July 22, 2024

Good morning and welcome back to what likely will be an insane two weeks before the August recess. As we get started, a few programming notes.

The next edition of the First Branch Forecast will come from news@firstbranchforecast.com. Please add that email to your address book, whitelist it, or say whatever incantation is necessary for it to make it into your inbox.

A virtual cybersecurity class for district staff will be hosted by yours truly at the American Governance Institute, the R Street Institute, and Demand Progress on July 31. Its focus is general cybersecurity advice concerning personal accounts used by congressional staff. Cybercriminals are happy to target staff and they don’t distinguish between your professional and personal accounts, but personal accounts are generally outside the scope of support provided by Congress. If you’re a district staffer, RSVP here.

Presidential politics is generally outside of this newsletter’s scope, but I must note Pres. Biden’s written statement, posted on Twitter, that he will end his campaign to seek reelection as president. Biden had faced criticism owing to concerns about declining capabilities to serve, declining electability, and possibly owing to the policy preferences of those who wished him to step aside. He endorsed Vice President Harris as his political successor. This Yahoo! profile explores how she behaved in the Senate.

The decision to voluntarily relinquish power is so rare that it is often celebrated. Pres. Washington’s decision to not seek another term not only set the precedent of two terms for presidents, but allowed a young republic an opportunity to flourish. A historical forebearer is Lucius Quinctius Cincinnatus, who took office in the early Roman Republic and stepped aside when the emergency ended. In our political system where some politicians stay too long, both out-of-touch and past the point of infirmity, it is notable that Pres. Biden has made way even when he did so under significant pressure. How many other political figures should follow this example?

Impoundment

A new terrible thing has just dropped. Everyone knows that Congress has the power of the purse. But allies of the Trump campaign, including a former OMB Director, are saying the president has the inherent power to impound funds. Even after a law has been enacted directing funds for a particular purpose, they’re arguing the president can withhold those funds forever because he disagrees.

If you’re scratching your head and thinking “wasn’t this already resolved by Congress and the courts” in favor of keeping the White House’s hands off the funds, you’re darn right. And yet, just last week the quite respectable Chair of the House Appropriations Committee endorsed presidential impoundment.

What the heck is going on? I try to answer that question, and explain why it matters, in my subtly named article entitled “The Trump Administration’s Plan to Seize Control of Spending” in The American Prospect.

I oppose impoundment by any administration. So do others. This is dangerous territory, one that threatens a key congressional power to hold the Executive branch in check. You can click over and check out the article, the newsletter will be here when you get back.

Protecting Congress

The Secret Service, long one of the most respected law enforcement agencies, suffered a catastrophic failure in its efforts to protect a presidential candidate. There’s a long history of these failures. There was the time in 2011 when a man shot up the White House and the Secret Service didn’t realize it. Business Insider recounted additional failings, including: when agents hired prostitutes in Columbia in 2012 before a presidential trip to that country; a knife wielding intruder making it into the East Room in 2014; two agents who likely had been drinking crashing a car on White House grounds in 2015; a person who jumped over the White House fence wandered around for 15 minutes in 2017; and the failure to heed warnings about the attack on the Capitol in January 2021. The Secret Service also deleted text messages on and before January 6th.

I bring this up not to point out the apparent failings of that agency, or that a 2015 bipartisan report on that topic has gone unheeded, but to point to what I think is insufficient reform of the Capitol Police in the wake of January 6th. They have an analogous role to the secret service and also have had trouble meeting their mission.

There have been some positive changes to the USCP subsequent to the Trump insurrection. From a personnel perspective, the list includes the complete changeover of every member of the Capitol Police Oversight Board, a new Capitol Police Chief, and a new Capitol Police Inspector General. From a policy perspective, the Capitol Police Chief was empowered to ask the national guard for backup, the USCP has purchased riot gear and other equipment, there’s a surge in hiring of officers and also the deployment of contractors on less essential posts, some reworking of the intelligence apparatus, they’re actually responding to some questions from the press, and there’s some (slow) implementation of Congress’s direction to disclose reports by the Capitol Police Inspector General.

