Welcome to the First Branch Forecast, your regular look into the Legislative branch and government transparency. Tell your friends to subscribe.
THE TOP LINE
Bonus week. The Senate is in today; the House is in tomorrow, with the ominous last vote predicted at “???” We’ll see both chambers vote to raise the vestigial debt ceiling thanks to legislation waiving the filibuster that apparently didn’t cause the demise of democracy or an end to the world’s greatest deliberative institution. Also on the Senate docket is a more pro-militarist version of the NDAA than usual, shepherded by the Armed Services committees outside of regular order— sans 1991 + 2002 AUMF repeal, sans independent protection for victims in sexual harassment cases, and with a $25 billion bump above what the Pentagon requested, equivalent to 50% of the cost to vaccinate the world against COVID. The House will ponder holding Mark Meadows in contempt and adopting legislation on Islamophobia. In committee: the Jan. 6th committee is expected to report out a contempt resolution on Meadows; the Coronavirus committee will consider the need to accelerate vaccinations — say, what about that extra $25 billion? Not listed on Congress.gov, but apparently happening: a Thursday House Admin hearing on the Smithsonian. There’s also a ton of nomination proceedings.
CRS Reports. This morning a coalition of 42 organizations and 21 experts on Congress, including many former CRS analysts, wrote to Rep. Lofgren and Sen. Klobuchar, the Chair and Vice Chair of the Joint Committee on the Library, requesting they direct the Library of Congress to publish all non-confidential CRS reports online. As you know, a 2018 law required CRS to publish online those reports available on its intranet page and encouraged CRS to publish the rest of its non-confidential reports, but CRS has refused to act unless directed (instead of merely encouraged and authorized) by Congress. This issue is more than a quarter-century old and it is time for it to be resolved.
Last week was action-packed with government transparency and accountability news, which we recount below. Among the highlights:
• The Fix Congress committee (aka the ModCom) favorably reported 25 recommendations to fix up the Legislative branch, including strengthening leg branch support agencies.
• The Protecting our Democracy Act was passed by the House and included many provisions that strengthen our democracy, including the consideration of many smart amendments on the floor (one of which was denied and another was not afforded consideration despite this letter urging the provision of TS/SCI clearances to each member office). Alas Republicans saw the legislation as anti-Trump and opposed it on that basis, but hopefully it will be broken up in the Senate and passed piecemeal. The administration issued a lukewarm statement of support that belied expected efforts to fight provisions that hold the Executive branch to account. (Yes, pro-Trump Republicans and the Biden administration will be inadvertent, unlikely allies to protect Executive power.)
• The Open Courts Act, a bill to make court records freely available online, was favorably reported by the Senate Judiciary Committee and picked up a bunch of co-sponsors along the way; it enjoys strong civil society support.
• The Democracy Summit, a largely bloviational conference of democracies focused on the US telling other people what to do and not focused on what we will do at home, did provide a useful statement from the president: “We have a responsibility to listen to our citizens, to strengthen the guardrails of democracy, and to drive reforms that are going to make transparent, accountable governments.” Bookmark it for all your future letters to the administration.
• Read the damn Senate bill: a coalition of 41 organizations and 15 congress experts “request[ed] the Senate publish bills and amendments online while they are still under consideration.” Astonishingly, the Senate does not make all its bills and amendments available to the public prior to passage in the Senate — and they’re not available on Congress.gov, either — which is problematic for the reasons spelled out in the letter.
• Capitol Police Public Records Regulations: The Capitol Police have been, uh, dilatory in publishing regulations to respond to public records requests, so we decided to give them a little help by publishing draft regulations for them, which are described here and available here.
• The Capitol Police were the focus of a Senate Rules hearing with IG Bolton testifying. We’ve got more below, but with only 30 of 104 IG recommendations implemented, and apparently no person in charge of Capitol security, there’s a lot more to do.
Operation Pig Whistle is the name of an apparently unlawful and notably nutty CBP effort to spy on journalists using terrorism databases and was conducted with apparently minimal respect for civil liberties and good sense. I’m telling you about it because the broad surveillance net also pulls information about Members of Congress and their staff (and journalists who work on Capitol Hill), including grabbing their travel information and routinely running staff information through the Terrorism Screening Database — all without cause. Maybe someone should connect the dots between this and the 20-ish members who voted against GAO oversight of the IC and ask them some really hard questions. I’d say this is unusual, but we all know of problems with the IC spying on Congress.
