Legal hurdles threaten prospect of remote voting in Congress

Lawmakers in both chambers clamor for ways to weigh in on legislation without sacrificing social distancing during the coronavirus pandemic.

House Speaker Nancy Pelosi outside her office Monday
AP Photo/Andrew Harnik, Pool
March 24, 2020, 8 p.m.

Members of Congress may be interested in voting on legislation from home, but experts say they’ll need to take it up with the Founding Fathers.

With three lawmakers testing positive for COVID-19 and more than two dozen more self-quarantined, there’s a growing clamor for contingency planning to allow the House and Senate to vote without members physically gathering in either chamber.

But there are significant obstacles. While a technological solution remains out of reach in the short-term, a web of existing regulations could narrow the options for keeping lawmakers separated amid the crisis.

“The whole thing is premised on and assumes a physical presence,” said James Wallner, a resident senior fellow at the center-right R Street Institute and expert on congressional procedure.

The problem comes down to one reality: While Congress has explored the potential for terrorist attacks and other mass-casualty events, it never planned for a pandemic where members are reluctant to convene as a legislative body. Now, congressional leaders are searching for a way to continue the business of government, including passing an historic, near-$2 trillion aid package and potentially more relief bills without upending the rules of their body.

Some 70 members this week submitted a letter to House Rules Chairman Jim McGovern calling on a rule change to allow voting from their home districts.

A report from McGovern released Monday night found that remote voting had “significant security and logistical concerns” and could raise “constitutional questions.”

Foreign cyberthreats, problems with verifying members’ identities, complicated technological issues, and questions over legality all posed problems, the report said. Remote voting would add significant changes to several House rules governing quorums, in-person voting requirements, and the application of unanimous consent, McGovern concluded.

“It would not be possible to simply add a clause allowing members to vote from elsewhere,” the report said.

The problems also extend to the Senate, where four Republicans remain self-quarantined after coming in contact with people diagnosed with COVID-19. Sens. Rob Portman and Dick Durbin’s proposal to allow voting during national crises via approved technology gained nine cosponsors Monday.

“I’m hoping that we can work with the parliamentarian and with the officers of the Senate to come up with something that is bipartisan, makes sense, and protects the integrity of voting on the floor of the United States Senate,” Durbin said in a floor speech Tuesday.

Other senators have backed remote voting in more general terms. Sen. Dianne Feinstein, a senior Democrat on the Rules Committee, said in a statement to National Journal that “public health and safety dictate that we find a way to do our legislative business without putting members of Congress and their staff at risk.”

“I think a number of senators understand that we should look at alternatives to the normal process in times of emergency,” Feinstein said.

Republican Sen. Bill Cassidy, a physician from Louisiana, said in an interview Tuesday he is supportive of allowing lawmakers to vote remotely to protect his colleagues.

“There is an advantage of being close, face to face, absolutely,” Cassidy said. “But if we’re speaking about people who are older [that are at] greater risk … that would be appropriate.”

But leadership has pushed back on the idea. House Speaker Nancy Pelosi told CNN on Tuesday that her chamber was “not prepared” for remote voting, though she left open the possibility that it could happen later. Senate Majority Leader Mitch McConnell told CNN last week they can continue to operate “without changing the rules.”

That view is shared by some rank-and-file members. Sen. Tom Udall, a Democrat on the Rules Committee, said leadership should instead adopt voting procedures that meet public-health protocols in order to protect lawmakers and congressional staff.

“I believe that temporary remote voting is an important conversation to have in the event of a national emergency that prevents us from physically meeting—but I don’t think we’re there yet,” Udall said in a statement to National Journal.

Those concerns were bipartisan.

“I am 100 percent opposed to remote voting,” Republican Sen. Ben Sasse said in a statement to National Journal. “The Senate’s constitutional duty in our republic is to deliberate and that’s not going to happen on Skype.”

“I think we are in a situation that our job, and obligation to the public, requires us to be present,” added Republican Sen. John Boozman through a spokesman.

House leadership continues to look for an alternative, and members floated ideas to McGovern for his report. As Phase 3 of coronavirus aid works its way through the Senate, lawmakers will have to make a decision on how to move the bill through their chamber.

Pelosi is aiming to simply pass the bill using unanimous consent. But as one of the largest, most far-reaching bills in decades, the likelihood that a single House member would object remains high.

One option would be staggered voting times, said Rep. Donna Shalala, who sat on a commission on the continuity of government following the 9/11 attacks.

“We certainly could do something simple like, we all go to Washington and they give us a schedule for when we vote so they all don’t walk into the room at the same time,” she said in an interview.

McGovern’s report examined several other options, including voting by proxy. There, the sergeant at arms would declare an emergency, and members would assign another member to cast their vote. Those could be regional whips or members of leadership, the report said.

“[P]roxy voting is likely the best of the options available under the circumstances,” the report said.

The Senate already allows chairs and ranking members to cast members’ proxy votes in committee, and the House before 1995 did so as well. But senators can only register their official preference without attending a markup if proxy votes are not decisive. A similar procedure, lawmakers say, could be implemented on either chamber’s floor.

Norm Ornstein, resident scholar at the right-leaning American Enterprise Institute, sat on the same commission as Shalala. Then, participants were skeptical of remote voting for the same reason as congressional leadership appears to be now, he said.

“You didn’t want to have something that was regularized, where members would say, ‘Gee, this is really great, I don’t have to have a separate residence in Washington, I don’t have to be on a plane all the time,’” Ornstein said. “And you’d lose the essential feature of Congress, which is face-to-face deliberation and debate.”

Now, though, Ornstein backs the Portman-Durbin proposal, saying this scenario is different, and one can place adequate limits on remote voting and sunset the provision. Many of the issues that opponents to remote voting bring up also exist with proxy voting, he noted. Ornstein said he’s recreating the group to address continuity-of-government issues related to the pandemic and would offer suggestions to Congress soon.

“I think there is an even bigger constitutional question about proxy voting with a handful of members there,” Ornstein said. “That will require the same kind of changes, it seems to me, that would be there with remote voting.”

Other experts, such as Wallner and former Senate Parliamentarian Alan Frumin, agree: Proxy voting would hinge on the physical presence of enough members to represent a quorum. While McGovern’s report considered changing the definition of a quorum, the lack of one would undermine representatives’ right to decide the will of a country in crisis.

“Until you get beyond a situation where a quorum is physically in the chamber,” Frumin said, “all of these other proposals would have hovering over them a cloud of constitutional illegitimacy.”

Erin Durkin contributed to this article.

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