Forecast for April 6, 2020.

TOP LINE

It’s been another never-ending week. We hope that you’re staying healthy and staying at home. This issue focuses on continuity of Congress, protecting whistleblowers, mass surveillance, and coronavirus “oversight.” 

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CONTINUITY OF CONGRESS

The order to keep the Capitol closed to the public has been extended through May 1st; while the Capitol complex will stay open for lawmakers, staff, reporters, and official business visitors, the House Sergeant at Arms has encouraged Members and staff to stay in their homes. In theory, the House and Senate will come back on April 20, but leadership is telling Members to keep their schedules flexible, states are directing people to shelter in place, and it’s tough to imagine people coming back 4 days after deaths in the US hit their apex, with Maryland expected to hit peak until April 28 and Virginia on May 20. Congress should be an example of how to behave, not an exception.

The House and Senate cleared out before changing their rules to allow remote voting, regarding which the NYT Editorial Board opined this weekend that “it is time for Congress to get serious about the issue.” The Washington Post Editorial Board called for remote voting on March 23, and we called for it in the Fulcrum on March 11. (I believe three opinion articles are called a trend.) We rounded up the legislative efforts on remote voting last week and are tracking where every member stands on remote voting.

Two important members stand against remote voting: Speaker Nancy Pelosi and Maj. Ldr. Mitch McConnell. Fox’s Chad Pergram reports that Spkr. Pelosi requested House Rules Dems put out a remote voting report “not so much to explore alternatives to in-person convergences — but to demonstrate the colossal undertaking of implementing an e-Congress.” That report had significant omissions and we believe it overstated many of the difficulties, which we wrote about in our own analysis.

Ironically, the unwillingness to give Congress the option of remote voting has undercut leadership priorities. Spkr. Pelosi’s declaration that she’s creating a Coronavirus Select Committee is tantamount to a press release, as she lacks the power to create a select committee without a vote, and the only votes that can happen right now require unanimous consent, which isn’t likely. Similarly, all the talk about another rescue package is happening against the backdrop that committees cannot meet, the floor cannot vote, and the notional date to pass such legislation, the end of April, bumps up against the danger of returning. And, of course, Maj. Ldr. McConnell’s efforts to get older judges to retire so he can replace them with much younger ones cannot happen if the Senate is unable to confirm appointments. If Spkr. Pelosi and Maj. Ldr. McConnell do get to move this business forward, it is only by further centralizing power, which is a significant driver of congressional dysfunction.

The executive branch has noticed. On Friday night, Trump sacked the Inspector General for the Intelligence Community in what appears like retaliation related to Ukraine (“I thought he did a terrible job,”) prompting a statement from the Chair of CIGIE (the IG council) praising Michael Atkinson. This appears part of a broader effort to undercut agency Inspectors General. We agree with POGO that IGs should only be able to be removed with cause, and that the law should be updated. (We also wonder whether Congress could offer Atkinson a job, given he actually has conducted substantive oversight of the IC, unlike certain intelligence committees.) This follows a presidential signing statement where the president declared he would not follow some provisions in the third Coronavirus bill; we’ve published a round-up of all bills and hearings held in Congress on presidential signing statements over the last 15 years. Some could serve as a model for new legislation.

The states are leading on remote proceedings. According to NSCL, at least 14 states (including DC) have recently taken action to allow remote participation, through changing their rules or passing new ones. Several chambers are holding remote voting sessions for the full chamber — including the Arizona House, New Jersey Assembly, both chambers in Pennsylvania, and South Dakota — although the implementation varies. We co-hosted a briefing on Friday, along with the State Innovation Exchange, for state legislators: you can watch it here. Besides our two organizations, it included Rep. Katie Porter and PopVox CEO Marci Harris.

Overseas. The Speaker for the UK House of Commons called for a ‘virtual Parliament’ — read the letter — prompted in part by a letter from 100 MPs, and the PM held a digital cabinet meeting. The Interparliamentary Union is keeping a running list on changes in behavior in parliaments around the world.

