Published by The Lawfare Institute
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Late last Wednesday, March 16, Reps. Mario Diaz-Balart and Ben McAdams became the first members of Congress to announce their diagnosis with COVID-19, the respiratory disease caused by the novel coronavirus. But they weren’t the last. On Sunday, March 22, Sen. Rand Paul made public that he too had tested positive for the virus, despite exhibiting no symptoms. Within hours, several Republican senators who had had contact with Paul announced that they were self-quarantining, joining numerous other legislators who have taken such steps after being exposed to the virus or exhibiting symptoms. Moreover, the reluctance of Paul and other lawmakers to observe social distancing means that many more members of Congress are likely to find themselves in a similar position. Before he received his test results, Paul—like many other infected and exposed legislators—was still active on the Senate floor and in congressional gatherings, even going for a swim at the Senate gym as late as the morning before his diagnosis.
This behavior might look reckless—and in some cases, it is. But for many members of Congress, such resistance to social distancing is also a requirement of their jobs. Both the House and Senate maintain rules that require legislators to be physically present to cast votes. And if a majority of either chamber cannot assemble in person, then the same rules prevent Congress from enacting any legislation—even in the midst of a national emergency.
Some legislators—following the advice of academics and policy experts—have begun to push back against this restriction. On March 9, Reps. Eric Swalwell and Rich Crawford revived a bipartisan House resolution that would allow for remote voting and committee participation. On March 18, another contingent of 45 House members led by Rep. Katie Porter submitted a letter to Speaker of the House Nancy Pelosi seeking some remote voting solution at least so long as COVID-19 remains a concern. On March 23, Porter and her colleagues re-upped those concerns with House Rules Committee Chairman James McGovern, whom Pelosi tasked with studying the issue following the earlier letter.
Thus far, however, these requests have not fallen on fertile ground. “To the extent that Pelosi shut it down, it’s shut down,” House Democratic Caucus Chairman Hakeem Jeffries said of the Swalwell-Crawford proposal. When asked about the potential for remote voting in the Senate, Majority Leader Mitch McConnell responded simply, “We’ll not be doing that.” Pelosi similarly dismissed suggestions that Congress should resume its business somewhere other than Capitol Hill. “We are the captains of this ship,” she reportedly said in a closed-door caucus meeting last week. “We are the last ones off.”
During ordinary times, McConnell and Pelosi may have a point, as there are reasonable arguments both for and against Congress’s tradition of in-person participation. But in the era of COVID-19, treating that tradition as if it were an absolute would be foolhardy. A point may well come where Congress simply cannot safely meet in person to act as a body, and it’s not clear how much warning the legislature will have before that happens. Congress needs to start preparing for that contingency now, instead of playing chicken with its own institutional debilitation. And there are several prudent steps it can take to do so in relatively short order—if legislators can muster the necessary political will.
Congress’s In-Person Requirement
The practice of requiring members of Congress to conduct their business in person has its origins with the Framers. Article I of the Constitution establishes that “a Majority of each [chamber] shall constitute a Quorum to do Business[.]” The Framers appear to have assumed that this quorum would be in person and co-located, as evidenced by other provisions allowing each chamber to “compel the Attendance of absent Members” and limiting their ability to adjourn “to any other Place than that in which the two Houses shall be sitting[.]” This tradition has in turn carried down into the present Congress, which has more or less retained the in-person requirement in current House and Senate rules.
This does not necessarily mean, however, that the in-person rule is a legal or constitutional requirement. Congress has long been understood as having extensive leeway both in determining when a quorum exists and in managing its internal legislative procedures, all as a part of each chamber’s constitutional authority to “determine the Rules of its Proceedings[.]” And Congress has demonstrated a willingness to use this flexibility creatively to work around in-person quorum and voting requirements.
The clearest example is on daily display in how Congress handles its most mundane and uncontroversial business. The House and Senate both operate on an effective presumption that there is a quorum, even if an insufficient number of legislators is actually present on the floor. This allows the majority and minority leadership to use “unanimous consent”—a type of motion that adopts a measure so long as there are no affirmative objections from the floor—to pursue mundane and uncontroversial actions without requiring that most of their members actually be present. At any point, a legislator can pursue a motion to verify that a quorum is present (a “quorum call”), require that legislators make individual votes (a “roll call”), or otherwise throw this presumption into doubt. When this happens, legislators are required to proceed to the floor, make their presence known, and resume the chamber’s business in person. While this is most often used as a dilatory tactic to secure more time for debate and deliberation in practice, it also ensures that unanimous consent cannot be used for cases where even a single legislator seriously disagrees. Nonetheless, there is no actual quorum physically present—or even necessarily in the same city—for many measures adopted through unanimous consent procedures, including legislation.
