Can Online Presence Count Towards A Quorum?

The Senate Permanent Subcommittee on Investigations released a fantastic report last week analyzing the constitutional rules governing quorum requirements to coincide with last week’s virtual hearing on Continuity of Senate Operations and Remote Voting in Times of Crisis.

If you’re not a policy wonk who finds quorum requirements inherently interesting, consider this: Determinations around remote quorum partially dictate whether Congress can hold official proceedings and votes remotely. In other words, this analysis impacts how Congress may or may not work remotely.

So where did the committee fall on the issue? The short answer is, it’s complicated.

Constitutional language says “The Congress shall assemble” — there is not an expressed prohibition on virtual assembly of course. On numerous occasions, SCOTUS has deferred to Congress regarding what it means to be present for a quorum, aka Congress ultimately has the sole authority to determine its own quorum requirements (see pp. 10 & 11). It also helps that SCOTUS has decided remote presence counts toward its own quorum requirements.