First Branch Forecast

Forecast for March 8, 2021

Welcome to the First Branch Forecast, your weekly look into the Legislative branch and government transparency. (Was this email forwarded to you? Subscribe here.)

THE TOP LINE

General Honoré will brief Congress today in three closed meetings on his “Capitol Security Review” that was conducted out of public view over the last six weeks. The NYT published a draft of his findings on Friday, the fact of which I find irrepressibly funny. I’ve read the assessment: it reads like a report written by a bunch of generals. It re-fights the last war, contains a request for significantly more manpower and spending, and is nebulous about how to address the source of the failures: Capitol Police leadership. Here are our recommendations.

• If Honoré’s recommendations are adopted, and we have every expectation Speaker Pelosi will do so, one major consequence will be the further defunding of congressional policy making. From what source will they draw funding to pay for 874 new employees, which would increase the USCP staff size from 2,450 to 3,300? Our back-of-the-envelop estimate is funding for USCP would increase from $515m to $693m — and we must note that funding for the Leg branch has increased at half the rate of other non-defense discretionary spending. Defunding Legislative branch policymaking has long been a problem. The Honoré report does not address the importance of growing the Leg branch pie or whether they are calling for paying for this outside the Leg branch budget.

• Putting the Capitol Police in context, the USCP is already funded significantly more than all Congressional committees put together. They also were already asking for a 20% increase, or $107 million funding bump, before this assessment came out. We sent Congress a letter back in February calling for a 10% increase in Leg branch funding, and this week the Levin Center, Lugar Center, and Culver Public Policy Center sent their own recommendation for a 10% increase. The assumption, however, was that this money should go towards policymaking.

• The draft report is not a dud. It makes obvious points about the importance of building up a capable intelligence team that tracks threats, shares information, and is connected with elements of the intelligence community. It also encourages better coordination with other entities, a faster response to emergencies (including requesting assistance), and buying necessary equipment. A handful of important matters are given only a brief mention, such as cybersecurity and the structure of the Capitol Police Board. As the failure in management came from the top, we would think this would be the priority — especially as many other problems could be addressed by better leadership and better coordination. We wonder about the value of having a permanent civil disturbance unit platoon and the use of body cameras. We agree that USCP overtime is a longstanding problem, but hiring more officers won’t address the incentives for overtime.The report also missed key problems such as the Congressional oversight mechanisms (above the Capitol Police Board).

Speaking of congressional funding, last week House appropriators held hearings into the Congressional Budget Office and the Library of Congress. Set for this week: GAO and House Officers testify on Wednesday at 10; and the AOC and GPO present their budgets on Thursday at 10. This time we have a welcome (but unusually) long list of House officers testifying: Office of Legislative Counsel (the people who draft the bills); Sergeant at Arms; Clerk; Office of Diversity and Inclusion; General Counsel (the people who represent the House as an institution); House Inspector General; Office of Law Revision Counsel (the people who write the US Code); and the Chief Administrative Officer. As you might expect, we’re excited.

The end of appropriations? Punchbowl reported Senate Republicans are threatening to “see [stop-gap spending bills] forever — maybe for Biden’s entire presidency” in response to Dems moving the COVID-19 relief bill through reconciliation without Republican support. Let’s be clear about what this means. Right now, appropriations and the NDAA are the big remaining “must-pass” legislative vehicles besides budget reconciliation (which is limited!), and they carry much of the work Congress would normally do through other mechanisms if it were healthy. Regular appropriations are also the major remaining mechanism by which Congress establishes its priorities and restrains the Executive branch. Moving to permanent Continuing Resolutions because you lost fair-and-square on the COVID-19 relief bill in a political landscape already over-protective of a political minority is legislative arson. With this threat on the table, and the ongoing efforts to undermine the right to vote, there’s no remaining reason for Democrats to avoid eliminating the filibuster. In fact, if they wish to move the reforms necessary to save our democracy, they really shouldn’t wait. Could there be change in the offing?

Appropriations requests. As usual, we’ll be publishing our appropriations requests, but in the meantime you can find historical info about Leg branch appropriations here and our Approps Twitter bot has been active. Don’t forget this Friday’s House Admin hearing on funding for (most) House Congressional committees.

TRUMP INSURRECTION OVERSIGHT

Gen. Honoré’s briefings today are at 1, 4:30, and 8 ET in the CVC Auditorium, Chad Pergram reports. Four other generals will be joining him, which makes this a general briefing. (Sorry).

Congressional overseers continued the search for answers last weekduring the Senate Judiciary hearing with the FBI and a Joint HSGAC & Senate Rules hearing with the FBI, DoD, and DHS.

