Chapter 9: Continuity of Congress

Image 9.1: Chair Derek Kilmer, Vice Chair Tom Graves, and Select Committee
members during the final business meeting.

Image 9.1: Chair Derek Kilmer, Vice Chair Tom Graves, and Select Committee members during the final business meeting

The second session of the 116th Congress convened on January 7, 2020 just as news of a deadly virus was spreading across the globe. The first confirmed case of a novel coronavirus in the United States was reported on January 21, 2020 in Washington state, and by March 11, 2020 this novel coronavirus was declared a pandemic by the World Health Organization (WHO).[205] The virus, which later came to be known as COVID-19, quickly overwhelmed the nation’s health care systems and wreaked havoc on the U.S. economy. In an effort to prevent the disease from spreading, businesses, schools, and governments across the country moved to remote status or closed all together. On March 12, 2020, the U.S. Capitol closed to visitors, and congressional offices were encouraged to move to remote operating status.[206]

Members and staff mostly shifted focus to working directly with constituents to help assist them with the many health and economic emergencies they faced. At the same time, many congressional offices were grappling with the transition to telework—a status that runs counter to Congress’ in-person work traditions. Like many of their institutional counterparts in the United States and abroad, Congress was faced with the challenge of maintaining continuity of governance and operations.

Within weeks it became clear that the COVID-19 pandemic was not a short-term crisis. As the virus waned in some regions of the U.S., it surged in others. And as states began lifting stay-at-home orders, cases reappeared and forced additional closures. Addressing the nation’s faltering economy would require Congress’ sustained focus over many months—a task made more daunting by public health guidelines to avoid travel, wear masks, maintain social distance, and telework if possible. 

These restrictions raised many questions about how Congress would effectively continue to do the “people’s work.” The House Committee on Rules and the Committee on House Administration were tasked with figuring out institutional changes, like remote voting procedures and committee continuity. The recommendations of both committees were included in H. Res. 965, which authorized proxy voting and allowed for remote committee work during the course of the pandemic.[207] The House voted to adopt H. Res 965 on May 15, 2020.[208]

Given the Committee’s primary focus on making Congress work better for the American people, the Committee concentrated on reforms to encourage a more seamless transition to remote work and ease continuity of government and congressional operations. In addition to studying how state and foreign legislatures were responding to the COVID-19 pandemic, the committee sought perspectives from staff in both D.C. and district offices, to hear firsthand their experiences in working through the pandemic. The committee also heard from several organizations that did outreach to District Directors and organized bipartisan roundtables on telework for congressional staff. Continuity planning strategies were also gathered from federal agencies.

The 13 recommendations discussed in this chapter reflect the Committee’s focus on making Congress work better for the American people, no matter the circumstances. It is especially important that Members of Congress be prepared to continue with their legislative and representational responsibilities in times of crisis. This chapter begins with an overview of the various challenges staff faced during the remote work period. A brief discussion of how state and foreign legislatures and federal agencies responded and adapted to the COVID-19 pandemic follows. The Committee sought best practices and innovative approaches from these agencies and legislatures as it worked to determine recommendations to improve congressional continuity. The chapter concludes with a review of the Committee’s 13 recommendations to improve continuity of government and congressional operations. 

The early institutional response to the COVID-19 pandemic marked a steep, real-time, learning curve for the congressional community. While the Office of the Attending Physician, along with the Committee on House Administration, provided helpful guidance but for many offices and staff, the initial transition to telework was marked by uncertainty and operational challenges. In addition to the immense unknowns surrounding the COVID-19 pandemic, Congress’ decentralized nature offered little work-from-home or continuity of operations guidance. And although the Office of Emergency Preparedness has issued guidelines to assist offices in establishing their own continuity plans since the early 2000’s, many offices have not made development of these plans a priority, and communication regarding the plans and how to implement them when they did exist was uneven.

