Testimony before a Simulated Virtual Hearing on Remote Voting in Congress

A coalition of organizations, including a number of former Members of Congress, held a simulated virtual hearing on April 16, 2020, to illustrate how the House of Representatives or Senate could use technology to hold a remote hearing. The following is my prepared remarks concerning the constitutional and rules questions that might arise concerning such a proceeding.

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Chairman Baird, Co-Chairman Inglis, distinguished former members of Congress, it is my honor to speak with you today.

It has now been 33 days since the House of Representatives held its last hearing, and 31 days since the House’s last roll call vote on the floor. The legislative branch’s absence has created a power vacuum that the executive branch is readily exploiting. Congress must get back to work. The question is how.

My role today, in the 240 seconds allotted to me, is to explore the constraints placed upon Congress by the U.S. Constitution and by the House and Senate rules.

With respect to the Constitution, there is not a lot we need to parse. The Constitution grants each chamber the power to set its own rules under Article 1, section 5. This power is vast and is constrained only by other provisions in the Constitution — and by the requirement that the power must be exercised reasonably. So what’s the catch? The presence of a majority. You must, at least in theory, but not necessarily in practice, have a majority to conduct business. And how is a majority to be determined? The Constitution leaves that determination to each house so long as their rules are reasonable. The Constitution itself does not explicitly require physical presence, except, perhaps, once a year. Nor does it explicitly prohibit virtual proceedings.

The Congressional Research Service, my former employer, said in a recent report that this gives rise to two countervailing interpretations. On one hand, that physical presence in the chamber is necessary, as that is the long-standing practice. On the other, that physical presence is not necessary because what’s important is the capacity to transact business. CRS then points to an important consideration, the views of the Framers. They did not want for a majority quorum requirement to undermine the national legislature’s ability to operate. Nor did they want a majority quorum requirement to disadvantage members who live far away. The Founders’ considerations were very practical. We must be as well.

So, let’s assume that a court would find a plaintiff has standing to challenge a congressional action on the basis of the absence of a quorum. If so, the courts would most likely uphold an emergency, temporary House or Senate rule that allows virtual convenings, especially in light of the Coronavirus pandemic and the danger arising from unbalancing our Constitutional arrangement of checks and balances. Such a determination becomes even more likely when the remote proceedings closely resemble in-person proceedings and have the requisite number of members.

So the second question arises: are remote, virtual deliberations on the floor or in the committees permissible under the current rules of the House or Senate? The answer, largely, is no, but with a few quibbles. Accordingly, the rules must be amended, suspended, or circumvented.

In current circumstances, the simplest way to amend or suspend the rules is to obtain a unanimous consent agreement between the majority and the minority to allow for remote deliberations. The minority — and the rank-and-file — in both chambers may be unwilling to give up their leverage, but perhaps they could be persuaded.

The next option, which is the worst option, is to bring everyone back and vote to change the rules, which would expose a great many people to the Coronavirus.

A third, middle path may exist. The chamber and committees could hold provisional meetings and markups and votes, and then later ratify those measures when they return in regular session. While this avoids some problems, there is no telling when Congress may be able to return, and each chamber would not be able to exercise many of its normal powers and privileges.

In the words of Laurel and Hardy, “well, this is another fine mess you’ve gotten us into.”

So, what to do? First, strike an agreement in each chamber that allows the floor to reopen in return for concessions to the minority, and immediately restart the committees with provisional rules. Next, work the issue collaboratively, but quickly, to create long-term fixes — and to provide immediate new funding for modernization. In this emergency, Congress must set an example — not be an exception — and must get back to work. Thank you.