TOP LINE
This week. The Senate is back Tuesday; the House has a committee work week. Approps hearings continue, with USCP, GAO, and the Library of Congress testifying re: their budget requests before the Senate Leg Branch SubCmte on Wednesday. Also on Wednesday, HSGAC will hold a markup for a slate of good government bills, some of which are worthy of our attention. (More on that below.)
Unionization timeline. The OCWR published its final regulations allowing for House staff to unionize on May 16th. This sets a 60-day clock for implementation on July 15, 2022. The OCWR declined to exercise its authority to shorten the waiting period “for good cause,” but maybe it can be persuaded.
Approps. When is your testimony due? Remember our list of appropriations deadlines.
LEG BRANCH APPROPS: House
Members talk Leg branch. Wednesday’s House Leg Branch SubCmte Member day hearing (video, written testimony) focused on recent efforts to restore congressional capacity, including the ModCom’s work and recommendations, the FY 2023 MRA increases, and of course the big news that all House staff will be guaranteed a living wage and soon enjoy unionization protections. In their written testimony, Members focused on requests that would build Leg branch capacity.
• Make all non-confidential CRS reports public and accessible, not just some of them, Rep. Mike Quigley recommended in his written testimony. Thousands of non-confidential CRS reports are not published on CRS’ Congress-facing or public websites and yet are relevant to the work that Congress does. Many are available for purchase from private vendors. They should all be published online for free; and published online as HTML and not just as PDFs to the extent possible. (Former) CRS analysts with a combined 570 years of service, scores of organizations and experts on Congress, academics, and pretty much everyone else agree.
• Let shared congressional staff unionize — i.e., the ones who work at the CBO and OCWR — was the plea of Rep. Andy Levin, who is fresh off the passage of his resolution granting congressional staffers the right to unionize. Rep. Levin also requested adding two full-time OCWR employees, and increasing OCWR funding by $500,000, to implement the unionization resolution.
• Support House modernization efforts and Member training, wrote ModCom chair and co-chair Reps. Kilmer and Timmons (who testified in person). The ModCom has issued 142 bipartisan recommendations, 30 of which have been fully implemented and 2/3s have seen meaningful action. Both expressed support for strengthening the legislative branch, including for staff pay adjustments that builds out capacity to represent their constituents.
☛ Rep. Kilmer’s testimony includes requests for $10 Million for the House modernization fund; support for civility programming through the Congressional Staff Academy and Congressional Member Leadership Development Program; new tech tools; better data access for the congressional support agencies; fixing long-standing barriers to accessibility; and expanding student loan repayment to include tuition assistance.
☛ Rep. Timmons’s testimony addressed enhancing the House modernization fund; nonpartisan bill summaries; supporting congressional agency data access; and encouraging bipartisanship through co-working spaces and civility training curriculum.
• Pay congressional interns at least $15/hour, which is approximately the DC minimum wage, said Rep. Seth Moulton in his written testimony. For this to go into effect, CHA would also have to lift the monthly cap on intern pay from $1,800 to $5,000, Moulton notes.
• Ban procurements of single-use plastics, advocated Rep. Steve Cohen.
LEG BRANCH APPROPS: Senate
Senate Leg branch approps. We’ll be watching to see whether USCP, the Library, and GAO address longstanding concerns in their Senate Leg Branch SubCmte hearings this Wednesday. All three have already testified before the House Leg Branch SubCmte, which wrapped up its proceedings this past week; we’ll see to what extent the agencies have incorporated Members’ concerns raised in the other chamber.
USCP is requesting $708.1 Million in funding for FY 2023, a $105 Million (+17.5%) increase over last year’s enacted level, which itself is a $195 Million (+37%) increase over just two years ago. And yet the Capitol Police Board and Chief still have not conducted the wholesale reorganization — which must start at the top — necessary for the gigantic police force to become an effective security force. We’ve been keeping a close eye — reading all the oversight reports, watching all the hearings — and the canary in the coal mine is whether the USCP is finally being transparent and accountable, because that’s how we can see whether organizational change is occurring.
