Forecast for May 26, 2020

THE TOP LINE

The Senate is out for Memorial Day recess; the House will be in for votes tomorrow and Thursday. (Yes, today is Tuesday. Welcome back.)

Speaker Pelosi triggered a 45-day emergency period for remote committee and floor deliberations on May 20th; we calculate the end-date as July 4th, unless it is extended. Members can opt to vote by proxy or in person; proxy designations are here. Hopefully the House will quickly move to remote floor voting; we’re tracking everything here. Cheers to retiring Rep. Rooney for endorsing remote deliberations.

The House will vote on the domestic-surveillance bill known as the USA Freedom Reauthorization Act, with leadership reportedly agreeing late on Friday to allow consideration of an amendment to require the FBI obtain a warrant prior to searching an American’s Internet search and browser histories. This is an interesting instance where rank-and-file pressure re-opened a bill that leadership had previously jammed through without a markup or amendments.

Senator McConnell is attacking the House for proxy voting, suggesting (at least in POLITICO’s summary) that he wouldn’t take up House bills enacted this way. Given that the Senate wasn’t taking up House bills anyway; that the Senate is in recess while the House is at work; that some senators stand accused of violating the STOCK Act; that appropriations bills originate in the House; and the pace of Senate public-facing activity has slowed to a crawl; this seems more like an effort at distraction than a serious charge; perhaps he should focus on the Senate.

House Dems intro’d a bill to protect Inspectors General from arbitrary removal, with some prominent Democratic sponsors. The Project on Government Oversight’s Executive Dir. explained why protecting IGs is important (and what else should be done) in this op-ed. WaPo takes a look at Sen. Grassley, who historically has defended IGs, and POLITICO describes how unitary executive theory — the extreme political view that the president controls everyone in the executive branch — is being used to undermine IG independence.

We’ve added new international resources to our twitterbot @OpenAtAGlance, which tweets primary sources on legislative operations + actions.

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CONGRESS DURING COVID

The Senate Foreign Relations Committee held a business meeting on a controversial nomination without making proper accommodation for press and public access and without giving proper notice of the proceedings. While Foreign Relations does not usually provide video of its business meetings, the circumstances under COVID-19 are different as the Capitol complex is closed to the public and social distancing rules severely restrict press attendance. In this instance, the Committee made it impossible for itself or the press to record or contemporaneously broadcast video of the proceedings by selecting a room without livestream capabilities, even though they had the choice of other rooms with livestream capabilities. Making matters worse, the Committee violated its own rules and Senate rules by providing improper notice of the proceedings: Senate rules require seven days, but they gave two days notice. (The RM did not consent to the shorter time period.) The proceedings were only recorded in an audio format — not on video — which can be hard to follow unless you can recognize the voices of committee members.

This decision prompted complaints before and after the proceedings. The Standing Committee of Correspondents wrote two days in advance of the business meeting: “we believe the exceptional circumstances of the coronavirus pandemic warrant providing or allowing a livestream for this and all future committee markups.” They noted the newsworthiness of the subject matter: “the scheduled confirmation vote of Michael Pack to lead the Broadcasting Board of Governors while he is under investigation by the attorney general for the District of Columbia.” Committee Democrats also wrote two days in advance of the hearing: “The American public has the right to see and hear their Senators as we debate and vote on nominees and critical legislation.” During the hearing, Democrats objected to the absence of a recording. And on the day of the hearing, RM of the Rules Committee issued the following statement: “Today Republicans on the Senate Foreign Relations Committee took an action contrary to the guidance that Chairman Blunt and I issued regarding Senate hearings.” (She’s not wrong.)

Senate committee proceedings should be livestreamed so the public and press can watch what happens as it happens. As the Standing Committee on Correspondents noted, other rooms with livestream capabilities could have been chosen. The lack of appropriate notice makes the matter worse. RM Menendez published a video that he said his team took of the proceedings, which are newsworthy and noteworthy. Senator Risch, the Foreign Relations Committee Chair, should change course and apologize. All committees should provide a video livestream of their proceedings (unless they properly vote to close the proceedings) regardless of past practice, at least so long as the Senate is closed to the public and press access is limited. I would further suggest that the Senate adopt the practice of providing video of all open proceedings, which would mirror the House’s current rules. Congress must not backslide on transparency.

CONTINUITY AND MODERNIZATION OF CONGRESS

Russian roulette. Can anyone doubt the House and Senate were unready to address the threat posed to the legislative branch (including support offices and agencies) by COVID-19? Leadership had to be receiving briefings about this threat at the beginning of the year. There was an obvious lack of contingency planning, coordination, direction, and clear lines of authority — or, more accurately, lines of responsibility — and the Senate still has not taken even the most basic steps to allow it to continue to function as a legislative body. But even more than that, a lack of investment in technology and personnel has hollowed out the institution, which weakened its ability to improvise. A NYT analysis found 36,000 lives could’ve been saved had social distancing measures been put in place one week earlier. How many lives were endangered by the slow Capitol shut-down (all those tourists and lobbyists!), the delayed legislative response, and a lack of legislative and oversight activities?

