DearColleague.us

Letter

Sending Office: Committee on Rules
Sent By:
Rules.Democrats2@mail.house.gov

Resolution to Ensure Congress Can Continue its Work During the Coronavirus Pandemic

 

April 22, 2020

Dear Colleague,

The continued impacts of the COVID-19 pandemic are staggering. In the U.S. alone, there are over 824,000 confirmed cases, more than 45,000 lives lost, and more than 22 million initial unemployment claims. This crisis has rippled across the country, impacting
the lives and livelihoods of our families, friends, and neighbors in every one of our Congressional districts.

Just this week the World Health Organization said that the worst impacts of coronavirus are yet to come. Experts warn that we could see a second surge of coronavirus cases in the coming months. If more lockdowns occur suddenly, I don’t want us to look back
and wish we had made changes now. We cannot risk Congress grinding to a halt because of this virus. We need to act. That’s why this resolution not only puts in place remote voting by proxy for measures responding to the COVID-19 pandemic, but also enables
virtual committee proceedings, and tasks the Committee on House Administration with studying the feasibility of remote Member participation on the floor. I don’t suggest these changes lightly, but this is an extraordinary emergency. We need to ensure we can
get our work done on behalf of the American people.

Since the start of this pandemic, Congress has acted swiftly and in a bipartisan manner to get resources where they are needed most. We have already passed three bills that have been signed into law: the Coronavirus Preparedness and Response Supplemental
Appropriations Act, the Families First Coronavirus Response Act, and the Coronavirus Aid, Relief and Economic Security (CARES) Act. The House is now poised to pass a fourth relief bill in the coming days. These bills are the first in what will be many steps
Congress takes as our nation faces one of the most serious health and economic emergencies in over a century.

I want to thank my colleagues – Democratic and Republican – who have reached out with their ideas and input as we consider how best to continue our work during the pandemic. The
report I released last month examined our voting options, and while every option presented unique advantages and disadvantages – including technological
and security concerns – the report concluded that “[t]here is currently no perfect solution to allow absent Members to vote on the floor. However, proxy voting is likely the best of the options available under the circumstances.” The feedback I received helped
me develop what I believe is our best path forward: temporary, low-tech, remote voting on the House floor specifically for legislation responding to this pandemic.

This means that, on the floor, Members can vote remotely through fellow Members who are able to be physically present in the House Chamber and are able to cast votes on their behalf. To do so, Members remaining in their districts will
send a letter to the Clerk authorizing another Member to vote on their behalf and providing
exact instruction for each announced vote. The Member acting as proxy must follow these instructions and has no discretion in casting those votes. Without exact instruction on a vote, they could not cast that vote. Additionally, there would be
a process for Members to update their instructions in the case of additional votes, including procedural votes, or changes to the bill’s text. Remote votes through a proxy would count and appear as normal in the vote tally, and count towards achieving a quorum.
 

As I said when proposing this process last week, this solution is only temporary — we also need to look seriously at developing a long-term plan. Part of that plan is getting our committees back to work safely. Which brings me to my other recommendation:
temporary authorization for committees to hold hearings and markups remotely, and direction to committees to enable members to participate remotely in committee proceedings. This change will permit Members participating remotely to be counted for the purposes
of establishing a quorum, allow Members to vote remotely in committee, and permit the authorization of subpoenas for return at remote hearings or depositions, if necessary, as we conduct our vital oversight functions.

I have also worked extensively with Chairperson Lofgren, who has studied the technology platforms available to the House. My proposal directs her committee, the Committee on House Administration, to study the feasibility of using technology to facilitate
remote participation by Members on the House floor. This will enable us to look ahead at all possible options for remote participation during a crisis.

In the meantime, we must move quickly to make these temporary solutions a reality. We don’t know how long travel restrictions or state shelter-in-place orders will last. The sooner we make these temporary changes, the sooner we can tackle the critical issues
facing Congress in the months ahead. I recognize that some Members think we should not make any modifications to the rules right now, while others think we should go further. I have tried to be inclusive and balanced throughout this process. I think this is
a measured step we should take now — one that we can later evaluate as we develop any longer-term solutions. I continue to invite your feedback, advice, and counsel. 

The text of the resolution is available
here

Below are answers to some common questions I have received.

 

Sincerely,

James P. McGovern

Chairman

Committee on Rules

 

Remote Voting by Proxy:

Q: Will remote voting by proxy be a permanent change to the House rules? Would we continue to use it post-pandemic?

A: No. We would temporarily implement remote voting by proxy for measures responding to the COVID-19 pandemic through a special order resolution that would allow the Speaker to put the process in place for 60 days during a pandemic
emergency. The authority could be renewed for additional 60-day periods as needed, though not past the 116th Congress. I am recommending that we look at putting a process in place for future pandemics or disasters; however, I strongly believe this
should not become common practice for our regular business.

Q: Can we modify this process later, improve upon it, or get rid of it altogether?

A: Yes. The process can be modified later, but it cannot be extended past the end of this Congress without further action. 

Q: Can we implement remote voting by proxy without House action?

A: No. This will require an adoption of a special order resolution. My report on remote voting highlights several House rules that would need to be addressed to accommodate any type of remote voting, including provisions in rules I, III,
XIII, XV, XVIII, and XX. This resolution could be adopted by unanimous consent or by voice vote, but we cannot vote remotely by proxy without House action.

Q. Can I vote remotely by proxy immediately after the House adopts this resolution?

A: No. The resolution and accompanying regulations lay out what must occur in order to trigger this system, including the Sergeant-at-Arms notifying the Speaker of an ongoing pandemic emergency and a 24-hour notice period before final passage
votes so that Members may secure proxies. These important steps cannot be completed on the same day the House adopts the resolution.

