First Branch Forecast for June 20, 2023: Approps Heats Up

TOP LINE

After a House Administration Subcommittee hearing focused on the personal rather than the institutional aspects of the Office of Congressional Ethics, we take a deeper look at why that office is vital to an ethical Congress.

Congressional unions scored an historic win for committee staff and others.

This week both chambers are in session through Friday after the Juneteenth holiday.

The full Senate Appropriations Committee plans to complete markups for the Agriculture and MilCon/VA bills at the funding levels set by the debt ceiling agreement, teeing up a conflict with House Republicans who are reneging on the deal. Meanwhile, House Appropriators will have a full committee markup on Wednesday for Leg Branch and Homeland Security, and on Thursday a full committee markup for Defense and Energy & Water.

Senate Armed Services Committee will have a series of closed hearings on the NDAA while the House will hold its markup of the bill Wednesday morning.

The Congressional Data Task Force will hold a quarterly meeting on Thursday from 2-4 PM in B-248/B-249 Longworth. If you care about congressional data, this open meeting is for you. RSVP and catch up on what happened in March.

A bipartisan quartet of members have circulated a Dear Colleague letter inviting cosponsors for the PRESS Act, an important journalist shield law, which the House passed unanimously last Congress but was blocked by a lone senator on a spurious basis. In light of the recent death of American hero Daniel Ellsberg, who told the truth about Vietnam at the risk of his freedom, we should make sure that the government cannot compel the press to spill on their sources.

A STATE OF DEEP RESPECT

Daniel Ellsberg, who released the Pentagon’s secret study on the Vietnam War that showed the US government knew it could not win the war even as it sent more people to their deaths, has passed away. Ellsberg, who was a Marine, an economist, an expert on decision theory, a special assistant to the Department of Defense, and an employee of RAND, first offered the papers to Sen. Fulbright, the Senate Foreign Relation Committee, Sen. McGovern, and other members of Congress.

As James Risen describes it, Fulbright initially promised Ellsberg he would hold hearings and make the papers public, but “Fulbright lost his nerve; he was frozen with fear by the thought of publicly revealing stolen classified documents without government approval.” McGovern refused to get involved because he was going to run for president.

Ellsberg ultimately gave the report to the New York Times in June 1971, a year or two after he had given them to Fulbright and the Senate Foreign Relations Committee. Imagine how many people died because they deferred. The press publication of the report changed things. “Once they were published, a cry arose that the committee must do something about them.”

The senators, of course, could have received the report and introduced it into the Congressional Record. They would have had immunity for doing so. But senators and Senate committees were unwilling to take the heat to do what was right, leaving all the weight to fall on Ellsberg. Ultimately, Sen. Mike Gravel, to his everlasting credit, entered 4,100 pages into the record, after a significant amount of it had been published by the newspapers, and in fact he received a copy of the report from Ellsberg via a Washington Post reporter.

As a consequence of publication of the DOD’s secret history of the Vietnam War by the press, the Nixon Administration sought an injunction against publication of the report, first at the Times, then the Post, and then elsewhere. This led to a Supreme Court decision upholding the right of the papers to publish this information as the government hadn’t met its burden for “prior restraint” on publication.

That didn’t protect Ellsberg, and the DOJ prosecuted him under the Espionage Act; he faced 115 years in prison. Yes, that’s right — the same law we wrote about last week designed to go after anti-war protestors, in that case, those opposing WWI, and to censor the press. Nixon wasn’t concerned that the Pentagon Papers would make him look bad, but he was concerned it would undercut support for the (unwinnable) war and also that Ellsberg might have known about Nixon’s treasonous efforts to sabotage LBJ’s peace efforts in 1968.

Not content with the prosecution, Nixon and his aides created the “plumbers” to end the leaks and discredit Ellsberg personally. The former intelligence operatives broke into Ellsberg’s psychiatrist’s office in an attempt to get information to discredit him, but didn’t find anything useful. They had a second operation planned to break into his house.

Those same Nixon plumbers went on to another job — Watergate. By the way, it also turns out the FBI had been illegally wiretapping Ellsberg. In light of these revelations of pervasive governmental misconduct, the federal judge (eventually) threw out Ellsberg’s prosecution.

