Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
TOP LINE
This week. The Senate is in; the House is out. This week, much attention will focus on the Senate Judiciary Committee’s hearing on SCOTUS nominee Hon. Ketanji Brown Jackson. Last week was packed with Sunshine Week programming — we’ve got recaps below.
Sunlight on secret laws. A bill requiring the DOJ’s Office of Legal Counsel to publicly disclose its binding legal opinions was introduced in the Senate by Sens. Duckworth and Leahy last week. Demand Progress organized a letter in support of the legislation, noting how OLC’s secrecy threatens Americans rights and Congress’s legislative and oversight roles; luminary Democratic lawyers cataloged these threats in this 2020 statement. The DOJ OLC Transparency Act would bring to light OLC promulgated secret law, mitigate Executive branch overreach, and allow for a congressional response to abuses committed under the aegis of results-oriented OLC opinions. More from us here.
FOIA is the topic of a belated memorandum issued by Attorney General Garland, who on Tuesday instructed agencies reviewing FOIA requests to adopt a presumption of openness, make proactive disclosures, remove barriers to access, and remediate backlogs. All this came after extended requests from civil society and Members of both parties. Does it go far enough? GovExec’s Courtney Bublé summarizes the memo and our own Ginger Quintero-McCall highlights the need for: commitments to “greater resources to FOIA offices, […] supporting legislative reforms including a public interest balancing test, rolling back the harmful Argus Leader Supreme Court ruling, and ensuring transparency of Office of Legal Counsel opinions.” In an essay, Quintero-McCall lays out three ideas for improving FOIA implementation.
Approps now. Pres. Biden signed the FY 2022 approps omnibus into law Tuesday. The CPCC explains its contents here. We note two important — and possibly overlooked — congressional accountability measures included in the new law. Section 204 requires OMB to create an automated online system to disclose apportionment decisions. And section 748 requires notification to Congress if an apportionment is not made within the required timeframe.
Approps forever. One or more supplemental approps bills could be coming down the pike: the omnibus omitted the Covid-19 supplemental, teeing up a funding shortfall with the potential for a public health disaster, and another emergency supplemental to provide more aid to Ukraine. For FY 2023, Majority Leader Hoyer said he wants an agreement on topline spending by the end of the month. Pres. Biden is expected to submit his budget request on March 28th. And House Appropriators just published a webpage containing guidance for earmark requests for FY 2023.
More money for House staff is on its way thanks to the 21% increase to personal and committee offices included in FY 2022 approps. The effort was championed by Rep. Hoyer, Rep. AOC (whose letter was signed by a majority of Dems), and members of civil society. The quarterly expenditure reports will show which Members put their money towards their staff. As the House IG report noted, we still need an additional bump for personal office funds of ~$42k to get parity with the Executive branch, plus instituting an automatic cost of living adjustment. But, as AEI’s Kevin Kosar noted in his call for further investment in Congress, this is a sea change in Congress’s ability to do its job. We crunch the Leg branch funding levels here.
Former congressional staffers who support unionization are organizing an open letter to Congress: “It is incumbent upon members and senior staff to promote a positive workplace for everyone. Included in that are the internationally recognized fundamental rights to form a union and bargain collectively.” @former staffers: sign here.
#OpenCongress: A three-stage plan for opening the Capitol complex goes into effect a week from today (according to Punchbowl); tours of the White House are slated to resume April 15. Capitol Police staff shortages may force Congress to slow its roll, per Politico’s Huddle. You’d think the recent wave of Covid in the House would prompt some second thoughts. Beyond Covid-19, the reopening raises other physical security concerns including accessibility and fire danger. Last Thursday’s ModCom hearing on modernizing House office buildings touched briefly on accessibility, emergency contingency plans, and secure spaces for lawmakers — but mostly focused on utilization of government buildings. More below.
SUNSHINE WEEK EVENTS RECAP
This Sunshine Week was packed with hearing, panels, and all sorts of good news. Below we cover the panel discussions hosted by the Advisory Committee on Transparency and the National Archives; two hearings pertaining to continuity of Congress (Congress can’t be open if it’s closed); the HSGAC hearing on presidential records management; and GAO and GPO’s recent work promoting open government.
