Constitutent Service and Coronavirus

The Davidson book distinguishes Congress as a representative assembly from Congress as a lawmaking body.  In practice, there is a overlap between the two Congresses:  as Jill Lawrence explains, constituent service uncovered the VA scandal, which in turn triggered VA reform legislation.

As Kevin Kosar points out, constituent service is now more important than ever:

Consider:

1. The recently enacted Coronavirus Aid, Relief, and Economic Security Act (CARES) is 247 pages long and quite complex.
2. The threat of coronavirus has led legislators in both the House of Representatives and Senate to bail back to their home districts and states.
3. That it was Congress that enacted the CARES Act, which media frequently misidentify as the “Trump stimulus package.”

Altogether these facts argue for each member of Congress to direct his or her office’s energies more heavily toward constituent services. Immediately.

Not least because voters will struggle to understand just how the CARES Act can help them, and also will need help dealing with executive branch bureaucracies in charge of dispensing aid. (And there are and will be challenges.)

Then there’s the more mundane political truth: helping voters and claiming credit for government assistance is smart politics. The $2 trillion in CARES Act benefits were dispensed by Congress, and every legislator rightly can help voters remember that it was the legislature that is the source for the assistance.

And that objective will not be achieved by sitting back and letting the Administration claim credit, and by hoping folks can get the answers they need via surfing to SBA.gov and SSA.gov.

Matt Fuller at Huffington Post:

Short of going to the hospital, there isn’t much help for normal people if they catch the coronavirus. But if a member of Congress contracts COVID-19, they have a special number they can call.

According to an email obtained by HuffPost, the White House has created an “emergency” hotline for congressional lawmakers should they get sick or have issues in their districts related to the coronavirus. The email sent from the White House to members of Congress notes that this hotline ― which is being manned by former Rep. John Fleming (R-La.), a doctor ― is “only for emergencies.”

“To reiterate, this hotline is to be used for emergency coronavirus-specific questions and inquiries,” the email reads (italics and bold in the original).

That doesn’t mean the number is just to serve lawmakers if they get sick. A senior White House official confirmed to HuffPost that the hotline is meant for members to inquire about emergency issues they might be having in their states and districts. But it is also a potential access point to serve them if they do contract the coronavirus.

The email from the White House notes that this number is to be distributed to “Members and Senators only,” and includes a list of agency numbers and emails for nonemergency issues.

A Real Presidential Letter

Letter from President Donald J. Trump to Senator Charles E. Schumer April 2, 2020

House Select Committee on the Coronavirus Crisis

Speaker Pelosi's Dear Colleague to All Members Announcing House Select Committee on the Coronavirus Crisis:

The greatness of our nation is its ability to rise to extraordinary challenges, no matter how big. Now is such a time. We face a deadly virus and a battered economy with millions of Americans suddenly out of work. Congress has taken an important step in meeting this crisis by passing three bills with over $2 trillion dollars in emergency relief. We need to ensure those tax dollars are spent carefully and effectively.

Our country faced a similar challenge eighty years ago in the beginning days of World War II. Billions of dollars were going to be spent quickly to defeat a global menace. Then-Senator Harry Truman immediately recognized the urgency of oversight and accountability in making sure the money did what it was supposed to do. The Senate agreed and put Senator Truman in charge of a Special Committee to Investigate the National Defense Program.

Years later, President Truman looked back at the time and summarized his view: “I knew that after the First World War there’d been a hundred and sixteen investigating committees after the fact, and I felt that one committee before the fact would prevent a lot of waste and maybe even save some lives, and that’s the way it worked out.”
President Truman couldn’t have been more right. The Truman Committee turned into a tremendous investment for taxpayers. Its total cost was less than $1 million dollars and it saved lives and nearly $15 billion by preventing fraud, waste and abuse.

What made sense then makes even more sense now. In the coming months, over $2 trillion will be spent on this rescue effort.

That is why, I am announcing the formation of a special bipartisan oversight panel: the House Select Committee on the Coronavirus Crisis, to be chaired by Majority Whip Jim Clyburn. Its purpose is to ensure that the over $2 trillion that Congress has dedicated to this battle – and any additional funds Congress provides in future legislation – are spent wisely and effectively.

