First Branch Forecast for February 13, 2023: Eagle eye

TOP LINE

It’s hard not to have 21st-century risks facing Congress at top of mind some weeks. We uncovered a serious breach of privacy and independence affecting individual members of Congress involving the FBI that requires immediate action to shield members and staff from unlawful warrantless surveillance. With the help of some sharp colleagues, we also considered how AI-enabled technologies can fundamentally change how Congress operates.

This week the House starts a two-week recess while the Senate is in this week and out the next. The Senate Rules Committee will hold a business meeting Monday evening about funding for Senate committees; look ahead to similar House Admin hearings at the end of the month.

As we discuss here, funding Senate committees is a convoluted two-step process. All committees except appropriations submit funding requests to the Rules Committee, which then allocates funding for committees for the entire congressional term. Meanwhile, the Senate Appropriations Legislative Branch Subcommittee designates funds for all committees but one as a lump sum for a single fiscal year. Appropriators get their own line item, naturally. This week’s business meeting is when the pie is divided for committees, in other words, with significant impact on their oversight, investigatory, and oversight capacity. In the House, the committee chairs have the opportunity to testify, which is happening at the end of the month.

Specifically, House Admin has scheduled two hearings for individual committee funding on February 28 and March 1. Each chair and ranking member request funds for the operations of their committee during these hearings, which determines their level of staffing and investigatory capacity. Generally speaking, you only see testimony when the chair and ranking member disagree on the requested level or when a committee is pushing for more funds. The process is complicated — House Admin provides funding (i.e., allocates funds) for the entire 118th Congress, but those funds are only appropriated on an annual basis on an entirely different calendar that runs from October 1st to September 30th. Check out our explainer for the House.

DOMESTIC SPYING ON CONGRESS

The FBI warrantlessly and unlawfully spied on a member of Congress, according to research by us (Demand Progress Education Fund). Wired’s Dell Cameron has the story.

The FBI looked through millions of communications gathered under Section 702 of the FISA Amendments Act. The newly discovered violations include unlawfully searching FISA information “using only the name of a U.S. Congressman,” “using the names of a local political party,” and based on racial profiling. Section 702 is supposed to be used for surveillance of foreign persons overseas, but in practice it sweeps in untold Americans.

This action is part of a broader pattern of ostensibly continuous and widespread misuses of Section 702 that are described in heavily redacted FISA Court opinions, which we have fought to make publicly available. The opinions reveal misuse of Section 702 to spy on victims of crimes, community leaders, and family members. In 2021 we published this timeline of selected legal and constitutional violations in programs operated under Section 702. The Court, instead of stopping the misbehavior, continues to make allowances for the Executive branch, which is an illustration of the many flaws of the secret FISA courts.

Section 702 is up for reauthorization later this year. The government has a long history of unlawfully sweeping up information about Americans and using that information for political purposes. It also runs around the Fourth Amendment by lawfully purchasing information about millions of Americans.

No American should be subject to criminal surveillance without the government first obtaining a warrant. The ongoing behavior of the FBI shows that it and fellow members of the Intelligence Community are unwilling and incapable of following the law. Just read the Church Committee Report to understand the longstanding and recurring nature of these abuses. Furthermore, the House and Senate Intelligence Committees have failed to conduct investigations that detect some of the abuses and they have shown they are unwilling to reign in the agencies. Civil society has recommended reforms over the years to unleash those committees and transform them into watchdogs. In addition, other committees of jurisdiction and individual members of Congress must have the tools and resources to oversee and legislate on these matters, including staff with proper clearances.

Members of Congress and their staff are particularly vulnerable as the Intelligence Community has shown itself over the decades to have a fealty to the president that at times supersedes the Constitution. Obvious next steps include strengthening congressional cybersecurity against surveillance, changing the law to ensure that the only Executive branch surveillance practices are authorized by Congress, and ensuring that the laws and the overseers have teeth.

An Executive branch that unlawfully surveils members of Congress, political parties, and more is the very definition of a threat to our democracy, a threat made even worse should the presidency fall into authoritarian hands. This is a problem nurtured by presidents of both parties who have aggregated to themselves the power to issue secret interpretations of the law through the Office of Legal Counsel.

