In Congress, assembled: A virtual Congress creates more problems than it solves

The coronavirus has disrupted life for millions of Americans. People across the country have altered their daily routines in a bid to slow its spread. In many states, bars, churches, restaurants, and schools have closed. Businesses that can have directed their employees to work remotely. 

Still, not everyone can work from home. Some occupations require people to be physically present in the workplace. For example, health-care providers can’t work remotely. Marines must continue to stand their posts at the US Embassy in Rome, and quality-assurance technicians must report to pharmaceutical plants every morning to ensure that life-saving medicines are not compromised. Employees at grocery stores, postal workers, police officers, locomotive engineers must report physically to work so that those of us who are able to work remotely have access to essential goods and services. They are adhering to social-distancing protocols to avoid transmitting the virus.

As the pandemic spreads, calls are mounting for Congress to work remotely, given that almost half of the senators and approximately one-third of House members are at a higher risk for complications from the coronavirus. While its members have closed the Capitol complex to the public and limited access to House and Senate office buildings, their jobs nevertheless call for assembling physically in committees and on the House and Senate floors. 

Some members concerned about how Congress operates are calling on their colleagues to transition to working remotely for the duration of the pandemic. In the Senate, Dick Durbin, D-Ill., and Rob Portman, R-Ohio, have introduced legislation to allow senators to vote from home. Rep. Katie Porter, D-Calif., is leading a similar effort in the House to persuade Speaker Nancy Pelosi, D-Calif., and Minority Leader Kevin McCarthy, R-Calif., that members should be allowed to vote remotely. The Chairman of the House Rules Committee, Jim McGovern, D-Mass., has ruled out remote voting for the time being. And scholars are calling on Congress to develop a contingency plan for conducting its deliberations virtually and allowing its members to vote remotely.

But like the millions of Americans who must be physically present to do their job, working from home is not an option for members of Congress. This is because the House and Senate rules require members to be in the same location to deliberate and vote. And it is not clear if remote voting is even possible, despite the very serious dangers presented by the coronavirus. Changing the House and Senate rules to permit a virtual Congress would violate the spirit, if not the letter, of the Constitution. More broadly, a Congress whose members meet virtually and vote remotely is likely more dysfunctional and less legitimate than one whose members are physically present.

Constitutional Obstacles 

In both the Durbin-Portman and Porter proposals, technology would enable members to assemble virtually to conduct Congress’s business and to vote for or against propositions. While feasible, technology cannot overcome the obstacles to a virtual Congress in the current House and Senate rules and the Constitution.

The House and Senate rules require members to assemble in person to vote. Senate Rule XXVI, stipulates that senators may vote remotely, or by proxy, in committee proceedings, but only if a sufficient number of their colleagues are physically present to vote on their behalf. Notably, the rule does not permit every senator on a committee to conduct the panel’s business remotely. In the House, Rule XI goes even further. It prohibits all proxy voting in committee proceedings. Majorities in the House and Senate could, admittedly, alter these rules using their authority under the Constitution. But, ironically, they must be physically present to do so.

There are limits to what members can do by changing the rules. For example, the Supreme Court ruled in United States v. Ballin that the House and Senate could not approve rules that “ignore constitutional restraints.” While members may permit proxy voting in committees in limited circumstances, they cannot change the rules to allow virtual deliberation and remote voting on the House and Senate floors. This is because the Constitution requires that a majority of each chambers’ members be present to do business.

Several provisions in the Constitution suggest that a virtual presence is insufficient. For example, the Constitution stipulates that Congress must assemble at least once a year. And it bars the House and Senate from meeting in a different location from that at which they sit presently.  While the Congress has met in various places in its history, including Philadelphia and New York City, its members had to first physically congregate in the same place before they could approve meeting in a different location. The Constitution assumes that members must travel to the same location and protects them from arrest “during their Attendance at the Session of their respective Houses, and in going to and returning from the same.”

Legitimacy Concerns

Notwithstanding the constitutional obstacles to a virtual Congress, voting remotely poses significant challenges to the government’s legitimacy. Congress is not a lawmaking factory. It is a place where our representatives go to participate in the activity of self-government on our behalf. The bureaucratic expertise of administrative agencies and, in many cases, the legal authority of the federal courts, depends upon Congress for legitimacy. Members of Congress do not legitimize such actions only by voting for legislation at the end of a production process. Instead, they legitimize governmental action through their participation in the deliberation, persuasion, bargaining, and compromise that precede voting.

A Congress that meets virtually would complicate its members’ ability to participate in the lawmaking process, especially in the many informal, behind-the-scenes activities that contribute to the lawmaking process. This is the proverbial sausage-making, which includes learning from experts about significant public problems, studying alternative solutions to weigh costs and benefits, understanding the potential unintended consequences of proposals, and building supportive coalitions of colleagues. These critical activities all take place before the final vote.

