Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
TOP LINE
The House and Senate are both in session today. This week Congress will attempt to pass the spending omnibus — which may include emergency supplementals for Ukraine and Covid-19 — before government funding expires Friday. We’re keeping our eyes out for the final Leg branch appropriations numbers, which we hope provide for a significant topline increase and also invest in transparency and capacity within FSGG and elsewhere.
SCOTUS Ethics. A hearing on the need for a code of conduct for Supreme Court justices is scheduled for tomorrow, March 8 at 2PM. It looks like federal judges will soon-ish be required to disclose stock trades over $1,000 on an online searchable database as well as their financial disclosure forms, as S.3059 recently passed the Senate and a companion measure passed the House in December. The SCOTUS is empowered to regulate itself, as if that’s meaningful, so a code of conduct may be a useful pathway to address its, uh, failure to do so thus far.
Bulk Data Task Force. Discuss congressional data this Thursday, March 10, at 2 PM. RSVP here; find the agenda here. This long running working-group, established by Congress and composed of congressional and non-governmental stakeholders, is a great place to talk about improving congressional data inside and outside Congress, including to see a preview of new tech tools in the pipeline. Our recap of the last quarterly meeting is posted here.
In honor of Sunshine week, join a panel discussion on some of the biggest transparency and accountability issues facing our world today next Wednesday, March 16th. RSVP here. Hosted by the Advisory Committee on Transparency, the event will feature remarks from Rep. Quigley, founder of the Congressional Transparency Caucus, and Rep. Kilmer, Chair of the House Select Committee on Modernization. Panelists include Shanna Devine of the House Office of Whistleblower Ombuds, Kate Oh of the ACLU, Danielle Brian of POGO, and Nick Hart of the Data Foundation. Alex Howard will moderate; he is co-director of the Advisory Committee on Transparency and director of the Digital Democracy Project. (I’m the other co-director. :)) More Sunshine week events are listed in the calendar section.
Ethics online. 36 organizations urged ethics and disclosure documents “made publicly available” at the Legislative Resource Center should actually be made publicly available by publishing them online and in a structured data format. The letter, sent to the House Administration Committee on Friday, noted that the LRC has been effectively closed to the public for more than two years. What do they have exactly? Here’s our spreadsheet of what’s available at the LRC and its Senate equivalent, the Senate Office of Public Records.
CONGRESSIONAL UNIONIZATION
Congressional unionization was the focus of a House Administration Committee hearing this past Wednesday. As you know, Congress approved legislation providing for unions a quarter-century ago and the OCWR promulgated regulations on how unionization would work at the time, but tricky language in that law requires the House to act (by a resolution) to implement labor protections for certain political and non-political staff. Witnesses included OCWR General Counsel John Uelman and Mark Strand of the Congressional Institute. (We’ve got the witness statements, video, and everything else you could want on the topic here.) Uelman said the current OCWR Board unanimously supports the 1996 regulations and “urges Congress to approve these regulations.”
The House should protect staff’s right to unionize immediately, a coalition of 78 organizations and 24 individuals led by Demand Progress wrote in a letter to House leadership timed to coincide with the hearing. We also submitted this statement providing a history of how we got here, and Rep. Levin submitted a statement explaining why the time for unionization is now. BTW, our running tally of cosponsors for Rep. Levin’s resolution is now at 160. Following the hearing, the Congressional Workers Union released a statement in support of immediate adoption of the 1996 regulations; it’s available here. RollCall and BGov have good summaries of the hearing.
Working in Congress is “not generally a career path,” Rep. Loudermilk observed during the hearing as an argument against unions. He’s right — working in Congress is not generally a career path — and that is a problem when you want to have professional staff who are expert in their subject matter and loyal to the institution. We don’t expect that unions will solve this problem by themselves, but we think it would help by giving employees a voice at the bargaining table.