Thus, by the second week of March 2020, while many congressional offices were moving toward telework status, there was no centralized guidance for staff to follow. Instead, many offices determined what other offices were doing by word of mouth and through various official and unofficial networks, leading to widespread variance in office continuity planning and telework policies. This inconsistency led to congressional staff expressing discomfort with their office’s policies.[209] Front-line workers were particularly vulnerable, also due to a lack of guidance.[210] In response to this, the Committee on House Administration worked quickly to implement physical barriers such as plexiglass protection for front-office staff.

The pandemic placed stress on district offices in particular. Due to safety concerns that limited travel or even in-person constituent meetings, many Members were temporarily based full-time in their districts, yet needed quick and reliable access to their D.C. office resources to effectively support outreach to constituents. At the same time, many constituents were seeking unprecedented assistance with the enormous health and economic challenges caused by COVID-19. District staff were primarily responsible for the ongoing support of Members and constituents—all while navigating a public health crisis themselves.

Even under normal circumstances, district offices often cite a lack of resources and an information disconnect from D. C., but the COVID-19 pandemic exacerbated many of these existing difficulties. Through its own outreach efforts, the Committee learned that some offices did not have laptops or virtual private networks (VPNs) set up for staff, making it difficult to work remotely and raising security concerns. Some offices did not have the ability to forward incoming phone calls. Despite moving to telework status, some district staff were still required to go to the office due simply to outdated technology issues and procedural limitations. For example, several federal agencies do not accept constituent privacy release forms by email, meaning that district staff had to physically go to the office to process release forms on behalf of constituents. Additionally, constituents in technologically underserved areas, as well as older constituents, sometimes do not have email and need to fill out release forms by hand. Staff, too, were plagued by issues of internet connectivity, particularly in rural areas. But despite these technical challenges, the need for constituent services was higher than ever, and district staff worked diligently to meet needs aggravated by the pandemic. 

Many of these concerns were echoed by the U.S. Association of Former Members of Congress (FMC), a nonprofit, nonpartisan organization. FMC holds regular calls and symposiums with District Directors for the purpose of sharing experiences and best practices, and during the COVID-19 pandemic, FMC gathered feedback on district office capacity to work remotely. The FMC shared this information with Committee Members during a virtual meeting on May 20, 2020.[211]

FMC reported that many District Directors were concerned with the quality and security of constituent outreach.  Members were suddenly holding much more frequent online forums and townhalls using new and untested systems and communicating with constituents on lines and platforms that were not secure. The Congressional Management Foundation surveyed congressional staff, and found an extensive, increased reliance on internet and phone communication across Capitol Hill.

Figure 9.1: Increased Importance of Online and Teletown Halls

figure 9.1

Source: Congressional Management Foundation, “Coronavirus, Congress, and Constituent Communications (2020). The full report can be viewed here.

But when many congressional offices began transitioning to telework in March 2020, outdated laptops and phone systems made the changeover difficult for some district offices. The equipment and software in district offices was, in many cases, inadequate to the task and not compatible with what staff were using in the D.C. offices. Additionally, there were no clear policies or guidelines in place for Members participating in hearings and briefings, or for receiving and discussing classified information.

Coordination and information sharing between D.C. and district offices have long been areas of concern for many District Directors, but in the face of the COVID-19 pandemic, the need for clear communication and security became a top priority. FMC reported that many District Directors felt unprepared to manage constituent questions about the Paycheck Protection Program and Small Business Administration loan opportunities, for example, because the legislation addressing these issues was typically managed by D.C.-based policy staff. There was also a general lack of coordination between state agencies and member offices, which sometimes made it difficult to provide constituents with appropriate assistance. As Peter M. Weichlein, Chief Executive Officer, U.S. Association of Former Members of Congress (FMC) told Members in a May 20, 2020 virtual meeting on the challenges facing district offices:

“Like 99 percent of the things this committee considers, there’s no one size fits all answer to any of this. And – of course – between districts, and the views of 435 Members, there are 435 different answers. We have heard from some District Directors who are the soul occupant of an office, so therefore have not found much of a different environment than what they’re used to. There are some, very few, offices that don’t have a brick and mortar presence to begin with.

