The House of Representatives cut short the legislative session on Thursday and won’t be back in town until September 9th. At that point, they’ll have three weeks to pass a continuing resolution to fund the government.
The Senate will leave town later this week and won’t reconvene until September 9th.
Loving criticism. I spill my not-so-secret plan to revive and reinvigorate the Congressional Research Service in the Washington Monthly. Tell me what you think.
Cybersecurity. If you’re a district staffer concerned about personal cybersecurity, sign up for training on July 31st hosted by the American Governance Institute, the R Street Institute, and Demand Progress.
Nominations. The Senate Rules Committee scheduled a July 30th hearing on Senate procedures to confirm nominees. Witnesses include Elizabeth Rybicki and Sean Stiff, both from CRS, and Jenny Mattingley, currently at the Partnership for Public Service and formerly at OMB and the Senior Executives Association.
Agreeing on what to do about SCOTUS’s Chevron decision
Chevron and Congress was the focus of a House Administration Committee hearing this past Tuesday. Witnesses included Josh Chaffetz, Wayne Crews, Kevin Kosar, Paul Ray, and Satya Tallman. Roll Call has a recap. The hearing illustrated how people with differing views can reach some of the same conclusions about what should be done.
How do those views differ? Conservatives hailed the Supreme Court’s decision in Loper Bright as taking power away from unelected agency officials and restoring them to Congress. Liberals argued the Supreme Court took power away from semi-accountable Executive branch officials and gave it to entirely unaccountable federal judges. Chafetz, who had the better of the arguments, pointed out Congress understood Chevron when it drafted statutes over the last four decades. More consequentially, the court’s decision removed the shackles on judges to defer to agency interpretations of Congress’s intent with the result that judges are more likely to impose their individual ideology on policy decisions. This is not theory: per Chafez, research shows this is how judges behave when given discretion.
Chevron deference arises from the Supreme Court’s interpretation of the Administrative Procedures Act, not the Constitution. Congress could reestablish Chevron deference by writing it into law, whether writ large or for individual areas of law. But I suspect the parties would differ on reviving Chevron because the courts have now been largely captured by conservatives, with outcomes more in line with their views. Loper Bright is an anti-regulatory decision and is part of a string of cases (such on the major questions doctrine) that undermines Congress’s exercise of lawmaking authority when it allows agencies to determine how best to achieve the purpose of the law. In addition, for those who want regulatory certainty, Loper Bright makes things worse.
Where there is agreement is on the need to beef up Congress. Short term solutions ranged from significantly increasing the size of committee staff, beefing up CBO, strengthening GAO and especially its Congressional Review Act capabilities, and establishing a Congressional Review Office. Ranking Member Morelle rightly pointed out that this all costs money, but the Legislative Branch Appropriations bill did not contain sufficient spending increases (and had failed on the House floor.)
I was gratified to have my research indirectly cited: that the legislative branch receives 4/10th of 1% of non-defense discretionary spending, but I had hoped for more discussion of funding levels in Congress and comparing them to the funding and staffing levels for the Office of Information and Regulatory Affairs., which is the White House office that reviews rulemakings.
Let’s start with the big financial picture. Congress appropriated a baseline of $1.59 Trillion in discretionary funds in FY 2024, broken into $886 Billion in Defense and $703 Billion in non-defense funds. The Legislative branch received $6.75 Billion, which is 0.4% of overall discretionary spending.
Of the $6.75 Billion for the Legislative branch, $430 Million was appropriated to House Committees, Senate Committees, and Joint Committees combined. This includes appropriators and interns but excludes expenses for support from the Clerk, Secretary of the Senate, or social security expenses. Roughly, the Legislative branch spends 6.3% of its appropriation on committees.
I estimate there are 2,310 committee staff over 39 committees across the two chambers based on these two CRS reports. (They don’t appear to include the joint committees, which I will ignore for expediency.) The average number of committee staff in the House is 55 and the Senate average is 57. The total number of staff per committee is capped, although I do not have the maximum numbers. Appropriators are outliers in both chambers, with 137 staff in the House and 131 in the Senate, 2.5x the average committee staff size.
In the House, staff are routinely split 2/3s-1/3s between the majority and minority, so at least 400 committee staff are fired whenever control of the chamber flips. The split between majority and minority staff in the Senate fluctuates depending on who controls the chamber. Congress operates on the spoils system, where political staff are not in the civil service and can be readily hired and fired.