Advisory Committee on Transparency. The ACT panel (video) featured remarks from Rep. Quigley, Rep. Kilmer, and civil society panelists. Rep. Quigley, founder of the Congressional Transparency Caucus (12 years ago!) delivered remarks on the importance of building transparency and reporting measures into all legislation, and specifically advocated for the Access to Congressionally Mandated Reports Act (S.2838, H.R.2485), which would centralize agency reports to Congress; Rep. Kilmer focused on ModCom’s recommendations that Congress improve transparency around drafting legislation, Members’ votes in committee, lobbying disclosures, expiring programs and authorizations, and more. Kilmer also emphasized that accessibility is a key piece of transparency. In addition…
— The 2014 Data Act was the focus of reflections by Nick Hart of the Data Foundation; the law required Executive branch agencies to make their spending reports public (now on USAspending.gov). We note the White House still has yet to issue implementation guidance on that law (which should have been done in the Obama administration).
— FOIA implementation was the topic du jour for Kate Oh of the ACLU, who highlighted the importance of FOIA implementation now that AG Garland has finally issued a FOIA memorandum.
— Transparency to counter corruption, particularly corporate transparency, was at the center of remarks by POGO’s Danielle Brian, who explained the role of transparency laws in countering corruption and the need for the US to crack down on shell companies and beneficial ownership arrangements that bolster kleptocracy at home and abroad.
— Protecting whistleblowers and the role of the House Office of the Whistleblower Ombuds was at the heart of remarks by the House Whistleblower Ombuds Shanna Devine, who explained how whistleblowers can help expose fraud and abuse.
NARA. Panelists at the National Archives’ Sunshine Week event reified the importance of maintaining public records and discussed the agency’s ongoing digitization effort. We note in particular Ginger Quintero-McCall’s remarks on why the FOIA is indispensable to accountable government (at 1:07). This is the last appearance by the Archivist, who had a conversation with the Librarian of Congress. Unfortunately, the moderator, who is a major donor to the Library of Congress, did not ask the panelists any questions proposed by the public; a different arrangement in the future where people can ask questions directly or a public advocate can serve as intermediary would be welcome.
Presidential Records Management. Tuesday’s hearing before HSGAC on the proper management (that is, not flushing) of presidential records highlighted agreement among panelists and many members agreeing that the use of ephemeral messaging — like Signal and Snapchat — is a big problem, which often results in federal records being destroyed. They also agreed that the volume of digital records now being created and turned over to the National Archives presents new challenges that merit greater consideration and better technological solutions. Several panelists argued that there needs to be greater accountability under the Federal Records Act and Presidential Records Act, which currently allows too much discretion around the destruction of records. The National Security Archive has more on the hearing.
Continuity of Congress. The House Rules Committee held a lengthy Member Day Hearing entitled Proxy Voting and Remote Committee Proceedings, which included a thoughtful, 5-hour discussion (video) of remote deliberations on the House floor, in committees, and the increasing use of technology by the House of Representatives. You should definitely watch the testimony of Rep. Sanchez, who eloquently explained the human costs of the House’s policies in very personal terms — for example, how only 11 Members of Congress have ever given birth while in office, or what to do when the House unexpectedly reconvenes at 11pm on a Saturday and you have to decide whether to wake your kiddo to take them with you or to skip an important vote — and what all that means for representativeness and inclusivity. See also the testimony of Rep. Veronica Escobar, who laid out a practical regime for how to limit remote participation while keeping the option open for when it makes sense. In many respects the problems concerning remote deliberations are very much tied up with the House’s unreasonable, unplanned, chaotic schedule as well as the historically exclusive nature of its composition. (More from Roll Call, the Hill, and BGov.)
• The bottom lines: (1) There is general agreement on allowing remote witnesses at times for committee proceedings; (2) There is general agreement on modernizing Congress’s technology; and (3) Members largely prefer in-person proceedings (but there’s a split on whether to provide flexibility).
• The Raskin Rule: Rep. Raskin laid out a standard for remote deliberations that makes sense: Members should be able to use proxy voting when they have a compelling medical reason to do so or a compelling family reason, and then it should be on them to explain that reason to their constituents. I have an addendum: it’s important to have fully remote proceedings ready to go should another emergency arise when it is impossible to physically meet in person.
• Why is this a fight? I’ve come to understand this is very much about the personal experiences of the members. Some members feel adrift and disconnected during remote proceedings and either do not have or do not bear the full weight of other obligations, such as compelling family needs. There’s also a fight about where power resides: whether with leadership, in the center, or spread out among the rank-and-file. It is right to be concerned about proxy voting moving power to leadership; that’s a problem with how remote voting works right now, not inherent in the nature of remote participation. In our view, it’s possible to have remote participation and protect member prerogatives. The House can balance these competing needs if Members are willing to be reasonable.
• Zelenskyy’s address to Congress by video illustrated the importance of remote participation.
