Jun 30, 2020

Proxy Voting, Virtual Hearings, and Remote Deliberation: How Congress is Adapting to COVID-19

By Emma Jones

It is indisputable that Congress must continue to operate during the COVID-19 pandemic. But public health concerns have made what are usually fixtures of normal congressional proceedings, like crowded floor votes and packed hearing rooms, dangerous for lawmakers and their staff. Like legislative bodies around the world, the Senate and the House of Representatives have made significant changes in how they do business in the last few months. 

On April 30, Sen. Rob Portman (R-OH) chaired the first virtual hearing in the Senate. Senate rules do not uniformly dictate how committees should operate during the pandemic, but committee proceedings in the Senate have generally followed a “hybrid” model, with some senators participating in-person and others remotely via video conference. Many witnesses have also testified remotely. 

This hybrid approach means that business in the Senate has proceeded mostly as usual. Importantly, the Senate’s quorum requirement has so far remained unchanged. A quorum is the minimum number of members that must be present to conduct business, like holding hearings and voting. Each Senate committee has its own quorum rules – for instance, in the Senate Judiciary Committee a majority of the committee has to be present to report out a bill or nomination, but in the Veteran’s Affairs Committee only nine members must be present to report out.  

Right now, only senators who are physically present count towards quorum requirements. Some can participate remotely, but there must be a quorum of senators physically in the room in order for work to be done. Senators are still voting in person, although social distancing measures are in place. 

While the Senate is mostly operating as normal, the House has dramatically changed how it conducts business. On May 15, the House passed a package of rules changes to ensure it can still operate during the coronavirus pandemic. These rules changes included authorizing committees to have virtual or hybrid hearings and studying the feasibility of members voting remotely via a technological platform in the future. However, perhaps the most drastic change in how the House operates is that proxy voting is now allowed during final votes on legislation. 

Proxy voting is a way for lawmakers who are not physically present in Congress to vote by telling a member who is physically present to cast a vote on his or her behalf. Although the House has not used proxy voting in decades (and then it was only in committees), Senate committees have allowed proxy voting for many years. Under the new House rules, members who want to vote by proxy can pick another member to vote on their behalf. They must give the member who is voting on their behalf specific instructions, in writing, about which bills they want to vote on and whether they want to vote yes or no on each bill. This ensures that their vote is exactly the same as if they were voting in person. 

Importantly, proxy votes now count towards quorum requirements in the House. This means that a quorum of members does not have to be physically present in order to vote and conduct other business – as long as someone’s participating via proxy, they count as being “present.” Members can each be the designated proxy voter for at most ten other members, so some lawmakers must continue to remain in Washington and vote for themselves and their colleagues. The House passed its first bills using proxy voting in late May, and President Trump signed the first bill passed via proxy voting into law on June 5. However, whether being “present” via proxy voting is the same as being “present” in-person is an open constitutional question, and House Republicans have filed a lawsuit challenging the adapted procedures. 

There have been some positive side effects of all these changes. Witnesses testifying remotely means that Congress can hear from experts across the country and around the world, without those experts having to fly to Washington. More gloomily, Congress has been long overdue for rules changes that could handle a potential catastrophic scenario where large numbers of members are incapacitated or unable to get to Capitol Hill. 

How Congress operates during the ongoing COVID-19 crisis will continue to evolve. Right now, lawmakers and their staff are testing out and troubleshooting new ways of doing their work. There are concerns about transparency, accessibility, fully functional technology, and protections of the rights of the minority party that still need to be worked through. The current rules changes in the House were initially in effect for 45 days, but have been renewed through August 18 as the public health emergency persists. Some proposed changes, like allowing members to vote online in limited circumstances, would even more dramatically alter how Congress does its job. Congress is grappling not only with policy changes in response to the coronavirus pandemic, but also with institutional changes. 

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