Structural Failures
Deferred maintenance to congressional buildings and our system of checks and balances makes failure likely
“Modernizing” Congress is a broad concept: it includes remediating the various hazards in buildings constructed in the 19th and early 20th centuries. Unfortunately, we only get periodic glimpses into the potential dangers lurking in Capitol complex structures. Late this July, the Office of Congressional Workplace Rights published its occupation safety and health report for the 117th Congress. You read that right: the Congress that ended in January 2023.
The most common types of hazards OCWR inspectors found were electrical and exit routes and emergency planning. Some of these, like faulty electrical panels and outlets, can be abated with proper maintenance. Others, like office staff daisy chaining extension cords or plugging too many things into power strips, are because of poor safety practices.
If these electrical issues lead to a fire, however, the risk of catastrophe is greater because inspectors found numerous instances of obstructed or too narrow exit routes, faulty exit doors, and insufficient barriers to the spread of flame and smoke. Frustratingly, many of these problems have been known for a long time. The report highlights four evacuation-related citations in the Capitol, Cannon House Office Building, Russell Senate Office Building, and the Jefferson Building have been open since 2000 and 2001. Some areas of the Capitol building still lack sprinkler coverage, and some stairwells still have fire and egress hazards.
Because these abatements require significant alterations to historic and heavily-trafficked, public buildings, long planning processes are increasing risks of disaster. The Architect of the Capitol has yet to submit a new plan to OCWR for infrastructure changes in the Capitol to allow fires to be compartmentalized, of which the January 6, 2021 attack forced redesign. Similarly, 10 action items in the Russell Building are still open since the approval of a final plan in 2018, including installing fire barriers and updated sprinklers and smoke alarms and building more emergency exits. Fire abatement work is not expected to wrap in the Jefferson Building, which sees 1.5 visitors a year, until the mid-2030s, the report notes.
The OCWR report bears good news in that the number of hazards building inspectors identified in congressional buildings fell by 45% from the 116th Congress, from 2,844 hazards down to 2,105. Almost all of that decline, however, was limited to the two lowest categories of risk OCWR uses to rate hazards. Inspectors found 646 hazards rated in the second-highest risk assessment codes (RAC 2), which include problems with the potential severity to cause “permanent partial or temporary total disability,” only 7 fewer than in the 116th Congress. The most serious hazard identified, and the only top-level risk (RAC 1) found, involved repeated instances of someone covering sprinkler heads in the parking garage of an office building with foil.
The trouble is we don’t know how the pace of work is keeping up with the risks uncovered because information is hard to come by. The report notes that more than two-thirds of abatement orders identified in the 117th Congress were completed by the end of 2024. But how many more were opened in the next Congress?
The data we have doesn’t identify the actual backlog, which is particularly troubling with the AOC slated to receive about $130 million less than enacted FY2025 funding. Nor do we have a detailed perspective on the views of the Architect of the Capitol as they do not make their Congressional Budget Justifications publicly available, unlike other Legislative branch agencies. We are grateful the AOC Inspector General makes their reports available online, but we did not see anything recent on this topic. (The LOC Inspector General has issued a report this July on its preparedness in the case of physical attack, but the report is not public.)
Our suspicion is that there are millions of dollars, if not billions of dollars, of remedial work that must happen on the Capitol campus to address safety and operational issues. This was alluded to during the Senate Legislative Branch Appropriations Subcommittee hearing earlier this year and indicated in the AOC's testimony requesting $1.3 billion "to address critical infrastructure repairs/revitalization as well as safety, security, and modernization efforts across the Capitol complex." We are looking forward to the AOC's efforts to create a priority list and master plan, something that has been discussed for a number of years.
APPROPRIATIONS
The appropriations process over the last several years has seen high-stakes showdowns between the “four corner” leaders – the chairs and ranking members of the Appropriations committees – as well as the "big four" – the leaders of the House and Senate. The most impactful conflict, however, has been between Republican House leadership and the hard-right Republican faction seeking severe social welfare spending cuts. This faction has considered negotiation with Democrats as an anathema. Their implacable demands for deeper cuts crippled and ultimately sank the speakership of Kevin McCarthy in the hopes of replacing him with a Speaker less likely to deviate from the MAGA line. His ultimate successor, Speaker Mike Johnson, also has drawn the ire of his own faction in cutting short-term spending deals.