The White House’s Office of Management and Budget, which houses OIRA, requested a $138 Million appropriation for FY2025 and indicated they would have 510 staff. It is unclear how many of those staff work for OIRA and how many additional staff (if any) are detailees from the agencies. I do not know how many OMB employees are political appointees versus civil servants, nor do I have data on how many agency staff are involved in the rulemaking process. If you squint a bit, my guess is that OMB is roughly congruent with the funding and number of non-legislative committee staff in one chamber.
What does all this mean? The Legislative branch is 0.4% of federal discretionary spending and committees receive 6.3% of spending on the Legislative branch. If we are to increase funding for committee staff, we must either increase appropriations for the Legislative branch or receive funds from other appropriated funds. As funding for the Legislative branch historically has grown at only half the rate as the other non-defense appropriations, and most new spending on the Legislative branch has gone towards police and infrastructure, the most ready source of funds would be an overhead charge on all appropriations.
For example, if we direct three ten-thousandths (i.e. 0.03%) of discretionary spending to beef up Congress’s ability to oversee regulations, that is the equivalent of $480 Million in FY 2024. That’s enough to double the average number of committee staff from 56 to 112, with $50 Million available to create the congressional equivalent of OIRA.
There are many ways to decide how to address additional staff. They could flow into the current committee structure of Congress or Congress could hire non-partisan professional staff who are treated as civil servants. Congress could hire fewer staff but pay them more so they are likely to stay long term and develop expertise. You could have them as employees of the committee or have them as permanent detailees of a to-be-created Congressional Review Office (or at GAO, CBO, etc.)
Another approach could be to have the funds support providing members who serve on committees with a committee staffer that they hire and fire, i.e., a staff designee. This would align the interests of the staffer with members of the committee and empower them to pursue individual member interests alongside committee interests. We have examples of this already, such as on the Senate Intelligence Committees. It would address the issue of the interests of a committee chair not being in full alignment with the interests of the members on a committee.
There are other issues that arise. Where do we house the new staff? It appears that the federal government has more buildings than occupants, so there may be space nearby, or staff may be able to work remotely. We will need additional support staff for the Clerk and the Secretary of the Senate. House and Senate Legislative Counsel will need to hire and train new staff, which is a slow process. They too will need significant new funds. Technology may help facilitate Congress’s review of agency regulations.
Congress also may wish to develop a stronger regulatory analysis capability that allows it to understand the effect of regulations before they go into effect. The GAO’s STAA has piloted some of this work, and we have examples from Europe where regulations are assessed before being promulgated.
If there is agreement on the need to address the consequences of the Supreme Court’s disempowerment of agencies to fill-in-the-gaps of laws enacted by Congress, and agreement that Congress must strengthen its capabilities, then we need to re-prioritize a small percentage of federal funding to empower Congress to undertake this work.
As we do so, we should be clear-eyed that the Supreme Court is not merely rebalancing power, but placing its finger on the scale of the outcomes. Accordingly, working to strengthen Congress is a necessary step to address the burdens of Loper Bright, but not sufficient.
Improving committee video access and archiving
Video capabilities for House Committee proceedings is the subject of an RFI originally published on June 20th and supplemented on July 22nd. It’s focused on the “potential to host and livestream official Congressional hearing videos, and to provide public access to archived hearing videos.” Comments are due by August 30th.
“Currently, U.S. House of Representatives (House) Members, Committees, Leadership Offices and staff streams each committee hearing and markup to committee-controlled YouTube channels. For the public to view these hearings, they must locate and navigate to the respective YouTube channel, where they have access to both live and on-demand video. There are currently 19 standing committees, their [sic] are numerous subcommittees, and another five select committees. The average amount of committee coverage is approximately 3,000 hours each year.”
It is good to see the House exploring creating a centralized portal for the videos, as well as archiving the videos, providing closed captioning, data analytics, and the use of APIs to integrate with automatic scheduling of hearings. Also, it’s smart to move off YouTube as the primary point of access, even though it may have made sense when it was done initially.
The online streaming of House proceedings was itself the focus of sustained efforts about a decade ago and is now required by House rules. Progress was a struggle at times. Even when the rules were changed, as I wrote back in April 2012, not all committees were properly implementing the requirement.
Nowadays, some House videos are incorporated onto Congress.gov, with the data pulled only when the unique ID accompanying each event is published on each committee’s YouTube page. It’s technologically possible for the folks at the Library of Congress, who are responsible for Congress.gov, to connect every YouTube video to the corresponding congressional hearing in the absence of the event ID, but it has not happened yet. Either the committees need to ensure the IDs are included or the Library should come up with a technical work-around, such as fuzzy matching. In either case, we suspect that the Committee on House Administration will need to step in and direct a fix. (Perhaps this will get addressed on a prospective basis when the new committee portal is created.)
