Forecast for March 23, 2020

The Pope banned public masses, closed Holy Week services, and is encouraging “spiritual communion” when it is unsafe to receive it in person; the New York Stock Exchange has rushed a rule into effect to facilitate electronic auctions in light of the temporary closure of the trading floor; and yet the Speaker of the House and Majority Leader of the Senate are forestalling rules changes to allow the temporary invocation of remote deliberations in either chamber during the pandemic.

At the same time, we’re seeing legislatures disband, from every member of the Georgia legislature in self-quarantine to the Parliament in Victoria, Australia, and many regions in the US are going on lockdown. The trendline is clear.

Addendum: Late Sunday evening, Sen. Rand Paul tested positive for Coronavirus and a number of Republicans began a self-quarantine. This has dropped the operational Republican majority in the Senate to +1R (at the time of this writing). In addition, Donald Trump endorsed remote voting for Congress. This pandemic could shift power in both chambers, the threat of which may finally impel their respective leaders to take another look at remote voting.

Welcome to a very somber First Branch Forecast. We hope that you are staying home and staying safe.

TOP LINE

Will Congress still be able to work? Having Members and staff report to Capitol Hill has become unwise and unsafe. (Not to mention unsafe for the press, custodians, capitol police, and support staff.) Congress must be able to legislate for however long the crisis lasts, so if the choice is between a remote(ly deliberating) Congress and no Congress at all, we pick a remote Congress. It looks like an increasing number of rank and file Members agree.

Remote Senate: Senators Portman and Democratic Whip Durbin introduced a resolution (S. Res 548) to allow Senators to vote remotely in an emergency, which includes language for the emergency period to automatically expire. Rules RM Klobuchar reportedly supports the measure; others Senators are supportive of the goal.

Remote House: Rep. Katie Porter (D-CA) & 50+ representatives, including Rep. Van Taylor (R-TX), urged leadership to allow remote voting during the national emergency; Rules Committee Chair McGovern announced he’s exploring the feasibility of remote voting, and Rep. Swalwell is pushing his longstanding remote voting bill.

What do we propose? Rules changes in both chambers that would allow for the Speaker of the House or Majority Leader of the Senate to declare a 30-day emergency in their respective chambers. The invocation of the emergency would trigger a rule that allows legislators to be deemed present during the emergency if they are present for deliberations and voting via electronic means, such as a video conference where they can be seen and heard. The members would have to vote (remotely) to agree to the emergency, and would be required to vote again to extend it. All proceedings would have to be recorded and live-streamed. Votes would be cast in the video-conference by roll call (or by UC, but members would have an opportunity to object), so that you can see and hear each member as they vote, and the clerk would tally the vote.

The idea that leadership alone alone would stay in DC and do everything by UC with everyone else in the district has been floated, but does anyone really want a triumvirate (or a quintumvirate)? Members of Congress want to be able to do their jobs, and the interests of the leadership and rank-and-file often are not in alignment, or appropriately balanced. Not to mix my metaphors, but it seems unlikely that Members would want to become a Greek chorus. There also may be issues with constituting a quorum in UC circumstances, unless the Senate changes its rules. And UC does not address questions arising from necessary committee deliberations like markups and oversight hearings.

What would a (temporarily) remote Congress look like? Congressional experts discussed the issue on an online forum last week — yes, you can watch the video with Norm Ornstein, John Fortier, Marci Harris, Lorelei Kelly, and me. While there are challenges, the House and Senate can make this work on an emergency basis through rules changes and modern technology. We spell out our recommendations in this letter to Congress and one page memo for state and federal legislators.

Rules of the game: We drafted an extensive review of relevant provisions of the U.S. Constitution, two relevant Supreme Court decisions, House Rules, and Senate Rules, as well as relevant CRS reports, news stories, and efforts to address this in the states and overseas. There are two key SCOTUS decisions—

• U.S. v. Ballin (1892) “The Constitution has prescribed no method of making this determination [of what constitutes the presence of a majority], and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact.” As I interpret it, this leaves room for each House, under their powers to set their own rules, to deem electronic presence as sufficient to identify when a majority is present.

• Christoffel v. U.S. (1949): This case concerned whether a quorum existed in a House committee, and the opinion turned on whether the committee followed its own rules when it held someone in contempt. If the House or Senate change their own rules by their own procedures, both for the floor and the committees, that should insulate them against legal challenges later on that they violated their rules on a quorum.

Telework: Who’s doing it? Despite staffer and Member concerns, leadership in both chambers still have no universal policy for teleworking in Congress, leaving it up to each office to define their policy. (House Admin does have a handy resource page, however.) Our team created a database with every congressional offices’ telework policy. So far, Senate offices are more publicly responsive to the change to telework. The bottom line; most offices have no official public statement on their current work policy, although we are hearing informally that just about everyone is working from home except a skeleton crew.

