Ensuring a Fair and Accurate Census Act (H.R. 8326) Approved by House Committee in Response to Investigation of Citizenship Question

The House Oversight & Reform Committee passed the Ensuring a Fair and Accurate Census Act (H.R. 8326) on July 20, 2022 by a 25 – 17 vote. The legislation aims to “enhance the independence and transparency of the Census Bureau” and “safeguard [it] from undue influence from political parties.”

The bill’s sponsor, Committee Chair Carolyn Maloney (D-NY-12), described the bill as a response to a memo released that same day about the investigation into the Trump Administration’s attempt to add a citizenship question to the 2020 Census. As the memo concluded, the committee’s investigation “exposed how a group of political appointees sought to use the census to advance an ideological agenda and potentially exclude non-citizens from the apportionment count. Despite experts, statisticians, and stakeholders warning of the threats that a citizenship question could pose to the census, Trump Administration officials pressed forward until the Supreme Court ruled their effort was illegal.”

By contrast, Committee Ranking Member James Comer (R-KY-01) contended that the Act would “make it easier for the Census Bureau to conduct an unfair and inaccurate census” by “eliminating nearly all accountability for the Census Bureau” and reducing the Bureau’s flexibility to adapt in future censuses. Rep. Andy Biggs (R-AZ-05) also criticized the bill, saying that it “more completely delegates Census Bureau responsibility to bureaucracy” instead of Congress. Rep. Jody Hice (R-GA-10) concurred, worrying that the bill would make the census director “unremovable.” He said that, “when the federal bureaucracy is unaccountable, that is when it most threatens to undertake rogue activity… precisely what we are looking at right now as it relates to the census.”

The bill avoids making the Census Bureau an independent agency, something that Chair Maloney told NPR that she knows “both Republican and Democratic administrations” have opposed, but she noted that it provides “strict guidelines, rules, regulations” while keeping the bureau within the Department of Commerce.

During markup, the committee adopted an amendment in the nature of a substitute by voice vote, and rejected amendments (with votes of 18 – 25) from:

  • Rep. Hice that would have deleted the bill’s provisions on causes for removing the director, the director’s duties, the reporting structure, the advisory committees, the requirement that only the director could make changes to the decennial census, and replacement of the director; and
  • Rep. Biggs that would have added a citizenship question to the 2030 Census and every decennial thereafter, as well as changed apportionment to include only citizens.

Much of the debate dealt with arguments over the legality of the citizenship question, interpretations of the Supreme Court case that rejected the citizenship question, the legality of whether to count non-citizens.

Census budget provisions of H.R. 8326

The bill would require the Commerce Secretary to include in the Department’s budget request “the estimated costs of carrying out the duties of the Bureau during the five-year period beginning on the fiscal year covered by such request,” starting in Fiscal Year (FY) 2027, “and each fiscal year thereafter.” Those estimates would also need to be delivered to relevant Congressional committees.

When the President submits the Administration’s budget proposal in the final five years of a decennial census cycle, the director of the Census Bureau would be required to “transmit a report describing any changes to the applicable lifecycle estimate”, including:

  • (A) “The basis for any such changes.”
  • (B) “Projected impacts on response rates, staffing requirements, or costs throughout the lifecycle.”
  • (C) “An explanation of any differences in budgetary resources between the amount requested in the President’s annual budget request and the lifecycle cost estimate, as updated by this paragraph.”

Census personnel and leadership

The Census Bureau Director would be allowed to be removed “only for inefficiency, neglect of duty, or malfeasance in office.”

The director would be specifically tasked with performing “such duties as may be imposed upon the Director by law, regulations, or orders of” the Commerce Secretary and would “report directly to the Deputy Secretary of Commerce.”

Per the Act, any “operational, statistical, or technical decision for any decennial census of population” could only be made by the director.

H.R. 8326 would allow for a single deputy director, appointed by the director to a “career reserved position” and “selected from among any career appointee… at any agency.” The deputy would be required to “possess knowledge of, or experience in, the work of the Bureau, and possess experience in relevant fields, including demography, economics, survey methodology, statistics, or data science.”

The deputy would “perform such functions as the Director shall designate” and serve as acting director of the Bureau in case of “any absence or disability” of the director. “In the event of a vacancy in the office of Director, or when the Director is absent or unable to serve,” the deputy would only “act as Director until a Director is appointed.” Should no individual serving as deputy be available, “the highest level career employee of the Bureau” would instead serve as acting director “until a Deputy Director or Director is appointed.”

H.R. 8326 would also cap the Census Bureau at no more than 3 political appointees, including the director – everyone else would need to be career.

The Act would codify the existing Census Scientific Advisory Committee and the National Advisory Committee on Racial, Ethnic, and Other Populations. The bill would also establish a new 2030 Census Advisory Committee “substantially similar to the 2010 Census Advisory Committee, consisting of up to 20 member organizations to address policy, research, and technical issues related to the design and implementation of the 2030 decennial census and the American Community Survey” and a new Committee on Statistical Quality Standards, “composed of five members to review and provide recommendations on the statistical quality standards of the Bureau that guide the production and release of all Bureau decennial census products.”

Adding questions to the census

Current law, 13 U.S. Code § 141(f), requires the Commerce Secretary, for each decennial and mid-decade census, to submit to the relevant Congressional committees:

  • (1) “not later than 3 years before the appropriate census date, a report containing the Secretary’s determination of the subjects proposed to be included, and the types of information to be compiled, in such census”;
  • (2) “not later than 2 years before the appropriate census date, a report containing the Secretary’s determination of the questions proposed to be included in such census”; and
  • (3) “after submission of a report under paragraph (1) or (2) of this subsection and before the appropriate census date, if the Secretary finds new circumstances exist which necessitate that the subjects, types of information, or questions contained in reports so submitted be modified, a report containing the Secretary’s determination of the subjects, types of information, or questions as proposed to be modified.”

Starting with the 2030 Census, the Ensuring a Fair and Accurate Census Act would prohibit the inclusion of “any subject, type of information, or question that was not submitted to Congress in accordance with” that subsection.

The bill would require biennial reports to congress (also posted on the Bureau website), “no later than April 1 of the calendar year beginning after the date of enactment” that:

  • (i) “describes each component of the operational plan for the subsequent decennial census of population”; and
  • (ii) “includes a detailed statement on the status of all research, testing, and operations that are part of the Bureau’s com4 prehensive plan for the decennial census.”

Along with the reports, the Commerce Secretary would need to deliver “a certification stating that any question that has not appeared on the previous two decennial censuses has been researched, studied, and tested according to established statistical policies and procedures.”

Within six months of the Secretary’s certification, GAO would need to review it and “and submit a report to Congress on whether the questions to be included in the census have been researched, studied, and tested according to established statistical policies and procedures.”

Next steps

The House could consider the Ensuring a Fair and Accurate Census Act (H.R. 8326) on the floor before the end of the year. There is no Senate companion.

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