Published by The Lawfare Institute
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The United States Congress has been decidedly slow to adopt new processes to allow it to legislate and conduct oversight remotely during the coronavirus pandemic. Although lawmakers left Washington for weeks, they largely failed to settle on a means by which to hold hearings virtually, completing only one “paper” hearing before seeming to abandon the new format. Less than two weeks ago, the House Democratic leadership seemed to scuttle a modest proposal to amend the chamber’s rules to permit remote voting by proxy and remote hearings, but then last week they revived the possibility of a vote on those proposed changes sometime in the future. And while Sens. Rob Portman and Dick Durbin introduced a resolution in late March to allow for remote votes and proceedings, which I describe in detail below, Majority Leader Mitch McConnell has shown little interest in moving the resolution forward.
Congress’s inflexibility has meant that many members have had to travel repeatedly to and from Capitol Hill for a series of emergency appropriations votes on coronavirus relief packages. And despite questions about the epidemiologic wisdom of bringing lawmakers back to Washington, the Senate is back in session this week to hold a host of in-person hearings.
In the face of mounting pressure to develop and implement ways to work remotely, though, Congress has begun to inch closer to action. On Thursday, April 30, the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations held a roundtable discussion via WebEx, a videoconference platform, on the viability and constitutionality of conducting Senate votes and other proceedings remotely.
While the subcommittee is not the first congressional body to hold a remote public roundtable—the House Homeland Security Committee has held four virtual fora on issues related to the coronavirus—it is the first panel to examine publicly how the Senate should adjust its operations during crises, like the current pandemic, that make it supremely difficult for lawmakers and staff to gather in person.
Portman, the subcommittee chairman, noted in his opening remarks that he and other senators also hoped to show “that it is possible to have a hearing without physically being in a hearing room.” This “gathering itself,” he stated, “is … part of our case.”
In the lead-up to Thursday’s roundtable, subcommittee staff prepared a detailed memorandum on current and previous congressional proposals to allow remote voting and participation, the constitutionality of remote congressional proceedings, how U.S. states and foreign countries have conducted legislative activities remotely, and security concerns related to remote participation. The memorandum stressed that remote participation should never replace in-person votes and proceedings “except in the most limited circumstances,” which staff defined as “crises, affecting the entire country, that would otherwise hobble Congress’s ability to act without this authority [to operate remotely].”
So far, senators have introduced only two proposals to establish remote procedures, as the subcommittee memorandum notes. Portman and Durbin drafted the first proposal, S. Res. 548. Their resolution would amend Rule XII of the Standing Rules of the Senate to permit the Senate majority and minority leaders, or their designees, to jointly authorize senators to vote remotely when two conditions are present: “an extraordinary crisis of national extent exists” and it is “infeasible for Senators to cast their votes in person.” The resolution tasks the secretary of the Senate, the Senate sergeant-at-arms and the director of the doorkeepers with choosing the technology to facilitate remote voting and participation. And crucially, it allows remotely participating senators to count toward the Senate’s quorum requirement—a constitutional prescription that a majority of lawmakers be present for the chamber to conduct official business. But the Portman-Durbin proposal would authorize remote operations for only 30 days, and it requires an affirmative vote of three-fifths of the Senate to lengthen the period of remote activity. That requirement is designed, in the subcommittee staff’s words, to “further tether remote participation and voting to crisis conditions, as well as [to] prevent the normalization of its use.”
Sen. Rand Paul authored the second remote-procedure proposal. Notably, Paul’s draft resolution would establish a process only for remote voting; it does not contemplate remote means for engaging in debate or conducting other proceedings. His approach, as the subcommittee memorandum details, would allow senators “to make a privileged motion to authorize a period of up to 30 days” during which senators could vote remotely. A motion to permit remote voting would require an affirmative vote of three-fourths of the Senate. And under the resolution, senators voting remotely would count toward a quorum. But unlike the Portman-Durbin proposal, Paul’s does not require that the nation be in crisis or that in-person voting be infeasible for senators to secure consent to vote remotely. Remote voting could instead proceed whenever a senator has the votes to sustain a motion.
