First Branch Forecast

First Branch Forecast for January 18, 2022



It’s Tuesday, Lemon. The House is back today after the Martin Luther King, Jr. holiday with an apparently light floor schedule; the Senate canceled recess to try again to move voting rights legislation with debate on Tuesday and a cloture vote on Wednesday, hopefully all members will be healthy, present, and prepared to take a stand for democracy. This week’s committee schedule looks quiet, but we’ve got our eyes on Wednesday’s intriguing House Rules hearing on using budget principles to prepare for future pandemics and disasters and Thursday’s ModCom hearing on the status of the committee’s recommendations for making Congress work better for the American people (witnesses have not been officially announced).

On MLK day we spent some time thinking about civil and economic rights, which are particularly salient with the Senate’s pending consideration of voting rights legislation. All Senate Republicans and two conservative Democrats have signaled they won’t allow a vote on the underlying legislation. Seems like old times. Norm Ornstein has done an excellent job demolishing the erroneous talking points trotted out to retain the filibuster, which ostensibly is about ensuring every voice is heard in debate before a vote happens but in fact is a truncheon used to beat legislation that would protect minorities. MLK, in his Letter from a Birmingham Jail, could just as easily be describing the filibuster: “law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.” Senate rules are a construct that should further fair debate, the orderly consideration of legislative measures, and provide a peaceful method to resolve questions of public policy — does anyone think this to be true here? 

A little more MLK: “I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: ‘I agree with you in the goal you seek, but I cannot agree with your methods of direct action’; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a ‘more convenient season.’”

Demand Progress. Last Wednesday marked the nine-year anniversary of the passing of DPEF co-founder Aaron Swartz, who was an activist for economic justice, speech, and human rights


One month is left until federal funding expires and the government shuts down. Senate Republicans reportedly won’t even begin discussing the top line numbers. If having the Congress exercising its constitutional responsibility to make decisions about federal spending isn’t enough to motivate action, what about safety and security?

The U.S. Capitol is a fire trap, with limited sprinklers on the first, second and third floors and is one match (or insurrection) away from conflagration unless the FY 2022 Leg Branch Approps bill, which contains $6.8 million to address this problem, becomes law. Here’s the oral testimony of the Architect from last March, responding to a question from Rep.Clark: “If there was a fire in [the Capitol Building], that would have been a terrible situation, because we would not have had the resources nor the suppression system to suppress the fire. And, to me, that was one of the scariest things, once the breach happened, is, if somebody decided that they were going to light something on fire, what would we be able to do to get the people out as well as prevent the facilities from burning down?” See the AOC’s budget request testimony from April 2021: “This [funding request] includes the project to address identified fire and life safety deficiencies stemming from the lack of a building-wide sprinkler system to bring the U.S. Capitol into code compliance. If not funded, the building remains at increased risk of flame spread in the event of a fire. In addition, the lack of full sprinkler protection leaves the U.S. Capitol building reliant on the fire department to suppress all but the smallest fires, jeopardizing life safety as well as historic assets and features.” This issue came up again this past week before the Leg Branch Approps Subcommittee. (It has not been reported widely.)

Member and capitol security also came up in ways that should motivate Senate Republicans to move the FY 2022 Leg Branch Approps bill. The Security Supplemental did not fund many items that need to be addressed to harden the Capitol campus facilities, to protect members in the districts (and member security generally), and to address the various shortfalls within the Capitol Police. On that point, we hear there’s a 2,000 page AOC campus security plan that’s being finished up. At a minimum, it would make sense to release the executive summary.

The Capitol is closed, per the testimony of the House Sergeant at Arms, due to shortfalls in safety and security. Nearly 200 Capitol Police officers are at home on any given day because of COVID, and another 130 left the department after the Trump insurrection, which creates shortfalls in the notional 2,000 officer force (which is still very large). In addition, reinstating tours for the 2 million-ish visitors to the Capitol would be a huge health hazard. The SAA’s testimony was somewhat shaky, pointing to the Capitol physician as the source of direction for the closure, which isn’t exactly how this all works. It’s a political decision made by each chamber’s leadership unless and until the Office of Congressional Workplace Rights exerts its authority or the physician (or someone else) is given actual operational powers.


