Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. Was this email forwarded to you? Subscribe here.
TOP LINE
STOP EVERYTHING. “100% of my focus is on stopping this new administration,” said Sen. McConnell at a press conference. He added: Democrats want to turn America into a “socialist country” and Senate Republicans are in “total unity… in opposition to what the new Biden administration is trying to do to this country.” Does this makes it official?
The Justice Department was castigated for lying to a federal court in an effort to prevent public access to an Office of Legal Counsel Memorandum on whether Trump could be prosecuted. It’s not the first time DOJ has lied to a court about FOIA requests. This also highlights the importance of public access to OLC’s work, which we discuss below. We also note that Attorney General Barr okayed the collection of email contacts by journalists as part of a so-called “leak” investigation, another stab at the heart of government accountability.
Quill, an excellent new tool that allows Member offices to get electronic signatures on their Dear Colleagues, made its House debut; it is already available in the Senate. (More below.)
Kudos to the House Labor-HHS Approps subcommittee, which so far is the only subcommittee to hold public witness hearings. We are appreciative of Chair DeLauro for making it happen. We are tracking appropriations testimony deadlines here.
Earmarks. We also favorably note that the House Approps committee has both published earmark requests on its webpage ~and~ published them as a spreadsheet (downloadable here). We published recommendations on what data elements should be included in the spreadsheet, a spreadsheet being the bare minimum requirement for modern data disclosure. We welcome the appearance of data fields like Membername, subcommittee, project title, amount requested, recipient address, and explanation. However, there are serious deficiencies, such a lack of unique identifiers, missing data fields, and too many data elements in the same field. In addition, it is unclear whether the spreadsheet will be updated as earmarks move through the legislative process or how users would be informed that updates have occurred. I’m hoping this is an alpha release and it will be improved. There is a significant community of civic technologists who would be glad to help.
White House visitor logs will now (again) be made publicly available, but we are cranky about it. Transparency should be required by law and not granted at the sufferance of the sovereign. This illustrates one of the failings of the Obama administration, which repeatedly fought against turning good government norms into law.
This upcoming week will be busy: House Admin will hold hearings on Monday and Wednesday into the Capitol Police and the Architect. On Tuesday, Senate Rules will hold a business meeting on S. 1, which is the Democrats’ democracy reform package. On Wednesday, House Oversight will look into unanswered questions on the Capitol Insurrection (what an anodyne name for what happened). And on Thursday House Modernization will look into recruiting, empowering, and retaining a diverse congressional staff.
Last week on the Hill was busy, too. The House Oversight Committee held a hearing on transparency and accountability legislation; Demand Progress hosted its Advisory Committee on Transparency panel discussion on what’s on Congress’s transparency agenda. The House Modernization Committee looked at congressional staff capacity. And the Lincoln Network hosted an excellent event on GAO at 100. (More below.)
(IN)SECURITY AND CAPITOL POLICE
The Capitol Police Inspector General will testify before House Admin today at 3 on the office’s third flash report covering Capitol Police threat assessment and counter-surveillance before and during the attack on January 6th. (Note: the public version of the report is missing at least two appendices and has insufficient information to assess.) Chair Lofgren said the report “identified troubling deficiencies,” according to Politico’s Huddle newsletter. At the last House Admin hearing on the matter, USCP’s IG told the committee that the Capitol Police need to make major changes to improve intel capabilities, reform training processes, strengthen recruitment, and shift culture towards being a protective agency and away from being a police department. The Police are going on the political offensive, implying they were underfunded and need more money; but we know, from testimony they gave to Senate appropriators, that they’ve always gotten the money they requested.
House Admin Republicans want a hearing with the Capitol Police Board. In a letter to Chair Lofgren, the minority noted it has been 76 years since Congress heard from all three voting Board members at the same time. The letter also implies reforms suggested by the IG aren’t possible without involving the Board. It’s worth noting that while the Board undoubtedly needs scrutiny and overhaul, several measures suggested by the IG can move ahead without the Board and many of the decisions around hiring, training, and resource allocation fall to leadership within the Capitol Police Department.
