From the CRS report, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017 (Nov. 9, 2017 R40879):
A resolution of inquiry is a simple resolution making a direct request or demand of the President or the head of an executive department to furnish the House with specific factual information in the Administration’s possession. Under the rules and precedents of the House of Representatives, such resolutions, if properly drafted, are given a privileged parliamentary status. This means that, under certain circumstances, a resolution of inquiry can be brought to the House floor for consideration even if the committee to which it was referred has not reported it and the majority party leadership has not scheduled it for action.
Although Representatives of both political parties have utilized resolutions of inquiry, in recent Congresses, such resolutions have overwhelmingly become a tool of the minority party in the House. This development has led some to question whether resolutions of inquiry are being used primarily for partisan gain or are unduly increasing the workload of certain House committees. Others have attributed the increase to a frustration among minority party Members over their inability to readily obtain information from the executive branch.
Available data suggest that 28% of the time, a resolution of inquiry has resulted in the production of information to the House. In half of the cases examined here, however, it is simply unknown, unclear, or in dispute whether the resolution of inquiry produced any of the requested information, a fact which might suggest the need for additional investigation of the efficacy of this parliamentary oversight tool by policymakers.
From the introduction to the CRS report, Anti-Money Laundering: An Overview for Congress (Mar. 1, 2017 R44776):
Anti-money laundering (AML) refers to efforts to prevent criminal exploitation of financial systems to conceal the location, ownership, source, nature, or control of illicit proceeds. Despite the existence of long-standing domestic regulatory and enforcement mechanisms, as well as international commitments and guidance on best practices, policymakers remain challenged to identify and address policy gaps and new laundering methods that criminals exploit. According to United Nations estimates recognized by the U.S. Department of the Treasury, criminals in the United States generate some $300 billion in illicit proceeds that might involve money laundering. Rough International Monetary Fund estimates also indicate that the global volume of money laundering could amount to as much as 2.7% of the world’s gross domestic product, or $1.6 trillion annually.
For much more, see Money Laundering: An Overview of 18 U.S.C. § 1956 and Related Federal Criminal Law (Nov. 30, 3017 RL33315). — Joe
It has come to my attention that the Department has in the past published guidance documents- or similar instruments of future effect by other names, such as letters to regulated entities- that effectively bind private parties without undergoing the rulemaking process.
The Department will no longer engage in this practice. Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entiti es outside the Executive Branch (including state, local, and tribal governments). — Jeff Sessions, Attorney General of the United States, Nov. 16, 2017 Memorandum
The DOJ has announced that it will no longer issue guidance on the federal laws it enforces and that it will review existing guidance to identify those that should be rescinded. Lawfare’s Eve Hill writes:
The memorandum is couched in terms of eliminating guidance that circumvents the rulemaking process by imposing new binding obligations on covered entities without notice-and-comment rulemaking. But the instructions of the memorandum go much further – they forbid the Department from using “shall,” “must,” “required,” or “requirement” and require the Department to state that all guidance is non-binding. This effectively muzzles the experts on federal law from explaining how the law applies in specific contexts. It threatens to leave covered entities in the dark when, in good faith, they apply the law to new situations they face on the ground.
Two CRS reports explain the history, evolution and jurisdictions of the House and Senate ethics committees:
From The Trump Administration and the Unified Agenda of Federal Regulatory and Deregulatory Actions (Nov. 29, 2017 R45032):
Donald J. Trump promised that if he were elected President, he would instruct federal agencies to reduce their regulations significantly. As of late 2017, this deregulation was underway in agencies across the federal government.
The Trump Administration’s first Unified Agenda, which was issued on July 20, 2017, and was referred to by the Administration as the “Update to the 2017 Unified Agenda of Federal Regulatory and Deregulatory Actions,” contains information on many deregulatory actions that the Trump Administration has undertaken so far. For example, the Agenda lists 469 actions that agencies have withdrawn since the previous (Fall 2016) edition of the Unified Agenda and 22 major and/or economically significant actions that were reclassified from “active” under the Barack Obama Administration to “long-term” under the Trump Administration. The 2017 Update lists a total of 58 economically significant “active” actions, as compared to 113 such actions that had been published in the Fall 2016 edition.
This report provides an overview of the Unified Agenda, discusses the additional significance of the Unified Agenda in the Trump Administration, provides summary information about content of the 2017 Update, and discusses what additional information can be expected in the subsequent edition of the Agenda.