Nor is this the only area in which in-person voting and quorum requirements have given way. Senate rules currently allow individual committees to authorize “proxy voting” on committee matters, through which an absentee legislator can authorize a colleague to vote on his or her behalf. And in 2005, the House adopted a separate set of procedures for “catastrophic circumstances” in which a majority of members of Congress may not be able to assemble. This involves using a complex, multi-day recall process to temporarily subtract the number of representatives who are unable to show up from the effective total number of members of the House, lowering the majority threshold needed for quorum.
These innovations all underscore that Congress’s preference for in-person participation is far from sacrosanct. So why have House and Senate leaders thus far been so resistant to innovation along these lines in addressing COVID-19?
The main explanation appears to be that such a move would be a radical departure from how Congress normally operates. “We will deal with the social distancing issue without fundamentally changing Senate rules,” McConnell said on March 17. A more specific motivation may be that in-person voting helps to bind legislators to Washington, D.C., forcing them to be present and publicly engage in the broader business of legislating instead of residing in their home districts and simply tending to their legislative obligations from afar. These are better justifications than they may seem on first blush, particularly when they come from the House and Senate leaders responsible for the difficult task of corralling their colleagues to ensure Congress actually succeeds in enacting legislation. But that doesn’t mean that they shouldn’t give way in certain exigent circumstances, especially when the other tools available simply aren’t up for the task.
No Good Options
For the moment, leaders in both the House and Senate seem focused on taking modest steps to minimize the risks posed by COVID-19 to Congress. The House is currently on recess, and its leadership has indicated that it is unlikely to recall members back to Washington, D.C., until the Senate passes the next round of relief legislation currently being debated. Members of leadership in both chambers have indicated that they also intend to adjust floor procedures to reduce contact among members by only bringing legislators forward in small groups when their presence is required, though compliance has thus far been limited. Committee meetings and hearings, meanwhile, are largely being postponed, though some committee leaders have indicated that they hope to resume at least some high-priority convenings in the near future—such as the mark-up of the next National Defense Authorization Act, currently scheduled for April. And while individual members and committees are responsible for setting their own rules regarding teleworking, most are permitting their staff to work remotely where possible.
These steps will no doubt reduce the risk of transmitting COVID-19 among members of Congress. But they cannot eliminate it, nor can they even clearly reduce it to a manageable level. Nearly half the Senate and more than a third of the House—including most of the majority and minority leaders in both chambers—are over the age of 65 and thus “at higher risk for severe illness” if they contract COVID-19. The Centers for Disease Control and Prevention generally advise that such individuals “stay home as much as possible” and avoid contact with others at risk of infection—neither of which is currently possible for legislators who wish to continue to go about their work. As the diagnosis and isolation of several members has made painfully clear, the close proximity in which members of Congress routinely interact creates a real risk of transmission of the virus. And if members of Congress are distancing from each other anyway, then it’s not clear what advantage requiring them to remain in Washington, D.C., provides over possible remote participation.
The most significant risk, however, is not to individual members of Congress but to the institution itself. If COVID-19 prevents either chamber from establishing a quorum because a majority of its members are under quarantine or too sick to participate, then Congress as a whole will be unable to enact legislation or conduct other essential business. This would be a serious problem in ordinary times; in a time of national emergency, it may well place the whole nation at risk. After all, what if the flagging U.S. economy leaves many Americans on the verge of poverty, but Congress can’t rouse a quorum to expand unemployment programs because too many members are sick or in quarantine?
Congress could try and use unanimous consent to surmount this obstacle. But recent events show how limited that option is likely to be. On March 14, the House passed the first piece of relief legislation just before House members left for a scheduled recess. Shortly thereafter, though, House leaders discovered certain technical fixes that had to be made to the bill and voted on before a final version could be sent to the Senate. They attempted to use unanimous consent—but a lone holdout, Rep. Louie Gohmert, threatened to force House members to return to the floor and pass the revised legislation in person. Gohmert eventually relented, allowing the revised bill to pass and ultimately become law. But the episode underscores that unanimous consent is unlikely to be a realistic option for anything but policy responses that meet the lowest common denominator between the parties—and there’s no reason to believe that such solutions will be adequate to address the crisis.
