Forecast for October 12, 2020

Welcome to a shorter-than-normal First Branch Forecast. You might notice that we get more political than usual at parts of this week’s newsletter. Our focus is on a strong and capable legislative branch, and I can’t think of a more honest way to present the material. I hope it still provides useful insights.

THE TOP LINE
The Senate Judiciary Committee holds the first day of its norm-defying SCOTUS confirmation hearing for Judge Barrett this morning. How might it play out? We hosted a discussion late last week with experts on Senate procedure that you can watch here.

No COVID relief. Pres. Trump now says he wants a relief bill coming in above $2.2T while Senate Republicans are below $1T. What this means is that Pres. Trump wants to campaign on non-existent COVID relief (to rally the stock market) and Senate R’s are leery about getting primaried in 2022 for supporting the measure. This might be the start of the post-Trump era in the Senate (but not necessarily post-Trumpism).

Wait, what? Yeah, certain Senate Republicans are gingerly putting distance between themselves and the president, and we can all speculate why. My cynical view is that the absence of a significant COVID-relief bill; the failure to advance approps, the upcoming CR fight, and possible government shut-down; and a rushed effort to remake the SCOTUS are all tacit recognition by Senate R leadership of a likely Biden administration and Democratic Congress. In short, I think they are setting up time bombs to blow up the transition and sink the incoming administration.

The 25th Amendment. Rep. Raskin introduced legislation with 38 co-sponsors establishing an independent commission on presidential capacity, H.R. 8548 — Congress.gov doesn’t have the bill text, but it’s on Rep. Raskin’s website. The bill establishes, per clause 4 of the 25th amendment, a permanent body that with the concurrence of the Vice President can declare the President is “unable to discharge the powers and duties of his office.”

How should the House approps process be improved? Read our coalition letter to the three Reps vying for the top spot on the Committee. As a taste, we suggest restoring staff designees to every appropriator and restoring funding for the leg branch.

Reforming the House rules? Every Congress nerd’s biennial calendar is built around the House’s adoption of new rules, which is coming up fast. How can you learn more? Join our online briefing this Wednesday at 4pm. RSVP here. Can’t wait? You can always read our recs.

COVID AND CONGRESS
This is reasonable. Sens. Schumer and Klobuchar introduced a resolution & pushed the Senate to ban Senators from the floor and committees without a negative COVID test, require masks in all public areas of Senate buildings, mandate testing procedures and contact tracing, and provide stringent social distancing guidance. Earlier in the week, Leader Schumer called on Senators and staffers who participate in the Senate Judiciary proceedings to have two negative tests on two consecutive days before taking part, as well as daily testing during the hearings. S. Jud. Cmte Chair Lindsay Graham has been unwilling to get tested as of Friday — and many other Republican Senators are unwilling to get tested. So far, Joni Ernst is the only S. Jud. Cmte Republican calling for committee members to get tested.

This is not reasonable. Some Senate GOP advisors are suggesting that COVID-stricken Senators vote from inside the Senate chamber from the visitors’ galleries. Sen. Johnson, who tested positive last weekend, suggested he would go into the chamber in a “moon suit.” As much as we’d be entertained by recreating this scene from ET: the Extra-Terrestrial, it is incredibly dangerous to bring people with contagious, lethal diseases into the Senate.

Twenty more front-line workers on Capitol Hill have tested positive, bringing the total number of known cases to 123 among legislative branch employees and contractors as of September. This number does not include legislative staff. Speaking of….

Don’t tell. Two staffers in Rep. Lamborn’s office tested positive while other office staffers were told not to tell housemates about potential exposure. More Members, including Reps. Carbajal and Bost, tested positive last week, bringing the total number of lawmakers who have tested positive for COVID-19 to 21 and an unknown number of personal, committee, & leadership staff.

Who is protecting the press? The committee representing journalists at the Capitol wrote to Speaker Pelosi and Leader McConnell requesting additional COVID-19 safety precautions, including greater access to testing for essential workers, support staff, Congressional staff, and press; contact tracing; and Members keeping their masks on.

An unsafe work environment. Norm Ornstein wrote about his firsthand perspective of GOP lawmakers not taking safety protocols during the first (and only?) presidential debate, and how the shock wave of positive tests in the executive branch further emphasizes the lack of continuity provisions built into our governmental structures.

We fear the Senate will be the setting for a super-spreader event like President Trump’s roll out of the Barrett nomination. (The lack of consideration for the people who work on the hill will continue to drive them to leave.)

SCOTUS
Unusual. The nomination proceeding for Judge Barrett that starts today will be unusual in virtually every respect. Sen. McConnell lowered to 51 the threshold for Supreme Court nominees to advance for a final vote; made up a rule to refuse to give Merrick Garland a hearing but is now advancing a nominee in defiance of that rule; is holding proceedings while a federal election is ongoing and a majority of voters want the next president to pick the nominee; will be allowing committee members to participate virtually despite having opposed remote proceedings back in March; and is forging forward with non-essential legislative activities in the face of deadly, contagious global pandemic that has been contracted by at least several Senators — all while refusing to institute a testing regimen that could identify other ill senators (and thus force them to be absent for votes essential to meet the sped-up timeline).

