Congress needs to act quickly to pass whatever legislation is necessary to counter the coronavirus crisis in part because the pandemic threatens its ability to function properly.
There aren’t clear procedures or plans in place for the possibility that many members become unable to return to Capitol Hill, as has already happened in several cases, raising the prospect of congressional powerlessness and constitutional confusion.
A dozen members of Congress already have said they would self-quarantine because they had been exposed to the virus.
Should that number swell or other concerns prevent lawmakers from returning to work, it could leave Congress unable to function, said John Fortier, the director of governmental studies at the Bipartisan Policy Center. Under the long-standing rules of both chambers, members have to be physically present to conduct official business. McConnell said Tuesday he wasn’t interested in changing the rules.
“There is no way that a member could remotely vote on the House or Senate floor” under the respective chamber’s current rules, Fortier said. The House and Senate could still vote if enough members for a quorum were present, but there’s no guarantee that Congress will have that many in a crisis.
Virus-related vacancies could also lead to odd situations where the majority party might not have a majority present. The Republicans have a 53-47 majority in the Senate, meaning only a handful of losses could rob them of a voting majority. “If you were to try to abuse the situation, there are rules about quorums which would allow a small number of the other party to object, and you wouldn’t get what you wanted,” he said.
Lawmakers are more likely to be vulnerable to the coronavirus than others because they tend to be older. The average age of a U.S. senator is 62, and the average House member is 58. House leaders said Monday they were considering limiting votes to just 30 members at a time to prevent possible infection risks.
Nor could any House vacancies that occur be filled quickly. While governors can appoint replacements to fill vacant Senate seats, the Constitution requires special elections for House members. The scramble to fill the seats could “produce a House filled in slapdash fashion, with sham elections held on little notice, that would in no way be representative of the voters’ desires,” warned American Enterprise Institute scholar Norman Ornstein.
Congress should deal with any legislation needed to handle the pandemic now, Florida Sen. Marco Rubio said. “I don’t think we can assume that we can keep reconvening the Senate every week like we did this week. I just don’t think we can make that assumption,” the Republican lawmaker said.
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The Senate announced Wednesday it would vote on House-passed legislation to provide $100 billion in aid related to the virus. Lawmakers are planning additional legislation, expected to amount to about $1 trillion in stimulus, to aid small businesses, provide direct cash payments to some workers, and provide aid to the airline industry.
Even if lawmakers stay healthy, Congress still faces logistical problems due to the virus that could cripple its ability to function, the senator added. Many lawmakers regularly travel cross-country to their home districts, meaning a disruption in air travel could have a major effect on Congress. “I don’t think we can operate like we can just bring the House and Senate back together whenever we want,” Rubio said.
Fortier and Ornstein have been studying the question ever since the Sept. 11, 2001, terrorist attacks. They helped to develop a Continuity of Congress Commission to address the underlying problem, but few of the suggestions have been adopted.
Ornstein believes that the solution is to allow lawmakers to circumvent the need to be present physically on Capitol Hill. Congress can set its own rules, he noted in an opinion piece Monday for the Atlantic. It can therefore adjust them to allow lawmakers to use secure remote-meeting software and hardware. “If members have to work from their district offices or even from home, they will need the ability not just to meet remotely, but to cast secure votes when necessary,” Ornstein wrote.
Fortier, however, is wary of trying such an approach now because of the logistical problems. “I don’t think we can move in a quick way or an effective way to an immediate online Congress,” he said. It would also open the path to normalizing such remote-voting practices and making Congress more of a direct democracy than a legislative body. There’s a benefit to having members being obligated to meet physically and work out agreements on legislation, he argued.
Instead, congressional leaders could work out informal bipartisan practices for extraordinary circumstances that would allow them to get by while missing large numbers, Fortier said. There are existing precedents. While lawmakers have to be physically present to vote in Congress, the rules do allow Congress to pass legislation by unrecorded voice vote. So long as nobody objects, Congress could conduct essential work that way. Similarly, Senate committee leaders and their ranking minority members are allowed to cast votes by proxy for members that aren’t present. The House used to do so as well until then-House Speaker Newt Gingrich had the rules changed in the 1990s.
Allowing Congress to conduct business that way would require a lot of bipartisan cooperation, Fortier noted. “I think all of these rule changes could, if needed, be done by having leaders in small groups working by unanimous consent on the things that need to be done.”