• Response time. During the Joint hearing, National Guard Major General William Walker testified that if Pentagon directives hadn’t held up the process, the National Guard could have had 150 soldiers at the Capitol in 20 minutes. According to Gen. Walker, there is a six-step process to get the National Guard to the Capitol. In response to a question from Chair Peters, Gen. Walker said approvals were immediate during the summer BLM protests, while the Jan 6th approval process took over three hours; “optics” played a role in that delay, but didn’t come up last summer.

• Lack of preparation and intel. FBI Counterterrorism Chief Sandborn admitted she did not see a pivotal report until days after the event and acknowledged that the department needs better operations and information-sharing guidelines. If this sounds familiar, read “the system was blinking red” from the 9/11 report, issued almost 20 year ago. Sandborn also declared the FBI does not have the authority to monitor public social media posts unless there is a predication, which is why they missed things. This was not an accurate statement. Social media monitoring has been abused by various governments world-wide, but Rachel Levinson-Waldman and Jesus A. Rodriguez point out in Just Security that “There are no constraints – in law or internal rules – on FBI agents’ ability to review publicly available social media content, and agents can access or receive information from closed groups under some circumstances as well.”

• Security designation. Why wasn’t the certification of the election on January 6 designated a National Special Security Event, which would have triggered heightened security by DHS? A senior official testified that no one at DHS considered the question, even though virtually all congressional lawmakers, the vice president, and the future vice president were in attendance.

More than 300 people have been arrested and charged for actions related to the January 6th attacks on the Capitol, and Trump is being sued for his role. Insider has created (and will continue to update) a searchable, sortable table including the names, charges, and court document links of all the people charged so far.

Surveillance of Members and staff? As an odd aside, news reports suggest the feds have IDs for all communications devices authorized to be inside the Capitol on January 6th. More specifically, that the government is screening out authorized users versus those not permitted in the Capitol complex. I don’t see how this is happening. There’s no requirement for members, staff, and journalists to register all their devices and there’s no central list of everyone authorized in the Capitol complex. Moreover, many people carry personal devices that wouldn’t be registered. Where is this list coming from? And perhaps more discomfiting, can the Executive branch invert the list to target Members, staff, and journalists?

CAPITOL POLICE APPROPRIATIONS

The Capitol Police requested a whopping $619.2 million budget for FY 2022 at its House appropriations hearing last week. USCP reports a $107 million or 20.1% increase from FY 2021, Chair Ryan’s statement says $103.7 or 20%. (That’s a nice round number.) Prior to January 6th, USCP only planned to ask for a third of that increase, $36 milion, especially after receiving a huge increase in FY 2021. USCP would grow to 2,112 sworn and 453 civilians, an increase of 212 officers. (Aren’t officers also “civilians”? This terminology is weird.)

Capitol Police used to be just 3% of the Leg Branch budget two decades ago, but now is 10% — and that’s before the proposed increase. With the support of key lawmakers, it appears a further increase in 2022 is all but inevitable. See the growth below — note that we are only including the USCP’s request for new funds, not the new funds the Honoré commission would require:

Will any of this additional spending actually keep Congress safe? Several appropriators were concerned about the risk of throwing money at the problem without fixing things. Chad Pergram explained why money isn’t the answer, transparency & accountability are.

Rep. Clark pressed for details on resources going totraffic stops & drug arrests, noting they make up a significant portion of reported activity. She also questioned why, as one of the largest police departments in the country, USCP officers lacked basic equipment their MPD counterparts had on January 6th.

Threats continue to impact Congress withlawmakers postponing activities like Thursday’s proceedings because of militia threats related to a conspiracy theory that Donald Trump would be inaugurated on March 4th. The Capitol Police have requested an additional two months of National Guard security at the Capitol and the department reported threats are up 94% from a comparable 2 month period last year.

Security theater won’t protect the Capitol. Permanent fencing is a misguided response to January’s attack; it will hurt our democracy and divert resources away from effective solutions, we explain with Arthur Rizer in The Dispatch.

What will enhance security? Improved operations at USCP. The toxic workplace culture was flagged by RM Herrera Buetler. Last month officers took a vote of no confidence in department leadership. OCWR ruled in favor of USCP’s union in a grievance over leadership’s suspension of the collective bargaining agreement (aka worker protections) at the start of the pandemic without bargaining with the union. This is reminding me of Congress’s response after 9/11 — I was an intern in a Senate office — when members panicked and made a series of decisions that we are still unraveling.

