Forecast for October 5, 2020.

THE TOP LINE

This weekend has been insane. I hope you’re staying safe. Here’s some of what’s inside:

• Coronavirus and the Supreme Court: what a 47-47 Senate means for the Barrett nomination.

• How to protect Congress, its staff, the press, and everyone else.

• The House Rules Committee heard ideas on how to fix Congress — what are they?


Of course — you know us — there’s a lot more on transparency, ethics, power of the purse, and oversight.

Interested in learning more about Senate rules and procedure? We’re hosting an online Q&A, with noted Senate rules experts Sarah Binder and Matt Glassman (other guests TBA), this Thursday at 3:30 pm ET. RSVP here.

Interested in learning more about modernizing the House rules? We’re planning a briefing for House staff, but open to everyone, that focuses on how House rules are changed, some of the top recommendations made so far for reform, and an opportunity to answer your questions (in a format where your identity is protected). RSVP here for the presentation made by yours truly on Wednesday, Oct. 14, set for 4:00 pm ET.


CORONAVIRUS AND THE SUPREME COURT

Trump has Coronavirus; so do at least 3 R senators (Sens. Tillis, Lee, Johnson) and a growing number of people in Trump’s orbit. Three R senators are in quarantine (Sens. Lankford, Sasse, and Cruz), and many other Rs exposed to Coronavirus haven’t been tested or refuse to be tested (like Sen. Grassley).

• Sens. Lee, Cruz, Sasse, and Tillis, who have Coronavirus or are in quarantine, all serve on the Senate Judiciary Cmte. So does Sen. Grassley. The committee, which has 12 Republicans and 10 Democrats, had a markup this past Thursday where many senators did not wear masks. Some members of the Republican conference likely were exposed at Amy Coney Barrett’s White House super-spreader extravaganza on Saturday, Sept. 26, others likely were exposed at the weekly Republican lunch. Sen. McConnell was dodging questions about whether he’s been tested, although that could be a head fake. As a reminder: immediate testing after exposure is not clinically significant — it takes 4-5 days after exposure to yield a true positive or negative.

Sen. McConnell appears to have lost his working majority of the Senate, at least temporarily. McConnell will offer a UC today to postpone Senate business (including at least 5 judicial nominations) until Oct. 19, but the motion would not prohibit the Judiciary Committee — in hybrid proceeding — to start hearings on Amy Coney Barrett on Monday, Oct. 12. Sen. Schumer could use leverage to push McConnell into a corner w/r/t floor proceedings — my count puts the Senate at 47-47, minus 2 additional Rs unsupportive of confirmation proceedings right now — which could send the Senate into an extended tailspin that reinforces public attention to Sen. McConnell’s absence of an operational majority and the apparent inability of most Republican leaders to treat COVID-19 seriously. Sen. McConnell could also reach an agreement with Sen. Schumer to postpone proceedings until November, which is the right thing to do, and thus very, very unlikely.

Hybrid proceedings? So far, we’ve seen only a statement from Sens. Schumer and Feinstein where they argue that a confirmation hearing “threatens the health and safety” of the Senate and say that a “remote hearing … is not an adequate substitute” for in-person proceedings. A far more persuasive argument would be that holding ersatz Barrett proceedings during the pandemic and while voting in the 2020 election is ongoing would be contrary to the wishes of most Americans who want the person next elected president to choose the nominee; and jamming the proceedings through now undermines the legitimacy of the Supreme Court and puts the Senate at grave personal risk. They could further argue that Sen. McConnell, who regards himself as a serious legislator, should have joined with Democrats to pass a COVID relief bill and pushed through the Portman-Durbin legislation to allow remote deliberations. [I know, don’t quit my day job.] Will Sen. McConnell rue his statement declaring the Constitution “requires a physical quorum” and suggesting that measures passed remotely are not legitimate?

It is what it is. The Senate Judiciary is composed of 12 Republicans and 10 Democrats, and more than two Committee Republicans either have COVID or are in quarantine. Because Sen. McConnell did not change the rules, a majority of Committee members must be physically present to report the nomination, although a smaller number could hear testimony. Similarly, 51 senators must be present on the floor for passage. Given all that’s happening, the best Demoratic strategy may be to push the proceedings until after election day (at the earliest) and watch as things develop.


PROTECTING CONGRESS AND REMOTE DELIBERATIONS

Now would be a great time for Congress to roll out a testing regime and contact tracing for Capitol Hill more broadly, including Members, staff, and press. This is the position of Sen. Schumer, but Sen. McConnell and Speaker Pelosi don’t agree. (Who says bipartisanship is dead?) Pelosi reportedly said she trusts the OAP, who hasn’t recommended this yet — he had testified previously that these decisions fall in the lap of the politicals. The House altered its rapid testing program to include symptomatic Members, Members who have been exposed to someone with COVID, and staff who have been in contact with a positive covid case at the Capitol. Why not everyone at the complex? (Probably because it would overwhelm the two-dozen staff at the OAP and it would look bad.)

Our belief remains that remote deliberations are the best way to protect Members, staff, the press, and everyone else, and we have an extensive website focused on Congressional continuity. To that end, the House extended emergency proxy voting privileges through November 16th, the House’s first voting day after the election. Proxy voting in the House is way inferior to remote deliberations, but it’s lightyears ahead of the Senate.

(Parenthetical for Senate proxy voting enthusiasts: while some Senate committees allow proxy voting, it’s not what you think. It’s the ability to have your vote recorded in the committee report, not have it counted. We took a look at committee quorum and proxy rules in August.)