• Also, the current president has contracted a life-threatening illness and may be under the influence of mind-altering medication, and several Republican senators (including the committee chair) said they’d support the nominee even without knowing who it was.

• And don’t forget that Sen. McConnell and Senate Republicans also had suggested shrinking the size of the Supreme Court had Hillary Clinton won the presidency.

Why did I say all that? Sen. McConnell’s goal is to make this look like business as usual. E.g., let the hearing be a pie fight, encourage the media to #bothsides the proceedings, and move everybody along. Yet this is odd. Really odd. Supremely odd. We have to remember this is all about power. Both Pres. Trump and VP Pence have repeatedly said they would not commit to a peaceful transition of power. This SCOTUS nominee is another version of that: putting a person in place to cement domination of the court to further tilt the political playing field towards money and away from fair elections and to work to undermine decisions made by the people’s duly-elected representatives for decades to come.

The only reasonable response from Senate Democrats is to obstruct, delay, and act-out. They’d be crazy not to. They might be able to delay things until after the election, and considering the pandemic, they should do everything they can to play for time. (As an aside, there’s a cottage industry around whether Sen. Feinstein is up to this (or any) task; based on the stories in Politico and the NYT, Dems have reason to be worried.) Meanwhile, the majority-rule Senate is a fact, and it’s been here since Sen. McConnell came to power. His agenda has largely been negative from a legislative perspective, so he has only had to nibble at the legislative filibuster. The major question left is whether Democrats realize the new reality and, should they come to power, act accordingly to update the chamber’s rules, jam through their priorities, and redress the political structures that are slanted against them.

FWIW, Roll Call plays out scenarios on how a Dem electoral sweep could restore Congress’s power.

CONGRESSIONAL OPS & BUILDING A BETTER CONGRESS
The Fix Congress Committee released a draft of its final report (it’s extensive and very good).

Archiving social media accounts. Former Rep. Katie Hill claimed that her Twitter account was “hacked” by her former staff, who alleged abuse and leveled other criticisms. Hill claimed that she handed over the account to the House Clerk’s office once she left office, but POPVOX’s Marci Harris explains that isn’t how it works (and puts forward some ideas on how it should).

The Congressional Management Foundation announced its winners of the 2020 Democracy Awards. Congrats!

TRANSPARENCY
More virtual SCOTUS. The Supreme Court announced it will continue to hear oral arguments for November and December via teleconference with live audio. As our friends at the Reporters Committee for Freedom of the Press point out, SCOTUS should make live audio permanent instead of just providing monthly updates. (Video would be nice, too.)

ETHICS
Fifth time’s the charm? Former Rep. Chris Collins is trying to delay reporting to prison on October 13th for the fifth time, citing coronavirus concerns.

Free space. Rep. Jim Hagedorn may have violated federal election law by utilizing a rent-free campaign office supplied by a political donor for at least seven years.

The Brennan Center released its recommendations to restore integrity and accountability in government, which draw on the work of the center’s bipartisan National Task Force on Rule of Law & Democracy.

ODDS & ENDS
Women politicians see much higher online threats than male counterparts, according to a new report. Reps. AOC and Omar, by a large margin, are targeted with the highest proportion of abuse and hate online. (Some very prominent tweets by the Tweeter-in-Chief have been fanning the flames.) The report also finds that social media platforms like Twitter and Facebook have policies in place that can curtail harassment, but they are rarely enforced.

Rep. Steve Womack is now the ranking member on the Financial Services Subcommittee on Appropriations, replacing Rep. Tom Graves, who retired last week.

Capitol Police reported zero arrests last week. ICYMI, former USCP Officer Vincent Arenas was present during the shooting of Jacob Blake and involved in the incident; we can’t see Arenas’s disciplinary record from his time with USCP though as the department only shares summary statistics on officer misconduct.

Calling all interns. If you haven’t already, you should subscribe to the Capitol Hill Intern Update, weekly newsletter dedicated to helping provide resources and information to congressional interns.

Superspreader. Washington DC saw a brief surge in Covid-19 cases this past week that coincided with the rising number of Trump administration positives. Daily cases hit 105 last Monday, the most since June 2.

EVENTS
• Senate Judiciary Committee is holding hearings on the “Nomination of the Honorable Amy Coney Barret to be an Associate Justice of the Supreme Court of the United States” Monday through Thursday starting at 9am in 216 Hart.

Down the Line

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

• Code for America is hosting a panel titled “Getting the Right Data to the Right People at the Right Time” on data sharing within the government on Weds. October 21st at 10 PT/1 EST; register here.

• The Levin Center and the Wayne State University Law Review are holding the third and final online panel in their 2020 series examining congressional oversight of technology and science issues on Thursday, October 29th, from 3:00-4:15pm. RSVP