Remote voting, hearing changes for House may come too late for pandemic use

McGovern to present options for remote work on Thursday, Pelosi says

House Majority Leader Steny Hoyer, D-Md., left, Rep. Bobby Scott, D-Va., and Rep. Peter DeFazio, D-Ore., look at their marked spots on the floor in an effort to follow social distancing measures at a bill enrollment ceremony for the coronavirus relief act after it passed the House in March.  Hoyer and other leaders are exploring options for remote voting. (Caroline Brehman/CQ Roll Call)
House Majority Leader Steny Hoyer, D-Md., left, Rep. Bobby Scott, D-Va., and Rep. Peter DeFazio, D-Ore., look at their marked spots on the floor in an effort to follow social distancing measures at a bill enrollment ceremony for the coronavirus relief act after it passed the House in March. Hoyer and other leaders are exploring options for remote voting. (Caroline Brehman/CQ Roll Call)
Posted April 15, 2020 at 3:15pm

House Democratic leaders appear to be accelerating the consideration of options for remote voting and hearings, but any decisions on how to proceed may still come too late for use during the coronavirus pandemic.

“We can’t do any of them right now because the rules will have to be modified,” House Majority Leader Steny H. Hoyer told reporters on a conference call Wednesday. “There will have to be agreement between the parties.”

House rules do not allow for the chamber to vote remotely or for committees to conduct formal hearings or business meetings without a physical presence. A rules change would require lawmakers to be in Washington to adopt a resolution for remote work procedures — unless there was unanimous consent among members, which is unlikely.

The House is not expected to return earlier than May 4 except to pass emergency legislation related to coronavirus relief if the parties can reach agreement on additional funding. There’s an effort under way to clear legislation as soon as this week to provide more money for a popular small business forgivable loan program, but the parties have not yet agreed whether funding Democrats are demanding for states, hospitals and expanding testing capabilities should be included or wait for another bill.

Even if a vote on that measure does occur this week or next, there is no expectation that the House would be ready to consider any rules changes to allow for remote work at that time.

While there’s broad, bipartisan interest in remote voting, Speaker Nancy Pelosi and Minority Leader Kevin McCarthy have been skeptical about the ability and practicality of quickly implementing a virtual voting system.

“People think we can do Congress by Zoom,” Pelosi said Tuesday on MSNBC. “Zoom is a Chinese entity that we’ve been told not to even trust the security of.  So there are challenges; it’s not as easy as you would think.” 

The California Democrat said she has tasked House Rules Chairman Jim McGovern, D-Mass., and House Administration Chairwoman Zoe Lofgren, D-Calif., with presenting options in terms of “what is allowed under the Constitution, under the rules of the House, what is possible technologically.”

McGovern will be presenting a report on some of the options on Thursday, Pelosi said. The Massachusetts Democrat issued a written report last month, but on Thursday he is just planning to outline options on a Democratic Caucus conference call scheduled for 2 p.m.

Interim plans

As broader discussions about remote work options continue, Pelosi said she expects the House will have enough members to come to Washington to establish a quorum needed to pass the next coronavirus relief legislation.

Her comments seemed to be an acknowledgement that Kentucky GOP Rep. Thomas Massie would object to a unanimous consent or voice vote, the only voting options under House rules that would not require members to return to Washington.

Massie has urged House leaders to adopt remote voting but said absent that, he will attempt to force a recorded vote again, like he did on March 27 when the House passed a $2.3 trillion economic relief package. The measure was passed by voice vote after Massie’s effort to force a recorded vote — citing a lack of a quorum — failed because leadership had gathered a majority of members in the chamber and galleries overlooking it.

Having members sit in the galleries for the vote in an effort to adhere to social distancing guidelines is something that has never been done previously in House history, according to the parliamentarian, Hoyer said.

When the House does return to Washington either to pass emergency legislation or to resume normal legislative business, Hoyer said accommodations will be made to ensure the health and safety of members, staff and others who work in the Capitol complex.

“I doubt the Capitol will be fully open, whether visitors will be able to come in,” the Maryland Democrat said.

Constitutional concerns

One of Pelosi’s concerns about adopting remote voting, especially in the near term, is that legislation passed under such a system could be challenged as unconstitutional. She doesn’t want any coronavirus relief to be held up because of a court challenge.

Article I, Section 5 of the Constitution requires a quorum, defined as a majority of members in each chamber, be “present” to pass legislation. An 1892 Supreme Court decision in United States v. Ballin approved a change to the House’s quorum requirements and said that the Constitution “has prescribed no method for determining one is present.”

A Congressional Research Service Report outlining constitutional questions of remote voting released April 14 says that if either  chamber established a system that allows lawmakers to participate remotely, “it would appear arguable that both they and the body to which they belong are ‘in a position to do business,’” another standard set by the Ballin case.

CRS also acknowledges the chambers themselves determine a quorum and that changes to House or Senate rules may provide flexibility to establish that those absent but voting or participating remotely may be counted toward a quorum.

“A rule permitting remote voting in the time of a pandemic could be viewed as responding to two articulated fears of the Framers: it would arguably ensure that the majority quorum requirement not lead to such ‘inconvenience’ as to severely undermine the national legislature’s ability to operate; and remote voting might protect members in far-off jurisdictions (and the interests of the regions they represent), who in the time of COVID-19 may be more disadvantaged by difficulties of travel then those within close proximity to Washington, D.C. who can return to the Capitol more easily," the CRS report states.

Other challenges

Hoyer cited other challenges to adopting remote voting like needing to build bipartisan consensus for any path forward.

For example, Hoyer noted that he’s suggested FaceTime as a technology the House could explore for remote voting since it’s already one that billions of people use and would allow members to be seen and heard from afar as they state their votes.

“This was not broadly supported I might say,” he said.

Hoyer said other technologies, including Zoom and platforms from Microsoft and Cisco, were being explored. He acknowledged Zoom may not be most secure, “but it is a technology a lot of businesses are using.”

While security is an issue in terms of the system not working properly, Hoyer said he doesn’t see it as an issue in terms of bad actors being able to change members’ votes if they used a technology that would allow them to state their positions on camera.

“When we vote, when we debate, we do so transparently. It’s covered by C-SPAN. So it’s not a question of being secure. It’s the public’s business being done publicly,” he said.

The bigger task is finding technology solutions that can accommodate members debating legislation and offering amendments and motions, Hoyer said.

“There really is no substitute for coming together, sitting together, debating and talking to one another,” he said. “However, if that’s not possible we need to make sure there is an alternative and that’s what we’re working on.”

Hoyer said the Rules and House Administration committees are also looking at ways to do distance committee hearings.

In the interim, committees are conducting oversight of the administration by asking questions via letters and phone calls and having more informal discussions with witnesses since the rules do not allow for remote hearings.

“We are looking at this very carefully to see how we can do it,” he said. “But the idea is of course to get back into session, have hearings , call witnesses.”

Katherine Tully-McManus and Jennifer Shutt contributed to this report.