You can view the current Unifed Agenda here. — Joe
In the past, there have occasionally been funding gaps that led to government shutdowns, the longest of which lasted 21 full days, from December 16, 1995, to January 6, 1996. The most recent shutdown began October 1, 2013, and lasted for a total of 16 full days. Will there be another government shutdown later this month? Perhaps with an abundance of caution, the Congressional Research Service has updated Shutdown of the Federal Government: Causes, Processes, and Effects (RL 34680 Nov. 30, 2017). From the report:
Government shutdowns have necessitated furloughs of several hundred thousand federal employees, required cessation or reduction of many government activities, and affected numerous sectors of the economy. This report discusses
- causes of shutdowns, including the legal framework under which they may occur;
- processes related to how agencies may plan for the contingency of a shutdown;
- effects of shutdowns, focusing especially on federal personnel and government operations; and
- issues related to shutdowns that may be of interest to Congress.
This CRS report is intended to address questions that arise frequently related to the topic of government shutdowns. However, the report does not closely track developments related to the appropriations process for a given fiscal year.
H/T to beSpacific — Joe
The growth generated by the tax proposal is projected to reduce the estimated $1.4 billion revenue loss from the proposal by about $458 billion over the 2018-2027 budget period resulting in a net deficit of $1 billion according to Macroeconomic Analysis Of The “Tax Cut And Jobs Act” as ordered reported by the Senate Committee on Finance on November 16, 2017. — Joe
From Senate Rules Restricting the Content of Conference Reports (Nov. 27, 2017 RS22733):
Two Senate rules affect the authority of conferees to include in their report matter that was not passed by the House or Senate before the conference committee was appointed. Colloquially, such provisions are sometimes said to have been “airdropped” into the conference report. First, Rule XXVIII precludes conference agreements from including policy provisions that were not sufficiently related to either the House or the Senate version of the legislation sent to conference. Such provisions are considered to be “out of scope” under long-standing Senate rules and precedents. Second, Paragraph 8 of Rule XLIV establishes a point of order that can be raised against “new directed spending provisions,” or provisions in a conference report that provide specific items of appropriations or direct spending that were not committed to the conference committee in either the House or Senate versions of the legislation. Both of these restrictions can be enforced on the Senate floor if any Senator chooses to raise a point of order against one or more provisions in a conference report.
The process for disposing of either a Rule XXVIII or a Rule XLIV point of order allows the Senate to strike “out of scope matter” or “new directed spending provisions” from the conference report but agree to the rest of the terms of the compromise. It is not in order, however, for either chamber to alter the text of a conference report, and therefore the process converts the text of the conference compromise minus the “new matter” or “new directed spending provisions” into an amendment.
On Free Government Information, James Jacobs observes that the automatic spending cuts in the GOP’s tax plan could decimate the GPO because its revolving fund for FY18 could be cut $2 millions in 2018 with additional cuts for 10 years. “$2 million doesn’t sound like a lot of money, but GPO only requested $8,540,000 for the revolving fund for FY18. That’s a 25% cut! The revolving fund pays for improvements to GPO’s FDsys (and its successor system, govinfo) as well as other essential IT projects and things like enhancing the cybersecurity of GPO’s IT systems and other necessary physical infrastructure projects.” “With passage of this ‘tax cut’ bill, Jacobs wrote “GPO’s demise is no longer hypothetical. What will FDLP libraries do in that case? Does GPO have a formal succession plan or escrow arrangements (key components of a Trusted Digital Repository audit!)? And what will FDLP libraries do to maintain critical access to and preservation of government information going forward?” — Joe
On December 30, 2012, President Obama signed H.R. 5949, the Foreign Intelligence Surveillance Act (FISA) Amendments Act Reauthorization Act of 2012, which extended Title VII of FISA until December 31, 2017. Two bills that amend and reauthorize Title VII are currently pending in Congress:
- S. 2010, the FISA Amendments Reauthorization Act of 2017, as reported by the Senate Select Committee on Intelligence on October 25, 2017, S. Rept. 115-182; and
- H.R. 3989, the USA Liberty Act of 2017, as ordered to be reported by the House Judiciary Committee on November 8, 2017.
Summaries of the provisions of S. 2010 and H.R. 3989, organized by general topic, along with brief descriptions of current law relevant to the proposed legislation are provided in this CRS memorandum. — Joe
From the summary of The Net Neutrality Debate: Access to Broadband Networks (Nov. 22, 2017 R40616):
As congressional policymakers continue to debate telecommunications reform, a major discussion point revolves around what approach should be taken to ensure unfettered access to the Internet. The move to place restrictions on the owners of the networks that compose and provide access to the Internet, to ensure equal access and nondiscriminatory treatment, is referred to as “net neutrality.” While there is no single accepted definition of “net neutrality,” most agree that any such definition should include the general principles that owners of the networks that compose and provide access to the Internet should not control how consumers lawfully use that network, and they should not be able to discriminate against content provider access to that network.