What’s next? We heard from the OCWR that the format of Rep. Levin’s resolution may need to be tweaked even though it parallels what was passed previously. The OCWR also noted that the House can speed up implementation of the regulations, which otherwise would take 60 days to vest, by including language in an accompanying committee report that elucidates good cause to make it sooner. It’s unclear to us whether House Admin will have a markup, will poll the bill, or when it might advance to the floor. Given the circumstances, the House should pass the resolution ASAP.
There are a lot of misconceptions and erroneous information about unionization. For example, Uelmen suggested that Strand’s testimony, where Strand raised concerns about a union preventing staff from working long hours, changing the at-will nature of the work, and other items that suggest the union could change provisions of the CAA, was not well-founded in fact. Uelmen also said, in response to Rep. Fernandez, that getting the parties to sit together at the table and hear staffers out, even if you don’t get an agreement between the parties, would likely result in a better understanding of where the other party sits. We recommend looking to OCWR’s fact sheet and written testimony as useful starting points for reliable information — here are some answers to common questions (drawn from these sources):
• What issue is before the House? Congress already made the policy decision that unions should be available for Legislative branch staff when it enacted the Congressional Accountability Act and made these rights available to employees. The OCWR Board already promulgated regulations that have been in effect for many, but not all, Legislative branch staff for the last quarter-century — a decision unanimously reaffirmed by the Board. In the words of OCWR General Counsel Uelman, “It’s just a technicality that they haven’t been implemented for congressional staff.”
• Who can unionize? Approximately 10,000 House staff, both political and non-political. It would apply to personal, committee, and leadership staff, but also support staff like the parliamentarian, the offices of legislative operations, legislative counsel, the general counsel, and so on. There’s a lengthy list in the written testimony. (In addition, a concurrent resolution would cover joint employees (like CBO), and the Senate would have to pass its own resolution for its staff.) The CAA has already provided union rights to employees of the Capitol Police, the Architect of the Capitol, the Office of Congressional Accessibility Services, and a number of non-political offices in the House and Senate. (It does not apply to unpaid interns.)
• What’s a bargaining unit? Bargaining units, which are the entities that form unions, will likely consist of individual Member offices or committee staff who belong to one of the parties. For example, Democratic staff on a particular committee may form a bargaining unit. Note that while organizing a bargaining unit may be at this granular level, it is possible for multiple bargaining units to create a “master agreement” or a “lead agreement” that applies to all those offices at once. So you could imagine a dozen or more offices subject to the same agreement. It is not possible, however, for the entire House to consist of a bargaining unit because it is not an employing authority.
• How do you form a bargaining unit? An established labor union would make a determination as to who constitutes a bargaining unit and then 30% of its members would provide written consent for an election. The union then files a petition with the OCWR. The petition is served on the employing office. OCWR conducts a vote, and if a majority of bargaining unit members vote to be represented by a union, the OCWR certifies the union as the exclusive rep for the unit. (No one can be compelled to join the union.) Next management and the bargaining unit negotiate over a bargaining agreement.
• Who cannot join a union (i.e., who is management?) Employees cannot join the union if they are a management official or a confidential employee. Management officials are “those employees whose duties and responsibilities require or authorize the individual to formulate, determine, or influence the policies of the employing office.” Giving direction for the work to be done — serving as a lead employee — would not make an employee management unless they have the power to make determinations around the “conditions of employment.” This is, for example, the power to appoint, hire, discharge, and so forth. Confidential employees are those who work in a confidential capacity for the management officials. Per Uelmen, most issues around who constitutes management is resolved by the parties themselves.
• What’s subject to negotiation? Many things are subject to negotiation, but only a small subset are subject to mandatory bargaining. In other words, employees and management can negotiate over a wide range of issues, but management is only required to negotiate over conditions of employment, which include personnel practices, policies, and matters affecting working conditions. Management largely cannot be compelled to negotiate on proposals that determine its mission, budget, organization, number of employees, internal security, hiring and firing, discipline, and making job assignments. (A longer list is here.) However, the union under certain circumstances can bargain over procedures used by management when exercising one of its rights. In addition, Uelmen notes that there may be more opportunities to negotiate for congressional employees than for other federal employees because there are fewer laws that regulate some of these areas.