GPO modernization. GPO’s new XPub software, rolling out now, should improve access to digital documents, web browsing of GPO documents, and the agency’s printing/processing capacity, according to Director Hugh Halpern. These welcome modernization reforms respond to needs discussed in Bulk Data Task Force meetings over the past several years.
GAO reports on open gov. For Sunshine Week, GAO rounded up three reports from the past year pertaining to open government, including recommendations for addressing the FOIA backlog, making USAspending.gov more complete and transparent, and making sure federal managers actually know that USAspending.gov — the official open data source of federal spending information — exists. Also, ICYMI, GAO just released their strategic plan for 2022-2027.
PUBLIC RECORDS
Unlocking federal documents. Many public records stored on microfiche (a format only readable using an antiquated microfilm reader) at federal depository libraries have been largely excluded from online public access, but a new Internet Archive project plans to digitize and publish the full collection. This whole thing is interesting: the federal government provided thousands of documents to federal document repository libraries for free; the libraries scanned the files to microfiche for easy storage in the pre-computer era; and now a private entity is scanning those microfiche files to make them publicly available online (because many are not otherwise available from the government on the internet.) Maybe GPO might be willing to host the digitized documents, too?
The Access to Congressionally Mandated Reports Act, legislation to centralize agency reports to Congress in an online repository that passed the House and was favorably reported by HSGAC, just received a cost estimate from CBO. (It’s inexpensive.) The measure (S.2838, H.R.2485), has strong support from civil society.
How to get the public to care about committee reports? The January 6th committee is looking for a facile journalist to write the committee report on the Capitol attack. What they wish to avoid? “Ensuring the report isn’t written in ‘Congressional Research Service’ style.” Ouch. (I wrote the occasional CRS report.) IMO, there are two aspects of telling the story. One is the narrative and construction of the report, which is key. The other is how the report is presented. GPO has been working on new report formats that are more engaging, more colorful, easier to navigate, and able to be published via multiple technologies (in print, online, perhaps for e-readers.)
ETHICS
Banning congressional stock trading is just the tip of the iceberg when it comes to congressional ethics reform, we wrote in the Fulcrum last week. Congress needs stronger regulations banning self-dealing, providing for publicly-available financial disclosure databases, and empowering independent watchdogs and enforcers.
Sitting member on trial. Rep. Jeff Fortenberry’s trial for allegedly accepting illegal campaign contributions and deceiving federal investigators is underway. The House Ethics subcommittee charged with investigating Fortenberry has likely suspended its investigation in the meantime, which is its customary but questionable practice.
Rep. Marjorie Taylor Greene’s suit lacks merit. A federal judge threw out Republican members’ lawsuit challenging fines assessed for their refusal to wear masks. Read the court’s opinion here.
LEGISLATIVE BRANCH ITEMS
Modernizing House office buildings was the topic of last week’s ModCom hearing (hearing video, witness statements). Architect of the Capitol Blanton discussed the AOC’s 2100 plan — an 80-year initiative to modernize the Capitol grounds and its buildings. Our biggest takeaway: there is no one singular entity that oversees facilities use; rather the House office building commission (composed of the Speaker, Majority and Minority Leader, and CHA) determines who controls the space. Katie Irwin, who testified on behalf of the American Institute of Architects, mentioned that workspaces need greater flexibility, as hearing rooms often go unused for the majority of the work day. Etsy’s James Ossman recommended Congress invest in greater sustainability practices such as LED lights and low-flow water to reduce costs. Patrick Wand of Mall of America spoke about investing more time to create better wayfinder tools for lawmakers, staffers, and guests since map signage keys and fonts are difficult to understand.
It’s time to stabilize pay for members of Congress. The Post‘s Paul Kane profiles Steny Hoyer champion of difficult causes such as restoring staff pay, restoring earmarks, and restoring member pay levels to their historical norms. We agree on staff pay and member pay — and wrote the definitive Slate-pitch back in 2013 entitled: “Congress Deserves a Big Fat Raise: We loathe them. Their work stinks. It’s time we paid for better.” Members most recently received a COLA in 2009 (per CRS) to $174,000, which per the Bureau of Labor Statistics inflation calculator would be $233,806 today.
• House and Senate leadership earn more: the Speaker earns $223,500, so perhaps all members should be paid the same pay rate and that new rate should be subject to the COLA. The last time a member I saw a member push an amendment to adjust these levels in the approps committee was by Jim Moran when he was a lame duck; he gave this interview.
