Good morning. The COVID-19 pandemic has resulted in 200,000 dead worldwide, including 50,000 deaths in the U.S. and 165 dead in Washington, D.C., with the number of metropolitan cases continuing to increase. Despite the rising toll, the House and Senate held in-person votes this past week, several members of Congress want to reopen the Capitol, and some members ignored safety measures. We believe Congress must get back to work — safely. But efforts in both chambers to permit remote deliberations did not reach fruition.
There continues to be a pollyannish approach to this pandemic, especially on the part of federal lawmakers. People hold unsupported beliefs: COVID-19 is just like the flu, you don’t need masks, it will burn itself out by summer, it doesn’t strike children, having COVID-19 confers immunity, there will be a vaccine next year, and so on. Some of these beliefs we know are wrong, others are optimistic assumptions.
We won’t know when COVID-19 will end and we have major gaps in our understanding of the disease. Contingency planning includes preparing for a range of possible outcomes, including less optimistic scenarios: what if it causes permanent disability? What if a vaccine takes a long time? Proper planning should also address confounding problems: what if there’s a hurricane? What if a Supreme Court justice dies? What if air travel stops?
Many in Congress are operating under the assumption that COVID-19 will burn itself out in the near term and it will become reasonably safe for people to reassemble in the Capitol. The political winds are shifting in the Republican political base towards physical reassembly and dismissing concerns about contagion, even though most still think physical reassembly is foolhardy. I don’t know if last week was the last real opportunity for the House and Senate to put in place remote deliberation rules, but it seems possible. Congress’s physical return is a danger to everyone. (A burden that some bear more than others.)
Meanwhile, by my count at least 19 state legislative chambers have okayed remote voting by teleconference on the chamber floor and another 3 have okayed proxy voting on the chamber floor. Internationally, Argentina, Brazil, Chile, the European Union, Spain, and the United Kingdom have moved to implement remote deliberations, as have others.
At home, the House appears to be slow-walking towards restarting committees for hearings, then markups, and then maybe the floor. That would have been reasonable two months ago, but I don’t know about now. At the next opportunity, the House and Senate must implement a rule allowing remote deliberations, even if it’s not immediately turned on in all circumstances. This is not the kind of problem where things get better the longer you delay — if anything, the political headwinds are getting stronger, our political system is getting weaker, and many more people are likely to die. It’s later than you think.
Lawmakers in both chambers missed an opportunity to strengthen Congress as the COVID 3.5 bill (H.R. 266) did not include funds for the Leg Branch and neither chamber adopted a resolution to allow remote deliberations on the floor and in committees. Last week was a prime opportunity to make such a change with Members gathered for the first time since late March.
Remote House. We have the tick-tock below on what happened on remote voting in the House, but in summary: Speaker Pelosi was pushed to expand her extraordinarily modest proxy voting proposal (which she had to be pushed to adopt in the first place); a resolution to re-open the House remotely was published Wednesday morning and then withdrawn hours later; and a task force on remote deliberations was created in its place (with no deadline for when it must report). In sum, the House is defunct and will remain so until it can return, wherever that may be.
Remote Senate. There is no public movement from leadership, although news reports suggest that the Chair and RM for the Senate Rules Committee are meeting. Sen. Rand Paul introduced a surprise resolution to allow for temporary remote voting in the Senate, which was blocked by Maj. Leader McConnell.
CONTINUITY OF CONGRESS: HOUSE OF REPRESENTATIVES
This past week was insane when it came to remote deliberations in the House. On Monday morning, two dozen organizations sent a letter to the House calling on the legislative branch to get back to work. The letter urged the House of Representatives to include a provision in the next COVID-19 emergency bill to allow the House to operate remotely during the Coronavirus pandemic and to fund technology modernization in support of these operations. It contained specific recommendations on what steps the House should take. (More from Roll Call)
On Tuesday, Majority Leader Steny Hoyer sent a letter that pushed hard for the use of video-conferencing technology and opening the floor and committees; his position is a significant departure from Speaker Pelosi’s position. Rep. Hoyer prophetically said: “we ought to use this time as an opportunity to prepare for Congress to be able to work according to its full capabilities even with social and physical distancing guidelines in place.” In addition, a letter from Minority Leader McCarthy raised important questions about how committees would meet, what the House schedule would look like, and raised concerns about a lack of consultation and fears about a process resulting in “centralized decision-making by a select group of leadership and staff that reduces the role of representative to merely voting ‘yea’ or ‘nay’ on pre-drafted proposals.” In essence, Republicans came out in opposition to proxy voting, at least as formulated by House Dems, because it could disenfranchise them: “I think there was a moment in time when [proxy voting] could have been [voice voted], but I think the Democrats have really messed that up.”