A massive spark of social distancing has already hit the institution that has always had a culture of in-person communication and problem solving. Members and staffers will have to adjust to even more phone calls, IMs, and video conferences. To help prepare, POPVOX’s Marci Harris is hosting a ‘Mock Remote Markup’ on Tuesday at 11:30 AM, which will game out how a remote hearing (i.e., one by teleconference) might be conducted. By the way, the House’s CAO has approved the following video conferencing software: Office 365, VSee, WebEx, Zoom, and Skype. The Senate SAA has approved Skype. (In our experience, Zoom would work well for committee proceedings — we’re happy to chat about it.)

ON YOUR RADAR:

Taking STOCK, ha, ha, ha. Last week Open Secrets and ProPublica separately reported that Senate Intel Cmte Chair Richard Burr cashed out of the stock market right before it plummeted, selling vacation and travel-related stocks, apparently (but disputed by Burr) based on information obtained through official briefings on the Coronavirus. Other members, like Sens. Loeffler, Inhofe, and Feinstein, may have had a similar pattern of behavior. Burr is notable because he had assured the public that Coronavirus wasn’t that big a deal, and reportedly had in 2009 made similar assurances regarding the financial crisis while instructing his wife to take money out of the bank.

• We filed an ethics complaint regarding Sen. Burr last week, and he subsequently asked the Ethics Committee to investigate. Of course, the Senate Ethics Committee’s annual report said none of the 251 violations in 2019 merited a disciplinary sanction, and there’s many rumblings about its lack of efficacy. Burr is retiring in 2022, so what’s the odds they’ll act in time and not run out the clock?

• It’s possible Senate Majority Leader McConnell, who personally appointed Sen. Burr to Chair the Intel Cmte — it’s a Select Committee — may push Burr off the committee, at least for the duration of the Ethics inquiry and possible SEC investigation, as using public information for private gain isn’t just a violation of Senate rules, but it looks really, really bad.

• The lack of credibility of the House Ethics Committee in the 2000s led to the creation of the Office of Congressional Ethics in 2008, an independent investigatory watchdog that issues public findings and referrals regarding members of the House. OCE, which acts like a grand jury, makes recommendations to the Ethics Committee within a very short timeframe. The Senate has no similar mechanism, but it probably should have an Office of Senate Ethics that works along similar lines.

On domestic surveillance Sen. McConnell couldn’t jam through the House’s Patriot Act extension bill, and when it was clear that he would lose on the underlying bill, reached an agreement to pass a 77 day stop gap extension for 3 expiring authorities in return for allowing 3 amendments from civil liberties advocates and 3 amendments from national security hardliners. The votes pitted leadership, who stopped committee and floor deliberations on pro-civil liberties amendments in both chambers, against a bipartisan group of back benchers who wanted pro-civil liberties provisions considered.

We don’t know when the House and Senate are coming back, or when the Senate will leave, although we’re guessing that’s soon. The quarantine could last weeks or months, but it is necessary for committees to be working now on appropriations, the NDAA, and emergency supplemental legislation — as well as oversight of the administration’s response. And yet…. <sigh>

Public witness testimony for the Senate Appropriations FSGG subcommittee is due Thursday; keep track of all the public witness deadlines here.

CORONAVIRUS: KEEPING CONGRESS OPEN

Like we mentioned at the top, support for remote voting powers is growing. While leadership and staunch institutionalists were originally against the idea, for reasons that House Admin RM Rodney Davis articulated very succinctly to BPC, they’re starting to soften in their opposition. Solutions like conducting votes in shifts have been floated in the House and Senate, but they don’t solve the fundamental problem if it becomes unwise or unsafe for the memers to convene in person.

Congress gives no clear policy on telework. During last week’s district work period, House members stayed removed from constituents and telework because of the coronavirus pandemic. Despite strong support from congressional staffers to shut down Hill offices and work remotely, leadership in both the House and Senate have not set a universal telework policy, leaving the decision to each office individually. For some reason, more Members support telework for exec employees than for leg branch employees.

Which offices are teleworking? Our team created a public spreadsheet and reached out to every Hill office to determine every Members’ telework policy. Unfortunately, only a few have responded, and many offices are not informing the public on whether their DC and district offices are staying open. Here’s the breakdown so far:

  • 86 DC offices have opted to fully telework (20 Senate, 66 House).
  • 14 DC offices are staying open (All House).
  • More than half of congressional offices have no official statement regarding their work policy (either social media or press release).

CORONAVIRUS: APPROPS

The Senate passed a second Coronavirus funding bill last week (90-8), but only after the House passed 90 pages of “technical corrections”—which reportedly significantly altered a portion of the bill. The changes were approved in the House by unanimous consent, which is unusual but possible when House Members are in district during pro forma sessions because there is no minimum quorum requirement for that Chamber. CRS has the details on H.R. 6201.

Are there funds to telework for the long-term? As we’ve previously reported, the underfunding of Congress has left less money for capacity and technology. Congress has the opportunity to rebalance the investment during this year’s Leg. Branch approps bill — but that requires reopening the 302b allocations. A better approach would be to put money for congressional technology modernization and science advice in the Coronavirus supplemental, but we’ve seen so evidence that it’s happening.