It’s an essential topic for congressional oversight action and likely warrants a broader investigation by a specially-designated congressional committee like the Church Committee. Unfortunately, much of the energy in this area in the House is directed toward the Weaponization Subcommittee, and it’s unclear if they will hold hearings that are serious and credible. What’s in order now is nothing less than strengthening Congress’s oversight powers, directing Executive branch transparency, using authorizing and appropriations law to limit certain domestic-facing activities of the Intelligence Community, and conducting a sweeping overview of the last 40 years.

BLANTON’S CRUMBLING EDIFICE

Democrats and (apparently) Republicans are now calling for the departure of Architect of the Capitol J. Brett Blanton whose testimony before the House Administration Committee did his cause no favors. The topic was the Architect’s Strategic Plan for the 118th Congress, but the focus was on an AOC IG report — only the summary is publicly available — that found the Architect engaged in numerous abuses of office. I was there in the room and the anger from Republican and Democratic members was palpable. The only reason why Congress has not fired him already is because they haven’t given themselves a legal mechanism to do so, but we did see legislation in the Senate on that point.

More broadly speaking, Congress has made a mishmash of how legislative agency heads are appointed and removed — a problem made worse by a meddling Supreme Court in the 1980s that adopted a unitary-executive theory pushed by the DOJ’s Office of Legal Counsel in INS v. Chadha, which undermined a two-century old mechanism of congressional oversight of agencies.

Facing the music, Architect of the Capitol J. Brett Blanton dug his hole much deeper when he shared with astounded members of the Committee on House Administration that he worked out of his government-provided car, his “mobile command center,” during the Jan. 6, 2021 coup attempt because coming in wouldn’t have been “prudent.”

Kudos to House Admin for covering not only the allegations of misuse of government vehicles and impersonating law enforcement that the AOC IG office flagged last winter, but for digging into the alarming trend of legislative branch officers with security-related responsibilities declaring certain information to be “classified” to shield it from committee oversight.

Chair Bryan Steil asked why certain Jan. 6-related and other physical security documents were withheld from the committee for this hearing and did not receive a satisfactory response (see the 1:24:00 mark of the committee hearing video). As Steil noted, Blanton has stated in the past, the Legislative branch has no such power to classify records. Blanton said they were classified by an external support agency that works with the AOC. What?!!

I’m old enough to remember AOC Blanton testifying in 2021 before the House Admin Committee — you read about it in our little newsletter — and complaining about classification. In his written testimony, he said:

“But I personally believe that there needs to be more transparency and accountability of the [Capitol Police] Board. We have a problem in my summation of overclassifying items that do not need to be classified. Congress has given the President the authority to classify and delegate classifications down throughout the executive branch. There is no entity on the legislative branch with that authority. As a result, information is often defaulted to a higher level of classification than needs to be in many cases. The transparency aspect is even more troubling because when everything is classified, one can not enter into a logical discussion with leadership and oversight on Board proposals because of the limited number of individuals who have appropriate clearance.”

This reminds me of a line of questioning at last year’s Leg branch Approps hearing. My written notes from the April 2022 Leg Branch Appropriations hearing with the Architect indicate that Rep. Newhouse noted the agency’s FY 2023 congressional budget justification was not posted and asked for its online publication soon. In response, Blanton said, and I paraphrase, “$600 million is security and the document won’t be posted. But Blanton would be glad to have a meeting.” Friends, nearly all federal agencies publish their congressional budget justification online — it’s required by both OMB and the Congressional Budget Justification Transparency Act. Congress is not covered by the CBJTA, but all agency budget justifications should be posted online, including those that handle classified matters.

The rule of thumb is that if you have classified information, you redact that after weighing the public’s need to know. Beyond that, who gave the AOC the authority to classify matters, and if they’re relying on an external support agency to classify matters, who is it? How common is it for Legislative branch agencies to have other entities authorized by the executive branch act as an original classifying authority and designate legislative branch materials as classified?

