Republicans must adapt to modern times and keep Congress working despite coronavirus

House Republicans who blocked a rule change to allow proxy voting are needlessly putting their colleagues and their staffs in danger. Congress must do its work, but meeting in person is unwise at this time because of the danger of spreading COVID-19.

Nonetheless, Republicans thwarted a proposal in the House Rules Committee that would have allowed participation without physical presence. The result was that when Congress approved the latest stimulus package, its members had to be there, which inevitably meant travel for many and that staff had to be present as well.

This was unnecessary and unwise.

The proposal in the House Rules Committee was simple. It would have allowed a system of proxy voting. Under the proposed rule, some number of members would be present on the floor for debate and in-chamber voting. Proxies could be used to establish a quorum and to register the yeas or nays. The proxy holder would be another member of the House of Representatives.

The proxy holder would have no discretion on the vote. Instead, the proxy holder would be required (through the rule and accompanying regulations) to cast the vote in accordance with the specific and exact instructions from the member. The rules would have ensured that all of the votes were accurate and carefully recorded.

I would recommend that the House and the Senate go even further and allow proceedings to be conducted and votes to be taken remotely. This way, Congress could do its essential work without risking anyone’s health.

I have no doubt that such proposals would be constitutional. The Constitution bestows on each house of Congress broad discretion to determine the rules for its own proceedings. Article I, section 5 of the Constitution says: “Each House may determine the Rules of its proceedings.” This authority is expansive and would include the ability to adopt a rule to permit proxy or even remote voting.

Nothing in the Constitution specifies otherwise.

Moreover, if this were challenged in court, it is very likely that the case would be dismissed as a political question. The Supreme Court has ruled that challenges to the internal operation of Congress are not reviewable in the federal courts.

Especially in the context of the current public health emergency, it is highly unlikely that any court would invalidate the procedures adopted by the House of Representatives that would allow it to conduct its business without endangering the health of its members and its staff. Every branch of government is devising new procedures to accomplish this. The Supreme Court, for example, will conduct oral arguments by telephone for the first time in its history.

All of this seems so simple, so why did House Republicans block it and why hasn’t the U.S. Senate done it?

Rep. Tom Cole, R-Okla., the ranking Republican on the House Rules Committee said, “I think you’ll see pretty close to universal Republican opposition. It was probably more dangerous to get here during the Civil War. Congress looks pretty wimpy here, in my view.”

In the Senate, Sen. Rand Paul, a Kentucky Republican and a supporter of remote voting, sought to add language to a Senate bill that would allow remote voting “if necessary.” Senate Majority Leader Mitch McConnell rejected it on the floor.

To the extent anyone has tried to offer a rationale for the opposition, it is concern over the “slippery slope.” Allowing remote proceedings or proxy voting would set a precedent that could be used in the future. But that is a bad reason to reject a necessary accommodation for a public health crisis. Congress can make clear that this is created to deal with a pandemic. Besides, it will be entirely up to the House and the Senate whether to do this again in the future.

Nor does it explain why Democrats are pushing for remote and proxy voting and generally Republicans are opposing it. The answer seems obvious: Republicans want to do all they can to make light of the coronavirus threat.

It is conservative Republican governors, such as Brian Kemp in Georgia, who are rushing to open their states. It is conservatives who are leading protests against the “shelter in place” orders.

It is sad and inexplicable to me how a grave public health issue has been politicized. It is this politicization that kept the House from adopting new and sensible rules. House Speaker Nancy Pelosi, D-Calif., has created a bipartisan task force to develop rules for how to safely meet and vote in the pandemic.

The Senate should do the same. Congress must be able to do its business without endangering the lives of its members and its staff.

This story was originally published April 29, 2020 at 5:00 AM with the headline "Republicans must adapt to modern times and keep Congress working despite coronavirus."