Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
THE TOP LINE
Notable events this week: Strengthening Congressional Oversight Capacity is the focus of a ModCom hearing on Thursday; ACMRA and several IG bills get a HSGAC mark-up on Wednesday; and save the date for next Monday’s lightning talks on eight new transparency ideas.
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APPROPRIATIONS
Senate Democrats’ draft CJS bill and explanatory statement includes a new push for transparency around the Foreign Agents Registration Act — nice! — but does not include a parallel provision to the House’s language directing transparency for OLC opinions, which is something Demand Progress had requested. It’s inclusion is not necessary as committee report language controls so long as it’s not contradicted elsewhere. Our rundown on transparency-related CJS matters is here.
Senate Dems’ draft FSGG approps bill had at least two notable items — transparency around apportionments and increasing the federal government’s intern capacity — and we’ve looked at the transparency provisions in that bill here.
CONGRESSIONAL MODERNIZATION
“Article One: Strengthening Congressional Oversight Capacity” is the title of a ModCom hearing scheduled for Thursday, November 4th at 9 AM. In anticipation of the hearing, we published this report with four recommendations to regain and strengthen oversight powers that Congress previously abdicated. See you there.
Over 33 ModCom recommendations have either been fully or partially implemented, according to the committee. Fully implemented recommendations include: creating a centralized HR Hub dedicated to congressional staff; decoupling member and staff pay; and improving access to congressional websites to individuals with disabilities. ModCom’s new implementation page has the complete breakdown. Keep up the good work!
Strengthening the lawmaking process through data-driven decision making was the focus of the latest House Modernization Committee hearing. Ideas that implicate congressional technology can get a little confusing, so let’s try to clear it up.
— Congressional technology. There are at least four significant lenses to thinking about congressional tech: (1) How Congress ingests information about policy that is mediated through technology, such as receiving and understanding data from an agency on how it has implemented a policy. (2) How Congress manages information about the legislative process, such as seeing how an amendment would change a bill or filing a bill electronically. (3) How Congress manages information about its operations, which is everything from managing constituent communications to requesting repairs in your office. (4) Who builds and maintains these tools and how is data made interoperable and accessible?
— Timely, accurate data. Everyone is entitled to their own opinion but not their own facts. That is the core idea behind evidence-based policymaking, and how to surface those facts is the focus of the testimony of Nick Hart, president of the Data Foundation. Relatedly, Tara McGuinness, a fellow and senior advisor at New America, emphasized in her testimony that Congress must further invest in modern toolkits and user testing to better measure the legislative impact of the population it serves.
— Who builds and maintains Congressional technology and how that data is shared is the focus of a dozen recommendations that Demand Progress released last year, including creating a Legislative Branch Data Coordination Office (to harmonize how the Legislative branch produces and shares data) and the establishment of a Congressional Digital Service (to support the Legislative branch’s efforts to build and update its technology.) My testimony here addresses four immediate steps the House could take right now to further technological innovation in the House.
— Chief Data Officer. All three witnesses in Thursday’s House Modernization Committee Hearing supported — in some form — the creation of a Chief Data Officer who can track data sets released by the Legislative branch and provide assistance and expertise with finding and obtaining legislative data. Obviously we agree about the creation of that office, and our recommendation for a Legislative Branch Data Coordination Office is an updated version of a Leg Branch CDO that is less likely to ruffle feathers from other Legislative branch stakeholders.
— Senate Leg Branch Approps, by the way, includes direction to GAO to brief the committee on how federal spending information required to be published under the DATA Act “could be used to support congressional oversight, constituent relations, and policy formation,” specifically: “how existing data could be formatted to support the work of Congress.” This, at its core, is evidence-based policymaking.
The Commonwealth Association of Legislative Counsel’s latest journal took a look at the ModCom’s efforts to improve US Congressional operations.
JUDICIAL TRANSPARENCY
The House Judiciary subcommittee reviewed federal judicial recusals and financial disclosures in a hearing last week. We’re particularly partial to the testimony submitted by Michael Lissner of the Free Law Project and Dylan Hedtler-Gaudette of POGO. Free Law Project’s judicial financial disclosures database launched last month and has been integral to the increased scrutiny of federal judges’ ethical violations.
— Hedtler-Gaudette’s recommendations included publishing financial disclosure information online (including periodic stock transactions); improving the detail of the disclosures for travel and gifts; publishing explanations for recusal decisions; and directing the Supreme Court to create a code of ethics.
— Lissner’s recommendations, rooted in FLP’s experience building the database, include modernizing the financial disclosure system; enacting a ban on “all magistrate judges, bankruptcy judges, and Article III judges and justices from making or holding investments in individual stocks;” and passing a FOIA-like law for the judiciary. (NARA’s FOIA Advisory Committee endorsed extending aspects of FOIA earlier this year.)
On federal court documents, the U.S. government’s technology and design consultancy, 18F, issued a report evaluating the federal court’s disclosure and filing systems. The findings were fairly damning, so it is commendable that the Administrative Office of the Courts released 18Fs analysis. Their recommendations: the AO should embrace human-centered design and a better approach to building & maintaining technology through its lifecycle; move to the cloud; and put APIs at the heart of its court filing systems.
EXECUTIVE BRANCH OVERSIGHT
An important transparency bill has been rescheduled for markup before HSGAC on November 3rd. You all know our interest in the Access to Congressionally Mandated Reports Act (S. 2838), which would improve oversight of the executive branch by establishing a central repository to track and store all agency reports submitted to Congress. The repository would improve access to reports for congressional staff and the public alike, and would help ensure that reports are submitted to Congress on time. Demand Progress has supported ACMRA since 2017; here’s Demand Progress’ one-pager on the legislation, and coalition letters to the House and Senate submitted to the 116th Congress.