The consequences of Watergate, the involvement of the intelligence community in domestic political affairs, and the rest led to the formation of the Church Committee, which sought to bring the lawless intelligence community under control of the Congress for the first time ever. Ultimately Congress passed a number of laws and began conducting regular oversight over the Intelligence Community and tightened the reins on the military as well.

But we are still fighting the fight over whether the intelligence agencies must act lawfully and under the control of Congress. For example, the Bush Administration’s unlawful warrantless surveillance program was partially legalized in 2008, and one of the key statues, section 702, is set to expire later this year. There’s also a brewing scandal on the government’s purchase of information from data brokers as a way around the 4th Amendment.

The government has a long history of abusing and evading the requirements of that law and the House and Senate’s Intelligence Committees have become largely captured by the Intelligence Community instead of serving as the public’s watchdog, as the Church Committee had intended. (Has anyone else noticed that House Intel hasn’t updated its list of hearings since November 2021 and Senate Intel hasn’t issued a press release since Sept. 2022 even while supposedly reporting out its IAA last week?)

The structural failings around oversight of the intelligence community remain. Some of the government’s abuses have gotten worse. Starting under the Bush administration, the Justice Department has metastasized the Espionage Act to go after journalists who receive and publish “leaked” classified information, even when doing so is in the public’s interest. Charlie Savage writes in yesterday’s Times about Ellsberg’s effort to challenge the constitutionality of that law, at age 90, by sharing classified documents that reveal how close the world came to nuclear war when the Chinese government shelled Taiwan in 1958. (US military leaders pushed hard for a first-use nuclear strike on China.) The Justice Department  declined to prosecute Ellsberg for that final revelation — perhaps they learned their lesson about him — but they are continuing to prosecute others.

There has been some minor progress. We recently saw the Senate give each member of that chamber the right to have one staffer with a sufficiently high clearance to look at the sources and methods by which intelligence information is gathered, but no such right is currently available to members of the House. The lack of these TS/SCI clearances allows the administration, the Intelligence Community, and their proxies at the Intelligence Committees to run rings around the members.

And you’ve heard us raise concerns about the secret law embodied in the DOJ’s Office of Legal Counsel’s secret opinions, the existence of many of those opinions are not even known to Congress.

Also, as we mentioned at the top, there’s the PRESS Act legislation being reintroduced this upcoming week to prevent the government from being able to obtain the communications of journalists (with limited exceptions). There even are bills to prune the poisonous Espionage Act.

Daniel Ellsberg leaves a long legacy. He was not unknown to Congress: I found 420 references to him in the Congressional Record going back to 1955. His life illustrated the importance of protecting the press, of empowering congressional oversight, of reigning in an overpowerful Executive branch, and most importantly of speaking out to hold the powerful to account. He worked hard to remind us of all that, with his books Secrets, Papers on the War, and the Doomsday Machine, and with his many writings.

Ellsberg’s life is an illustration that the price of access to the government’s most closely guarded secrets is a willingness to speak up when the government blunders. Most of us, who work in and around the government, have an obligation to build institutions that empower all of us to raise the alarm: by empowering Congress to conduct real oversight; by protecting whistleblowers; and by protecting the free press.

OCE HEARING

After an impressive set of oversight hearings, the Committee on House Administration missed an opportunity last Tuesday to discuss strengthening the Office of Congressional Ethics. For the last 15 years, OCE has elevated the investigatory process of ethics enforcement above partisan House politics. Although it can only refer cases warranting action to the Ethics Committee for action, its independence from sitting members – especially leadership – and its regular reporting schedule create an invaluable transparency check on the Committee, where complaints were often buried without any public disclosure.

Because they cannot control it, vocal members of both parties have been hostile to OCE since its inception. Tuesday’s hearing followed that pattern of behavior, unfortunately, instead of digging into how OCE could be made more effective, as Daniel told Roll Call.

As OCE’s Board co-chairs explained in their written statement, the OCE “frequently takes the lead on investigating matters where there previously was a dearth of ethics enforcement or where current House practices are themselves at issue. All of this has combined to create a more robust structure for ethics enforcement in the House, bring about more comprehensive guidance from the Committee to help Members better understand their obligations as public servants, and promote a culture of deterrence and enhanced fidelity to House rules and standards of conduct.”