But where I think there’s common themes emerging: definitely on the equipment and technology side. Many, many of your District Directors felt the switch from a brick-and-mortar space to a remote working environment was more difficult because of IT and computer issues, outdated laptops, not having enough laptops for all staff, and the software issues preventing district offices from communicating with D.C. offices over the switchboard.”
Peter M. Weichlein, May 20, 2020

Another example of poor coordination between D.C. and district offices involved the provision of masks. While some district offices received masks from the House, they did not receive them until mid-April 2020—about one month after many offices began teleworking due to the COVID-19 pandemic. Additionally, not all District Directors knew about the option to request masks from the House. These concerns persisted beyond the initial transition to remote work; according to FMC, District Directors expressed a need for the House to provide guidance on how to re-open the office safely, as well as on how to manage potential personnel questions about safety and lack of childcare.

Lastly, for both district and D. C. staff, the swift move to remote work required new adaption of remote communication, particularly video conferencing. The often slow and cumbersome approval process, highlighted in Chapter 6 (Technology), made the initial transition difficult and confusing. Weighing concerns of security and ease of use, staff and Members were unsure which video conferencing program to use for several weeks. Even after Cisco WebEx was sanctioned as the primary video conferencing service for the House, immense technological challenges continued.

Despite these hardships, some positive outcomes resulted from district and D.C. based staff having to interact more than usual during the pandemic. Many offices, for example, implemented a policy requiring each staffer to take a regular shift answering phones and responding to constituent questions and concerns. FMC reported that District Directors felt such policies gave their D.C.-based colleagues a better understanding of what district-based staff do on a day-to-day basis. District staff who had to address policy-related concerns also gained an appreciation for the work of their D.C. based colleagues.

An additional positive outcome of increased interaction between district and D.C. based staff during the pandemic was the discovery of “accidental innovations.” Like FMC, the Partnership for Public Service (Partnership) convenes regular bipartisan meetings for their network of district-based staff. Through these meetings, as well as through teleconferences with state government offices, the Partnership found that D.C. and district staff found ways to work collaboratively during the pandemic and even discovered some “accidental innovations” that helped them work better as a team.[212] As Kristine Simmons, Vice President of Government Affairs at the Partnership for Public Service told the Committee during the May 5, 2020 virtual meeting:

“We’re hearing that some offices are using things like Slack to connect in ways they maybe weren’t before…  And in some ways, this has really made the district staff feel like the D.C. staff is ‘in the trenches with them’ because the volume of casework has increased so much, that it’s all hands on deck, and many of the D.C. staff is getting involved and helping with district-based and constituent work in maybe ways they weren’t before. So, there is in some ways, a stronger bond between the district offices and the D.C. offices, which we think is a great thing. The question is how do you sustain… and continue that?” 
Kristine Simmons, May 20, 2020

Another positive side effect of the pandemic was broader access to courses and trainings offered by the Congressional Staff Academy. In a virtual discussion with Committee Members on remote work best practices, the Partnership noted that because Staff Academy offerings had moved online, district staff could now take courses that were previously only offered in-person in D.C.[213] This revelation prompted the Staff Academy to consider offering virtual courses on a regular basis. 

As part of its effort to address the various challenges Congress faced during the COVID-19 pandemic, the Committee also looked at federal agency response and continuity planning strategies. The Partnership collected continuity and return-to-work guidance from federal agencies and shared its findings with the Committee.[214] The Executive Branch response to the COVID-19 pandemic helped inform the Committee’s discussions about continuity of government and congressional operations.

The Partnership found that many federal agencies responded to the pandemic by bolstering innovations that were already`- underway. The most far-reaching innovation across federal agencies was the widespread implementation of telework. Agency leaders reported that the transition to telework was effective, though it did require that managers learn new ways to oversee staff performance and maintain staff morale. Overall, reports indicate that productivity has remained high, which supports some of the experimentation that agencies were doing with telework prior to the pandemic.