Congress, notably the Senate Homeland Security and Governmental Affairs Committee and particularly the House Administration Committee, held a series of hearings that dug into USCP operations. It was disappointing, however, that the January 6th Committee did not focus its considerable resources on the management issues at the USCP and structural problems with congressional oversight. (I’ve compiled congressional oversight information here.)

Nonetheless, many of the changes I view as necessary to protect the Legislative branch are not in place. The Capitol Police should be a security force, not a police force. Yet Congress has pressed the USCP to take on police functions further away from the Capitol. The Capitol Police Inspector General should be fully independent of the USCP Chief and Board and have its oversight authority extended to the Board. House Administration and Senate Rules Committees should have dedicated staff who are experts on security that oversee the USCP and are paid by a separate appropriations line item. The Capitol Police Board should have their own independent staff, as they have requested.

The USCP should follow through and implement a FOIA-like process for access to its records. (We drafted model regs to get them started.) There should be an independent oversight body. The USCP should gather and disclose data around the threats to members of Congress, including how many are made, result in an investigation, result in an arrest, result in a prosecution, and result in a conviction.

These are not new ideas. I testified before the House Administration Committee in February 2022 on this topic, and the day after January 6th, 2021, we published the result of our two year-long review of the Capitol Police. At the time, we found their leadership to be hostile and dismissive. Also at the time, there was little interest in capitol security from Congress and none from journalists. Since then, has there been sufficiently increased training for the USCP? Have they made the transition to a security force? Have they improved intelligence collection and analysis? Have they hardened the Capitol Complex while keeping it open? How’s the protective services bureau working?

Some of the lack of progress is attributable to partian efforts to obfuscate responsibility for January 6th. But also, “back the blue” is creating political dysfunction, where members of Congress do not want to be seen as critical of law enforcement and thus are deterred from publicly raising questions about USCP operations. The result is a background of tension, where members feel unsafe and are relying on the professionalism of the USCP, but the USCP itself is operating in a political environment that on one hand provides significant budget increases every year, but on the other hand constrains necessary criticism and its transformation into a security force.

I had suspected the USCP was headed for failure long before January 6th because there were insufficient mechanisms to provide feedback and correction. Looking at matters today, Congress wasn’t able to provide sustained, meaningful, rigorous oversight that resulted in the imposition of transformative structural reforms; the Capitol Police Board is enfeebled; there’s no protection for whistleblowers amid notable instances of retaliation; there’s undue protection of senior officers who have engaged in leadership lapses; the IG is insufficiently independent; and the press is largely inattentive to the fact that we see the same cycle repeating itself. We are hearing the internal overseers are getting more information from the Board, which is progress, but far from enough.

We are four months away from another tough election, and six from inauguration day. There’s little time, and much to do.

Congress, science, and technology

GAO Modernization was the subject of a House Administration oversight hearing in 2023, a hearing that takes on additional relevance in light of the Supreme Court’s recent Chevron decision that disempowered Executive branch agency experts from putting into effect broad Congressional directives. Congress needs a significant science and technology capacity to help it write more specific laws to attempt to meet the new legal standard. Newly released questions-for-the-record from the 2023 hearing surfaced expert views on how Congress could modernize GAO’s science and technology capabilities. Most notably, the capabilities Congress should write into law.

Dr. Tim Persons, who formerly served as GAO’s Chief Scientist and the lead of the Science, Technology Assessment, and Analytics Team, responded to questions about updating GAO’s statute on strengthening science and technology. He recommended updating the GAO Audit Act in a number of ways. He recommended authorizing and recognizing the GAO Innovation Lab within the Science, Technology Assessment and Analytics Team (STAA). He suggested the need for evidence-based policymaking means GAO should have expanded authorities for information/data access and retention. He proposed the Innovation Lab have special hiring, data acquisition, data management, and external partnerships authorities. He also recommended renaming the Innovation Lab to the Congressional Innovation Lab, to reflect that its role is to do more than only support GAO audits. Ideally, the Congressional Innovation Lab would have the access-to-information powers of GAO and also much more flexibility of action.

