Court nixes challenge to proxy voting in Congress

A federal court dismissed a lawsuit brought by House Republicans seeking to halt the use of proxy voting during the coronavirus pandemic, saying the actions "unquestionably" fall under Congress' authority under the Speech and Debate clause of the U.S. Constitution.

After months of internal debate about how best to run Congress under the shadow of COVID-19, the House voted along party lines in May to implement a temporary rules change allowing a single member to represent and vote on behalf of up to ten other members, each of whom provides written permission and instructions on every vote. It also took some initial steps towards moving congressional operations online, allowing committees to hold hearings and markup legislation through certain videoconferencing platforms.

Those rules were quickly challenged in court, with House Republicans arguing that the Constitution requires any legislation be passed with a quorum of members physically present at the Capitol. Further, they argued that allowing proxy votes "dilutes" the voting power of individual members and disproportionately enhances the voting power of proxy members.

The District of Columbia District Court ruled Aug. 6 that the rules around proxy voting are part of the "legislative machinery" that governs how Congress carries out such speech and debate. Legal precedent demonstrates that the House "unquestionably has the authority, under the Constitution, to 'determine the Rules of its Proceedings,'" said U.S. District Judge Rudolph Contreras.

"The Court can conceive of few other actions, besides actually debating, speaking, or voting, that could more accurately be described as 'legislative' than the regulation of how votes may be cast," Contreras wrote in his opinion.

Modernizing Congress

House Democrats may also use favorable legal rulings to pursue other reforms, such as setting up a system to allow members to cast their votes remotely from their home districts. House Administration Committee Chair Zoe Lofgren (D-Calif.) has been charged with studying secure technology options that could be used to facilitate virtual voting by members in the future.

In a hearing on the topic last month, Lofgren noted that nearly 60 members of Congress have either publicly disclosed that they tested positive for coronavirus, had to self-quarantine or came into contact with someone else who had tested positive, including 22 members at the same time. Congress and the American public, she argued, cannot afford a mass of infections that grinds legislative activity to a halt and puts members and staff at risk.

"It is not unusual for any institution steeped in history and precedent to resist technological change. That was the case for the House when it came to advances like electronic voting and televising our proceedings -- both of which we take for granted today," said Lofgren during her opening statement. "But we can't afford that attitude today in the face of the COVID crisis."

Last year, the House formed a new select committee focused on modernizing congressional operations with a particular focus on implementing new technologies. In July, the committee released a dozen recommendations for ensuring continuity of Congress in the face of the COVID-19 pandemic and future crises.

The recommendations include a secure document management system, ensuring that staff "have the most up-to-date technology and equipment" to function during an emergency, maintenance plans to ensure functionality of remote and telework tech, bipartisan telework policies and technology plans and continuity, telework and cybersecurity trainings for all new members of Congress.