The Architect’s emergency preparedness on January 6th will be reviewed at another House Admin hearing on Wednesday at 12. According to Chris Marquette, the AOC IG released a flash report — which, we note, is available at Oversight.gov unlike the Capitol Police IG reports — sounding the alarm about safety training for employees. The IG notes AOC employees hadn’t been trained in active shooter safety in 2020 and the existing training protocol hasn’t been updated and is not integrated with other Legislative branch entities. The IG also found that panic buttons were “unknowingly removed” from Rep. Ayanna Pressley’s office — reading the report, I don’t know what this means.
Insurrectionist Ashli Babbitt’s family is filing a wrongful death suit against USCP for using lethal force to protect the Capitol and Congress on January 6th. In general, the public does not know much about Capitol Police use of force. Appropriators directed USCP to submit their use of force data to the FBI’s national database and to participate in a training program covering the use of force and de-escalation, racial profiling, implicit bias, and procedural justice.
Capitol Police transparency, or the lack thereof, was the topic of a Friday news segment from NPR. The hook was the lawsuit by Ashli Babbit’s family, but the main point was that the Capitol Police’s failures can be directly tied to their lack of transparency because transparency empowers the accountability necessary to correct the failings inside the department before they become catastrophic.
Capitol Police’s relationship with the press is being tested in the court. The department is claiming that an officer who shared a photo of another officer’s unattended weapon in the Capitol Visitor Center bathroom, information that a member of the public or press could have just as easily discovered, was equivalent to sharing evidence gathered in an investigation. Her suspension and demotion could send the wrong message about raising concerns. When questioned about what would have happened if the officer had volunteered to testify before Congress (instead of going to the press), the Capitol Police’s attorney maintained that they still could have punished her. Per Chris Marquette, “there would be an issue if Breiterman sent a letter to Congress that disclosed information from what she found as part of a department investigation.” Blowing the whistle should be protected behavior — as should communicating with Congress.
USCP is still looking for a new chief, with its application deadline set for next Monday.
TRANSPARENCY
The Justice Department lied to the court about the status of an Office of Legal Counsel memo on whether Trump’s obstruction of the Mueller investigation was an indictable offense, saying the memo was predecisional (not subject to release), when in reality the decision had been made. A judge ordered the memo be turned over to CREW as a result of the FOIA lawsuit. The court said that the DOJ had lied to the court, and we know this isn’t the only time that has happened. There are two interrelated issues here: FOIA and OLC opinions.
• On the Freedom of Information Act, it is pellucidly clear that we cannot trust the government to make good faith decisions about what information to release when political interests are at stake. Civil society has a long list of FOIA reforms that we would like to see enacted, including a public-interest balancing test and further limits on claims of executive privilege.
• On Office of Legal Counsel Opinions, we know that they have been used to create a body of secret law that empowers the Executive branch and is dangerous to our democracy. Demand Progress’s Ginger McCall recently submitted testimony calling for OLC’s legal opinions to be proactively disclosed. In addition, Demand Progress supports the reintroduction of the OLC Sunlight Act and its Senate companion, which would require an index of all OLC legal opinions and cause the reports to be disclosed (except in certain circumstances).
The DOJ surveilled journalists by secretly obtaining their phone records and tried to obtain their email records, Devlin Barrett reported. This is utterly unacceptable. The government should not spy on journalists to see who they speak with. It is lawful for journalists to receive and publish information. Current practice requires surveillance of journalists to be approved by the head of the DOJ — at the time, Attorney General Barr — which shows you how tenuous those protections are. The Obama administration also had attempted to obtain journalists’ phone records. The administration should be generally prohibited from gathering this information and Congress should go further and enact a reporter shield law, like the one proposed by Reps. Raskin and Jordan in 2017, that would “that would protect journalists from being compelled to reveal confidential sources.”
Journalists in the US reported 438 physical attacks in 2020 — more than three times as many as the previous three years combined — according to a new Reporters’ Committee report on its Press Freedom Tracker data. Police — yes, the police — were responsible for the vast majority of the attacks. Won’t you be just shocked to find out that most of the attacks by police against journalists occurred at protests for racial justice and against police brutality. Journalists also reported 139 arrests — more than a 15-fold increase over the previous year — and 110 cases of equipment damage.
