Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. (Tell your friends to subscribe.)
TOP LINE
White nationalism has no place in Congress and yet several representatives on Friday were gathering support to start the America First Caucus, ostensibly focused on Anglo-Saxon “political traditions,” per PunchBowl.news. The America First Committee, the obvious antecedent, was formed in 1940 to keep the U.S. from intervening in WWII against the Nazis and was led by the most prominent anti-semites of the day. In recent times, America First has been invoked by Pat Buchanan and Donald Trump. You don’t need German shepherd ears to hear this fascist dog whistle.
But you have to work very hard to avoid connecting the dots from the Trump administration to election rejection to the Trump insurrection to this caucus. Will Republican leaders continue their deal with the devil in hopes of regaining political control? The clearest signals so far are the continued caucusing of America First representatives with the Republican party and voter-suppression legislation across the country. It’s not like we do not know how to fix the minority-rule doom loop just like we already know who is digging the grave of our democracy.
A commission proposal aimed at nailing down the “scope, composition, and resources necessary to seek and find the truth” of the euphemistically-described “January 6th” events is being re-sent to Republicans by Speaker Pelosi. Just as before, there will not be any takers to do anything meaningful — Sen. McConnell will reject this proposal as he rejected the previous one, by calling it partisan. That’s a neat trick: by definition a proposal is partisan unless Sen. McConnell says otherwise, even though rejection does not negate its wisdom. Calls for bipartisanship to fix our broken politics in a two-party system where one party’s leadership by-and-large rejects fundamental democratic principles is a fools’ errand beloved by editorial page writers, cable news bookers, and reputation launderers. Either pro-democracy Republicans must retake their party, which is increasingly unlikely, or they must follow Rep. Amash’s example and start anew. “A house divided against itself cannot stand.”
America has a long history of one-party rule at the state level. At the federal level, one-party rule has been manifested as a minority veto — the modern incarnation of nullification. Nullification is the mid-19th century political theory advanced by Sen. Calhoun that held a state could invalidate federal laws it did not like, and southern states did not like restrictions on slavery and the implications for their wealth derivered therefrom. Here’s how Sen. McConnell has described the modern incarnation of nullification, the filibuster: “So while Yarmuth calls the filibuster a ‘minority veto’, it’s really ‘Kentucky’s veto….’ It protects Jeffersontown and Shively from being steamrolled by Brooklyn and San Francisco. Last year, the voters rehired me to use Kentucky’s veto and protect our values.” We must ask: whose veto, Sen. McConnell? Which values? For what cause?
All is not lost, at least not yet. A handful of Republicans voted to impeach Pres. Trump and a third of the party stood for upholding the election results. Many more are privately horrified by what is happening but are unwilling to risk their positions. We are rapidly passing the point where only a political career is at stake. Only luck and happenstance prevented the Trump insurrection from decapitating Congress and murdering the Constitutional line of succession. We know what is necessary to save our democracy and we know the people who are standing athwart progress, yelling stop. It is not America they are putting first, but themselves.
WHAT’S NEW
The US Capitol Police Inspector General testified & released two reports on the insurrection, focused on inadequate planning, failures of intelligence, and a dysfunctional civil disturbance unit. Notably the USCP IG does not have jurisdiction over the Capitol Police Board.
A committee funding resolution was reported by House Admin, with an average 5% increase that leaves committees still almost 20% below their levels from a decade ago
The Select Committee on the Modernization of Congress held a Member day hearing
The Senate Legislative branch appropriations committee has its first hearing scheduled this week, with testimony expected from USCP Acting Chief Pittman, AOC Blanton, and the new Sergeant at Arms
Deadlines for written testimony for House Legislative branch appropriations were announced and Member witness days are beginning to be announced. Notably, House appropriators are not inviting the public to testify “in person” this year.
A joint report on the Trump insurrection at the Capitol from HSGAC and Senate Rules is expected in the coming weeks.
The timing of the Security Appropriations Supplemental is unclear despite prior reporting. In fact, I’ve begun to distrust the vast majority of reporting on its size and contents and timing. The only report that makes sense is a lack of communication between the chambers. As you know, Demand Progress has recommendations for what should be in the supplemental.
House Admin’s activity report for the 116th Congressis out. It contains a lot of new and unreported information, from COVID adaptations and security reviews to new franking regulations. Admin has oversight of the Capitol Police, and its report provides insight on their activities to reform the USCP before it became a high profile issue.