Alternatively, if the House were to find itself unable to establish a quorum, it could use the “catastrophic circumstances” procedures already within its rules to temporarily reduce the House’s size and lower the threshold for quorum. But the Senate has no such procedures. And even if it did, this would be far from an ideal solution. Members of Congress tend to interact far more frequently with other legislators of the same party, from the same state, on the same committees, or with compatible sets of policy interests. As the number of Senate Republicans forced to self-quarantine this past weekend demonstrates, COVID-19 could have an unpredictably disproportionate impact on representation within Congress.
Imagine if a member infected with the virus were to attend a meeting of the state delegation from New York or the Congressional Black Caucus, causing those legislators to self-quarantine after the member’s diagnosis. Could Congress convene without representation from these groups without compromising the legislature’s democratic legitimacy? Would party leaders even let it happen? After all, doing so could result in a significant shift in the balance of power between different political interests, and there are no limits on the types of legislation the adjusted House might consider—raising the possibility that a newly empowered groups of legislators could seize the moment to pass legislation that would not otherwise stand a chance of adoption. At a minimum, using this procedure would effectively remove many Americans’ elected representatives from the legislature, even if those representatives were fully capable of weighing in on the issues of the day—just not able to do so in person.
Creating a Failsafe
Congressional leaders may well be right that COVID-19 does not yet warrant going fully remote, as some legislators have proposed. Perhaps the risk mitigation measures pursued by House and Senate leaders, if widely observed, are sufficient to ensure that the virus never threatens Congress’s ability to operate as a representative body. And the leadership may be correct that other congressional activities, such as committee hearings, can be temporarily postponed or adapted within existing rules.
Of course, if these measures ultimately prove ineffective—or if the current period of disruption lasts as long as some experts fear it might, making further postponement impossible—then congressional leaders may change their assessments. And they will need to have a backup system in place so they can act on that new assessment, even if prevailing conditions prevent them from going about their ordinary business.
In short, what Congress needs is a failsafe—a mechanism that will guarantee that the body is able to enact new legislation, even in a worst-case scenario where COVID-19 makes it unsafe for members of Congress to come together in one location. No adequate mechanism currently exists, and it would be foolhardy to assume that Congress will have enough advance warning to negotiate and adopt one before a true crisis threatens it with debilitation. But the House and Senate can still create one now by amending their rules—without implementing new technologies or radically changing how Congress operates in the ordinary course of business.
The failsafe would work by providing a mechanism for triggering remote voting on at least some pieces of key legislation. The House’s “catastrophic conditions” procedures provide one possible model: The failsafe could work by having the sergeant-at-arms for each chamber and the Office of Attending Physician submit reports to the speaker of the House and president pro tempore of the Senate, respectively, concluding that prevailing conditions have rendered it unsafe to assemble in person as a body. The speaker or president pro tempore would then consult with the majority and minority leaders in each chamber on these findings before announcing them publicly and implementing the failsafe. Other processes could also work, so long as they are limited to exceptional circumstances and are not vulnerable to being used for political gamesmanship. That said, Congress may not want to limit the COVID-19 failsafe to circumstances where it is already unable to achieve a quorum, as the House’s “catastrophic conditions” procedures currently do. By this point, many Americans may have already lost their effective congressional representation due to illness or quarantine. So there is a benefit to Congress giving itself room to implement the failsafe before such a critical moment is reached.
Once triggered, this failsafe needs to provide a mechanism for remote voting on at least some pieces of key legislation. Doing so, however, doesn’t necessarily require any specialized technology or other tools to recreate the conditions on the House or Senate floor. Instead, the speaker or president pro tempore could simply be made responsible for establishing an official channel of communication (such as a secure email address) and a back-up channel for authentication (such as a phone line) with each member, wherever members are located. Any time legislation is put up for a vote, the House or Senate leadership would be responsible for informing each member in advance through these authenticated channels and leaving voting open for a fixed period, such as 24 hours. During this time, each member would be responsible for submitting their vote to the leadership through both channels. Leaders would then share the results with the rest of the members as they arrived. Majority and minority leaders could help organize and mobilize their members to participate and monitor these procedures for irregularities, which they could then work with the speaker to address directly with members through the two channels. Congress could even provide for a mandatory audit and verification of the votes at the conclusion of each voting period if it so desired. Regardless, the point would be to hold a reliable vote using widely available technology—something already within Congress’s current capabilities.
