Forecast for October 26, 2020

THE TOP LINE

Pundits, prognosticators, and pols are starting to talk openly about the interregnum between the election and the start of the 117th Congress… and what comes afterward. This NYT opinion piece, for example, outlines a pro-democracy agenda to “end minority rule” and push back on anti-democratic practices undertaken by the Trump administration and its congressional allies. On their checklist: protecting and supporting the right to vote, reducing gerrymandering, eliminating the filibuster, granting DC and PR statehood, and ending the electoral college. On ours: restoring funding to Congress and reinvigorating its powers.

We see a bumpy road ahead with ongoing efforts by the Trump administration and its allies to suppress and undermine the votebias the censusdeny election results, and unleash vigilante violence. But over the next two months there are important questions for our divided Congress, including how to address a possible government shutdown (with the CR ending in early December) and whether there will be a COVID relief bill. The US just reported the highest number of COVID infections in a single day. Had the US handled the pandemic in a similar fashion to South Korea, for example, only 2,800 people would have died thus far. The US is on track for 400,000 deaths in aggregate by the start of February, although the number of anticipated deaths would decrease by 100,000 if everyone wore masks. On the economic front, Sen. McConnell made clear he didn’t want a COVID relief bill before the election because, we think, it would force his senators to take electorally-sensitive votes and could push back the Barrett nomination; we wonder about the human toll of the delay.

Speaking of Judge Barrett, the Senate Judiciary Committee ignored its own rule (Rule III(1)) that requires two members of the minority party to be present to constitute a quorum for transacting business, and Sen. Schumer’s point of order that would have protected the rights of Committee members was voted down on the Senate floor 53-44. We’ve discussed previously the vast irregularities of the Senate proceedings concerning Judge Barrett, which Senate Democrats have highlighted by forcing the Senate majority to work its will without the usual consent granted by the minority. For all intents and purposes, Sen. McConnell has transformed the Senate into a majoritarian institution. Should Democrats take control of the Senate, the big question is whether members of that party will stay as united on protecting their agenda as Sen. McConnell has gotten his members to stay united in protecting his.

How will we know if the Dems are serious? I can’t say for sure, but an early sign will be whether Sen. Feinstein returns as chair of the Judiciary Committee. The alignment of capable committee chairs to Democratic priorities is a significant indicator of their seriousness to move forward an agenda — which will depend on how they structure their (still secret) caucus rules.

Let’s give McConnell the last word on this today. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”

LEADERS AND RULES

House Democratic Caucus. House Dem leadership races are fast approaching with a handful of contested races and an open question on whether there will be additional updates to the Caucus rules. We updated our recs for modernizing the Caucus rules and are eager to see what additional reform proposals may make it over the finish line.

Top House GOP leadership? Minority Leader McCarthy and Minority Whip Scalise are expected to run again for the top spots, although McCarthy may face a challenger if Republicans lose seats in the upcoming election.

Senator Sanders is reportedly interested in becoming a potential-president-elect Biden’s Secretary of Labor; he is in line to become Budget Committee Chair or could switch over to Energy and Natural Resources. Sen. Sanders’ departure from the Senate would give Vermont’s Republican governor a senatorial appointment (unless that state changes its laws). Should Sen. Sanders move on and Sen. Feinstein step down as Judiciary Chair, there would be an interesting domino effect at the top of a few Senate committees.

More rules. As you know by now (sorry!), we’re really interested in how the House rules might be updated in the 117th Congress and what changes the Senate might make to its standing orders and other procedures. Here are our House and Senate recs + a video outlining the House rules process.

Inherent contempt. A good government coalition sent a letter to House leadership urging them to include inherent contempt fine provisions in the next House rules package. The provision is based on H.Res. 1029, legislation from Rep. Lieu that would create a process to allow committee chairs to request a House floor vote to authorize a $100,000 fine for officials who defy congressional subpoenas. We are increasingly inclined towards an amended statutory process.

Impeach Barr? Yes, this isn’t a rule, but Attorney General Barr’s non-compliance with Congress (as well as other egregious actions) prompted us and others to send this coalition letter urging Speaker Pelosi to impeach the AG. Because of the timing, it also would have either slowed down the Barrett nomination or forced Sen. McConnell to go nuclear. Needless to say, she didn’t.

CONGRESSIONAL OPS & BUILDING A BETTER CONGRESS

Congressional access to classified information. It is not unusual for the Executive branch to play classification games to keep information from Congress and the public. Sens. Murphy and Wyden have introduced a smart bill, the Transparency in Classification Act, that (in their words) would “enhance Congressional accountability and oversight of the United States information classification system, codify the Interagency Security Classification Appeals Panel (ISCAP), establish a streamlined Congressional appeal of classification decisions, and establish whistleblower-type protections for employees that challenge classification decisions.”

GAO’s nonpartisan oversight has yielded $1.1 Trillion in savings since 1999 and more than 25,000 other improvements, according to a new white paper from the Lincoln Network. Among their recommendations: “Congress should increase appropriations for GAO, including to strengthen the Comptroller General’s ability to conduct oversight of science, technology, and acquisition programs and to prevent improper payments.”

Budget reconciliation may be used much more should Dems retake the Senate and not otherwise change the chamber rules regarding the filibuster. On the topic of the filibuster, former Majority Leader Harry Reid said VP Biden, should he be elected, “should take ‘no more than three weeks’ to test bipartisanship before ending the filibuster.”

