TOP LINE
In case you need a reminder…it’s Monday again; we hope everyone is feeling well and hanging in there. This week’s First Branch Forecast focuses on continuity of Congress and the emergency Coronavirus bill, which are inextricably linked. We also have some important reads in our Oversight & Transparency + Odds & Ends sections as well as a discussion of presidential signing statements.
CONTINUITY OF CONGRESS
The House and Senate have left the (Capitol) building. Senators are scheduled to return on April 20th and there is no date certain when the House comes back. It could be longer, especially with an increasing number of staff and Members testing positive for COVID19, tightening travel panels, and exponential infection rates. GovTrack is tracking self-isolating Members. At least 49 lawmakers have either tested positive or self-quarantined since the pandemic began.
How will committees deliberate over the break? Congress must adjust if it’s going to handle essential legislative business like FY 2021 approps bills and the NDAA, not to mention additional Coronavirus emergency legislation, traditional legislation, approving nominations, and conducting oversight.
When Congress is away, the executive will play, this time with the issuance of a Presidential Signing Statement that would gag the Stimulus Bailout Inspector General and undermine congressional oversight. Read the statement here. We’ve got more on this in the Bailout Oversight and Signing Statement sections. How can Congress stay in business when it’s not in town during this emergency?
Instituting remote proceedings would help. We have been arguing that the House and Senate should update their respective rules to allow for the option of remote deliberations for when they cannot meet in person but must be able to transact business. I feel a little like Dr. Seuss, here: we’ve written a letter, a brief memo, too, hosted a Zoom conference on just what to do. We’ve said it with Marci, who modeled a hearing, and in an op-ed that’s somewhat endearing. We’ve talked to Politico, and in Roll Call too, on Twitter we fritter and FCW too. Norm Ornstein agrees, and Dellinger does too, as does the Post’s Ed Board, which was quite a coup. Our research is wide and we’ve lost lots of sleep; we believe that a Congress is something to keep.
As things stand, House and Senate Rules require in person convening to conduct business, which means there is a single point of failure. Efforts to work around those provisions, such as by unanimous consent or voice votes, are not really tenable, as was illustrated by Rep. Massie on Friday. Not everyone agrees, but our position is that temporary remote voting, invoked only in emergencies and under limited circumstances, is preferable to a weakened Congress that is largely unable to act.
Congressional (in-) action. Rank and file Members from both sides of the aisle in the House and the Senate are pushing for remote voting capabilities. Sens. Portman and Durbin’s resolution currently has 16 co-sponsors and Rep. Porter’s bipartisan letter to House Rules has almost 70 co-signers as of March 23.
• The biggest stumbling blocks are Speaker Pelosi and Majority Leader McConnell, who have been reported as opposing remote proceedings and did not permit changes to their respective chambers’ rules before departing town, which puts Congress in a precarious position. (When can they safely come back?) Speaker Pelosi’s tone has softened, saying remote voting may be an option in the future — i.e., after the Coronavirus supplemental vote — although we have to see if her position has evolved. House Members were reportedly irate and fearful after being forced back to vote in person on Friday.
• House Rules Dems issued a report on Voting Options During the COVID-19 Pandemic, per a request from the Speaker. The Report could best be described as drafted quickly and reflecting a political calculus more than aristotelian logic. We issued a report analyzing the Rules Dems’ report. Among our findings: (1) The Report did not analyze remote voting by teleconference; (2) the Report did not contemplate an extended absence from the Capitol; (3) the Report did not evenly weigh the alternatives; and (4) The Report did not address committees. Lest too much be read into the Rules Dems’s Report — which could be charitably understood as singularly focused on remote voting on the Coronavirus bill — Rules Chair McGovern himself told CSPAN that remote voting is still being considered in the case of the pandemic lasting months or longer.