Pray I don’t alter it further. Speaker Pelosi will run for re-election and may (per sources close to the Speaker) vie for a Democratic leadership spot in the 118 Congress, according to CNN. We stay far away from federal elections in this newsletter, but we note the Speaker saying the 117th would be her last two years as Speaker and we remember the agreement reached in 2018 on that point where it was also suggested there would be term limits on Reps. Hoyer and Clyburn — an agreement never adopted in the caucus rules. As reported in 2018: “Pelosi has agreed to abide by the term limits for her speakership even if the caucus doesn’t approve the proposed changes.” Assuming she keeps her word, this could be a play to stay relevant, to raise money for the caucus, to influence who becomes her successor, and perhaps have an off-cycle election at home where you-know-who would be primed to succeed her.
OPEN GOV
The Senate Judiciary Committee favorably reported the Open Courts Act, S. 2614, a PACER reform bill that would eliminate the paywall restricting access to federal court records and address cybersecurity vulnerabilities. A coalition of legal experts and good governance groups including Demand Progress voiced their support of the bill here. Fix the Court has more.
The Justice Department has been unresponsive to members’ requests for documents and information, a bipartisan group of lawmakers stated at a Senate Judiciary Committee meeting last week. Several members noted the Executive branch’s apparent disdain for congressional oversight; in the words of Sen. Sheldon Whitehouse, the DOJ treats senators as it does FOIA applicants: badly. We hope the committee is paying attention to a bipartisan amendment offered by Reps. Correa and Issa to the House-passed PODA that addresses exactly this: it would “ensure that executive branch agencies are not using the [FOIA] law’s exemptions to withhold information from elected officials conducting oversight.”
A free and independent media:the number of imprisoned journalists worldwide hit a new high last year, the Washington Post reports. China topped the list as the world’s “biggest captor of journalists,” with 127 reporters currently detained. The US has also repressed members of the press in recent years: a record 110 journalists were arrested or criminally charged in 2020, and around 300 were assaulted, the majority by law enforcement. We note there have been issues with how the Capitol Police engage with congressional journalists.
New resources regarding whistleblowers: Existing private sector whistleblower protections are outlined in a new fact sheet from the House Office of the Whistleblower Ombuds. House Members and staff can also access this online training that offers a deep-dive into whistleblower retaliation.
The surviving audio recording of Congress declaring war on Japan on December 8, 1941— both FDR’s speech and the ensuing debate (go to 3:03) — is owed to Rep. John Dingell’s benign neglect as a fifteen-year-old Senate page. In 2012, Rep. Dingell recounted to The Atlantic how he opted not to follow instructions to prevent the continued recording after FDR’s address ended, resulting in a remarkable historical artifact of what Members actually said. The fact that Congress has never been the same surely must be attributed to the fact of the debates’ recording and not anything else happening in the world at the time. When you listen to the debate, it makes 1941 seem a lot closer to today. (H/T Marci Harris) (I should note that there is still more to do regarding the great horror of rounding up thousands of Americans of Japanese descent and moving them to internment camps.)
FARA: The Justice Department published a notice seeking comments on clarifying and modernizing the Foreign Agents Registration Act, with responses due by Feb. 11. Here are some ideas they should consider.
PROTECTING OUR DEMOCRACY ACT
The “Protecting Our Democracy Act” passed the House. The legislation, H.R. 5314, includes provisions on OLC opinions, protecting Congress’s powers of the purse, enforcing congressional subpoenas, strengthening GAO and protecting whistleblowers, and more. Rep. Rosa DeLauro noted her particular support of provisions reaffirming the Congressional power of the purse by requiring OMB to make apportionment of appropriations to the Executive branch available in a timely manner, and strengthening two important laws protecting Congress’ appropriations power.
Republicans view PODA largely as an anti-Trump measure and thus opposed passage of the legislation. However, we are hopeful that the legislation can be broken into consistent pieces and moved in the Senate. Similarly, the administration’s statement of support was lukewarm at best. Ask me for a dramatic reading of what’s between the lines.
Amendments in order: The House Rules Committee ruled in order and the House adopted en bloc a number of amendments that we outlined last week, via amendment 146, including: disclosure of White House visitor logs + financial disclosure documents; prohibiting agencies from treating requests from Congress like FOIA requests; creating an OMB IG; providing for 7 minority members of House Oversight to demand agency responses; not having an incoming staffers’ TS clearance counted against the limit of 2; codifying the Executive Order on ethics; and protecting agency interns with whistleblower protections. (See part B.)
Clearance amendment not in order: We were extraordinarily disappointed to see the Rules Committee did not rule in order the excellent clearances amendment offered by Rep. Sara Jacobs. The measure would have empowered each member of the House to designate one staffer as eligible to seek a TS/SCI clearance, which is the practice in the Senate, for all the reasons outlined in this letter. The amendment enjoyed broad and bipartisan support: Reps. Stephanie Murphy, Langevin, Tlaib, Jesús Garcia, Andy Levin, Takano, Sherrill, Issa, Khanna, Strickland, Costa, Castro, Phillips, Moulton, and Allred. This is one of those instances where the interests of leadership are not aligned with that of, well, everyone else.
