Forecast for April 20, 2020

TOP LINE

The House inches forward on remote deliberations. Speaker Pelosi belatedly flipped her position and now supports a very limited form of remote voting, although it remains to be seen whether she will support restarting the committees and allowing remote deliberations on the floor — and whether she needs to bring members back to change the rules. Her choice remains remote Congress or no Congress, but she could misuse this opportunity to further centralize power in leadership’s hands.

The Senate is nowhere on remote deliberations, at least with respect to the floor, although there are some rumblings about committees.

Make it work. CRS issued a report on the constitutionality of remote voting and an assortment of civil society and former members held a simulated hearing to show how remote committee deliberations could work.

With Congress defunct, the President made (another) grab for Legislative Branch powers.

Check out our newest resources, including a website of all things continuity of congress, a database of the Members of Congress who support remote voting, the results of the House study on pay and diversity as a downloadable dataset, and our investigation of trends in CRS work over the last 30 years.

We hate to ask, but have you subscribed to the First Branch Forecast? It’s free and comes out once a week.

CONTINUITY OF CONGRESS: PROXY VOTING

For months, Speaker Pelosi had resisted remote voting, raising concerns that it was unconstitutional, that it was precluded by security concerns, that it would require months of study, that it would require significant changes to House rules, that it is risky, and that she could not be persuaded by letters from House members, and that it would never happen. (For more background on continuity of congress, visit here.)

Now House Rules Chairman McGovern made recommendations to the Democratic Caucus on implementing proxy voting on the House floor, with Speaker Pelosi’s approval. The House floor would reopen and members not physically present would send specific instructions to colleagues on the floor — likely key leadership — on how to vote on their behalf. To make this change the House would have to amend its rules, with the proxy vote now counting towards quorum. Dems hope Republicans will agree to a UC to change the rule. McGovern also mentioned the need to get committees working, although he raised concerns that Republicans would object to remote committee deliberations. He did give the nod for committees to hold briefings and roundtables.

A resolution? Politico did report that a bipartisan group of lawmakers had begun circulating a resolution this past week that would have required the convening of a task force to “devise a plan that allows the House to debate and vote remotely.”

Proxy voting vs remote deliberation. It is important to understand what McGovern’s proposal is not. It is not real-time engagement by remote members in the arguments on the floor. It is not the ability to engage in legislative debate. It is not (necessarily) the re-starting of committee proceedings, although that point is unclear. It appears only the ability to direct how your proxy should vote in matters considered on the floor. While this is not everything, at long last it could be something, if House Republicans agree or if the Speaker calls for an in-person vote. On the latter point, it is hard to imagine 216 members returning in the immediate future. (Were I in Congress — hah — I would be very irritated that the rules weren’t changed before members were sent home.)

Is it constitutional? CRS issued a report on the constitutionality of remote voting, which — as is common for CRS — does not reach a conclusion. But CRS addressed remote voting as a serious option, describing the constitutional question as revolving around what kind of presence is required for a quorum, and finding good arguments that the key is the concept of participation, and that virtual presence may be sufficient. CRS did not discuss in any depth whether courts would find standing to consider the issues and the extent to which they would defer to the chambers. (IMO, the deference would be considerable.)

But, is it constitutional? Well, yes, according to law professor Deborah Pearlstein, there is no constitutional requirement that members’ physical presence is required. I, too, addressed the question in my remarks to a simulated hearing that took place on Thursday, reaching the same conclusion. And I’ll be talking about it this Thursday at 1pm at an online briefing with the Cato institute, and it came up in a soon-to-be released podcast from Lawfare.

CONTINUITY OF CONGRESS: SIMULATED HEARING

Wait, a simulated hearing? Yep. You can watch it online! We co-hosted a simulating hearing with eight other organizations, including Marci Harris of PopVox (who did much of the work) and with the participation of the Association of Former Members of Congress. Dozens of former Members of Congress served as the Committee members; former Reps. Brian Baird and Bob Inglis served as co-chairs; and witnesses included General David Petraeus, representatives from Zoom and Microsoft; the British parliamentarian, Chi Onwurah, who pushed for remote deliberations in the UK; the Director of the International Department of the House of Deputies in Spain, Maria López Moreno de Cala; GovLab’s inestimable Beth Noveck, and me.

