Forecast for May 5, 2020.

You may have noticed that you didn’t receive this week’s First Branch Forecast on Monday. This newsletter takes a team to write, and with so much happening last week and over the weekend, I ran out of time to finalize it on Sunday. Here is an abbreviated version.

COMING UP THIS WEEK

Wednesday at 2 join our roundtable on Lessons learned from Remote Committee Proceedings. Speakers include the congressional staff who held the committee roundtables, former members of congress, and experts from civil society and academia. Also, we spoke to Civic Hall last week on continuity of Congress.

Congress needs tech help fast; think you’re up to the challenge? TechCongress launched a Congressional Digital Service fellowship to help get Congress functioning amid pandemic; the deadline to apply is Sunday.

We’re keeping an eye on the Senate Rules Committee, which is meeting on Thursday. Maybe they’ll say something about moving the Senate towards working remotely? (Maybe they should call the Supreme Court, who actually broadcast audio of oral arguments yesterday.)

CONTINUITY OF CONGRESS

The Senate returned on Monday despite the DC stay at home order, good judgment, and the likelihood that it will cause more illnesses and deaths. Why are they back? Pushing through judges and surveillance legislation. (No, not CARES 2.0). The House demurred on returning on the advice of the attending physician. The Capitol Complex will remain closed to the public through at least May 16th, and we suspect for a while longer. Here’s the Attending Physician’s guidance on screening & social distancing for Congressional staff. We agree with CMF: “we must express concern about requiring staff to be physically present in congressional offices at this time.”

Re-opening the House. Majority Leader Hoyer asked the Capitol physician and CAO for guidance on how best to reopen the House and Capitol complexRepublicans on the bipartisan task force released their own strategy, which seems to overemphasize returning in person and under-develop where technology could help, although the hybrid hearing approach does have some promise. The House could reopen as soon as May 11th. In our opinion, a safe return is not possible in the next month: the offices are too small, the quarters are too tight, and social distancing undermines the informal communications that are the real benefit to deliberating in person. People in the future will look back at this and wonder if we’ve all gone mad.

Hill staff (and press) at risk. Congress turned down rapid COVID testinglikely because it looks bad. They’re right for the wrong reason: current testing methods result in false negatives, which could have disastrous effects, including even more members eschewing social distancing and face masks. “The validity of a test depends not only on the technology, but how common the disease is in the population you’re sampling.”

A terrifying number. Coronavirus deaths in the U.S. are anticipated to hit 3,000 per day by June 1. That’s the equivalent of 14 fully loaded 737 passenger jets crashing every day.

CONTINUITY OF CONGRESS: REMOTE VOTING

There’s been a lot of activity around remote voting (50+ by our count); we have a point-by-point record of last week’s actions plus a continuously updating detailed Remote Voting Timeline going back to the start of the pandemic.

Congress has the authority to decide what constitutes a quorum, according to a new report with big implications for remote voting and deliberations. HSGAC’s Permanent Subcommittee on Investigations released its analysis to accompany last Thursday’s WebEx virtual hearing (okay, roundtable), “Continuity of Senate Operations and Remote Voting in Times of Crisis.” Don’t have time to read the report? Read our brief summary or check out this editorial from WaPo’s on what’s at stake in the remote deliberations & voting debate. Props also to the House Veterans Affairs Committee, which held its virtual hearing on Tuesday.

Is tradition a barrier to remote voting? Apparently not. The UK had its first remote vote in its 700 year history last week.

Here’s who’s piloting virtual hearings: the Virtual Congress Task Force (statement); the Congressional Progressive CaucusHouse Veteran Affairs Committee; House Natural Resources Dems and the full committee; House Homeland Security with leaders from FEMA & Ebola Response team; plus, the House tested out webex. (And, as mentioned above, HSGAC’s PSI.) On deck this week, the Problem Solvers Caucus will hold virtual floor debates.

COVID $$ OVERSIGHT

The Congressional Oversight Commission tasked with overseeing the expenditure of CARES Act $$ still has no Chair, no office, no staff, and has not convened; their first report is due mid-May. Epic fail, totally foreseen.

Several Dems have been added to the Coronavirus Select Committee, Republicans may hold off on naming their own Members. The exact jurisdiction of the select committee is still unclear; Gov Exec has detailed the committee’s powers.

GAO has started audits.

The Panel of IGs — aka the Pandemic Response Accountability Committee or PRAC — has a new leader Robert Westbrooks (announcement here), and a new website (pandemic.oversight.gov). The current format doesn’t give users access to underlying data; to fill in the gaps, POGO is launching their own COVID-19 relief spending tracker.

