Congress

Committee had broken voting rules for years, gets scolding

Lawmakers were allowed to add to tally after voting closed in the House Education and Labor Committee

House Education and Labor Chairman Robert C. Scott, D-Va., and ranking member Virginia Foxx, R-N.C., are seen during a business meeting in the Rayburn Building on Jan. 29. (Tom Williams/CQ Roll Call file photo)

Updated 10:43 p.m. | The House Education and Labor Committee was forced to change a longtime voting practice after the House parliamentarian said what the panel was doing violated House rules.

Since roughly 2007 — extending to when both Republicans and Democrats controlled the committee — it had allowed members who missed votes to add their names to markup tallies after the votes had concluded, as long as the added votes did not change the outcome.

At a committee markup on Tuesday, Chairman Robert C. Scott announced that the practice would change.

“This has been a courtesy extended to members on both sides of the aisle, regardless of who’s been in the majority, and a practice that, to my understanding, has been going on for years,” the Virginia Democrat said.

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North Carolina Republican Rep. Virginia Foxx, the committee’s former chairwoman and its current ranking member, nodded at his side.

“Unfortunately, the committee staff was instructed by the parliamentarian’s office that they were not aware of the practice and — I don’t know where they’ve been — that it cannot be permitted and the practice must cease immediately,” Scott said. “Therefore, the committee is altering the practice to one that is permitted by the parliamentarian’s office.”

The parliamentarian’s office declined comment.

The change in the committee’s vote recording practice came after questions were raised by CQ Roll Call. It’s unclear whether other committees record votes this way.

“It started primarily as a tool to ensure that the committee didn’t have to hold votes open for a long period of time while waiting for the members to arrive to the committee from other committee markups, meetings, etc.,” said a former senior committee staffer who declined to comment on the record due to the sensitive nature of the subject.

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According to the staffer, the practice began when former Democratic Rep. George Miller of California was chairing the committee from 2007 to 2011. It continued under Minnesota Rep. John Kline, who chaired the panel from 2011 to 2017, and then under Foxx, who chaired it from 2017 to 2019. Initially, the committee would hold open votes for 15 to 20 minutes to allow members to trickle in and record their positions, but finally decided to allow absent members to vote as long as the final outcome did not change.

In the days following a Feb. 26 markup of two bills, HR 7 and HR 865, CQ Roll Call determined that the vote tallies announced during the markup and the tally sheets posted to the committee’s website did not match. For example, Reps. Ron Wright of Texas, Haley Stevens of Michigan, and Mark DeSaulnier of California were not present at certain votes but were included in committee tally sheets.

During that markup, Scott had asked for unanimous consent for members to add their names to recorded votes they missed by notifying the clerk at the end of the markup, as long as the additions did not change the final tally.

In subsequent weeks, the committee pulled the tally sheets from the website and replaced them with new ones. These new sheets indicated with an asterisk that those members would have voted “yea” or “nay” had they been present.

In future markups, Scott said on Tuesday, members can register their positions for missed votes with the clerk, but their votes will not be counted toward final tallies. “Apparently the parliamentarians were watching the markup and decided to inflict this on us,” he said.

The parliamentarian’s direction changes a longstanding voting practice designed to accommodate the busy schedules of committee members, who often must run back and forth between multiple hearings and meetings and want to ensure their positions are recorded when the committee votes.

“Coming in after a vote is over to add your name isn’t how the process is designed to work,” said Molly Reynolds, a senior fellow in Governance Studies at the Brookings Institution. “But to the extent that voting in committee or otherwise is meant to give members a chance to register their position on something for the record, what Scott did accomplishes that.”

Others take issue with the practice because it could resemble proxy voting — permitting members to vote in each other’s stead — which is prohibited by House rules, though it is permitted in the Senate and occurs frequently during Senate committee markups.

“No matter how well-intentioned, the practice of allowing members to be recorded after a vote is closed — even if the result is unchanged — is problematic and undermines public confidence in the result,” said Hugh Halpern, former floor director for Speaker Paul D. Ryan and former staff director of the House Rules Committee. “We got rid of proxy voting in the ’90s for a reason — it wasn’t transparent or fair. If members want to be recorded on a vote, they need to be in the room, just as Jefferson intended.”

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