First Branch Forecast for May 15, 2023: Unions, CRS, USCP, and the Debt Debacle

TOP LINE

In a place driven by interpersonal relationships, failures to treat other people with respect in the Legislative branch stand out. Last week, we learned a lot more about how the people inside CRS feel about how upper management treats them and how that impacts its capabilities. We did so through its union, which reminds us on the first anniversary of House policy staff being able to unionize of the importance of institutional mechanisms to provide voice to everyone working there.

This week, both chambers are in session Monday through Thursday, with the Senate remaining in session Friday.

Tuesday, the House Admin Committee (“CHA”) holds an oversight hearing of the US Capitol Police. The committee has much to inquire about, particularly because the department has requested another tremendous budget increase in the Leg branch appropriations bill soon to go to markup. Inspector General and GAO reports examining the department’s response to the January 6 insurrection pointed not to scarce resources but poor training, intelligence analysis, communications, and planning practices by department management.

Reforms that bring greater transparency to the department, particularly a FOIA-like model that we have developed, would assist tracking improvements in these areas.

Also Tuesday, Senate HSGAC marks up several original bills of note: the Expanding Whistleblower Protections for Contractors Act, the Congressional Budget Office Data Access Act, and the GAO Inspector General Parity Act. CRS has not yet published summaries on Congress.gov, but fortunately you can Google for the press releases for the Whistleblower bill and the CBO bill; a quick read of the GAO bill suggests it’s aimed at insulating the GAO IG. CBO did mention the need for a legislative fix to be able to access some data during its testimony to the Leg branch appropriations subcommittee and with the Modernization Committee in 2021.

On Wednesday, the Senate Judiciary subcommittee on the federal courts will take a swing at judicial ethics in a hearing with the Judicial Conference of the US. Senator Dianne Feinstein’s return to the full committee opens the path for the committee to issue subpoenas to Justice Clarence Thomas’s coterie of patrons. Her frailty and perpetual need for a staff minder, however, is going to remain an issue for the committee as it tries to pursue accountability on top of its judicial nominations schedule and in a committee well known for its asymmetric polarization.

CRS, AOC LEADERSHIP

As we noted after CHA’s oversight hearing on CRS several weeks ago, the managerial issues facing the agency are not new nor easily remedied by Congress because of the way it is embedded within the Library of Congress. Because the staff at CRS are unionized, we have a much clearer picture of present employee morale and confidence in their management than Director Mary Mazanec shared with CHA. In advance of her appearance before the Senate Rules Committee, the parent union of CRS’s union (CREA) sent a letter to Librarian of Congress Carla Hayden that revealed a deeply disaffected workforce through internal survey data.

Management’s response to the COVD-19 pandemic has accelerated an attrition and morale crisis in CRS. One example of this problem is how senior CRS management adopted a more restrictive telework policy than other sections of the Library, exacerbating an unsatisfying work-life balance situation for staff. During FY 2022, 44 staff quit, more than double the already alarming annual average for CRS over the last decade. Almost half of those who left cited its telework policy as a reason.

That turnover left enormous gaps in agency capacity and burned out many who stayed. Only about a quarter of CRS employees agreed that “senior leaders generated high levels of motivation and commitment,” with many citing “palpable disdain” for employees from leadership in communicating the return to onsite operations. Overall employee satisfaction with management’s communications cratered to only a third affirming. The pace of departures for FY 2023 may be higher than 2022.

Employees also agree with the assessment that CRS leadership pays mere lip service to improving office diversity and inclusion, even though Rep. Pete Aguilar called out this specific shortcoming in a 2019 CHA hearing. One survey respondent reported “comments by top leadership regarding diversity and equity at CRS reveal pervasive, systemic issues that have caused me and many others to question whether we can continue serving at this agency in good conscience, having heard the way our director speaks about these issues.”

