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An Absentee Quorum

Speaker of the United States House of Representatives Nancy Pelosi.
House Speaker Nancy Pelosi. Photo by Gage Skidmore.

In normal times, if anyone can remember those, Republicans would cheer a decision by House Speaker Nancy Pelosi and her Democratic majority to stay away from the nation’s capital.

But times are not normal, and Republicans are not cheering Pelosi’s decision to institute pandemic-fighting proxy voting in the “people’s house.”

I tend to be sympathetic to Republican legislative positions, but not this time. GOP lawmakers have picked a fight they are unlikely to win, for purposes that are unclear and benefits that are hard to discern.

Lawmakers in both houses have come together to pass four financial relief bills and a smattering of other legislation since COVID-19 triggered a near-nationwide lockdown in March. The GOP-controlled Senate returned to Washington early last month, over the objections of Democrats, to resume the confirmation of Trump administration judicial appointees and tend to other business. But most House members have stayed away, other than for brief forays back to the Capitol to gather the quorum needed to pass those relief packages.

This situation prompted Pelosi and other Democrats to institute an unprecedented – for Congress, that is – proxy voting procedure last month. Now, a single representative can cast votes on behalf of up to 10 colleagues with their prior authorization. The constitutionally required quorum is virtual and nominal, not physical.

House Republicans were incensed, or at least appeared to be. A group of them led by Minority Leader Kevin McCarthy filed suit in federal district court to abort the proceedings. So far, however, District Judge Rudolph Contreras has not blocked the House from proceeding under its proxy rules. Contreras has scheduled a hearing – in person or by telephone, depending on the pandemic – for July 24.

I doubt Contreras will intervene in the House dispute, and my doubt has nothing to do with his having been appointed by former President Barack Obama.

In the first place, it is highly questionable that individual members of the House, even the leadership of the minority party, have standing to sue to block the rules. Each Republican representative has an equal vote with each Democratic representative on the chamber’s rules and procedures. It just happens that, at the moment, there are more Democrats than Republicans. This does not mean the Republican representatives have somehow suffered an injury for which they can seek redress in the courts. Their redress will be available at the ballot box in November.

Further, the courts have historically given each house of Congress a wide berth to set its own rules. This is critical to the separation of powers, a principle that Republicans generally stress. If the proxy voting question ever makes it into the courts, it is likely destined for the Supreme Court – which, itself, is meeting virtually during the pandemic. While each justice still casts his or her own vote on decisions, there is no requirement beyond custom that they be physically present in the same place. The executive branch, too, can be operated by a president at locations far removed from 1600 Pennsylvania Avenue. The GOP representatives who filed suit occupy the awkward position of arguing that the Constitution imposes a procedural burden on their own branch that it does not impose on the others.

They seek to do this by contending that since Congress has never voted by proxy, notwithstanding war, weather or pestilence, the Constitution never authorized voting by proxy. The Constitution never authorized the creation of an Air Force or a Space Force either. Yet that does not seem to be an obstacle to the establishment of those branches of the military (or to the new Netflix comedy series featuring Steve Carell). Their complaint cites the many references to assembling legislators for meeting and voting that the framers presumably meant to happen in person, back in the era when long-distance travel was done by foot, horseback, stagecoach or sail. Democrats will doubtless reply that although the Founding Fathers did not anticipate Zoom, they did not preclude its application either.

The House constitutionally needs a quorum of its members to act. It also needs to record the “yeas and nays” of their votes (although it already effectively skips that requirement when it chooses, under rules of unanimous consent). If a case actually does make it into court – probably brought by a party challenging a law passed with proxy votes – the courts will hold that it is up to the House to decide how it wants to count its members and their yeas and nays.

Not long ago, Republicans were taking the opposite position. When the Senate flipped to GOP control in Obama’s final two years as president, the president declared that it was in recess when it was holding mere pro-forma sessions. This entitled him to install appointees who otherwise would have required Senate confirmation. His argument was specious and his appointments illegal. Ultimately, the courts rejected them.

Now the party of Lincoln is essentially arguing that a constitutional amendment is required if the House wants to allow one of its members to submit an authorized vote on behalf of another. Many state legislatures already permit such procedures. So do all sorts of other bodies, including corporations with millions of shareholders. That’s the “proxy” in those proxy statements you might receive in the mail.

Note to House GOP members: Millions of Americans are discovering the benefits of safely working from home. Feel free to join us.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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