It has been another tough week just about everywhere. We hope you and yours are staying safe. This newsletter is becoming harder and harder to write, but we hope it is helpful as we work together to keep our democracy.
CONTINUITY OF CONGRESS
We launched a website that gathers all the major resources and developments on continuity of Congress. Cleverly enough, it’s at continuityofcongress.org. Did we miss something? Drop us an email at [email protected].
Read this: the Washington Post’s Mike Debonis and Paul Kane have a superb article that you really should read: “Sidelined by coronavirus pandemic, Congress cedes stage and authority to Trump.” They don’t have everything — we worked awfully hard on our report addressing the issues raised by House Rules Dems — but they expertly illustrate how power is shifting to the Executive branch as Congress has made itself unable to act.
• Speaker Pelosi is continuing to dig in on remote deliberations during the COVID-19 pandemic, and dismissed calls from the rank and file: “We’re not there yet, and we’re not going to be there no matter how many letters somebody sends in.”
• Perhaps the letters she referenced were those from the House New Dems and Problem Solvers Caucuses. New Dems urged that “Committees should … utiliz[e] the technology solutions identified by the House Committee on Administration to hold virtual legislative hearings and meetings as soon as possible.” The Problem Solvers called for “alternative ways” for the House to function that boil down to different versions of remote deliberations.
• According to our latest count, 111 members of the House have publicly articulated support for remote voting. (Majority Leader McConnell has entirely disappeared from this debate.)
• A new poll said “80% of Americans support Members of Congress being able to vote ‘remotely’ during the coronavirus pandemic,” and only 10% oppose. Members of Congress must be feeling the pressure to get back to work.
But there’s progress, too. The House is now providing for electronic submission of bills, resolutions, co-sponsorship requests, and extensions of remarks — via email. Reformers have been calling for modernization for decades, and there was already an effort afoot to provide for online co-sponsorships. In fact, a number of bills have been introduced during the pro forma sessions. But, it appears that the Senate has yet to allow its members to work remotely in this fashion.
And glimmers of more progress. House Admin circulated guidance on how to use remote conferencing for Members and the Senate scheduled paper hearings, which wound up being postponed. (Roll Call explains).
• There’s a lot of confusion around Zoom and a recent warning issued by the Senate Sergeant at Arms. As we understand it — and we could be getting this wrong — Senate personal offices are not prohibited from using the free version of Zoom, but the Sergeant at Arms won’t allow them to spend funds to purchase it. (There’s a FedRAMP-authorized version of Zoom called Zoom for Government; it’s approved for use in the House.) This counter-intuitive approach is common, where the SAA’s practices of not allowing Senate offices to pay for commonly-used services — like G Suite, Google’s cloud computing and collaboration tools — means they resort to free versions, which are less secure and customizable, or do without the tools they need.
Other countries continue to lead. The Law Library of Congress released a report on the Continuity of Legislative Activities during Emergency Situations, which identified some countries that “utilized videoconferencing and/or other electronic means to maintain some legislative activities.” The IPU has a longer list of countries, and the NSCL is maintaining a list for US states. Links to both are available here.
The Federal News Network got it right — in an excellent article by Jory Heckman — that COVID-19 has accelerated the pace of the modernization of congressional technology. He draws smart connections to the work of the Select Committee on Modernization and the House Administration Committee’s oversight efforts. It’s well worth your time to read.
ON YOUR RADAR
Both chambers are slated to return Monday, but that seems highly unlikely for both the House and the Senate with the continued Coronavirus threat. It could be weeks, at least, before it’s possible to come back, if not longer. The House of Representatives’ last hearing was on March 12 and its last Roll Call vote was on March 14 — four weeks ago. This is usually the busiest time for Congress; how much longer can they go without having legislative deliberations?
The House is continuing to rely on unanimous consent votes, which are easily derailed and cut rank and file Members’ voices out of the conversation. The Senate is doing the same. This doesn’t bode well for a possible fourth Coronavirus supplemental or for legislating in general.
Speaking of being at work, we’ve published a bunch of new articles: Investing in Congress’s science and tech capacity could save taxpayers billions and help Congress fight Coronavirus; our primer on the RAT board as a model for tracking Coronavirus relief dollars; Legislative Staffers were granted (temporary) paid family and medical leave; does transparency negatively impact productivity? Our review of CRS data says no.
WATCHDOGS WATCH OUT
The president wants to install a loyal puppydog with “a dim view” of Congressional oversight authority to be the Special IG overseeing Treasury’s $500B bailout. Watchdogs are supposed to be independent, so they can speak truth to power and, FWIW, save taxpayers money.
Congress can’t simply hope those with power will act in good faith. IGs should be removed only for cause, just as a case in point. The good news is senators are asking for answers, and introducing legislation to strengthen IGs. What else can be done? POGO compiled lessons learned from President Obama’s firing of an IG in 2009.
With IGs weakened, Congress is a final line of oversight (that the President can’t fire). Leadership has only filled one of the five seats on the Congressional Oversight Commission that is tasked with overseeing $500 billion in disaster funds for distressed industries. And the select committee to oversee the Coronavirus is still a press release, waiting for the House to be able to pass a resolution to create it. Lest we forget, committee funding in the House alone is down $100 million over the last decade, and it’s bad all around.