The Advisory Committee on Transparency is hosting a webinar on Star Wars day, next Tuesday, May 4th, on Transparency in the 117th Congress. The webinar will provide an overview of transparency in the federal government, with a focus on where Congress likely will concentrate its attention and the status of past legislative efforts. Panelists include the Project On Government Overight’s Liz Hempowicz and yours truly, with GovExec’s Courtney Buble moderating and an additional panelists TBA. RSVP here.
CAPITOL POLICE
Capitol Police Inspector General Michael Bolton testified before House Admin on the IG’s findings and two flash reports. The USCP IG does not have jurisdiction over the US Capitol Police Board, which hires and oversees the IG, so the value of its recommendations are severely limited. All previously planned work by the IG has stopped — likely including a review of whether to release IG reports from the last 3 years — so we will be unable to see the extent to which the USCP did not comply with prior IG recommendations. In addition to the reports on operational planning and intelligence and the civil disturbance unit and intelligence, more IG reports are coming although it is unclear if they will be public. It is clear from the testimony the USCP did disregard prior IG recommendations. The hearing was interrupted by votes and will resume.
Who oversees the Capitol Police Board? That question was asked — but not answered — during the hearing. We know that House Admin has conducted serious oversight over the last two years, which we can see in their biannual report and from their hearing. We know House Leg branch approps directed significant changes, as was shown in their report language. And we know that the Senate Rules Committee, under former Chairman Blunt, a few years ago tried to reform the Capitol Police Board, but was rebuffed by leadership. When you read the 2017 GAO report on the Board, it is clear that the appropriations and authorizing committees were unhappy with the Capitol Police Board’s responsiveness, but leadership was satisfied. Per GAO: “Three of the four stakeholders from leadership offices generally expressed satisfaction with the level of accountability the Board has demonstrated, while all seven stakeholders from the committees identified factors that limit their ability to hold the Board accountable.” We also note, however, that political efforts to put this at the feet of Speaker Pelosi disregards those who chose the members of the Board. The oversight failings arise from bad structures and misaligned incentives.
The IG emphasized the Capitol Police should be a proactive protective agency andnot a police department. As we have found and has been revealed in prior testimony, under the current structure the Department arrests hundreds of people a year for traffic violations but seemingly cannot can’t access shields or manage its protective gear.
USCP ignored IG recommendations on several occasions, per IG responses to Rep. Steil’s questioning. Ignored IG recommendations pertained to intelligence prioritization; crucially, the IG identified breakdowns in intelligence sharing as a major factor contributing to failures on January 6th. The IG’s account differs from those of USCP officials (some of whom testified under oath before Congress), but the new “flash reports” do not include the Appendix detailing USCP’s timeline of events. The Capitol Police Board’s longstanding direction to the IG to withhold their reports from the public and the apparent decision to withhold significant materials from the public now is part of a longstanding accountability problem. We and our friends at POGO have asked for the reports to be made public, and appropriators included preliminary language in last year’s House Report. In the meantime, here’s WaPo’s reconstruction of the timeline.
Capitol Police only agreed with some of the IG’s new recommendations, according to a recent USCP statement. The USCP implied that funding is the limiting factor in their ability to comply, and blames COVID for short supplies, but surely locking yourself out of a vehicle that contains your gear isn’t a money problem and failing to buy and maintain equipment didn’t just happen over the last 14 months. The USCP has a half-a-billion dollar budget and gets significant annual increases in funding. If they had asked for more resources they would have gotten them. The problem is management, not money.
The House Administration Committee was concerned about security vulnerabilities long before January 6th and had been taking remedial action.According to the committee’s report on its activities for the 116th Congress — which we are the first to report — the USCP IG was sounding the alarm about concerns like access to data and partnerships with other law enforcement back in 2020. For example, in February 2020 the IG reported that the Capitol Police partnership agreement with the FBI was out of date and there was no partnership agreement with the Secret Service. In addition, prior to August 2020, the USCP lacked sufficient access to the database used by all federal law enforcement agencies operating in DC (a key source of information), and the Capitol Police did not have the ability to keep accurate records of all the individuals with whom the force came into contact.
HOUSE COMMITTEE FUNDING
A funding resolution for House committees was marked up by House Admin this past week. On average, funding for House committees will increase by 5% in the 117th Congress over the 116th Congress. However, House committee funding is still down by nearly 20% (in constant dollars) from the 111th Congress, just a decade ago. That’s right, House committees are still significantly underfunded, and because the committee funding cycle is biennial, the next chance to fix this problem won’t arise until the 118th Congress.
See our chart below, which shows first each committee’s funding level in the 111th Congress and then its funding level in the 117th. The chart also shows the extent to which funding for each committee has changed from the 116th Congress.
