On March 5, 2021, the American University Legislation and Policy Brief hosted their annual Symposium. This virtual event included an in-depth discussion about the 2020 presidential election and subsequent events in Washington D.C., as well as an overview of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The Symposium also included a keynote address from Brian Miller, the Special Inspector General for Pandemic Recovery (SIGPR).
Moderated by Louis Caldera, a Professor at the American University Washington College of Law, the first panel brought advocates, scholars, and practitioners together to dissect several topics stemming from the 2020 election and the subsequent insurrection at the United States Capitol Building on January 6, 2021. When a once-in-a-century pandemic challenged every aspect of American life, Professor Caldera noted that the 2020 election was defined by the concerted efforts of election officials to make it easier and safer for people to vote.
Theodore Johnson, a senior fellow at the Brennan Center for Justice, highlighted that these efforts led to the highest level of voter participation in over one hundred years. More than just allowing more people to vote via mail or early in-person voting, Johnson pointed out that the triumvirate of a deadly pandemic, the killings of George Floyd, Breonna Taylor, and Ahmed Aubry by police officers, and the polarizing views towards President Donald Trump led to this increased voter participation. Specifically, Johnson believes these events coalesced to motivate hundreds of thousands of Black voters to turnout for Joe Biden; these votes would be critical in three critical battleground states (Arizona, Wisconsin, and Georgia) where Biden won by only 43,000 votes collectively.
Esosa Osa, Research and Policy Director for Fair Fight Action, recognized the importance of making voting easier while also highlighting a massive national voter suppression and disinformation campaign from President Trump. By magnifying small but regular voting mistakes, such as not completely filling in the bubble next to your preferred candidate on the ballot, Osa charges the Trump campaign with mobilizing an online community through fears and deception. This community began to organize offline as “Stop the Steal” and “Count the Vote” rallies began sweeping the country, with loyal Trump supporters incorrectly lamenting that the election was stolen from the President. These protests following Election Day served as the impetus, according to Osa, for the January 6th insurrection and various state legislative actions that are aimed at making it difficult for Black voters to cast a ballot. Osa believes that this assault on the voting rights of millions will continue, and emphasized the importance of H.R. 1, the For the People Act. H.R. 1 has been described as “the most significant voting rights and democracy reform in more than half a century,” and passed in the House of Representatives on March 3, 2021.
Larry Noble, a former member of the Federal Election Commission and professor at the American University Washington College of Law, agreed with Osa’s assessment of the president’s role in inspiring the insurrectionists who stormed the Capitol on January 6th. On that fateful day, Noble conceded that the United States forever lost the claim that we always honor the peaceful transfer of power. Once a source of pride internationally, the peaceful transfer of power was tarnished as rioters attempted to disrupt the election certification process. Noble contended that this was a direct result of the hysteria manufactured in bad faith by the Trump campaign about illegally cast votes. While disturbed and downtrodden about the events on January 6th, Professor Noble found solace in the fact that over two-thirds of eligible voters cast their ballot during the deadliest year in American history. He further advocated that the federal government should continue efforts to ensure that everyone has the right to vote.
Broderick Johnson, Senior Counsel at Covington and Burling LLP, concluded the discussion with a feeling of hope and a call to action for all of us in future elections. Reflecting upon the 2020 election, Johnson heralded the extraordinary efforts of voters and organizers who produced the historic level of voter turnout. Johnson believes that our work, however, does not finish after election day. Instead, he challenged the advocates, scholars, and practitioners in attendance to continue to demonstrate why voting matters to those who become disheartened. If people have a sense that voting doesn’t matter, Johnson warns that it will be difficult for us to maintain our democracy. Despite that warning, Johnson said he found “immense hope” in 2020 that the next generation of organizers and advocates would continue the everlasting work of creating a more perfect union.
Brian Miller, the Special Inspector General for Pandemic Recovery (“SIGPR”), gave the event’s keynote address. Miller opened his remarks by urging students to consider a career in public service, noting that they have their entire careers to pursue personal wealth in private practice, but that the opportunity to serve their government during a critical time in the nation’s history is a uniquely rewarding opportunity. Miller then gave a brief overview of the tripartite oversight framework included in the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, and discussed his role within that framework. He noted challenges unique to his role as the SIGPR, including the need to begin his work immediately upon appointment despite his need to set up internal administrative capacities to carry out his own duties — comparing this challenge to building an airplane “mid-flight, in the middle of a storm, and that storm is a pandemic.”