One potentially complicated aspect of remote voting is determining who is “present” for the purposes of establishing a quorum. This in turn determines how many votes are needed for passage, namely a majority of those constituting that quorum. The easiest solution may be to simply treat every member as “present” for the purpose of such remote votes, thereby requiring that any legislation receive support, at a minimum, from a simple majority of both chambers. This allows the final vote count itself to serve as verification that a quorum was present and participated, in line with constitutional requirements. Indeed, a similar approach was actually standard practice in the House of Representatives until 1890, and relevant case law has confirmed that it is within Congress’s authority to implement. While this raises the number of votes to enact legislation from a majority of quorum to a majority of the whole body, doing so seems like a reasonable compromise for failsafe procedures that are only supposed to be used in an emergency. And the number of votes required will remain far more achievable than that required for unanimous consent.
Any failsafe system along these lines is likely to be time-consuming to use. As a result, it will almost certainly have to be paired with a set of expedited procedures that limit many of the procedural maneuvers and other obstacles that are frequently deployed in the course of the ordinary legislative process. For example, legislation that has not already been passed by the other chamber may need to secure co-sponsorship from a certain percentage of members before it is eligible to be voted on remotely, encouraging legislators to circulate proposals among their colleagues informally before taking up valuable voting time. The expedited procedures may also need to severely limit amendments and other motions that are often used to revise conventional legislation, as resolving these motions would be onerous to pursue through remote voting procedures. The goal would be to allow Congress to use the failsafe procedures to hold a clean vote on eligible legislation while limiting the number of extraneous votes required. This in turn would shift the process of negotiating legislation to informal channels that can be more easily pursued by telephone, email and other forms of remote communication.
That said, these expedited procedures should permit votes on simple House and Senate resolutions—not just bills and other forms of legislation—so that each chamber can further amend their respective rules. And it should cover efforts to override presidential vetoes, so that even an absentee Congress can serve as an effective check on the president.
There is a risk that plaintiffs will challenge the constitutionality of legislation pursued through these procedures, for a lack of quorum or perhaps for some other deficiency. Congress could, as some have suggested, set up a statutory mechanism for fast-tracking such appeals in order to verify the constitutionality and effectiveness of the failsafe mechanism. That said, this might render the near-term effectiveness of important emergency legislation uncertain out the gate, and even expedited review is likely to take some time to verify. In the alternative, Congress could simply let any such challenge work its way through the normal judicial process, which may well provide sufficient time for any emergency response legislation to have its intended effects. Either way, the failsafe mechanism should, at a minimum, allow each chamber to further amend its own rules—an area over which Congress’s sole control is firmly established—to address any shortcomings the courts might identify.
Finally, the failsafe mechanism should have a clear sunset to make sure it does not unintentionally replace the normal order in Congress. Each chamber could, for example, require that a simple majority of its members vote affirmatively to continue to use the procedures immediately after they are invoked and at regular intervals thereafter. Or perhaps the failsafe mechanism could expire after a fixed period of time, requiring that it be renewed. Either way, the mechanism will make clear on its face that it is only intended to be a temporary solution.
This failsafe mechanism would be a poor replacement for the standard legislative process—but in many ways, that’s the point. Its purpose would not be to replace Congress’s standard procedures, but simply to make sure that members of Congress are still able to exercise their core functions as a representative body in the event that a national emergency prevents them from convening in person. Perhaps these procedures will never need to be used, or will be invoked only to pass key relief legislation such as that currently being debated by Congress. Or if COVID-19 concerns prove more enduring, Congress may use the failsafe procedures to implement a more complete system of remote voting and congressional participation to more fully replace the ordinary order. Either way, a failsafe will help make sure that Congress can perform its most basic functions. And that alone will help ensure it is able to survive and respond if the worst-case scenario truly comes to pass.
Other legislatures are already beginning to act. Both chambers of Pennsylvania’s General Assembly have adopted measures that will allow them to pass legislation remotely if necessary, as did Utah’s state legislature. Other U.S. states are considering similar measures. And foreign governments are taking similar steps, with the European Parliament even holding its first-ever vote by email on a COVID-19 relief proposal.
For now, however, Congress’s time is running out. The rate of exposure to the virus in the United States is likely to increase dramatically over the next few weeks, and the same is almost certain to be true in Congress. No one knows if or when the worst-case scenario of a debilitated Congress may occur, or how much warning Congress will receive before it does. And that’s precisely why it’s important for Congress to prepare for those contingencies now—while it still can.