The coronavirus pandemic has made it unsafe and unwise for members of Congress to continue to meet in the U.S. Capitol. Many have already been exposed to the virus and, given the composition of Congress, many senators (average age: 63) and representatives (average age: 58) are among those most likely to become grievously ill. If our national legislature is to play its constitutional role as a check on the executive branch, how can it continue?
The United States Congress has historically met in three different cities: New York City for its first sixteen months under the new Constitution; Philadelphia for the next decade; and Washington, D.C. since 1800. In an emergency, the House Speaker can convene the House elsewhere if the public interest requires it, and Senate leaders have similar powers. Congressional committees routinely meet outside of Washington in a tradition called “field hearings,” which go back at least as far back as the Civil War and are otherwise indistinguishable from normal proceedings except that they take place away from Capitol Hill. The problem today is not where Congress and its committees meet, however, but whether they can meet in person at all.
Unlike, say, the British burning Washington, D.C. or the possibility of a nuclear attack on the capital that led to the creation of a secret congressional bunker in West Virginia, the coronavirus threat arises from the presence in close proximity of other people. The Capitol complex is a workplace for thousands of staff in personal, committee, leadership, and support offices; in addition to thousands of support agency staff, advocates, lobbyists, the press, and millions of guests that pass through its doors each year. In a pandemic, this is a very unhealthy environment. Although the public has now been locked out of the Capitol, as of this writing many members of Congress, legislative staff, custodians, police, and press go there on a regular basis.
In these circumstances, the House and Senate are faced with three options.
First, they can do nothing, adopting an attitude of either wait and see or this is all overblown. That is the astonishing path congressional leadership is on now. While many members of Congress have called for remote voting—more than 50 joined a letter by Rep. Katie Porter last week and legislation was introduced in the Senate by Sens. Rob Portman and Dick Durbin—Senate Majority Leader Mitch McConnell and House Speaker Nancy Pelosi remain opposed. That could leave a dangerous power vacuum during a presidentially declared national emergency in which Congress’s ability to pass laws, conduct oversight, and appropriate funds are of vital importance.
Second, Congress may choose to set an example. In this scenario, it will continue working as it is, perhaps in part out of a misguided belief that that’s what Americans need to do in this crisis. But most Americans should be staying at home—unless they are first responders or otherwise employed in critically important professions. Members of Congress meeting in the Capitol during a pandemic are not like King George VI and Queen Elizabeth during the Blitz, setting a defiant example by keeping calm and carrying on. Instead, they give the impression of foolhardiness: Sticking with an in-person approach will inexorably lead to the incapacitation (or worse) of many members of Congress, and ultimately a moribund legislative body. We have already seen Sen. Rand Paul fall ill, several of his Senate colleagues are quarantined, and an increasing number of representatives and staff have been exposed. The inability of quarantined lawmakers to carry out their constitutional roles may result in swings in power—as the number of members who constitute a majority could see-saw between the parties—and ultimately the discontinuation of the legislative function.
The final path: Congress can continue to exercise its oversight and legislative powers, but, on an emergency basis, allow members and staff to work remotely. Each chamber would move to convene online, with committee and floor deliberations taking place electronically. This could work, but it would be bumpy at first. Many organizations are run this way, but Congress is not a business, and legislating is a relationship-driven process. In addition, Congress has underinvested in its technology, so it lacks many of the necessary tools. However, this would save lives, set an example for what we all should be doing, and allow Congress to continue. Indeed, if the worst-case estimates of the pandemic are true, it may be unsafe to meet in person for many months, a year, or more.
To do this, the House and Senate would each need to change how they operate.
First, the House and Senate would each need to amend their rules to allow legislators to be deemed present on the floor and in committee so long as they are present by electronic means, such as by videoconference. This would satisfy the constitutional requirement that “a Majority of each [house] shall constitute a Quorum to do Business.” The U.S. Supreme Court held in 1892 that
all that the Constitution requires is the presence of a majority. . . . The Constitution has prescribed no method of making this determination, and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact.
A change in House or Senate rules would satisfy this standard.
Second, the House and Senate would also have to change their respective rules to allow a new method of counting votes cast by members via electronic means. This does not mean electronic voting. Rather, with a videoconference, it is easy to see whether a member is present and to hear them as they say aye or nay and cast their vote. Committees and the chamber floors could make use of roll call votes so each member has the opportunity to be seen and heard casting their vote. The House and Senate could make use of unanimous consent, where an opportunity is afforded for objection, to save time. This would address questions about how to confirm that a vote is made by a particular member of Congress.
Third, the previous two rules should be in effect only for a limited time and only in an emergency. Accordingly, the Speaker of the House or the Majority Leader of the Senate (or their successors) should be the ones to invoke an emergency remote session. After they make that determination, the House or Senate would vote remotely on whether to affirm that determination. It would be valid for 30 calendar days, and then the chamber would have to vote to extend it for another 30 days.
Fourth, the rules would have to provide that all official proceedings are live-streamed and recorded. This would satisfy the open-hearing requirements written into each house’s rules and allow for press coverage. It also would act as a backstop so that anyone can see what was being debated and how each member voted.
Finally, the Committee on House Administration and the Senate Rules Committee should be empowered to make appropriate regulations and establish appropriate methods to address other technical matters concerning remote proceedings. For example, they could be empowered to establish methods and guidelines for cosponsoring bills, for introducing legislation, for how committees swear in witnesses and take testimony remotely, and so on. They also could be empowered to purchase and provide equipment and services to all members of the chamber, appropriate staff, and witnesses so that they could participate in the proceedings remotely.
Altogether, this is a big change in how Congress operates. But Congress has made these kinds of big changes before. They’ve changed what constitutes a quorum, they’ve allowed and then disallowed proxy voting, they’ve dealt with sitting members who committed treason and worked for the Confederacy, and they’ve dealt with the burning of Washington, D.C.
Remote voting and remote deliberations are a necessary stopgap measure to ensure that the Congress can continue doing the work it needs to do. They must pass a supplemental spending bill to marshal funds to fight this crisis. They must pass their regular spending bills by the end of September or the government shuts down. They must conduct oversight of the executive branch response to ensure that it is effective and constitutional. This is how Congress keeps the lights on while staying safe.