We have no higher priority than making sure the money gets to those working families – struggling to pay rent and put food on the table – who need it most. The panel will root out waste, fraud, and abuse. It will protect against price gouging and profiteering. It will press to ensure that the federal response is based on the best possible science and guided by the nation’s best health experts.

The House Select Committee on the Coronavirus Crisis will be bipartisan and have an expert staff. The committee will be empowered to examine all aspects of the federal response to the coronavirus to ensure that taxpayer dollars are being wisely and efficiently spent to save lives, deliver relief and benefit our economy.

Thank you for your concern for the American people.

At The Washington Post, Paul Kane and Erica Werner report on a detail that dovetails with our class discussion this week:

She said the new committee will have the full investigative authorities of any congressional oversight committee. “It’s no use having a committee unless you have subpoena power," Pelosi said.

Since Democrats took control of the House in January 2019, Trump and his administration have repeatedly ignored House subpoenas related to the Mueller report, the Ukraine investigation and other issues, forcing Democrats to ask the courts to compel former and current administration officials to comply.

The select committee would supplement oversight mechanisms that Democrats pushed to include in the $2 trillion rescue package signed into law on Friday. Some experts are already questioning how effective those mechanisms can be.

Administration, Oversight, and the Courts

NAIL:   Nominations, Appropriations, Investigations, Legislation

Nominations 

• Extent of confirmation power
• Nominations: Senate data
• Cabinet nominations rejected or withdrawn
• Hearings:  Whitehouse and White; DeVos

Appropriations

• Limitation riders and the case of ACA

Investigation and Oversight

• GAO -
• CBO
• CRS
• Diminished institutional capacity

Legislation:  Executive Branch Organization and Laws on Reporting 

• Inspectors General  (POTUS WAS DISPLEASED!)
• Reporting requirements
• The old legislative veto and the Congressional Review Act.  Democrats do not like it now, but will like it more if they get unified control.
• Congress "organizes" the executive:
  --  The "organization" of DHS.
-- DNI and the intelligence community

26 USC 6103

Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

Subpoenas and Contempt of Congress

• The definitive encyclopedia article!
• Inherent contempt
• Civil contempt 
• Criminal contempt

A check on the court:  jurisdiction-stripping, or court-stripping -- still in the news

Supreme Court Nominations

Clarence Thomas:






In hearings, senators try to get judicial nominees on the record.  NOTE WHAT ALITO SAYS (START AT 18:45) ABOUT STARE DECISIS.





Merrick Garland and "the Biden Rule" 

Gorsuch and the nuclear option 

Blue Slips and Senatorial Courtesy (Davidson, 369)

Suing the president... a Stag (Liz Wydra `98) explains it all:

Sen. Loeffler Reports More Insider Trading Than Previously Thought

The Atlanta Journal-Constitution reports that in addition to selling $18.7 million of Intercontinental Exchange stocks, Senator Loeffler and her husband also sold shares in retail stores such as Lululemon and TJ-Maxx and invested in a company that makes PPE garments.

Senator Loeffler's spokesperson claimed that the sales and purchases were made through a blind trust.

My questions for Professor Pitney are: What is the precedent for insider trading amidst global or national crises? I imagine that this is a common practice. What are some other examples? Do inside traders usually get away with it? Do members of Congress use spouses to remove liability? Are blind trusts actually blind?

Q and A

Here are some questions that we might not be able to discuss during the class today.

Sam asks:

Why are presidents vetoing fewer bills than in the past?  This NPR article (click the link) is a few years old, but still provides a good answer:  among several other things, SAPs have stopped bills long before they got to the president's desk.

What is the role of OIRA?  From CRS:

E.O. 12866, issued by President William Clinton in 1993, calls for OIRA to review “significant” regulatory actions at both the proposed and final rule stage. The order also requires agencies to assess potential costs and benefits for “significant” rules, and, for those deemed as “economically significant” regulatory actions, agencies are required to perform a cost-benefit analysis and assess the costs and benefits of “reasonably feasible alternatives” to the planned rule.22 Furthermore, under E.O. 12866, agencies generally must “propose or adopt a regulation only upon a reasoned determination that the benefits” of the rule “justify its costs.” E.O. 12866’s requirements for OIRA review and cost-benefit analysis do not apply to independent regulatory agencies. 