CREA also confirmed AEI Resident Scholar Kevin Kosar’s assessment during the CHA hearing that “the coach has lost the locker room,” citing employees’ lack of confidence in Mazanec after making impactful decisions for the agency without meaningful input from colleagues. One described the survey’s findings as “abominable, damning to our senior management/leadership, and, unfortunately, entirely expected.”

Management, for example, has proposed creating metrics for legislative attorneys’ job performance evaluations based on a certain number of written products and responses, “even after CRS attorneys and analysts have repeatedly identified that proposed output quotas would significantly harm CRS’s service to Congress.” Leadership has invited employees to participate in a number of working groups, but “appear to be ‘checking the box’ exercises, with CRS’s leadership appear reluctant to engage in meaningful dialogue with CRS staff and take actions that actually solve our agency’s very real problems, make CRS a better place to work, and ultimately improve our service to Congress,” the letter concludes. CREA notes that leadership also does not engage the union effectively.

As Kosar writes in The Hill, employees quitting in despair shouldn’t be happening in a place that is so appealing to work at for nerdy public service-minded people. It should be one of the very best places to work in the Legislative branch. (By comparison, GAO is #1 for mid-sized agencies). If it were, CRS would be all the more valuable resource to Congress because its subject-matter expertise gaps would close. CRS is floating on the glut of PhDs without options in academia, but the deterioration in many of the areas then CREA President Susan Thaul raised to CHA in 2019 certainly will create recruitment challenges if it already isn’t. These issues aren’t new, and Daniel remembers them being a problem when he served at CRS 16 years ago.

As Kosar expanded upon in his testimony to CHA a few weeks ago, part of the challenge for CRS leadership is its enabling statute is more reflective of the Congress of the 1970s, when it was authorized, than today. Congress should update it to allow CRS to become more nimble in its operations. It also should reconsider the relationship of CRS within the Library of Congress and whether to give Congress hiring and firing authority over its director.

Hayden mentioned a request to update the Library’s statutory authority to allow management tweaks in her testimony to the Senate Rules Committee last week. Perhaps it makes sense to combine Hayden’s requests with reforms to CRS in one bill.

The Senate Rules Committee, however, did not take an opportunity to publicly follow up on the issues raised by CHA and CREA during the hearing. Chair Amy Klobuchar decided to reserve her question on CRS to a QFR afterwards, noting only that maybe a public advisory board on the model of the copyright office could work for the agency. Senators otherwise wanted to talk about progress on a new visitors’ center and the copyright office. We were encouraged, however, by Senator Peter Welch’s question about accessibility of Library digital resources and congressional data.

The Library, by the way, knows how to stay in the good graces of its oversight committees.This March, it hosted congressional leadership for the Gershwin awards, which included dinner and a major production with Joni Mitchell. And the night before the hearing was a leadership dinner with the Librarian of Congress.

Senate Rules and CHA are moving forward with another problem area in the Legislative branch with a new bill to shift hiring and firing authority of the Architect of the Capitol to Congress and away from the president. Klobuchar had introduced this legislation with former Senator Roy Blunt at the end of last Congress in the wake of J. Brett Blanton’s abuse of the position, but it did not receive a floor vote. A 14-person commission currently presents at least three candidates for presidential nomination. This legislative effort is on the right track.

The Legislative branch has more than 30 support agencies and more than a few ways of choosing their leadership. It’s time that the Congress be responsible for hiring and firing the heads of agencies that work for them and eliminate the White House from the equation. Our colleague Taylor Swift has pulled together how those agency heads currently are chosen in this guide.

CONGRESSIONAL UNIONIZATION ANNIVERSARY

Unionization at its core is giving workers a voice in the place they work so they can be treated with dignity. The House started providing its own political staff that voice a year ago last week by approving a resolution authorizing their unionization under the Congressional Accountability Act, the law that permitted Legislative branch support agency workers like those at CRS to unionize. Eight member offices to date have certified unions, while a total of 17 are at some part of the process.

Given the toxic work environments in too many member offices, inconsistent workplace practices across offices that led to abuse, and poor pay and benefits for staff, we thought several years ago that unionization was a critical reform to protect the people essential to the institution running at all. Nearly 80 organizations signed onto our letter urging House leadership to take action in March 2022, when the Dear White Staffers Instagram account started highlighting the issue.