Another innovation, created by the U.S. Office of Personnel Management (OPM), was the COVID-19 Surge Response Program. The program, which was designed to allow agencies “to post rotational opportunities for federal employees to support the COVID-19 response,” was supported by “Open Opportunities,” a government-wide platform that offers professional development opportunities to current federal employees. The platform provides a centralized location where federal agencies can post details, microdetails, and/or temporary rotational assignments.”[215] This innovation allowed agencies to quickly realign their workforces to best support and serve the public during the pandemic. It also allowed interested federal workers to shift their focus and help reinforce the government’s COVID-19 response.

The federal government’s shelter-in-place mandate also dramatically accelerated the use of digital signatures, ensuring continuity of operations. While the Committee has previously recommended expanding the use of electronic signatures[216], Congress currently has no such policy and still requires “wet signatures” on many official documents, which can lead to delays in the regulatory implementation process. For example, federal regulations cannot go into effect unless Congress receives notification, which still requires a wet signature.[217] The quick transition to digital signatures allowed many executive branch operations to continue throughout the COVID-19 crisis.

Once the federal government began moving toward a telework stance, the Office of Management and Budget (OMB) began electronically posting all federal agency guidance related to COVID-19.[218] New memos were posted regularly, and covered a range of topics of interest to federal employees. The Partnership reported that several agencies also created “microsites” to keep their employees informed and up-to-date on the latest COVID-19 related developments.[219] Many of these agency “best practices” focused on maintaining communication and supporting the physical and mental health needs of agency frontline employees.

Like Congress, the executive branch faced new questions and challenges related to working through the COVID-19 pandemic. Federal employees who had to cross jurisdictions with different shelter-in-place mandates to travel between home and work sought guidance from their agencies. Employees who were set to retire when the pandemic hit also wanted guidance on whether OPM could process their retirements. In response to the unique circumstances presented by the pandemic, agencies varied in their approaches to determining which employees were essential.

Agencies also varied in terms of how they defined and managed “core work hours” for their employees. Many agency employees were saddled with caregiving responsibilities as they worked full-time from home, and struggled to work within regular schedules. Managers also had to figure out how to address the concerns of employees—and their potentially exposed colleagues—who tested positive for COVID-19. The Equal Employment Opportunity Commission (EEOC) responded by developing guidelines to help employers and employees navigate privacy and protection concerns related to COVID-19 testing and exposure.[220]

In addition to studying how federal agencies were managing continuity of operations and the transition to telework, the Committee also looked at agency “return to work” plans. As agencies began preparing for their employees to return to their offices, the Partnership began collecting agency planning information and developing guidelines. This information was compiled and made available to agency leaders in the form of a checklist to consult when reopening offices.[221] The subsequent checklist is an “evolving document” with guidance that is also useful to congressional offices. For example, the Environmental Protection Agency (EPA) and the Centers for Disease Control (CDC) released guidance for cleaning and disinfecting offices. Agencies are also developing different screening processes at building entrances, as well mask policies for employees and visitors. These agency approaches to reopening the workplace safely can help inform congressional office return-to-work planning.

State Government Continuity

The 50 state legislatures are sometimes referred to as “laboratories of democracy” because of their ability to test new procedures and processes.  Throughout its tenure, the Committee has looked to state legislatures for ideas and innovations on everything from technology to the schedule and calendar. Several of the committee’s hearings featured officials from state legislatures and from the National Conference of State Legislatures (NCSL) who provided state-level perspective on issues in the committee’s mandate.[222]

As the COVID-19 pandemic spread across the nation, the Committee again turned to state legislatures for ideas to maintain continuity of operations. Like Congress, states were focused on finding ways to keep government running while also keeping legislators, staff, and the public at large safe and healthy. But given that each state has its own legislative calendar, policies, norms, and political culture, there was much variance in response. Additionally, some states have full-time legislatures while others have part-time bodies; Some meet every year while others meet every other year.

