Why D.C. lawmakers are voting remotely during the pandemic

The U.S. Capitol Building. Photo by Samuel Corum/Getty Images.

WASHINGTON —U.S. House Republicans have a new line of attack against some Democrats — they charge they are failing to show up for work.

The criticism refers to 2020’s practice of proxy voting in the House, which enables lawmakers of either party to cast votes even when they are not at the Capitol. The emergency measure came in response to the COVID-19 pandemic and has been used in more than 70 votes the House has taken in recent months.

Democrats say proxy voting is entirely constitutional and needed to conduct business safely. The courts so far have sided with them, turning down a legal challenge from the GOP.

Here’s a quick look at how the procedure works, why the House started using it and how it’s become a flashpoint in the run-up to the November elections.

How does voting by proxy work in the U.S. House?

New House rules allow individual members of the House to designate another House member to vote in their place. To do so, the House member has to take two steps. First, they must file a letter with the House clerk’s office specifying who will get to vote on their behalf. Second, they have to provide instructions to their designee about how to vote on a specific piece of legislation or other question that comes before the U.S. House.

When did the House start allowing proxy voting?

The House adopted a rule change on May 15 that first permitted proxy voting. Proxy votes count for all House votes, including questions about legislation and procedure. They are also counted toward quorum calls that are used to determine whether the necessary number of lawmakers are present to conduct House business.

How long will the House use proxy voting?

Under the new House rules, Speaker Nancy Pelosi (D-Calif.) can extend the use of proxy voting by 45 days at a time, as long as the national emergency for the coronavirus is still in effect. She has extended the authorization several times. The current authorization expires on Oct. 2. But the rule that authorizes proxy voting expires at the end of the current session of Congress.

Lawmakers elected this November will have to gather at the Capitol in January. If they want to allow proxy voting after that, they would have to reauthorize it with another vote.

Has Congress used proxy voting before?

Both the House and Senate have used proxy voting for committee business, but Congress has never used proxy votes for floor votes before.

Why do Democrats say proxy voting is needed?

U.S. Rep. James McGovern, a Massachusetts Democrat who heads the Rules Committee that drafted the proxy voting regulations, said Congress had to adapt to the new realities presented by the coronavirus pandemic.

“Legislating nearly always involves physically gathering together in one place, but if nothing else the world has learned over these past few difficult months that people need to be able to do their work in novel ways in times of emergency. Congress is no exception,” he said when introducing the proposal in May.

“We have to use the tools at our disposal to adapt —if only on a temporary basis. Legislatures around the country and the world have come to that conclusion, and it is time for us to do the same,” he added.

Does the Senate use proxy votes?

The Senate, which is controlled by a Republican majority, has not authorized the use of proxy votes for floor votes, but it does allow them in committees.

Majority Leader Mitch McConnell, a Kentucky Republican, pushed back when U.S. Sen. Rand Paul, also a Kentucky Republican, said senators should be able to vote remotely if they were unable to convene at the Capitol.

In fact, McConnell also initially cast doubt on the House’s use of proxy votes. “There will be enormous constitutional questions around anything the House does if they fail to demonstrate a real quorum but plow ahead anyhow,” he warned during a floor speech.

Pelosi, though, defended the practice by noting that courts have given legislative leaders broad discretion in how to run their own chambers. “Leader McConnell’s comments are deliberately misleading, as proxy voting has long been used by Senate committees. Simply and sadly, he is trying to find every excuse not to meet the needs of the American people,” she said.

Why are Republicans upset about proxy votes?

House Republican Leader Kevin McCarthy of California and other Republican lawmakers have objected to the changes allowing for proxy votes. In fact, every Republican who voted on the rules voted against them.

While 68 Democratic members have used proxy votes, only one Republican has. The lone Republican to use it, U.S. Rep. Francis Rooney of Florida, is retiring.

McCarthy argues that Congress has met in person in times of crisis before, and should continue to do so now. He has questioned why lawmakers have given their votes to members from other states and asked whether legislators who don’t make it to Washington should continue to collect their paychecks.

“Congress can write its own rules. They just can’t write unconstitutional rules,” McCarthy said, arguing that the Constitution requires in-person meetings. “If you take [Democrats] at their word, they could write a rule that Republicans only get half a vote, that women cannot vote… A health crisis is not a free-for-all to restructure our government.”

Can Republicans block the rules?

McCarthy and 20 other Republican legislators filed a lawsuit in May to try to get the proxy votes declared unconstitutional, but a federal judge dismissed that lawsuit in early August.

The Republicans argued that proxy voting diluted the votes of other members of Congress, which courts have previously said is impermissible. Courts have blocked Democrats, for example, from giving delegates from American territories and the District of Columbia full votes when the House met as a committee of the whole. Doing so, they noted, would reduce the power of elected members of the House from 1/435 of the votes in the House to 1/440.

But U.S. District Judge Rudolph Contreras of the U.S. District Court for the District of Columbia said that rationale didn’t necessarily apply to diluting the votes of House members who are physically present at the Capitol.

The GOP lawmakers also attacked the proxy voting arrangement for violating parts of the U.S. Constitution that say Congress “shall assemble” and that reference meetings and attendance in those sessions.

Contreras, though, said House leaders were protected from civil lawsuits like the one the Republican lawmakers brought because of a different part of the Constitution, the so-called “Speech and Debate” clause.

That clause provides immunity to congressional leaders for all legislative acts, Contreras wrote. “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,” he wrote.

Republicans have appealed the ruling. Arguments are expected in October.