House Minority Leader Kevin McCarthy (R-Calif.) is taking his fight against what he calls the “patently unconstitutional practice” of proxy voting in the U.S. House of Representatives to the Supreme Court.
In the early days of the pandemic in May 2020, the House approved a resolution allowing members to cast votes on the House floor by proxy, on the theory that it was advisable to limit attendance in Congress to combat the spread of the CCP (Chinese Communist Party) virus.
Majority Leader Steny Hoyer (D-Md.) said at the time the new absentee voting protocol was needed because the virus posed a “mortal danger.” House Democratic leadership said when the policy began that it would be temporary, but it’s still in effect today.
This “unprecedented” proxy voting resolution permits a single member to vote on behalf of up to 10 absent members, according to the petition for certiorari, or review, from McCarthy.
“Today, we are asking the Supreme Court to uphold the Constitution by overturning Speaker [Nancy] Pelosi’s perpetual proxy voting power grab. Although the Constitution allows Congress to write its own rules, those rules cannot violate the Constitution itself, including the requirement to actually assemble in person,” McCarthy said in a statement.
“Since its adoption 14 months ago, proxy voting has shattered 231 years of legislative precedent and shielded the majority from substantive policy debates and questions, effectively silencing the voices of millions of Americans,” he said. “It was a raw abuse of power … [and its] continuation is an insult to hard-working taxpayers who are back at work safely while members of Congress get a pass to skip work but still get paid.
“The Founders wisely rejected proxy voting because they knew Congress cannot adequately ‘do the business’ of our chambers without deliberating, and we cannot adequately deliberate without assembling in person. The Senate has managed through the whole pandemic without proxy voting because they know, as we do, that it is unconstitutional.”
The petition in the case of McCarthy v. Pelosi, an appeal from the U.S. Court of Appeals for the District of Columbia Circuit, was reportedly filed with the Supreme Court on Sept. 9 but hadn’t yet appeared in its online docket as of press time.
The appeals court held that the Constitution’s speech or debate clause states that “for any Speech or Debate in either House, they [members] shall not be questioned in any other Place,” has the effect of preventing courts from reviewing the constitutionality of proxy voting.
“That decision takes a radically broad view of the Speech or Debate Clause,” McCarthy’s petition states. “The court concluded that any acts related to voting were privileged—including here, the Clerk’s collection of proxy letters from absent Members or declarations by the Speaker and Sergeant-at-Arms that proxy voting should continue.
“By that logic, there would be no stopping any voting rule adopted by the House.”