TRANSPARENCY & OVERSIGHT
Congress can save billions of dollars by using data analytics and stronger oversight to stop improper payments. Those are payments by federal agencies that should not have been made or that were made in incorrect amounts. GAO reported $175 Billion in improper payments in 2019 and $1.7 Trillion since 2003.
How has the work of CRS changed over the decades? We looked, and found that (1) CRS is decreasing its consultations with clients and shifting its resources to providing written products; (2) CRS is creating more “new” written products and providing fewer “updated” written products; and (3) there’s no apparent connection between the products CRS creates and public access to general distribution CRS reports.
Federal Reserve Board decisions are moving behind closed doors, after a provision in the last Coronavirus bill waived transparency requirements.
Remotus SCOTUS: Fix the Court found Americans want the Supreme Court to continue oral arguments remotely, and televise those arguments. We say give the people what they want! (Did you know some of the Supremes are calling in to their weekly private conference?)
What did the Treasury IG find out about how the department handled Congress’s request for Trump’s tax returns? Apparently there’s a report on this, which the Hill says found no wrongdoing. We’d like to review it ourselves though — has anyone seen it?
The Congressional ethics process is so flawed. How flawed is it? Chris Marquette at Roll Call put out a great overview of the issue last week. Can’t keep up with which Senators are trading stocks? There’s a new website for that.
House Ethics has granted Members an extension on the deadline to file financial statements if they have a coronavirus-related conflict.
THE CONSTITUTIONALITY OF REMOTE DELIBERATIONS
Former Senior Counsel to the House of Representatives Michael Stern published a fascinating look at the constitutionality of remote voting. It’s worth reading his short article, but his tentative conclusions appear to be as follows:
(1) the House or Senate can set their own procedures regarding establishing a quorum and voting, and it is unlikely that the courts would intervene.
(2) Even so, having a majority of members physically located in the District of Columbia, which is the seat of government, may bolster the claim to acting constitutionally, as it helps to address the “assembled” or “convened” language in the Constitution. Nevertheless, they do not need to be present in the same building, and they could vote by electronic means.
(3) During the emergency, if members vote to approve a particular measure by videoconference — when not physically located in the District — “this could be treated not as final passage, but as an interim step in the legislative process,” with final passage occurring at a pro forma session.
His big concern: “Not having at least a majority of the body present at the seat of government [i.e., in the District of Columbia], with the option of congregating personally, arguably changes the nature of legislative deliberations in a way that violates the spirit, as well as the letter, of Article I.” I am not persuaded by this argument, as virtual meetings can be more like the original intent of legislative deliberations than the way deliberations usually happen today, but it is worth considering when choosing any electronic deliberation system.
The other legal experts that have weighed in, such as Deborah Pearlstein, Walter Dellinger, and Erwin Chemerinsky, saying that remote voting is Constitutional, and they do not put limits on where it can be exercised. Professor Pearlstein’s arguments are the most developed. I’ve looked at the issue as well and do not see the Constitution as a limiting factor in terms of location, so long as they are able to engage in proper parliamentary debate (including hearing and seeing each other). That is, in fact, a higher bar than we currently impose on Congress, where members are rarely in the same room, rarely vote with a quorum present, and almost never engage in real debate.
But, but, but: Let’s not overlook his point about how we get past this mess. Regardless of what the Constitution requires, House and Senate rules are generally understood to require in person deliberations in certain circumstances. Allowing the committees and the floor to hold their proceedings now, to act as if those proceedings are official, and then bless them by a later in-person vote (that adopts their results), is probably the best way to get around the huge problem that the House and Senate did not change their rules before they let their members scatter across the country. Of course, this only works if isolation can end in the near future, and it doesn’t fix all the problems.
ODDS & ENDS
Majority Leader McConnell has essentially disappeared from public discussion of remote deliberations, but he was the subject of a very unflattering profile in the New Yorker. I didn’t think anyone could be less complimentary than when a Holocaust historian called him the “gravedigger of democracy” back in 2018, but the crux of the article is that he is an amoral opportunist who is focused only on “winning,” without even caring about the policies he is advancing. The New Yorker spends a lot of effort making the case.
Congress, heal thyself by investing in science and technology capacity to adequately respond to this crisis and oversee trillions of dollars in coronavirus relief. The modernization movement is needed now more than ever, and coronavirus is moving the process forward. Where to begin? Lorelei Kelly says use the Fix Congress Committee resolution as a blueprint.
At least legislative staffers now receive paid FMLA (but it’s not permanent). Thanks to a provision in the Families First Coronavirus Act, congressional staffers now have access to paid family and medical leave, but these benefits are only temporary, and must be related to the coronavirus.
Capitol Police had zero arrests last week, meaning we don’t have a weekly arrest roundup. There are now 9 Capitol Police officers who have tested positive for coronavirus.
POGO’s Congressional Oversight Initiative is continuing to update their COVID resources for Hill staff with general (trustworthy) information and department-specific resources.
R Street is hosting a webinar on “Emerging Legal Issues in Congressional Oversight and Investigation” tomorrow at noon.
Monday April 20th the FOIA Ombudsman is holding a virtual workshop on best practices.