Before OCE existed, Congressional leaders had free reign to use the Ethics Committee as weapons against their adversaries. Both speakers Jim Wright and Newt Gingrich used it as a sword to slash at one another through ethics charges. In the aftermath, there was a period of détente, where Democrats and Republicans avoiding making complaints against one another. This allowed problems to fester, brewing major scandals that the then-Republican majority handled by interfering in the operations of the Ethics Committee, at times removing both its Chair and some of its staff to protect senior Republicans.

OCE was designed to correct for this era, most notably for the Jack Abramoff scandal, by allowing anyone to request an investigation and setting an 89-day shot clock for OCE to make a recommendation on whether to move an inquiry forward. OCE’s role is to address ethical lapses before they snowball into patterns of corruption.

Since its formation in 2008, OCE has reviewed more than 50,000 tips, authorized 242 investigations, resolved 228, and referred 104 cases to House Ethics, with 52 referrals relating to Democratic members of Congress and 52 relating to Republicans. It has done so with a $1.7 million budget, about one-quarter the House Ethics Committee’s annual budget of $4.5 million.

OCE has brought some of the most substantial ethics violations of the last decade to light:

• Del. San Nicolas. OCE found substantial reason to believe San Nicolas filed false information with the Federal Election Committee, accepted illegal cash contributions, and converted campaign funds to personal use. In response to their referral, the House Ethics Committee recommended referring the matter to the Justice Department.
   
• Rep. David Schweikert. OCE found substantial reason to make two referrals concerning Rep. Schweikert. This concerned misspending House of Representatives funds, accepting campaign contributions from an employee, pressuring his staff to work on his campaign, linking official activities to political support, having his campaign receive loans or gifts from a congressional employee, and omitting information on his Federal Election Commission reports. Subsequently, the House Ethics Committee fined Schweikert $50,000 and recommended a reprimand.
   
• Rep. Tom Garrett. OCE found substantial reason to believe that Rep. Garrett used congressional staff to perform unofficial work and personal errands at his direction and the direction of his wife. Subsequently, the Ethics Committee concluded Rep. Garrett violated the public trust and failed to take responsibility for the misuse of staff time, but moved sufficiently slowly that it lost jurisdiction when Rep. Garrett retired.
   
• Rep. Chris Collins. OCE found substantial reason to conclude Rep. Collins shared material nonpublic information in the purchase of Innate stock and took official actions to influence a regulator concerning a stock in which he had a significant financial interest. Subsequently, Rep. Collins was sentenced to 26 months in prison on a separate but related matter concerning participating in an insider trading scheme and lying to federal law enforcement agents.
   
• Rep. Duncan Hunter. OCE found substantial reason to conclude Rep. Hunter used his campaign funds for personal uses to pay illegitimate expenses. (He allegedly spent money in support of his extramarital affairs with lobbyists and staff.) Subsequently, Rep. Hunter was sentenced to 11 months in prison for stealing more than $250,000 campaign funds for personal use.

This record stands in stark contrast to the Senate, which has no analogous office and relies on its own ethics committee to investigate senators’ abuses. “Despite receiving over 1,500 complaints since 2007, the Senate Ethics Committee has never once voted to issue a disciplinary sanction.” Nevertheless, one representative suggested the Senate system is superior and OCE is superfluous. In the words of my generation, “as if.”

The OCE board and signatories from 35 civil society groups organized by Demand Progress and Public Citizen suggested reforms to strengthen OCE’s position, including changing the board appointment process that could leave the office without any staff and providing OCE with subpoena power for third parties.

Unfortunately, the House Admin Subcommittee did not engage on those proposals during the hearing, choosing instead to focus most of its attention on a disciplinary action the OCE board took with regard to its staff director over a matter not related to institutional ethics. The independent decision-making of the OCE Board about when to refer matters to the Ethics Committee, and the Board’s independent oversight of its staff, keeps the OCE out of the political thicket that often has undermined the credibility and effectiveness of the House Ethics Committee.

