Published by The Lawfare Institute
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On Friday, July 24, counsel for House Republicans and the general counsel of the House of Representatives appeared before Judge Rudolph Contreras of the U.S. District Court for the District of Columbia for a hearing on House Republicans’ effort to enjoin the use of the proxy voting system developed to help the chamber conduct business more safely in the midst of the pandemic. Over the course of almost three hours, the parties debated—with little interruption from Contreras—whether the plaintiffs have standing to challenge the House rule establishing proxy voting and whether the Constitution requires that members of Congress be physically present for the House to conduct official business such as votes. Contreras showed no clear preference for the arguments of either side, and made a point at the outset of the hearing to say that he remained fully “open to persuasion.”
House Republicans’ lawsuit began a little over two months ago. On May 26, Minority Leader Kevin McCarthy, scores of other Republican representatives and several constituents sued to enjoin the use of the chamber's proxy voting system. That system establishes a mechanism to allow an absentee House member to designate another member to cast votes on their behalf during the coronavirus pandemic. Under the resolution authorizing the novel system (H. Res. 965), a representative designates his or her proxy in a signed letter transmitted to the clerk of the House. A proxy must vote or record the presence of the member whom they represent pursuant to the specific instructions that member gave them. Any individual voting by proxy will count toward the quorum needed for the House to conduct business.
So far, more than 70 House Democrats have utilized the system and designated proxies; 36 have active proxy designations. On July 29, Rep. Francis Rooney became the first House Republican to vote by proxy, over the objections of House Republican leadership.
The Republicans’ lawsuit names three defendants: House Speaker Nancy Pelosi; Clerk of the House Cheryl Johnson, who is responsible for conducting a record vote or a quorum call under House rules; and House Sergeant-at-Arms Paul Irving, who is responsible under H. Res. 965 for determining whether a public health emergency due to COVID-19 has begun and when it has ended. Once the sergeant-at-arms concludes that such an emergency is in effect, the speaker of the house may commence the renewable, 45-day “covered period” during which representatives can vote by proxy. Pelosi initiated that period on May 20 and extended it on June 29.
Minority Leader McCarthy, the lead plaintiff in the lawsuit, has described proxy voting as “a brazen violation of the Constitution” and “a dereliction of our duty as elected officials”—one that “would silence the American people’s voice during a crisis.” The minority leader has called for “rapid and robust legal relief” in the form of a permanent injunction on the proxy system.
For his part, Senate Majority Leader Mitch McConnell initially questioned the constitutionality of proxy voting, signalling in late May that he might not take up legislation passed by the House when a quorum of members was not physically present.
In their amended complaint, House Republicans allege that proxy voting violates the Constitution’s quorum requirement, the “yeas and nays” requirement, the nondelegation doctrine, and the “structure” of the founding document. At issue in the first, second and fourth of those alleged violations is whether lawmakers can be counted as “present” for the purpose of the House’s conducting official business if they are not physically gathered in the Capitol. At issue in the third alleged violation—the purported transgression of the nondelegation doctrine—is whether an absent House member’s designation of a proxy amounts to an unconstitutional delegation of that member’s voting power to another.
On June 19, the defendants moved to dismiss Republicans’ lawsuit on the basis that plaintiffs lacked standing to sue, teeing the district court up to decide the case without reaching the merits. But at oral argument on July 24, Judge Contreras gave the parties an opportunity to discuss at length both the question of standing and the constitutional meat of the issues.
The House Republicans attempt to demonstrate injury, and thus standing to sue, by arguing that proxy voting dilutes their voting power. Because the proxy system permits a single representative to serve as a proxy for up to ten absent representatives, and because the plaintiffs believe that proxy voting is constitutionally invalid, they argue in their amended complaint that H. Res. 965 allows “a single physically present Member of the House to vote up to 11 times on legislation” (emphasis in original)—casting one valid vote and ten invalid ones. The “inescapable mathematical result” of this system, the complaint continues, “is the dilution of voting power of those Members who have not been given (or, like the Representative Plaintiffs, refuse to accept) proxies.”
