Forecast For November 2, 2020.

THE TOP LINE

With so much attention on what will happen when voting wraps up tomorrow, our little newsletter will stay focused on what comes next. (But we will cover implications for Congress if, as Axios suggests is already in the works, Pres. Trump prematurely claims victory and tries to undermine vote counting.)

Money problems. Sen. McConnell said there won’t be a COVID deal during the lame duck, which comes after he told the White House he wouldn’t support a deal before the election. He’s likely protecting his members from taking tough votes that could hurt them in 2022 and trying to set up the next administration for failure. None of this bodes well for when the CR ends on December 11th. What will Sen. McConnell be focused on instead… do you have to ask?

Musical chairs. AFAICT, leadership races and chair elections are set for November. House Dems will hold caucus elections on Nov. 18-19, with contested committee races on Nov. 30. We don’t know the timing for everyone else, but we expect our journalist friends to cover that shortly in their curtain-raisers.

Fixing Congress. House Admin published a handful of Clerk and CAO reports on efforts to modernize the House. More below. Here are our ideas for fixing the House and Senate.

THE POWER OF THE PURSE

A partial government shutdown is on the horizon if Congress and the White House can’t agree on another stopgap funding deal before December 11th. The Senate GOP-controlled Appropriations Committee hasn’t released a single bill, although news reports suggest that the Senate is using the unintroduced, unpassed legislation as base text to negotiate with the House.

Speaker Pelosi wants a deal during the lame duck to clear the plate for Biden’s first 100 days, which seems weird to us. Why wouldn’t the House Democratic Speaker want to stamp Democratic priorities into the approps bills in the circumstances where Dems control the House, Senate, and White House? Our best guess is the post-inauguration COVID relief bill will contain her priorities while skipping the consultation process.

Congress has endowed the Executive branch “with a troubling level of discretion that allows it to circumvent Congress’s spending decisions,” according to Molly Reynolds and Phillip Wallach in a new AEI report. After covering circumstances where the Executive branch has flat-footed Congress and describing various spending control mechanisms, Reynolds and Wallach lay out a series of reform recommendations. They include—

• Changing existing statutes that govern post-congressional components of federal spending decisions, such as those that relate to disclosing apportionment decisions, fixing the impoundment process to prevent last minute recissions, and amending the Antideficiency Act to narrow the scope of emergencies and force agencies to align with GAO on reporting violations.

• Reforming statutes that allow the president to declare national emergencies, which activates transfer authorities. For example, amend the National Emergencies Act so that presidential declarations automatically sunset after 30 days. Also, strengthen Congress itself, such as GAO’s Office of General Counsel as well as congressional committees, and require agencies to respond to GAO regarding potential violations.

• Because courts are slow and cannot be counted on, Congress must use its own tools to defend its prerogatives. This includes expanding the use of riders that prohibit or restrict spending, withdrawing or limiting existing transfer authorities, threatening to defund agencies, and threatening to withhold funding from the EOP.

MODERNIZING CONGRESSIONAL TECHNOLOGY

Four modernization reports were posted on House Admin’s website this past week: three from the Clerk, one from the CAO. Many more reports are past due; we will publish our checklist in a future issue. Here’s a quick overview.

• The comparative print project — which would show how an amendment would change a bill, how a bill would change a law, and compares two different bills — is the topic of a lengthy report by the Clerk, with excellent screen-shots of how the new tool would operate. A pilot project group of 13 individuals is already using the tools that show how a bill would amend the law and a comparison of two bills, although the amendment-to-bill tool will be rolled out to the pilot group by later this year. The Clerk expects a beta version of the tool to be released House-wide by 2021, although there’s no indication of when (or whether) this would become available to the public.

• Adopting Standardized Formats for Legislative Documents was the topic of a 1-page report from the House Clerk, which discussed ongoing efforts to publish leg docs in USLM (which is a way of describing elements in a legislative document so a computer can tell what they are). The report contains a roadmap for publishing legislative documents in USLM, with the current phase of transforming legacy Statue Compilation files into USLM expected to be completed in 2021.