The House majority apparently attempted to roll back union organizing in the rules package of the 118th Congress. As former OCWR counsel Kevin Mulshine explained in a report for Demand Progress Education Fund, the rule does not rescind the resolution and staff continue to have the right to form unions under the CAA.

The Senate, meanwhile, is yet to follow suit and opt into CAA unionization compliance. The Congressional Workers Union reminded Senate leadership at the start of this Congress of their need to act. Senator Edward Markey voluntarily accepted his staff’s unionization in March. Courtney Rose Laudick and Taylor Marie Doggett of CWU recently discussed the work over the last year in detail with the Real News Network.

We’re reminded by the excerpt of Ben Terris’ new book in Politico that unionization is tied intrinsically to the racial issues of the congressional workplace. It’s not just about pay but a host of workplace issues, and unionization gives staff a role in creating that climate through collective bargaining.

Management still needs to be competent and responsive, as CREA members’ experiences at CRS demonstrate, to establish that climate. Without the layer of accountability unions provide, however, employees push back at their own risk. It’s notable that Jamarcus Purley already had left Senator Feinstein’s office when he decided to fire up a blunt and film his protest dance. His verbal protests while still employed, after all, were met with silence from his colleagues. The operator of Dear White Staffers remains anonymous.

CREA, meanwhile, could rely on its parent, AFL-CIO-affiliated union to walk through eight pages of OPM survey data to provide us all an understanding of how people are treated at CRS, putting the ball in decision in management’s courts on how much longer to tolerate the situation.

More information about the Congressional Workers Union can be found on their website.

WHY THE WAIT?

The options for Congress to play a role in a longer-term debt limit solution are dwindling. In the platonic idea of the House, discharge petitions would be a viable option for a majority of legislators boxed out by leadership. Cold, hard reality – not to mention the Senate – is all but eliminating that possibility.

The Executive branch could act at any time to disarm the time bomb but seems content to let the clock tick down to the last few seconds. The White House began floating the idea of invoking the 14th Amendment to invalidate the ceiling, but not doing so until months from now. It’s notable that the House’s most prominent constitutional law scholar, Rep. Jamie Raskin, told Politico he thinks using this approach is more or less valid. Laurence Tribe has come around to see it as “the lesser of two evils” constitutionally, with Congress acting outside its limits through hostage taking after passing the spending bills it now wants to rescind.

The option of minting a platinum coin would not open a constitutional pandora’s box Phillip Wallach warns of. It would allow the Executive branch to act pursuant to a law enacted by Congress. Getting us permanently out of this hostage situation and as soon as possible should be the imperative.

If our advice was sought, we would suggest minting the coin and citing the 14th Amendment now as joint bases to defuse the upcoming crisis, and would do so before the markets start to freak out while giving the courts an opportunity to weigh in. We understand the administration may not wish to take Republicans politically off the hook, but someone has to be the adult in the room.

The gravity of the debt limit is altering the course of FY 2024 funding bills significantly. The House and Senate both have pushed back NDAA markups – the Senate until late June. Even delayed, it still may be the only major legislation passed this Congress. Senators were waiting until Friday’s meeting between the White House and top four congressional leaders to discuss top lines on other spending bills, but that meeting was canceled. Senate Leg Branch Appropriations has finished all of its oversight hearings.

CLASSIFICATION REFORM

The wait continues for presidential action on revising the federal classification system, which was supposed to be completed by the beginning of June. The Biden Administration promised an interagency review of a 2009 executive order, but as Daniel told Politico, any further delay in starting the process near the original target date makes it unlikely it can execute whatever plan emerges.

The current system of declassification involves multiple agencies dealing separately with fire hoses of records and massive backlogs of requests from researchers. Like the FOIA system, declassifying entities have to contend with users whose requests are so enormous they gum up the works for everyone else. The pandemic, meanwhile, significantly impacted the in-person work required of the current system.

