Forecast for May 18, 2020

What a week. On Friday, the House adopted a remote voting resolution (H. Res. 965) that provides for proxy voting on the floor, remote committee hearings, and creates a pathway for remote voting on the floor and remote mark-ups in committees. In other words, the House can function for the foreseeable future despite the COVID-19 pandemic, creating the possibility of a legislative check on the executive branch. The Senate, meanwhile, continues to play Russian roulette with its members, staff, and the ability of that chamber to function.

Just a few months ago, Speaker Pelosi and Majority Leader McConnell spoke out in opposition to remote deliberations, and Minority Leader McCarthy denounced it from the House floor. It is unusual, to say the least, for a rules change to pass over the opposition of the leaders of both parties in the House, but intense political pressure and the political reality prompted Speaker Pelosi to do a 180, and she put her own stamp on the rule to protect (and possibly aggrandize) her power vis-a-vis the rank-and-file. (Full disclosure: we support remote voting.) The final vote was partisan, but I suspect many House Republicans welcome the move to keep the House functioning even if they wish it had come about differently.

When the House comes back on May 27th, it will vote on a surveillance reauthorization bill, which will be the first major legislation voted by proxy in the House. What’s notable about the Orwellian-named “USA Freedom Reauthorization Act” is (1) the underlying law stayed lapsed in part because of no remote deliberations; (2) the bill was recently amended in the Senate to allow outside experts to weigh in on FBI surveillance requests, and (3) that an amendment failed 59-37 to prohibit the government from warrantlessly-surveilling your website browsing information and search history, but two of the absent Senators would have voted for it had, say, remote voting been in place. Will Speaker Pelosi — who is a hard-liner for national security issues trumping civil liberties — allow the House to consider a pro civil-liberties amendment that has 60+ votes in the Senate? If she does not, what mechanisms are available to House members in a proxy-voting environment to force a vote on that amendment? How do the new processes affect their leverage?

On the legislative calendar, both chambers are woefully behind on their appropriations and NDAA work, and just about everything else. (The work that has been done has taken place largely in secret, which is a bad development for everyone.) With remote deliberations now possible in the House, it’s possible to expand floor and committee meeting dates to encompass the full work week (M-F), to use more hours of the day, and to work during district work periods. Will the Majority Leader take advantage of the extended legislative time to catch the House up? If he takes into account time zones, Rep. Hoyer could reasonably allow the House to meet from 11 AM ET to 7:30 PM ET M-F, which would expand time for floor consideration and create much more time for committees to meet without conflicts. How will he innovate?

Rube Goldberg would be proud. The floor proxy voting rules will ensure that the practice is difficult, time-consuming, and unwieldy. Its byzantine “low tech” rules were created, in part, as a fig leaf for Speaker Pelosi’s stated concerns about technology, which were a stalking horse for her efforts to prevent a remote deliberation rule. We expect many members to be in the chamber and many at home, which will result in two-classes of Members: those who can make motions and those who cannot. The House Admin Committee is charged with issuing a report on how to implement remote voting — reminder: proxy voting is when you instruct another member to vote as you direct, not that you directly cast the vote — which we hope is released and implemented soon, so members will be able to directly vote themselves.

Meanwhile, Pres. Trump gave (likely improper) notice that he will fire the State Department Inspector General in 30 days. The IG was investigating Secretary of State Mike Pompeo for misconduct. I’ve lost count of how many IGs Pres. Trump has fired or sidelined.

Conditions in DC remain unsafe: the city has extended the stay at home order, White House officials are required to wear masks at all times, and cases of Coronavirus among Capitol Hill employees like Cannon contractors, Architect of the Capitol staff, and Capitol Police officers continue to crop up. Some good news: Capitol Police finally implemented a rule requiring officers wear face masks within 6 feet of others (after Senate Dems complained non-compliance would get everyone sick). Stay safe everyone.

