman.” We cannot see how she and her colleagues in leadership can continue on.
Additional items. On Jan. 6th, USCP officers were confused about whether and when to use lethal force; Pittman says she’s stepping up training. The House CIO is willing to brief any member about the state of cybersecurity. The House’s Acting SAA says Chief Sund never brought a formal request to the Board to make an emergency declaration. Capitol floor plans are very hard to access and require sign-off by the House Office Building Commission. A lack of equipment has not been raised before the USCP Board in the last year. Chief Pittman will not acknowledge “at this time” that Howard Liebengood’s death was in the line of duty death, which would make his family eligible for a death gratuity. The RNC notified the USCP about the pipe bomb (it was not discovered by the USCP).
The report from General Honoré apparently is due in a few weeks. We haven’t heard from him and the process has been very quiet. Our recommendations for what Congress should do are here. Republican leadership is fighting with Democrats over the scope of a 1/6 commission, apparently wanting it to focus on matters unrelated to the Trump insurrection. Pelosi’s proposal would provide equal representation for the House and Senate (4D and 4R) and provide 3 slots for the White House to fill; Republicans want an evenly divided commission.
APPROPRIATIONS AND COMMITTEE SPENDING
This section is going to swell in the upcoming weeks as we continue to focus on hearings and testimony in the Legislative branch agencies. We’ve covered the USCP hearings above, but there’s still more.
Mental health support for employees was discussed by AOC Brett Blanton and CAO Catherine Szpindor during last Tuesday’s hearing. Blanton discussed how the agency is using TalkNow, a 24-hour telephonic support service, providing office hours for employees to share concerns and questions, and planning proactive counseling sessions for trade employees.
• Physical and cybersecurity. House Curator Farar Elliot said there were 219 artifacts on display the day of the insurrection. A Jan. 7 inspection noted that only eight pieces were damaged and the office asked for a supplemental increase of $25,000 to provide emergency conservation. Rep. Case mentioned that this number seems too low. Relatedly, CAO Szpindor said that a few items were stolen on Jan. 6, including several PCs, but none pose a serious security threat. AOC Blanton has made a substantial supplemental request of $30 million, mainly to reimburse transferred funds that were used for immediate repairs, National Guard, and the temporary fence as well as $10 million for a comprehensive security assessment. An aide later clarified that $19 million went to erect the fence.
• Adjusting to teleworking was mentioned extensively during CAO’s Szpindor’s testimony. While the topic wasn’t discussed during the Q&A, Szpindor said the House-wide transfer to Microsoft Office 365 in 2019 was critical for a “smooth” transition to teleworking in 2020. She also indicated that House employees have sent over 21 million chat messages, held over 21,000 virtual meetings, and hosted 6,000 meetings between staffers and lawmakers each day on average since making the transition.
The Senate Rules Committee approved and the Senate adopted funding levels for all Senate committees (except Appropriations, which gets its own line item), as part of S. Res 70. As you know, we’ve been tracking funding levels for Senate committees since the 104th, and we hope to update our article with the new numbers.
Earmarks are back. Appropriators officially struck this deal to bring back earmarks, which will include a 1% cap on total spending and a limit on the number of requests each committee and Member can make. There also are limitations on how many earmarks can be requested, who can receive them, and new transparency requirements. The revival seems to have the support of Republican appropriators and Senate leadership — who don’t really matter a lot right now — although BGOV’s Emily Wilkins and Jack Fitzpatrick note that the House Freedom Caucus and Republican Study Committee are opposed. The money quote is from Sen. Blunt, who said the Republican ban is only in the conference rules, and “nobody’s bound by the conference rules.” Friends of the Forecast released a statement that supports lifting the earmark moratorium, and while we are not as enthusiastic as some on the change, we do have ideas on how earmarks could work. Any guesses as to which organization will build the first database tying earmarks with lobbying and donations?
CONGRESSIONAL OPS
The representation problem among Hill staff “goes beyond diversity for diversity’s sake,” Dr. LaShonda Brenson told Roll Call’s Jim Saksa last week. Cost of living in DC combined with low pay are major barriers for candidates “but the paltry pay alone can’t explain the diversity gap.”
The majority of the Fix Congress committee roster is out, which brings the Select Committee one step closer to being up and running for the 117th Congress. Republican Members announced so far include Reps. Davis, Latta, Reschenthaler, and Van Duyne, with Rep. Timmons, who served as his party’s freshman representative last Congress, as the Republican Vice Chair. Democrats announced so far include Chair Kilmer, and Reps. Lofgren, Cleaver, Perlmutter, and Phillips.
Select Committees. Several climate crisis and coronavirus crisis select committee members were announced. Friday’s Punchbowl.news noted that the House’s Intel Committee still hasn’t organized for the 117th, speculating the reason no members except Rep. Schiff were appointed is because Speaker Pelosi is hoping to slide Schiff over to become California’s AG. Regardless, we think HPSCI needs significant reforms, including becoming a standing committee, and have recommendations on what to do.
