Jul 13, 2020
The House of Representatives is now allowing absent members to vote via members who are physically present on the House floor, in a process called proxy voting, for the first time in US History. In this episode, we examine the unnecessary, unprecedented changes to the way the House passes bills that might also be unconstitutional.
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CD213: CARES Act - The Trillions for COVID-19 Law
CD212: The COVID-19 Response Laws
H.Res.965 - Authorizing remote voting by proxy in the House of Representatives and providing for official remote committee proceedings during a public health emergency due to a novel coronavirus, and for other purposes.
Section 1: Allows the Speaker of the House (Nancy Pelosi) to decide if members of the House of Representatives can have another member of the House of Representatives cast their votes for them. She can do this if the Sergeant-at-Arms says that "a public health emergency due to a novel coronavirus is in effect.” Proxy voting will be allowed for 45 days, and then automatically expire, unless the Speaker decides to extend it for an additional 45 days. There are no limits on how often this can be done. If the Sergeant-at-Arms says that the emergency is no longer in effect, the Speaker has to stop allowing proxy voting.
Section 2: To choose who will be their proxy, members of the House need to submit a signed letter to the Clerk of the House with the name of their proxy. The letter can be electronic. A member can sign another letter, also allowed to be electronic, in order to revoke a proxy. If a member shows up and votes in person, the proxy authorization is automatically revoked. When the Clerk gets the letter, the Clerk has to notify the Speaker (Nancy Pelosi), the Minority Leader (Kevin McCarthy) and the “members involved”. A member of the House can serve as a proxy for up to 10 other members. The Clerk has to maintain an updated list of the proxy designations and publish them online during any vote conducted using proxy voting.
Section 3: If a member is not physically present but has designated a proxy to vote for them, the physically missing member will be counted towards establishing a quorum. Before casing a vote for another member, the physically present member has to “obtain an exact instruction” from the missing member in regards to the vote or quorum call. Before casting a vote for someone else, the physically present member has to announce the vote they will cast for the missing member out loud.
Section 4: All committees are allowed to conduct their hearings remotely and committee votes can be cast “while participating remotely”. Witnesses can appear remotely. “Any committee meeting or hearing that is conducted remotely in according with the regulations” written by the Chairman of the Rules Committee (Jim McGovern) “shall be considered open to the public”. They also “shall be deemed to satisfy all requirements for broadcasting and audio and visual coverage”. Closed sessions are not allowed to be conducted remotely, except for the Ethics Committee.
Section 5: The Chair of the House Administration Committee (Zoe Lofgren) has to study the technology to be used to conduct remote voting in the House and certify that what she choses is operational and secure. After the technology is certified, the Chairman of the House Rules Committee (Jim McGovern) will write the regulations for remote voting in the House of Representatives.
20:45 Rep. Tom Cole (OK): Though the changes are purportedly limited to the present COVID-19 pandemic timeline, the temporary change we make to the rules today becomes the precedent we follow tomorrow.
23:55 Rep. Tom Cole (OK): This proposed rules package fundamentally changes two key rules of the house. First, for the first time in history of the chamber, we are being asked to approve a system of proxy voting for members on the House floor. That rules change also holds open the possibility of moving forward with totally remote voting. Once the chairperson of the house Administration Committee certifies the technology for that use. Second, again, for the first time in our history, we're being asked to approve a measure that would allow committees to operate remotely and approve legislation remotely.
25:05 Rep. Tom Cole (OK): I have real concerns about whether or not any system of remote voting or proxy voting is constitutional. The language of the Constitution clearly contemplates members being physically present in the chamber to conduct business, a move to any other kind of procedure that involves members not being physically present in the chamber to vote and to make a quorum will put the legislation passed by those methods at risk of court challenges.
26:45 Rep. Tom Cole (OK): Rules change we are considering today will allow for remote voting to take effect without an additional vote of the house, and instead only upon certification of technology by one member, Chairperson Lofgren. This is ceding the authority of the Rules Committee and it denies the entire house deliberation on the technology and a vote on making such a consequential change.