• The USCP still has not implemented the three major outstanding approps transparency directives — creating a process for the public to request records, making Capitol Police IG reports available online, and publishing arrest information as data.
• The USCP Board needs to be fundamentally restructured to provide decision transparency and ensure the USCP is accountable to the public and stakeholders, such as by creating an independent oversight board. We’ve seen no movement along those lines, and there’s still no visibility into its proceedings (although the Senate SAA testified that they are finally documenting their decisions.)
• Congressional oversight. At a recent Senate approps hearings with voting members of the USCP Board (the Senate SAA and Architect), Members inquired about what’s being done to address the structural problems plaguing the USCP Board. Responses were for the most part cursory. And there are a lot of unasked and unanswered questions.
The Library of Congress is requesting $871.8 Million in funding for FY 2023, a $32.8 Million (+3.9%) increase over last year’s enacted level, and a $69.6 Million (+8.7%) increase over FY 2021. At the House’s Leg branch approps hearing, the Librarian committed to holding another public meeting about legislative data this fall, which would help ensure that the LOC is focusing on what its virtual users most need, but did not commit to holding them annually. In its House approps hearing, the Library said that expanding user access and modernizing IT are its top priorities. We hope the upcoming hearing will give the Librarian an opportunity to address ensuring public access to all non-confidential CRS reports and creating a public-facing API for legislative data. (Resource round-up: here’s the video, written testimony, and our recap of the Library’s recent hearing before House Leg Branch Approps.)
Government Accountability Office. We hope this week’s Senate approps hearing touches on conducting a study on further increasing GAO’s funding; directing the agency to compile an annual report on all its unimplemented recommendations; and buttressing the agency’s ability to oversee elements of the Intelligence Community, which often resist its oversight activities even when directed by Congress. As you know, we are concerned about keeping GAO well funded and put forward a new funding model for GAO to address those concerns. Like other congressional support agencies, GAO often faces challenges in obtaining access to federal agency data sources and data sets; GAO would benefit from improving Executive branch information sharing with the support agencies. At GAO’s budget request hearing before House approps (video, written testimony, our recap), we learned the agency increased its topline request for FY 2023 to $810.3 million, a $91 Million (+12.7%) increase over last year’s enacted level. This investment would likely pay dividends: GAO saved the government half a trillion dollars over the past decade, according to the agency’s annual report, and projects an impressive $158 return on every $1 of taxpayer money invested over the past five years.
GOOD GOOD GOV’T BILLS
HSGAC will consider several notable bills at Wednesday’s markup. The round-up:
• DHS cybersecurity sharing with Congress needs improvement, as the Senate Sergeant at Arms stated in testimony recently. The Intragovernmental Cybersecurity Information Sharing Act (S. 4000) would address that by requiring DHS to enter into information sharing agreements with Congress about cybersecurity threats.
• Bolstering GAO’s ability to have its recommendations implemented is the goal of the Improving Government for America’s Taxpayers Act (S.4128), a companion to a House bill recently introduced by Reps. Kilmer and Timmons. It would require the Comptroller General of the United States to disclose in its annual reporting to Congress details about unimplemented priority recommendations and identify how Congress can help agencies fulfill them.
• Allowing future Members of Congress to opt-out of a federal pension plan is the goal of the Members of Congress Pension Opt Out Clarification Act (S.471). We think this would give Members the ability to forgo receiving a pension after five years of service. Some members already have this option. (This may not be a good idea and could create pressure for Members to opt out, increasing the need to find other sources of income after departure.) Apparently a companion measure was introduced by Rep. Massie in the House.
• The Preventing Organizational Conflicts of Interest in Federal Acquisition Act (S.3905),would direct the Federal Acquisition Regulatory Council to revise the FAR to more effectively address or mitigate conflicts of interest that arise in the acquisitions process.
• The Improving Intergovernmental Cooperation and Reducing Duplication Act of 2022 (S.3890) seeks to improve federal agency interactions with state/local/tribal governments by requiring the feds to develop a strategic plan to coordinate with them.