Even as this group has forced leaders to renege on deals almost as soon as they are reached, Senate Democratic leadership have remained willing to engage in negotiations. This willingness to make concessions trying to placate the hard-right House faction has kept the federal government funded as their political calculations view a government shutdown as a greater risk than what’s given up.
Administration behavior toward appropriated funds, however, changed the dynamics of this teetering process. Democrats count $425 billion in enacted funding that the Office of Management and Budget has (illegally) frozen or canceled. The release of $15 billion in National Institutes of Health research grants was the focal point for related Senate negotiations on expediting confirmation of some Trump nominees, with more nominees being advanced if recissions were halted. Minority Leader Chuck Schumer reportedly only asked for a third of the NIH funding and another $1 billion in withheld foreign aid. Senate leaders reached a deal, and President Trump proceeded to blow it up.
We could ask why in the first place are Senate Democrats negotiating for the release of funds the Administration is legally and constitutionally obligated to spend. Regardless, it is critical to recognize that the White House and House Republican leadership are working as one unit, aligned with OMB Director Ross Vought’s vision of rescissions and impoundments made without Congressional approval. Instead of trying to maximize its leverage against its own party’s leadership to achieve its spending goals as it has in recent cycles, the MAGA faction now is in control and can turn its cudgels on the Senate knowing they can rely on the White House as a partner.
The deals Democrats strike on spending are being made with Darth Vader. Some Democrats, like Sen. Elizabeth Warren, are starting to voice opposition not only to the Lando Calrissian-style dealmaking, but recognize that the linkage between the House and Administration is destroying the separation of powers between the branches of the federal government and one of the core pillars of representative democracy: popular control of the purse.
Nevertheless, the ability to strike such deals remains what many Senate Democrats continue to value in their leadership, strongly suggesting they will continue to fight the previous war. For example, Senate Democrats essentially anointed Sen. Brian Schatz this week to be the new second banana in the next Congress. As Punchbowl explained at the time, Schatz’s vote to advance the unpopular continuing resolution in March was a signal to current leadership that he understood their game.
Will Congress find common ground to keep the government open and protect Congress’s role in setting spending policy?1 The number two House appropriator Mario Díaz-Balart told Politico "That’s really not in the hands of the appropriators…. That’s above our pay grade.”
RESCISSIONS and IMPOUNDMENTS
Not everyone in the Legislative branch has rolled over on the power of the purse. The Government Accountability Office explained this week how the notion of “pocket” recissions, or rescission messages issued to Congress without enough time to respond, is illegal under the Impoundment Control Act (ICA). “A pocket rescission could allow a president to avoid spending the money regardless of whether Congress approves the rescission request,” GAO writes. “This would cede Congress’s power of the purse by allowing a president to, in effect, change the law by shortening the period of availability for fixed-period funds,” which is not an authority granted in the ICA. GAO last issued a decision on the legality of pocket recissions in 2018.
On Lawfare, American Enterprise Institute senior fellow Phillip Wallach takes a longer look at pocket recissions, which he describes as “unwarranted aggression” from OMB.
GAO also released its decision that the NIH impoundments at the center of Senate negotiations on nominations violated the ICA. It is the sixth time that GAO has found the Administration in violation of the ICA, with about another 40 investigations still open. As this sixth ruling dropped, the American Prospect examined the chaotic impact withholding federal funds has had on vulnerable people, particularly those with disabilities.
But alas GAO is offering up to 300 employees voluntary buy outs, according to Punchbowl, "ahead of the uncertainty over how much funding the agency will receive from Congress."
ETHICS
The House Ethics Committee’s working group on improving and modernizing guidance on campaign-related activity is asking for public comment. “Topics may include recommendations for clarifying or modifying the Committee’s rules or guidance regarding the use of campaign resources, the use of official resources for campaign purposes, and staff or Members engaging in campaign activity or fundraising,” the request explains. Submissions are due on August 29.