31:30 Rep. Jim McGovern (MA): The process of unanimous consent that is allowing bills to pass with just two members in the in the chamber was developed in response to the Spanish flu pandemic, despite the constitution requiring a majority of members to conduct business in both the House and the Senate, use you see to this day.
37:45 Rep. Steny Hoyer (MD): Because of social and physical distancing measures currently in place to save lives and prevent the spread of COVID-19, it is unsafe for members to travel back and forth to Washington from their districts and risk exposing potentially thousands of people while in transit.
38:05 Rep. Steny Hoyer (MD): It is also unsafe to require thousands of House staff and Capitol Hill employees to commute to work while infections have not even reached their peak in the Washington Metropolitan Area.
38:27 Rep. Steny Hoyer (MD): Of course, the founders did not contemplate the technology that is now available to us, which allows us to meet virtually. To see one another, to hear one another, to respond to one another, virtually not in the same room, but in the same box, that we call an iPad or a computer or some other device that allows us to communicate in real time, essentially, in person, virtually.
42:30 Rep. Steny Hoyer (MD): First step authorizes the house to begin working on a remote voting system. Such a system would only be used during emergencies like this one. Let me stress that. In the 40 years I have been here there is not an instance where I think this would be justified, until now.
43:00 Rep. Steny Hoyer (MD): We are not fundamentally changing the way the house works. Let me be clear we are not changing. There is no advantage to Democrats. No disadvantage to Republicans by using virtual technology. None. Zero. Zip.
45:30 Rep. Steny Hoyer (MD): And we are all committed that we would only use it in extraordinary circumstances. I don't believe there's been such a certain circumstance the United States of America since 1918. Over 100 years ago. This may be once in a century experience for our country.
48:00 Rep. Rodney Davis (IL): Talking about a member of congress giving their voting privilege to someone else. There's legitimate constitutional uncertainty with what is being proposed, and it could call into question the validity of any legislation the proxy voting is used for.
53:30 Rep. Jim McGovern (MA): This is the Rules Committee, right? We are one of the smallest committees in Congress. And here we are taking up the entire Ways and Means Committee room, which is one of the biggest committee rooms in Congress. What do you do with the Transportation Committee and the Appropriations Committee, which you know, are significantly larger. Some have suggested that maybe they can meet in the auditorium, or maybe on the House floor, one at a time. We have a huge amount of work to do. There are, in addition to responding to this crisis, and trying to figure out how to get the economy back on its feet again, we have much past bills that we need to get done. I mean, the Defense Authorization Bills, Appropriations Bills, I mean, and the the fact that we cannot function, our committee process just literally can't function the way it should, if we're going to follow CDC guidelines. I mean, that is problematic. So what do we do? We don't meet? We don't address certain issues that need to be addressed?
56:05 Rep. Jim McGovern (MA): And this alternative, which I think incorporates some of the things that are in the press release that you guys released was that, you know, we should operate like the White House, and we all should get tested. We all should move to the front of the line. We're all special enough that even though our constituents can't get tests, people who work in hospitals, first responders, people who are in working in food pantries in homeless shelters, who, quite frankly, should be tested, that Congress the way we can kind of manage this as we all come back, and every time we have a discussion, we'll get tested. I don't know what the reaction would be in minority leaders district but in my district, people think that's tone deaf and think it's wrong, that we're not super special, that we should move to the front of the line.
58:15 Rep. Jim McGovern (MA): But the gentleman referred to the change that was done, that was implemented after 911. When the Republicans were in charge of The House, and in 2005, you changed the rules for a provisional quorum, which would allow in the extreme, two members to constitute a quorum. Now, the Constitution, defines a quorum is the majority of the membership, but under the rules change that was done back then. I mean, you literally could have two members constitute a quorum. I don't think that's constitutional. But nonetheless, that was the plan that was put forward and yeah, it may have taken a long time to put forward but I don't really think it was a very good a good plan.
59:30 Rep. Jim McGovern (MA): We have come together in a bipartisan way on a number of packages that have become now law in which we have literally appropriated the house in a bipartisan way. The Senate in a bipartisan way is appropriated trillions of dollars to help respond to this health crisis, and to help try to protect our economy. We need to do oversight, we need to make sure the money is being spent the way we want it to be spent. I mean, that's one of our jobs and if committees cannot meet because of this pandemic, you know, where they have to wait their turn, you know, because we don't have rooms big enough here for people to meet and follow CDC guidelines, that's a dereliction of our duty.