Speaking of Leg. Branch $$, how does Congress distribute its funding? Back in 2010, House Office expenses were the biggest ticket item, but a lot has changed over the last decade. What this chart shows you is that nearly everyone is receiving less money than in 2010 — the Capitol Police are the only exception — and everyone is asking for a lot more money for this year. Appropriators have made clear, however, that there’s no new money to go around. Uh oh.

CORONAVIRUS: OVERSIGHT & ACCOUNTABILITY

Oversight for Coronavirus Relief should follow the very successful model used to monitor stimulus funding after 2008. The “government’s most groundbreaking anti-fraud unit” — the Recovery Accountability and Transparency Board — was set up in 2009 to track itemized spending of an $840 Billion economic stimulus package (disbursed by 29 agencies).

The RAT Board (mostly overseen by agency IGs) issued quarterly and annual reports to Congress, as well as “flash reports” for anything requiring immediate attention. The website has been shut down, but it’s an excellent example of oversight and should be revived to monitor coronavirus spending. Their accomplishments include:

  • Completely nearly 3200 audits, inspections and reviews;
  • Recommended better use of $8 Billion in funding and questioned costs of $5 Billion;
  • Resulted in 1665 convictions, pleas and judgments and more than $157 million in recoveries, forfeitures, seizures and estimated savings.

The White House unilaterally asserted that its senior officials working on the Coronavirus response don’t have to testify before Congress, but since when does the Executive Branch get to call the shots on who testifies? And what’s a “senior official” and what does it mean to work on the Coronavirus? If anything, the Executive Branch bungling the Coronavirus response makes Congressional oversight even more necessary. FWIW, if the government is looking to manage and share coronavirus data, Singapore has got the methodology down.

LET CONGRESS BE CONGRESS

Enhancing the science & technology (S&T) expertise available to Congress would help with Coronavirus policy fixes, as well as oversight of the Executive Branch’s emergency response. Experts (virtually) briefed staff last week S&T resources and capacity within the Legislative Branch last week; watch here.

What’s due when: SCOMC edition. A little less than two weeks ago — even though it feels like a year — the House passed H.Res 756, the Fix Congress Committee recommendations package. Our team cataloged all of the legislative support office projects and their due dates into a public spreadsheet. Be on the lookout for updates at the beginning of each month.

Interns in Congress during the pandemic. We reported last week that countless numbers of interns have been called back to their colleges due to the coronavirus. Do you know anyone who has had their internship rescinded during the outbreak? Our friends over at Pay Our Interns want to know. Send an email to info@payourinterns.org.

TRANSPARENCY

GAO released its report on FOIA compliance for fiscal years 2012-2018, and the findings are not good. GAO found that since FY 2012, the FOIA backlog has grown 80% and litigation costs have increased almost 70%; the increases are only partially driven by an increase in requests.

Inexplicably, the FBI is now requiring PAPER MAIL for FOIA requests instead of electronic requests (nor will the FBI send electronic replies). Experts say coronavirus can be transferred through mail delivery, and paper processes are obviously slower. What’s this really about? The FBI doesn’t want to answer FOIAs. (The Justice Department also is apparently seeking new emergency powers to detain people indefinitely without trial; the last time there was a national emergency the Justice Department pushed through the Patriot Act.)

What’s being done to address FOIA backlogs? OGIS released its FY 2019 annual report which has some answers. OGIS IS STILL IN BUSINESS. Reach out to them.

The oldest pending FOIA request was filed back in 1994; to put that in perspective, at the time Newt Gingrich was Speaker of the House and Tonya Harding was a household name.

DHS is improving FOIA processes by releasing its 2020 – 2023 FOIA Backlog Reduction Plan. The plan tackles the underlying causes — decentralization, technology, and resource constraints — to benefit the public and staff, allowing the agency to focus on mission-critical operations. Well done, DHS! Feel free to reach out to the FBI and set them straight. Or, better yet — hey appropriators, seems like this would be a good thing to require.
ETHICS

Former Rep. Duncan Hunter was sentenced to 11 months in prison for illegal use of campaign funds.

GPO’s internal watchdog OIG reviewed the agency’s contingent liabilities to: 1) Understand the magnitude of settlements paid by GPO, and 2) Identify any trends or remarkable issues that could be addressed in order to lower GPO’s liability.

The AOC Inspector General found an employee took agency property for personal use.

ODDS & ENDS

A Capitol Police “posting mistake” — they didn’t post an officer when they thought they had — led to an intruder getting to the outside balcony on the second floor of Capitol and breaking a window near the chamber. Never a dull moment. As always, make sure to read the complete USCP arrest recap.

Reporters are still able to interview Members of Congress in the Capitol; however, journalists have been instructed to take extra precautions. To our journalist friends covering Capitol Hill, please stay safe.

Shout out to the Law Library of Congress for digitizing and publishing their historical law library reports. Speaking of the Library, heads up their in person events are canceled through May 11th.

Rep. Mark DeSaulnier is being treated in a hospital for non-Coronavirus-related pneumonia.

Access to House office buildings is being limited.

CALENDAR

Tuesday

  • Mock Remote Markup, the latest continuity of Congress exercise, will be hosted virtually by Marci Harris of POPVOX at 11:30 am.