The subcommittee staff’s analysis of the constitutionality of remote voting and participation focused heavily on whether a proposed change to the Senate’s rules, or the adoption of a new rule, would comply with the three-part test the Supreme Court established in United States v. Ballin. In that case, the court considered a challenge to an 1890 House rule that altered how quora were determined. There it held that a congressional rule must have “a reasonable relation” to the “method of proceeding … and the result which is sought to be attained”; cannot “ignore constitutional restraints”; and must not “violate fundamental rights.” No other factors are relevant to a court’s analysis of a congressional rule’s constitutionality, the Supreme Court said, because the Constitution gives Congress considerable latitude to determine its own rules. Applying the Ballin test to the Portman-Durbin proposal, subcommittee staff found each prong satisfied. (The staff did not apply the Ballin test to Paul’s draft resolution, which the senator offered as an amendment to an act on the Senate floor and has yet to introduce formally.)
Turning next to the Constitution’s quorum requirement, subcommittee staff noted that the Supreme Court has long given Congress wide discretion to determine what it means for a lawmaker to be “present” for the purposes of a quorum. In Ballin, the staff added, the Supreme Court stated that the Constitution “has prescribed no method” for calculating a quorum and thus it remains “within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact.”
The Senate has even greater discretion, the memorandum continued, to determine what remote procedures will govern committee hearings and business meetings, as the Constitution does not comment on how those gatherings should proceed. Subcommittee staff cautioned, however, that the Senate would need to amend Rule XXVI of its standing rules, which requires the physical presence of a majority of a committee’s members in order to report a measure, matter or recommendation.
That the Constitution enjoins the House and the Senate, absent “the Consent of the other,” from meeting in “any other Place than that which the two Houses shall be sitting” adds a further wrinkle to efforts to conduct remote proceedings, subcommittee staff observed. This language raises the question of whether the Senate needs the approval of the House before it can hold proceedings remotely, rather than in Washington. The staff suggested that there may be a way around this provision, though: The Senate “potentially could deem itself meeting in Washington, DC” provided “the Senate floor remains open and some senators are present in the Capitol, while others participate remotely.” But if a crisis forced every senator to work remotely, subcommittee staff concluded that “the Senate would probably need the House’s consent to meet in cyberspace.”
Meeting in cyberspace, of course, presents a host of problems all its own—foremost among them the problem of how to secure a remote participation system from the malign interference and attempted disruption sure to target it. Accordingly, the staff argued that encrypted communications and effective means of verifying both senators’ identities and their votes will be essential to maintaining a secure remote participation system.
Subcommittee staff were keen on using end-to-end encryption technology for any remote voting. One option, they offered, is to give every senator a secure phone, which lawmakers would use only for remote voting and would contain an end-to-end-encrypted remote-voting application created specifically for the Senate. “Through this encrypted application and device,” the staff wrote, “senators could securely transmit their votes to the clerk in the chamber via voice, video, or written text.”
Another option the staff considered is blockchain—a decentralized and encrypted digital ledger that publicly records transactions that occur across a number of computers. As the staff noted, blockchain could “both transmit a vote securely and also verify the correct vote.” Staff raised concerns, however, about potential “vulnerabilities from cryptographic flaws and software bugs” and the prospect of interference through a “51 percent attack,” an incident in which an actor gains control of the majority of a network’s computing power and thus becomes able to tamper with the blockchain.
The final and perhaps most secure option that the subcommittee staff considered is for the Senate to create a “hardened, air-gapped system with encrypted communications” styled on the Joint Worldwide Intelligence Communications System (JWICS). That system enables the intelligence community and the military to transmit and discuss highly classified information securely. And senior military and intelligence officials regularly use the JWICS’s secure video teleconferencing feature to interface directly with the president and each other. Having a similar secure teleconferencing feature in a system constructed for the Senate would, in the subcommittee staff’s view, enable senators “to be seen and heard while casting their votes” and allow them “to engage in a wider array of deliberative activity” than other systems might.