The issue of Blanton’s removal also opens up a window into the idiosyncrasies of executive management within the legislative branch that deserve Congress’s attention. In response to new CHA member Rep. Derek Kilmer’s question of why Blanton hasn’t filled his deputy position, Blanton noted that recruitment was challenging because of the position’s lower than standard salary. Pay for the top AOC positions actually is set in statute and is lower than some lower-ranking ones. Blanton’s office has proposed delinking the deputy position funding level for this reason. For what it’s worth, it does seem entirely reasonable to adjust the codification of Legislative branch agency heads so that they can be equivalent to other senior leaders inside the government.

Wired Story on Congressional Surveillance

Read the Wired story and Demand Progress Education Fund statement concerning the FBI gathering information on a Member of Congress through FISA.

AUTOMATING CONGRESS

Advances in AI content generation tools are threatening to do to some white-collar jobs what robots did to manufacturing. Annie Lowery dug into this topic thoughtfully recently in The Atlantic.

The congressional workplace, while professionally similar to much of what Lowery describes, is unique in many ways. It is saturated with information that must be ingested, from policy white papers to angry Facebook posts, and overwhelmed with the need to communicate outward to innumerable audiences. AI tools undoubtedly will impact both sides of that enormous workflow.

Marci Harris of POPVOX Foundation, Zach Graves of Lincoln Network, and I published an essay in Tech Policy Press on how AI tools likely will assist and complicate the work of congressional offices in coming years. These tools hardly are the first communications advances to transform how Congress works, and technology generally has made the institution more transparent and responsive to the public. Should it be implemented, AI’s most likely impact on everyday congressional operations will be to alleviate some of the drudgery of managing incoming and outgoing communications, summarizing information, and mining congressional data for strategic insights. We’re less bullish on more complex tasks like drafting legislation (sorry, Rep. Lieu) because the technology isn’t yet suited for highly-specialized, niche demands where specific words have legal effect, but we are curious to see what develops.

Even these advances, however, will require the development of Congress-specific best practices and tools that will require funding and expertise to develop just as the new House majority considers budgetary rollbacks. Fortunately, Congress not only could have hearings on the topic (a great opportunity for the new Modernization Subcommittee of CHA) but can lean on assistance from entities like the Congressional Data Task Force and National Academy of Sciences. Congress also will have to understand how AI may change the lobbying landscape, particularly as tools make it harder to distinguish between authentic and spoofed communications and much easier to generate personalized communications.

Congress also should consider using user-centered design research within member and committee offices to understand how potential changes wrought by AI tools will affect staff. Such research would make careful note of existing workflows, illuminating chokepoints that AI may alleviate or new problems it may generate when utilized from the outside. The gold standard of this work — and the only such research project we’re aware of that looked at the congressional office in this way — is OpenGov Foundation’s report on the processing of office voicemail, which informed its development of a text transcription tool before it went defunct. Our own BillMap project did extensive user modeling, which also will be necessary.

WRONG LABELS

Is Washington currently debating a debt limit crisis deal, the federal budget, or changes to the fiscal underpinnings of entitlement programs? Yes. All of these things are being conflated and then connected to the political goal of balancing the federal budget solely through spending cuts within 10 years, which the leading libertarian think tank studying the issue has concluded would require an 85% reduction in non-discretionary spending that would essentially end non-defense appropriations and zero out Medicaid.

President Biden attempted to separate the threads of these debates out again in his State of the Union address. Faced with a set of ideologues sputtering to find billions in savings out of “woke” agency budgets and Democrats uninterested in being held hostage, the political press again is tapping “centrist” members seeking a goldilocks approach. These members, under the umbrella of the Problem Solvers Caucus, have accepted that some debt limit deal needs to be negotiated, and are positioning themselves in the political press to make this outcome seem like a sensible one.

Once again, the budget and appropriations process is a completely legitimate place for these discussions to take place. Leveraging the debt limit instead of going on record during these processes is not legislating and should not be framed as “negotiations.”

Knowing that ship has already sailed, we’d be happy if the term “centrist” is buried forever, especially when it comes to the organizer of the Problem Solvers, No Labels. Although the organization claims to court ideas from the center-left and center-right, it actually operates as an interest group and a set of PACs for private equity executives and other corporate leaders. Many of its political donors also contributed to Donald Trump (whom No Labels deemed a “problem solver” in 2016), and it courted donations from David Koch, Peter Thiel, Paul Singer, and Home Depot founder Ken Langone.