More practically, there are two sources of “power” in politics: the power to decide, and the (often more important) power to determine what is to be decided. Remote voting would empower members to “decide” on proposals put before them, which may or may not be popular, bipartisan, or “non-controversial.” But it would not permit them to contribute to what is to be decided fully. If members are not present, they are significantly less likely to determine both what comes up for a vote and the substance of “non-controversial” legislation. Besides, non-controversial does not mean unimportant or insignificant. Proponents of remote voting are envisioning it to be used for bills like the so-called Phase 3 coronavirus bill that are presumed to be likely to pass, even before members learn what details have been hammered out. 

In the modern Congress, party leaders already hold significant agenda-setting power by legislating in the dark. Preventing members from being physically present would significantly reduce their ability to keep party leaders in check. Remote voting puts rank-and-file members who represent the overwhelming majority of Americans in an incredibly weak position relative to party leaders and the executive branch. Party leaders have many carrots and sticks to keep members in line, which may be wielded even more forcefully under a remote voting system. It’s not impossible to envision a party leader, or a president, leaning on a member: “If you don’t vote remotely with us today, then I can’t promise I’ll have the time to raise money for you this cycle.”

Finally, the implicit assumption with remote voting proposals is that members are inherently safer “at home” than at the Capitol. This virus knows no geography. The global pandemic will eventually reach every country, every state, every city, every congressional district. The unintended consequence of remote voting is that it could incur high costs to citizens’ representation and elected officials’ ability to influence policy while offering few demonstrable benefits. Members may just as easily contract the virus at home as they are in Washington. And they may even be more likely to suffer its dire consequences if they represent a medically underserved area, or if they live in a state that has a medical system that has already become too overwhelmed to treat them properly. 

If Not Remote Voting, then What?

Proponents of remote voting are trying to solve a real problem. And the health and safety of members of Congress should be a priority for anyone concerned about the fate of our democratic republic. But there are better ways to address this issue without violating the Constitution, undermining Congress’s legitimacy, or making the House and Senate even more dysfunctional than they are now. If health care workers and police officers are capable of taking measures to protect themselves and those they serve with strict clinical protocols, then members ought to be able to do so as well. The US Capitol campus ought to be transformed into a hospital-like atmosphere for the duration of this crisis. And maybe close the gym and other services to minimize the likelihood of transmission by senators like Rand Paul, R-Ky.

Members would be better able to discharge their constitutional duties by arranging for most staff to work from home, maintaining strict procedures for keeping at safe distances, and even by wearing protective gear in their respective chambers and office buildings. Members could empower their Sergeants-at-Arms and other officers to enforce these temporary rules.  These very visible safety protocols could send a powerful message to the public, as well. It could reduce the stigma associated with taking such precautions in public spaces as people go about their daily routines in the coming months.

Effectively, healthy members could isolate themselves in the Capitol complex with select senior staff, the attending physicians, the Capitol Police, and other essential employees. Doing so is no different than states and communities around the country designating certain businesses and workers as essential. Unhealthy or otherwise symptomatic members could be quarantined elsewhere, hospitalized, or permitted to be absent, which is no different than how the House and Senate currently treat members with severe health issues. Accommodations could be made for members’ families, especially those with young children or those who must care for older relatives. In doing so, members of Congress would be no different than essential health care personnel reporting to work in the ICU every day. And the institution that is so central to self-government will endure.

They don’t need to live in their offices to do this. Members of Congress could adopt sensible ways to ensure their health and safety while they move between work and their Washington-based residences. Most Americans who have never stepped foot inside the Capitol, let alone worked there as we have, may not fully grasp how large and complex the institution is. The campus includes dozens of buildings, parking garages, a labyrinth of tunnels, cafeterias, and a power plant. There’s even a Dunkin Donuts. But the immense cost and effort that would go to securing it to endure this crisis may be far less than the price of representative democracy itself.

No solution is going to be perfect. But locking the Capitol down is temporary, and can easily be reversed. Adopting remote voting and remote “presence” procedures may set a dangerous precedent, even if it was intended to be temporary and for emergency purposes only. Future party leaders—with support from partisan media and cue-taking voters with little knowledge of complex parliamentary procedures and informal legislative, behind-the-scenes processes—could declare emergencies to trigger it. And they could do so for whatever “emergency” a simple majority of the chamber would support.

The Coronavirus pandemic will end. But the decisions we make will serve as precedents in future crises, both real and imagined. Allowing members of the House and Senate to work from home while a select few stand their posts reeks of defeatism in the face of danger. Though we do not wish any member, or any of their staff, any harm in the face of this horrific virus, Congress has confronted life and death situations many times in its history, and it can do so now.

The fate of democratic self-government requires that Americans can disagree with one another and that they commit to resolving those disagreements peacefully through their elected representatives in Congress. When such political conflict inevitably happens, members of Congress must be physically present to engage in the messy work of negotiation and compromise.