GOOD GOVERNMENT AGENDA FOR THE 117TH CONGRESS
The House Oversight Committee highlighted a slate of transparency bills at its hearing on transparency & accountability last week. Bills on the agenda —
• The Access to Congressionally Mandated Reports Act (H.R. 2485) provides for creating a single website housing agency reports submitted to Congress, in a searchable format, and free of charge. Currently, reports are extremely difficult to locate, if they’re available to the public at all. First introduced more than a decade ago, the ACMRA enjoys bipartisan civil society support.
• The Federal Advisory Committee Transparency Act (H.R. 1930) would ensure disclosure of who is serving on federal advisory committees, financial conflicts of interest, and advisory subcommittee meeting records. The bill passed the House in the last three Congresses and has civil society support.
• The PLUM Act (H.R. 2043) would require OPM to create a publicly accessible website with data on who is serving in senior Executive branch positions. Currently the list is published every 4 years. The changes would address concerns raised by GAO and civil society.
• The Federal Employee Access to Information Act (H.R. 2042) would protect employees’ right to request information through FOIA free of retaliation.
• The Presidential Records Preservation Act (H.R. 1929) would require POTUS, the VP, and other senior White House officials to make and preserve records that document official activities of the president, in addition to preserving electronic messages in a searchable format.
• The Whistleblower Protection Improvement Act (was H.R. 7935 in the 116th) clarifies that no federal employee (including POTUS or the VP) can interfere with or retaliate against a federal employee for sharing information with Congress. It also would provide faster legal recourse on retaliation claims. This means access to a jury trial when the MSPB can’t act in a timely way — MSPB hasn’t had quorum for 4 years and complaints go to the end of an over 3,000 case line.
• The Accountability for Acting Officials Act would reform the Federal Vacancies Reform Act, which was last updated in 1998. The bill requires notification of vacancies, regular testimony of acting officials before Congress, and limits acting agency heads to 120 day maximum tenure. The over reliance on acting officials could also stem from the fact that Senate confirmations take twice as long as when Reagan was in office. The bill also requires that Acting IGs be selected from an existing IG for another agency or senior staff in the OIG to ensure they’re qualified. The bill (H.R. 6889), introduced by Rep. Porter, still needs a Republican lead on this historically bipartisan issue.
Bills to empower federal IGs, which save the government $17 for every $1 invested, were also on the agenda:
• The IG Independence and Empowerment Act (H.R. 2662)would protect Inspectors General from retaliatory firings by only allowing IGs to be removed for cause (e.g. neglect, misconduct); cause for removal must be documented and reported to Congress.
• The IG Subpoena Authority Act (H.R. 2089) gives watchdogs teeth. IGs could compel testimony from contractors and former government employees, who are currently out of reach, dramatically impacting investigative capacity.
Other bills for your radar: the Article One Act, which would require Congress to affirm presidential national emergency declarations, instead of just having the power to block, was reintroduced in the House by Rep. Chip Roy. The For the People Act, (S.1), will be considered by Senate Rules on Tuesday at 10. And you know we’re a big fan of the Congressional Power of the Purse Act, which we hope will be reintroduced soon.
DEMOCRACY AND TRANSPARENCY
Congress shouldn’t wait to prioritize transparency and accountability initiatives, according to panelists and last week’s Advisory Committee on Transparency event. Topics ranged from protecting Inspectors General and whistleblowers to bolstering FOIA to grading Pres. Biden and evaluating whether our democracy can survive.
If you’re looking for more ideas: the First Branch Forecast hosted lightning talks on reforms that can move through the appropriations process — everything from ensuring the government can run in an emergency to releasing secret Justice Department opinions, and more. And, of course, Demand Progress has its list of approps ideas.
CONGRESSIONAL STAFF CAPACITY
Congressional staff capacity was the primary focus of the latest House Modernization Committee hearing on Thursday. We have recommendations in our latest recommendation package for improving congressional staff capacity here.
