Congress Needs Remote Legislating Capabilities As Soon As Possible

By John Banks

Without remote legislation capabilities, there are plausible scenarios where Congress loses its ability to legislate, or even to function.

Imagine a scenario where the government is frozen in place — and no new emergency bills or measures can be passed. The risk of a non-functioning government, in the midst of the worst global crisis in generations, is now staring us in the face. A surprise event on Friday served to drive this point home.

If this happens at the wrong time, the result could be catastrophic.

First, some background: Pandemic-related events continue to unfold at hyperspeed, both in Washington, D.C., and all around the country.

On Friday, March 27, the U.S. House of Representatives passed the $2 trillion emergency relief bill that had passed in the Senate by unanimous vote. The President may have signed off on it by the time you read this.

The House vote was not without drama, thanks to the antics of a lone congressman who, single-handedly, forced multiple lawmakers to travel from their home districts back to Washington, D.C.

As the Washington Post reports:

“The legislation passed in dramatic fashion, approved on an overwhelming voice vote by lawmakers who’d been forced to return to Washington by a GOP colleague who had insisted on a quorum being present. Some lawmakers came from New York and other places where residents are supposed to be sheltering at home.

The procedural move by Rep. Thomas Massie (R-Ky.) drew bipartisan fury, including from President Trump who derided him over Twitter as a “grandstander” who should be tossed out of the Republican Party.

Massie, who opposes the legislation because it adds to the deficit, insisted over Twitter that he’d “sworn an oath to uphold the Constitution” and was simply upholding that oath. The Constitution specifies that a quorum — or majority of the House — should be present for legislative business, but that is rarely enforced.”

That last sentence is key.

The point here is not to cast judgment on the actions of a lone congressman (though it certainly seems cruel and petty to delay much-needed relief to literally millions of American workers and small businesses for even a single day).

Instead, the point is that, as the rules of Congress now stand, any lone legislator, for any reason, can stop a remote “voice vote” from occurring by raising procedural objections.

In this manner, a lone actor can force the issue by power of the written rules: Demonstrate a physical quorum via warm bodies showing up on the floor of the House, or vote not at all.

This is a huge danger because it implies that, in a scenario where D.C. is shut down or Capitol Hill is quarantined, the gears of Congress could be jammed entirely.

The danger was spelled out by Norman J. Ornstein and Thomas Mann, a constitutional resident scholar and senior research fellow, respectively, in a March 22 opinion piece titled “Members of Congress are facing a potential crisis of government. They were warned.”

Ornstein and Mann write:

Two members of Congress have already tested positive for COVID-19. Imagine if 250 members of the House or 55 members of the Senate contracted the disease and were hospitalized or quarantined. Or if members were to return home, but were unable to make it back to the Capitol because of travel restrictions.

Neither chamber would be able to meet the Constitution’s requirement for a quorum to do official business. The legislative branch of our government would cease to function at a critical moment.

Ornstein and Mann further note that “these are people who are disproportionately older, who reflexively shake hands and who work in close proximity to one another” — all obvious risks in the midst of a pandemic.

We can further note that, as of March 29, three congressional lawmakers have tested positive for COVID-19 (along with U.S. Sen. Rand Paul). Those numbers are likely to rise.

The good news is that the dire nature of the situation may force Congress to act after putting off remote legislation for years.

Because as Ornstein and Mann further note: “There are no provisions, constitutionally, legally, or within congressional rules, to enable Congress to meet remotely.”

This has been a visible problem at least since the 9/11 attacks. For nearly 20 years, attempts to enable remote legislation have been ignored or roadblocked.

Given that dozens of senior citizens roam the halls of Congress — and also fall into the high-risk group — this is no longer acceptable.

The very real possibility of Washington, D.C., itself going into shutdown — or the floors of the House and Senate becoming no-go zones, or multiple senators going into quarantine and disabling a floor vote — means the time to act on remote legislation capability is now, as in right now.