To verify senators’ identities, subcommittee staff strongly supported the use of multi-factor authentication involving passwords, tokens unique to each senator and biometrics. To verify lawmakers’ votes, staff stressed that a remote-voting system “must include an audit mechanism” that would “notarize the senator’s vote.” The staff also highlighted a proposal put forth by Chris Boehnen, a former director for science and technology in the Office of the Director of National Intelligence, to require that there be a “layover period between when senators finish casting their votes and when those votes become finalized.” Because Senate votes are public after they are cast, the layover period would allow senators to review their electronic votes before the votes are finalized to ensure they match the positions the senators intended to transmit.
While subcommittee staff looked closely at the technologies on which a remote Senate system might rely, they made clear that the responsibility for choosing those technologies ultimately lies with the secretary of the Senate, the Senate sergeant-at-arms and the director of the doorkeepers.
During the roundtable discussion itself, senators heard testimony from Martin Gold, a partner at Capitol Counsel LLC and the author of “Senate Procedure and Practice”; Lorelei Kelly, the director of congressional modernization at Georgetown University’s Beeck Center for Social Impact and Innovation; and Joshua Huder, a senior fellow at Georgetown’s Government Affairs Institute.
In their opening remarks, the witnesses repeatedly emphasized that remote processes for voting and other congressional activities should never supplant conventional in-person proceedings, except in dire circumstances like the current pandemic. The Senate must be wary, they counseled, of normalizing remote functions and tightly restrict the duration of their use.
At the outset of the discussion, Sen. Mitt Romney expressed serious concern that the authority to hold remote proceedings would be abused in the future. He feared that even including language in an authorizing resolution tethering remote proceedings only to periods of “emergency”—as the Portman-Durbin proposal does with its reference to an “extraordinary crisis of national extent”—may not be enough to guard against the increased use or abuse of a remote function. Referencing the president’s excessive use of the emergency powers of his office prior to the pandemic, Romney seemed to suggest that a future Senate might declare an emergency where none existed in order to allow itself to conduct votes and other proceedings remotely. At the very least, the senator stated, the Senate must clearly define and narrowly construe the term “emergency.”
Martin Gold, one of the witnesses, shared Romney’s fear that creating an emergency remote-proceedings authority could have unintended consequences. While the lawyer encouraged the Senate to embrace certain remote procedures to allow the chamber to fulfill its constitutional function during this crisis, he cautioned against hastily amending the Senate rules. Amending the rules to allow for remote voting and participation gives those processes a “permanent character” that could lead to their normalization and overuse, Gold suggested. The Senate would be better served by adopting a standing order with a sunset clause that temporarily overrides the Senate rules to allow for remote voting and participation. Taking this course of action, Gold said, would “respond[ ] to immediate and near term emergency conditions,” while allowing the Senate to act “more deliberately on making permanent changes to the Standing Rules.”
Gold continued to advocate this more cautious approach in an exchange with Sen. Josh Hawley about what Congress can learn from the British House of Commons’s response to the coronavirus. The Commons, Gold said, has adopted remote procedures for some parliamentary proceedings but not others. The first matter that the body undertook remotely was one particularly amenable to occurring virtually: the Prime Minister’s Questions—a weekly event during which Commons members can put questions directly to their chief executive. Even there, Gold said, the Commons took a hybrid approach, having some members physically present in parliament while the significant majority participated remotely.
The Commons’s strategy, Gold elaborated, has been to make virtual those parliamentary proceedings for which a remote process is “not unduly complex” and to “phase in other aspects of the legislative procedures of the House of Commons as it became apparent that those things were technologically feasible and could be managed.” Gold argued that this is the tack Congress should take, too. It should not, in his words, dive “too deeply into th[is] experiment all at once.”
Hawley agreed that one way for Congress to proceed would be to “stagger our workload” and not “go virtual for everything.” The senator asked Gold which congressional proceedings the body should make remote first. Gold advised that the Senate begin with remote voting, which would allow members to express their opinions, and those of their constituents, through the passage or defeat of particular legislation.
But when Sen. James Lankford asked Gold whether the Senate should limit remote votes to only certain types of bills in the interest of not normalizing the remote function, the lawyer demurred. It is impossible to anticipate the “circumstances that will apply at the moment that you have to exercise this power,” Gold said. “For example, at the moment we’re not having to do appropriations …. Now, what happens if Dr. Fauci is correct and the coronavirus comes back in the fall? Particularly during the time of the lame duck session, ... when big omnibus legislation … has to be addressed …. If you have restricted the kind of legislation that can be addressed by this mechanism you may defeat the purpose of the mechanism.” In other words, to allow the Senate to vote remotely on only particular kinds of bills would undermine the very discretion the Senate sought to give itself in the first place by permitting its members to vote remotely.