Congress has examples to follow should it wish to move to remote proceedings. Several states have moved legislation to permit remote voting on their chamber floors, with New Jersey holding remote voting this past Wednesday; South Dakota set to meet remotely next week; the Wisconsin Senate conducting dry runs; and many other states that have introduced or passed new legislation on this point (NCSL has a partial list, although we know they’re missing the California Senate.) Internationally, the European Parliament has moved to remote voting, and other countries are implementing their emergency rules or crafting new ones.
• Some committees are starting to lead. The Senate Appropriations Committee is considering virtual hearings, the Senate Armed Services Committee is implementing paper hearings and “exploring other ways to continue these critical oversight function,” and we are hearing rumblings from committees in both chambers. If you are on a committee and are looking for advice on how to implement, please reach out.
• There’s also teleworking. Congressional district offices are finding new ways to serve constituents while working from home. During its “How to Manage A Congressional Office Remotely During A Crisis” webinar last week, CMF polled the over 100 Congressional staffers present to find out how offices are responding to changes in daily workflow:
— 50% of offices are conducting nearly all of their work remotely;
— 66% of staff can engage in video calls;
— 95% of offices are responding to email campaigns from constituents and groups;
— 69% are able to conduct virtual meetings with community leaders through video; and
— 86% of offices conduct telephone town hall meetings with constituents.
• CAO and SAA. We are also hearing murmurs of approval for the CAO and SAA, which are moving forward in supporting new technologies. We’ve been told (but have not confirmed) that the CAO has now approved Slack and that the Senate SAA has approved Zoom. Let us know what you’re hearing. Also, many offices are successfully using remote meetings to keep their workflow going. By the way, we recommend that all personal offices use Signal for text messages — you can set up groups — as it is comparatively secure.
CORONAVIRUS SUPPLEMENTAL
Congress passed a $2 trillion supplemental spending bill to address the Coronavirus last week. The process was unorthodox to say the least —
Senators passed the bill before Senate Leadership made its text publicly available — and moments after leadership shared the text with senators by email. Neither senators nor the public had an opportunity to understand the almost 900 page bill, which was drafted with lobbyist input. There’s already been a lot of surprises, like DC getting short-changed on funding, college kids who are claimed as dependents being ineligible for financial support, and (probably) McConnell slipping in a provision to benefit sunscreen manufacturers in his home state.
The House may have read the bill text, but because House leadership wanted to operate by either Unanimous Consent or Voice Vote, there was no opportunity afforded to members to amend the legislation. The Hose was, effectively, a rubber stamp. And because of the House’s posture during the negotiations — out of town and unable to deliberate or pass its own text — it’s likely that the House was not as effective as it could have been in shaping the bill’s contents. Some staff have described this process as a leadership “power play.”
Unfortunately, the Coronavirus supplemental bill had very little money for Congress, even though the Legislative Branch needs more emergency funding to move to a teleworking + remote deliberation posture, to continue building and finalize tech to support legislative deliberations (like remote bill co-sponsorship tools), and to conduct oversight of the $2T in new expenditures. The relief package included $93.1 million for Leg. Branch, or roughly 1/20,000th of the funds. This includes $25m for the House, $25m for the Architect, $20m to GAO, $10m for the Senate; $12m to the Capitol Police, $400k for the Attending Physician, and $700k for the Library of Congress. To put this in context, the Kennedy Center got $25m; the National Endowment for the Arts and the National Endowment for the Humanities each got $75m.
Oddly, the House encouraged members to make statements on C-SPAN so that they could use the cable-funded TV network to express their opinions on the bill. While it is great that C-SPAN has graciously volunteered to maintain the permanent historical archive of these videos — thank you, C-SPAN — we respectfully suggest that it is the House’s job to do this. If the House would not allow a recorded vote, they should have used their own recording studio or mobile cameras to record Member statements and subsequently enter them into the Congressional record.
BAILOUT OVERSIGHT
Here’s how is Congress will track this unprecedented expenditure (H/T to POGO’s Liz Hempowicz and BGov’s team for their reporting & analysis):
• A special Inspector General housed within the Treasury Department will be appointed by the President and confirmed by the Senate (tbd how if they’re unable to convene); see Sec. 4018.