The Special IG nominee can’t get the required Senate confirmation. And the war on IGs continues.

LET CONGRESS BE CONGRESS: TECH CAPACITY

Can we get the App store for Congress? House Admin Ranking Member Davis asked the CAO to investigate enrolling the House in Apple Business Manager, which would allow Congress to access & use apps securely.

Check out the new CRS report on the Office of Technology Assessment (OTA), covering the office’s history, mission, funding, structure, etc. plus options for reestablishing the agency or its functions. Wouldn’t it be nifty if Congress has its own Science and Technology Policy Advisory office instead of having to beg the executive branch — unsuccessfully, in the House’s case with respect to Dr. Fauci — to send witnesses?

LET CONGRESS BE CONGRESS: POWER OF THE PURSE

Our Senate Leg. Branch Appropriations testimony is up: See our testimony on creating an office to coordinate Leg. Branch IT here and our testimony with POGO on getting staffers the security clearances required to do their jobs here. (Seriously, read the testimony, it’s pretty good.)

Reclaiming Congress’ power of the purse. Chair Yarmuth of the House Budget Committee partnered with House and Senate chairs to introduce the Congressional Power of the Purse Act (H.R.6628). Here are the details. We wrote about GAO’s concerns and prior hearings on this topic: this is a huge part of Congress’s effort to restore its role in deciding where funds go. We applaud this effort.

Want your staff to stick around? We analyzed the House pay study — which oddly didn’t publish its info in a data format — and we found that COLAs help staff stick around. Click on the link — the chart is right there. BAM.

Congress has the power to turn the money faucet on and off, but repealing laws that promise government payments requires more than zeroing out the budget for the program, SCOTUS held last week.

Can the president spend $$ that Congress appropriated for other purposes? The DC federal appeals court (virtually) heard arguments on the matter last week.

LET CONGRESS BE CONGRESS: OVERSIGHT POWERS

Courts are hearing cases on Congress’s power to enforce subpoenas that compel witness testimony and force production of documents from the Executive Branch in the House Judiciary Committee case against Don McGahn and the Trump v. Mazars case.

Precedent is on Leg Branch’s side; read this incredible overview of the legal precedents from Ashwin Phatak at Constitutional Accountability Center. We also recommend this article on what’s at stake in the McGahn case with commentary from the man who literally wrote the book on oversight, Mort Rosenberg.

Watchdogs watch out. President Trump fired another IG (HHS); he previously removed Glenn Fine who was leading the DoD OIG, and the IC IG (without proper explanation to Congress). These attacks are attracting bipartisan attention.

ETHICS & TRANSPARENCY

New information on Rep. Shalala’s stocks: A 62-page transaction report that showed she bought and sold over 500 stocks in her first year of Congress alone. Over “a half-dozen transactions” were not disclosed and she appears to still hold some stocks that pose a conflict of interest.

“No one can own the law.” The Supreme Court ruled in favor of public access last week holding Georgia’s legal code was ineligible for copyright protection. This is a huge win for Public.Resource.Org who “defied Georgia’s rules and published the entire code, including annotations on its website” in an effort to remove cost barriers to accessing the law. Cheers to Carl Malamud.

Rep. Quigley introduced the Court Access Amid the Pandemic Act that requires courts to livestream their proceedings to ensure transparency during the pandemic.

It’s time to bring PACER into the 21st century and make it affordable for average users.

Submit your comments to OMB on revisions to uniform FOIA fee schedules and guidelinesH/T to Cause of Action for prompting this.

EVENTS

Tuesday

• Senate Select Committee on Intelligence is holding an in-person hearing on the “Nomination of John L. Ratcliffe to be the Director of National Intelligence” at 9:30 am in Dirksen 106.

Wednesday

• House Appropriations Subcommittee on Departments of Labor, Health and Human Services, Education, and Related Agencies Committee is holding an in-person hearing on “COVID-19 Response” at 10 am in 2359 Rayburn, despite the warnings from the Capitol’s attending physician.

• Senate Judiciary Committee is holding an in-person hearing on “Hearings to Examine Certain Nominations” at 10 am in G50 Dirksen.

• Senate Commerce Committee is holding an in-person hearing on “The State of the Aviation Industry: Examining the Impact of the COVID-19 Pandemic” at 2:30 pm in 106 Dirksen. The hearing notice states: “In order to maintain physical distancing as advised by the Office of the Attending Physician, seating for credentialed press will be limited throughout the course of the hearing. Due to current limited access to the Capitol complex, the general public is encouraged to view this hearing via the live stream.”

Thursday

• Senate Committee on Rules and Administration is holding an in-person confirmation hearing for a controversial FEC nominee at 10:30 am in Russell 301.