For the first time in the 231-year history of the House, absent lawmakers were able to pass legislation by assigning somebody else to cast their votes in the chamber thanks to a rule change passed by the Democratic majority.
Republicans say everything the House passes under the new proxy voting procedure is open to legal challenge.
A group of House Republican lawmakers and their constituents sued Democrats in U.S. District Court last week, arguing that the Constitution requires that members of the House physically assemble in the chamber and prohibits voting by proxy.
“It is simply impossible to read the Constitution and overlook its repeated and emphatic requirement that Members of Congress actually assemble in their respective chambers when they vote, whether on matters as weighty as declaring war or as ordinary as naming a bridge,” GOP lawmakers contend in the suit.
Lawmakers in both parties are waiting to see whether the court will take on the case or side with Democrats, who argue that the House has the authority to set its own rules without interference from the other branches of government.
House Speaker Nancy Pelosi, a California Democrat, called the GOP lawsuit “a sad stunt” and said the House instituting proxy voting during the coronavirus pandemic “is fully consistent with the Constitution and is supported by expert legal analyses.”
Pelosi also noted an 1892 Supreme Court case that affirmed the House’s authority to determine its own rules.
The same court ruling also warned that the House “may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.”
Minority Leader Kevin McCarthy believes that Democrats overstepped their authority and are violating the Constitution both by allowing proxy voting and permitting the House to establish a quorum with absent members voting by proxy.
“It’s a legitimate question,” McCarthy said. “It’s about the constitutionality of anything they want to move forward.”
The new House rule allows any lawmaker present in the chamber to vote for up to 10 absent members. Last week, more than 70 lawmakers remained home and assigned other lawmakers to vote for them.
House Democrats approved proxy voting after their own rules committee report rejected remote voting. Chairman Jim McGovern calls the proxy voting plan “low-tech remote voting.”
In a report he issued in March, McGovern was wary of changing the rules at all to allow members to vote while absent because the Constitution calls on the House to meet to conduct business in the chamber.
“Remote voting is also a novel method of voting with no parliamentary history or basis,” McGovern stated in a staff report on remote voting that his panel provided to the Democratic Caucus. “While arguments can be made in favor of its constitutionality, to avoid a court challenge, it is inadvisable to use unprecedented parliamentary procedures on critical legislation. It may be prudent to consider the feasibility of remote voting for certain emergency situations, but that decision should be a multi-committee effort with substantial study.”
Joshua Huder, a senior fellow at Georgetown University’s Government Affairs Institute, told the Washington Examiner that the new proxy voting rule allows lawmakers to relay their votes more accurately. The rule requires that lawmakers specifically instruct their colleagues on how they want their votes cast. The rule forbids a lawmaker from just handing over the authority to another member. Huder also pointed out that the House has changed rules regarding how it operates many times in the past. “This is not the first time that the House has redefined what a quorum is,” Huder said.
The proxy voting rule expires after 45 days unless Pelosi decides to renew it, which she can do without needing another House vote. It could also end if the court intervenes.
The Congressional Research Service wrote in April that federal courts have typically deferred to Congress to set its own rules.
The GOP’s case may be among the exceptions, Thomas Jipping, a legal scholar at the conservative Heritage Foundation, told the Washington Examiner.
“Challenges to the conduct of the legislative process are rare, and courts will be cautious about telling another branch how to operate,” Jipping said. “But Democrats’ own rules committee staff told them in March that a constitutional challenge was likely, especially if this unprecedented voting system was used for significant legislation.”
