Last Wednesday, two U.S. representatives — Republican Rep. Mario Diaz-Balart of Florida and Democratic Rep. Ben McAdams of Utah — tested positive for the new coronavirus. And over the weekend, GOP Sen. Rand Paul of Kentucky said he had tested positive. In total, nearly 30 House members are at some stage of self-quarantine and five senators are self-quarantining.
The outbreak of the coronavirus on Capitol Hill has underscored just how ill-equipped Congress is to govern when its members cannot be physically present. Already five Senate Republicans had to miss Sunday’s vote to pass an emergency economic stimulus package because they were quarantined. And if more members become unable to appear in the Senate or House chambers, we could eventually see a struggle to achieve an in-person quorum.
Technically, the Constitution only requires the Senate and House to have a majority of members present to establish a quorum to pass legislation, but both chambers have rules that require senators and representatives to be physically present to cast votes. Leadership in both chambers also largely oppose allowing members to vote without being physically present, but this hasn’t stopped some legislators from renewing calls for remote voting.
In the Senate, Democratic Senate Majority Whip Dick Durbin and Republican Sen. Rob Portman introduced a resolution to allow for remote voting for up to 30 days under extraordinary circumstances. After that, the measure could be extended if three-fifths of the Senate votes in favor.
But Senate Majority Leader Mitch McConnell expressed opposition, telling reporters last week, “We will deal with the social distancing issue without fundamentally changing Senate rules.” The Senate has tweaked its procedures to increase the amount of time allotted for each vote so that fewer senators have to be on the floor at the same time, but at this point, it hasn’t made moves toward any larger overhauls.
In the House, Democratic Reps. Katie Porter and Eric Swalwell of California and Republican Rep. Van Taylor of Texas have asked House Speaker Nancy Pelosi and Minority Leader Kevin McCarthy to adopt rules for remote voting, and more than 50 members have signed onto the request. There isn’t a specific piece of legislation attached to the letter, but Pelosi did ask House Rules Committee Chairman Jim McGovern to examine the issue, and on Monday the committee released a memo reviewing possible adjustments to voting procedures. It sounded a dubious note on the use of remote voting, but was more supportive of proxy voting — whereby an absent member has another member vote on her behalf — which has precedent in the House and Senate (the Senate allows proxy voting in committee).
The memo’s opposition to remote voting lines up with the views of the House leadership. Pelosi has said privately that she opposes remote voting, though the House is planning to alter its voting procedure in some way. McCarthy is also skeptical, particularly about how remote voting would work with parliamentary motions, which may require members to interject quickly to be heard.
To better understand the stakes of Congress voting remotely, I spoke with two legal experts — one in favor of such a step and the other opposed. Daniel Hemel, a professor at the University of Chicago School of Law and proponent of remote voting, stressed to me that there is nothing in the Constitution stopping Congress from allowing members to cast votes from afar.
Yes, the Constitution requires a quorum for the Senate and House to conduct business, but it doesn’t say anything about lawmakers having to be physically present. That requirement comes from chamber rules, which Hemel argues could be rewritten to allow for remote voting in crisis situations. While there might be security concerns, Hemel pointed out that corporate boards permit videoconferencing to count toward a quorum, so it’s unclear why Congress would be incapable of using a similar system to conduct its business.
If remote voting isn’t adopted, Hemel suggested COVID-19 could cause other problems too. “You can imagine a circumstance where one party actually gets a majority because the other party is more affected,” said Hemel, which could create concerns about the long-term legitimacy of votes taken in such circumstances.
Case in point: All five senators currently quarantined are Republican, which has reduced the GOP’s edge in the Senate from 53-47 to 48-47. This has already affected the party’s ability to advance an economic stimulus bill on Sunday, although even without the quarantine, Republicans would have needed some Democratic votes to move forward because of cloture rules, and both sides voted the party line. Still, we can see how abstentions due to health concerns could make it difficult for lawmakers to weigh in on vital issues down the line.
But Joshua Huder, a senior fellow at Georgetown University’s Government Affairs Institute, worries that remote voting could make it easier for leadership to ride roughshod over their party’s legislators. “We’re already at a place where party leaders have outsized control over the policymaking process,” said Huder. “When the rank-and-file aren’t around for the backroom deals and negotiations, you create a legislature that’s a rubber stamp for what the leaders want to pass.”
Huder didn’t rule out using alternate voting systems in a crisis, suggesting that members could remain in Washington and call in from their offices. But he did worry that remote voting would reduce face-to-face interactions, inevitably cutting down on members’ chances to make personal connections, which could exacerbate the divides that already exist in Washington. He also said it’s possible this could establish a precedent where remote voting was used in non-crisis situations because it becomes “a long-term or permanent solution through which Congress is going to pass legislation.”
Still, if the coronavirus crisis keeps getting worse in the U.S., there will be a lot of pressure on Congress — including from its own members — to make changes. “At a time when we’re asking Americans to make huge sacrifices to stop the spread of COVID-19, it is bad leadership for our politicians to then make none of those adjustments themselves,” said Hemel.