Since Members of Congress can’t be trusted to protect staff, a common approach in unsafe workplace environments is for staff to unionize. Can Congressional staff unionize? Some can already, and there’s a law in place that could extend it to personal, committee, and leadership staff if the House or Senate pass a simple resolution. (If you’re a struggling intern, Pay Our Interns has some relief funds available).


CONGRESSIONAL OPS & BUILDING A BETTER CONGRESS

The House Rules Member Day Hearing on Thursday gave Members an outlet to pitch reform ideas for the 117th Congress. There was prominent discussion around earmarks, cybersecurity, House operations, and the MTR. A handful of additional items caught our ears.

• How to protect Congress from being surveilled by the executive branch and he adoption of real cybersecurity protections (like 2-factor authentication).

• Changing committee jurisdictions — especially a realignment of the House Committee on Homeland Security and the recreation of a special approprops panel on Intel oversight.

• The problems with moving single Appropriations billsand with floor amendments generally. With the former, many members will vote against nearly all appropriations bills; with the latter, members will get an amendment and still vote against the underlying bill.

• The need to facilitate the movement of small bills that have political support but are 1-issue legislation. Also facilitating more member interaction with the Senate.

• Modernizing the congressional calendar.

• Retaining modernizing efforts like electronic submission of legislation and expanding upon it.

• Addressing congressional contempt.

We will publish an article summarizing the proceedings later on. Until then, check out our report that includes 130 recommendations on reforming House rules.

Congress has ramped up efforts to re-assert its authority as a co-equal branch of government this Congress; Don Wolfensberger covers main examples from the Select Committee on the Modernization of Congress to impeachment and beyond in The Hill. Pro-democracy advocates on and off the Hill have to keep the momentum going, regardless of election outcomes.

Switching chambers, Vox offered an excellent history of the filibuster that argues for its elimination.

BTW, incoming UK Parliament employees receive training & support; can we get this program in the US?


APPROPRIATIONS & POWER OF THE PURSE

The short term CR (HR 8337) that funds the government through December 11th was enacted right at the buzzer. What could go wrong with kicking government spending to the lame duck? Surely nothing else bad will happen that could interfere with keeping the lights on.

No agreement on a COVID relief bill, although the House passed another one.


ETHICS

Congress’s ethics disclosure systems aren’t working right. An extensive Roll Call story described how it is not uncommon for financial disclosure reports to be handwritten or otherwise not legible — and very difficult to use for oversight purposes — and other types of reports are not available online. My advice: require they all be filed electronically in structured data formats and publish the datasets online. If you loved the Roll Call story and want more, look at our analysis of what’s online and what’s not.

Fool me once. Rep. Donna Shalala has failed to publicly report stock sales…again; this violates federal financial disclosure laws.


TRANSPARENCY

Members are eager to talk to journalists, but scheduling a chat is harder than grabbing a Member for a minute after a vote. Sarah Wire reports on how Coronavirus has changed covering Congress.

Former government employees privy to classified information will have a difficult time publishing information after a recent court opinion suggesting materials that may contain classified information (even if they don’t actually contain classified information) must be vetted by the government.

Missed the Library’s public forum in September? The video is now available online, as is our recap of the proceedings and civil society’s recommendations for the Library.

Agencies are using COVID to shrug off FOIA requests. The Washington Post’s Nate Jones explained how this important tool, used by journalists and others to obtain information, is being stymied for a variety of reasons. (For more on FOIA, the FOIA Ombuds just released an assessment of how easy it is for non-FOIA experts to use FOIA.)

President Trump’s official physician seems to be actively misleading the press and public regarding the public’s health. I suspect this too will soon be the subject of legislation. FWIW, I love this story on whether and how the press should cover when politicians are “infirm,” which while such coverage is notable for its boldness, it’s also notable for its infrequency.


OVERSIGHT

The Joint Committee on Taxation, of all things, is in the news. If you’re a BGOV subscriber, you can learn more about them here. The only CRS reports we could find on JCT (with a cursor look) just referred to their webpage.

The Special IG for pandemic recovery needs more money and staff to conduct its work properly, BGOV reports.

Senators were given less than 40 minutes notice for a briefing with DNI Ratcliffe on election interference. The (perhaps intended) outcome was to keep everyone in the dark, and “Ratcliffe’s office later prevented some of those committee and leadership staffers from participating in the briefing.”

ODDS & ENDS

Rep. Tom Malinowski is fending off threats from QAnon followers. This follows the House Republican campaign committee falsely accusing him of lobbying to protect “sexual predators” and a “Q drop” about Malinowski following his introducing a resolution to formally condemn QAnon, Buzzfeed reports.

Who are Congress’s Science & Technology experts and what types of work are they doing in the age of COVID? The Chief scientist and managing director of GAO’s STAA team gives an overview.

EVENTS

Monday

• Tonight at 8: the Partnership for Public Service is hosting its 19th annual Samuel J. Heyman Service to America Medals (Sammies), highlighting excellence in the federal workforce tonight at 8 EDT. The event will include guests like Presidents George W. Bush and Barack Obama, Kumail Nanjiani, Nick Kroll, Samantha Bee and more. Register here.

Tuesday

• R Street presents “Congress and the Court: The Latest Chapter” at noon.

• House Admin is holding a hearing titled “Voting Rights And Election Administration: Combating Misinformation In The 2020 Election” at 1.

Wednesday

• The 17th annual Ridenhour Prize event honoring whistleblowers and truth tellers protecting the public interest is happening at 5:30.

Down the Line

• The Federal Depository Library is holding its annual conference October 20th – 23rd.

Editorial note: the emailed edition of this newsletter included a reference to a Capitol Police arrest summary from early March and incorrectly characterized it as an arrest summary from late September. It has since been deleted.