LIBRARY OF CONGRESS + CRS APPROPRIATIONS

Library of Congress Librarian Dr. Carla Hayden requested a budget of $845.9m or 5.5% increase over the FY 2021 budget during last Wednesday’s hearing — although Chair Ryan reported a $801 million request, or 5.8% increase in his statement. Within this budget, $129.6m will go towards CRS and $98m will go to the US Copyright Office. Dr. Hayden said the increase in funding will help with critical program investments, continued modernization, and physical security systems — including updating security cameras and cellular systems. (We’ll need to see the Budget Justification to know what this actually means.)

Modernization and transparency. RM Herrera Beutler asked Dr. Hayden about the Library’s report on the Virtual Public Forum on the Library’s role in providing access to legislative information. Dr. Hayden said the report, which was required by appropriators, was submitted in January, although we have yet to see it — maybe they’ll publish it on their blog? A coalition submitted recommendations in advance of the forum; the approps bill says the Library must evaluate the suggestions in its report. Dr. Hayden said the Library will hold another forum because of high interest — we must note that it also is required in the 2020 approps bill.

CRS diversity. Rep. Wexton praised CRS for their work and seamless transition into telework during the pandemic. Wexton was concerned, however, about diversity and hiring within the department, and with good reason, as a 2019 oversight hearing showed a major lack of diversity at the top. Rep. Wexton specifically asked why women tend to be hired at lower grades than men and whether CRS plans to make its Diversity and Inclusion working group permanent. CRS Director Mazanec said that women make up 45% of senior staff, a number that continues to grow, and supports the idea of making the working group permanent.

We would like to know: Will the Library begin to publish its current CRS report online as HTML so that everyone can use the data? Will it publish its historical reports, so you don’t have to use a pay service for access? Will it make an API available for Congress.gov? What’s going on with CRS’s management, especially at the American Law Division? How are CRS employees faring during telework?

CONGRESSIONAL BUDGET OFFICE APPROPRIATIONS

CBO Director Swagel requested an increase of $3.7m, or 6.4% over the 2021 budget, at last week’s approps hearing. Chairman Ryan’s statement and Director Swagel’s testimony are online.

Hiring as well as IT and cybersecurity improvements are mainly where the new funds will go. Ranking Member Herrera Beutler raised the issue of CBO suffering delays in access to Executive branch data needed for analysis. Director Swagel offered, in our opinion, generous explanations on OMB’s behalf. So you know, CBO sometimes must ask federal agencies for information to perform their analyses, but access to information can be inconsistent.

Catering to employee’s needs. CBO is operating fully remotely due to the pandemic. That transition was not complete until December because access to certain data required reporting in person. Director Swagel is considering telework as an option post-pandemic and has collaborated with the Office of Employee Assistance to address employee burnout.

It didn’t come up at the hearing, but we are pleased CBO has improved the mechanism by which conflict of disclosure forms are made available to the public. Although, of course, we would recommend the forms be posted online.

CONGRESSIONAL OFFICE FOR INTERNATIONAL LEADERSHIP APPROPS

The Congressional Office for International Leadership, formerly known as the Open World Leadership Center, had its Leg branch budget hearing last week as well. The office, which is in charge of an international exchange program to bring citizen leaders from all around the world to meet and work with lawmakers and staff inside the Legislative branch, requested a flat budget. In her testimony, Executive Director Jane Sargus highlighted a quick transition to virtual connections during the pandemic and noted plans to digitize the office’s archive, implement advanced analytics, and bring in 1.5 times the usual number of leaders to make up for lost time.

A note: The House also has the House Democracy Partnership, which is separate from the Office for International Leadership. The HDP is focused on an effort to “promote responsive, effective government and strengthen democratic institutions by assisting legislatures in emerging democracies.” COIL is about legislative exchanges with post-Soviet countries.

CONGRESSIONAL OPS

Pay your interns, please. The Modernization Staff Association, POPVOX Legidash, and TourTrackr just published a new video and 1-pager to raise awareness of the House Paid Internship Program since recent findings suggest that many House offices still aren’t using available non-MRA funds to pay their interns. FWIW, we think it’s time to support paid interns for Congressional committees, just like we do for personal and leadership offices.

Senate Sergeant At Arms. Majority Leader Schumer announced a new Senate Sergeant at Arms leadership team. Karen Gibson will serve as Sergeant at Arms, Kelly Fado as Deputy Sergeant at Arms, and Jennifer Hemingway as Chief of Staff. Their bios are here. The SAA is in charge of a host of security and technology services in the Senate. This change comes at a time when lawmakers are calling for a Capitol security overhaul.

New Congress.gov features help with tracking committee activities. For example, users can now access the complete collection of hearing transcripts from the congress.gov committee schedule, search by bill number to find hearings related to that legislation, and offer feedback on bills directly to Members.