• A Congressional Oversight Commission will oversee pandemic-related activities of the Treasury and the Fed. The Senate Majority Leader & the Speaker will appoint a Chair to the committee; the three of them plus the House & Senate Minority Leaders will jointly appoint the Commission members. See Sec. 4020.
• Transparency requirements for the Treasury including disclosure of transactions on a public website in plain language; see Sec. 4026.
• A Pandemic Response Accountability Committee will oversee loans & funds given to non federal entities. The committee will be housed within CIGIE and have the power to compel testimony via subpoena. This provision creates a RAT-Board-like entity, which we think is a smart move.
• There are a couple oversight provisions we are concerned about. For example, see Sec. 4009, which temporarily exempts the Fed from provisions of the Government in the Sunshine Act and the conflicts of interest provision.
SIGNING STATEMENTS
Trump’s Presidential Signing Statement on the Coronavirus creates big problems as it undermines the implementation of duly enacted federal law and strikes at Congress’s ability to legislate and conduct oversight.
The Signing Statement (read it here) contains the following congress-undermining provisions:
• Undoes the requirement that CIGIE consult with Congress regarding the appointments of the Executive Director and Deputy for the newly formed Pandemic Response Accountability Committee.
• Refuses to allow the new Special Inspector General for Pandemic Recovery to request information from other government agencies and report to Congress when those requests are unreasonably refused, and instead requires presidential supervision before the SIGPR communicates with Congress
• Refuses to request Congressional committee approval prior to reallocating certain funds.
• Refuses to implement provisions requiring reports to Congress of proposals to amend legislation, putting the question of whether to make the requests in the hands of the presidency.
Signing statements are an extra-legal assertion that the president will either interpret the law more narrowly than Congress intended or fail to follow the law through non-compliance. Signing statements first started being issued in a significant way for the purpose of undermining Congress in the Reagan administration. See this exhaustive 2012 CRS report for more; note the section on direct reporting requirements to Congress. It’s worth noting that AG Barr, back when he was at the Office of Legal Counsel, wrote an OLC opinion that asserted 10 bases for these statements to undermine congressional authority. (Yes, they’re written by the Office of Legal Counsel at the Justice Department.)
FWIW, here’s how CRS defines a presidential signing statement. (Waring: wordy!) “Presidential signing statements are official pronouncements issued by the President contemporaneously to the signing of a bill into law that, in addition to commenting on the law generally, have been used to forward the President’s interpretation of the statutory language; to assert constitutional objections to the provisions contained therein; and, concordantly, to announce that the provisions of the law will be administered in a manner that comports with the administration’s conception of the President’s constitutional prerogatives.”
The American Bar Association has pushed back on signing statements in the past, issued a report in August 2006 that it will “oppose, as contrary to the rule of law and our constitutional system of separation of powers, a President’s issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.” In short, they say if the president doesn’t like a law, the president should either veto it or follow it.
Modern presidents as users of signing statements. Per CRS:
• President Reagan issued 250 statements, 34% contained objections to its provisions
• President George H.W. Bush issued 228 statements, 47% raising objections
• President Clinton issued 381 statements, 18% raising objections
• President George W. Bush issued 161 statements, 79% raising objections
• President Obama issued 20 statements in his first four years, 50% raising objections.
CRS notes that for President George W. Bush, his signing statements often contained multiple objections per statement, resulting in more than 1,000 challenges of distinct statutory provisions. Georgia State Law Professor Neil Kinkopf wrote the major paper on presidential signing statements in 2006.
Congress is in a jam. There are many ways for Congress to push back on signing statements, including holding hearings, holding up appropriations or putting in riders, grilling administration witnesses, holding up nominations, holding other legislation hostage, zeroing out executive branch staffer pay, litigation, and impeachment. But with Congress out of business for the foreseeable future, the executive branch will be able to implement the Coronavirus bill with little fear of Congressional oversight.