The FCC’s move to reexamine its existing open Internet rules has reopened the debate over whether Congress should consider a more comprehensive measure to amend existing law to provide greater regulatory stability and guidance to the FCC. Whether Congress will choose to address more comprehensive legislation to amend the 1934 Communications Act, to provide a broad-based framework for such regulation, remains to be seen.
From the summary of the CBO’s Reconciliation Recommendations of the Senate Committee on Finance:
The staff of the Joint Committee on Taxation (JCT) estimates that enacting the legislation would reduce revenues by about $1,633 billion and decrease outlays by $219 billion over the 2018-2027 period, leading to an increase in the deficit of $1,414 billion over the next 10 years. A portion of the changes in revenues would be from Social Security payroll taxes, which are off-budget. Excluding the estimated $27 billion increase in off-budget revenues over the next 10 years, JCT estimates that the legislation would increase on-budget deficits by about $1,441 billion over the period from 2018 to 2027.
For an analysis see this Washington Post story. — Joe
Much is written on this topic, and Cybersecurity: Cybercrime and National Security Authoritative Reports and Resources (Nov. 14, 2017 R44408) directs the reader to authoritative sources that address many of the most prominent cybersecurity issues. The annotated descriptions of these sources are listed in reverse chronological order, with an emphasis on material published in the past several years. This report includes resources and studies from government agencies (federal, state, local, and international), think tanks, academic institutions, news organizations, and other sources. — Joe
Article I, Section 5, of the United States Constitution provides that “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” According to the Senate’s Expulsion and Censure page, since 1789, the Senate has expelled only fifteen of its entire membership. Of that number, fourteen were charged with support of the Confederacy during the Civil War. In several other cases, the Senate considered expulsion proceedings but either found the member not guilty or failed to act before the member left office. In those cases, corruption was the primary cause of complaint.
According to the CRS report Recall of Legislators and the Removal of Members of Congress from Office (Jan. 5, 2012 RL30016), “While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one’s official position. Each house has broad authority as to the grounds, nature, timing, and procedure for an expulsion of a Member. However, policy considerations, as opposed to questions of authority, have appeared to restrain the Senate and House in the exercise of expulsion when it might be considered as infringing on the electoral process, such as when the electorate knew of the past misconduct under consideration and still elected or re-elected the Member.” — Joe
From the summary of Government Printing, Publications, and Digital Information Management: Issues and Challenges (Nov. 8, 2017 R45014):
In light of the governance and technological changes of the past four decades, a relevant question for Congress might arise: To what extent can decades-old authorities and work patterns meet the challenges of digital government information? For example, the widespread availability of government information in digital form has led some to question whether paper versions of some publications might be eliminated in favor of digital versions, but others note that paper versions are still required for a variety of reasons. Another area of concern focuses on questions about the capacity of current information dissemination authorities to enable the provision of digital government information in an effective and efficient manner. With regard to information retention, the emergence of a predominantly digital FDLP may raise questions about the capacity of GPO to manage the program given its existing statutory authorities.
These questions are further complicated by the lack of a stable, robust set of digital information resources and management practices like those that were in place when Congress last considered current government information policies. The 1895 printing act was arguably an expression of the state of the art standard of printing technology and provided a foundation which supported government information distribution for more than a century. By contrast, in the fourth or fifth decade of transitioning from the tangible written word to ubiquitous digital creation and distribution, the way ahead is not as clear, due in part to a lack of widely understood and accepted standards for managing digital information.
This report examines three areas related to the production, distribution, retention and management of government information in a primarily digital environment. These areas include
the Joint Committee on Printing;
the Federal Depository Library Program; and
government information management in the future.
From The North Korean Nuclear Challenge: Military Options and Issues for Congress (Oct. 27, 2017 R44994):
North Korea’s apparently successful July 2017 tests of its intercontinental ballistic missile capabilities, along with the possibility that North Korea (DPRK) may have successfully miniaturized a nuclear warhead, have led analysts and policymakers to conclude that the window for preventing the DPRK from acquiring a nuclear missile capable of reaching the United States is closing. These events appear to have fundamentally altered U.S. perceptions of the threat the Kim Jong-un regime poses to the continental United States and the international community, and escalated the standoff on the Korean Peninsula to levels that have arguably not been seen since 1994.
A key issue is whether or not the United States could manage and deter a nuclear-armed North Korea if it were to become capable of attacking targets in the U.S. homeland, and whether taking decisive military action to prevent the emergence of such a DPRK capability might be necessary. Either choice would bring with it considerable risk for the United States, its allies, regional stability, and global order. Trump Administration officials have stated that “all options are on the table,” to include the use of military force to “denuclearize,”—generally interpreted to mean eliminating nuclear weapons and related capabilities—from that area.