Dr. Persons also underscored his support of authorizing the STAA (Science, Technology Assessment, and Analytics Team). He argued the STAA has a unique mandate to conduct technology assessments and produce science and technology spotlights in addition to GAO’s traditional work. The STAA needs a high level of research independence to ensure the credibility and reliability of its findings as well as to serve Congress in an agile manner. He delved into how internal politics inside the GAO prevented the STAA from providing research requested by Congress. He argued in favor of STAA operational independence.

James Christian Blockwood, who had previously served as Managing Director, Strategic Planning and External Liaison at the GAO, addressed updating GAO’s statutory authority as well. He recommended providing GAO with the authority to synthesize and curate recommendations from across the accountability community, which includes not just CRS and CBO but also Inspectors General. He suggested strengthening incentives/penalties for agencies when they do not furnish data for an audit or follow up on GAO recommendations. He recommended creating a robust customer experience function within the GAO. And he urged a strengthening of GAO’s orientation efforts for Congress and newly appointed executive branch leaders.

The FAI’s Dan Lips addressed ways that GAO’s statutory authority should be updated. Among his recommendations: He suggests changing how the Comptroller General is nominated and confirmed so that the president no longer nominates the GAO head. He suggested the Science, Technology Assessment, and Analytics team should be authorized by Congress and its head be granted additional hiring and acquisition authorities. And he suggested the GAO’s statute could be updated to ensure it has timely access to Executive branch information. (I wrote about similar efforts elsewhere with respect to CRS’s statute.)

GAO is working to build a science and technology capability, but senior former GAO staff have identified what they believe are limitations arising from the structure of GAO. The STAA is in many ways an attempt to create a modern successor to the defunct Office of Technology Assessment, which was foolishly defunded in 1995. Zach Graves and I wrote an article a few years back spelling out pathways to rebuild that capacity.

In the wake of the Chevron decision, Congress may wish to consider how to make those capabilities more robust. The report language I discussed in last week’s newsletter regarding a new directive for GAO and CRS to report on their assessment of science and tech capabilities and progress is a step in the right direction, but significant flaws in NAPA’s report on the topic and recent developments suggest that more capacity and institutional building is necessary, at GAO and beyond. Making all this more urging is the end of the Comptroller General’s 15-year term at the end of 2025.

While you ponder what we pondered, don’t miss the House Administration Committee’s hearing this Tuesday on Congress in a post-Chevron world.

Appropriations

Senate Appropriators will mark up four appropriations bills this week: Commerce Justice Science, State & Foreign Operations, Transportation, and Interior. Before the break, they favorably reported (by unanimous vote) Legislative Branch, Agriculture, and Military Construction-Veterans Affairs. We summarized the contents of Senate Leg branch in last week’s newsletter.

The House of Representatives is set to consider four appropriations bills this week on the floor: Energy and Water, Interior, FSGG, and Agriculture.

The House Rules Committee gave notice that T-HUD and Labor-HHS appropriations bills may be considered on the House floor the week of July 29th, and members must submit proposed amendments by Monday, July 22nd at 4pm. I’m wondering if/when Leg branch will come back up, and also, what’s the status of CJS?

A disaster appropriations supplemental funding bill is being discussed as the disaster relief fund account is expecting a $6 billion shortfall before the start of the fiscal year in October. However, as Politico reports, don’t expect action until after the August recess. The White House sent an emergency request for $4 Billion a few weeks ago, but Congress may not have the political bandwidth to address the issue.

Inspector General reports

CIGIE, the Council of Inspectors General on Integrity and Efficiency, will be the focus of a House Oversight subcommittee hearing on Tuesday. Inspectors General are (largely) independent watchdogs inside federal agencies, and CIGIE is the council that brings most of them together. The chair of CIGIE, Mark Greenblatt, will be testifying.

Oversight.gov. On their own accord, CIGIE encouraged members of the IG community to publish their reports on oversight.gov, a website CIGIE created and initially funded as a resource to other inspectors general, Congress, and the oversight community. It was modeled on a project built by a former member of civil society, Oversight.garden, which gathered IG reports from the various websites where they are published and combined them into one location. Oversight.gov has about 30,000 reports and oversight.garden has about 40,000. There are around 74 federal inspectors general and a few others that have that title, including some in the Legislative branch. Appropriators blessed CIGIE’s website and provided it with a little bit of money.