• Toxicity. But even I, as someone who has spent more than a decade pushing for pay increases, know that the direct approach here will run into a ton of anti-Washington rhetoric. One promising approach would be to leave pay alone and provide Members a housing allowance so that Members are not assessed a cost for doing their jobs. Set the benefit equal to the average rent for a one-bedroom in DC — currently $2,444; make it available to Members whose net wealth is less than the annual Member pay of $174k annually (and adjust the threshold for inflation), which is about 80 Members; provide an additional benefit for new Members for after their election and prior to being sworn in, plus an additional month’s benefit for the security deposit and furniture; and make it available for actual costs only. Members need a place to stay in DC, so those costs should be covered.
• Member dorm. If we’re going for pie-in-the-sky, I’d look to a nearby military base (maybe Joint Base Anacostia-Bolling) and expand the apartment-style housing for those Members who qualify. To help finance, the House should sell the property that used to be the page dorm.
Scheduling scrutiny. Sens. Rubio and Blumenthal have come under scrutiny for spotty attendance at the Helsinki Commission hearings, the little-known Legislative branch bicameral foreign policy body. There’s a bunch of these little entities and not a whole lot of scrutiny.
A best practices guide for LCs and SAs was released by the Modernization Staff Association.
Held in suspense. The CPCC has an explainer on suspension bills in the 117th Congress, noting 370 bills and resolutions have received a recorded vote, with suspensions accounting for 71%. Interestingly, 69% of suspension bills were led by Dems, and 31% led by Republicans. The report breaks down the legislation by committees of jurisdiction, co-sponsor characteristics, and more.
IG report on paid leave abuse in AOC office. The AOC IG’s report responding to complaints about employees’ misuse of sick leave corroborated “a number of instances of fraudulent behavior and significant potential for abuse,” but “ultimately determined that payroll systems were properly configured.”
Evidence-based support for Congress. GovLab issued these recommendations for how Congress can source and use high-quality research and evidence to inform the lawmaking process. The 5 recs: (1) Restore OTA; (2) Create a Leg branch Chief Data Officer; (3) Expand professional growth opportunities; (4) Pilot new hearing formats; (5) Strengthen rapid resource capabilities. Former Reps. Brian Baird and Mickey Edwards have more.
SECURITY
The Capitol Police were warned of violence, at least according to CREW which published a Postal Service Inspection Service threat analysis that declared “a high potential for individuals to incite civil unrest” on December 22. The threat analysis was circulated widely, including to the Capitol Police, the FBI, the Department of Homeland Security, and the Senate.
A look behind the insurrectionist curtain. A detailed plan to storm the Capitol complex on Jan. 6th, 2021, was cited (but not published) in the recent indictment of former leader of the far-right group, Enrique Tarrio, on conspiracy charges.
Paul Irving, the former House Sergeant at Arms appointed by Speaker Boehner who had responsibility, with 3 other members of the Capitol Police Board, for managing the Capitol Police and responding to the Trump insurrection, recently provided testimony to the January 6th Committee.
ODDS AND ENDS
Jargon, debunked. The CPCC has a great new resource explaining Hill jargon, available for your perusal here.
US ‘small business groups’ working for Russian oligarchs. The US’s weak laws around money laundering are easily sidestepped by foreign (and domestic) agents/oligarchs because databases listing who owns corporations are disclosed to law enforcement only — not to the public. Now corporate lobbying groups are trying to avoid disclosing principals to anyone. For the US to deliver on Pres. Biden’s new anti-corruption initiative, or longstanding efforts to address corruption, Congress must bring US anti-money laundering laws up to speed with the EU’s and UK’s by making disclosures publicly available.
The other sunshine week? As a consequence of a series of parliamentary errors, the House has the opportunity to enact the Senate-passed Sunshine Protection Act (S. 623).
DUNS identifiers are the proprietary, clunky, expensive, and untransparent way to track entity identifiers, and their replacement is about to go live.
Rep. Don Young has died. He was the Dean of the House, which is the longest-serving member of the House, and by that position he administered the oath of office to the newly elected Speaker.
CALENDAR
Symposium: Oversight, Infrastructure, and Federalism: Ensuring Transparency, Accountability, and Effectiveness of U.S. Infrastructure Investments, hosted by the Levin Center on March 25. RSVP for panel 1 and panel 2.
The Fourth Congressional Hackathon will be held (in person) on Wednesday, April 6 from 1 – 6 PM in the CVC Auditorium of the Capitol Building. Majority Leader Hoyer and Minority Leader McCarthy will co-host. Register to hack here.