Raising the MRA to pay staff more and increase benefits is one of the strongest ways to recruit and retain talented staff on Capitol Hill. Dao Ngugyn, former Executive Director of the Future Forum Caucus in the House, testified that she left the Hill last year because “the longer that I stayed on the Hill, the harder it became for me to plan for my future.” She recommended the House increase its MRA by 20%, echoing the position of House Majority Leader Hoyer and Caucus Chair Jeffries, to correct cuts that were made in the House, establish non-binding pay bands and COLAs, removing franking-related costs from the MRA, decouple staff pay from member pay, provide staff with better training and certifications, ensure staff have access to child care, increase diversity, require implicit bias training, issue regular staff surveys, and ensure the safety and protection of staff on the Capitol Hill campus.
• Congressional Management Foundation President and CEO Brad Fitch echoed some of the same recommendation, testifying that the House must raise the MRA 20%, establish salary thresholds for junior staff, create an overtime pay standard, increase the budget for the Congressional Staff Academy within the CAO, consider reforming the student loan program to replicate the transit and healthcare benefits, and work to change the culture of employee expendability. The last recommendation was also echoed by Fran Peace, a witness who was a District Director for 26 years, who said retention is determined by how well you work through issues with your colleagues, especially during times of high conflict.
• Agreement. Vice Chair Timmons supported the idea to increase the MRA to retain staff after Chair Kilmer asked Lynnel Ruckert, a witness who was a former Chief of Staff for Minority Whip Steve Scalise, if an MRA increase required bipartisan support for enactment. Ruckert said she supports pay bands for certain positions as well as stronger management training.
Increasing benefits for congressional staffers will help incentivize them to stay on the Hill longer. Greta Engle, Vice President of Employee Benefits at USI Insurance Services, testified that in the private sector, employee benefits made up roughly one-third of total costs for businesses, and are seen as a highly effective recruitment and retention tool. Multiple witnesses mentioned that Congress, like any other employer, faces competition, and needs to increase its benefits package in order to compete with the Executive branch and the private sector.
Providing more professional development opportunities for employees in Congress is essential to retain talent. Chief Administrative Officer for the House Catherine Szpindor discussed the success of Congressional Staff Academy and testified that last year, registrations for non-required staff academy courses stood at 8,548, a five-fold increase from the prior year. This year, the CAO has already trained 3,676 employees and has received 97% positive feedback for its coursework and training. Szpindor mentioned the CAO is also in the process of expanding its training further by hiring four former staffers as program specialists. The office will begin to roll out new programs to member officers this summer.
A CAPABLE CONGRESS
The days of junior staff wandering the halls to collect signatures are over with the new House e-signature application, Quill. According to House Admin’s announcement, “Offices can now share letters, collect supporting signatures and track the progress of the letter signing process from start to finish without ever making a phone call or visiting another office,” free of charge. Watch this short video. We commend the CAO for developing this tool, but more than that, for taking technology developed for the Senate and modifying it to meet the specific needs of the House.
About 75% of House Members have been vaccinated, according to Speaker Pelosi’s estimate, but…that was also true in March. The House won’t return to pre-pandemic operations until more Members are vaccinated, according to the Speaker. I’m getting my second shot on Friday and I hope that I’m not alone.
Did you know the Office of Congressional Workplace Rights has a quarterly newsletter? Check out the first one for 2021 featuring information on the Ergonomics Outreach Program, workplace civility and inclusion training, and more.
APPROPRIATIONS
The House plans to mark up FY 2022 appropriations bills in June and vote in July, Approps Chair DeLauro said during a Brookings Institution webinar on Thursday. That’s an ambitious timeline given the late start of the budget process this year. Both House and Senate Budget Chairs Yarmuth and Sanders have yet to release FY 2022 budget resolutions; we think they’re delayed by the late release of budgets by Pres. Biden. Both chambers have yet to release any information on the security supplemental.
A public witness hearing will be held by the House Appropriations Labor-HHS Subcommittee. This is excellent news, we know it’s not easy during COVID; we appreciate the subcommittee’s extra effort. Requests to testify are due today at 8pm.