At the July 24 hearing and in their reply memorandum of law, the plaintiffs offered a hypothetical to illustrate the claimed dilution of House Republicans’ voting power. Were 200 members to vote on a bill in person and 50 to vote by proxy, the plaintiffs argue, the strength of the physically present member’s vote would decrease from 1/200 to 1/250. This amounts, in the plaintiffs’ eyes, to a clear mathematical dilution of Republicans representatives’ voting power—that is, assuming that most Republicans continue to eschew proxy voting. And the dilution of those representatives’ voting power in turn dilutes the voting power of their constituents, giving the constituents standing to sue, as well.
The defendants submit that this vote-dilution theory of injury is based on a fundamentally misleading characterization of the proxy voting system—a “false premise,” as they put it in their opening memorandum of law. As H. Res. 965 makes clear, a designated proxy is merely the vehicle for an absent member’s vote, not the determiner of it. A proxy must act “pursuant to the exact instruction[s] received from the other Member” and announce those instructions to the House before carrying them out. A proxy cannot decide how absent members vote; she merely transmits their votes, in accordance with their express wishes.
At argument, however, Judge Contreras pressed Doug Letter, the House general counsel, to respond to plaintiffs’ hypothetical. Letter dismissed the idea that any dilution occurred because the “denominator never changes.” The mathematical strength of a member’s vote does not change; every member simply gets one vote.
Even if House Republicans had suffered a dilution of their voting power, the defendants maintain that the vote-dilution theory still would not support standing under the Supreme Court’s 1997 decision in Raines v. Byrd. In Raines, six lawmakers challenged the constitutionality of the Line Item Veto Act, which purported to give the president the authority to cancel certain spending and tax benefit measures after he had signed them into law. The Supreme Court held there that federal courts have jurisdiction over a dispute only if it is a case or controversy under Article III, Section 2, of the U.S. Constitution. The lawmakers’ complaint in Raines did not meet the standing element of the case-or-controversy requirement because it did not allege a personal injury that is particularized, concrete and otherwise judicially cognizable. The six lawmakers who sued, the Supreme Court noted, “have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies.” Moreover, their “claim of standing [was] based on a loss of political power, not loss of any private right, which would make the injury more concrete.” Such claims, the court explained, were not sufficient reason to permit individual lawmakers to challenge a federal law.
Similar things could be said about the lawmakers behind McCarthy in the current suit, as defendants observe in their motion to dismiss. Like the plaintiffs in Raines, McCarthy and co. have not been singled out for any “specially unfavorable treatment.” And as in Raines, House Republicans have asserted no personal injury, but rather injury to their official capacities.
The defendants further argue that the Constitution’s Speech or Debate Clause separately and independently bars the lawsuit. That clause has been interpreted to provide members of Congress and congressional officers and aides absolute immunity from civil suit for all “legislative acts.” In 1972, the Supreme Court clarified in Gravel v. United States that an act is legislative in nature if it is “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” And in Consumers Union v. Periodical Correspondents’ Association, the D.C. Circuit further clarified that the enforcement of congressional rules falls within the sphere of acts protected by the Speech or Debate Clause. In that 1975 case, the circuit ruled that the House and Senate Sergeant-at-Arms could not be sued for their enforcement of rules regulating entry to the press galleries overlooking each chamber. In light of this precedent, the defendants submit that Pelosi, Johnson and Irving are immune from suit for administering the duly enacted proxy voting system (or, put differently, carrying out a legislative act).
At argument, Contreras asked Charles Cooper, counsel for the plaintiffs, whether he agreed that plaintiffs should lose if the Speech or Debate Clause applies. After a lengthy pause, Cooper conceded that this would be “game over.” But he later argued that if the Speech or Debate Clause bars plaintiffs’ challenge to the constitutionality of H. Res. 965, it would also bar future claims that the House had unconstitutionally infringed on a member’s voting power.
Cooper proceeded to offer Contreras a series of nightmarish hypotheticals. What if the House passed a rule barring first-term members from voting on appropriations? Or a rule counting male members’ votes twice and female members’ votes once? If the Speech or Debate Clause shields H. Res. 965 from plaintiffs’ challenge, would it not similarly block judicial review of those more extreme rules?