Is it high-profile?  Sometimes.  Famed legal scholar Cass Sunstein headed OIRA in Obam's first three years.

Jensen asks about a report that DOJ has requested legislation to suspend the writ of habeas corpus in certain cases during the emergency.   The Constitution does empower Congress to suspend the writ "during Rebellion or Invasion" but it is hard to see how the current crisis qualifies.  Difficult questions of constitutional interpretation arise with issues that the Framers could not have anticipated (e.g., regulation of the broadcast spectrum).  This crisis is not one of those issues. By the late 18th century, the practice of quarantine during epidemics was already hundreds of years old.

Augusta asks about filibuster flip-flops.  In 2012, Manu Raju wrote at Politico:

An angry Harry Reid took to the floor Thursday and demanded changes to the Senate’s hallowed filibuster rules, siding with junior Democrats who have sought to substantially weaken the powerful delaying tactic.

It’s a risky move for the Senate majority leader, who could find himself in the minority in a matter of months and need the filibuster to block the GOP’s agenda. But Reid — who struck a “gentleman’s agreement” last year with Senate Minority Leader Mitch McConnell to preserve the filibuster from an effort by Sens. Tom Udall (D-N.M.) and Jeff. Merkley (D-Ore.) to water it down — signaled he is now on board with their effort given the gridlock in the Senate.

“If there were ever a time when Tom Udall and Jeff Merkley were prophetic, it’s tonight,” Reid said on the floor. “These two young, fine senators said it was time to change the rules of the Senate, and we didn’t. They were right. The rest of us were wrong — or most of us, anyway. What a shame.”

As Augusta points out, Merkley himself later switched sides, mounting a symbolic faux-filibuster against Gorsuch.  Is there any political price to pay for such flip-flops?  Nope.  NORMALS DO NOT CARE ABOUT PROCEDURE.  Whether the issue is the filibuster, budget process, restrictive rules, or PAC reform, ordinary Americans know little and care less.

Oversight and Coronavirus

Schumer and other Senate Democrats wrote the Treasury Secretary Mnuchin, reminding him that a deal is a deal

We write regarding the President’s signing statement for the “Coronavirus Aid, Relief, and Economic Security Act” (the CARES Act). Upon signing the CARES Act, President Trump issued a statement claiming the right to interfere with the Special Inspector General for Pandemic Recovery (SIGPR) designated under the Act. The CARES Act passed Congress with overwhelming bipartisan support, and it was made clear to the Administration that strong oversight was critical to gaining that bipartisan support. The use of a signing statement by this and past presidents to undermine the ability of Inspectors General to provide Congress statutorily-required information is troubling and unacceptable. Faithful application of the law is not optional. It is a requirement.
...
You, on behalf of the Administration, negotiated and agreed to the scope and terms of the SIGPR authority, both generally to Congress and to each of us personally. This oversight authority was critical for gaining support for your request for over $500 billion to aid struggling companies, states, municipalities, and other troubled entities. Provision of these funds was conditioned on the SIGPR’s creation. As such, the SIGPR’s unfettered operation is not only a legal necessity, but also a condition you personally agreed to – SIGPR’s structure is your structure, and it imperative that you defend it.

As we discussed on Monday, Congress has other means of oversight.  But it is hard to do oversight when Congress is out of town until April 20, and physical meetings are hazardous.  Kyle Cheney and Melanie Zanona at Politico:

Pelosi has promised robust oversight but has also signaled that any probes into early failures by the administration would likely have to wait until after the immediate emergency subsides; she has called repeatedly for an “after-action review.”

[CA Democrat Katie] Porter said she’s voiced to House leaders the urgency of appointing members to the congressional oversight commission, noting Treasury will imminently start pumping billions of dollars into the economy, even as the safeguards on those decisions aren’t in place. Porter added she’s written to Pelosi and expressed her interest in serving as the speaker’s appointee on the panel, noting her background on the Oversight and Financial Services committees.

Porter is pretty good at oversight:

I did the math: a full battery of coronavirus testing costs at minimum $1,331.

I also did the legal research: the Administration has the authority to make testing free for every American TODAY.

I secured a commitment from a high-level Trump official that they’d actually do it. pic.twitter.com/RmolCtmNbG

— Rep. Katie Porter (@RepKatiePorter) March 12, 2020