First Branch Forecast for July 17, 2023: Summer of Minoritarian Legislating

TOP LINE

The NDAA is about to burst into flames like an unwatered Christmas tree, having passed the House by a bare 219-210. The appropriations bills have become a Barbenheimer of toplines and messaging amendments. Welcome to the summer of minoritarian legislating.

The Senate Appropriations Committee reported out the Legislative branch appropriations bill 30-0 mid-week, but the bill text and report unhelpfully didn’t come out until Friday morning as is par for the course in the world’s greatest deliberative body. We also discovered a Senate amendment to the NDAA that, if enacted, would allow members of Congress to censor information about themselves that’s published on the internet and would gag those who would publish it.

The demographic composition of Senate staff came into sharper focus through the release of data by Senate Democrats as part of their annual diversity study.

Outside organizations continue to support House progress on implementing Select Committee on the Modernization of Congress recommendations, with particular focus on casework data aggregation that would be exciting.

This week the House is in session Monday through Thursday and the Senate is in session Tuesday through Friday. The Senate may begin its NDAA authorization votes on Tuesday.

There’s quite a lot going on in committees as we dream about August recess:

USCP IG. On Wednesday, the Oversight Subcommittee of House Administration will call US Capitol Police Inspector General Ron Russo to testify. He’s been on the job only since the end of January. He was chosen by the Capitol Police Board, which under the agency’s leadership structure includes its chief of police and two Leg branch leaders in acting roles. Having the chief on the Board that hires the person charged with department oversight creates an obvious conflict of interest.

The IG is of particular interest because it has a new boss, it can provide an update on the series of “flash reports” it issued concerning failures at the Capitol Police, it still has not published its IG reports online as directed by appropriators (except for two), and there are important questions about whether it should have jurisdiction over the Capitol Police Board and independence from USCP Board members. We are continuing to track reports on the failures of the USCP and its Board and to monitor whether the USCP will implement FOIA-like provisions Congress has requested.

The Senate Judiciary Committee intends to vote Thursday on the Supreme Court Ethics, Recusal, and Transparency Act, which would require the Supreme Court to adopt a code of conduct, allow for investigations for violations of the adopted code, and improve disclosure and transparency about Justices’ connections to parties before the court.

Senator Chris Van Hollen considered offering an amendment to the Senate FSGG appropriations bill to require a code of ethics as well, but withdrew it during the markup. Judiciary Chair Dick Durbin said he would prefer the Judiciary Committee move the issue. What we suspect happened was appropriators wanted to keep their bill bipartisan, and as Senate Republicans are denying the obvious scent of corruption, this was a face-saving way to do that and keep it in the news.

The House Appropriations Committee will hold its T-HUD markup Tuesday. Senate Appropriations will hold markups of Energy and Water, State and Foreign Operations, and T-HUD on Thursday, pushing its work to the three-quarters mark of bills. As a reminder, we are tracking all appropriations bills here.

If you thought the House Appropriations committee bills were going to be considered under an open rule of the House floor, well, that looks like that promise is “not operative.” What they meant by regular order was they regularly include a structured rule to provide order.

SENATE LEGISLATIVE BRANCH APPROPS

The Senate Appropriations Committee unanimously (30-0) reported out the Legislative branch appropriations bill text, manager’s amendment, and committee report last Thursday. It appropriates $6.761 billion towards the Legislative branch, a 2% reduction from the $6.899 billion FY23 enacted level. This is slightly higher than the House’s topline number of $6.746 billion. We have a comprehensive examination of the Senate funding numbers, including a side-by-side comparing the House against the Senate, by our colleague Taylor Swift.

Some of the funding highlights include:

Senators’ Official Personnel and Office Expense Account (SOPOEA) — the account that pays staff salaries and operations — saw a 4.4% increase from FY23 to $534.5 million. This number is calculated in part based on a formula.
The Government Accountability Office saw a slight increase in funding, a $23.6 million increase to $813.9 million (+2.9%), although it is significantly below its historical funding levels when adjusted for inflation.
The Capitol Police combined salaries and expenses will receive an additional $57.9 million, or an 7.3% increase, from $734.6 million in FY23 to $792.5 million in FY24.
The Library of Congress saw salaries and expenses saw a 2.3% increase to $596.1 million.
The Congressional Research Service was also slightly increased to $136 million (+1.8%).
The Congressional Budget Office saw a decently large increase to $70.1 million (+10.9%).