Early Wednesday, at 2 a.m. the House Rules Committee published a draft resolution that addressed some concerns with the plan announced to the press the previous week: the resolution would have reopened the floor (through a complex proxy voting system), restarted the committees, and required another study of remote deliberations. The mechanism to start proxy voting on the floor outlined in the resolution put that decision entirely in the hands of the Speaker while diffusing accountability for that decision to the Sergeant at Arms, her factotum, and the Office of the Attending Physician, who works for the executive branch. (We have serious concerns about this approach.)
Later on Wednesday, the resolution was withdrawn. Why? Speaker Pelosi said (and most journalists published!) her stated desire for bipartisan support. We pause to note that rules changes are almost always partisan. If you were cynical, you might look at Thursday’s vote on COVID 3.5 that shows that House Democrats only had 211 members present, which means Dems would fall short of a quorum if, say, Republicans chose not to participate in the vote. Don’t forget, the Minority Leader said Republicans were united in opposition to proxy voting. (One reporter did suggest say she may not have had the votes.) The Speaker instead created a task force to “examin[e] ways Congress could better adapt to emergencies like the coronavirus pandemic,” composed of the Majority and Minority Leaders, the Chair and RM of House Admin, and the Chair and RM of the Rules Committee.
On Thursday, Speaker Pelosi said on the House floor “Hopefully about the time we return, if that’s May 4th, we’ll have an opportunity to vote in a bipartisan way on [remote deliberations].” In other words, the House will continue to be defunct until its members can return and adopt rules changes. Will the House come back on May 4th? Says Speaker Pelosi, in response to a press question: “we’ll see.” At on Thursday, there were unclear signals from the first meeting of the task force, with another meeting set for later this week.
CONTINUITY OF CONGRESS: SENATE
Meanwhile in the Senate, Majority Leader McConnell faces relatively little scrutiny as only a handful of Members are present for votes and there’s little public information on whether the Senate is working to allow remote deliberation in committees or on the floor. Don’t forget that Maj. Ldr. McConnell has voiced strong opposition to remote deliberations despite bipartisan support, and his views likely hamstring support staff from working on alternatives. Sen. McConnell is apparently of the unsupportable opinion that some flavor of social distancing will make it safe for Senators to return.
However, Sen. Rand Paul pushed back by offering a resolution on the floor to allow temporary remote voting. His proposal would have allowed for any senator to make a motion to turn on remote voting, and 3/4s would have to vote in favor. (The resolution did not address committees.) Sen. Paul reportedly argued that either the Senate should resume in-person deliberations or it should permit remote deliberations. Sen. McConnell objected to the Unanimous Consent request. It also seems that Rules Cmte. leaders Sens. Blunt and Klobuchar have been working toward a solution on remote hearings.
CONTINUITY OF CONGRESS: LEGISLATURES HERE AND ABROAD
As you know, we have a dog in this fight, and have been advocating for remote deliberations during the pandemic for the last few months. With friends from across civil society, we’ve tested tech for remote hearings and markups. The Congressional Progressive Caucus is giving it a shot and the U.K. has already gone ahead and set up Zoom parliament.
The UK House of Commons successfully held hybrid remote proceedings in Parliament this past week (pursuant to this temporary standing order), including Prime Minister’s questions and committee proceedings, and the next step is a motion to adopt remote voting, which they have been testing. Back in the US, one former staffer puts it this way, “the technology to help lawmakers do their jobs from home exists — but isn’t being embraced.”
Our friends at crowd.law have an excellent recap of continuity in legislatures around the globe and in the states. And there’s a new report out from Directorio Legislativo and Parl America entitled COVID-19: The challenge of adapting and strengthening the role of parliaments.
Brazil, which has implemented remote voting, released this incredibly helpful guide to other parliaments around the world (yes, Congress, this means you) on how they implemented remote deliberation in the Brazilian Senate. The Technology Transfer Handbook addresses technology, security, teaching members how to use remote deliberation tools, and even provides guidance to those managing the technologies. Guidance is available in English, French, Spanish, and Portuguese, and they even created videos. Of particular interest is Appendix IV, which talks through how to do this securely. Take 3 minutes and watch this video on how their voting app works.
In the meantime, appropriators, armed services, and everyone else is stymied. Committees in both chambers cannot hold official hearings or markups, although I think we are going to soon see “round tables” that look a lot like hearings. The votes on the floor in both chambers look like a circumstance where most members get a vote but not a voice, and leadership is calling most of the shots.