Learn from our neighbors: Take a look at how the French legislature has adapted over time. Just in recent years, “Five work groups, bringing together parliamentarians from all sides, were set up to propose the most relevant reforms that should be implemented for the institution, on such central issues as, the status of MPs, the status of their staff, the monitoring and evaluation of public policies, the rights of the opposition, etc.” The House’s Select Committee on the Modernization of Congress, by comparison, is not yet two years old, there’s no Senate analog, and the scope of work is comparatively limited. While civil society in the US have been pushing for technological modernization — see the Congressional Data Coalition — there is so much more that must be done. Apparently a lot of former Members of Congress agree.

Phone calls between the House & Senate should be encrypted, 22 Senators and Representatives wrote in a bipartisan letter to the CAO and Senate Sergeant at Arms last week. “Calls between the Senate and House are still vulnerable to spying by anyone who gains access to the data connections between the two Chambers.” I wonder whether this problem also extends to calls between House/Senate offices and the GAO, CRS, and other support agencies.

Senate staff should reflect the constituents it represents, and an office of Diversity & Inclusion — similar to the one recently established in the House — would help, civil society groups told Senate appropriators.

Lorelei Kelly at Georgetown’s Beeck Center released a working draft of a plan to gather data from congressional districts.

TRANSPARENCY

A major FOIA Advisory Committee draft report on improving FOIA administration is out and available for public comment; submit yours via email to foia-advisory-committee@nara.gov through June 2. The committee posted a brief overview of its 22 recs here. For federal agencies (including DOJ & the Archives), the committee recommendations fell into the categories of enhancing online access, improving training, raising the profile of FOIA within the agencies, embracing new technologies, and providing alternatives to FOIA access. They also made recommendations to the Chief FOIA Officers Council, CIGIE, Congress (hold oversight hearings and provide more funding), and more.

Congressionally Mandated Reports was the topic of a new CRS report “on the potential benefits and challenges of reporting requirements,” which also “analyzes a number of statutory reporting requirements enacted during the 115th Congress.” The report also mentions legislation that would improve congressional access to mandated reports, the Access to Congressionally Mandated Reports Act, which has passed the House and is pending in the Senate, saying (as part of a longer analysis): “Establishing a centralized, public repository for congressionally mandated reports may address a number of concerns related to the reporting process.”

OVERSIGHT + APPROPRIATIONS

Appropriators now have fewer than 130 days to draft, mark-up, and enact spending bills for FY 2021 and we’re not sure where things stand since the process is particularly opaque this year. Usually the House would be just about done with markups and the Senate would be underway.

Follow the money: top line numbers for each appropriations subcommittee (known as 302b allocations) still haven’t been announced, and likely diverge between the chambers. House Approps SubC Chairs have their number for weeks, and theSenate reportedly was close to setting theirs but hit a bump ($) over spending caps on programming for veterans.

As for emergency appropriations, some Senate Republicans broke from Sen. McConnell who did not want to enact any relief before the Memorial Day recess.

The new House Whistleblower Ombudsman Office has a course on “Best Practices for Working with Whistleblowers” through the Congressional Staff Academy. Learn more about the office at https://whistleblower.house.gov.

SCOTUS opted not to grant the House’s request for immediate access to documents underlying the Mueller report.

ETHICS

Guam Delegate San Nicolas accepted $10,000 “in unreported cash” and engaged in a sexual relationship with his acting chief of staff, according to a Roll Call story that recounted what a former campaign chairman said he told OCE. House Ethics has a separate inquiry in Del. San Nicolas around similar issues. Members are prohibited from having sexual relationships with their staff since a House rules change in 2018.

ODDS & ENDS

Rep. Ratcliffe officially left his TX seat to be Intelligence Director after the Senate approved his nomination by a confidence-imploding 49-44 vote. Texas Gov. Abbott said on Thursday that he will not hold a special election to fill Ratcliffe’s seat.

We’re not the only ones with problems. Will the British Parliament spend £4bn to fix their failing parliamentary building? (This sounds suspiciously like the Cannon restoration.) Also there’s discussion about moving Parliament out of hybrid proceedings and back into its chambers. Canada’s Parliament is looking at working over its summer recess.

This past year’s military authorization bill, the FY 2020 NDAA (S. 1790), is the fourth longest bill even written, at 1,119 pages and 984,880 words, according to GovTrack, which has the top 5 list.

For the history books, Rep. Andy Levin was the first Member to submit a proxy letter and Rep. Jamie Raskin is the first designated proxy, according to PopVox. (I wish this was captured as structured data.)

Capitol Police only had one arrest this past week, apparently based on a license plate reader identifying a car that contained a person with an active arrest warrant.

When the choice is between remote Congress and no Congress, the choice (to us) is obvious. This past week, the Brennan Center published an academic paper on Maintaining Legislative Continuity Through Emergencies. We’re still digesting it; the paper seems to parallel the work of leaders like Marci HarrisBeth NoveckLorelei KellyMaggi Molina, and others, but generally does not cite them.

EVENTS

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.

The next (virtual) FOIA Advisory Committee meeting is on June 4th. Register by 11:59 p.m. Tuesday June 2nd.