Historically, we’ve seen some Republicans and Democrats come after the OCE because they’re afraid. They can’t control the process, unlike the historically pliable Ethics Committee. The institutional design of the Ethics Committee means that it cannot be an impartial judge, no matter how hard its members and staff try, particularly in cases that are political sensitive. It’s better to have independent oversight that regularly catches scandals that implicate a few members than have those scandals grow to swallow the institution.

Read a letter from 35 civil society organizations calling for a strengthening of the Office of Congressional Ethics.

CRUMBLING NORMS

Rep. Anna Paulina Luna’s efforts to take ethics into her own hands by introducing three measures this Congress regarding Rep. Adam Schiff illustrates another ethics pitfall — the political weaponization of the process. While her privileged resolution to censure Schiff failed in part because it would have imposed a mandatory fine upon him if the Ethics Committee found it substantiated, it appears she’s found acceptable language on another resolution to censure Rep. Schiff for investigating Donald Trump’s finances and ties to Russia while chairing HPSCI. Schiff was already kicked off HPSCI by Republicans at the start of the Congress.

If Luna has a basis to believe Schiff violated ethics rules, she could refer them to the Ethics Committee without needing to file a resolution. Heck, Russ Vought, who served as Trump’s OMB Director and now runs the Center for Renewing America, filed a complaint with OCE about Schiff this past week. While these complaints strike me as an inadvertent in-kind donations for Schiff’s run for Senate, they also are catnip for media attention and perhaps grist for their own fundraising mill.

In case you’re counting, two members of Congress have been censured this century: Laura Richardson in 2012 for making staff work on her campaign and Joe Wilson for yelling “you lie” during President Obama’s 2009 speech to a joint session of Congress – which, of course, is a totally acceptable thing to do now.

This contrasts with the efforts by Democrats to hold George Santos accountable for {waives hands at all the things} on the floor of the chamber, knowing that the politically split Ethics Committee won’t act without McCarthy’s go-ahead.

A respected, non-partisan ethics process should reduce many of these shenanigans, but the structural problems at the House Ethics Committee means we instead see are attacks on the independent OCE… at the same time they receive complaints from these right-aligned groups and many others.

CONGRESSIONAL UNIONS MAKE HISTORY AGAIN

Last week, the Congressional Workers Union announced numerous congressional offices — including the Democratic staff of the House Education and Workforce Committee — have submitted union petitions in the House. Staff members working for Representatives Val Hoyle, Sylvia Garcia, and Mark DeSaulnier have recently filed union petitions. Additionally, a majority of staffers employed in the offices of Reps. Alexandria Ocasio-Cortez, Mark Pocan, Mark Takano, Sean Casten, and Dina Titus have individually cast formal votes to establish unions.

“These offices continue to pave the way for Congress to be a more fair and democratic employer that can better attract and retain a workforce reflective of our nation,” Taylor J. Swift, senior policy advisor at Demand Progress, said in a statement. Given the haze created by a House rule at the start of the 118th Congress apparently attempting to nullify unionization – which Demand Progress Education Fund dispelled in this report – we continue to be impressed by the courage staff are demonstrating in pressing forward.

Demand Progress is tracking unionization progress as it continues from the last Congress.

FORCED DO-OVER

Perhaps it’s beginning to set in more widely in that the far-right faction of the House majority coalition is going to continue to leverage legislative procedure to get what they want, be it bringing a bill they sponsored to the floor or resetting 302(b) levels even after the debt limit deal. Members certainly understand they’re watching a very slow moving disaster ambling toward government shutdown this fall given the determination of a dozen or so members to stick together and gum up the works.

As a reminder, we are tracking the progress of all 12 appropriations bills with this spreadsheet.

At the risk of sounding like the old Dril tweet, it’s remarkable to watch the MAGA faction operate with the confidence of knowing there will be no political consequences for their actions. And why shouldn’t they? They speak directly to ardent supporters via partisan media and are untethered to the party by the wild west of campaign finance. They have safety in numbers with such a slim House majority.

Most importantly, they see themselves as something other than part of a spectrum of a typical unified party with majority status. It’s evident in the way they talk: Rep. Matt Gaetz, for example, said the group was in a “power-sharing” arrangement with Speaker McCarthy agreed to last January, which “has to be renegotiated” after the debt limit deal so “House conservatives would be left as the less desirable coalition partner than Democrats.”