TRANSPARENCY

Where is Biden on opengov? When President Obama was elected, he issued a day one memo on transparency. While Obama’s transparency legacy fell short in very troubling ways, we saw some real reform efforts and high (initial) aspirations. Remember the open government triad is transparency, participation, and accountability. President Biden so far is comparing unfavorably to his democratic predecessor on open government. This POLITICO story by Anita Kumar has some of the particulars, including the non-implementation of visitor logs and White House petitions. (BTW, the petitions were meh at best.) Civil society has a long request list. Where is the ethics czar? Where is lobbying reform? Where is the presumption of disclosure? What about OLC opinions?

How FOIA would work in the Leg branch was the topic of my presentation at last week’s FOIA Advisory Committee meeting; and Mike Lissner gave a fantastic presentation on transparency and the federal courts. Couldn’t make the meeting? The slides are online and video should be available from the Committee at this link.

Sunshine Week kicks off in seven days; see the calendar of events here. Highlights include, “The Trump Presidential Library?” — a panel on presidential secrecy with former House Oversight staffer Anthony Clark, Pulitzer Prize winner Philip Kennicott, CREW, and OTG next Monday a 11 (email info@openthegovernment.org to RSVP) — and the 2021 D.C. Open Government Summit panel moderated by Demand Progress’s new Legal Director Ginger McCall. NARA’s event with Judge Lamberth looks fascinating.

A new SCOTUS decision on FOIA, U.S. Fish and Wildlife Service et al. v. Sierra Club, came out this past week. SCOTUSblog summarized the holding: “The deliberative process privilege gives protection from disclosure under the Freedom of Information Act to in-house draft biological opinions that are both predecisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal.” A more in-depth review is here. (We haven’t had a chance to read the opinion.)

Fewer than half of responding agencies make descriptions of major information available on their FOIA websites. This is just one of the takeaways in the newly released NARA report, assessing FOIA compliance through 2019 NARA’s records management self assessment.

ETHICS

The ethics committee is extending its investigation of Rep. Palazzo. The announcement coincides with the release of a nearly 50 page OCE Report in which the Board found substantial reason to believe Rep. Palazzo used campaign funds for personal expenses, as well as MRA funds and official staff time for personal and campaign purposes. Evidence in the report suggests the funds and time were used for renovation of a house that Rep. Palazzo was trying to sell.

Del. San Nicolas may have violated House rules, House standards of conduct, and federal law, according to a two-page OCE Report released by the House Ethics Committee last week. The committee is investigating allegations that Del. San Nicolas accepted campaign donations exceeding FEC limits; while the investigation was referred to the committee last year, the full OCE report isn’t required to be released until the end of the 117th Congress.

Allegations that Rep. Ronny Jackson made sexual comments about a female subordinate, bullied staff, drank alcohol and took Ambien while working as White House physician have been substantiated by the DoD Inspector General, but only after delaying the report’s release for months. Zebras don’t change their stripes, so we wonder how long it will take for new allegations to surface in the House.

BILLS & REPORTS OF INTEREST

War powers. President Biden plans to work with Congress to repeal existing war power authorizations after a bipartisan group of senators introduced legislation that would strip the president’s powers after the latest airstrikes against Syria.

Protecting IGs. Senator Grassley and 11 co-sponsors, including Sen. Peters, introduced legislation (S. 587) to protect Inspectors General from being removed by the President except in circumstances.

Money in Politics: Rep. Wild introduced a bill (H.R. 1530) to amend the Lobbying Disclosure Act of 1995 to expand the scope of individuals and activities which are subject to the requirements of such Act and Rep. Rep. Krishnamoorthi introduced a bill (H.R. 1579) to prohibit Members from purchasing or selling certain investments.

FARA reform. Rep. Wilson introduced a bill (H.R. 1535) to limit the FARA exemption for persons engaging in activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or the fine arts to activities which do not promote the political agenda of a foreign government. The bill also would clarify the disclosures of foreign gifts by institutions. Sen. Rubio introduced a similar bill (S. 577) in the Senate. Civil Society’s recommended fixes are here.

ODDS & ENDS

She’s the second most powerful woman in the history of the House of Representatives, number four Democrat in the House, and an extremely effective lawmakers, yet most Americans haven’t heard of her. Get to know Rep. Katherine Clark with Boston Magazineper this profile by Tom McGrath.

Trump’s time in office has ended, but that doesn’t mean efforts to hold him accountable should end. The House oversight committee issued a new subpoena to Mazars for Trump’s records and tax returns that would potentially demonstrate conflicts of interest.