We plan to do a write-up of the items included in the report, which is where much of the policymaking is made, so be on the lookout for that this week.

During the markup, Senators Brian Schatz and Chris Van Hollen expressed disappointment that an amendment to create a pool for committee intern pay was not included in the adopted package. Demand Progress joined with Pay Our Interns in requesting $7 million be set aside for intern compensation to make available funding transparent to those applying for internships.

Can Senate committees favorably report legislation without it being publicly available first? Yes, yes they can. And the Senate passes bills on the floor without public availability, too. We don’t like it, and we’re hoping that the Senate will fix it. They appear to be inching in that direction.

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STEALTHY MOVES

Meanwhile, Senators Ted Cruz and Amy Klobuchar have offered a floor amendment to the NDAA that is a textbook example of the risk of bad proposals flying by undetected. Senate Amendment 218, published on Friday in the Congressional Record, allows members of Congress and those connected to them to order individuals, associations, non-profits, and businesses to pull information off the internet that contains information about those members of Congress or people connected to them. It’s likely being sold as a security measure, but it’s so expansive and badly written that its effect would be to prevent accountability journalism and undermine civic organizations like ProPublica and Open Secrets, as well as gag you and me.

The amendment is basically a clone of last year’s judicial security amendment, which allowed members of the bench to have a wide range of information about them and those connected with them pulled down from publicly available databases and the internet. It was a bad idea, but that didn’t stop Congress.

This provision allows the deletion of information about lawmakers, their spouses, parents, anyone living in their household, and in some instances congressional staff. That information includes information like the address of the homes they own, a description of their car, their whereabouts, and so on. (So, for example, the story about the billionaire who bought Justice Thomas’s mom’s house would become impossible to research.) Federal judges have already used their version of it to take down information more than 1,000 times since 2020. (FYI, this is 1/3 of all active and retired judges, which goes beyond Article III judges to include bankruptcy and magistrate judges.) It has a pernicious rule of construction saying it should be broadly construed to favor secrecy. This brief from the New Jersey ACLU provides a useful example of how the New Jersey version of this law went wrong.

These types of laws fail to respect the First Amendment and require the non-publication and removal of public information that empowers accountability. It chills the speech of those wishing to speak out on public matters out of fear they will fall afoul of the law. It also may require third parties, like Facebook or Twitter, to take down information or to de-anonymize users. There are ways to make members, their families, and staff more safe, including a bevy of laws already on the books, but this law doesn’t fit the common threat models. It also contains other serious flaws that undermine its apparent purpose.

Intrepid Politico reporter Josh Gerstein caught up with Sen. Klobuchar about the amendment. “Klobuchar, who often touts herself as a First Amendment champion and is fond of mentioning that her father was a longtime newspaper columnist, bristled at the suggestion that taking lawmakers’ addresses offline would constrain any legitimate form of journalism.”

Perhaps like the Supreme Court Ethics bill, this legislation should be subject to a hearing — by her Senate Administration Committee — so she can hear from journalists, First Amendment experts, and civil society about whether this would pose any constraints on “legitimate forms of journalism.”

By the way, not everyone who uses this information meets the amendment’s definition of a journalist. The idea that members of Congress get to decide what constitutes legitimate journalism is concerning, especially when the legislation would construe that narrowly and federal judges, who now enjoy similar protections, also have an incentive to rule against transparency. Moreover, the work of civil society to protect our democracy by performing accountability research is equally important, even if it is overlooked by this bill. It doesn’t take much imagination to understand how this law will be misused.

NDAA

This year’s NDAA demonstrates how the consideration of must-pass legislation is wrapped around the House leadership’s little finger, and what happens when they tie their own hands. Past speakers picked and chose winning provisions in part as an exercise of their own parochial interests and in part to reward members of their faction. They also would sabotage provisions for a variety of reasons: to harm the interests of their adversaries, to score political points, as a disciplinary tool, and so on.