Miller then turned from addressing the challenges of carrying out his duties effectively to the challenges he has uncovered as the SIGPR. This includes unprecedented levels of fraud, waste, and abuse as unscrupulous individuals have taken advantage of the urgency presented by the pandemic to further their own financial goals. He urged the symposium attendees to visit the SIGPR website to view reports from his office related to specific problems, such as individuals and companies “double-dipping” into multiple CARES Act relief programs, purportedly to fund the same project through each program, and pocketing any extra money they have after the program has been fully financed.
Miller’s remarks set the stage for a detailed second panel at the symposium, again moderated by Professor Louis Caldera, discussing oversight of CARES Act funding. The panel featured several experts from inside and outside the federal government who work every day to monitor funds and problems with funding distribution.
Nikitra Bailey, an Executive Vice President at the Center for Responsible Lending, highlighted the unique challenges facing historically underserved communities in accessing CARES Act funding. She noted that many of these challenges were foreseeable at the time the Act was passed, but it was passed in such a hurried way that they were not fully accounted for. A troubling example of such a foreseeable obstacle was the fact that PPP funding, which was distributed primarily by insular firms in a historically exclusionary financial sector, disproportionately went to wealthy, well-connected individuals and businesses. Because underserved communities, and particularly Black, indigenous, and Latino businesses have historically been unable to build connections with those firms to the same extent white businesses have, business owners in those communities were largely frozen out of PPP funding as better-connected businesses jumped to the front of the line. Bailey noted that the CARES Act is the largest transfer of wealth in the nation’s history — dwarfing the 2008 economic stimulus — and the fact that it was not conducted in a way that ensured equity will exacerbate already existing inequality in America.
Liz Hempowicz, Director of Policy for the Project on Government Oversight (“POGO”) and AULPB alumna, discussed the issues arising from the Office of Management and Budget’s decision, following passage of the CARES Act, to direct federal agencies to ignore the Act’s reporting requirements. This OMB guidance was issued to ensure funds were distributed rapidly, in recognition of the urgency of the economic crisis associated with the pandemic. However, it was both inconsistent with the Act’s plain text and undermined effective oversight of funding distribution. Importantly, Hempowicz noted that this problem is closely connected to some of the issues mentioned by Nikitra Bailey. Because agencies did not collect important demographic data regarding fund disbursements, we don’t really know just how bad the inequalities in access to those disbursements were.
Linda Miller, Deputy Director of the Pandemic Response Accountability Committee (“PRAC”), addressed the challenges in oversight from her unique perspective. PRAC is a coordinating committee of Inspectors General across the federal government working to oversee CARES Act funding distribution. Importantly, it serves the function of “filling the cracks” in jurisdiction between various IG offices. Miller focused on the scope of fraud that has been uncovered in relation to CARES Act funding, noting that over 200 arrests have been made based solely on investigations carried out by PRAC. She encouraged attendees to visit PRAC’s website to track how CARES Act money is spent. However, she also noted that because of the OMB guidance discussed by Liz Hempowicz, it is difficult to be precise about how exactly money is spent. Often, rather than reporting what money has been spent on with specificity, recipients have reported only that the money was used for ‘coronavirus relief’ or similar vague purposes — raising a question of how PRAC can filter through the vast quantities of ambiguous information to uncover where fraud is actually occurring.
Finally, Brian Grossman, the Assistant Inspector General for Investigations at the Small Business Administration (SBA) Office of Inspector General (OIG) reflected on the challenges his agency has faced in administering CARES Act funding. The sheer volume of work the agency has been assigned has meant that staff has had to “lower the guardrails” for distributing money, which has opened up opportunities for unprecedented levels of fraud. The numbers he listed were staggering: in a normal year, SBA would give out 24 billion dollars in grants and loans. In less than 2 weeks after the CARES Act was signed, the agency gave out the equivalent of 14 years of loans—349 billion dollars. Then, more money was later added, ultimately totaling 528 billion dollars. Relatedly, the SBA OIG receives roughly 70 tips on its hotline each year and conducts roughly 80 investigations. In 2020, however, there were over 70,000 hotline tips and over 300 criminal investigations. This has meant Grossman’s office has been strained for resources and personnel. However, he also reassured attendees that although the investigations may be delayed, he was confident they were being conducted effectively and that charges brought would stick. He also emphasized that they would continue to pursue every lead, regardless of the volume, and that would-be-criminals should not feel encouraged to defraud the United States government.
We would like to congratulate the incredible staff at the American University Legislation and Policy Brief for putting on an informative and engaging Symposium. If you were unable to attend and would like to hear more from the amazing panelists, you can find the recording of the event on the Program on Law and Government website.