1:05:00 Rep. Steny Hoyer (MD): Because I believe that being virtually present and being present is essentially the same thing in the constitutional consequences of that presence. Because I can vote "aye" here and I can vote "aye" 1000 miles away, and it has the same representation of my constituents. It's just transmitted in a different way.
1:09:05 Rep. Steny Hoyer (MD): But why when we have the technology that allows us to do it virtually do we put lives at risk not only here, you're going to go back to Oklahoma at some point in time, and you're going to deal with the folks in Oklahoma and you're going to come from a hotspot. Now, hopefully, you will not have anything to transmit. But we know that that's possible.
1:20:50 Rep. Jim McGovern (MA): The way it worked back then, was that the chair would have a bunch of proxies in his or her pocket and vote however, the chair saw fit without consulting with the member. That is not the way this should work. And that is not what this we're talking about is. What we're talking about is that if you want to give me your proxy, you have to indicate in writing, how you want me to vote on every single vote, and then it will be announced publicly how you voted on the on the House floor. And if Jim McGovern had Rodney Davis, his proxy and I voted, contrary to the way you wanted to it would be announced and there would be a period of time. If I voted, if I somehow abuse my power, for it to be corrected.
1:26:50 Rep. Rodney Davis (IL): Also gives unprecedented power to just the Chairperson of House Administration. Doesn't say she has to consult with me, the ranking member when determining what type of technology to choose and implement before putting forth remote voting on the house floor. Remote voting is much different than proxy voting that allows somebody to sit at home and cast a vote. And yes, there's technology Mr. Chair that could allow that to happen. But in the end, why do we have one person in the majority party determining what technology to use.
1:35:40 Rep. Norma Torres (CA): I have a pre existing condition and when I got on the plane yesterday, I was scared to death. There were people in the screening area of the TSA process that were much too close for my own comfort. And I have made a commitment to my staff to my family that if that plane was more than 70% occupied and there were people, you know, stepping over each other that I would immediately get off of it before taking off cause I am not willing to risk my life for this.
1:49:15 Rep. Steny Hoyer (MD): One of the problems we have today is that although people conceptually raise the pandemic that had happened in 1918, could happen again, it was conceptual. And as a result, we were not prepared. Here it is actual. That's why you're sitting with a mask, why I'm sitting with a mask. Why we're distancing, we're in this large room, as the chairman pointed out, where small room would have accommodated the Rules Committee and the witnesses. It is here. It's not conceptual, it's not theoretical. We had 9-11, now had 9-11 knocked out the entire air traffic system, it would have been actual because people would not have been able to get here except drive maybe five days or three days from the west coast.
1:5330* Rep. Jim McGovern (MA): Proposing that we take a baby step, that we'd go with a low tech approach first and as we feel more comfortable, we can evolve. This may shock you, Mr. Woodall, but there are some members of the House who still have flip phones. There are some members of this chamber who are more technologically comfortable than others. There are some members of this house who think bifocals are a radical idea. So I mean, the bottom line is we are trying to deal with the situation in a way that we feel that there's a comfort level and as people get more comfortable, we can then look at other other things.
1:55:05 Rep. Rob Woodall (GA): And it says specifically a member casting a vote or recording the presence of another member as a designated proxy under this resolution shall cast such vote or record such presence pursuant to the exact instruction received from the other member. Now, when Mr. Davis's name is called and I'm holding his proxy, and I speak out and vote, in a way contrary to the Davis instruction, because things do come up on the on the fly and not everything can be consulted with, what is the procedure for resolving that? Rep. Steny Hoyer (MD): The theory, not the theory, but I think the the letter of the rule that's being proposed is, if you did not get instructions, you could not vote that proxy. Rep. Rob Woodall (GA): I'm going the other direction. I did receive instructions and I'm voting against those instructions, just like in the electoral college where folks have received instructions to vote for President Trump, but they don't. What is my recourse? As a Member, again most solemn responsibility we have as members is is voting on the House floor. What is my recourse? Rep. Steny Hoyer (MD): 'Madam Clerk, he cast my vote incorrectly.' You can email, you can text, you can call. There's so many different methods of technology.
