Speaker of the House Nancy Pelosi (D-Calif.) canceled a planned vote on a Democratic proposal to allow House members to vote without being physically present in the chamber.
The three Democratic members of the task force are House Majority Leader Steny Hoyer (D-Md.), McGovern, and House Committee on Administration Chairwoman Zoe Lofgren (D-Calif.).
The three Republicans are House Minority Leader Kevin McCarthy (R-Calif.), Rep. Tom Cole (R-Okla.), and Rep. Rodney Davis (R-Ill.), the ranking minority member of the administration panel.
Davis, who led House GOP opposition to the Democratic plan, insisted that such a monumental change in House rules must be adopted with bipartisan support.
“As I have said before, a proposal to change over 200 years of precedent for how Members of Congress vote cannot be forced through on a partisan basis,” Davis said in a statement, shortly after Pelosi’s decision to cancel the vote.
Davis credited McCarthy, who feared “abuses of power” with proxies, with persuading Pelosi to go the bipartisan route instead of the Democrats’ proposal.
“Any decision as important as changing how Congress can function during a national emergency must be done with bipartisan agreement,” Davis said.
The CRS report pointed to the Constitution’s requirement of a quorum consisting of a majority of House members being physically present as the major obstacle to proxy voting.
“Ultimately then, for the House or Senate to authorize remote voting in a way that satisfies the quorum requirement (and therefore permits either chamber to exercise its constitutional powers), it would appear that either a majority of Members must be available on the floor to be counted towards a quorum in the traditional way, or the chamber must establish that those absent, but voting or participating remotely may nonetheless be counted towards a quorum,” the report stated.
“The constitutionality of the latter approach appears to hinge on whether such a change to the rules would be ‘reasonably certain to ascertain’ the ‘presence of a majority.’ But what does it mean to be ‘present?’
“Or, as one court put it in a different context: ‘When the very concept of a quorum seems designed for a meeting in which people are physically present in the same place, what does it mean to be present or to participate in a decision that takes place across wires?'”
Regardless of how a proxy voting process was structured, the CRS analysis seemed to suggest it would face dim prospects in the federal courts.
“If House or Senate rules were changed to permit remote voting, there is, as the House Rules Committee noted, ‘no guarantee of a favorable ruling affirming its constitutionality’ as it would be a question of first impression. But such a ruling would first require the Court to agree that it had power to hear the case,” CRS stated.
“But, there are constitutional and prudential doctrines that could conceivably limit judicial review in this context—such as the political question doctrine, the enrolled bill rule, and equitable discretion—that have become more developed since Ballin was handed down in 1892.”
“The question of judicial review is an important one, as the answer could determine whether it is the courts or the individual houses of Congress that are empowered to issue a final and presumably dispositive interpretation of the Article I, Paragraph 5 quorum requirement,” the report concluded.
Proxy voting does have a precedent in the House as committees allowed members to vote by signed proxy. That process was abolished in 1995 after Republicans, led by then-Speaker Newt Gingrich (R-Ga.), approved a host of procedural changes that remain in effect today.
The most significant of the Gingrich reforms was a rule requiring congressional witnesses to disclose any federal funding they or the organizations they represent receive before delivering testimony on pending legislation.
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