Some caveats. First, this chart does not show funding for the Appropriations Committee, which does not go through the committee allocation process, gets its own line item in the Appropriations bill, and is ~2.5x larger than the next highest funded committee, Energy & Commerce. Second, this chart omits many of the select committees, but those numbers are in the funding resolution, H.Res. 316. Third, the significant increase in Oversight likely is not what it seems: we suspect most of the increase is to fund the Select Subcommittee on the Coronavirus, which does not appear to be funded elsewhere and is largely independent of the Oversight committee. Finally, the process by which committees are funded is byzantine; we explain it here.
What about Senate committees? We got it covered, here.
APPROPRIATIONS
The appropriations process in the House is continuing, but is significantly different from last year. While much attention has been lavished on earmarking, no appropriations subcommittee thus far has said it will allow face-to-face public witness testimony, with COVID named as the cause. In the past, most House appropriations subcommittees permitted members of the public to request to testify in person and provide 5 minutes for the public witness to make their case and answer questions from committee members. This is an incredibly productive and collaborative process. Back in October, a coalition of organizations including Demand Progress made recommendations on improving the appropriations process, one of which was ensuring public testimony continues.
Public witnesses. 5 of the 12 House appropriations subcommittees have released deadlines by when the public may submit written testimony, with the date for the earliest — Interior — having passed a few days ago. CJS, Energy, Interior, and Leg branch have all indicated they will not allow in-person testimony this year — last year Interior had 80 witnesses — and Homeland’s guidance made no mention of face-to-face testimony. Face-to-face public witness testimony is one of the gems of the legislative process that make Congress more deliberative and open to new ideas. (The subcommittees generally allow for written testimony.) We have seen public testimony via Zoom or WebEx work effectively — just the other week, the House Modernization Committee had two dozen witnesses. If anything, holding proceedings by videoconference should be easier than in-person and allow for an even more inclusive process.
Member legislation request deadlines have all been extended. They were originally set to expire last week, but now the deadlines are spread between April 28th and 30th. This is likely due to the new earmarking process.
Deadlines for member requests to testify have not been announced except for Energy & Water, which is April 23rd for oral testimony and April 29 for written.
Have we thrown too many dates and numbers at you? Sorry. This spreadsheet is where we keep track of all the deadlines. And a repository of Demand Progress’s ideas for appropriators is available here.
Earmarks. The House GOP changed its conference rules in March to allow for earmarks, and some Republican senators are declaring their conference rule ban on earmarks is unenforceable. With $4 billion on the table, or $75 million per Senator, some members will use them. (Earmarks never went away, they just went underground.) Will giving Republican senators an earmark get them to vote for the underlying appropriations bill when then time comes?
House Approps Chair DeLauro estimates appropriations bills will hit the House floor in July ($).
In the Senate, appropriators have held a handful of security and defense related hearings over the last few weeks and, as noted up top, Leg branch hearings kick off this week.
HOUSE MODERNIZATION COMMITTEE
The House Modernization Committee held its Member Day Hearing with 25 members testifying over seven panels last Thursday. Watch the hearing here, read the written testimony, and check out our spreadsheet on which members testified on what. The hearing was lengthy, we will do our best to summarize the key themes below.
Reforming Congress together. Many ideas Members raised were in Demand Progress’s 2020 report on modernizing the House and our FY2022 appropriations requests, including: increasing the MRA and committee funding, creating a central repository for reports, decoupling staff pay from member pay, providing better staff benefits, addressing congressional continuity, revitalizing the OTA, and more.
• Staff capacity, pay, retention, diversity were central themes. Topics included: increasing House MRA funds to offer higher wages and benefits to recruit and retain talent (Reps. Hoyer & Jeffries); paying entry-level staff a living wage (Rep. McCollum); prioritizing recruitment of diverse staff, including LGBTQ+ individuals, with initiatives like gender neutral language in office buildings and workplace rights training (Rep. Cicilline); cutting the approps language that prevents DACA recipients from working for Leg branch and making the House Diversity and Inclusion Office permanent so surveys on pay continue in perpetuity (Rep. Aguilar); expanding the capacity of the Office of Employee Assistance to help staff through the pandemic and insurrection (Rep. Clark); and increasing interns’ salary cap by $600 as well as raising the part-time staff cap to allow flexibility in hiring (Rep. Jacobs).