These differences between the states were reflected in the various ways they adapted to working through the pandemic. A number of states include continuity language in their state constitutions, encompassing issues like lines of succession, convening during an emergency, and alternative meeting locations.[223] While some state constitutions address continuity during a natural disaster or an enemy attack, few mention public health emergencies or events that threaten the health of legislators. The unique nature of the COVID-19 pandemic required many state legislatures to respond and adapt in real time.

Like Congress, many state legislatures adjusted their legislative schedules as the pandemic spread. While a number of legislatures adjourned early or temporarily suspended activity, none postponed their legislative sessions entirely.[224] Some states figured out socially- distanced ways to continue meeting. According to NCSL:[225]

  • The New Hampshire House of Representatives met in the University of New Hampshire’s hockey rink.
  • The New Hampshire Senate met in the House chamber.
  • The Virginia House of Delegates met in a reception tent on the lawn of the State Capitol, while the Senate met in Richmond’s science museum.
  • The Arkansas House convened in a basketball arena.
  • The Illinois House met in a local concert and event venue.
  • Plexiglass barriers between desks were erected in the Colorado House.
  • In the Virginia Senate, staff devised an entire plexiglass box for a Senator with a high health risk.

As mentioned earlier in this chapter, the Committee did not focus its efforts on issues tied to remote voting and virtual committee hearings; these items fell within the jurisdiction of the House Committee on Rules and the Committee on House Administration. Committee Members were, however, interested in understanding how the states were handling floor votes and committee hearings and markups during the pandemic.

According to NCSL, legislatures or chambers in at least 25 states adopted rules to allow for remote participation or voting in floor sessions or in committees. Most – if not all – of these changes were adopted on a temporary basis and only applied through the COVID-19 emergency.[226] For example, Vermont’s Senate and House met in formal sessions via Zoom, which were streamed on YouTube. The Pennsylvania House adopted proxy voting procedures while the Senate opted to use virtual voting technology. In New Jersey, committees took public testimony over Zoom; and in Massachusetts, public comments were accepted in writing using Google docs. New Jersey lawmakers also voted remotely by calling into a conference line. In Kentucky, House members voted remotely by sending in photos of their ballots to designated floor managers. Utah instituted interim virtual hearings and provided the public with online guidance on testifying. And in a somewhat ironic twist, Colorado, a state that normally permits remote testimony, could not offer the option during the pandemic because the colleges and universities that enable remote connectivity throughout the state were closed.[227]

Figure 9.2: State Legislature Continuity Operations, in Response to COVID-19

figure 9.2

Source: National Conference of State Legislatures

In addition to exploring how state legislatures were responding and adapting to the COVID-19 pandemic, the Committee also reviewed the operations of foreign governments. The pandemic reached many countries overseas before arriving in the United States; still, given how quickly the virus spread, few, if any, governments had time to adequately prepare. Some foreign legislatures had already built virtual participation features into their operations, giving them a head start on remote governing.

To learn more about how foreign governments were managing continuity efforts, the Committee requested information from the Library of Congress’ Law Library. Foreign law research staff of the Global Legal Research Directorate surveyed 36 foreign jurisdictions and produced a comprehensive report for the committee titled, “Continuity of Legislative Activities during Emergency Situations in Selected Countries.”[228] According to the report:

“In the vast majority of countries surveyed, legislatures have adopted preventative measures in response to the public emergency posed by the COVID-19 pandemic. Meanwhile, no country surveyed has explicitly invoked the powers of an “emergency parliament” with devolved power from the whole legislature. However, several countries surveyed give various other emergency powers to the legislature in times of emergencies.