Throughout the roundtable, Portman similarly encouraged his colleagues to consider the long-term importance of giving the Senate the flexibility to hold votes and other proceedings remotely when a crisis leaves the body no choice. “This is not about this pandemic,” Portman said. “This is a broader question” about the Senate’s institutional preparedness to continue its operations during future crises, too.
The witnesses observed, however, that remote voting, legislating and oversight have significant downsides. Joshua Huder noted in his opening remarks that the task of legislating typically involves a lengthy process of interpersonal deliberation in committee rooms and Senate offices and on the Senate floor. Almost none of that is possible when lawmakers must social distance or when an emergency requires the rapid drafting and passage of legislation. Sen. Tom Carper, the ranking Democrat on the subcommittee, agreed that his greatest legislative successes have come from in-person interactions and close relationships he has formed with senators over the years. That crucial in-person engagement, he suggested, could not be replicated virtually.
Huder added that remote voting and legislating could empower the leadership at the expense of rank-and-file senators. Assuming House and Senate leaders remain in Washington while the members of their chambers vote and participate from afar, as has been the case during the current pandemic, rank-and-file members will have limited visibility into the discussions leaders are having and the compromises they are making before bringing legislation to a vote, Huder contended. This cuts rank-and-file members out of the legislative process or, at a minimum, makes it more difficult for them to exert influence.
Pressing on, Huder suggested that an extended period of time away from Capitol Hill could also lead to a decline in senators’ forming alliances across party lines. But Portman forcefully rejected that proposition, remarking that he has witnessed a steep decline in bipartisanship during his decades in Congress. Remote activity, the senator seemed to say, is not what will prevent Democrats and Republicans from coming together.
In practice, Portman continued, bipartisan relationships no longer hold the sway Huder believes they do. In fact, he added, remote interaction during the pandemic may benefit senators’ relationships in the long run. Congress is typically out of session for about a third of the year. During that time, Portman said, senators rarely call colleagues on their side of the aisle, let alone ones on the other side. But remote Senate proceedings may inspire senators to pick up the phone or convene virtually more when Congress is out of session. This could nurture rather than hinder relationships between lawmakers, the senator submitted.
Though the roundtable featured productive discussion on many fronts, it lacked in-depth consideration of the particular technology that would make remote voting and proceedings possible. Lorelei Kelly encouraged the subcommittee to support the creation of a “bespoke system” for the Senate and to reach out to the tech industry for help constructing it. She also suggested crowdsourcing ideas for what technology the Senate should use within Congress itself, adding that staffers and members of both chambers would have excellent proposals. But beyond these points and Kelly’s suggestion that senators could use technology as simple as WebEx to hear from witnesses on the front lines of this pandemic and future crises, the only technology-related remarks were Gold’s warnings that the Senate should ensure proceedings are “technologically feasible” before approving remote procedures for them.
Ultimately, the subcommittee seemed pleased with how the WebEx roundtable unfolded. While Portman noted during his opening remarks that senators await guidance from the Senate Committee on Rules and Administration on how to hold formal hearings remotely, he and other roundtable attendees repeatedly lauded their virtual discussion as evidence that remote hearings are eminently possible.
Of course, the roundtable had its technical snags. At times, senators’ voices were muffled or the audio echoed briefly, and there were occasional awkward pauses between when the chairman gave individuals the opportunity to speak and when they began speaking. But, as Kelly noted, such hiccups are inevitable. And on the whole, the WebEx discussion provided senators a crucial chance not only to debate among themselves the best way to ensure the continuity of Senate operations but also to hear from outside experts on the subject.
Senators recognized the value of that input and seemed to leave the roundtable buoyant and resolved to push the Senate closer to adopting a process for remote votes and proceedings. “In a world where it’s no longer safe to be within six feet of each other,” Portman stated, “Congress has to learn how to adapt.”
“Inaction,” Carper agreed, “is not an option.”