A functioning national legislature has never been more necessary. America’s executive branch has proved itself unwilling or unable to mount a timely or effective response to an unprecedented health crisis that has already killed more than 30,000 Americans, infected at least half a million, and left millions more without jobs. The most important remedy available to Americans—removing the failed government by free elections, now just months away—is equally in jeopardy, absent critical increases in funding for both the federal post office and state election authorities to support voting by mail. And yet, Congress is not functioning at all. It has announced its determination to remain in recess until May 4 if not longer, at least 53 of its members are already infected or in isolation, and it has no credible plan to operate remotely. The prospect that Congress will be incapable of fulfilling its most basic duty to “provide for the common defense” is today frighteningly real.
Congress’s failure to have plans in place for the pandemic crisis America now faces is not excusable. The calamities of recent decades, including the attacks of September 11, 2001, have produced multiple calls for more rigorous continuity-of-operations plans for Congress, and several detailed proposals for how to carry on in an emergency. Multiple other countries and at least a dozen U.S. state legislatures have already implemented remote-voting procedures during the pandemic. Even the Supreme Court has embraced remote oral arguments for its upcoming cases. Indeed, Congress itself recessed last month with resolutions related to remote-voting capabilities pending in both the House and the Senate.
Yet a vague belief seems to persist among some on Capitol Hill that remote voting raises “serious constitutional concerns,” or, more specifically, that the Constitution requires members’ physical presence to do the nation’s business. This is false. There is no such constitutional requirement.
As with much else in the Constitution, the description the text provides of how Congress is to fulfill its “duties” once its members have been elected is relatively brief. Article I, Section 5 provides that there must be “a Quorum to do business,” which the Constitution defines as “a Majority” of each House. Each house must keep a “Journal of its Proceedings,” which must be published “from time to time,” and which may, if a sufficient number of members desire, reflect how every member voted “on any question.” Notably, neither chamber can adjourn for more than three days, or move the session to some other place, without the consent of the other chamber, lest a single chamber be able to thwart any congressional action by simply absenting itself indefinitely.
The Framers undoubtedly assumed that the legislature would do its work while assembled in some physical location. In 1787, they scarcely could have imagined any other way of proceeding. Various other constitutional provisions thus refer to Congress as “meeting” (Article I, Section 4) or “assembling” (Article I, Section 3), and one even provides a mechanism by which members can compel “the Attendance of absent Members,” presumably meaning those members not otherwise present where Congress is meeting.
None of the clauses in which those terms appear is actually about how Congress casts or counts its votes. Indeed, neither the document itself nor any Supreme Court decision defines what counts as “attendance” or “assembling,” much less how such “attendance” may be taken, or such “assemblage” may be accomplished. What the Constitution does instead—as the courts have repeatedly recognized—is leave it up to each house of Congress to “determine the Rules of its Proceedings,” as Article I, Section 5 specifies. As the Supreme Court has explained, as long as there is a “reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained,” the content of those rules is “beyond the challenge of any other body or tribunal.”
This constitutional flexibility has enabled Congress to embrace the various informal solutions that it has long used to “do business,” such as counting on members to give “unanimous consent” to a vote even if something less than a majority of members is present. These tools, which some may hope will suffice in current circumstances, are themselves hardly a model of democracy. When working as intended, votes by unanimous consent, for example, leave it up to a minority of Congress’s members, often the leadership, to take the place of an actual expression of majority will.
More to the present point, such shortcuts don’t always work as intended. The $2 trillion stimulus bill Congress passed just before fleeing Washington at the end of March was very nearly derailed by a single member of the House, Representative Thomas Massie, a Republican from Kentucky, who, notwithstanding clear majority support for the emergency bill, refused to consent to a vote absent a demonstration that a majority of members were “present” as that term is defined under current House rules. This left House leaders an impossible choice: surrender the will of the majority to the demands of a single man, or insist, as they did, that members jeopardize their own health (and thus their ability to effectively represent their constituents going forward) by defying public-health restrictions to travel to Washington and meet.
The constitutional questions get harder from here. Congress today confronts a president who has consistently worked to disable congressional checks on executive power—for instance, by insisting that the executive need not submit to either congressional or inspector-general oversight of how the government spends the $2 trillion stimulus Congress just approved. Left wholly unsupervised by the people’s representatives, Donald Trump can be counted on to create grave constitutional threats of his own, not least the threat to adjourn Congress entirely. Such constitutional risks dwarf the remote prospect that a court would, under present circumstances, challenge a decision by the House Rules Committee to, for example, recognize members as “present” as long as they are somehow able to verify their identity and establish a secure telephonic connection.
Today, with the number of coronavirus deaths already dwarfing the losses suffered on September 11 and in the ensuing wars in Iraq and Afghanistan combined, Congress has no firm plans for reconvening, and no rules in place to enable remote operation. It is past time for Congress to amend its rules to make that possible. The legislature may have no intention of formally suspending its operations. But it is in danger of functionally accomplishing exactly that.