Through the most active members of its Problem Solvers Caucus, particularly Senators Joe Manchin and Krysten Sinema and Rep. Josh Gottheimer, No Labels acts as a check on efforts to broaden federal programs that would be funded through restoring taxes on the rich. Gottheimer in particular has been aggressive in suffocating tax increases to finance global-warming mitigation efforts and scale back the infrastructure package. No “centrist” constituencies exist to curtail the revenue side of these legislative packages, but this block can punch left on taxes on plutocrats to reduce the scale of popular spending and make it look like compromise as Republicans simply play the refusenik role.

Even its think tank-oriented policy work routinely advances conservative positions while rejecting popular liberal ones as consensus policy choices. Its Opportunity America project, designed to address the challenges facing working-class Americans, singled out $1.5 trillion in tax cuts under the Trump Administration as “beyond our remit” in its report.

Despite years worth of reported context, the group’s emerging, finance-backed plan to play spoiler to the Biden re-election campaign, and its disturbing workplace culture, some in the political press still simply transcribe what emerges from its convenings of congressional members and swallow the “centrist” label. So here’s a humble request: take a cursory look at the available from political science on member ideology. This picture, for example, has a hole in the middle where the “centrists” should be – because they don’t exist. Our politics are sufficiently complex that claiming centrism is a play to be considered the norm and common-sense, not a description of an ideology — it does not explain what people actually think and do. And please, please, please don’t use ratings systems by advocacy groups derived largely on messaging bills, particularly ones with an explicit agenda to drag their party to the right, to label members as “more” or “less” an ideology.

How Senate Committees are Funded

Read our report on how Senate committees get their funding.

ELSEWHERE IN CONGRESS

Rep. Jared Huffman will lead point Democratic Caucus rules in the House after being appointed to chair its procedures committee. We don’t know Huffman’s remit, but historically this position has been as a face of leadership regarding the rules but not an engine of reform ideas. It may be different under a new Speaker, so we will have to watch closely. The press release mentions the “diversity” of the caucus several times so it will be interesting to see what recommendations, if any, are made by Huffman’s committee. By comparison, Republicans significantly amended their rules under pressure from their members as Rep. Kevin McCarthy secured support for his bid for speakership.

Trouble at CHC: Congressional Hispanic Caucus members will convene remotely to consider removing Rep. Nanette Barragán from its chair after she fired its executive director less than a month on the job. The caucus currently has no staff as four others quit Wednesday. Jacky Usyk previously had been a leadership staffer for Sen. Patty Murray for four years and had worked in Rep. Tony Cárdenas’ office before that.

Barragán has one of the highest turnover rates in the House among her personal staff according to Legistorm data. Politico reported this turnover rate led Democratic leadership to meet with her directly.

Chris Bigelow will replace Robin Juliano as House Democrats’ staff director on the Appropriations Committee. Bigelow had been the deputy director and was Clerk of the Defense Appropriations Subcommittee.

There are still a lot of Confederates depicted in artwork around the Capitol. In June 2021, Rep. Kevin McCarthy joined with 59 Republicans to remove Roger Taney with Thurgood Marshall. Progress seems to be stalling under his speakership.

Rep. Kilmer asked the Architect of the Capitol about the status of three Modernization Committee recommendations: the creation of members-only working spaces for bipartisan collaboration, a similar area for staff, and the feasibility of hearing rooms being reconfigured for different formats such as roundtables. Blanton said the AOC will request funds in its FY2024 budget to study the recommendations and create a demonstration collaboration space in the Ford House Office Building. The Modernization Committee itself experimented with unconventional hearing room configurations to bolster its bipartisan working style.

CONGRESSIONAL OPS

The Congressional Workers Union is urging the Senate to take up a resolution authorizing its personal staff to form unions by the end of the month. Two offices are ready to request voluntary recognition if the full Senate does not go ahead by March.

The House Office of the Whistleblower Ombuds released its 2022 annual report last week. The standout item is its reach: over two-thirds of House offices used one of its core services and more than half of House offices accessed its training courses during the year. The office also released a new video introduction of its services.