PROXY VOTING RESOLUTION

The House enacted an historic resolution (H. Res. 965) that provides for proxy voting on the House floor (regulations here), and remote committee proceedings (regulations here), and a pathway towards remote voting on the floor (regulations TBD). The provision only applies in emergency circumstances, must be triggered by the Speaker, and must be reaffirmed every 45 days. Here’s the bill text (+ summary, Dear Colleague, Committee report, and amendments considered), the Rules Committee hearing video, the report accompanying the resolution, and final vote on the House floor.

We analyzed the proposal, and while we have our concerns that this may alter the balance of power between leadership and the rank & file, we welcome the House’s effort to belatedly do something to address the even more important imbalance of power between Congress and the White House. In our opinion, remote voting on the floor is far superior to proxy voting. Speaker Pelosi has changed her position to address the concern that we raised: the choice is remote Congress or no Congress. We support a crawl, walk, run approach for getting the necessary technology in place; we just wish Congress had started crawling sooner.

At the markup and again on the floor, minority party Members raised many concerns about being heard; with traditional proceedings, rules and procedure are the main tools available to the minority to influence the outcome and the debate. The position that demanded minority consent before moving to remote deliberations in the House was never tenable — some Republicans were vying to maintain the veto power that Speaker Pelosi had accidentally ceded to them — but we wish this had not become as partisan as it has, as many Republicans do indeed support remote deliberations and legislative modernization in general. Indeed, Republicans were good for technology modernization in the House even as leadership gutted its funding.

Logistics and equities. House Admin RM Davis raised a number of issues related to technology logistics for remote hearings, markups, and depositions, which we believe could serve as a how-to guide to support remote deliberations. It is incredibly thoughtful and worth addressing. Many of the matters were touched upon in the guidance issued by Rep. McGovern, but there is likely more that can be done.

CONTINUITY OF CONGRESS

We’ve been trying to show how remote Congress can work by conducting simulated remote hearings & markups. Most recently, NYU hosted an excellent discussion on remote Congress, touching on topics like leadership power and how that has impacted Congress’s reluctance to adapt (watch here). To see these reforms in practice, we can look to the UK parliament, which is making it work.

We also defined terms related to remote deliberations and created a guide to help people stay on the same page. We have to be careful to avoid talking past each other. For example the Senate HELP Committee held a hybrid hearing last week, and Senate Banking held a virtual hearing (with all senators and witnesses participating via video conference). There were glitches, including connection and sound issues — this is where the crawl, walk, run approach comes in — but it’s progress. Given Senate rules, we are curious whether the fully remote hearings count as official, because under their current rules, they should not.

https://firstbranchforecast.com/2020/05/12/remote-deliberations-terms-of-the-trade/

The Constitution isn’t a suicide pact (H/T Rep. Raskin, who was subtweeting Justice Jackson). We don’t know when Members will be able to convene safely in person again. For now the House Sergeant at Arms and Attending Physician published safety guidance for Friday’s vote with measures like distancing and face masks. Alas, compliance was voluntary, and given that these masks are intended to protect others, it seems like a violation of decorum and comity not to wear them. (Nor is social distancing and masks a panacea: just days after the last House vote Rep. Velázquez was diagnosed with presumed coronavirus infection.)

Brian Monahan, the Capitol Physician, is the subject of an interesting NYT profile. Questions we have include: (1) Should an executive branch official play a role in determining legislative branch actions, such as when to close? (2) Should a physician be giving policy advice on how to protect against the spread of illness? (3) How big is his staff and how are they funded? (CRS has very little recent background info, although we did find this 2001 report.)

So, on that Senate virtual proceeding… There’s a lot that can be done with 1 or 2 people present to meet quorum requirements in the Senate, like hybrid hearings or casting votes by proxy, but without fully remote rules, Senators who are not present can’t react as new items come up in real time. BTW, we’ve been parsing the quorum requirements for different committee actions, and tracking the action around remote voting.