Transparency is key to an IG’s mission. The ability to investigate wrongdoing without interference and to report to Congress and the public is key to an IG’s success. Not all IGs have this level of independence. In fact, a major scandal occurred when it was revealed that the CIA was spying on their own IG’s communications to Congress concerning whistleblowers. (The CIA also has spied on Congress.) That is why all IGs should have funds to run their own email and website systems separate from the agency where they are placed – and if their office is too small, CIGIE should be supported to provide them this technical support.

On transparency, part of what gives an IG persuasive power is the publication of their reports – and the findability of those reports by folks in Congress, the press, and elsewhere. But not all IGs are publishing all their reports on oversight.gov. They should. In addition, some reports can’t be published because they contain sensitive information. In those circumstances, the IGs should be required to publish the title and a brief description of the report, so that Congress and others can know the report exists and ask for copies, to provide an archive for later, and to allow IGs to learn from one another on how they conducted oversight on a particular issue. (GAO does this.)

CIGIE’S INTEGRITY COMMITTEE! Last week I couldn’t find the CIGIE Report on the integrity of the Library of Congress Inspector General, so a kind correspondent sent me a link. You can find the “integrity” reports here, although the page is quite austere, is it not? It’s buried on the website. To find them, to go IGNET > CIGIE > Committees > Integrity > Reports of Investigations. CIGIE friends, maybe the integrity committee page should be more prominent? I had looked on oversight.gov, but didn’t see the report there, so perhaps add the Integrity Committee as an IG office field?

On the subject of the report, it appears the integrity committee found only that the IG’s participation in oversight of an office on which he helped get a friend hired “created an appearance that his independence was compromised.”

Ethics

Sen. Menendez was found guilty on all charges, including accepting bribes and acting as an unregistered agent of the Egyptian government. For context, he was also indicted in 2017 for bribery and was severely admonished by the often inert Senate Ethics Committee in 2018. After resisting calls in the run up to the verdict, Sen. Schumer has called for Menendez to resign, joining at least 31 Democratic senators who had done so back in September. Some representatives are talking about expulsion. Craig Caplan points only that 15 senators have been expelled, 14 during the civil war. Gov. Murphy says that if Menendez resigns, he will appoint a temporary replacement.

The laggard Senate Ethics Committee released a laconic statement that it will “complete its investigation promptly” into Sen. Menendez. The Committee started and immediately paused an investigation into Menendez in September because that is their practice when there is an active and ongoing criminal investigation. That policy makes no sense, of course: Senate ethics are much broader in many ways than criminal law, there is great danger in having a senator in office who grossly violated Senate ethics rules, and the standard for expulsion from the chamber should be much lower than being convicted in a criminal court. (The concern is that the Ethics committee investigation could in some way impede the criminal investigation, which is plausible but neither persuasive nor determinative.) A crooked senator, such as a committee chair in a 51-49 senate, poses a significant threat to democracy.

Senators have little interest in policing themselves. They should have an independent Office of Senate Ethics, modeled after the House’s, because senators are very reluctant to investigate other senators and appear to give their colleagues every benefit of the doubt.

Rep. Henry Cuellar’s corruption trial was delayed until after the election. (This happened in early June.) It’s notable that Democratic leadership strongly supported Cuellar in 2022 in his primary campaign even though there were obvious corruption concerns.

Who else? Former Speaker McCarthy said that members other than Rep. Gaetz came to him and asked him to intervene in the House Ethics’ Committee’s investigation of Rep. Gaetz. Which other members?

Tracking lobbyists

Unique identifiers for lobbyists. A modernization report on creating unique identifiers for lobbyists was published last week. The long-running project intends to make it easier to track lobbyists across lobbying reports. As things stand now, someone looking at the data from the lobbying reports cannot tell if a person listed as “John Smith” on a Q3 2024 report is the same “John Smith” listed on a Q2 2024 report. In other words, you cannot easily track lobbying activities over time, which is a significant purpose of the lobbying disclosure system. Lobbyists do have unique identifiers, but they are not published to the public, and it has sometimes been the case that Congress has given new lobbyist IDs to people who have lost their old ID, creating multiple IDs connected with a particular individual.