• Access to legislative data, and technology that facilitates access to legislative information is key for both Members and the public. Members requested: a central repository for letters of support (or opposition) on legislation, a Congress.gov that provides bills in a timely manner, and additional context for bills (Reps. Obernolte and Hinson). Freshman Rep. Hinson also requested a system that allows Members and the public to see how legislation changes federal law; fortunately, the Comparative Print Project has been in the works since the 115th Congress and will do that when completed. Reps. Hoyer and Takano focused on tech expertise in Congress, both a Congressional Digital Service (piloted last Congress by SCOMC) and reviving OTA. Get up to speed on OTA with our white paper co-authored with the Lincoln Network’s Zach Graves.
• Connecting with constituents is tough when Telephone Town Halls can cost thousands of dollars and wifi in House buildings is unreliable. Rep. Soto urged the committee to address those concerns, and his colleague Rep. Davids emphasized the need for the implementation of the Committee’s previous recommendations (41-43) to boost streamline services from the CAO.
• Security and cybersecurity on the Hill has room for improvement. Members pitched solutions like mandatory annual cybersecurity training for all Members and employees, which the SCOMC recommended in its final report last Congress (Rep. Rice); training for protection on and off the Hill; and training for handling classified info (Rep. Van Taylor). The ultimate security measure though, is having a plan in place for an emergency: former Committee member Rep. Scanlon testified to the importance of creating a continuity of Congress framework.
• Bipartisanship. Solutions to foster relationships across the aisle included creating bipartisan, member-only spaces for events (Reps. Schrier and Gottheimer) — a proposal that was recommended by the Select Committee last Congress and will be readdressed once again — as well as creating a female locker room in the House member gym (Rep. Lee).
• Budget reform. Reps. Smith, Arrington, and Case all spoke on Congress’s need to reform its budget process to ensure greater fiscal responsibility. Rep. Steil, who submitted written testimony, urged the further reexamination of a biennial budget process, a recommendation from last year’s Modernization Committee.
Got all that? Yes, it’s a lot to process. Again, check out our spreadsheet that summarizes who testified on what, has a timestamp for when they testified, and links to their written testimony.
CONGRESSIONAL OPS
@House Staffers, learn about the excellent resources available through the Office of Diversity & Inclusion and the Whistleblower Ombuds at a virtual orientation this Thursday. Register here (this event is only open to House staff).
The House Whistleblower Ombuds office held nearly 100 training sessions to coach staff on whistleblower intake last Congress.
New Member orientation this past November was the longest in House history. In addition, Members-elect in the 117th Congress were the first to receive funding for aides to help during the transition.
Congress legislates for a world where science and technology are evolving quickly, and does so with tech the private sector hasn’t used for years. Helping them in this fight, and bridging the gap left by the elimination of the Office of Technology Assessment, is the GAO Office of Science, Technology Assessment, and Analytics (STAA). A new article from Lincoln Network has recs that can help Congress help the STAA team, such as increasing the office’s independence and visibility and providing it the resources it needs.
Congressional continuity plans (or lack thereof) leave us one tragedy away from a major upset of the balance of power in our democracy, with narrow margins separating the minority and majority in both chambers. Former Rep. Brian Baird’s solution: have Members designate a (confidential) successor so operations can continue uninterrupted as special elections for a replacement unfold. In his view, this would garner public confidence and remove any incentive for bad actors to harm Members for the purpose of changing the political balance. See our Continuity of Congress website for more proposals to keep our legislature running in an emergency.
Out with the CBO director? Some congressional Dems are considering removing CBO Director Phillip Swagel because of the office’s scoring of consequential legislation, per a report in Mother Jones. Why? Some Dems believe that CBO’s scores on important measures are biased, reflecting an undue conservative lean that comes from the top. The CBO’s director is chosen through a convoluted process, and Swagel’s background in conservative economic policy, such as working at the American Enterprise and Milken Institutes, is leading some to draw conclusions of bias against Democratic priorities. CBO has come under fire for consistently and erroneously asserting federal fiscal policy would push up interest rates and drive up costs for servicing the debt, which the facts have not supported.
If and when Leader McConnell retires, Sen. Cornyn is waiting in the wings per reporting from Nancy Ognanovich ($).
Rep. Julia Letlow was sworn in last week. She will succeed her late husband, who was elected last fall but died before taking office. CRS has updated its profile of 117th Congress Membership accordingly.
Rep. Quigley was elected to the Oversight committee last week.
TRANSPARENCY & ETHICS
The Access to Congressionally Mandated Reports Act, legislation to create a central repository for Executive branch reports required by law to be submitted to Congress, was reintroduced this past week as H.R. 2485 by Reps. Quigley and Comer. Astonishingly, there is not even a list of all reports required by law. A bipartisan coalition of organizations endorsed the pro-transparency measure. Reps. Quigley and Comer are looking for co-sponsors.