Can someone cc the Senate on all of this? The Chamber appears to have stagnated on remote voting on the floor despite a great proposal from Sens. Portman and Durbin. While Majority Leader McConnell is focused on confirming conservative judges ($), appropriations and the NDAA are coming up fast.

BTW there are tons of Remote Congress resources (from a variety of perspectives) that came out at the House Rules hearing. Example include: Law Professor Erwin Chemerinsky explaining that proxy voting in the House is constitutional; the Congressional Institute argument against remote voting; Law Professor Deborah Pearlstein’s finding that emergency remote voting is both lawful & essential; and of course our website ContinuityOfCongress.org.

The COVID relief bill, the HEROES Act (H.R. 6800), missed a huge opportunity to restore funding for congressional committees to conduct proper oversight, as well as provide funds needed to support remote Congress. The bill only has $30m for GAO oversight and $5m for the select committee & laptops. This fits with the larger trend of underfunding Congress and undermining its status as a co-equal branch of government. Why, when Pres. Trump is firing IGs left and right, the House would not fund its oversight capabilities is beyond us. (Especially on a bill that Sen. McConnell has said is about Dem messaging; and many Democrats have said is about Speaker Pelosi’s messaging.)

OVERSIGHT

Congressional subpoena power is at risk. SCOTUS heard (remote) oral arguments in the consolidated Trump v. Mazars and Trump v. Deutsche Bank cases last week — here’s the SCOTUS blog recap. Some Justices seemed receptive to the idea that subpoenas for a president’s personal finances could, “give lawmakers a “limitless” way to harass political opponents in the future,” Roll Call reports.

• Is this a political question? Mike Stern explores the question and how it applies to this case. We land on the side of Congress being able to conduct inquiries and have courts enforce subpoenas. Sometimes Congress uses that power well, and sometimes not.

• Lower courts have ruled in favor of Congressional investigative powers on this question, but a bad holding in this Supreme Court could offer support for presidential authority to refuse oversight. (Not that the Trump administration cares all that much about Congress.)

Partisan antics shouldn’t supersede fact-finding: The Administration blocked the release of CDC guidance that was more restrictive than the plan the Administration released to the public; a Senate resolution to release the guidance was then blocked by Sen. Braun. This fits with a larger trend detailed by Norm Ornstein in USAToday, “See No Evil, Hear No Evil, Speak No Evil allies in Congress” allow the President to continue to act unchecked. The transformation of the legislative branch towards becoming more partisan and ideologically distinct — which the American Political Science Association seemed to endorse in a 1950 report — has reached its apotheosis in the polarization we see today, where Congress acts more like a parliament than a separate branch of government, but without the tools to provide real scrutiny.

CRS analyzed statutory reporting requirements used by Congress to obtain information from the executive branch.

COVID OVERSIGHT

The bicameral CORE Act — Coronavirus Oversight and Recovery Ethics Act — introduced by Sens. Warren, Blumenthal, Coons, as well as Reps. Jayapal and Sarbanes,aims to heighten transparency and oversight of federal COVID response. In terms of the Leg Branch, the bill grants the Congressional Oversight Commission (established in the CARES Act) subpoena authority for testimony and documents and expands its jurisdiction to include all COVID-19 relief funding.

The first Coronavirus Committee hearing took place last week, almost six weeks after the committee was first announced; proceedings “devolved into partisan attacks” according to WaPo. Some civil society experts released a step-by-step COVID oversight guide for the committee. We still think that funding Congressional committees to conduct oversight is the way to go; the select committee seems more like a messaging vehicle.

OMB also recently put out guidance interpreting reporting requirements in the CARES Act; spoiler alert, they are not transparency-friendly.

The quarterly CARES Act report Congress is due. Secretary Mnuchin and Federal Reserve Chair Powell will present it to the Senate Banking committee tomorrow.

You know what would help with the COVID response? Restoring Congress’s team of in house science & technology nerds.