In this report, CRS identifies seven possible options, with their implications and attendant risks, for the employment of the military to denuclearize North Korea. These options are
maintaining the military status quo,
enhanced containment and deterrence,
denying DPRK acquisition of delivery systems capable of threatening the United States,
eliminating ICBM facilities and launch pads,
eliminating DPRK nuclear facilities,
DPRK regime change, and
withdrawing U.S. military forces.
These options are based entirely on open-source materials, and do not represent a complete list of possibilities. CRS cannot verify whether any of these potential options are currently being considered by U.S. and ROK leaders. CRS does not advocate for or against a military response to the current situation.
Once released (tomorrow?), the tax treatment of pass-through businesses in the House’s tax cut legislation will play an important role in reducing the tax liability of more than half of all US business income. Here’s an excerpt from the CRS report, Who Earns Pass-Through Business Income? An Analysis of Individual Tax Return Data (Oct. 24, 2017 R42359):
Pass-through businesses—sole proprietorships, partnerships, and S corporations—generate more than half of all business income in the United States. Pass-through income is, in general, taxed only once at the individual income tax rates when it is distributed to its owners. In contrast, the income of C corporations is taxed twice; once at the corporate level according to corporate tax rates, and then a second time at the individual tax rates when shareholders receive dividend payments or realize capital gains. This leads to the so-called “double taxation” of corporate profits.
This report analyzes individual tax return data to determine who earns pass-through business income. The analysis finds that in 2011 over 82% of net pass-through income was earned by individuals with an adjusted gross income (AGI) over $100,000, although these taxpayers accounted for just 23% of individual returns with pass-through income. A significant fraction of pass-through income is concentrated among upper-income earners. Taxpayers with an AGI over $250,000, for example, received 62% of pass-through income, but accounted for just over 6% of returns with pass-through income. Individuals with an AGI in excess of $1 million earned about 32% of pass-through income, while filing roughly 1% of all returns with pass-through income.
From Overview of “Travel Ban” Litigation and Recent Developments (Oct. 23, 2017 LSB10017):
This Sidebar provides an overview of the series of three executive actions (the first two taking the form of executive orders, and the third issued as a presidential proclamation) commonly referred to as the “Travel Ban,” which restrict the entry of specified categories of non-U.S. nationals (aliens) into the United States, and the litigation related to those executive actions.
To date, none of the three iterations of the Travel Ban has fully gone into effect as a result of court orders limiting their implementation. The most recent version of the Travel Ban did not alter an earlier version’s 120-day pause on refugee admissions into the United States (currently set to expire on October 24). However, the newest iteration modified the scope and duration of travel restrictions on foreign nationals from five countries covered by earlier versions of the Travel Ban (Iran, Libya, Somalia, Syria, and Yemen) and imposed new travel restrictions on certain aliens from three additional countries (Chad, North Korea, and Venezuela).
For background see Overview of the Federal Government’s Power to Exclude Aliens (Sept. 27, 2017 R44969). — Joe
On Free Government Information James Jacobs reports on the following development and calls for action opposing this proposed change:
The Federal Register is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. There’s a particularly damaging bill, H.R. 195: Federal Register Printing Savings Act of 2017, winding its way through Congress, having already passed the House, reported out of the Senate Committee on Homeland Security and Governmental Affairs and is pending action and vote on the Senate floor. If passed, the bill — “To amend title 44, United States Code, to restrict the distribution of free printed copies of the Federal Register to Members of Congress and other officers and employees of the United States, and for other purposes” — would restrict the printing of copies of the Federal Register only to Members of Congress and Government officials.
What’s even worse, FGI sources say that Missouri Senator Claire McCaskill (D-MO) is set to propose an amendment to HR 195 that would eliminate the printing not only of the Federal Register, but of copies of congressional hearings, committee reports, and bills, resolutions, and amendments in both the Senate and the House.
A snip from the CRS Insight, Attack on U.S. Soldiers in Niger: Context and Issues for Congress (Oct. 5, 22017 IN10797):
On October 4, four members of U.S. Special Operations Forces were killed and two wounded in an attack in western Niger, an emerging hot spot of Islamist extremist activity. The Defense Department (DOD) stated in a briefing on October 5 that the U.S. servicemembers were “conducting an advise and assist mission” with local counterparts, several of whom were also killed. The identity of perpetrators has not been confirmed. The incident has highlighted evolving security threats in West Africa’s Sahel region, as well as the growing presence of U.S. military forces engaged in counterterrorism support in Africa. The situation in Niger poses issues for Congress pertaining to oversight of U.S. policy toward fragile states in the Sahel, U.S. security assistance and foreign aid, and U.S. counterterrorism activities abroad. If an Islamist armed group was responsible, as some reports suggest, this would be the first known incident in which such a group has killed U.S. soldiers on active duty in the Sahel.