GAO Oversight of the IC: The House Rules Committee ruled in order this amendment that would have reaffirmed the GAO’s ability to conduct oversight over the Intelligence Community, a power under threat because of a Justice Department OLC opinion and IC noncompliance, but oddly the measure was not considered with the other amendments en bloc. As a result, the combination of Republican votes against the amendment (all but Rep. Massie) and 23 Democrats who voted against it (with 195 for), meant the measure — which mirrored a provision passed by the House in 2010 — failed. This is astonishing, both because the GAO has said it is having trouble getting compliance from the IC and in light of the history of this issue, as outlined by Kel McClanahan. Reps. Schiff and Maloney spoke in favor of the measure, offered by Rep. Ocasio-Cortez, who explains it here.I suspect that a fair number of Republicans would have voted differently had this provision not been attached to PODA.
TRANSITIONS
Turnover. A preview of likely committee chairs for the 118th Congress is available to BGov subscribers here.
Top House Intelligence Republican Rep. Devin Nunes — who was also the Ways and Means heir apparent — is leaving Congress to head the Trump Media & Technology Group, unleashing leadership races for both top spots. House Intel is a select committee, which means the minority leader will pick the replacement. We’ve previously looked at the unusual rules of who is eligible to serve on HPSCI; it’s time for that committee to receive a massive overhaul.
No Ways and Fewer Means: We’re not interested in the jockeying for Ways & Means, but it is interesting to note that Vern Buchanan has sent Steering Committee members crab legs and Michelle Steel has provided them wine. This is hilariously unseemly.
MODCOM
The Fix Congress Committee favorably reported 25 recommendations last week. The recommendations span the categories of civility and collaboration in Congress, adopting evidence-based policymaking, and improving the Congressional support agencies. We’ll pick out a few of our favorites:
— Establishing a shared staff directory for Congress and its support agencies. Imagine being able to look up the staffer who is working on the issues that you care about.
— “Enhancing the customer experience” at CRS and GAO. This reform engages a theme that emerged from October’s oversight hearing on the Congressional support agencies: making sure the agencies’ activities align with their task of supporting Congress. Significant work provided by CRS does not align with how Congress needs the information.
— Modernizing the support agencies generally, including a review of whether they need updated authorities, also made the list.
— Soliciting reports from the legislative support agencies on barriers to accessing federal data. As it turns out, it’s hard for support agencies to obtain the information they need from the Executive branch for a variety of reasons. We’ve suggested a form MOU as a possible fix.
— Acknowledging member involvement in legislation, with the purpose of making it easier to understand where ideas came from. Perhaps our BillMap prototype can be a useful example.
— GAO was the focus of several specific recommendations, which Dan Lips of the Lincoln Network rounded up here. Annual GAO reports on the cost savings of unimplemented GAO recommendations and the legislative options to address open priority recommendations would help maximize the already considerable return on GAO investment. The committee also recommends authorizing STAA (that’s the Science, Technology Assessment, and Analytics Team) and making it a permanent part of GAO.
We note Speaker Pelosi’s reframing of the civility conversation during her press conference last week. Asked to remark on the “breakdown of comity in Congress,” Speaker Pelosi responded that a good place would be “curbing threats on the lives of Members of Congress, from one of their Members to the next.”
JANUARY 6th
Several USCP whistleblowers have faced retaliation for their revelations about the department’s handling of January 6th according to a lawyer representing several Capitol Police intelligence division whistleblowers. The retaliatory actions included two “proposed removals” from the force, according to the lawyer.
The House is expected to hold Mark Meadows in criminal contempt this week. The former Trump chief of staff announced he would no longer cooperate with the select committee’s investigation — and has filed suit against the committee and Speaker Pelosi in a bid to halt the inquiry.
Trump’s effort to prevent the Select Committee on Jan. 6th from accessing his White House records was denied by the DC Circuit Court of Appeals.
CONGRESSIONAL SECURITY
Speaking of the Capitol Police, the Senate Rules Committee held an oversight hearing with the USCP Inspector General. The upshot: the IG released 104 recommendations, only 30 of which have been implemented — the vast majority of recs don’t need approval from the Board or additional funds. As Sen. Ossoff brought out in his questioning, there is still no one who the IG could say is ultimately responsible for security at the Capitol.
• Insufficient progress: The Capitol Police still haven’t set up an appropriate training process, still have not modernized their intelligence functions, and have much to do to change their culture from policing to becoming a protective agency. For example, there still is not a permanent head of the intelligence bureau.
• Insufficient oversight: The IG does not have regularly scheduled meetings with the Chief and only met once one-on-one, in August. There are monthly board meetings, but the IG only presents quarterly.