This has happened before, and there’s a number of legislative proposals to address presidential signing statements. Senator Grassley, for example, cosponsored S. 875 in the 111th Congress, which would allow congressional intervention in cases arising from signing statements. Rep. Sheila Jackson Lee introduced H.R. 258 in the 111th Congress, to simply prohibit the use of funds to produce, publish, or disseminate presidential signing statements. (This would also make a great approps rider.) Former members Water Jones + Barney Frank introduced H.R. 149 in the 111th Congress, which would require congressional notification when signing statements are issued and compel executive branch testimony. A cursory check suggests there are no bills currently introduced in the 116th Congress on signing statements, although we do note that Sen. Grassley is now the Chair of the Senate Judiciary Committee and Rep. Jackson Lee serves on the House Judiciary Committee and in the Democratic leadership.
Related Resources: CRS lays out oversight provisions in the previous Coronavirus response bill; the Library of Congress is compiling Coronavirus related resources like legislation, presidential actions, CRS reports, etc.
OVERSIGHT & TRANSPARENCY
Recent reports from the Architect of the Capitol’s watchdog addressed allegations that an employee was using paid leave to cover absences resulting from a DUI (substantiated), and a second report addressed the Capitol Power Plant Cogeneration Facility’s cybersecurity posture. The latter was done at the request of the Committee on House Administration, contained four findings and eight recommendations, but the report was not published, citing “the sensitive nature of this evaluation.” BTW, Congress spends $695.9 million, (more than 10%) of its annual budget on the AOC, and almost $100 million of that goes to the power plant.
Alex Howard cautions against infringing on peoples’ data privacy to fight the spread of coronavirus, pointing to surveillance authorities granted post 9/11 that still remain in place as a cautionary tale.
More member insider trading news came out last week; we could use an Office of Senate Ethics right about now.
Mark Meadows: Congressman or Acting Chief of Staff? The line is blurred.
With a pandemic to address, the White House may try to expand ever-growing emergency powers. For example, DOJ recently asked Congress to grant chief judges the power to detain people indefinitely without trial during emergencies. CRS clarifies what the President can and can’t do in an emergency.
The FOIA Advisory Committee is looking to fill open positions in its Technology Committee to help explore how tech can help improve the FOIA process.
ODDS & ENDS
Sad news. Former Sen. Tom Coburn has died. Known as Dr. No, he was an ally of government accountability and transparency, and I had the pleasure of working with his office. While known for opposing spending, he approved of spending more money on the GAO. He co-sponsored legislation with then Senator Obama to publish federal grants and contracts online, a version of which ultimately became law.
Members in the spotlight: CA. Rep. Katie Porter has been one of the rising freshman stars in the House. WaPo published a very nice birthday present for Speaker Pelosi.
Capitol Police arrest numbers are declining, with 4 incidents reported this week. This is likely a result of increasing social distancing in DC as Coronavirus becomes more prevalent. Even with these concerns, Capitol Police leadership denied a request from the officers’ union to test for the Coronavirus: “No USCP officers have been identified to be at high risk and no testing required.”
A man who made death threats against Speaker Pelosi and posted that “Democrats were terrorists and should be shot on sight” was arrested last week.
GAO is hiring for its STAA team.
Calling all techies, the government needs your help.
The National Commission on Service, at Congress’s request, reviewed the Selective Service System and recommended changes to USAJobs and further expansion of the service to include more women.
If you’re not too burnt out reading about Congress’ response to our current pandemic, make sure you read about how Congress handled the Great Influenza.
BOTTOM LINE
My elementary school music teacher, whose name is now lost to me, used to say that “Concert means together.” Watch these Berklee College of Music students record a Burt Bacharach song while in quarantine, telling us what the world needs now. The trick to working remotely, as it turns out, is simply taking the time to listen to one another.