Six Republican Senators expect to use earmarks — Sens. Shelby, Collins, Moore Capito, Graham, Murkowski, and Blunt — and less than 30 of Senate Republicans will commit to complying with their conference’s earmark ban, Caitlin Emma and Jen Scholtes report. So the Senate Republican “earmark ban” is basically marketing.
The House’s Statement of Expenditures, the quarterly report on where the House spends its money, was reported in the House, although the document (H. Doc. No. 117-33) does not appear to be available and the website containing the reports has not yet been updated. Generally speaking, this is a pretty smooth process — although we continue to wonder when the Capitol Police Statement of Expenditures will be published — they haven’t been made publicly available (as far as we can tell) for half-a-decade.
TECHNOLOGY AND LEGISLATING
Happy 100th Anniversary, GAO. Lincoln Network hosted an event looking back at the institutional development of GAO over the past century and looking forward at the role the “government watchdog” will play in its next 100 years.
The Clerk is hiring two Software Engineers and a Senior Database Administrators; all three positions feature competitive pay. Share the posting with the techies in your life or apply here.
Do multipurpose rules help or hurt legislating? When legislation is going to be considered on the floor, the Rules Committee issues a rule governing the floor procedure for that bill. The practice was generally one bill per rule, until the Republican-controlled 112th Congress when a single set of rules could now govern multiple-measures’ consideration. Multiple-measure rules made up 45% of House special rules last Congress.
• Pros & Cons. On the one hand, multiple-measure rules help manage floor time and provide a route for rank-and-file members’ bills to reach the floor — multiple-measure rules are significantly more likely to include rank-and-file member sponsored bills — but on the other hand, the process centralizes leadership power and can force Members to vote on complex unrelated issues some of which they agree with and others they don’t.
ODDS & ENDS
Confederate statues would be removed from Congress if legislation reintroduced by Rep. Hoyer and a dozen-and-a-half other members were to become law. You should read the written testimony from the R Street Institute’s Eli Lehrer, or watch his presentation from our faux-ppropriations witness day, that calls for the removal of the statues. While it takes a law to return the statues to the states, the Joint Committee on the Library (in tandem with the AOC) could remove them from public view immediately. We wrote about how this could happen back in June 2020 — and joined Eli in a few op-eds making this point. The House already has named its members to the Joint Committee on the Library; if the Senate has done so, the committee can meet and act.
Minority Leader McCarthy is“renting” in a room in a fancy, nearly 7,000 square foot $4 million penthouse — and all for the low, low price of $1,500. Lol. That’s about what I paid for an efficiency in U Street in 2006. I bet Frank Lunz, who is renting him the space, has a nicer setup than I did, although my decor was shabby chic. We are very sympathetic to making sure that Members can afford housing, and we think that Members shouldn’t sleep in their offices, but the idea that Rep. McCarthy is paying market rate is simply not believable.
Congress.gov now includes a directory of Members’ address & phone number, as well as a new citation tool.
Regime change. So… it appears Liz Cheney is about to lose her position running the Republican conference. We’ve already said what we wanted to say about Republican party politics… at least for the moment.
CALENDAR
Monday
• House Administration Committee has an oversight hearing on the January 6th Attack: United States Capitol Police Threat Assessment and Counter-Surveillance Before and During the Attack at 3:00 pm ET.
Tuesday
• Senate Rules Committee has a business meeting on the For the People Act (S. 1) at 10:00 am ET.
Wednesday
• House Oversight and Reform is holding a hearing on “The Capitol Insurrection: Unexplained Delays and Unanswered Questions” at 10:00 am ET.
• House Administration Committee has an oversight hearing on the January 6th Attack: Review of the Architect of the Capitol’s Emergency Preparedness at 12:00 pm ET.
• OGIS Annual Open Meeting is happening 10:00 am to 12:00 pm ET. Register here.
Thursday
• House Modernization Committee is holding a hearing on “Recruiting, Empowering, and Retaining a Diverse Congressional Staff” at 9:00 am ET.
Friday
Down the Road
• 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.
• FOIA Advisory Committee Meeting is being held on Thursday, June 10 from 10:00 am to 1:00 pm ET. Registration is not open yet.