House Votes to Allow Remote Voting for First Time in 231-Year History

(Photo by Jack Rodgers/Courthouse News Service)

WASHINGTON (CN) — Over Republican objections, the House of Representatives approved new rules on Friday allowing for proxy voting and remote committee work during the coronavirus pandemic.

The change, adopted with a 217-189 vote on Friday evening, marks a major shift in how the House will operate as Capitol Hill adjusts to life amid the outbreak.

The resolution allows lawmakers to designate colleagues as proxies during floor votes and alters rules for committees so the panels where most of the work of Congress is done can conduct remote hearings and markups of legislation.

Under the proxy voting plan, each member could be a proxy for as many as 10 colleagues, limiting the number of people who need to crowd onto the House floor during each vote.

The rules give Speaker of the House Nancy Pelosi the authority to implement remote work procedures in renewable 45-day increments in the face of a public health emergency due to the coronavirus.

Responding to Republican concerns about the transparency and integrity of the proxy voting system, the rules change requires members to give detailed instructions to their proxies on how to vote and put a list of proxies online for the public to see.

In addition, the House Administration Committee will study the possibility of implementing remote voting technology. If the committee finds a suitable option, Pelosi can allow members to vote remotely under regulations issued by the House Rules Committee.

House Democrats unveiled the proposal earlier this week after a bipartisan working group was unable to reach agreement on a rules change that could get support in both parties.

In the absence of proxy voting, the House has resorted to dragging out votes and having members come to the chamber in small groups to minimize the number of people on the floor. Instead of the typically crowded and boisterous scene on the floor, the chamber remained mostly empty during Friday’s vote, which stretched more than an hour. 

Democrats said the rules changes are critical so the House can operate safely and pass legislation during the pandemic. With members of Congress traveling from states experiencing different degrees of outbreaks, Representative James McGovern, the chair of the House Rules Committee, said proxy voting will help keep lawmakers, as well as staffers, press and Capitol Hill employees safe during votes.

“Any of us could have the virus and not even know it,” McGovern, D-Mass., said on the House floor Friday. “We could be asymptomatic, but carriers nonetheless. Convening Congress must not turn into a super-spreader event.”

The resolution drew firm opposition from Republicans, who said it would upend how the House operates, giving more power to leadership by cutting down on interactions between lawmakers. Republicans also suggested the change would not be quite as temporary as Democrats insisted.

“While I have no doubt of the chairman’s good intentions, I believe these changes will fundamentally alter the nature of the institution — and not for the better,” Representative Tom Cole, the top Republican on the Rules committee, said Friday.

Representative Louie Gohmert was among several Republicans to suggest the changes might be unconstitutional, citing Article I, Section Five of the Constitution which says “each house shall be the judge of the elections, returns and qualifications of its own members and a majority of each shall constitute a quorum to do business.”

Criticizing the House for switching to proxy voting out of a “wishy-washy” fear of contracting the virus, Gohmert suggested bills passed under the proxy voting system might not survive constitutional muster.

But Erwin Chemerinsky, the dean of the University of California, Berkeley Law School, refuted this claim in a letter to the House Rules Committee, saying the Constitution grants “broad discretion” for the houses of Congress to set their own rules and does not explicitly prohibit proxy voting.

In an email, Chemerinsky said the proxy voting procedures are “clearly constitutional.”

“I expect if it is challenged in court, the courts will say that it is a political question — it is for Congress to decide how it holds its votes,” Chemerinsky wrote.

Ruling on a challenge to a trade law that rested in part on the House’s quorum rules, the Supreme Court’s 1892 decision in United States v. Ballin held the House has significant discretion to determine when the quorum requirement is satisfied.

“The Constitution has prescribed no method of making this determination and it is therefore within the competency of the House to prescribe any method which shall be reasonably certain to ascertain the fact,” the opinion by Justice David Josiah Brewer states.

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