• Pushback: The Capitol Police have pushed back on recommendations regarding the Containment and Emergency Response Teams (CERT) and on providing officers with TS clearances. The TS clearance pushback comes from a fear that it will make officers more marketable and they will leave. (We’re also surprised that providing all officers with government issued cell phones is deemed an appropriate response to problems with discipline on using the radio.)
• A failure of imagination. Sen. King, citing the 9/11 report, suggested that there may be a failure of imagination at the Capitol Police and there would be value in setting up red teams. Sen. King also mentioned that we spent billions on intelligence, adding that it may not make sense to set up another intelligence function, but rather to make sure that the IC is sharing information with the USCP.
• What’s next: The final report from the USCP IG is expected soon… with a hearing with the Police Chief scheduled for January. Also notable, much of the USCP IG’s findings are being deemed law enforcement sensitive, whatever that means, so we don’t know what they’ve found. Isn’t it time for the IG to start releasing their reports publicly, like all other IGs?
The USCP released a press release containing responses to IG flash reports 5-7. We haven’t read them yet.
Credentialed press can now receive official safety alerts from USCP, the House and Senate Sergeants-at-Arms announced last week. It’s the result of a “months-long effort by the SAAs, press gallery staff, House IT and CAO teams,” per the Huddle.
Reopening the Capitol to visitors is a balancing act. On one hand, the Capitol is the people’s house; it cannot be a fortress. OTOH, we are in the midst of a pandemic and the public mixing with lawmakers is dangerous, especially absent Congressional vaccine and mask mandates. Remote proceedings and fully-remote work seem the best way to mitigate risk along with exploring additional ways for public engagement and requiring vaccines and masks.
Rep. Madison Cawthorn apparently misled House security in order to bring an unauthorized person to the House floor. Rep. Cawthorn identified the GOP Congressional candidate accompanying him as a member of his staff — a likely violation of House Rule IV, and a definite security concern.
The CAO staffer who brought a gun into the Longworth building last week went undetected for twelve minutes before he was arrested by USCP, according to the department. They first said four minutes. Twelve minutes with a gun. Makes you think.
Are Republicans afraid to hold Trump accountable for fear of their lives? “Not only does Meijer describe members who advocated for invoking the 25th Amendment to remove Trump from office later voting against impeachment, but he cites fears of physical violence directly impacting such votes.”
ETHICS
The House Ethics Committee announced it will investigate Rep. Doug Lanborn for alleged misuse of congressional resources, including using staff to perform unofficial work and housing his son in a storage area in the Capitol basement.
Rep. Marie Newman is another subject of a House Ethics investigation for allegedly bribing a potential primary challenger, the committee announced Thursday.
ODDS AND ENDS
Lee Drutman, a former colleague of mine, opines in the Washington Post (alongside AEI’s Yuval Levin) that one way to reform the House is to expand its membership. He notes, accurately I think, that larger districts make it harder for members to be responsive to larger constituencies — although one could point to other reasons besides an increased constituency size, such as a need to raise more money and a beholdenness to those large(r) donors. Larger districts also, I think, broaden the base of who elects a member, slightly reducing the likelihood of political outliers, although raising money from corporations and the wealthy seem likely to be a larger factor. Unexamined in the article, but a salient point nonetheless, is that if you increase the number of members, you decrease the power of each individual member — forcing power to the top of the pyramid — and make it more likely that rank-and-file will form more cohesive factions (or caucuses) around their common political beliefs as a mechanism to exercise power, and move us towards a more parliamentary system.
Budgets. Americans for Prosperity released a white paper with ideas to fix congressional budgeting. Their proposal: put all spending (not just discretionary) and revenue in the same bill.
“Rife” cocaine use within the UK House of Parliament, reported in last week’s British Sunday Times, coincides with PM Boris Johnson’s recent cop cosplay to announce a crackdown on drug crime.
Jamie Raskin’s year of grief and purpose is the title of an excellent feature on the Maryland Congressman in the Post last week, describing how the lawmaker’s tragic loss of his son fueled his last year in Congress: leading the impeachment inquiry and working on the select committee on January 6th.
The lifecycle of parliamentary documents is the subject of a new report from the Law Library of Congress.
No Good? The Washington Post profiles Rep. Bob Good as a slightly less shouty version of Rep. Greene.
Astonishing. The surprising origins of Dun & Bradstreet. (H/T Julia Rock)
Classifieds. The US Capitol Historical Society is hiring a development associate.
CALENDAR
Protecting the Smithsonian collections from climate change is the subject of an oversight hearing before the House Administration Committee on December 16th at 12 PM.
A Member Day hearing is scheduled in the House Subcommittee on Elections for Friday, December 17th at 9 AM.
Do you have an event you want to share? Let us know. Email [email protected]
A PROGRAMMING NOTE
I don’t know whether we’ll be sending the newsletter over the break, so if you don’t hear from us, have a good holiday.
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