ON YOUR RADAR

Congress is (remotely) moving forward on the NDAA: The Senate Armed Services tried out a “paper” hearing last week and House Armed Services is exploring holding hearings via written communication and teleconferencing, with the April 30th in-person markup delayed due to the pandemic. We applaud them for their initiative even as we acknowledge that, oftentimes, the best part of these proceedings are when a witness is surprised and pushed off script.

Zoom Zoom Zoom. The web-conferencing platform Zoom is in the news right now, and Zoom is approved for use in both chambers. Complaints that Zoom is unsecure is odd considering it’s U.S. government policy to be able to eavesdrop on all communications, and phone lines (one way of connecting to Zoom) are insecure. (See the section below on domestic surveillance.) Zoom has gotten credit for quickly addressing some of the publicly-reported concerns, made a number of improvements to the platform, and put out this handy guide to keeping out unwanted participants. Our advice: what’s the threat model? If you’re using Zoom for a public hearing or markup, it’s fine, you don’t need to keep the contents of the communication secret. If you want to call someone securely (on a budget), install Signal.

Appropriations. Hearings are on hold for nowbut as far as we know public witness testimony deadlines haven’t changed; the Senate Leg. Branch public witness testimony deadline is May 1st. (We don’t have the deadlines for Member offices).

• Bored? Browse our new database of Leg. Branch appropriations documents for the last eight congresses; it’s a work-in-progress containing budget requests, official hearing records, final legislative text, and more. (What’d we miss? Let us know!) The Leg. Branch Subcommittee has included fantastic reform measures in past years’ bills; check out the items due in April.

• ICYMI, there was a tiny pot of money for the Leg. Branch in the third Corona supplemental — see what the funding went towards here. One thing that money’s not paying for? Member pay raises, contrary to reporting by USA Today, as it is prohibited by the 27th Amendment.

DOMESTIC SURVEILLANCE

The FBI dodged procedures meant to protect against abuse of surveillance authorities, according to the new DOJ IG report on FISA. The FBI must keep a “Woods file” containing documentation for every factual assertion in a FISA application; the IG found that 4 of 29 had no Woods file at all and the vast majority of those files had problems. Notably, why didn’t the House and Senate Intel Committees figure this out years ago? What else have they missed?

Section 215 of the Patriot Act lapsed on March 15th. As you may recall, Pelosi circumvented pro-civil liberties amendments and ultimately yanked the bill out of the relevant House committee before jamming a vote on the floor; a similar effort in the Senate failed until McConnell struck a deal to finally allow three amendments from civil libertarians. However, the House didn’t take up the Senate’s 77 day extension the same day it passed the Coronavirus supplemental. Why? <shrugs>

CORONAVIRUS: OVERSIGHT

At least the CIGIE board is getting up and running: Acting DoD IG Glenn Fine was appointed to lead the Pandemic Response Accountability Committee last week; the committee already has about 20 members and has been compared to the Recovery Accountability and Transparency Board created to oversee the American Recovery and Reinvestment Act in 2009. Earl Devaney who ran the RAT Board shared lessons learned with our friends at POGO.

Members are also floating the idea of a 9/11 commission type of entity to identify where things went wrong in the Coronavirus response and how to be prepared for the next pandemic. Maybe they should read ProPublica: How Tea Party Budget Battles Left the National Emergency Medical Stockpile Unprepared for Coronavirus. (Read it. We’ll wait.)

Gobsmacked. Apparently Majority Whip Jim Clyburn, who has been tapped by Spkr. Pelosi to run the notional-but-imminent-ish Coronavirus Select Committee, said “My understanding is that this committee will be forward-looking. We’re not going to be looking back on what the president may or may not have done back before this crisis hit.” This is exactly the same error President Obama made with respect to torture under the Bush administration: “we need to look forward as opposed to looking backwards.” Lessons are learned from understanding what happened and why, and fixing problems requires understanding the sources. (That’s why we urged you to read the ProPublica article on why the medical stockpile was unprepared.) We understand the Select Committee is intended to oversee waste, fraud, and abuse of Coronavirus spending, but how can you disconnect understanding how that money is spent from the administration’s decision-making process on spending funds?