1:56:30 Rep. Steny Hoyer (MD): My own view, I will tell you honestly, is that the best way for me to convey my vote is to look into my phone on FaceTime, and say I vote aye or nay, I don't think, I personally don't believe this is a security question.
1:57:10 Rep. Jim McGovern (MA): If you are assuming if you're trying to assert that Mr. Horry(?) would deliberately try to take your vote and use it in a bad way, and that's a question of privilege, and you would have the opportunity to be able to correct it, so hopefully if you're participating remotely, you are following what is going on. You will hear your name announced you will hear how you voted. And if you call him Mr. Horry(?) doesn't want to change your vote and it's a question of privilege, and you have the right to be able to change it that way.
1:57:10 Rep. Jim McGovern (MA): If you are assuming if you're trying to assert that Mr. Hoyer would deliberately try to take your vote and use it in a bad way, and that's a question of privilege, and you would have the opportunity to be able to correct it, so hopefully if you're participating remotely, you are following what is going on. You will hear your name announced, you will hear how you voted. And if you call him, Mr. Hoyer doesn't want to change your vote and it's a question of privilege, and you have the right to be able to change it that way.
2:05:20 Rep. Steny Hoyer (MD): Why are we acting quickly? Because the experts tell us and some people believe the experts that this may regenerate itself in September, we may have a flattening. But until frankly, we get a vaccine or a therapeutic that very substantially minimizes the consequences of COVID-19. We're going to have a problem. And if it raises, again, its ugly head in September, we ought to be ready for September is going to be a very busy month for us. And we don't have a lot, it's an election year, so we're going to be off in October, etc, etc. So now is the time that you say we move quickly, we did move quickly, because we need to anticipate we would we all hope this gets better. We all hope we get a vaccine we all hope we get a therapeutic. But if it doesn't, we need to be ready to make sure that Congress is empowered to act on behalf of the American people and to conduct oversight.
2:13:55 Rep. Earl Perlmutter (CO): But we cannot have government come to a grinding halt. In a pandemic, where our own Attending Physician or our public health experts at home or the public health experts here in DC say you guys shouldn't get together because you could drag the disease from Denver to DC or you could take the disease from DC back to Denver. And that's the last thing I want to do.
2:18:00 Rep. Earl Perlmutter (CO): Mr. Hoyer, I understand that this rule terminates at some... This is a temporary rule, is it not? Rep. Steny Hoyer (MD): The life of the Congress, and 45 days in the sense of it has to be recertified. That the cause of the rules being implemented was still present. Rep. Earl Perlmutter (CO): Right, for the rule to be called upon. It has to be the Sergeant at Arms, the Attending Physician and The Speaker. And then it lasts for 45 days, at least the proxy voting and the different things called for in the rule.
2:23:40 Rep. Rodney Davis (IL): We do not oppose, as Republicans, and you can see in the plan that was submitted for the record. We do not oppose remote hearings. We do not oppose utilizing technology.
2:25:05 Rep. Rodney Davis (IL): I do want to clarify some things. Yes, the United States Senate does have a proxy process. But that proxy process, unlike the rule that's being debated today, does not ever allow a proxy vote on the House on the Senate floor. That's something that this rule will allow for today.
2:25:50 Rep. Rodney Davis (IL): That this Congress has not stopped working. This Congress, just a few short weeks ago, had 300 members that came out here. I do understand and I share the concerns of my colleagues in this room about staff, which is why we worked in a bipartisan way before this crisis, to get equipment to every office, so that every office was ready in case they needed to telework, and they did.
3:18:25 Rep. Bradley Byrne (AL): We're living in a house where the work product is coming from the very top and being thrown upon the rest of us, and we're abdicating our responsibility to legislate. If we're honest with ourselves, I believe no one would challenge me when I say the rights and individual prerogatives of the members of the House had been steadily shrinking for decades. It was true when the chairman eloquently made this point when he was the ranking member of this committee, and it's just as true today. Too much power has been taken away from individual members and committees of jurisdiction and transferred to the office of the speaker. With all due respect, this proposal today reinforces what is fast becoming a complete transfer the power of the institution to the speaker.