• What’s off the table? Congressional staff cannot strike, conduct a slowdown, or picket. (Uelmen notes this has never been an issue with federal employees.) Congressional staff are at-will employees.
• Are unions continuing entities? Even when the people who started a union leave, that union will persist for those positions. It is unclear, but a union agreement may continue so long as a member is re-elected. It’s unclear what happens if a member dies in office, but possibly the agreement may continue while the Clerk runs the office.
• What about emergencies? In emergencies, such as dealing with Covid or the Trump insurrection, employers have broad discretion and can act very quickly.
That’s a lot of info, right? The big picture is that passage of a resolution provides legal protection for unionization and provides for mandatory bargaining over an array of issues. Other issues may not be subject to mandatory bargaining but can still be addressed. The OCWR is working on putting together briefing materials and will have more to say. Some issues will remain unclear until it becomes the subject of a dispute that is petitioned to the OCWR Board. For example, at this time, it is unclear to what extent wages are negotiable. We at the First Branch Forecast are working on a list of items that we believe are subject to negotiation.
Finally, one of the most important aspects of unionization is that the unions themselves can advocate on behalf of staff before relevant policymaking committees, such as Legislative branch appropriations, Administration, and Rules. (In fact, we have seen the Capitol Police and CRS unions do so effectively before House Admin and Appropriations in recent years.) This would give staff writ large a seat at the table.
TOXIC WORK ENVIRONMENTS
The racial pay gap among House employees on average is about $5,000, or 91% of what is paid to a white staffer, according to Legistorm. A similar analysis is not possible for Senate staff because the “upper” chamber is about 4 months late publishing its semi-annual statement of disbursements.
Allegations of racism in Sen. Feinstein’s office. Former Feinstein staffer Jamarcus Purley, who is Black, spoke with Latino Rebels about his experiences with what he described as racist slights and racist policymaking in Feinstein’s office. We note that just 6% of Sen. Feinstein’s staff identifies as Black, according to the most recent Senate diversity survey, compared to 13% of fellow Californian Sen. Padilla.
CONGRESSIONAL CAPACITY
Congress is actually getting stuff done according to a Roll Call interview with political scientist Frances Lee, who counted the number of pages enacted into law and not merely the number of laws enacted. As you’ve heard us say many times before, legislative productivity is a lot more than legislative ideas enacted — it includes conducting oversight, serving constituent needs, even language included in committee reports often has a legislative effect — but if you want to dig into the rate at which legislative ideas are enacted, our BillMap tool allows you to track those legislative memes. We agree with Dr. Lee, who argues that most media outlets focus on the fight over legislation and do not provide a good sense of how many legislative ideas make it into law or whether they are a good idea.
Proxy voting increased the rate at which members participated in floor votes, according to Roll Call. “House members on average participated in a record 98 percent of the 448 roll call votes taken in the chamber last year…. That’s the highest rate of vote participation in the House since 1953.”
Capitol in/security. The Capitol fence, erected for Pres. Biden’s SOTU, was disassembled last Wednesday. We’re not enthusiastic about efforts to reopen Congress to tourists under current circumstances. The Senate adopted a resolution in favor of a reopening on pre-pandemic terms by unanimous consent last week; House Republicans introduced a parallel resolution days later. We think the Capitol complex must be open to the public, but given the physical security issues arising from the mismanaged Capitol Police and unimplemented physical security measures to the health issues arising from COVID and inadequate facilities, we’re not there yet. Letting politics predominate over smart policymaking to create the illusion of normalcy is how we got in this mess in the first place. Correction: we noted last week that lobbyists appear to be resuming fly-ins and bypassing the rules to find ways to meet with lawmakers, according to BGov, but we got the link wrong: the article can be found here.