The Administration has governmental and civil society guidance to work with here. The National Archives Information Security Oversight Office urged changes in 2022 to move beyond a paper-based system to a digital approach and to overhaul or eliminate the current automatic declassification system that cannot review the volume of paper or digital material it has to work through. Historians of American Foreign Relations have drafted recommendations to streamline the process and clear backlogs of older records.

Fortunately, the National Archives is now in good hands as Colleen Shogan was confirmed by the Senate last week to be the Archivist of the US. She’s the first woman to hold the position. Her former positions included deputy director of CRS.

One final bit of NARA news: it has released new regulations for digitizing permanent federal records, including paper documents and photographs. Authorized agencies will be allowed to destroy source records once transferred digitally.

THE FEDS COME FOR SANTOS

After a seemingly endless stream of accusations of crimes across two continents, Rep. George Santos was booked last week on 13 federal charges. Given he has no intention of leaving office, it’s up to his colleagues to give him the heave-ho.

According to the Republican conference rules, Santos should be removed first from his committee assignments. He’s voluntarily stepped down from them already. A privileged resolution, introduced by any member, could be used to expel him from the House. It would require a two-thirds majority to be approved, however, forcing Republicans facing re-election challenges into an uncomfortable political decision. For a non-privileged resolution, the House Ethics Committee could be an escape hatch, however, as a resolution could be referred to it first, and the committee halts action on members who have been indicted – which we think is nonsense.

So far, Minority Leader Hakeem Jeffries has not shown interest in doing more than rhetorically calling for accountability. Members don’t have to defer to leadership to force the issue, if they really want, but I suspect most members view the ethics process as a shield to protect themselves and only want to make noises about accountability.

NEW AI TRICKS

Don’t want to watch that hearing video? Maybe this will help. We also came across this demo of a different AI system summarizing a congressional hearing report.

ODDS AND ENDS

Need IGs: Senators Chuck Grassley and Maggie Hassan are urging the Biden Administration to speed nominations for six inspectors general positions that are vacant.

Stonks: A bipartisan group of House members is continuing the sisyphean task of urging action on stock trading ban legislation, urging CHA last week to hold markups before the August recess.

Sheila Krumholz, the long time head of Open Secrets and a legend in the government transparency realm, is stepping down.

Kelle Strickland is leaving the House Ethics Committee to become the new head of the Congressional Institute.

Speaker McCarthy forced the only Palestinian-American member of Congress to move an event commemorating the expulsion of nearly three quarters of the Palestinian population, which strikes us as incredibly petty.

It’s not a pay raise, it’s reimbursement for work-related expenses. And it’s good policy.

CALENDAR

Congressional Committee Calendar

~ Tuesday ~

The House Committee on Oversight and Accountability will hold a hearingentitled “Overdue Oversight of the Capital City: Part II,” at 10 AM in 2154 Rayburn.

The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on AI in government at 10 AM in 562 Dirksen.

The Committee on House Administration will hold an oversight hearing of the US Capitol Police at 10:15 AM in 1310 Longworth.

The Levin Center will host an online presentation by its 2022 research award winner, Georgetown Professor Dave Rapallo, entitled “House Rules: Congress and the Attorney-Client Privilege” at 12 PM EDT. Register for the event here. The paper is available for download at SSRN’s website.

The House Office of Diversity and Inclusion will present an Asian American and Pacific Islander Heritage Month Roundtable of congressional staff, moderated by Nisha Ramachandran, executive director of the Congressional Asian Pacific American Caucus, from 3-4 PM in 2060 Rayburn.

~ Wednesday ~

The Senate Judiciary Subcommittee on the Federal Courts will hold a hearing to review the judicial ethics process at the Judicial Conference of the United States at 2 PM in 226 Dirksen.

~ Down the road ~

The next meeting of the Congressional Data Task Force will be on June 22 from 2 to 4 PM in B-248/B-249 Longworth. Attendees must register here in advance.

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