Whoah. It was very cool, and a useful proof of concept that it’s possible to hold remote hearings over Zoom. The purpose of the proceedings were two-fold: (1) learn lessons from holding a simulated hearing to make it easier for the House and Senate to hold the real thing; (2) gather useful information, including hearing from experts who have made this work in their home parliaments, or used it for US governmental operations, or to address how this could work in the US context. For a brief summary of the proceedings, read this from Marci Harris and this from the NYT. We will have more findings, and probably more proceedings, in the upcoming weeks.

Takeaways. I would imagine you might be interested in takeaways now. General Petraeus made the point that America’s wars and the CIA are run through regular (secure) teleconference meetings. MP Onwurah illustrated how a tradition-bound parliament can move to adapt to current circumstances — that the Parliament must function and be seen as functioning — and that technology questions can be addressed. Director López illustrated how far the technology has already moved in Spain. Beth Noveck illustrated how legislatures around the world already are using remote deliberation and voting technologies (in what I think was a phenomenal presentation). (See also, continuity of legislatures in France, Brazil, and Spain.) I explained how the Constitution permits remote deliberations and the paths forward for Congress. And the former Members of Congress voiced how they became comfortable with remote hearings through the process of the simulated hearing and expressed concern that Members of Congress might become too comfortable with technology, so some of it should be limited for the duration of the emergency.

CONTINUITY OF CONGRESS 360 Degree View

Where’s the Senate? There’s been no apparent progress in the Senate, with the Senate Rules Committee Chair saying, with respect to proxy voting on the floor: “I think the Constitution clearly anticipates that members would be present.” Committees may be a different matter, with Sen. Blunt saying they are looking at ways to hold remote hearings. (No word on markups, which likely would require a rules change to report the results to the floor.) Sens. Blunt and Klobuchar reportedly are in negotiations on “remote hearings and other things that don’t require members to be together to have a vote.”

Reopening Congress won’t be easy with Members coming from so many different locations, not to mention Members’ concerns about bringing Coronavirus back with them to their districts from DC. See how they’re working from home.

  • Other countries are using remote deliberations. The U.K.’s Parliament has been using a remote hybrid model, which allows lawmakers to hold question sessions, debates on motions, and legislative deliberations remotely; adjustments were made as soon as March 25th. Expect this week’s Prime Minister’s Questions to be remote this Wednesday. Harump, harump, harumph. Meanwhile, Spain’s parliament has been using remote deliberation since 2012, following a push for lawmakers who were granted FMLA to be able to legislate from home. (More on parliaments around the world, and in the US states.)
  • While we wait for remote deliberation powers, some House committees are holding virtual round tables.

50,000 people contacted Congress last week encouraging remote deliberations — we encouraged them to do so — and this morning there’s a new letter from two-dozen civil society organizations and Congress experts urging House leadership to use the next Coronavirus bill as a vehicle to enable remote deliberations and fund legislative modernization efforts.

Time may be running out, as a potentially astroturf effort is emerging to force businesses to reopen with obvious implications for Congress. (It will also result in many more deaths.) Some Members of Congress also considering returning to Washington as “a direct protest of Democratic leadership’s plans to keep lawmakers away from the Capitol amid the coronavirus pandemic.”

Incidentally, is Zoom a Chinese entity? That’s what Speaker Pelosi said on MSNBC on April 14, but she’s wrong: “it’s an American company with an American CEO,” according to MSNBC. (It’s president is Chinese-American, and previously was VP of engineering at Cisco.) When asked for a clarification, Pelosi’s spokesperson said: it’s a “reference to the criticism and security concerns stemming from the company routing large numbers of their calls through China.” Err, what? That’s not the same thing. Regardless, Zoom said it has recently mistakenly begun routing some calls through China earlier this year, and stopped doing so on April 18.

LET CONGRESS BE CONGRESS: OVERSIGHT POWERS

President Trump made a bizarre claim about being able to adjourn Congress last week. While he’s wrong (just ask the Supreme Court), Pres. Trump is continuing on other fronts to undermine oversight efforts and independent watchdogs — especially as Congress isn’t there to push back.

The President’s attacks on the Special IG and Pandemic Response Accountability Committee established in the CARES Act underscores the indispensable nature of Congress and its committees. I.e., the very institutions that the House and Senate are massively underfunding.

Congressional Oversight Commission. So far, Congressional leaders have named four members of the panel, with only the chair remaining. (Honestly, Rep. Shalala?!?) The panel will oversee implementation of the CARES Act (and maybe more?), and will hold hearings and issue monthly reports to Congress. According to one member, the “Congressional Oversight Commission is the only “body that can investigate the decisions made by the Treasury and the Fed without interference from President Trump.”