3:22:55 Rep. Jim Jordan (OH): But understand what's in this proposal. One member can have 10 proxies you know what that means? 22 members with 10 proxies in their back pocket can conduct the business of the American people. 22 - 5% of the United States House of Representatives.
3:56:20 Rep. Michael Burgess (TX): As I read the rule that we're considering today, yes, there's a time limit on the denotation, that this is an emergency and all of this is triggered. But there's an extension available. And that extension is arrived at by the speaker in consultation with the Sergeant at Arms and Attending Physician, two individuals that I hold in very high regard, but they're not constitutional offices. So we're putting some power in the hands of some people that are really not accountable to the people and this being the people's House. That seems to me to be counter to what we should be about. Do either of you have a thought on that? Rep. Bradley Byrne (AL): Well, I think he said it correctly. Rules that we're operating in this house right now will all go out on January 3 at noon, when the new Congress comes in. But between now and then, that can be this perpetual, running 40 five day extension of this all the way up into the very end. And there's no check on that. I mean, it's up to the speaker. And one person and other speakers of important position in the house. But one person can let this thing just roll over and over and over to the end of the Congress.
4:00:45 Rep. Jim McGovern (MA): The alternative to this is to rely on the republican standing rule, which is, well, you could literally redefine a quorum as two people. And again, my friends here, many of them supported it. I did not at the time, but that is what the standing rule is right now that my friends passed post 911 and I think that is unacceptable.
4:09:50 Rep. Joseph Morelle (NY): We'll note though 45 days is the is the amount indicated, but it also suggests on page three, that even during any - whether it's the original 45 day or an additional 45 days is the covered period. The speaker the designee receives further notification from the sergeant of arms in consultation with the attending physician, that the public health emergency due to the Coronavirus is no longer in effect, the speaker shall terminate the covered period. It's not as though the speaker can't - it doesn't say may, it says shall. So, immediately upon so of the speaker, as I read the rule, the speaker says on on May 1, we have a pandemic I've been advised by the sergeant of arms in consultation with the attending physician to put this temporary rule in place. And then two weeks later before the 45 days has terminated. If you receive if the speaker receives another certification or notification in the sergeant of arms that the emergency no longer exists, it is terminated shall terminate, so it wouldn't 45 days in length.
4:02:35 Rep. Jaime Raskin (MD): Mr. Cole posed an interesting question to the panel about whether all of you concurred that you think that the proposed rule here is unconstitutional. And each one of you in Syria them repeated the idea that you thought it was unconstitutional. Now, Mr. Bern, as candidly volunteered that the current rule adopted by a Republican Congress is unconstitutional, which would allow two members to constitute a quorum. Mr. Jordan, what about you? Do you agree the current rule is unconstitutional. Rep. Jim Jordan (OH): As the gentleman well knows, my colleagues in the Freedom Caucus have come to the floor and objected to unanimous consent to pass certain legislation. Rep. Jaime Raskin (MD): You agree you agree with me? Rep. Jim Jordan (OH): We've always had a problem with that? Rep. Jaime Raskin (MD): Do you agree...just a yes or no question. Do you agree with Mr. Byrne, it's unconstitutional? Rep. Jim Jordan (OH): Yeah, I don't like the rule that we've been very clear about that. Rep. Jaime Raskin (MD): You agree? it's unconstitutional. Okay. Is that right? Okay, Mr. Bern, you presumably still agree that it's unconstitutional? Rep. Bradley Byrne (AL): Yes, sir. Okay, if you're gonna be consistent, you have to follow what the Constitution requires. And what's good for the goose is good for the gander. I try to be consistent. Rep. Jaime Raskin (MD): Mr. Bishop, do you believe the current rule is unconstitutional, adopted under the Republican Congress? Rep. Dan Bishop (NC): I've examined it carefully, but I find Mr. Byrne's comments and those that have been made by the Chairman on the point persuasive, it probably is unconstitutional. Rep. Jaime Raskin (MD): Okay.
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