Lawmaking around the world during COVID. iLegis and Penn Law School hosted a webinar on challenges faced by legislatures around the world during COVID. House OLC Attorney Noah Wofsy, who was a panelist, explained that lengthy time allotments for each record vote in the House — roughly 35 minutes — limited the number of recorded votes on bills, forcing many amendments to be packaged en bloc. This often forced Members, especially of the minority party, to vote against their own amendments since they are oftentimes combined with other amendments they don’t support. We gathered online resources on Continuity of Congress; we support remote deliberations on the floor.

Are you thinking about orientation for new members? We are, and we are curious about how it will change in light of the pandemic and also recommendations from the House Select Committee on the Modernization of Congress. As you know, there’s multiple orientation programs with various levels of officialness. One question: will any newly-elected Members participate in the Harvard IOP orientation after the huge controversy last time when it was revealed to be part of an elaborate effort to connect lobbyists with the newly elected and push a pro-corporate agenda? Will they publish their agenda and list of speakers and attendees in advance (or ever)? Did it go through review by the Ethics committee?

BIDEN ADMINISTRATION

VP Biden wants a bipartisan committee to study expanding SCOTUS. LOL. A bipartisan commission to study how to fix what is a partisan nominations process. The size of the Court has changed many times throughout history, including in response to who has political control, having, according to a 2005 CRS report, between six and ten members. We’ve seen a lot of proposals on this topic, many of which are impractical because they require a constitutional amendment, but there are some choices available to Congress.

Business as usual. With Pres. Trump’s politicization of the Intelligence Community, Politico suggests that a Biden administration might bring back some “old hands.” We remember these old hands — some of whom worked very hard to keep Congress in the dark and centralize power in the Executive branch and create dangerous policies (like mass domestic surveillance) that undermine our democracy and made it easier for an autocrat to misuse his powers. Strengthening whistleblower protections and the IGs are a good start, but Congress should also be thinking about classification policy, putting in place a requirement that the Executive branch receive authorization upon acting overseas, limiting the use of secret legal opinions issued by the Office of Legal Counsel, and strengthening Congressional oversight mechanisms that go beyond HPSCI and SSCI. (BTW, BGOV has a fascinating story on the $85 Billion Intel Budget request.)

Big tech and corporate power may become the defining issues of a Biden Presidency, as Matt Stoller explains.

Presidential transitions is the topic of an upcoming Transparency Caucus event on Thursday. RSVP here.

What to read on the presidential transition? I’ve been enjoying the revolving door project newsletter.

This doesn’t fit anywhere, but this chart from John Kastellec shows the decline in votes to confirm Supreme Court justices over time.

HEALTH AND SAFETY

Free COVID testing for all workers in the Capitol is what at least twelve Senate Democrats (including the RM of Leg Branch Approps and the Rules Committee) want Senate leadership to address. House Admin Committee Republicans have also been pushing to explore testing options in the House. Speaker Pelosi has indicated that the physician’s office doesn’t have the resources or capabilities to test everyone on the campus; Sen. McConnell seems to be in alignment with her. As President Trump’s illness shows, testing and tracing is not sufficient to stop the spread of COVID, although it can be a valuable tool when combined with pushing everyone to work remotely wherever possible.

Two Loeffler staffers have COVID and the Georgia senator said she tested negative on Friday. But, as we know, “four to five days after exposure is most likely to yield a true positive or negative.” Sen. Loeffler plans to disregard the safety of her colleagues and staff and vote on the Senate floor on Judge Barrett, even though she should stay in quarantine unless she receives a negative test result on Tuesday. Senior VP Pence staffers also have COVID, but the veep will continue campaigning despite being in close contact; he said he intends to preside over the confirmation vote, too.

Sen. McConnell’s hand and face are discolored and were the subject of questions to the Majority Leader by the press, which he brushed off. Sen. McConnell has refused to answer questions previously about being tested for exposure to COVID, we all remember White House lies about Pres. Trump’s exposure, and Sen. Feinstein has been the subject of questions as well, which raises (yet again) the difficult but important question of what level of candor should we should expect on matters that could affect an elected representative’s ability to do their job.

The presidential succession act is the topic of a think piece by Matt Glassman, who argues the law should be reworked to remove ambiguities.

ODDS & ENDS

The big four are meeting on the NDAA this week, even though conferees have not been named, with urgency because, in the words of House Democratic Chairman Smith, “leaving the bulk of those talks until after the Nov. 3 election is risky, possibly because certain provisions may fall prey to partisan politics based on the results.” When it comes to defense spending, elections don’t have consequences. Smith likely is trying to lock in sky high spending levels and resisting requests to lower funding by 10-20%.   

Livestream outreach. More than 430,000 people watched Rep. Ocasio-Cortez (and others!) play a video game on Twitch as part of an effort to promote voting. This was the third biggest viewership audience ever on the platform. It looked like fun.

Tackling racism in Parliament. Read this incredible op-ed from Ugbana Oyet, who recently became the first Black Serjeant-at-Arms for the House of Commons.

Steny Hoyer paid for his Congressional internship in 1962 by working for the CIA as a file clerk. Watch him explain why we need paid internships in Congress.

Capitol Police arrested 31 individuals last week, including 28 for obstructing traffic near the Senate office buildings during last Thursday’s Senate Judiciary Committee hearing. Roll Call has the story.

Congress.gov has a 2-minute survey on mobile use for its site. Let them know your thoughts.

EVENTS

Down the Line

• 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

• DOJ, OIP, and OGIS are hosting a presentation by the AI Working Group of the Chief FOIA Officers Council Technology Committee on Thursday, November 5th, 2020 from 10am to 12pm (EST). Register here.

• Lincoln Network is hosting its 7th Annual Reboot Conference on November 6th, 9th, and 10th. The sessions will explore the intersection of technology, media, and public policy.