Cooper’s point seemed to trouble Contreras. Later in the hearing, Contreras asked Letter whether, under the general counsel’s theory, the Speech or Debate Clause would shield a House rule from suit no matter how egregious the rule was. Letter largely evaded the question, responding that he’s not taking that position because he does not have to. And he emphasized that the House had done nothing discriminatory in enacting and administering the proxy system.
Even if the court were to rule that plaintiffs have standing, it is unlikely they would prevail on the merits. Article I, section 5, of the Constitution gives Congress broad discretion to write the rules of its proceedings. As the Supreme Court held in 1892 in U.S. v. Ballin—a case challenging the constitutionality of an 1890 House rule that permitted members gathered in the House chamber but not voting on a bill to count toward the majority required for a quorum—courts have only a limited role to play in reviewing the validity of congressional rules. A rule is constitutional, the court stated, if it passes a narrow, three-part test: it must not “ignore constitutional restraints,” it cannot “violate fundamental rights,” and it must have a “reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.” No other factors “present any matters for judicial consideration,” the court added. “[A]nd it is no impeachment of the rule to say that some other way would be better, more accurate or even more just.”
With respect to the quorum requirement specifically, the Ballin Court further held that because the Constitution has “prescribed no method” for how “the presence of a majority [shall] be determined,” it is “within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact” (emphasis added). It would seem sufficient, then, that H. Res. 965 ensures that absent members who direct their proxy—in a letter containing their “exact instruction[s]”—to cast their vote or record their presence will count toward the majority needed for a quorum.
But throughout their filings and at the hearing, plaintiffs stressed that only physical presence can satisfy the Constitution’s requirements and adhere to its restraints. The document’s repeated use of words such as “gather,” “sitting,” and “attendance,” they argued, demonstrate the framers’ clear intent that Congress meet in person to conduct official business.
The defendants, in response, pointed to the Constitution’s lack of explicit reference to “physical” presence. But in his closing rebuttal, Cooper remarked that focusing on the omission of the word “physical” would amount to ignoring the meaning of the Constitution’s text and its use of verbs that imply—and at the time of the Constitution’s enactment would have been understood to entail—in-person meeting.
Of the merits issues before the court, the question of whether H. Res. 965 violates the nondelegation doctrine received only fleeting attention at the July 24 hearing. House Republicans assert that because proxy voting allows a designated proxy to cast votes on behalf of particular absent representatives, those representatives have handed over a portion of their legislative responsibility to another individual. Cooper clarified at argument that plaintiffs do not believe that representatives who designate a proxy are allowing that proxy to decide how they vote on a particular bill. But those representatives, Cooper stated, have temporarily surrendered the power to cast their vote—an act which plaintiffs submit has special significance in a democratic society. Cooper added that a representative’s power to cast his or her vote cannot be “disaggregated” from the representative’s other duties. Accordingly, it cannot be delegated.
Cooper conceded, however, that he had “no case whatsoever” to cite to support his argument that proxy voting violates the nondelegation doctrine. And although he tried to spin the absence of such case law as further evidence that proxy voting is unprecedented, unconstitutional and contrary to our republican form of government, it was not clear that this assertion swayed Contreras or softened Cooper’s admission that he could point to no citation of authority. Indeed, Contreras seemed to agree with Letter’s rebuttal that proxies serve effectively the same function as the House tally clerk, who enters members’ votes into the electronic system on the House floor. No one, Letter stated, believes the tally clerk’s transmission of a vote amounts to the clerk’s casting a vote on behalf of a member. The nondelegation doctrine thus would seem not to apply.
It is true, of course, that proxy voting is constitutionally untested. The House Rules Committee conceded as much in a report it released in March on remote voting options. And Contreras seemed to acknowledge this novelty when he observed in his closing remarks that he doubted he would be “the last word on this” case. The lawsuit, in other words, will almost certainly continue on appeal.
But any decision affirmatively allowing the suit to move forward would seem to break new ground. Were the district court to rule that House Republicans have standing, it would effectively bless the practice of courts’ intervening to settle disputes between lawmakers and invite more lawsuits of a similar kind. Such a decision would also seem to fly in the face of the long-standing deference courts have traditionally granted to congressional rulemaking.
Were the plaintiffs to succeed on the merits of their challenge and secure a decision holding that Congress must meet in person to conduct votes, this would severely constrain the legislature’s ability to function during crises—like the current pandemic—that make it not only difficult but dangerous for members to gather in-person in large numbers.
