Congress has just seen its first cases of members with coronavirus. Others are self-quarantined. And in the coming days and weeks, travel restrictions and further social distancing directives could dramatically increase the number of members of Congress who cannot get to Capitol Hill to perform their duties.
Some members have already called for remote voting. Others imagine a quick switch to an essentially virtual Congress, where members could perform all of their jobs in committee and on the floor online.
These members are right about one big point: Congress needs a plan for operating with increasing disruptions, and that planning must start now. But rather than starting with the idea of transforming the Congress into a virtual forum, Congress should start by using the flexibility that exists under current rules and begin from the more realistic premise that some number of members, including leaders, will be present in Washington. Technology and communications tools will also need to be strengthened and new ones developed to complement this system, but we should not start with the idea of a virtual Congress with all members conducting business from their districts.
First, let’s consider something like the current situation with a small number of members unable to show up at the Capitol.
In this case, Congress should use and strengthen practices such as proxy voting and pairing. Proxy voting is still a feature of Senate committee business. While not uniform in practice, it is essentially the ability of members who do not show up for a committee meeting to give their vote to the chair or ranking member. The House did away with proxy voting with the election of the Gingrich 104th Congress, and there were serious reasons for getting rid of a system that had problems. But the House would be wise to at least temporarily change their rules to allow proxy voting again in committee, at least until our current crisis has passed.
Pairing is one of the informal practices that has a history in Congress. In one form of pairing more common in earlier years, a member of one party pairs up with a member of the other party. If one of the members is absent, then his or her pair from the other party would agree not to vote on an issue if they are on opposite sides of the vote, thereby cancelling out the absence.
There are many other formal and informal mechanisms that the House and Senate could use to allow absent members to reflect their preferences, albeit indirectly.
Second, let’s consider the more difficult situation where a significant number of members cannot make it to Washington. There would remain in Washington a smaller number of members and leaders from both parties. In this instance, governance would by necessity be more consensual, or to put it another way, each party would be able to check the other. Both chambers have quorum requirements and their own ways of operating by unanimous consent. With even a small number of each party in Washington, each could prevent the other from ramming through a bill against its wishes. This is not an ideal way to govern, but it reflects the basic reality that we have divided government in Washington. Anything that gets done is going to require the consent of a Democratic House and a Republican Senate and president.
If we do end up in a situation like this, then it is incumbent on party leaders to begin to build a system that is more robust in surveying the opinions of those who are not in Washington. Think of it as an extended version of the party cloakroom operations. Or a more sophisticated version is the Senate hotline procedure that allows all senators to register their tacit support or opposition through their party mechanisms.
One could imagine all sorts of ways of leaders surveying their members’ opinions, from private consultation to more public fora where absent members publicly express their voting preferences.
And no matter what solutions we end up with, Congress will need to dramatically improve members’ ability to communicate with each other and their staff, sometimes via secure channels.
Of course, these scenarios are not the same as one where no members of Congress can get to Washington. And if we do get to this point, some form of direct remote voting would have to be considered. But the reality is that we are much more likely to start with and continue a situation where at least a substantial number of members, including leaders, is here to operate the institution, and the plan should be for those leaders to survey and reflect the votes of their absent members.
One final point: None of these solutions, including direct remote voting, deals with the catastrophic scenario where large numbers of members are dead or severely incapacitated. Congress should have dealt with that contingency in the Cold War or after 9/11 (See the Continuity of Government Commission’s First Report). There is no short-term fix to this most serious problem, but Congress will do well to consider fixing this glaring hole over the next few months so that a future crisis does not leave us without a Congress at all for long periods of time.