The governing board for the Office of Congressional Ethics will include David Skaggs, Belinda Pickney, Karan English, Mike Barnes, Paul Vinovich, Leon Acton Westmoreland, Karen Haas, and Robert Hurt.
CONGRESSIONAL PROCEDURE
Sharing Senate employees. The Senate passed the Senate Shared Employee Act, S. 422, which allows for Senate offices to share an employee by allowing that employee to be paid out of a personal and committee office at the same time. The House addressed this in the 117th rules package with respect to caucus employees (see p. 25). This bill would help resolve an administrative nightmare, so congressional employers do not have to move employees from payroll to payroll for various employing offices. S. 422 still must be acted upon in the House and signed by the president.
Pushback on election truthers. Rep. Trent, who met with insurrectionists on Jan. 6 and is one of the 147 Republicans who voted to overturn the election results, faced pushback from 15 Dems on a run-of-the-mill post office renaming bill, H.R. 208, for which he is the lead sponsor. Instead of allowing it to pass under suspension, Rep. Casten demanded the yeas and nays, which delayed the bill, with 15 members voting against an otherwise noncontroversial piece of legislation. If this practice spreads, it could significantly undermine the ability of certain representatives to move legislation.
One of the most important offices you never heard of (up until last week). Learn more about the Senate parliamentarian and her role in policy in this profile by Emily Cochrane.
MTR(eturn). House Republicans have a plan to resurrect MTR votes by “mirroring the process used for the Previous Question,” Olivia Beavers reports. The GOP memo made no sense to me, fwiw.
Committee Rules. Senate Rules Committee rules(say that ten times fast) came out last week and include new subpoena powers and standardized capitalization and pronouns. The Senate Rules meeting was also streamed via video. Senate Budget, Armed Services and HSGAC rules are also now available.
Faster, faster! Rep. Hoyer wants to speed up floor votes, which are dragging on forever in a process made worse by COVID, reported Lindsey McPherson. We agree. The fastest way to go faster would be to instantiate remote voting for the duration of the emergency. It appears at least a dozen House Republicans have called in “public health emergency” to work so they can attend CPAC, which is a violation of House rules, albeit one unlikely to be enforced. While most of those members think proxy voting is unconstitutional, at least one who skipped out endorses the idea. According to CNN, absentees include Reps. Gaetz, Gosar, Banks, Cawthorn, Budd, Green, Issa, Jackson, Kelly, Boebert, Norman, Nunes, and Steube.
TRANSPARENCY & ETHICS
The federal courts want less transparency — in the name of security — and are pushing Sen. Judiciary Chair Durbin, Sen. Menendez, and others to empower them to remove info about judges from governmental websites and private entity databases. This includes info about their use of social media, birth and marriage records, any property tax info, their direct telephone line, etc. Federal judges have reason to be concerned about their safety, which is addressed elsewhere in the bill, but H.R. 8591 (116th) has both significant First Amendment problems and is overbroad on the information that it would claw back from public view.
40+ orgs are pressing the Biden Administration to commit to transparency reforms including strengthening FOIA, overhauling the declassification process, and funding public record preservation initiatives.
It’s time: curious about how Congress and the courts deal with transparency? The FOIA Advisory Committee is holding a meeting on Wednesday that will feature the Free Law Project’s Mike Lissner and, uh, me. RSVP. (Yes, that does mean I’m triple booked.)
Activist investors want answers about banks’ political spending in the wake of January’s insurrection.An upcoming SEC vote will determine whether banks have to listen to investors’ calls for accountability.
USCP is slow to share information with the public, to say the least, and Acting Chief Pittman expressed her disinclination to answer questions from the press. Buzzfeed’s Jason Leopold is turning to the courts for relief, filing a federal common law right of access suit to access information that by law (in some instances) is supposed to be publicly available, but is not. This is a novel approach and we’ll be watching it closely. There are many missing USCP records.
Shadow Docket Supreme Court decisions increased about tenfold from 2017 to 2020. The closed door Supreme Court appeals decisions that are supposed to be for emergencies have become more commonplace, leaving the public out of the loop on key decisions that impact our federal law. The good news is Congress has the power to fix the problem.
Sunshine Week, tied to James Madison’s birthday and in celebration of FOIA and transparency, is coming up from March 14th to 20th. Check out the events calendar.
BILLS & REPORTS OF INTEREST
Two Confederate statue removal bills (H.R. 1248 and S. 366) were introduced by Rep. Lee and Sen. Booker. They would direct the removal of all statues of individuals who voluntarily served the Confederacy from display in the Capitol. In the interim, Congress should use its existing procedures and precedents to remove them from view.
A whistleblower protections bill (H.R. 1265), introduced by Rep. Swalwell, would make the disclosure of the identity of a whistleblower a criminal offense, and provide a civil right of action for the disclosure of the identity of a whistleblower.