• Improving performance and accountability in the federal government is the stated goal of The Federal Agency Performance Act (S.4167), which would update performance management laws by requiring OMB to regularly evaluate and report on agencies’ progress towards goals and publish that info on a Performance.gov. The bill also calls for more and better quality disclosure of that data.
NOT JUST A COUNSEL, ALSO A GENERAL
Congressional Office of Legal Counsel? Creating an Office of Legal Counsel for the Leg branch could be a way to ameliorate executive branch encroachment on Congress’s powers, William Ford writes on the Lawfare blog. ModCom recommended GAO look into the feasibility of establishing a Congressional Office of Legal Counsel in the 116th Congress; GAO will conduct a study on the merits of this idea in 2022. Ford does an excellent job of explaining the pros and cons of creating a central agency to do this as compared to establishing one in each chamber, and whether it should be embedded in or separate from each chambers’ office of general counsel. We note that Michael Stern has submitted excellent testimony calling for more transparency around the legal views of the House General Counsel, which could have some of the beneficial effects described in the article.
• This is a three-edged sword. On one hand, the House and Senate do not do a good enough job making public their legal positions. On the second, the Justice Department’s Office of Legal Counsel is afforded way too much deference by federal courts on its articulation of the law, some of which it publishes. And on the gripping hand, too many OLC opinions are not publicly available, so OLC’s views, which serve as controlling legal authority inside the Executive branch, are not able to be challenged because they are secret. Making OLC opinions publicly available (with appropriate exceptions) is a necessary first step. My written testimony — you knew I was going there — urges appropriators to direct the OLC to adopt proactive disclosure by default and, even when it must withhold opinions, to announce their existence. I am in good company. The DOJ OLC Transparency Act (S.3858), introduced by Sens. Duckworth and Leahy in March, which would put an end to secret law arising from OLC opinions, as would the companion measure, the Sunlight Act of 2022 (H.R. 7619), recently re-introduced in the House by Rep. Cartwright et al.
What to make of the subpoenas to House Republicans? On the Lawfare blog, Michael Stern considers what will become of the Select Committee’s subpoenas for McCarthy and four others. It’s really not clear. Criminal contempt is likely too slow; the Ethics Committee is unlikely to offer ready recourse either. “In short, it is somewhat puzzling that the January 6 committee has chosen to subpoena these members at such a late date in its investigation,” Stern writes. Yes, we also wonder why it took so long to constitute the committee and why it has been so slow to act.
CONGRESSIONAL OPS
STOCK Act? Walt Shaub asks: where are Democrats with a proposal to ban congressional stock trading? Read on in Shaub’s newsletter, The Bridge: “The time for putting a stop to congressional insider trading — and even the appearance of insider trading — is now. The time for eliminating congressional conflicts of interest is now.” (subscribe here) Last we checked, legislation to address this matter was before the House Administration Committee. (Anyone else notice how many high-profile issues ended up before them this Congress?)
Increase CBO funding so that the agency can keep pace with legislative work, writes Demian Brady for the National Taxpayers Union. “If Congress wants CBO to be able to keep up with the pace of its legislative work and provide timely cost estimates and budgetary analyses, Congress should provide CBO with the necessary resources.”
Modernizing GPO. GPO Director Hugh Halpern spoke with Hudson Hollister about his efforts to modernize GPO and what’s next for the agency: improving USLM, introducing XPub, the future of printing, and more.
Continuity concerns. There were several high-profile medical emergencies last week; fortunately, everyone seems to be recovering, but we’re reminded of the urgent need to address continuity protocols in Congress. The Senate’s outdated quorum rules must be amended to allow for proxy voting; Congress needs clear succession rules; and in general, Members’ health and mental capacity should not be taboo topics: these matters affect all of us.
The Select Committee on the Modernization of Congress seeks (paid) interns. More info here. (SCOMC is leading by example: both interns will be paid $15/hour.)
MR DATA
The new CongressData app from the Institute for Public Policy and Social Research at Michigan State allows users to explore data on Members of Congress, their districts, and their policymaking activities. As you know, we help coordinate the Congressional Data Coalition — you can now subscribe to receive updates — and tons of Congressional data is published at the United States repository on GitHub.