Congressional ethics rules allow a nonprofit entity to pay for members and staff to travel internationally. Although such trips have become routine (full disclosure:2 I accompanied one to Ireland with the Association of Former Members of Congress), they can be quite lavish when industry or interest groups foot the bill. Indiana University’s Arnolt Center for Investigative Journalism found that members of Indiana’s congressional delegation have accepted $640,000 in privately sponsored international travel for themselves, staff, and spouses since 2020, some of which included five-star accommodations and daily meal spending approaching $500. Former Rep. Larry Bucshon’s week-long trip to Japan with his wife in 2024 cost $35,000. Sounds fun.
Reliable narrator check: Former Rep. Mark Green continues to see nothing wrong with pitching potential investors in a new business while he was a sitting member of Congress, as he did before leaving for said business. We still don’t know what kind of guidance House Ethics was giving him in the process, as he said he requested.
Rep. Corey Mills is accused of threatening to release nude videos of his ex-girlfriend, among other things. He is the subject of an ethics investigation. House Republican leadership apparently wants to let sleeping dogs lie.
ODDS and ENDS
Sens. Klobuchar and Cruz tried to quietly move legislation before the recess intended to protect member security which actually does little to protect members but would significantly harm ethics, oversight, and the press. The legislation, which is a re-hash of a prior effort to amend the NDAA, is intended to empower members to remove personal information off the internet and out of the hands of data brokers. However, its aggressive language would not apply to most data brokers, would impede accountability journalism, and sweeps in many people the law should not reach. Member and staff security is a real concern but as drafted, this bill is a mirage of a solution.
ICE’d out again: Immigration and Customs Enforcement denied a New York congressional delegation access to the Sunset Park Detention Center in Brooklyn. As we keep saying, it’s an illegal and unconstitutional practice.
Doing DOGE’s Work In order to eliminate billions of dollars in improper payments, Congress needs to authorize the sharing of agency and private-sector data with the Department of Treasury. The Foundation for American Innovation’s Dan Lips highlights a bill recently introduced by Sen. Joni Ernst to do so.
Ups and downs: The Library of Congress has added enhanced records of roll call votes in the House since 2023 to Congress.gov. Wednesday, however, some sections of Article I in the Constitution Annotated temporarily disappeared because of a coding error. Reminder to panicky posters: the Constitution is still in effect even if it’s not entirely on Congress.gov. We hope the Library of Congress will learn the right lesson from this event: regular engagement with the public can help mitigate these viral panics. The wrong lesson would be to decrease or make it harder to publish information online.
AI and Accessibility: The Free Law Project hosts the largest online repository of oral argument recordings online on its CourtListener site. Through a partnership with OpenAI, it has been able to transcribe those recordings and turn them into a searchable database. Users even can jump directly to the audio in specific lines of the transcript. This is a powerful application of AI’s transcription capabilities and would be an amazing model for Congress to consider in its video recordings of House and Senate hearings.
Death to the congressional death gratuity.
The AGORA portal for Parliamentary Development recently released a guide for parliaments on citizen engagement, pulling from a range of parliamentary systems.
AI and accountability in parliaments is the focus of an online panel hosted by Bussola Tech on August 15th with the clerks from the Brazilian Senate, the Mexican House, the Angola House, and the South African parliament. If you can't make it, RSVP anyway to get access to video after the fact.
The Office of the Whistleblower Ombuds will have a pop-up tabling event in the newly renovated Rayburn Cafeteria, on August 14th from 12pm to 1:30pm EDT.
Corrections
In last week’s emailed newsletter, we erroneously described a House Modernization Committee effort to modernize how Members engage and interact with constituents. Please allow us to quote directly from their press release: the subcommittee “requested MIA funding for discovery work on a CMS Innovation Project to create a dynamic data platform and vendor ecosystem”
The courts aren’t the answer, either, even as we welcome the D.C. Circuit’s decision this past Saturday declining to allow the Trump administration to keep secret a public database of apportionments that federal law requires OMB to publish. Watch the administration keep on appealing for the purpose, in our view, of concealing the administration’s unlawful impoundments until after the fiscal year has ended.
The perpendicular pronoun refers to Chris Nehls, who wrote this week’s newsletter. Please attribute any errors to Daniel Schuman, who provided the final edits.