Taking STOCK. Sens. Jon Ossoff and Mark Kelly introduced legislation banning Members of Congress and their spouses from trading stocks. There’s a long history of efforts to address stock self-dealing, including a number of fairly recent bills (sponsored by Sen. Warren and Rep. Jayapal, among others) with variations in who they cover, which HuffPo recounts. We are old enough to remember the original 60 Minutes story, which features former Rep. Brian Baird, who originally had the idea to address these conflicts of interest, and the current Speaker of the House, who drew the ire of the newsmagazine and recently elevated the issue when she opposed prohibiting members from trading individual stocks. (It’s the buying and selling of asserts, stocks or otherwise, or the sharing of insider knowledge with friends and allies that creates these problems.) The Speaker now favors kicking the issue to House Admin Committee’s Zoe Lofgren to create rules to punish trades that evince a conflict of interest, which will satisfy no one and create a blurry line in place of a bright one. While some members are engaged in self-dealing that befits themselves, we speculate that Speaker Pelosi’s motivation is making sure that Democrats avoid narrowing the pool of self-financing millionaires who wish to run for Congress, which is an entirely different problem.

You say you want a revolution? Stock trading is only one form of conflict of interest, with blind trusts and non-public companies creating their own sources of risk. In addition, Members of Congress at times loan their campaigns money at usurious rates, have their PACs and campaign committees hire family members, convert leadership PACS for personal purposes, and on and on. Changes in congressional control are often preceded by (outgoing) leadership instrangience on reform and reform commitments made by the opposition. Remember that Speakers Pelosi, Boehner, and Gingrich all campaigned as reformers and actually instituted some reforms, such as banning earmarks, publishing bills online prior to consideration, creating the Office of Congressional Ethics, applying workplace rules to the House, and so on. Demand Progress has a list of ethics reforms that could be implemented through House rules changes here; the Senate is almost entirely a lost cause, but here’s a short list of Senate reforms.

A congressional scapegoat is still picking up the pieces. Former House IT staffer Imran Awan,whose investigation for alleged misuse of House data servers was spun by right wing media into an Islamophobic conspiracy and convenient sideshow to Russian involvement in the 2016 election, now seeks redress in a defamation lawsuit. The Daily Beast has more. We wrote about Awan back in 2020 after the House settled Awan’s wrongful termination suit against the chamber for $850,000, finding that the termination investigation of Awan “had reached certain conclusions about misbehavior that were not necessarily supported by facts.”


Papers, please. Testimony last week by the House’s Sergeant at Arms raised alarm bells for us. Read this problematic proposal for improving security at the Capitol: “Identity Access Management is also an initiative which will increase security at the Capitol. Working in collaboration with this Subcommittee and the Capitol Police Board, I would like to institute a Capitol Access Verification Entry System (CAVES) program. The system would ensure Members of Congress and the USCP know exactly who is entering the Capitol Complex and for how long. CAVES would be a security model based on a strict identity verification process. Having a secure ID with the proper electronic devices and software to validate highly secure government identification is an essential starting point for the CAVES system.”

There’s a lot of questions here but it looks like it (1) applies everywhere in the capitol complex, (2) to all 2 million+ visitors, journalists, lobbyists, political and non-political staff, and members, (3) requires verifying that person’s identity through a “secure ID,” and (4) would track how long they’re in the capitol complex. It is unclear whether it would be intended to track where they go, but if it is modeled after the White House WAVES system (as the acronym suggests) it would require you to say where you intend to go.

Do you see how this could be problematic? I don’t see how this would enhance security in the capitol complex or be responsive to the Trump insurrection — it’s not like the insurrectionists exactly stopped at the checkpoints — and it would severely impair the openness of Congress. First, more than 20 million American adults (11%) do not have government-issued photo IDs, nor do millions of children. Would they be denied entry? Second, for what purpose would we be checking the IDs, against what databases (which are notoriously unreliable and have a disparate impact on minorities), and what would we do with that information? Third, assuming the information is stored in some fashion, it would deter people from communicating with Congress in person, especially whistleblowers and domestic and foreign officials who would wish to not be tracked. If we track how long people are on the hill and who they see, this could create disincentives for staff to meet with politically-sensitive individuals. Fourth, I can’t imagine staff would want to be tracked as they shuttle between meetings, nor journalists as they go about their jobs. Fifth, it seems impractical to track people throughout the complex unless you use other tools, like facial recognition or the carrying of a RFID chip, which creates other significant concerns.

An identity management system is an inadvertent misdirection. One major problem with capitol security is the failings of the Capitol Police Board. SAA Walker did not address that in his testimony even though he serves on the Board at a hearing with 3 of the 4 members of that Board. The organization and oversight of the USCP Board is the key factor in what has consistently gone wrong with capitol security, as they’re responsible for setting policies and overseeing the Capitol Police. The USCP failed to identify the nature of the threats, train its personnel on how to act and how to respond, purchase and use appropriate equipment, communicate throughout the campus, collaborate with other federal agencies, and so on. The USCP Board was responsible for making sure all this happened and they failed. Identity tracking wouldn’t have prevented or ameliorated any of these problems. Why didn’t the Board members speak to their failed processes, a lack of transparency and accountability for decisions made by the Board, a lack of accountability mechanisms such as transparency for USCP IG reports and USCP decisions, and so on?