The Coronavirus Select Committee continues to be a press release, but Speaker Pelosi says she’ll make it real just as soon as the House can convene. Would someone explain to me why setting up a select committee, which can take months to hire the appropriate staff and begin to work, is a preferable approach for oversight as compared to empowering the standing committees to do this — and funding them to do it right?

House Judiciary filed another brief as part of its effort to force former WH counsel Don McGahn to testify, warning that a wrong decision could “effectively eliminate Congressional oversight as we know it”. Counsel for Judiciary continued to argue that judges should be able to intervene when executive officials defy congressional subpoenas. The newest RECAP docs can be accessed here.

LET CONGRESS BE CONGRESS: REGULAR ORDER BUSINESS

For appropriations, why isn’t Congress looking at moving more money to deal with Coronavirus-connected matters? Anyway, topline Defense/Non-Defense numbers are already set, although they could change, and we haven’t seen any public postings about 302(b) numbers (how much money each subcommittee gets). Public witness testimony deadlines in the Senate haven’t changed (as far as we know), with Leg. Branch testimony due May 1st.

Consider this your weekly reminder that the Leg. Branch is chronically underfunded. We’re seeing the impact as Congress struggles to modernize tech to meet the Coronavirus challenge. Before the pandemic, Senate Leg. Branch Appropriations Chair Hyde Smith told witnesses to prepare for a flat budget in FY 2021. Just look at this chart of funding levels inside the leg branch — at what they received a decade ago, what they received last year, and what they requested.

Legislative Branch Approps Levels

TRANSPARENCY

Virtual Courts. SCOTUS has scheduled virtual arguments (with a live audio feed) for next month, and at the state level, 33 of the 50 state Supreme courts either have conducted or will conduct live remote hearings, according to Fix the Court.

The GSA meeting on the use of data in rulemaking that was originally announced for March 25, 2020, will be held virtually on April 30 from 2-4 pm. Written comments are now due June 3.

FARA is under review: OMB will be looking at and updating what information FARA collects; have thoughts? Submit your comments by May 13th.

FOIA processing has taken a hit amid COVID19, OTG has recommendations for Congress on how to protect the process.

ETHICS

Senators Burr and Loeffler, who face allegations of insider trading, were appointed to the President’s committee to advise on reopening the economy. Sen. Burr has a history with transgressing ethics boundaries, as ProPublica reports, he sold his house to a lobbyist/donor at an above market rate back in 2017, in addition to the more recent allegations of trading on non-public info. Sen. Burr still chairs the Senate Select Committee on Intelligence; we asked Majority Leader McConnell to remove him from the committee while he is under investigation.

Rep. Matt Gaetz rented an office below market price from a longtime friend, donor, and legal client. House Rules prohibits this. Gaeztz says this is a “smear piece”.

Duncan Hunter apparently used campaign funds in January to pay for a bar tab, just two days after he resigned from Congress and months after he pleaded guilty for misallocating campaign money.

Former House Admin. Chair Bob Brady, who was known for close ties to donor Comcast as well as connections to improper political dealings, has registered as a lobbyist for Comcast.

ODDS & ENDS

Practical advice for congressional staff on managing stress, from CMF.

Capitol Police had zero arrests for the second straight week, meaning we don’t have an arrest round-up. In their free time, USCP officers held an impromptu bicycle race vs some visitors to the Capitol grounds.

How many times have you used Zoom this week? ICYMI, CAO Guidance on video calls.

Get House & Senate newsletters all in one spot with DCInbox.

A GPO employee is 3D printing face shields for local hospitals.

Crowdsouring Senate financial disclosure data — here’s a neat new data repository from Jeremia Kimelman.

EVENTS

Today the FOIA Ombudsman is holding a virtual workshop on best practices.

Tomorrow at noon R Street’s Jonathan Bydlak and Heritage’s Romina Boccia will discuss whether it’s time for a CARES Act Part 2 via Zoom.

On Thursday at 1, Cato is holding a briefing on remote deliberations and oversight.

Thursday at 2, the Law Library of Congress is hosting a webinar “Fighting Pandemics: Foreign and International Legislative Framework”.

On April 30th, GSA is holding a meeting on the use of data in rulemaking from 2-4pm; written comments are now due June 3.

The Library of Congress has canceled all in person public events through July 1st.