A record 330+ classified “leaks” were referred for criminal investigation under Trump’s administration, Ken Klippenstein reports. As a comparison point, the Obama administration referred fewer than 100 from 2014-2016. He notes that the number of people prosecuted for leaking classified information was the same for Trump and Obama. These efforts to fix the plumbing can really be about intimidating people from speaking with the press.

CMF released a new report titled “What Americans Want from Congress and How Members Can Build Trust.” It examines how lawmakers can change their communication practices to better engage with their constituents.

Happy birthday GPO. Celebrate with this short video on 160 years of GPO history.

Coronavirus has hit Alaska’s legislature with 13 of Alaska’s 60 state lawmakers absent or excused from House and Senate floor sessions last Monday. Congress should take note, especially considering that just one Senate absence or eleven House absences would flip the majority and minority parties. We’ve been pushing Congress to go remote during the pandemic, although our focus was on making sure the Legislative branch could continue to function.

ON THE PHRASE “TRUMP INSURRECTION”

What to call it? Calling 9/11 “9/11” was fairly straightforward. Everyone saw the awful destruction, there was a lack of immediate clarity on who did it and why, and the date was the same as the telephone emergency number. What should we call the events of January 6th?

We’ve seen lots of language. Some people are calling it the Jan. 6 insurrection, or the mob attack on the Capitol, or the Capitol riot. We are calling it the “Trump insurrection.”

Truth matters. There is an ongoing disinformation effort around the attack. Some Republicans are trying to cast doubt on who participated (e.g., blaming Antifa or BLM), or that it was an armed attack, or that it was any different from other civil unrest. See, for example, the New York Times’s “How Pro-Trump Forces Pushed a Lie About Antifa at the Capitol Riot” and the Washington Post’s “Rewriting January 6th: Republicans push false and misleading accounts of Capitol riot.”

What happened. President Trump incited an armed mob to attack the U.S. Capitol to stop the certification of the election in which he lost. He elevated the stakes and falsely claimed he had won the election. His allies organized the gathering. Members of the mob included police officers and former military members, some of whom practiced military-style assaults in white nationalist militias. The attack was coordinated and relentless, resulting in many injuries and a few deaths. Many people who attacked the Capitol claimed they did so at Trump’s direction.

The Trump insurrection. Trump was responsible for the attack. Its purpose was to keep him in office. It was coordinated, armed, violent, and aimed at overthrowing the government. In other words, it was an insurrection, and its focus and instigator was Trump. As a matter of clarity, the best way to describe it is the “Trump insurrection.” The other names elide its purpose, what happened, and who is responsible. Calling it by its proper name is not partisan, it is accurate, and failing to do so is a form of political neutrality that disadvantages the truth.

CALENDAR

The House and Senate committee calendars are aggregated here. Should there be House floor activity, it will be here. Information about the Senate floor schedule is here. Select events and proceedings are listed below.

TUESDAY

• R Street is hosting a virtual event titled “Government Accountability: Steps for the 117th Congress” at 12:00 pm ET. RSVP here.

WEDNESDAY

• The Senate CJS Appropriations Subcommittee is holding closed hearings to examine domestic and foreign threats and other challenges facing the Federal Bureau of Investigation at 9:30 am ET.

• House Leg branch approps has a hearing on the 2022 budget requests for GAO and House Officers at 10 am ET.

• HSGAC will consider the nomination of Shalanda Young to be Deputy Director of OMB at 9:45 am ET, although this could change with the strong support for Young to replace Neera Tanden as OMB Director nominee following her withdrawal from consideration last week.

• The House DHS Appropriations Subcommittee is holding a hearing on Modernizing the Federal Civilian Approach to Cybersecurity at 10:00 am ET.

• Senate Judiciary is holding hearings to examine the Supreme Court and the Judiciary at 2:30 pm ET.

THURSDAY

• House Leg branch approps has a hearing on the 2022 budget requests for the AOC and GPO at 10 am ET.

• House Judiciary Subcommittee on Constitution, Civil Rights, and Civil Liberties has a hearing on the Constitutional Framework for Congress’s Ability to Uphold Standards of Member Conduct at 2.

• House Oversight was supposed to hold a hearing on Del. Holmes Norton’s DC statehood bill on March 11 but there is no announcement on the committee website or docs.house.gov.

FRIDAY

House Administration will hold a hearing at noon on funding levels for all House committees (except appropriations, which has its own line item).

DOWN THE LINE

• Sunshine week starts next Monday the 15th.

• Hack the Capitol 4.0 hosted by R Street Institute, the Cyber Bytes Foundation, and the National Security Institute is happening May 4th 9:00 am – 5:30 pm ET. Deadline for papers is April 16.

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