The Senate committee video setup is different. The Senate doesn’t publish committee videos on YouTube and there is no official central website for committee video, although the FAI’s Lars Schonander did manage to identify links to hearing videos going back to the year 2000 and publish them on his website.
Congress.gov has started incorporating Senate committees videos from the last year or two on their website, but there’s apparently no plans to go further back in time. Unlike the House, the Senate does not have a central committee documents portal, although they do post notices of upcoming hearings at a central website.
The Senate has indicated it is working on some kind of a video solution that will address accessibility and archiving, although a report from a working group on that topic is overdue. As of June 2024, the Senate has not begun working on the project, but “a joint solution [has been] identified and reportedly agreed to by all parties.”
What I would like to see is all existing committee videos from both chambers linked to or embedded in Congress.gov alongside other documents from committee proceedings as they occur, as well as included in centralized House and Senate committee document repositories at the moment the proceedings are scheduled.
Keeping Inspectors General, and their watchdog, honest
CIGIE! Last week we talked about CIGIE, the Council of Inspector Generals on Integrity and Efficiency, and its integrity committee. It’s rare for the integrity committee to issue a report, which was a topic of conversation at the House Oversight’s hearing last week, and it shook loose a new report on misconduct from the Social Security Administration IG.
Members of the House Oversight Committee were unhappy with long delays in releasing the results of six ongoing CIGIE investigations into various inspectors general, and CIGIE’s Chair Mark Greenblatt would also like to expedite the process. The investigations would go faster, Greenblatt noted, if the IGs under investigation would cooperate with the integrity committee – which seems a futile wish. He noted that CIGIE’s integrity committee does not have its own investigatory staff and borrows them from various IGs.
CIGIE does not receive a congressional appropriation but instead is paid pro rata by the various IGs. One proposal suggested is to allow leftover, unspent funds by each IG to be transferred to CIGIE when they expire as a funding mechanism.
In FY 2023, IGs potentially saved taxpayers $93.1 Billion, with a ROI of 26-to-1, according to Greenblatt. CIGIE’s legislative priorities include creating a permanent data and analytics capability for the IG community, establishing a government-wide prohibition on agency use of appropriated funds to deny IGs full and prompt access, and providing separate and flexible IG funding.
Greenblatt may return in September for a follow-on hearing, and members are interested in the results of a CIGIE investigation into the DHS IG, which is anticipated in a month or two. The IG is accused of a range of serious misconduct.
Are Legislative branch IG reports transparent? Not all of them.
While poking around on oversight.gov, the repository for IG reports across government, we found not all six legislative branch inspectors general were publishing their reports there.
The good news is 3 IGs – the AOC, GAO, and GPO – are publishing their reports on oversight.gov.
However, the Library of Congress IG has not published there in 7 years. The Capitol Police Inspector General has not published any reports on oversight.gov. And the House Inspector General isn’t even listed on the oversight.gov website.
We understand the Library of Congress IG is working to address the backlog. We’re a bit mystified by the Capitol Police Inspector General. They are publishing some reports on their individual website, as directed by Congress, but why aren’t they publishing on oversight.gov? It could be because the USCP IG hasn’t decided to do so, or it could be they don’t think they have the authority and are waiting on direction from the Capitol Police Oversight Board or Congress.
The House IG is an unusual case. They published 119 reports on their individual website from 1996-2006, but they pulled down those old reports and have only published the annual fiscal audit. The House IG has become somewhat of an in-house management consultancy for the House Administration Committee, but as a regular reader of House Admin’s end of Congress reports, it’s clear to me that some of those IG reports should be made publicly available and all titles should be listed on that website.
As an aside, I did notice three new Library of Congress IG reports published on the LC’s website this past week. One found a “significant deficiency” concerning the preparation of fiduciary financial statements related to copyright, the second determined the LC created a plan to address deficiencies in tracking end user devices, and the third gave a clean bill of health to the LC’s consolidated financial statements.
The House Clerk’s technology project timelines
The transcript from House Admin’s hearing with the Clerk of the House was published this past week. It contains our first view of the questions for the record asked at the hearing, and there’s a lot of interesting Q&A. Some highlights:
There’s a discussion of draft legislation to sunset the advisory committee on the records of Congress and consolidate the work of the ACRC in the hands of staff. For my money, some of the roles of the ACRC (e.g., video preservation & congressional web archive) should be rolled into the work of the Congressional Data Task Force. I’d hate to lose public insight into that work.
