Apr 28, 2020

Congress’s Continuity Post COVID-19

Congress is consumed with responding to the multitude of challenges the COVID-19 outbreak has presented.   This extraordinary moment has shaken the country. However, the federal government has been dealt challenging hands before and it has always risen to the challenge.

While different for a variety of reasons, the September 11th attacks and subsequent anthrax and ricin scares in late 2001 and early 2002 are a testament to Congress’s resiliency in the face of catastrophe. Now, Congress faces a global disruption, and it is understandably focused on supporting the health care response and stabilizing the economy.  But we need our democratic institutions to function in order to help respond to these issues that impact so many people’s lives.

We can look to a crisis of terrorism and national security from nearly twenty years ago and see how Congress worked through challenges in another uncertain time.  They are a reminder that our government is often tested and can prevail, hopefully, to become even stronger.  The attacks on New York and Washington during 9/11 and the anthrax and ricin scares raised new questions about Congress’s ability to operate in the face of physical, biological, chemical, and radiological attacks.  A Continuity of Government Commission explored a range of underlying issues in the aftermath of those attacks. 

What are the concerns that Congress must grapple with now to ensure a continuity of government?  Where are there holes in the system that this pandemic has exposed? What are some options that Congress is thinking about in order to carry out its duties?  Here are a few.   

Can Congress function if a sufficient number are not able to attend in person? If many members need to self-isolate or social distance, Congress should examine its current set of rules and begin instituting plans in case members cannot safely come to Washington. Technology constraints and House and Senate rules generally require members to be present for debates and votes.  Because of the emerging situation, there will need to be new guidance and directives in place if there is an extraordinary circumstance when some or most members cannot be physically present.   

How can Congress continue to ensure regular order is followed?  These types of issues include holding hearings, engaging in oversight, debating and amending legislation, and voting.  At this current time, all but the most critical legislation and issues have been set aside. One challenge is that certain responsibilities must be carried out annually, including funding the federal government. Certain aspects of the regular process, such as holding hearings, are on hold at this time.  Rather than the typical hearing you might see on C-SPAN, some committees have proposed  ‘paper hearings’ where the committee receives input from witnesses through written questions and answers.  While useful, this format may not provide the back and forth and feedback necessary for legislative fact-finding. Further, there will need to be times for debating, amending, and voting on bills in committees and in the full House or Senate. In the near term, there are ongoing discussions focused on whether this can be done remotely with integrity.

Does proxy voting play a role? Can members vote remotely? Both chambers are examining what a proxy system—one where an absent member allows another member to cast their vote for them—might look like to conduct preliminary votes, but short of major rules changes, final passage would have to occur in person. The idea of remote voting has also become increasingly relevant as individuals are discouraged from spending time near one another. Maintaining the health of members of Congress is important at this juncture, and remote voting may have a role to play. However, this would alter some of the key institutional functions of America’s legislative body that could pose some problems in a total shift to a so-called “virtual Congress.”

What if a member of Congress cannot perform his or her job due to incapacitation? Safeguards exist to deal with an incapacitated president, but nothing exists for an incapacitated member of Congress. Congress has been grappling with this issue amid the coronavirus outbreak, and a contingency plan must be reached in the event many members of Congress become unable to permanently carry out their constitutional duties.

How can they ensure that they are communicating with their constituents?  Members of Congress have held telephone townhalls and have released videos about what they are doing.  However, the public and their constituents expect to have access and engage their members as important issues are debated.  This is at the heart of our representative form of government.  Technology has advanced tremendously and should be taken advantage of to make sure this dialogue is possible.  Norms are starting to emerge about how members of Congress can use technology to provide that contact.    

How can we harness the power of technology?  Many people’s days are now filled with video calls, webinars, Facebook and Skype calls, and more.  Technology and communications tools enable remote proceedings for Congress that would not have been possible even a few years ago, but they also need to be strengthened and new ones developed to facilitate this process.  Members are finding ways to engage people in their districts and states through these means as well.    

These are some of the main questions that Congress must work through under future scenarios where a member or many members’ physical presence is more limited.  In the short term, Congress has acted to mitigate the impact the novel coronavirus is having on American society. However, Congress must remain proactive in developing plans that allow the institution to function safely and effectively down the road for circumstances like this. Now, more than ever, Congress is needed to ensure the federal government is working to ensure the safety of Americans, which includes taking steps to protect itself and its institutional processes from virus-driven incapacitation.

Diverse responses to a new threat will mean that creative and pragmatic solutions will emerge.  We are still in the middle of a new test, and the key issues are being explored now.  Plans will emerge to deal with these contingencies.  After all, our democracy is not immune to coronavirus and will be tested during this crisis to ensure the continuity of our government.  Congress was bruised by the events from 9/11 and the anthrax attacks but was not broken by it.  We must work in a bipartisan way to find responses to today’s emerging issues.     

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