Magazine April 20, 2020, Issue

The Crisis Congress

The United States Capitol (Alex Edelman/AFP via Getty Images)
What is the legislature’s job in a national emergency?

Recent weeks have seen the U.S. Congress rise to the challenge of a public-health crisis in some impressive ways. In an era when the institution barely moves, and major bipartisan legislation has been vanishingly rare, Congress responded swiftly by passing three significant measures to combat the coronavirus. All had broad support and seem likely to be useful and effective. 

The first bill, passed on March 4, bulked up the capacity for detection, containment, and treatment of the virus with about $8 billion in grants to existing agencies at the federal and state levels. Just a week later, a second bill provided more than $100 billion in further public-health resources, worker protections, and a payroll-tax credit for employers. And then on March 27, Congress sent to the president a massive package of $2 trillion in emergency assistance to help people stay employed, to support those who do lose their jobs, to sustain businesses of all sizes through the economic hardship of the economic shutdown required to contain the coronavirus, and to support state, federal, and private efforts to fight the disease. It is hard to remember a time when Congress moved so quickly and decisively. And the public noticed: On March 25, even before the third measure passed, Gallup found that 59 percent of Americans approved of Congress’s handling of the crisis — a level of confidence in Congress rarely seen in modern times. 

And yet, even in the midst of this focused activity, the weaknesses and vices of the modern Congress have been on display. Like most major legislation in recent decades, these bills were produced without much involvement by most members of Congress. Drafted in leadership offices, they were presented to members with very little time to dig into the details. And when some members raised concerns (about the design of unemployment benefits in the third bill, for instance), they were able to draw public attention to problems but had no real opportunity to do anything about them. 

Much more important, though, the burst of crisis legislation has tended to reveal the narrowness of Congress’s own understanding of its purpose. As soon as the third bill was enacted, Congress dashed out of town and left itself few options for remaining engaged in the near-term government response. The institution stepped up to provide resources for executive action, but it did not work to empower itself to play its own crucial, ongoing role in the weeks and months ahead. 

Most notably, both houses declined to take actions to enable remote work for members. That lawmakers wanted to get home in the midst of still-tightening restrictions on travel and activity around the country is understandable. But given those restrictions, and given that several members have already tested positive for the coronavirus and many others are in high-risk groups for complications from exposure to it, members should have created a process for remote work and even remote voting. 

Senate rules allow some proxy voting in committees (though not on the floor), but only if a quorum of members is physically present to vote on behalf of those who are absent. House rules prohibit even that much, allowing no proxy voting in committee or on the floor. Neither house permits genuine remote voting. 

There are good reasons for caution on this front. Congress is a deliberative body; its work requires negotiation and depends on relationships that cannot be built or maintained by video links. Generally speaking, Congress should be assembled in order to work. But there are also good reasons to make provision for emergencies like the one we are now living through. Congress has essential work to do, and yet its members are rightly under pressure to stay out of Washington and to avoid gathering in close proximity to one another. 

The rules could acknowledge such crisis necessities by allowing, for instance, the House speaker and Senate majority leader to declare an emergency that permits, on a temporary basis, some remote legislative work for a set period of time. The technology exists to enable both deliberation and voting remotely. The executive branch has developed secure systems for video-conferencing and remote decision-making over many years, and Congress could be provided access to these systems when necessary. It is already apparent that some of the key work required to develop even major legislative measures can be done remotely: The third and largest of the coronavirus bills enacted in March was mostly formulated while members (and even leaders) were out of town, by both staff and members who were mostly working remotely. It would be reasonable to formalize such work and make it more fully legitimate. 

At this point, such a change in the rules could only be made in person. But the language required to do it should be prepared for the next time Congress assembles (which, given that the public-health crisis is still only intensifying and may require further legislative action, is likely to happen sometime in April). Both houses should even consider empowering a quorum of members to return briefly to Washington to enact such emergency provisions and thereby enable Congress as a whole to work remotely. 

That work, moreover, will need to involve more than just massive relief measures that provide funding for the work of others. The demands of this crisis should help Congress get a clearer view of the full scope of its own power and role. 