The SAA did make other recommendations. We were unimpressed with the idea of video training to help enhance district safety and would suggest instead providing funding for those district offices that could be relocated inside federal buildings. The idea that each office hire a district law enforcement coordinator also seemed haphazard and problematic from an MRA perspective. I did not understand his proposal on creating a Capitol Security Officer. We find it odd (but not surprising) that the DOJ is unwilling to prioritize prosecuting threats to members and staff, but the solution of the USCP hiring attorneys to assist with prosecutors is unusual and concerning. Also, we wonder whether the proposal to make a new criminal law for threatening a member of Congress may be duplicative as we think there already are laws for this, but we need to do some research.

Secret succession. Should the worst occur, the procedures that would go into effect in the most dire of national emergencies are virtually unknown to the public and Congress, William Arkin and Marc Ambinder write for Secrets Machine. The programs, which go under the rubric of “continuity of the presidency,” assume the constitutional order has broken down and employ more than 400 people to manage the aftermath. What I’d like to know about: “The system of presidential emergency action covers how the President might get Congress to sign emergency legislation; how Congress can reconstitute as a body; and how the President and Congress can file emergency petitions with the Supreme Court if the electric grid is wiped out, and also the ‘then what’ — how presidential orders are executed by departments and agencies in distress, or when these entities are trying to determine who is in charge.”

Support staff are essential to ensuring continuity of government. The Senate’s adoption Thursday of a resolution honoring Capitol workers affirmed this sentiment; we’re ready to see its commitments borne out: “higher pay, collective bargaining rights, paid sick and vacation leave, and comprehensive health insurance with mental health resources” for all support staff and contractors.


Lashing out. House Minority Leader Kevin McCarthy vowed to strip Reps. Ilhan Omar of her assignment to the House Foreign Affairs Committee, and remove Reps. Eric Swalwell and Adam Schiff from the House Intelligence Committee, should the Republicans take the House in the midterms. This is fairly Alice in Wonderland: “Sentence First–verdict Afterward.” Shouldn’t punishment be based on having done something wrong and not mere animus?

• Select? HPSCI, as a select committee, has its membership appointed by the Speaker or Minority Leader, which we have long thought inappropriate. If Republicans want to make changes in the way House Intel operates, we have better (bipartisan) recommendations here.

CASES status. Members of the House Oversight Committee have requested a status report on federal agencies’ implementation of the CASES Act, 2019 legislation making it easier for congressional offices to work with federal agencies on behalf of constituents. Federal agencies are now required to accept digital signatures on privacy forms, but apparent delays in implementation are preventing constituents from getting the help they need from their representatives.


GPO hit 9 billion “retrievals” of government info last week.

Telework. 50% of federal workers were eligible to telework in 2021, up from 39% in 2020, according to OPM — which foolishly publishes the information as a PDF and not as data — with 90% of those eligible to teleworking opting to do so (at least to some extent). What about Congress???

Electoral Count Act reforms. The Committee on House Administration’s new report on the Electoral Count Act of 1887 concludes the law “is badly in need of reform,” while also emphasizing that protecting the election certification process from exploitation “would not restrain […] efforts across the nation to diminish and impede the equal freedom to vote.”

Former Acting DHS IG Charles Edwards pleaded guilty to defrauding the US government by stealing confidential software and databases which Edwards’ company used to develop a “commercially owned version of a case management system to be offered for sale to government agencies.”

The in-person House Democratic Caucus retreat has been postponed from its original date in early February to early March due to Covid-19. We note that last year’s retreat was fully virtual.

Minority Leader Kevin McCarthy refused the Select Committee on Jan. 6th’s requestlast Wednesday for his voluntary cooperation with the committee’s investigation. Oddly, a radio interview just surfaced where he spoke about January 6th, including his conversation with Pres. Trump in which he assigns some blame to the now ex-President — and said Trump agreed.

Tech companies subpoenaed for role in Jan. 6th attack. The Select Committee announced Thursday it has issued subpoenas against Alphabet (Google), Meta (Facebook), Twitter, and Reddit.

Archivist of the United States David Ferriero announced his retirement last week. Deputy Archivist Debra Steidel Wall will serve as the Acting Director. We have had the pleasure of working with Archivist Ferriero, who holds quarterly meetings with members of civil society, and we congratulate him on his retirement.

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