The State of Open Data Policy is covered in a recent report from the Open Data Policy Law, which surveys “recent policy developments on open data, data reuse, and data collaboration around the world.”
MALADMINISTRATION
Holding retaliators accountable is the focus of a fact sheet issued by the House Whistleblower Ombuds that “identifies laws that [congressional] offices can leverage to protect their sources and constituents as well as hold retaliators accountable.”
Federal judges are not exactly covering themselves in glory. A confidential work survey of the U.S. Court of Appeals for the District of Colombia found “instances of gender discrimination, bullying and racial insensitivity, while underscoring the stark power imbalance between judges with life tenure and the assistants who depend on them for career advancement.” It gets worse. The federal courts have fought tooth and nail against creating accountability mechanisms and fostering a good old boys club. Things won’t get better until the judges are no longer the judge of the judges.
The Social Security Administration Inspector General Gail Ennis apparently enabled an environment of the grossest mistreatment of citizens, the Washington Post reported. The IG is intended to be a check on the agencies, but it appears that this IG wielded her power like a club against defenseless people and pushed aside efforts by long-served employees, against whom she apparently retaliated. This is a lesson in the dangers of allowing high fines to be wielded on the basis of prosecutorial discretion, the need for accountability for everyone, and how bad management at the top can warp an agency’s culture.
ODDS AND ENDS
Tourists? Rep. Barry Loudermilk acknowledged “bringing a ‘constituent family’ into the Capitol complex” on January 5, 2021, at a time when public tours were not allowed because of COVID and amid allegations that Members saw suspicious visitors on tour the day before the Trump insurrection stormed the Capitol. The Jan 6th Committee has requested that Rep. Loudermilk agree to an interview with the Committee this week — especially in light of statements that no tours had taken place. Rep. Loudermilk, for his part, says release the tapes.
The FOIA advisory committee made nine recommendations to the Archivist at its May 5 meeting (video), which will be reflected on the official dashboard this summer. The recommendations pertain to FOIA logs, protocols for classified records, and the future of OGIS.
Rare FARA civil lawsuit. The DOJ filed a lawsuit against Steve Wynn for failing to register as a foreign agent pursuant to FARA, even after being ordered to do so three times. It’s the first such suit in 30 years.
Press freedom. Journalists’ records have been subpoenaed or demanded through other legal means in more than 130 instances over the past five years, Press Freedom Tracker found. We noted one of the more egregious cases last week: the Justice Department’s secret subpoena of a Guardian reporter’s records. The evidence is overwhelming: Congress should enact a reporter shield law, such as that contained in the PRESS Act (HR 4330, S. 2457).
Puerto Rico’s status as a state, a sovereign nation, or otherwise should be left to the Puerto Rican’s people to decide in a plebiscite, according to new legislation with high-level support. My eyes were opened to the issue of American citizens who live in territories in an excellent book that I recommend to everyone, How to Hide an Empire, the thesis of which is summarized in this Guardian article. The policy crux: its status allows Puerto Rico to be treated “as foreign for domestic purposes and a state for international purposes,” including that those who live there don’t necessarily have constitutional rights except to the extent that Congress has decided to extend them those rights. The history here and across the US territories, which at one time included a huge percentage of the American population, is surprising and discomfiting, and arises from a series of racist decisions from the U.S. Supreme Court.
CALENDAR
‘Oversight Overlooked’ Again? Emerging Research on Legislative Oversight is the title of an upcoming panel discussion on congressional oversight hosted by the Levin Center at Wayne Law this Wednesday, May 25 at 3 PM. Register here.
Calling congressional intern coordinators: join a webinar on improving accessibility for interns hosted by the Modernization Staff Association, Office of Congressional Accessibility Services, and Office of House Employment Counsel on Monday, May 23 at 12:30 PM.
Senate Leg branch approps. The Library of Congress, GAO, and USCP will testify on their budget requests on Wednesday, May 25 at 3:45 PM.
The Advisory Committee on the Records of Congress has announced its semi-annual meeting on June 10 at 10 AM. To attend the meeting, RSVP to archives@mail.house.gov by June 3.