Such a decision would also call into question the constitutionality of unanimous consent, the routine practice of passing uncontested legislation and resolutions without a full in-person vote. In their filings and at argument, the plaintiffs stressed that unanimous consent is constitutional and that the court need not invalidate that practice to rule on their behalf. But the defendants counter that if plaintiffs believe members must be physically present for the House to conduct official business such as votes, they cannot also believe that it is constitutional for the House to pass legislation by unanimous consent, when only one or two lawmakers are physically present in the Capitol.
The plaintiffs submit that unanimous consent is permissible, and coexists with their argument that the Constitution requires lawmakers’ physical presence in the Capitol, because it operates on the presumption of a continuing quorum. After the House establishes a quorum, it presumes the quorum remains present—or continues—until a lawmaker requests a quorum call and proves that a quorum is no longer present. Unanimous consent, the plaintiffs assert, thus relies on a prior quorum of physically-present members.
At argument, Letter parried that just as the House determines when a quorum is present for unanimous consent, it chose how to establish a quorum under the proxy voting system. Moreover, Letter continued, that the practice of unanimous consent predates the Constitution and that the framers were aware of it suggests that they knew that “presence” does not imply “physical presence.” Given the tension between the parties’ stances on unanimous consent, it would seem that the court would have to address the issue if it reached the merits of the case.
Perhaps this is why Republican lawmakers don’t seem to fully have their hearts in this fight. Republicans will assume control of the House again in the future, and they will want to pass legislation by unanimous consent, as has been done since the First Congress convened in 1789. Indeed, during the 1918 Influenza Pandemic, the House utilized a unanimous consent agreement to pass critical legislation despite not having a physical quorum present. And as Letter stated at argument, every one of the House Republican plaintiffs in the suit has previously made motions for unanimous consent.
It will also be interesting to see whether the Senate majority leader’s initial skepticism of the House’s voting system was fleeting or not. On July 2, the Senate passed H.R. 7440, the Hong Kong Autonomy Act, by unanimous consent—and that bill became Public Law 116-149 on July 14. The bill passed the House without objection without a physical quorum present, rather than through the use of the new proxy system. But it still would seem exceedingly odd for McConnell to object to the House’s use of the proxy system to achieve a quorum to pass a bill, but have no qualms about passing a bill in the Senate by unanimous consent, without a physical quorum of senators present. How McConnell handles another matter—the new stimulus bill that is currently in shambles but is nonetheless expected to pass both chambers before the August recess—may show more. But it is hard to imagine McConnell holding up such a bill in the Senate based on dubious critiques of the legitimacy of the House’s voting system.
Studying the Republicans’ lawsuit, it’s easy to get lost in the minutiae of case law and the Constitution’s text. But quite a lot is at stake. It’s worth keeping in mind the basic facts: After an extended period of inaction, the House amended its rules to permit members to vote remotely in the midst of a pandemic. It did so to ensure it could do more than merely pass relief packages by unanimous consent. And that discretion—that flexibility to adopt a novel means of continuing vital legislative and oversight work from afar—now hangs in the balance.
More broadly, the case could add fire to the already confused debate about just how deferential Article III courts are going to be towards the Article I branch of government. In the litigation over a congressional subpoena to former White House counsel Don McGahn, a panel of the D.C. Circuit Court of Appeals recently held that the court had no authority to resolve a dispute between the legislative and executive branches until their actions harmed a private entity. (The circuit court, sitting en banc, heard oral arguments in late April, and it is unclear when it will issue an opinion.) And on July 9, the Supreme Court held in Trump v. Mazars that courts must take into account separation of powers concerns in resolving disputes over congressional subpoenas seeking personal information of the president. Chief Justice John Roberts’s opinion created a new standard for Congress to follow, setting forth a four-factor balancing test for evaluating the validity of congressional subpoenas seeking personal information of the president.
The present case does not involve separation of powers concerns in quite the same way, because it does not involve the president. But however Judge Contreras rules in this case, his decision could offer additional insight into whether courts are moving toward or away from involving themselves in disputes that implicate the scope and force of Congress’s constitutional prerogatives.