Four bills that would strengthen IG independence and capacity are also on the Nov. 3rd HSGAC docket. Three of the bills (the Securing IG Independence Act, S. 587; the IG Testimonial Subpoena Act, S. 1794; and the IG Independence and Empowerment Act, H.R. 2662) were previously scheduled for markup on Oct. 6th. We wrote about them (and noted Demand Progress’ and 15 other organizations’ endorsement of H.R. 2662) here. The fourth bill — the Keep the Watchdogs Running Act (S. 2273) — would allow Inspectors General to continue working during lapses in appropriations.
The US government purchases private records from data brokers to conduct surveillance — and EO 12333 ostensibly authorizes it to do so without judicial, Congressional, or public oversight. This represents one type of secret law; without the efforts of investigative reporters and members of Congress, we wouldn’t know that the IRS, DoD, and DHS have all purchased private records. On the 20th anniversary of the Patriot Act, Sen. Ron Wyden called for the passage of the Fourth Amendment is Not for Sale Act (S. 1265), which would prevent agencies from purchasing data in secret that they would otherwise need a warrant to obtain.
CAPITOL SECURITY
66 former lawmakers opposed former Pres. Trump’s effort to restrict access to Trump Administration records in an amicus brief filed with the DC District Court.
Congressional employees felt left out to dry by USCP on Jan. 6th, raising important questions about whom USCP protects. Journalists, congressional staffers, and hospitality and custodial workers who were inside the Capitol building during the riots told Business Insider that USCP officers focused on evacuating Members and they were left in the dark and exposed. Protecting the Congress means having plans in place to protect everyone in the Capitol building in the event of a security breach.
Deputy Chief Eric Waldow is retiring from the Capitol Police. He led the Civil Disturbance Unit on 1/6 and is one of the handful of top officials who “played an integral role in planning for Jan. 6 and were subject to no-confidence votes” by the union.
USCP rolled out a new system for DC residents to receive security alerts from the department, Del. Eleanor Holmes Norton announced on Thursday. We’re glad the local community will have a way to stay abreast of potential threats to their safety (a reform that we and Del. Norton have called for previously). DC residents can sign up for alerts through AlertDC, the district’s emergency notification system.
A USCP officer who was indicted on obstruction of justice charges related to Jan. 6th has resigned, Politico reports. The officer instructed one rioter to delete potentially incriminating Facebook posts, according to the indictment.
ETHICS
After dumping $1.6 million in stocks a week before the COVID-19 market crash, Sen. Richard Burr called his brother-in-law Gerald Fauth. One minute later, Fauth called his broker to begin the process of dumping stocks himself, ProPublica reports. Sen. Burr and Fauth are both subjects of ongoing SEC insider trading investigations related to nonpublic information Sen. Burr allegedly traded on and shared about the impending economic impacts of COVID-19. Fauth has failed to comply with the agency’s subpoena for over a year. Demand Progress and other civil society groups previously called for Sen. Burr’s removal from his chairmanship of the Senate Intelligence committee in March after ProPublica’s initial reporting on the stock dumping, and also filed a complaint with the Senate Ethics committee. Sen. Burr was not disciplined; moreover, 2020 marked the 14th consecutive year that the committee has issued zero disciplinary sanctions.
The Office of Congressional Ethics, the House’s independent ethics watchdog, released its 2021 third-quarter report last week. Approximately 2,172 private citizens submitted allegations of misconduct or requests for information in Q3, and the OCE transmitted five matters to the House Ethics committee for further review.
ODDS AND ENDS
The average FOIA request response time was 97 days in FY 2020, an 8-day increase from the year prior, according to a new CRS report. Nearly 8% fewer FOIA requests were submitted in FY 2020 than in FY 2019, and agencies’ invocation of exemptions also dipped, but exemptions for personal privacy and law enforcement records continued to be used quite frequently.
Resources for staff who may be leaving the Hill. Planning for financial security in a job transition, including taking care of details like health insurance and TSP contributions, is the focus of a POPVOX Foundation checklist released in partnership with Melissa Dargan.
Federal Scientist Whistleblowing protections and best practices are the subject of a new Office of the Whistleblower Ombuds fact sheet.
Resources for conducting executive oversight are now available on the Levin Center at Wayne Law’s new website, which has curated resources specifically to the needs of members of Congress, state legislators, and oversight scholars.
Journalists at Politico are seeking a union vote just days after the outlet was acquired by the German media empire Axel Springer, the focus of a recent (and not laudatory) NYT article.
The EU Parliament is suing the EU Commission because of the executive’s failure to enforce certain laws against member states. It is interesting to see this tension between the legislative and executive play out around the world.
Rep. Adam Kinzinger, who currently sits on the Select Committee on Jan. 6th, announced his retirement.
The fight over ex-Pres. Trump’s White House records is heating up, with filings over the weekend. “According to the National Archives, the former president has sought to block about 750 pages out of nearly 1,600 identified by officials as relevant to the Jan. 6 investigation.” The National Archives weighed in against granting the preliminary injunction.
CALENDAR
The Advisory Committee on Transparency is hosting a ‘lightning talk’-format webinar next Monday, November 8th, at 11 AM ET. Register here.
The future of law libraries will be discussed at the Library of Congress’ Jane Sánchez Memorial Lecture on November 9th at 3 PM. Register here.
Do you have an event you want to share? Let us know. Email capacity@demandprogress.org