Rep. Clyde was fined for violating security rules in the House and now is taking Congress to federal court. The move follows the House Ethics Committee’s upholding a $15,000 fine levied against Rep. Clyde for eluding magnetometers on the House floor. One wonders how much the House will be forced to spend because Rep. Clyde doesn’t want to go through a magnetometer.
OVERSIGHT
Misconduct Mysteries from the 116th. The Architect’s Office of the Inspector General saw a 550% increase in investigations from 2018 to December 2020 (yes you read that right). In addition, the House’s IG conducted ten audits that the public can’t see. Unlike the vast majority of federal Inspectors General, the House’s IG doesn’t post its findings online — although it used to.
CRS rate of attrition since 2010 is about 10%, according to House Admin reporting. The Committee identified morale and lack of diversity as key issues at CRS, based on testimony at a pre-pandemic oversight hearing. The problems persist, and Committee Republicans note “most of the issues raised at the hearing still have not been addressed.” CRS’s strength comes from its expertise and this decade-long brain drain should be raising alarms and more questions for management.
Sen. Durbin Has The Receipts. When Republican colleagues tried to claim committee procedure wasn’t properly followed leading up to the consideration of Vanita Gupta for Associate Attorney General, Sen. Durbin entered a point by point detailed list of ‘‘Senate Judiciary Committee Rule Violations by [Senate Judiciary Committee] Chairs Graham, Grassley, and Hatch.” It is interesting reading and makes the point that there’s no realistic way to address when committee chairs run roughshod over committee rules.
BILLS & REPORTS
The Senate Rules Committee activity report for the 116th Congress is available and their Judiciary colleagues’ report is done (Rept. 117-097), but the text hasn’t been posted yet. Unlike the House equivalent, the Senate report merely lists the committee rules, summarizes legislative activity, lists measures referred to the committee, and lists committee hearings, publications, and executive communications.
CRS has a timely introduction to GAO & IG Recommendations.
ODDS & ENDS
H.R. 51, the DC Statehood Act will receive a full House vote Thursday. Its companion bill in the Senate currently has 45 supporters, all Democrats.
State of the Union. The President accepted the invitation of the Speaker to address a Joint Session of Congress on April 28, the night before his 100th day in office. We wonder about the wisdom of bringing this many members together in person. We expect many security precautions will be undertaken.
It’s been over a hundred days since the January 6th attacks on the Capitol. CapitolStrong, a coalition of civil society organizations we are proud to be a part of continues to gather a variety of resources for the Capitol Hill community on its website. Please visit if you haven’t yet, and feel encouraged to ask for help.
A menu of reforms to modernize Congress is available through R Street’s new tool, the Guide for a Modern Congress. Easy-to-search solutions for reforming and modernizing the “people’s branch” are broken down into six categories: (1) technology and transparency; (2) congressional capacity; (3) Article One and budget reform; (4) internal operations; (5) civility and bipartisanship; and (6) smarter constituent service.
CALENDAR
TUESDAY
• The House Oversight Subcommittee on Government Operations is holding a hearing on, “Restoring Independence: Rebuilding the Federal Offices of Inspectors General,” at 9:30 am with an excellent panel, including POGO’s Liz Hempowicz.
WEDNESDAY
• The International Conference on Legislation and Law Reform and University of Pennsylvania Carey Law School is hosting a webinar on “Pandemic Health Legislation and Policy Around the World: What Have We Learned and What is Needed Now?” at 9:30 am ET. RSVP here.
• Senate Leg branch appropriations has its first FY 2022 budget hearing at 2:00 pm ET with the Capitol Police, Architect of the Capitol, and Senate Sergeant at Arms. Tune in here.
• Bipartisan Policy Center is holding a webinar on “Modernizing Congress: Progress and Prospects” featuring Modernization Committee Chair Kilmer and Vice Chair Timmons. RSVP here.
THURSDAY
• The Office of Diversity & Inclusion and the Whistleblower Ombuds are hosting a virtual orientation at 12:00 pm ET. Register here (this event is only open to House staff).
DOWN THE LINE
• Hack the Capitol 4.0 hosted by R Street Institute, the Cyber Bytes Foundation, and the National Security Institute is happening May 4th 9:00 am – 5:30 pm ET.
• The Data Foundation’s four day virtual symposium focusing on the use of data for an equitable, data-informed society is happening May 18-21. Learn more here.
• Senate Rules is marking up the For The People Act, S. 1, on Tuesday May 11th.