Members of Congress from the Inland Northwest are backing a lawsuit challenging a rule change that let representatives vote for the first time this week on behalf of their absent colleagues, fueling an ongoing debate over how lawmakers should work amid the coronavirus pandemic.
The House of Representatives used the new proxy voting system to pass bills on Wednesday and Thursday, but Republicans contend that the move violates the Constitution, which requires a majority of legislators to be present to pass legislation. Democrats counter that Congress has the authority to set its own rules and the temporary change is necessary as legislators, like other workers, take precautions to limit the spread of COVID-19.
Idaho Rep. Russ Fulcher is one of 21 Republican members suing House Speaker Nancy Pelosi, D-Calif., and two nonpartisan House officials in D.C. federal court over the measure. In an interview Friday, he said the rule change makes it harder for legislators to do their jobs and shifts power to a handful of party leaders.
“Nothing is being done,” Fulcher said. “We’re not working on health care issues. We’re not working on immigration issues. We’re not working on homeland security issues. The only governance is coming from the executive branch. People just need to know that the U.S. Congress is not at work.”
Rep. Kim Schrier, who voted by proxy from her district on the West Side, pushed back on the idea that lawmakers can’t do their jobs effectively from their home states. The Washington Democrat cited long hours spent helping her constituents navigate coronavirus relief programs and bills crafted over phone and video calls with her colleagues in D.C.
“Casting these votes,” she said, “I could do equally well from Sammamish, Wash., as I could do from my office in the Capitol.”
“The risk-benefit calculation for me,” said Schrier, a physician before entering Congress, “was that we would tell our patients not to travel unnecessarily and that we were doing the same for ourselves.”
GOP Reps. Cathy McMorris Rodgers, of Spokane, and Dan Newhouse, of Yakima, said they will join Fulcher and the original plaintiffs after the lawsuit was filed on Tuesday. In a statement, McMorris Rodgers likened legislators to the essential workers who have had little choice but to work through the pandemic.
“As members of Congress, it is our constitutional responsibility to vote in the House on behalf of the people we represent,” the statement said. “Handing off that responsibility to another person is unconstitutional and only consolidates power.”
Speaking May 21, Senate Majority Leader Mitch McConnell, R-Ky, echoed those constitutional concerns and suggested that the GOP-controlled Senate may refuse to take up House bills that are passed by proxy voting. The Senate allows proxy voting in committees, but this week marked the first time the system had been applied in a vote of the full House or Senate.
The fate of the lawsuit may depend on the court’s interpretation of two separate lines in the Constitution. In their complaint, the Republicans point to a clause requiring a majority of lawmakers to be present in order to conduct business. They also cite Congress’s 231-year history of requiring members to be present – through wars, the 9/11 terror attacks and the Spanish Flu pandemic of 1918 – to cast their votes.
But the Constitution also stipulates that “each house may determine the rules of its proceedings,” and Democrats argue that voting by proxy is a legitimate use of that authority, even if the Founders didn’t foresee the advent of email and Zoom calls.
Rep. Derek Kilmer, D-Tacoma, said he backed the rule change out of “a recognition that Congress still needs to function” and that “in the face of a global pandemic, there’s value in taking public health precautions.”
“The reality is we do have technology options here,” Kilmer said after returning home from D.C. on Friday, where he voted on behalf of Schrier. “Other institutions have figured this out. I’m glad Congress is entering the 21st century, kicking and screaming.”
The proxy voting system, which the House passed May 15 with no Republican votes, applies for a 45-day period and can be renewed once, but ends if the House’s attending physician declares the public health emergency over.
As of Friday evening, 74 Democrats had opted to cast their votes by proxy while Republicans were united in opposing the system. Washington Rep. Rick Larsen of Everett was one of just 3 Democrats who voted against the rule change.
In a statement issued Tuesday, Pelosi called the Republicans’ lawsuit a “sad stunt” and said, “The House’s position that remote voting by proxy during a pandemic is fully consistent with the Constitution is supported by expert legal analyses.”
Scott Anderson, a fellow at the Brookings Institution and former State Department lawyer who has written about the legal questions surrounding remote voting, said the district court may be reluctant to interfere with Congress’s rule-making ability, but the somewhat ambiguous language in the Constitution makes it hard to predict how the court will decide.
“What’s really at stake here is the ability of Congress to adapt as an institution to challenging circumstances like the coronavirus, but also other national emergencies,” he said.