The House Modernization Committee recommended a unique lobbying ID be created and appropriators have authorized the creation of such an ID. This modernization report is the 13th in the series, with the first report back in May 2020, more than four years ago. The Senate provides no visibility into their end of the project.

The Clerk reports that since their January 2024 report, they have worked with the Senate to “formalize and launch a project to modernize the existing systems.” A “Lobbying Disclosure Act Executive Decision Board” continues to meet monthly, having met five times since January. In the coming months, they plan to continue with “project discovery and requirements gathering” to define key features of the redesigned lobbying disclosure system. The Board will use some of the $1.4 million in appropriated funds for research, development, and implementation of identity verification and improved account management. They are currently using some funds to “augment staff” to assist with system development. The next report is expected by January 2025.

Odds & Ends

In contempt. Don’t miss Michael Stern’s excellent analysis of the intersection between congressional contempt and audio of Biden’s interview. Stay to the end for a discussion of inherent contempt. He (rightly) argues: “now that the courts have effectively declared the president to be a super-citizen, the only check against presidential criminality and many abuses of executive power will be congressional oversight and impeachment. It is more important than ever that Congress have means of enforcing its demands for information, and that imperative should override partisan bickering over this particular contempt.”

Heritage Foundation alumni serve in at least 30% of Republican offices, according to Legistorm. The only organization more likely to show up in their collective resumes is the RNC.

Open Access to Information, especially research, is important for innovation and transparency. The White House Office of Science and Technology Policy has submitted a report to Congress on efforts to encourage and require scientific research funded by the US government to be made available to the public without charge or barrier. At least, that’s what I think it’s on. The prose was so dense it was hard to follow what they were saying. I think the upshot is this: “Updated agency public access policies will go into effect by December 31, 2025, in accordance with the 2022 Memorandum.”

States should disclose federal guidance documents, a coalition of conservative organizations urged. Read their press statement and model policy.

Are special counsels unconstitutional?

The International Federation of Library Associations section on Library and Research Services for Parliaments (PARL) invites proposals for presentations at its 2024 Annual Conference to be hosted by the Senado de España, in Madrid, Spain, on Thursday and Friday October 17-18, 2024. Proposals are due August 9th.

If JD Vance becomes Vice President, Ohio Gov. DeWin will pick his replacement who will serve until a special election in 2026.

Vance’s bills? Our friends at GovTrack have taken a close look at “his most interesting bills in Congress.“

GPO has a new deputy director, Brian Pearl.

A multipolar parliament. The biggest minority party in the British parliament has roughly half of the opposition seats. What does that mean for how the minority’s rights are distributed – and what are those rights? The Hansard society takes a look. (For the US audience – the House of Commons allocates 20 days in each parliamentary Session to the opposition parties. Can you imagine?)

Cuba Democracy Assistance. There’s a new restricted GAO report entitled: “Cuba Democracy Assistance: USAID Should Improve Collection of Security Risk Information to Help Awardee Mitigation Efforts.” If you’re a staffer and want a copy, contact GAO.

Rep. Sheila Jackson Lee has died. The Washington Post’s obituary does a good job of covering her “outspoken advocate for racial and gender equality” without glossing over her mistreatment of those who worked for her.

Calendar

Monday

The House Rules Committee will consider rules for FSGG, Interior, Energy and Water, and Agriculture appropriations bills.

Tuesday

Chevron deference will be the subject of a House Administration Committee oversight meeting.

Oversight of the Council of the Inspectors General on Integrity and Efficiency (CIGIE) will be the focus of a House Oversight Subcommittee hearing.

Wednesday

Today is the deadline to submit feedback on the House’s Collaborative Legislative Drafting Study. In case you missed it, the House released on Friday a series of answers to written questions from the public. (Scroll down to the document named “OAM24062S Collab Legislative Drafting Study RFI Questions.pdf (opens in new window).)

One interesting data point: of the 36,182 bills and resolutions with amendments to current law that were reviewed, 15,810 cites statute compilations – 43%, 4,966 cite the U.S. Code – 14%, and 367 cite public laws – 6%.

The post FBF: The Post-Biden Era: 7/22/2024 appeared first on First Branch Forecast.