Operational arrangements by legislatures while restricting the movement and travel of members and staff include utilizing videoconferencing and other electronic means to maintain legislative activities, formulating special voting procedures to reduce necessary travel and attendance, and providing new accountability measures in cases where legislative activity has been interrupted. Measures also include temporary suspension of scheduled events and travel.” [229]

The Committee also engaged with representatives from the European Parliament (EU) to learn more about their continuity efforts during the COVID-19 pandemic. As with Congress, many of the EU’s members must travel long distances to participate in person at the EU Parliament in Brussels. Travel restrictions limited EU members’ ability to fly, as did various shelter-in-place orders imposed by some EU countries. Because of these participatory restrictions on its members, the EU moved quickly to install remote voting and virtual committee meeting procedures.

The EU’s initial remote voting system was implemented as a “trial run,” in order to test the process and determine what improvements would be needed if use of a remote voting system was required in the future. Under this system, members received a ballot form by email, then completed and sent the ballot from their email address to the relevant Parliament’s functional mailbox.[230] This system was intended to be temporary, as planning for a more sophisticated and secure remote voting system, with language interpretation features, was underway. As of September 2020, the EU had not executed its new remote voting system, in part due to opposition from some EU members.[231]

While the EU’s remote system proved challenging to implement, the platform was successfully used for committee meetings. Members and interpreters connected remotely from their homes into committee meeting rooms during the initial months of the pandemic. This short video demonstrates how EU members used the platform: 

In conversations with the Committee, EU officials noted that their quick progress in developing and moving to remote systems during the COVID-19 pandemic was due to EU President Andrej Plenkovic of Croatia making it a priority and giving the EU’s technology team “cover to fail” as they worked quickly to figure out platforms and resolve kinks in the systems. There was pressure to get secure systems up and running fast, but also acceptance of the inevitable bumps along the way.

In addition, the Committee looked to other country’s continuity endeavours:[232]

  • In Spain, members cast votes using an intranet system, which has been in place since 2012.
  • The United Kingdom (UK) approved moving to a “virtual Parliament,” overturning more than 700 years of precedent.
  • In Wales, the Welsh assembly used Zoom video conferencing for its weekly plenary session, the first for any parliament in the UK.
  • In Canada, the Standing Committee on Procedure and House Affairs met over Zoom to review and make recommendations on how to modify the Standing Orders for the duration of the COVID-19 pandemic, including how to enact remote voting.
  • In Argentina, the President of the Chamber of Deputies approved working remotely via Zoom and videoconference. In the Senate, committee meetings moved to videoconference. 
  • In Chile, the Senate met remotely via Zoom to debate issues.
  • In Brazil, the National Congress passed a resolution which enabled the 594 members of both chambers to work remotely.

Through outreach to congressional staff, and through close examination of federal agencies, state legislatures, and foreign governments, the Committee developed a better understanding of the many complexities inherent in continuity of government planning. This background helped shape the committee’s continuity recommendations, which are described next.

Recommendations

Conclusion

The 13 continuity recommendations discussed in this chapter reflect the Committee’s focus on making Congress work better for the American people, no matter the circumstances. The health, safety, and economic challenges Americans experienced during the COVID-19 pandemic made clear that during a crisis, Congress needs to be prepared to continue serving the people. Consistent with the committee’s mandate, these recommendations focus on bolstering the House’s institutional capacity to more seamlessly adapt and respond to emergency scenarios.

Given the exceptional circumstances the COVID-19 pandemic presented, the Committee chose to study how federal agencies, and state and foreign governments, adapted and responded to the crisis in real time. This search for innovative ideas and best practices was consistent with the Committee’s overall approach to understanding problems, and then developing solutions appropriate to Congress. Throughout its tenure, the Committee has also engaged in outreach to D.C. and district staff in order to better understand the unique challenges they face. The perspectives that staff shared on working through the pandemic proved invaluable as the Committee developed its continuity recommendations.

When it became clear that the COVID-19 pandemic was not a short-term emergency, the Modernization Committee recognized that the lessons learned during this time were critical in preparing Congress for future crises. These recommendations are a first step in helping Congress better prepare for continuity of government, no matter the circumstances. Future work should consider a more thorough analysis of continuity of operations in Congress and the chain of federal command under crisis.[234]

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