The Senate Banking Committee approved controversial Special IG pick Brian Miller. Miller, who currently is senior associate counsel to the president, is supposed to run an independent office overseeing a specific pot of COVID response dollars.

TRANSPARENCY

Agencies can’t trash FOIA requests just because of COVID; this NYT op-ed explains why timely FOIA responses are important, particularly in the current crisis.

For the first time in 33 years, OMB is updating the FOIA fee guidance (submit comments by June 3rd). Advocates note the new guidance doesn’t go far enough to incorporate court-mandated reforms.

ETHICS

Senator Richard Burr has “stepped aside” from his role as chairman of SSCI while he is under investigation by the FBI for violating the STOCK Act. His records were the subject of an FBI warrant, which means a court found probable cause for the search. Did Majority Leader McConnell, who appointed him, give him a push? Burr said he plans to stay on the committee and will finish out his term as North Carolina senator. This isn’t new (bad) behavior for Senator Burr; back during the 2009 financial crisis he reportedly instructed his wife to take money out of the bank while telling the public all is well. But now there’s even more bad news for Burr. Says Politico: Burr “holds numerous investments in firms regulated by the committees on which he sits.” Looks like Sen. Rubio might replace him as Chair.

• We asked Majority Leader McConnell to remove Burr from SSCI way back in late March when the ProPublica report broke. (As a select committee, the Majority Leader appoints the chair.) Also, where is the Senate Ethics Committee on this? Sen. Loefller, who is having her own stock controversy, turned over docs to the Committee (plus DOJ & SEC) last week. This fits with the larger problem of ethics violations not being properly addressed in the Senate; they would benefit from an OCE-esque body of their own.

Sen. Feinstein was also questioned by the FBI about her husband’s stock trades related to the pandemic.

Sen. David Perdue’s stock arrangement nets him millions. According to the Intercept, Perdue was allowed to hold onto shares of the financial marketing firm Cardlytics after he resigned from the board, netting him millions years later. Perdue bought share stocks in 2018 after the company went public for about 3 bucks. In February, the stock was worth rought $98 a share.

The AOC IG substantiated several misconduct allegations including an employee using paid time off to cover time spent in jail for a DUIRoll Call reports.

King back on House committees? Iowa Rep. Steve King claimed that Minority Leader McCarthy gave him “his word” that King would be given his committee assignments back despite making several racists remarks last year. He was kicked off after he said: “White nationalist, white supremacist, Western civilization — how did that language become offensive?” It’s not the first time Rep. King has said racist things. Minority Leader McCarthy says he never said he’d reinstate King.

Duncan Hunter’s prison report back date pushed back. Judge Whelan’s special order officially pushed former Rep. Duncan Hunter’s prison report date back to January 2021.

ODDS & ENDS

Capitol Police made zero arrests last week.

Two new representatives. Republican Tom Tiffany won the special election in Wisconsin’s 7th District on Tuesday to fill the vacancy left by former Rep. Sean Duffy, and the race for CA25 was won by Republican Mike Garcia. Both will be sworn in tomorrow in the pro forma session.

With these seats filled, the House total comes to 432 Members: 233 Democrats, 198 Republicans, 1 Libertarian, and 3 vacancies.

The House Majority Leader rounded up coronavirus related committee actions from the last several weeks.

Congrats, you’ve made it to the bottom. Some good news: it appears there will be a new Star Trek Series with Captain Pike. This should be pretty cool. And that Tim Olyphant is joining the Mandalorian. No word on Boyd Crowder.

EVENTS

The House hearing schedule is here and the Senate hearing schedule is here. Of note:

Tuesday the Senate Banking Committee will hold a remote hearing on the quarterly CARES Act report to Congress.

Thursday May 21st at 4, CATO is hosting a discussionon the Living Presidency: An Originalist Argument against Its Ever‐​Expanding Powers.

The Levin Center at Wayne State University Law School is hosting a panel for scholars on “Congressional Oversight Databases” on Wednesday, May 27 at 2 pm.

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