To Be There or Not To Be There?

Each house of Congress has adopted rules laying out how its members should conduct business. Until recently, both houses required that, unless representatives and senators have a good excuse, they must be present on the floor of the house in order to vote on legislation. For instance, Senate Rule VI reads, “No Senator shall absent himself from the service of the Senate without leave.” On top of that, the Constitution requires that “a Majority of each [house] shall constitute a Quorum to do Business.” Put together, these conditions have meant that Congress cannot take any action unless a majority of senators and a majority of representatives can vote in person.

In Fault Lines in the Constitution, we discuss the way these rules could pose a problem in case of a terrorist attack on the Capitol building that disables more than half of Congress. If such a terrible event happened, how would our legislators make laws? Without a quorum, they wouldn’t be able to—at a perilous time. Fortunately, such an attack has not occurred. We and Congress have, though, been attacked by a virus, COVID-19. As of mid-June 2020, nine lawmakers had either tested positive for the virus or had been presumed to be infected because of their symptoms. And more than fifty others had quarantined themselves after being exposed to it.

The issue this situation raises is whether a pandemic is a good enough reason for a congressperson not to show up but still be able to vote. Does a vote from afar or a vote cast by a colleague who is present on the floor count toward the quorum the same way a vote by a member who is onsite does?

In mid-April 2020, leaders of both houses announced that their chambers would be closed for three weeks so that members could stay home. The recess would allow them to maintain recommended social distancing and avoid travel that might expose them to COVID-19. At the insistence of Mitch McConnell, the Republican Majority Leader, the Senate reconvened in early May, as planned. Even some of his fellow party members were unhappy, however. Three Republican senators urged him to allow remote voting. “We’ll not be doing that,” McConnell explained.

The House, though, continued its break until later in the month. And, when that chamber did convene, the members approved new rules that allow for both remote voting and hearings during the following forty-five days. On May 27, 2020, more than seventy representatives—all of them Democrats—informed the clerk’s office that a colleague would vote for them. That is, they voted by proxy. The new rules allow any member to vote on behalf of up to ten other members.

The British Parliament took similar action when it met by Zoom in April. The governments of Brazil and Canada met remotely as did the leaders of the United Nations and the states of New Jersey and Kentucky. However, Congressman Jim Jordan of Ohio called for an end to such conference meetings when his was Zoom-bombed.

Representative Henry Cuellar of Texas said, “In times of crisis, our nation must adapt. It’s past time we modernized Congress’ voting system to allow for remote voting during national emergencies.” In response, Republican representatives filed a lawsuit to block remote voting. Representative Kevin McCarthy argued that the procedure is “a brazen violation of the Constitution, a dereliction of our duties as elected officials.” He added, “We must assemble.”

Like many issues these days, how, when, and where our legislators meet is controversial. What do you think? Should they have to be in the same place at the same time or not?