ODDS AND ENDS
The Supreme Court hates you and logic. The high court’s doctrine on state secrets is rooted in a lie which is probably the only way to make any sense out of its recent decision that an innocent man tortured for years by the federal government on suspicion of terrorism is not allowed to obtain information for a criminal investigation in Poland from the two CIA contractors who tortured him because that could potentially result in official confirmation of the country where he was tortured — Poland — a fact which is already publicly known and that the victim said he would not ask the torturers to confirm on the stand. (Read SCOTUSblog if you think I’m exaggerating.) What sort of bullshit is this? Apparently the kind that results in a 6-3 decision. The decision was written by Justice Breyer, who will soon depart the court. (Breyer served eight years in the army reserve, including six months on active duty in Army Strategic Intelligence.) How can the federal government be so harmed by confirming the fact of the location of torture, known by everyone, that a claim of state secrets privilege should be sustained? Are there any limits on this nonsense at all? Sotomayor and Gorsuch’s dissent ripped the majority’s position to shreds — which was much more merciful than the 83 incidents of water-boarding (i.e. drowning) and other forms of torture including sleep deprivation, deprival of solid food, physical assaults, keeping him awake for 126 hours, and more. Why does the government seek suppression of this already-known information? “[It] seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds.” Just awful.
Twitter security. Is Sen. Marco Rubio’s vigorous tweeting through the Russia-Ukraine war leveraging the classified intel he receives from the executive branch as a member of the Gang of Eight, Politico asks. I’m not sure we care, but we do think more members need help with assessing classified information.
USCP officer suspended for misconduct abroad. A special agent for USCP who was accused of “having a physical altercation” and drinking alcohol while on official business in Israel is currently under investigation, USCP announced.
Trump’s “criminal conspiracy to defraud the United States.” The Select Committee on Jan. 6th released new findings last week characterizing Trump’s attempt to obstruct Congress’ election certification as a “criminal conspiracy.”
Deutch treat. House Ethics Chairman Ted Deutch is retiring, RollCall reports, to become CEO of the American Jewish Committee. I wonder whether he filed a disclosure for his negotiation for future employment — if so, we’d never see it as the Legislative Resource Center isn’t open to the public.
Cry me a river. The lobbyist organization National Institute for Lobbying and Ethics apparently has coordinated a letter from (some?) lobbyists complaining that the legislative buildings are not widely open to tour groups and lobbying coalitions and expressing their irritation about having to sign-in to get access to congressional offices. While we would like Congress to be open to all, we would suggest first addressing physical and health security risks.
Sen. Tim Kaine is still suffering from long Covid, and introduced a bill last week to fund research into the lingering effects of Covid-19 infection.
New updates to Congress.gov include better mobile functionality and new legislative tracking and search features.
OSTP troubles. We note that telling employees not to talk to press — particularly in a beleaguered office environment — is generally a bad way to rebuild trust.
Drop the calendar. Sens. Mark Kelly and Jon Tester introduced a concurrent resolution last week that would require all Members of Congress to make their schedules public.
Nota bene: Good luck to Krista Boyd, whose confirmation hearing as OPM IG is this upcoming week.
CALENDAR
LegisTech: Women in Leadership is the name of a conference set for March 8 and 9, hosted by Bussola Tech, focused on the institutional modernization and the digital transformation in national, devolved and sub-national legislatures that will highlight the work of women colleagues in leading that transformation.
The National Archives will host a conversation between AOTUS David Ferriero and Librarian of Congress Carla Hayden on Monday, March 14, 1 p.m. to 3:30 p.m. More details TBA (including how to RSVP).
Next week: Sunshine Week kicks off next Monday. You can find a list of the upcoming events here. To celebrate, the Advisory Committee on Transparency is hosting a virtual conference on March 16 at 12PM, where transparency experts will discuss FOIA, whistleblowers, press freedom, and more. RSVP here.
Hearing on banning congressional stock trading. House Admin will consider the various proposals to reform the STOCK Act on March 16. POGO and CREW are both expected to submit testimony, Business Insider reports. As we’ve written before, banning unethical behavior is just one component of congressional ethics reform.
SCOTUS confirmation hearings timeline. The Senate Judiciary Committee will begin four days of confirmation hearings for the Hon. Ketanji Brown Jackson on March 21.