10 House Republicans Support Texas AG’s Bid to Block Omnibus Spending Bill

U.S. Capitol Police officers stand at the base of the steps to the House Chambers as the House votes on a $1.7 trillion spending package in Washington on Dec. 23, 2022. (Anna Moneymaker/Getty Images)

Ten House Republicans have backed a lawsuit that aims to prevent implementation of the $1.7 trillion omnibus spending bill passed in December by striking down the congressional practice of proxy voting.

In an April 11 amicus brief obtained by The Epoch Times, the lawmakers supported Texas Attorney General Ken Paxton’s motion for a preliminary injunction to prevent the application of the Consolidated Appropriations Act of 2023, which passed the House on Dec. 23 largely due to proxy voting, as a majority of the chamber was absent.

Republicans who signed on to the brief included Reps. Chip Roy of Texas, Morgan Griffith of Virginia, Andy Ogles of Tennessee, Harriet Hageman of Wyoming, Andy Biggs of Arizona, Clay Higgins of Louisiana, Warren Davidson of Ohio, Gary Palmer of Alabama, Matt Rosendale of Montana, and John Rose of Tennessee.

“The House of Representatives’ adoption of proxy voting rules was unconstitutional on the day that it was announced; this Court therefore has the power—indeed the duty—to review and adjudicate the constitutionality of legislation enacted due only to proxy voting,” the legislators contended. “In doing so, it should hold that the Plaintiff is likely to succeed on the merits, because the Consolidated Appropriations Act of 2023 cannot be sustained as a proper exercise of Congress’s power to enact legislation.”

The House instituted proxy voting rules in May 2020 under the leadership of former Speaker Nancy Pelosi (D-Calif.) in response to the COVID-19 pandemic. The new rules allowed members of Congress under quarantine or otherwise unable to vote in person due to the pandemic to designate colleagues to vote in their stead.

The controversial practice continued for more than two years until Jan. 21, when Speaker Kevin McCarthy (R-Calif.) officially declared an end to it.

Complaint

Paxton’s lawsuit (pdf), filed in February, argues that the Quorum Clause of the Constitution requires members of Congress to be physically present to vote on legislation.

According to that clause, “Each House shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide.”

“Only with a quorum may either House ‘do business,’” the complaint notes. “In context, that necessitates physically present members. The power to ‘compel the attendance of absent members,’ would make little sense if the Constitution did not require physical attendance.

“Supreme Court precedent supports this construction of the Quorum Clause,” the filing adds. “The Court has held that to constitute a ‘quorum’ necessary to ‘do business,” the Constitution requires ‘the presence of a majority, and when that majority are present the power of the house arises.’”

However, on Jan. 24, the Supreme Court declined to hear another legal challenge to the practice of proxy voting—a lawsuit filed by McCarthy that was rejected by the lower courts.

Bipartisan Practice

McCarthy, who has never voted by proxy, has criticized Democrats for their frequent use of the practice.

Yet despite Republicans’ protestations, members of both parties took advantage of the opportunity while they could, and not always because of the pandemic.

For instance, in March 2021, some Republicans received backlash from other members of their own party when they voted by proxy while attending the Conservative Political Action Conference (CPAC) in Orlando, Florida.

“Proxy voting is an unconstitutional attack on a functional Congress—allowing members to avoid their responsibility to meet in D.C. to do their jobs,” Rep. Roy told Politico at the time. “But even a number of my GOP colleagues are now complicit and have given in to the Democrats’ recklessness. If, as I do, you believe it’s unconstitutional—and wrong—then you shouldn’t do it, even if it’s hard.”

Legal Proceedings

The judge assigned to Paxton’s case is U.S. District Judge James Wesley Hendrix, a Trump appointee.

However, the Department of Justice has requested a transfer of venue to either the U.S. District Court for the District of Columbia or the Austin Division of the Western District of Texas, holding that those would be a more suitable fit.

“Venue is not proper in this District because neither Defendants nor Plaintiff reside here, and no part of the events giving rise to this case occurred in this District,” the department holds in one filing (pdf).

In recent weeks, similar change of venue requests have been rejected in other federal lawsuits filed in Texas.

Paxton, meanwhile, has requested a preliminary injunction, holding that the state of Texas will be harmed if the Consolidated Appropriations Act is enforced.

“Texas would be continuously subjected to the costs, hassles, harms, and attendant risks of administrative proceedings, investigations, and lawsuits that comes from both private individuals and the federal government,” the motion (pdf) states. “Meanwhile, the federal government is not harmed. Accordingly, the balance of equities and the public interest weigh heavily in favor of Texas and against the Defendants.”