• Assigning unique identifiers for reports filed by lobbyists, which would allow the identification of lobbyists across multiple filings, appears to have reached a fork in the road where House Admin and Senate Rules must weigh in. The current database of 20,000 lobbyists contains duplicate accounts, erroneous data, and so on, and Congress must either try to incrementally improve the database or rebuild the system to “bring more integrity, transparency, and accountability” to lobbyist account management data. As the Center for Responsive Politics already does this with their OpenSecrets website perhaps there are lessons that Congress could glean from their experience.

• Web accessibility for persons with disabilities is the subject of a July 24, 2020 report from the CAO, although it really appears more to be a series of powerpoint slides. The House CAO identified and fixed a range of issues that impeded accessibility of House websites, although a number of committees appear to be a work in progress. It’s hard to tell from the slides the scope of what was undertaken.

With so many new members coming in, we will be interested to watch how orientation takes places virtually, what it’s like for new House members to have a staffer to help them out, how hard it is for the House and Senate to update data and systems for the new Members, how Committees transfer their records to NARA, and what the office lotto will look like. (We have a new interest in lotto systems.)

NDAA

A new Defense Spending Reduction Caucus by progressive House Members next Congress will be a key point of leverage against runaway defense spending. The new caucus, led by Reps. Pocan and Lee, will bring together lawmakers who aim to cut defense spending and redirect the money toward domestic priorities like healthcare and economic equality opportunities.

House Progressives pushed unsuccessfully for a 10% cut to defense spending during the NDAA vote in July, but the amendment failed 93-324. In the Senate, Sen. Sanders’ amendment for the cut also failed 23-77, but got votes from Minority Leader Schumer and Whip Durbin, who is also the top Dem on the Defense Approps subcommittee.

Meanwhile, House Armed Services Chair Adam Smith doesn’t see significant cuts to the $740 Billion in defense spending. We cannot help but wonder if rising cries for austerity combined with the need for COVID help and the DOD’s misspending of emergency defense funds will lead to a reprioritization of funds.

SCOTUS

Amy Coney Barrett was confirmed by the Senate Monday by a 52-48 vote, which is the first time a Supreme Court justice has been confirmed without opposition support since 1869. From start to finish, the whole process was a precedent-breaking exercise that reflected the desire of Sen. McConnell to turn the “world’s greatest deliberative body” into a judicial confirmation factory.

• Legitimacy concerns arising from Sen. McConnell’s stacking the court (and stymying Democratic efforts under President Obama to move his nominees forward) have elevated calls for reform, with the NYT proposing six ideas while the Atlantic’s Adam Serwer argues that the court’s continued attacks on voting rights justifies adding more justices.

PARTIES, CAUCUSES, AND LEADERSHIP

The Progressive Caucus is looking at internal reforms to strengthen its leverage inside the House by creating a tighter coalition. The biggest operational change looks to be consolidating leadership of the caucus from two chairs to one (Rep. Jayapal). CPC also plans stricter membership requirements, including allowing any member to request a formal caucus position on bills and a mandatory 50% attendance policy. Most importantly, if a position wins two-thirds support among the CPC, caucus Members will be largely expected to vote en bloc.

Cheney’s trial balloonPOLITICO has a lengthy look at Rep. Liz Cheney, who may try to move up the ranks of the Republican conference if the election results suggest weakness at the top.

Dianne Feinstein? We’re hearing more and more speculation about what might happen regarding Senate Judiciary Committee leadership should the Democrats retake the Senate. So far, we still haven’t seen the Senate Democratic caucus rules, which might help us understand some of what’s possible. Speaking of musical chairs, POLITICO looked at who is likely to run the committees should the Dems retake the Senate.

CONGRESSIONAL OPS

Budget reconciliation may become a useful tool if Dems sweep the election tomorrow. (Assuming there’s still a legislative filibuster.) Check out the House Budget Committee’s brief on the topic.

Lawmaking Around the World in the Time of COVID-19, the iLegis and UPenn webinarposted the video of the event. As we mentioned last week, it was a highly informative discussion and is well worth the watch.

Hybrid, eh? The Canadian Senate unveiled new rules to allow its senators to hold hybrid debates within the chamber.