Q: How will I select my proxy?

A: It will be up to you to determine who your proxy will be. However, we will coordinate with the Democratic Whip’s office and the rest of Democratic Leadership to ensure that Members receive guidance and assistance navigating the process
of securing a proxy. I hope that my Republican colleagues will do the same.

Q: What does the process look like to designate a proxy?

A: To vote remotely by proxy, you must submit a signed letter to the Clerk authorizing another Member to vote on your behalf and directing them how to vote on the noticed legislation. The letter could be emailed.
There would be sufficient notice before any final passage votes to ensure you have time to do so.
If there are changes to the bill text or additional unscheduled votes such as a motion to adjourn, you must send written instruction (including email) to the previously authorized proxy once you are informed of the vote. Detailed instructions will be sent
to every Member outlining this process.

Q: Can I revoke or change my proxy?

A: Yes. You can revoke your proxy with a subsequent letter to the Clerk or by simply showing up to vote, and can change your proxy with a letter to the Clerk.

Q: What happens if there are unexpected votes or votes for which text wasn’t available, such as an MTR?

A: The House would hold the vote open for an announced period of time to allow you time to send voting instruction to your proxy.

Q: How will votes be taken?

A: Votes may be taken in two ways:

  • By roll call, with the Members serving as proxies answering “yes by proxy” or “no by proxy” when the names of Members voting remotely are called.
  • By electronic device, with the Members serving as proxies using well cards and writing “yes by proxy” or “no by proxy”, and with votes announced as the cards are filled out and turned in by proxies so you can watch in real time to ensure your vote was cast
    properly. 

Either way, without exact direction from you, your proxy cannot cast a vote on your behalf.

Q: How will floor debate work?

A: Floor debate would work as normal and would depend on how the bill is being considered (e.g. by unanimous consent, under suspension, or under a rule). Deliberation would occur in the chamber. If you have a statement on a bill but aren’t
physically present, you can put your remarks in the record under general leave using the new electronic system established with the Clerk’s office.

Q: With remote voting by proxy, would a quorum of Members need to be present in the Chamber for the vote?

A: Members voting by proxy would count toward a quorum.

Q: Will delegates be able to vote using this new system?

A: The same House rules that apply under current practice with respect to delegate voting will apply in any remote voting system. 

Q: How will my vote appear if I vote remotely by proxy?

A: Votes would appear as normal in the vote tally, and a list of Members who took those votes by proxy will appear following the list of yeas and nays in the Congressional Record.

Q: What if the proxy misses the vote when the Member’s name is called?

A: If a Member agrees to serve as a proxy, it is their duty to appear for votes. Members are responsible for watching the floor proceedings and ensuring their proxy voted correctly on their behalf. If your proxy appears to be missing the
vote, you need to alert floor staff as soon as possible and before the vote closes.

Q: Is remote voting by proxy constitutional?

A: Yes. Many legal scholars point to both the Constitution’s explicit language giving the House and Senate the ability to make their own rules (Art. I, Sec. 5, Cl. 2), as well as two Supreme Court cases from the 1890s, as grounds to believe
that Congress has the ability to establish remote voting by proxy rules.

In United States v. Ballin, 144 U.S. 1 (1892), the Supreme Court found that, while the Constitution requires the presence of a majority —  or quorum —  of the House to do business, the Constitution also leaves it to the House to determine its own
rules. In Field v. Clark, 143 U.S. 649 (1892), the Court ruled that challenges to the internal operation of Congress are not justiciable in the federal courts.

Put simply, as Erwin Chemerinsky, renowned constitutional scholar and Dean of the University of California, Berkeley School of Law, has written, “[t]he Constitution bestows on each House of Congress broad discretion to determine the rules for its own proceedings…
This authority is expansive and would include the ability to adopt a rule to permit proxy voting. Nothing in the Constitution specifies otherwise.” 

Given this analysis, remote voting by proxy will withstand constitutional scrutiny.

Q: Should we wait to implement this new process?
It took Congress three years to make changes to the rules after the tragic events of 9/11.

A: After 9/11, the Rules Committee spearheaded a years-long process (from 2002-2005) to improve the continuity of Congress. That effort led to the adoption of several changes to the standing rules of the House.

A key difference here is that we are still in the midst of the crisis. Inaction is not an option.

Another key difference is that this is not a permanent change to the rules of the House. This will be a temporary special order that expires at the end of a 60-day period. While it may be renewed if necessary, it cannot be extended past the end of this Congress.
It is a modest change in the context of the historic emergency we face. We must act swiftly to ensure that Congress is able to safely and effectively work. While this temporary rule change is in effect, the Rules Committee will continue to study alternative
options and take advice and input from all Members.

Virtual Committee Proceedings:

Q: Is this a permanent change?

A: No. This authority is temporary and lasts for the duration of a 60-day period during a pandemic emergency, which can be renewed.

Q: What platform will committees use to conduct remote proceedings?

A: The resolution does not specify technology that must be used. Those choices will be made by individual committees in consultation with the Committee on House Administration on the cybersecurity of platforms.

Q: Can committees operate completely remotely?

A: Yes. Under this resolution, committees can hold hearings, markups, and other business meetings with every Member participating from a separate location.

Q: Can committees choose not to operate remotely?

A: Any committee conducting proceedings must ensure the ability of members to participate remotely, to the greatest extent practicable.

Q: Is this authority limited to committee action on COVID-related measures?

A: No. To ensure committees are able to continue their essential oversight and legislative functions, the authority is not limited to specific measures; however, it is only in effect for the duration of the pandemic emergency, when Members
may not be able to physically attend proceedings.

Related Legislative Issues

Selected legislative information: Government, Rules/Legislative Branch, Technology

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