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Continuity of Government: Proxy Voting Proposal “Modest but Important Improvement"

House Rules Committee Chairman James McGovern has just released a proposal to allow a form of remote voting. It does not address every contingency, but it is a realistic plan that is tailored to the coronavirus crisis as it exists today.

The plan is not going to please technology purists who would like to see a virtual Congress operate even when we don’t face a crisis. Nor will it please extreme traditionalists who say “no way, never, not even in an emergency” will we allow a member to cast a vote from afar.

The middle ground, where this proposal falls, is that in all but the most extraordinary times,  Congress should operate with its members here in Washington, interacting, debating, and voting on the floor of the House, but that in extreme emergencies when the full membership is prevented from coming together, there should be a fallback plan to allow for members to reflect their preferences on important legislative business.

So, what is the plan?  It is a temporary, emergency measure to allow a limited form of proxy voting. Members who truly cannot return to the floor of the House could give detailed voting instructions to a colleague in Washington who could cast a vote for the absent member on specific matters.

As the plan describes:

Under this plan, any Member unable to travel to Washington due to the pandemic could provide specific instructions for each vote to a fellow Member who has been authorized to cast those votes on their behalf. A Member casting a vote on behalf of another Member would be required to have exact direction from that Member on how to vote and would have to follow that direction. There would be no ability to give a general proxy. Members would have to direct each and every vote.”

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Why would this plan work for this stage of the COVID-19 crisis?

Thankfully, as bad as this health emergency is, we are unlikely to face the prospect that literally no members can return to Washington for votes. The situation we face is that Congress has not been able to function with its full membership for weeks and is not anticipating returning until the first week in May at the earliest.   And Congress will need to tackle a fourth stimulus package soon. Other important legislative business is piling up as well.

The House can and has recently been operating with a handful of members in Washington.  The House often waives some rules or operates without a quorum as long as no single member objects. This has worked well, in a sense. Because we have divided government and face a grave emergency, all of our recent legislation has had to be broadly acceptable to both parties. Nothing can get passed into law without the assent of a Democratic House and a Republican Senate and president.  What this means is that big deals have been struck between Congressional leadership of both parties and chambers and the president. When those deals are struck, they can be passed through the House and Senate if no single member objects. If there is any partisan disagreement, either party could stop something from being passed on the floor by not agreeing to a unanimous consent request. 

But this kind of legislating can only go on for so long. First, we are much better off if the full membership can weigh in on legislation for legislation related to the COVID-19 crisis, and certainly for other more regular legislative matters. Second, as we have seen with the case of Rep. Massie (R-KY), a lone representative can stop the whole process and force a majority of the House to physically return to Washington.

The limited proxy proposal would allow Congress to function more normally for the next month. Proxy voting, especially with proxy votes on very specified matters, will be cumbersome. We will not see many votes cast in this way. It would be hard to imagine a robust amendment process, as a specific proxy would be required for each vote. But it would allow the full membership of the House to weigh in on important business over the next month.

Are there potential problems? Yes. First, Republicans will have to agree to this proposal. And they may raise legitimate questions about the details of how this would work. How would the proxies be secured? Would there be protections for the minority party to ensure each side has time to secure proxies for votes? Under what clearly defined circumstances would members be able to give their proxy? The proposal is also designed to be time-limited for the emergency, so a clear timeline should be laid out.

This is a proposal appropriate for our current situation. But Congress should not think that its work is done in ensuring its continuity in an emergency.

First, no matter what proposal is adopted, Congress needs a much more robust system for members to communicate and use technology to operate aside from floor votes. Committees should be able to hold hearings, members should be able to communicate with one another, party caucuses should have the capability to meet virtually. And the House could explore remote participation in floor debate, either formally or informally, by video.

Second, in the longer term, Congress needs to plan for the much more severe scenario where no members of Congress can effectively come to Washington for many weeks. That scenario will be harder to solve and involve more questions about the legitimacy of remote voting, but Congress should develop a plan for such a contingency.

Finally, Congress still has not dealt with the even worse scenario that was contemplated in the Cold War and after 9/11. If large numbers of members are killed or incapacitated, there is no effective way to fill those vacancies quickly, and no remote voting system can bring back the deceased or incapacitated representatives.

Congress is an essential institution that needs to function in a crisis. Ideally, it will be back in Washington in full force soon. But for the next few weeks, when many members of Congress may not be able to return to Washington, this proposal will allow the full membership to weigh in on key legislation — a modest, but important improvement.