But ultimately, the House would pass a package that had “bipartisan” support. Of course, there were many other bipartisan coalitions possible, but this bipartisan coalition was built around what the Speaker wanted. In doing so, they presented a united front against the Senate. It allowed them to slip in not-entirely-germane provisions that the Senate should have considered as stand-alone bills, but didn’t because it’s a one-member vetocracy. The filibuster kills and maims many small bills.

This time, Speaker Kevin McCarthy handed agenda control to hardline conservatives. His main goal remains to save his gavel by not provoking their ire, knowing that the disciplining force of a unified Senate awaits. He expects the Senate will tell the MAGA folks no when he will not. (We shall see on that.) By abandoning Speaker-led bipartisanship, he’s also weakening the hand of the House, which means fewer House amendments (i.e., bills that can only pass via this kind of vehicle) can become law.

Speaker McCarthy did exercise negative control when it aligned with this far-right coalition. Witness, for example, the effort to ban cluster munitions. Federal law already prevents the transfer of munitions with a dud rate of over 1%. US munitions have a much higher dud rate, but President Biden is going to circumvent the law (i.e., he’s breaking it) and will transfer them to Ukraine anyway.

Reps. Jacobs led an effort to ban the transfer of these weapons entirely, offering an amendment to the NDAA, and because she had done the hard work and assembled a bipartisan coalition they had a real likelihood of winning. Just look at the co-sponsors: Jacobs (CA), Omar (MN), Jayapal (WA), McGovern (MA), Titus (NV), Lee (CA), Gaetz (FL), Tlaib (MI), Balint (VT), Garcia (IL), Johnson (GA), Castro (TX), Grijalva (AZ), Khanna (CA), Larsen (WA), Luna (FL), Ocasio-Cortez (NY).

Enter Speaker McCarthy. He directs the Rules Committee to rule Jacobs amendment out of order and in its place consider an amendment from Rep. Greene (with Reps. Gaetz and Massie) to ban the transfer of cluster munitions to Ukraine only. This does four things:

gives a gift to Rep. Greene to throw red meat to pro-Trump anti-Ukraine MAGA folks;
constitutes an attack of President Biden;
gives something to Rep. Massie, who serves on the Rules Committee; and
significantly decreases the likelihood of the amendment’s adoption.

A bipartisan legislative limit on the transfer of these weapons was less important than a partisan political attack. I guess that’s a win for McCarthy, just don’t think too hard about the thousands of additional people who will be maimed and killed because of this political maneuver. How many other stories like this exist in the 1158 amendments offered for floor consideration of the NDAA?

You don’t think too hard. One example is that the AUMF repeal was not allowed to be considered on the floor as part of a side deal to have a vote in September that makes its passage much less likely.

Related Resources

More on the internet censorship NDAA amendment introduced by Sens. Cruz and Klobuchar.

SENATE DIVERSITY

Ideally, the chambers of Congress would report the demographic composition of member and committee staff regularly from an internal HR database that gathers the information during onboarding. Because Mitch McConnell apparently does not have sufficient interest in such a system, we’re left in the Senate with voluntary annual reporting of survey data by Democrats as parts of their diversity initiative. The conference released its 2023 survey results last week. It reported it as percentages and in non-machine readable format, however, making analysis over time difficult. It also lacks sufficient granularity to distinguish between senior staff and more junior staff. Still that’s better than the Senate Republican report, which does not exist.

The Joint Center helpfully broke down the data in several ways and mixed in their own research, which provided much greater depth of analysis. It indexed senators’ personal staff against the percentage of the population identifying as people of color in each state, revealing that a majority of Senate offices are matching or exceeding the diversity of their constituencies. It also called out the most and least diverse personal offices and those with the greatest and least improvement from 2022’s survey.

Committees, however, are falling well short of representative hiring. Five Senate committees have no Black staff. Only 20% of SASC staff are people of color, whereas 41% of the US military identifies as such.