Put a pin in it. We’re going to have to discuss moving the House to fully remote proceedings and updating how the Senate operates. The pandemic isn’t slowing down, but it has slowed down both chambers. Proxy voting on the House floor should give way to fully remote proceedings, at least for the time being.

BIDEN ADMINISTRATION

If Biden wins, it will be the second time in recent memory a Democratic president-elect is faced with taking office during an economic crisis inherited from a deeply unpopular predecessor. Our friend Norm Ornstein has some decent ideas about how Biden should spend his first 100 days.

Sen. Warren is vying to become Biden’s treasury secretary. While some progressives worry that this pick could give the MA GOP governor power to appoint an interim senator before a special election, it seems like the super majority democratic controlled state legislature would change the laws to constrain any appointment, as several states have already done. Her departure, however, would change the nature of the Senate Democratic caucus in a significant way.

OVERSIGHT

Everything you ever wanted. The New Yorker‘s Ronan Farrow has what is probably the best coverage of a government trainwreck I’ve seen in a long time and illustrates to me how congressional oversight by HPSCI and SSCI is beyond broken. A Department of Justice prosecutor figured out that CIA information was being infused into a database to support domestic prosecutions of drug dealers. (This is problematic because there’s a lower standard for engaging in foreign surveillance than domestic; and that prosecutors were being deliberately mislead by this surveillance laundering to believe the information came from the FBI.) When he blew the whistle — following proper procedure — he was retaliated against by his employer, the FBI, acting under pressure from the CIA, apparently at the behest of its director, Gina Haspel. My favorite part: “Michael V. Hayden, who directed the C.I.A. under Presidents George W. Bush and Barack Obama, cautioned that law enforcement is not allowed to fabricate information, but he insisted that some programs are too sensitive for even limited court consultations, and defended the use of concealed intelligence in domestic trials.”  Lol, no. Read the article.

Bipartisan legislation to formally authorize the IG community’s website was introduced in the House and Senate last week. For context, CIGIE launched Oversight.gov in 2017 to integrate reports from the 73 IGs across all agencies for easier access. The proposed legislation would provide $3.5 million in “revolving funds” over 10 years for website maintenance. (Disclosure: we advocated for the creation of the website.)

FOIA Exemption 5, which allows agencies to withhold from disclosure inter-agency or intra-agency memorandums or letters in certain circumstances is the subject of a Supreme Court argument today in U.S. Fish and Game Service v. Sierra Club. (Listen here). SCOTUSBlog describes the question presented as “Whether Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protects against compelled disclosure of a federal agency’s draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973 and that concerned a proposed agency action that was later modified in the consultation process.”

ETHICS

That’s personal. Looks like Rep. Mooney spent almost $50,000 in campaign funds for personal use, including paddle board rentals, wineries, and Chick-Fil-A.

Rep. Bacon paid over $50,000 from his MRA to pay for campaign consultants, another apparent violation.

ODDS & ENDS

Another rep has COVID — Drew Ferguson — bringing the total number of lawmakers who have tested positive for COVID-19 to 22 and an unknown number of personal, committee, and leadership staff.

QOP. Examine the list of incoming GOP Members that CNN has connected to the QAnon conspiracy theory.

Capitol Police arrested 14 people this past week, including six for obstructing traffic near Dirksen last Monday during the Senate’s confirmation of Amy Coney Barrett.

Vanity Fair has an extensive profile on Rep. AOC.

The Progressive Talent Pipeline has extended its application deadline to November 15 for the 2020 cohort. The program identifies, endorses, trains, and recommends a diverse slate of committed progressives for staff roles in Congress and the executive branch. We encourage you to share this announcement with your network.

The only one? Read this fascinating story on Jed Wagner and the history of legacy computer systems?

The CBC, that’s the Canadian Broadcasting System, has a report on lessons learned from what they see as a failing state to the south.

The Electoral College was primed to be abolished in 1970? A lesser-known history of the bipartisan effort to amend the Constitution.

EVENTS

Thursday

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

Friday

• 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.

Down the Line

• The Progressive Caucus Center is hosting their Progressive Strategy Summit on November 12th and 13th. Registration is free.

• Advisory Committee on the Records of Congress is holding their next meeting on Monday, December 7th, 2020 at 1pm. Register here.