Forecast for August 10, 2020.

THE TOP LINE

The House and Senate are basically out — with a skeleton crew staying in DC until a Coronavirus deal is struck or they give up. Members have been told they have 24-hours notice to return for a vote. Talks have apparently failed; this weekend the president took executive actions of dubious utility and questionable legality in an effort to make law. Sen. McConnell endorsed those actions, further undermining the Senate as an institution.

Senators want federal employees to be safe and are pushing agencies to offer maximum telework, but does that apply to Legislative Branch employees? Staff and employees are reporting to work in person — sometimes against their will — which is unsafe and unwise. Worse, the cleaning supply budget ran out a month ago, we don’t know how the Architect is managing ventilation, and until this month masks weren’t required anywhere. It’s a mess.

• The disregard for safety by some Members and staff is sufficiently egregious that staff are talking to the press, and Capitol Hill residents are worried about COVID exposure from proximity to Congress. Like we’ve said since March, remote Congress is the safest option.

COVID accelerated some Congressional modernization, but what’s next? Can it be that the House will go back to paper processes when the pandemic is over? We’ve seen some reports suggesting exactly that. House leadership should make clear they won’t backslide.

Senate Appropriators decide where billions of dollars will be spent. Markups, like hearings, should be open to the public and press. With restricted access to the Capitol and tight quarters in meeting rooms, the only way that’s possible is through live video — at least that’s what we (and our friends) think. Appropriators are resisting that call, in contradiction to direction from Senate Rules. As you might recall, Foreign Relations got a tongue-lashing on this topic, too.

Proxy voting won big in federal district court, which held the Speech or Debate clause does not permit a lawsuit against that practice. The result is good news. BUT the legal theory could create problems down the road. More immediately below.

CONGRESS IN THE COURTS

A federal district court judge dismissed House Republicans’ lawsuit against the Speaker that argued proxy voting is unconstitutional. The Court did not rule on the substance of House Republicans’ claims, but rather held that proxy voting is a purely legislative function and thus unreviewable by the courts under the speech or debate clause, which protects Congress from liability for legislative actions.

• The result is good news, as we said above. The House must be able to function during the COVID-19 pandemic, and proxy voting means the House can vote on legislation and change its rules if it has to. (And the Senate? Not so much.)

• The decision could be a double-edged sword. We can imagine House voting rules that are neutral in their application but could be harmful to the institution. I’m not sure that it’s great for the courts to look at congressional practices, but in a majoritarian institution are instances where some review is proper.

The House is entitled to subpoenaed witness testimony & documents, according to an federal appeals court ruling in the McGahn case last week. The court remanded the case to consider McGahn’s other challenges to the subpoena, which means the clock may run on the Trump administration before this is resolved. It’s a moral victory, but not a practical one, and Congress may wish to consider finding a way to speed up the court process through a statutory change.

SCOTUS dealt a blow to Congress’s Power of the Purse by allowing the Administration to continue border wall construction using funds appropriated for other purposes.

CONGRESSIONAL OPS

Centralizing leadership power & prioritizing re-election efforts may have been the downfall of legislating in Congress,according to an academic study and interviews with over 30 recently retired Members of Congress. The consolidation of leadership power — which in part was meant to help party Members win re-election but mostly about aggregating power to leadership — has left rank-and-file Members increasingly without the tools necessary to compete in the legislative process. We think this goes hand-in-hand with cuts in funding to personal and committee offices.

Wishing a speedy recovery to Rep. Rodney Davis who announced he tested positive for Coronavirus last week. With Members, employees, and staff testing positive, it’s worth reviewing the major safety concerns (and solutions) we laid out last week related to Capitol Hill operations during COVID.

COVID has sparked an influx of constituent casework. The DotGov Casework app could help staff speed the process of obtaining privacy authorizations from constituents; they’ve made sure the releases are customized to each federal agency. It’s available in the House.

MODERNIZING GOVERNMENT

In another sign the House is moving forward, legislation bringing the Franking commission into the 21st Century advanced in the House recently. Until now Franking privileges only covered mail, this bill will extend coverage to modern communications.

Ralph Nader and friends say the House needs to bring back OTA (the Office of Technology Assessment), and suggested a one-house solution. Coincidentally, we outlined how a House-only approach would work in a paper with Lincoln Network.

OVERSIGHT: WEAKENING THE WATCHDOGS

The Special IG for pandemic recovery can’t get the data needed to do its job ($) from the Treasury department, according to a report submitted to Congress last week. This fits with a larger trend of Exec. agencies withholding information from overseers; just last week the CIA ignored senator requests for a briefing.

State Department Inspector General Stephen Akard resigned last week; his tenure came to a close before Congress had a chance to complete its investigation of his predecessor’s abrupt firing, which has been slowed by Administration stonewalling.

IG Nomination hearings: Last week Senate Armed Services held a nomination hearing for under qualified Defense IG nominee, Jason Abend, and the Commerce committee held a nomination hearing for Transportation IG pick Eric Soskin. Democrats questioned Soskin’s independence during the hearing.

The Administration dodged Congressional advice & consent by installing Anthony Tata, known for islamophobic tweets, as an official “performing the duties of” deputy undersecretary of defense policy; this was after the Senate cancelled his confirmation hearing.

The House Intel Committee has had an open Republican seat for months, which diminishes committee capacity to oversee the IC (an historically opaque body). We think intel oversight is fundamentally broken and have recs for reform.

APPROPRIATIONS

No word on whether the remaining House spending bills (Homeland Security & Legislative Branch) will move any time soon. Meanwhile, in the Senate it’s possible there won’t be any markups for 2021 spending bills, at least until after the election, if not longer, depending on the nature of the continuing resolution.

Did you know there’s no master list of all the programs funded by federal dollars? Without this inventory, it’s nearly impossible to track effectiveness & duplication. OMB was directed to fix this, but failed to. The Senate Budget committee is pushing back.

TRANSPARENCY

FOIA without Fear. While Federal Employees may have a right to access government information like anyone else, they may face retaliation. The new Federal Employee Access to Information Act, introduced by Senator Leahy, Rep. Maloney, and Rep. Connolly, is aimed at fixing this.

Public Access to Court Records. The government can’t charge unreasonable fees for court records provided through the electronic court record management system PACER, a federal appeals court affirmed last week. The Courts have been ripping off the public to the tune of $150m annually for records that cost them a few million to manage. Public access should be free.

ODDS & ENDS

The House Whistleblower Ombudsman Office is hiring Deputy Director and Deputy Director of Operations. Want to help Congressional offices receive whistleblower communications? This could be the job for you.

TechCongress is still accepting applications from technologists until August 27 to work in Congress. Learn more on their podcast.

Rep. Tlaib will have to repay $10,800 to her campaign fund to correct for salary payments disbursed once Rep. Tlaib was no longer a candidate, according to a House Ethics committee report. The payments were a timing error, the committee determined. I remember seeing a proposal to allow Members-elect to draw from their future salaries to cover the period without pay from election day to being sworn into office, but I cannot remember where.

Capitol Police disclosed just two arrests this past week. The 2,300 employee-strong, $450 million-a-year USCP disclosed a total of 29 arrests since the beginning of April.

The Library of Congress received a million dollar gift designated for visitor experience improvements.

EVENTS

Nothing is scheduled

Programming note: unless something major happens next week, we’re planning on skipping the First Branch Forecast or publishing a very skinny edition.