MODERNIZATION

Charting modernizing progress. The House Select Committee on the Modernization of Congress issued a whopping 202 recommendations before being reconstituted as a House Administration subcommittee at the start of this Congress. J.D. Rackey at the Sunwater Institute has put together an unofficial tracker of progress in implementing these recommendations. As of last week, he counts 53 recommendations as having been fully implemented, 36 with partial implementation, and 51 with some progress towards implementation. The CHA Subcommittee on Modernization may have a different tally of its own, but this is a helpful benchmark.

Casework data aggregation. Of the recommendations the CHA Modernization Subcommittee is tracking, it took particular interest this March in one (no. 172) that called for the creation of an anonymized constituent casework data aggregator that would allow the House to identify broader trends emerging in constituent service. POPVOX Foundation has released a very detailed and thoughtful set of technical recommendations for the development of such an aggregator, along with guidance on the casework process from its experienced staff to give context to development teams.

ODDS AND ENDS

The Congressional Progressive Staff Association has launched its 2023 Congressional Working Conditions Survey, which is open to all full-time Legislative branch employees and interns. The intent is to provide data on actual working conditions on the Hill, so please take five minutes to fill it out.

The Congressional Black Caucus wrote to Judiciary Committee Chair Dick Durbin last Wednesday urging him to eliminate the practice for US attorneys and federal marshals and require the return of only one blue slip from a home-state senator for a district court nominee to proceed. Members also requested the committee provide a reason for a blue slip and consult caucus members on nominations within their jurisdictional interest. The CBC said it would oppose two judicial nominees for districts in Louisiana until Durbin acts.

House intern coordinators and interns can consult a new resource hub created by the CAO, with guidance on recruitment and onboarding, management, and retention. Access the resource hub here (internal only).

The US Capitol Police have begun the early stages of planning to launch a pilot body-worn camera program for its officers, according to Fedscoop. (We remember this coming up at hearings earlier this year, fwiw.) The department is not subject to an executive order asking executive branch agencies to create body-worn camera policies, but USCP Chief J. Thomas Manger is supportive of their use. The research into their effectiveness in reducing police misconduct, including in Washington, DC, is a mixed bag, however.

Chinese hackers were unsuccessful in accessing a congressional email account in the same attack that breached several Executive branch offices.

Republican members with stronger corporate fundraising ties were less likely to vote against certifying the 2020 election, even if their own margins of victory were narrow, according to research by two professors at UNLV. No, it was not in the Journal of Unsurprising Results.

Rep. Mike Lawler edited his Wikipedia page too often, and now he’s banned. If you want to monitor when members of Congress edit their own Wikipedia pages and you have a little coding skill, the code is here.

The National Archives gets a close-up, and it looks pretty good.

Congress may be childish, but kids can’t vote on the House floor. If you complained about proxy voting, you should be asking for a do-over when someone not elected to the chamber is voting for multiple members.

New threads? Jim Saksa at CQ/Roll Call writes about the latest watercooler replacement.

CALENDAR

Congressional Committee Calendar

~ Wednesday ~

The Committee on House Administration Subcommittee on Oversight will hold a hearing with US Capitol Police Inspector General Ron Russo at 2 PM in Longworth 1310.

~ Friday ~

The Democratic Caucus will host an internship and fellowship resource fair for permanent congressional staff from 1-4 PM in HVC-215. Register here.

~ Down the road ~

The Office of the Whistleblower Ombuds will hold a Lunch and Learn on July 24 at 12 PM in the Capitol Visitor Center 217. It will be open to members and congressional staff. RSVP here.

The House Office of Diversity and Inclusion will have a virtual resume review workshop on July 24 from 1-2 PM. Register at this link.

The Capitol Hill Archivists and Records Managers Group will host an open meeting on the preservation of Senate office records on July 25 from 1-3 PM in the Capitol Visitors Center SVC 209-08. Email to RSVP.

The Office of Congressional Workplace Rights will offer a webinar on employees’ rights and responsibilities under the Congressional Accountability Act on July 27 at 1 PM. Registration link is here.

Attorney General Merrick Garland is scheduled to testify in front of the House Judiciary Committee on September 20.

The Ridenhour Prizes, which celebrate whistleblowers, documentarians, and authors in support of government transparency and accountability, will hold its annual gala on October 25 at 6 PM. Subscribe to this link for ticket information.

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