First, legislators should be prepared to take smaller steps by both authorizing and appropriating emergency government actions as required. Rather than assume that the president has the power he needs to take any necessary action in a crisis, Congress should reinforce the centrality of legislation in our system by working closely with the president and other officials at the federal and state levels to get a clear sense of what ongoing federal action is needed and to step in and legislate as circumstances warrant. Asserting its role in this way would allow for greater clarity and legitimacy in the federal response, and would help prevent turning this crisis into another excuse for burgeoning executive powers. 

Second, Congress has an essential oversight role in this period. Having just enacted more than $2 trillion in federal action, benefits, and assistance, Congress must now ensure that federal action takes the form the legislature required and is responsive to changing circumstances and public demands. This job cannot be outsourced; while inspectors general can support Congress’s oversight role, their practical powers are limited — as exemplified by President Trump’s statement, on signing the emergency relief bill, that the new special inspector general will not be allowed to report to Congress without “presidential supervision.” 

Oversight is ultimately Congress’s responsibility, and it does not occur purely in the past tense. It cannot wait until the crisis fully passes. Ongoing oversight will help to keep the president accountable and to ensure that Congress’s will is done in real time. Moreover, the best kind of oversight plays not just a negative role but a positive one: It can aid the administration’s work during the crisis by raising questions that might go unasked within agencies or inside the White House, or by offering answers that might otherwise go unheard. Oversight hearings are essential in this crisis. If they do not require formal committee votes, they can already occur remotely — and with the rules changes suggested above, they could involve every facet of committee work. 

Third, and relatedly, Congress’s oversight activities can play a crucial role in keeping the public informed. In the opening weeks of the crisis, the most significant sources of expert opinion have been provided through the administration itself, as exemplified by Dr. Anthony Fauci of the National Institutes of Health. Though understandable in the short term, the centrality of the administration in providing information is unsustainable in the longer term. The public needs information from experts who are not already part of the president’s “team.” Congressional hearings are a natural way to elevate and amplify credible views by experts from outside the administration on the state of the scientific research surrounding the virus. 

Such hearings would benefit the public generally, but they would be of particular help to state officials fighting COVID-19 on the front lines. And, in turn, when states find success with particular strategies and tactics to thwart the virus, congressional hearings can serve to highlight those successes on a national stage. In all of this, hearings could help Americans understand what their governments are doing and what they can expect. 

Finally, even as it conducts real-time oversight, Congress needs to lay the groundwork for more exhaustive ex post facto oversight by defining at least some of the metrics against which the government’s actions will someday be measured. In time, when the worst of the crisis has passed, there will certainly be a review commission established to assess the federal response and draw lessons for the future. The assistance package enacted at the end of March already called for such a review of the particular spending it authorized. By taking action now to establish the parameters for such work, Congress can make it more effective and useful when the time comes. 

In urging Congress to carry out these roles, it is worth pausing to appreciate how much better equipped our constitutional system is for grappling with crises today than it was in earlier generations. When the Constitution was written, Congress was expected to be absent for months at a time, and so the Constitution’s authors needed to preserve the executive branch’s capacity for responding unilaterally to crises. By vesting the president with an “executive power” broad and flexible enough to repel attacks and handle emergencies, and by providing a recess-appointment power enabling a president to staff his government even when the Senate was unavailable to confirm appointments, the Constitution was crafted to enable a president and his administration to hold down the fort until Congress could reassemble. This power was exemplified by President Lincoln’s management of the outbreak of the Civil War for the four months preceding the return of the 37th Congress for a special session in July 1861. Today, when our technologies for travel and communication have erased the limits that distance once imposed on governance, there is no question whether senators and representatives can do their part of governance. The only question is whether they will do it — or cede it to the executive branch. 

To do its part in the crisis, Congress must remain engaged and working. And of course, during this period it must also perform some other essential legislative work not directly related to the crisis. An intense emergency naturally draws our attention to the president. But even in a crisis, and particularly an extended one, the legislature has crucial work to do. Congress must resist the temptation to treat itself as a spectator. It must recover a clear idea of its purpose and necessity, and step up to serve the country in a time of need.

— Mr. Levin is the director of social, cultural, and constitutional studies at the American
Enterprise Institute and the editor of
National Affairs. Mr. White is a resident scholar at the
American Enterprise Institute.

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