House Proxy Voting Rule Survives GOP Challenge at DC Circuit

(CN) — A D.C. Circuit panel on Tuesday affirmed a district court decision barring Republican lawmakers from suing Speaker of the House Nancy Pelosi over a resolution that lets lawmakers cast votes by proxy during the Covid-19 pandemic. 

As the coronavirus crisis threw into question to the safety of in-person voting for many members of Congress last year, the House of Representatives adopted a resolution that allows members who are unable to physically attend proceedings to cast their votes and have their attendance counted by proxy.

The measure enabled representatives to act as a proxy for up to 10 others at any one time, requiring they disclose on the House floor which colleagues they intended to represent. 

But dozens of Republican members argued in a May 2020 lawsuit that constitutional provisions mandate in-person participation – even during a pandemic. 

The suit filed in Washington federal named as defendants the clerk of the House, the House sergeant-at-arms and Pelosi. The Democratic leader had authorized the proxy resolution on May 20, 2020 for a period of 45 days. There have been several extensions since, with the most recent expiring Aug. 17. 

“This is not simply arcane parliamentary procedure. It is a brazen violation of the Constitution, a dereliction of our duty as elected officials, and would silence the American people’s voice during a crisis,” House Minority Leader Kevin McCarthy, a California Republican, said in a statement after filing the lawsuit. 

Rejecting his arguments, a three-judge panel of the D.C. Circuit ruled Tuesday that the so-called speech or debate clause of the U.S. Constitution bars legal challenges to chamber rules.

While the clause states that “senators or representatives...for any speech or debate in either house...shall not be questioned in any other place,”  the panel determined that its protections extend beyond just the acts of speaking and debating.

The panel's decision to uphold the lower court's dismissal of the case was unanimous.

“The district court dismissed the suit for lack of jurisdiction. The court concluded that the resolution and its implementation lie within the immunity for legislative acts conferred by the Constitution’s speech or debate clause. We agree, and we thus affirm the district court’s dismissal of the case,” Chief U.S. Circuit Judge Srikanth Srinivasan wrote in the 12-page opinion. 

According to Srinivasan, the speech or debate clause protects the proxy-voting rule from McCarthy's lawsuit because the clause covers "activity integral to lawmaking as voting."

"The acts presented for examination are quintessentially legislative acts falling squarely within the clause's ambit. The challenged resolution enables members to cast votes by proxy, and the 'act of voting' is necessarily a legislative act," the Barack Obama appointee wrote.

Srinivasan was joined on the panel by U.S. Circuit Judge Judith W. Rogers, a Bill Clinton appointee, and Justin R. Walker, appointed by Donald Trump. 

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