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It is said that 90 percent of life is just showing up.
The House of Representatives could put that adage to the test this week as it implements a new proxy voting system amid the coronavirus pandemic.
Two weeks ago, the House approved a “standing order” giving members the option to cast ballots during floor votes even if they weren’t in Washington, D.C. There was concern that the House, now populated with 431 members, could find itself hamstrung during the pandemic. The pandemic could restrict the House from passing major legislation if lawmakers couldn’t make it to Capitol Hill. So, the proxy resolution (not a rules change) grants House Speaker Nancy Pelosi, D-Calif., authority to declare a special emergency during coronavirus after consulting with Capitol Attending Physician Dr. Brian Monahan and House Sergeant at Arms Paul Irving. Once the emergency is in place, members who can’t travel to Washington must notify Clerk of the House Cheryl Johnson and deputize another lawmaker as their proxy on the floor.
When the House calls votes, designated proxies may cast ballots on behalf of those absent. Those members can’t change the vote in any way. Yea is yea. Nay is nay.
Again, proxy voting is just an option for lawmakers who can’t get to Washington because of transportation issues, may be ill themselves, are at-risk because of health issues or care for those who may be susceptible. Importantly, members are still allowed to vote on the floor if they wish. And in fact, Fox is told to expect most House members to appear in the chamber to vote over the next couple of days.
On Wednesday and Thursday, the House anticipates procedural roll call votes, approval of a FISA reform package, a vote on coronavirus legislation to ease guidelines for small businesses in using the Paycheck Protection Program and some other measures.
In addition, members who announce they are phoning in their votes are still allowed to vote in person, if they so choose. And, the House vote tallies don’t reflect which members voted on the floor or those who empaneled proxies.
Still, House GOP leadership aides told Fox News on Tuesday that Republicans plan to file lawsuit against Pelosi to block the proxy voting system.
The House approved the proxy plan on a party-line vote earlier this month. House Majority Leader Steny Hoyer, D-Md., assembled a bipartisan working group to study proxy and virtual voting and try to forge a compromise. But those efforts failed. Republicans have railed against the Democrat's plan. GOPers argue the measure violates the Constitution by allowing members to vote if they are not on the floor, centralizes power in the Speaker’s Office and is ripe for abuse. Plus, Republicans think proxy voting presents a bad optic. If police officers, doctors, delivery drivers and grocery workers are on the job, lawmakers should be on the House floor voting, too.
Senate Majority Leader Mitch McConnell, R-Ky., lit into the House’s voting venture last week during a feisty floor speech.
“The Constitution requires a physical quorum to do business,” said McConnell. “Any House member has a right to demand an in-person attendance check. The Democrats’ new rule says one person may mark himself and ten others present, even if they are nowhere in sight. A flat-out lie. There will be enormous Constitutional questions around anything the House does if they fail to demonstrate a real quorum, but plow ahead anyhow.”
Generally, one body of Congress disdains a member from the other chamber giving lectures on how to do its business. House Democrats are still seething that McConnell never permitted the Senate to even consider President Obama’s nomination for the Supreme Court, Merrick Garland – yet established a new Senate precedent, via parliamentary maneuvers, to confirm Supreme Court Justices Neil Gorsuch and Brett Kavanaugh. Article I, Section 5 of the Constitution is clear that “Each House may determine the Rules of its proceedings.” The same paragraph of the Constitution addresses the “quorum” issue McConnell raised. It states that “a Majority of each shall constitute a Quorum to Business.”
Both the House and Senate routinely conduct business on the floor without a quorum present. In fact when McConnell blistered the House last week about the quorum problem, there was far from a quorum present in the Senate chamber at that moment. Just McConnell and one other senator. Due to social distancing modifications, the Senate has never had 51 members in the chamber at the same time – even for a roll call vote – since the pandemic struck. For coronavirus, the House engineered a strategy to only usher a few members into the chamber at one time to vote.
The quorum issue is only an issue if a member makes a point that a quorum is not present. And, there’s a little known fact that whenever the House and Senate take a rare, live vote to establish a quorum, the members just hit and run from the chamber. They come in, vote and immediately leave. It’s rare that the “quorum” of members is ever in the chamber at any one time. The Constitution is silent on the term “physical quorum,” which McConnell referenced.
Democrats have downplayed the proxy voting stratagem as a revolutionary departure from Congressional norms. Hoyer has compared the change to the House forgoing the practice of orally calling the roll of the entire membership during a vote. The House implemented electronic voting in 1973. The House conducts most roll call votes that way today. When the House calls a vote, members insert what looks like a credit card into voting stations situated around the chamber. They press different buttons for yea, nay or present.
The House has never allowed proxy voting on the floor. But the House permitted proxy voting in committee until 1995. The Senate still allows proxy voting in committee today.
Democrats are concerned about coronavirus sidelining the House during the pandemic. It’s much easier for the Senate to conduct its business with only 100 members – and often a grand total hovering in the mid to low nineties who actually appear at the Capitol each day. But the House currently has 331 more members than the Senate. Democratic leaders say Capitol Attending Physician Monahan cautioned the House in late April about returning to session. An institutionalist, Pelosi had expressed skepticism of any form of “virtual” or “remote” House convocation. But advice from Monahan seemed to fuel the push for proxy voting as an option.
Here are the mechanics on the proxy voting process:
Proxy voting isn’t permanent. After consulting with Monahan and Irving about the health emergency, the speaker formally declared the House to be within a 45-day window where members may vote absentee due to the pandemic. At the expiration of the 45 days, the speaker can renew the proxy voting period if the situation warrants.
A member may designate any of their colleagues to vote as proxies. But no member may hold more than 10 proxies apiece.
Nearly 30 members announced to the clerk they would be unable to attend this week’s session. All were Democrats and many were from California. For instance, Rep. Mark DeSaulnier, D-Calif., is one of the members who won’t attend this week and will vote by proxy. DeSaulnier just recovered from four weeks on a ventilator after developing pneumonia, unrelated to COVID-19. DeSaulnier designated Rep. Doris Matsui, D-Calif., as his proxy. Other members holding multiple proxy votes from their colleagues are Reps. Ruben Gallego, D-Ariz., Don Beyer, D-Va., and Jamie Raskin, D-Md.
The House may not be around again until late June or even July to conduct much business on the floor. Steny Hoyer says committees must engineer legislative “product” first. But Hoyer wouldn’t commit to a set of dates as to when the House may return to session in earnest.
After McConnell took pot shots at the House for implementing proxy voting, Hoyer returned the favor and defended the proxy voting option. He criticized the Kentucky Republican for conducting week-long Senate sessions throughout the month.
“Senator McConnell has ignored the advice of our health experts,” charged Hoyer. “Washington, D.C., continues to be a hot spot. That’s a concern to Dr. Monahan.”