Timeline for several Clerk-related projects. The new committee portal and publication of committee votes as data is expected to reach minimum viable product in June 2025. A study on building a collaborative drafting tool is expected to be completed in September/ October 2025. The estimated completion date for the Lobbying Disclosure modernization effort, which will include unique IDs for lobbyists, is May 2026.
Regarding the new committee portal, it will be a one stop shop for staff to manage their work. Initially it will focus on activities related to the legislative process such as bill referrals, roll call votes, and so on. It will eventually expand to addressing planning a committee meeting, which includes requesting resources for Official Reporters and from the House Recording Studio, reporting committee activity to the Clerk, managing witnesses, and collaborating between committees.
Wish list. The Clerk, when asked to identify three projects to take on if money were no object, identified: (1) creating a member portal that’s a one stop shop for all legislative matters related to a member of congress; (2) speeding up production and adding new features to the committee portal (such as collaborating with GPO to create committee reports and building an eHopper submission process); and (3) adding new features to the legislative information management system, such as tools to improve the exchange of data between the Parliamentarian and the Clerk, such as committee referrals and executive communications as well as incorporating CRS’s Text Analysis Program to speed up referrals.
Menendez to resign
Sen. Menendez said he would resign on August 20th in the wake of his conviction and an uncommon Senate Ethics Committee statement regarding its vote “unanimously to initiate an adjudicatory review of [Sen. Menendez’s] alleged violations of Senate Rules.”
Will Sen. Menendez retain floor privileges when he resigns? Access to the Senate gym? Other perks of office? According to this CRS report – which does not appear to be available from CRS’s official website because they don’t make “historical” reports publicly available – there may be some effects on his pension depending on the crimes he was convicted of, but no loss of perks. The House’s rules, by comparison, impose penalties under certain circumstances.
What happens to Menendez’s chairmanship? Roll Call is looking at all the alternatives for succession, including the knock-on effects for other committees. Among the possibilities? Sen. Sanders as Finance chair.
Transparency & Accountability
The Justice Department seems to be playing games again on FOIA, at least with respect to requests for information about Biden’s interview with former special counsel Robert Hur. Perhaps now is a good time to move legislation forward to strengthen FOIA?
A ban on stock trading by members of Congress has advanced through HSGAC in the Senate. Roll Call has the story.
Ethics
Racist comments. The Speaker admonished members of his party and urged them to stop making racist comments about VP Harris.
Ex-Rep. Trent Franks is running again. Per NOTUS, “Franks resigned from office amid a House investigation into ‘credible allegations’ that he’d asked two female staff members to be a surrogate to bear his child.” This could be one good reason why the Ethics Committee should retain jurisdiction to complete an investigation and release a report even when a member resigns.
The Office of Congressional Ethics released its second quarter 2024 report. The report recounts OCE’s release of reports concerning Reps. Jackson, Hunt, and Nehls; the Ethics Committee’s expansion of an OCE-initiated investigation into Rep. Cherfilus-McCormick, and the receipt of 5,000 citizen communications.
ICYMI
The transcript from House Admin’s hearing with CRS’s ex-director was published this past week, and the questions for the record make a fascinating read. The QFRs are 187 pages long and ask very pointed questions about the agency. If you want some light reading, start on page 62.
I write about impoundment, the not-so-secret plan to seize control of spending and make Congress irrelevant.
Odds & Ends
Restricted GAO Report. “SEC’s Oversight of the Financial Industry Regulatory Authority” is the focus of a GAO restricted report whose existence was publicly noticed on July 19, 2024. In addition, “Columbia Class Submarine: Overcoming Persistent Challenges Requires Yet Undemonstrated Performance and Better-Informed” is the focus of a restricted report publicly noticed on July 25, 2024. Congressional staff who are interested in reading it should contact GAO.
Jennifer Rubin. If anyone knows or can make sense of her column on “why centrism may be our salvation,” please give me a call.
Who will lead the Republican Study Committee? Politico profiles the race of August Pfluger vs. Ben Cline.
The Biden impeachment is over.
Get a bookmark, because BPC’s JD Rackey is keeping score on the House’s implementation of ModCom recommendations.
A bipartisan task force on the Trump assassination apparently has been created with unanimous support. It is unclear at this time who will serve.
The post FBF: It’s almost recess, but first Chevron, IGs, and committee video (7/29/2024) appeared first on First Branch Forecast.
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