What is distinguishing them from other Republicans is a willingness to use their procedural power. Some members may have vented their frustration about the MAGA faction dictating the terms of floor debate to the party and not the other way around, but there’s no reason for them to stop given the dynamics with leadership until someone in the institution makes an adjustment. If all members of the Republican conference were willing to use their procedural power, perhaps they could strike a better balance — within the party and within the chamber.

Josh Huder’s excellent new retrospective look at Nancy Pelosi’s record as Speaker provides perspective on where Speaker McCarthy finds himself. Pelosi, too, faced a shifting coalition with the winnowing of party moderates. In response, her leadership, Huder writes, “had the hallmarks of a political machine: centralized power and a near-constant exchange of favors among and between various factions in the House Democratic caucus.” Balancing-act negotiations, however, were forged out of her office, not the committee system. “Over Pelosi’s tenure, Democrats evolved into a more procedurally disciplined and ruthless party,” which Huder notes brought them more in line with Republican leadership styles. She also avoided the fate of all Speakers since the 1980s and was not pushed out of office. (The entire essay about Pelosi’s institutional impact is worth the read.)

We are not arguing that McCarthy should become a Pelosi, even if he could. Huder writes Pelosi’s “goals and effectiveness as a partisan leader weakened other entities in the legislative process. The influence of committees, individual members, and the minority party all declined… [she] hollowed out the traditional legislative process.”

Instead, we would argue that the way out of the strong-leader trap and the minority veto trap is for the factions inside each party to become more powerful, more organized, and to create alliances on issues with other factions so as to create majorities on issues. Madison’s Federalist 10 contains advice on how to manage the dangers of factions: “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.”

TECHNOLOGY

Did we mention the Congressional Data Task Force is meeting this Thursday and that you’re invited? Yeah, I know we’re repeating ourselves. But if you can’t be there in person, you can also watch it from your desk. More info here.

The very first program to build data literacy in Congress is almost in the books, as 42 staffers will earn certificates for participating in the Data Skills for Congress course, a certificate program organized by USAFacts and the Goldman School of Public Policy at UC Berkeley. Daniel was one of four instructors.

Three senators have introduced legislation requiring OMB to instruct federal agencies in disclosing the use of AI in their decision-making on issues that could affect the cost of or access to government services.

ODDS AND ENDS

After a technical delay, the IRS has released more than a million 990s. Find them at ProPublica.

American exceptionalism. A Canadian Supreme Court justice has stepped down over allegations he harassed a woman in an Arizona resort.

We were remiss last week not to note that GPO has passed the 10 billionth retrieval of digital government information in the 30th year of its presence online.

Maybe foosball can help fix Congress? Kevin Kosar proposes a congressional dorm to boost member relationships and save them money.

What do they say about judging an organization by its hires?

FiscalNote, the parent company of CQ Roll Call, probably should have asked around the newsroom about congressionally-directed spending and how it was reformed after much discussion before publishing this essay. Or look at this guide from the POPVOX Foundation.

The real Taylor Swift gets a closeup from the Washingtonian.

Senate Democrats did not take advantage of Sen. Tommy Tuberville’s attendance of a Trump post-indictment event to offer the military promotions he’s holding up under unanimous consent because of “unwritten rules” and because another senator might have objected. So rather than making them do it, they did nothing.

Should sneakers be allowed in the Speakers’ lobby? Yes.

CALENDAR

Congressional Committee Calendar

~ Wednesday ~

House Appropriations full committee markup on Homeland Security and Leg Branch at 10:30 AM.

~ Thursday ~

House Appropriations full committee markup of Defense and Energy & Water at 10 AM.

Senate Appropriations full committee markup of 302(b) subcommittee allocations and Mil-Con/VA and Ag Approps bills at 10:30 AM.

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

~ Down the road ~

OCWR will hold a webinar on its role under the Congressional Accountability Act and the rights and responsibilities of covered Legislative branch employees on June 27 at 1 PM. Register here.

House Office of Diversity and Inclusion Director Dr. Sesha Joi Moon will hold an open meeting on June 28 at 11 AM. RSVP here.

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