By the way, HSGAC’s Permanent Subcommittee on Investigations, we are told, will be holding a public briefing this Thursday, and it just happens to look a lot like a hearing, with the working title Continuity of U.S. Senate Operations and Remote Voting in times of Crisis. Good for them! We know of other committees that have held internal briefings that look a lot like oversight meetings, but is this the first webcast, public-facing hearing-like activity? Who else is is scheduling hearing-like activities? (And will notice of the be published centrally?)
Calendar: the Cato Institute held an online briefing on remote legislating and oversight this week, with Liz Hempowitz from POGO, Corinna Turbes from the Data Coalition, and me, with Pat Eddington as moderator. Former Rep. Brian Baird and I spoke to Lawfare on Monday about how Congress can continue to function remotely. This Wednesday, PopVox’s Marci Harris and I will join Micah Sifry of Civil Hall to discuss “#OpenCongress? How Congress Can Work Remotely During Emergencies.” RSVP here.
Ministry of Funny Walks. The House’s voting method this past week on how it staggered Members being on the floor was pretty time consuming and somewhat impractical. It will be interesting to see how it changes. They followed these safety precautions. Not followed: staying out of planes, trains, and automobiles.
Some resources: To make your life easier, we’ve put together a timeline on congressional actions on continuity of government and a resource page on federal, state, international, and civil society activities around remote deliberations. This memo boils down to 1 page list of what legislatures should do.
Congress will return, but no one really knows when. Upon its return, the House intends to take up a COVID 4.0 bill, although Maj. Ldr. McConnell has suggested that the Senate will not take up such a measure. As the prior bills did not reflect many of the House’s priorities, likely due to its weakened negotiating position, this suggests that its leadership has made a potentially huge miscalculation. Presumably both chambers will restart the committees, which are almost impossibly behind on their work. Maybe at that point they will resume oversight hearings as well.
The House voted to create a select committee to oversee coronavirus relief funds. The select committee, which is a subcommittee of House Oversight but its members are chosen by leadership and its chair has subpoena powers, seems redundant to us; a better use of the money would be to fund existing relevant committees of jurisdiction — which have been on a shoestring budget for years. This subcommittee will receive $2m, which (comparatively) is a lot of funds for 7 months of work. How long will it take to get it up and running?
Coronavirus is just one of many issues Congress would be better equipped to address if it had dedicated in house science and technology experts. Experts on and off the Hill say restoring OTA’s funding could be the answer.
The House Office of the Whistleblower Ombudsman website is up and running. Here’s a refresher on the office’s origins and mission.
The Senate Sergeant at Arms is soliciting vendors to conduct Cybersecurity Internal Threat and Privacy Assessments, Federal News Network reports.
Lawmakers should embed oversight protections in COVID funding bills. Civil society advocates are specifically urging funding for congressional oversight, stronger protections for inspectors general, disclosure of secret laws, support and expansion of FOIA, broader whistleblower protections, narrower exemptions from transparency measures, and access to courts.
Speaker Pelosi appointed Rep. Doris Matsui to temporarily fill Rep Mark DeSaulnier’s seat on the Rules Committee while he recovers from (non-coronavirus related) pneumonia.
How has Congress tried to limit Presidential Signing Statements? We updated our compilation of congressional actions on signing statements to show the common themes of the legislation.
Senator Leahy wants the White House to release a secret legal opinion that could be the basis for recent claims of total authority by President Trump.
ICYMI, we’ve put out a lot of research recently. Stay on top of it at FirstBranchForecast.com; here are some highlights:
• A guide to how Congress has tried to legislate limits on presidential signing statements.
• How better tech could save Congress billions they’re losing on improper payments.
• A timeline tracking efforts on Continuity of Congress.
• How the legislative branch distributes its funds.
Rep. Donna Shalala violated the STOCK Act by failing to disclose several stock sales last year. Rep. Shalala admitted on TV that she knew about the law, failed to file, and “takes full responsibility” for the error, although taking responsibility does not apparently include any consequences — expect she may be required to pay a fine. It turns out that her Chief of Staff spent ten years lobbying for USAA (a banking and insurance company), which will be overseen by the Congressional Oversight Commission to which Speaker Pelosi appointed Rep. Shalala as a member. We joined a call for Rep. Shalala to step down from the commission, but Speaker Pelosi has said that Rep. Shalala has “her complete confidence.” Other groups have called on OCE to investigate.
Common Cause has filed DOJ and ethics complaints against Rep. Gaetz over his congressional office lease signed with a donor and former legal client.
ODDS & ENDS
US Capitol Police had zero arrests for the third week in a row.
The Library of Congress turned 220 last Friday. To celebrate, LOC is hosting a slew of online programs from across the Library until April 30.
This Thursday GSA is holding a meeting on the use of data in rulemaking from 2-4pm; written comments are now due June 3.