PROTECTING CONGRESS(IONAL EMPLOYEES)

Capitol Police Management has suspended certain labor protections for officers. The Collective Bargaining Agreement, as well as negotiations on the next CBA, have been suspended amid the Coronavirus outbreak. If we recall right, there’s been no new collective bargaining agreement for almost a decade! Several protection measures unrelated to the pandemic, like the process for officers to report grievances, have been affected. By contrast, Federal law enforcement agencies like CBP and U.S. Park Police have taken no such actions that undermine labor rights and working conditions.

Officers and the people they protect are at risk. USCP management decided not to test officers for Coronavirus (despite a push from its union to do so), telling union leaders that no officers were identified as high risk for COVID so no testing was required. Now at least four officers have tested positive for coronavirus. FWIW, the highest concentration of COVID cases in DC are in the same ward as the Capitol.

OWCR launched an online portal for legislative staffers with information about its policy changes regarding paid family and medical leave due to the coronavirus.

Our friends at Pay Our Interns have started the Save Internships Initiative to help secure paid remote internships. Interns are the front line of communications between Members and their constituents; with the pandemic congressional internships and fellowships are facing major disruptions that could leave students facing income losses and even homelessness.

TRANSPARENCY

COVID is impacting FOIA. See how via CRS. Plus, you can find all of CRS’s COVID related research here. We like the subject summary page @CRS – keep it up!

DOD quietly asked Congress to keep its future spending secret. Sen. Approps RM Leahy says no chance.

The Office of Government Ethics is posting FOIA responses for records processed after January 1, 2017 except for first-party requests — i.e. requests by people about themselves — on its website. They’ve probably been doing this for a while, but we just noticed it. Nicely done!

CMF announced their Democracy Awards finalists with Reps. Axne, Houlahan, O’Halleran, Burgess, Hurd, and Van Taylor (R-TX) nominated in the transparency and accountability category. See all the finalists here

ETHICS

A new report from GAO found that lobbyists are not complying with disclosure requirements. 45% of lobbyist reports were missing reportable contributions, which is a statistically significant increase compared to prior years, and 20% failed to report going through the revolving door.

More stock tips. The FBI has reached out and DOJ has opened up an investigation into NC Sen. Burr for insider trading. Last Monday, we sent a letter to Majority Leader McConnell, urging him to remote Sen. Barr from Chairing the Intel Committee pending a thorough and public investigation into sales, and any criminal proceedings that may result. Additional reports have surfaced of GA Sen. Loeffler selling more stocks.

The Campaign Legal Center has requested OCE to investigate Rep. Palazzo over the spending of more than $180,000 in campaign funds to rent a farm he owns and to pay an accounting firm that he founded and is now run by his ex-wife.

A judge delayed the prison start date for former Rep. Chris Collins, who was charged with insider trading, back two months due to coronavirus concerns.

ODDS & ENDS

Capitol Police arrests declined for the second straight week, mainly due to the Capitol complex closure and DC’s stay-at-home advisory. See the charges in the weekly round up.

USCP helped track down a Las Vegas man who is accused of threatening to kill Rep. Dina Titus.

We could use extra science expertise on the Hill right now: how a restored OTA could help fight Coronavirus.

On the frontlines. NY Rep. Max Rose was deployed last Tuesday with the National Guard to assist in the coronavirus response.

Lincoln Network’s Dan Lips, a former staffer for the late Sen. Coburn, wrote about the senator’s legacy.

Fiscal Note laid off “CQ/Roll Call’s entire investigative unit and the staff of CQ Magazine” — 30 people — which is terrible news for the journalists involved and for people like us who care about coverage of Congress.