House bill passed with proxy votes becomes law
President Donald Trump signed the Paycheck Protection Program Flexibility Act of 2020 (HR 7010) into law on June 5. Among its provisions, HR 7010 increases the amount of time borrowers have to spend loan funds from eight weeks to twenty-four weeks. The new law also extends the amount of time borrowers have to repay loans from two to five years. HR 7010 allows participating businesses to now delay payroll tax payments and reduces the percentage of loan funds that must be used for payroll spending from 75 percent to 60 percent.
The House of Representatives passed HR 7010 on May 28 by a vote of 417 to 1. It is the first bill to be signed into law by the president that the House passed under its new proxy voting rule (H. Res. 965).
Proxy Voting Mechanics
H. Res. 965 empowers Speaker Nancy Pelosi, D-Calif., to announce a “covered period” in which proxy voting is allowed in committee and on the House floor. The “covered period” may last up to forty-five days. But the Speaker may extend it for an additional forty-five days.
The new rule details a unique process that both absent and physically present members must follow to vote by proxy. Absent members must first send the House clerk a signed letter that specifies which member they are authorizing to vote on their behalf. The letter must also include specific instructions from absent members to their physically present colleagues detailing how to vote their proxy. The resolution stipulates that the clerk must notify the member named as a proxy in the letter upon its receipt. It also directs the clerk to inform party leaders about the nature of the proxy. The resolution limits to ten the total number of proxies that a physically present member can cast at one time. Members who are physically present are required to announce proxies before voting.
H. Res. 965 includes an explicit stipulation that a House quorum consists of both physically present and absent members who have requested to cast floor votes by proxy. Before the adoption of the new rule, the House required its members to assemble in person to vote in both committees and on the floor. That is, the rules required members to be physically present.
Of course, the Constitution’s Rules and Expulsion clause (Article I, section 5, clause 2) empowers the House to determine its rules of proceeding. Using that power, the House has both allowed and prohibited proxy voting in committees in the past.
Yet the House cannot use its power to allow proxy voting on the floor because the Constitution’s Qualifications and Quorum clause (Article I, section 5, clause 1) requires that a majority of its members be present to conduct business. And the Constitution’s Journal clause (Article I, section 5, clause 3) stipulates that one-fifth of the members present may order a recorded vote. These two clauses prohibit a plurality of physically present members from conducting business by a recorded vote on the House floor.
No Constitutional Violation
The House did not violate the Constitution when it allowed members to vote by proxy during floor consideration of HR 7010. This is because a majority of the House’s members were physically present on the floor, thereby satisfying the Constitution’s Qualifications and Quorum clause and its Journal clause.
The total number of voting members in the House is 435 (assuming no vacancies). According to the House clerk, three seats are currently vacant. Consequently, the total number of voting members is 432 at present. Seventy-one members voted by proxy when the House passed HR 7010. That means 361 members were physically present on the House floor.
The House did not violate the Constitution because 217 members constitute a quorum of its total membership of 432. Passage of HR 7010 would have been unconstitutional only if 217 or more members were absent and voted by proxy.