Staff assistants and legislative correspondents new to their jobs can consult a new best practices guide developed by the Modernization Staff Association. A survey of 160 Hill staff provided sourcing for the guide. BTW, the group now is accepting donations via Venmo to fund programming.

TECH

Roll Call profiled concerns about changes to House rules that make remote committee testimony much more difficult for witnesses as Republicans attempt to return the chamber to business as usual after the pandemic. Although in-person testimony of course is preferable to videoconferencing, being able to consult experts anywhere and accommodate unforeseen circumstances became a tremendous resource for the 117th Congress. More than half of hearing witnesses last Congress appeared remotely. We were proud to be one of the organizations that participated in demonstrating how remote testimony could be done effectively at the start of the pandemic.

Arguments that in-person business worked “seamlessly” as Natural Resources Chair Bruce Westerman claims, don’t hold water with anyone who is familiar with committee operations. Witness lists often are made at the last minute, and remote capabilities are a useful backup.

TechCongress has announced its 10-person Congressional Innovation Fellow class for 2023. This year’s group has considerable computer science and engineering experience. This is TechCongress’ ninth class of mid-career technologists who spend a year bringing their knowledge and expertise to congressional offices as they explore pivoting to public policy and public interest technology career paths.

GPO announced last week it will adopt a plan to shift to a digital Federal Depository Library Program on the recommendation of Director Hugh Halpern’s task force. Roughly 1,100 libraries in the US currently participate in FDLP.

The Congressional App Challenge announced winners from 335 congressional districts in all 50 states, continuing the program’s impressive growth. Winning high school and middle school students will attend the annual House of Code event April 17-18.

The Library of Congress’s Century of Lawmaking website, which collected historical resources from 1774 to 1875, debuted in the Web 1.0 days of 1998. It’s no longer viable and the Library announced there will be new digital homes for the collection’s components next week. All parts of the collection are available in the Library’s catalog.

The House Digital Service held a staff listening session last Thursday that unfortunately we didn’t hear about for last week’s newsletter. Staff can contribute feedback online at this link.

ODDS AND ENDS

Citing its ties to the Qatari government, Reps. Jack Bergman, Alex Mooney, and Michael Waltz have requested House leaders revoke the press credentials of Al Jazeera until its 100 journalists register under FARA.

The Authorization of the Use of Military Force in Iraq for the Persian Gulf War possibly is older than some readers of this newsletter. Nevertheless, it’s still open, as is the 2002 AUMF for the second invasion of Iraq. A bipartisan group of House and Senate members have introduced repeals for both. If passed, this would be an instance of Congress reclaiming its powers to decide questions of war and peace.

Always read the Congressional Record – you just might find a surprise. Republicans swapped Rep. Matt Gaetz into the Weaponization Subcommittee for Rep. Chip Roy and didn’t otherwise announce it.

Those “1870” buttons at the State of the Union? They were a tribute to the first recorded killing of an unarmed black man by the police in US history, after a shoplifting arrest.

The language members use to communicate in emails and tweets say a lot about factions within Congress and emerging policy priorities, Lindsey Cormack and Annelise Russell explain to Niskanen Center fellow and political scientist Matt Grossman.

As I told Business Insider, the House Ethics Committee is constituted in such a way as to make strenuous ethics oversight unlikely, and is all the more reason for an independent Office of Congressional Ethics to exist.

CALENDAR

Congressional Committee Calendar

Monday, February 13

– Senate Rules Committee will hold a business meeting to determine committee funding levels at 5:45 PM in 219 Capitol.

Bússola Tech hosts an interamerican debate entitled “Priorities for the Modernisation of Parliaments in the American Continent” via zoom at 9AM EST. Register here.

Tuesday, February 14

– Senate Judiciary Committee will hold a hearing “ to examine protecting our children online“ at 10 AM in 216 Hart.

Thursday, February 16

TechCongress has extended its application deadline for its Congressional Innovation Fellowships to Thursday at 11:59 PM EST. The fellowships for early-career professionals begin in June. Apply here.

The Congressional Progressive Caucus Center will offer a webinar on the appropriations process at 1PM. Register at this link.

Down the line

The National Taxpayers Union and Arnold Ventures will host a discussion on budget reform Monday Feb. 27 from 4 PM-7PM EST. RSVP here by February 17.

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