DOJ IG. Sen. Durbin introduced a bill (S. 426) to amend the Inspector General Act of 1978 relative to the powers of the Department of Justice Inspector General.
CRA by CRS: New information on Congressional Review Act Issues for the 117th Congress has been published by CRS.
Facial Recognition in the Capitol. CRS also has a new report out titled, “U.S. Capitol Attack and Law Enforcement Use of Facial Recognition Technology.” Question: is facial recognition being used in the Capitol complex?
WHAT’S DUE
March 2021 edition. We published our latest article on what reports are due from Leg branch support offices and agencies, including some reports from USCP. See the graphics below.
ODDS & ENDS
How were Black USCP officers treated by the mob? Badly. Luke Broadwater interviews Harry Dunn.
Welcome to Ann Berry, the new Secretary of the Senate, who will succeed Julie Adams.
Profiles. Every newsroom assignment editor apparently has decided to profile the more colorful of the new Republicans. POLITICO’s Michael Kruse closely examined Marjorie Taylor Greene, revealing a zealot who keeps looking for a cause. WaPo‘s Michael Kranish excavated Madison Cawthorn, digging up an apparent fabulist with a reported penchant for mistreating women. In miniature, Paul Gosar “appeared at a white nationalist convention” on Friday, according to the Daily Beast‘s Will Sommers. And Lauren Boebert is amending her campaign finance reports in a way that is raising eyebrows, per Colorado Public Radio’s Caitlyn Kim and Andrew Kenney. Where’s a good Steve King story when you need one? Meanwhile, WaPo‘s Michael Wines is reporting Republicans have learned their lesson… and are doubling-down on making it even harder for people to vote, with “53 bills in 43 states,” so we can get even more reps like you-know-who.
AG Garland’s record on media law cases, assembled by Reporters Committee for Freedom of the Press.
“Oscars for the Congress” Open Season. The Congressional Management Foundation is accepting nominations through March 5th for the Democracy Awards (like the “Oscars for the Congress”). Categories include: Transparency and Accountability; Innovation and Modernization; and Constituent Service. Congressional offices self-nominate through an easy, one-page form.
Whoops. There’s a hullabaloo in the UK Parliament as MPs are rather annoyed with researchers who sent fake constituent service requests to test MP responsiveness.
What’s the clearance? Some of the rabble that sacked the Capitol had security clearances ($), Justin Doubleday reports. Meanwhile, prosecutors are reviewing video of Capitol tours given by lawmakers in advance of the Trump insurrection, Morgan Gstalter reported.
Locker room jocularity. Ted Cruz was the subject of a prank at the Senate gym, Celine Castronuovo reported.
CALENDAR
The House and Senate committee calendars are aggregated here. Should there be House floor activity, it will be here. Information about the Senate floor schedule is here. Select events and proceedings are listed below.
Monday
• House Rules Committee will hold markups today on H.R. 1 — For the People Act of 2021 and H.R. 1280 — George Floyd Justice in Policing Act of 2021 at 1 pm ET.
• Senate Judiciary is holding a business meeting to consider committee rules and designation of subcommittee for the 117th Congress, and the nomination of Merrick Garland to be Attorney General at 1pm ET.
Tuesday
• House Leg branch Appropriations has a hearing on the Open World Leadership Center FY 2022 budget request at 10 am ET.
• House Oversight is holding a hearing on the 2021 GAO High-Risk List: Blueprint for a Safer, Stronger, More Effective America at 10:30 am ET.
• Senate Budget is holding a hearing to examine the nomination of Shalanda Young to be Deputy Director of OMB at 11 am ET.
• House Leg branch Appropriations has a hearing on the Congressional Budget Office FY 2022 budget request at 2 pm ET.
• HSGAC is holding a hearing on the GAO High-Risk List, focusing on addressing waste, fraud, and abuse at 2:30 pm ET.
Wednesday
• A Joint HSGAC/Senate Rules hearing on the insurrection with DHS, DoD, and the FBI is happening at 10 am ET.
• House Leg branch Appropriations has a hearing on the Capitol Police FY 2022 budget request at 10 am ET.
• House Leg branch Appropriations has a hearing on the Library of Congress FY 2022 budget request at 12:30 pm ET.
• The FOIA advisory committee is holding a meeting today at 10 that will feature the Free Law Project’s Mike Lissner and, uh, me. (Well, hello there).
Thursday
• House Leg branch Appropriations has a hearing on the Office of Congressional Workplace Rights FY 2022 budget request at 10 am ET.
• HSGAC is holding a hearing to examine the nominations of Shalanda Young to be Deputy Director and Jason Scott Miller to be Deputy Director of Management, both of the Office of Management and Budget.
Down the Line
• House Oversight is holding a hearing on Del. Holmes Norton’s DC statehood bill on March 11.
• Hack the Capitol 4.0 hosted by R Street Institute, the Cyber Bytes Foundation, and the National Security Institute is happening May 4th 9:00 am -5:30 pm ET. Deadline for papers is April 16.