COVID-19 has had an impact on almost every facet of American life. Congress has not been spared. Largely because the risk of transmission of the disease is highest in concentrated groups, there have been calls to alter the internal operation of the two chambers to introduce “social distancing” into the legislative process. One high-profile suggestion—intended to limit the risks associated with Members’ physical presence on the House or Senate floor and travel back and forth from their districts—is to alter House or Senate rules to allow floor votes to be cast remotely, i.e. with Members being virtually rather than physically present.
The prospect of remote voting has given rise to many issues and concerns, ranging from its impact on the deliberative nature of Congress to the technological and security hurdles inherent in its implementation. But there are also constitutional questions. A primary challenge, which both the Supreme Court and the Department of Justice have faced in various contexts, is determining how technological advancements that the Framers could not have foreseen when drafting the Constitution should be treated. Remote voting presents such an unforeseen question, and perhaps one not amenable to a “mechanical interpretation” in the face of “advancing technology.” As the House Rules Committee recently put it, “remote voting is an untested principle” that “[i]f challenged … would be a novel question for a court” with “no guarantee of a favorable ruling affirming its constitutionality.”
The Constitution gives the House and Senate discretion to set their own internal rules, including for voting, but not in a way that conflicts with other constitutional principles. Thus, any exercise of the rulemaking power that would allow Members to vote or participate remotely must take into account constitutional requirements, including Article I, §5’s requirement that a quorum of a majority of Members is required to trigger each chamber’s power to act.
Setting Chamber Rules
Rather than setting specific rules for the internal operations of each house, the Constitution provides each chamber with wide discretion to “determine the Rules of its Proceedings” (the Rulemaking power). The discretion embodied in this provision can be seen not only in the fundamentally different procedures by which the House and Senate operate, but also in each chamber’s approach to voting on the floor. The House, for example, allows electronic in-person voting, while the Senate does not.
“In the absence of express constitutional direction,” the federal courts have typically deferred to the “reasonable procedures Congress has ordained for its internal business.” The Supreme Court has said that “all matters of method are open to the determination” of the House and Senate in adopting internal procedures. But this discretion is not unlimited. While courts have generally been reluctant to review internal House and Senate rules, they have nonetheless suggested that neither chamber may “by its rules ignore constitutional restraints or violate fundamental rights.” The pertinent question then is whether a chamber rule allowing Members to vote remotely would conflict with a provision of the Constitution.
Remote Voting in Constitutional Context
The text of the Constitution clearly envisions the House and Senate meeting and voting in person. As noted by the House Rules Committee, various provisions explicitly or implicitly contemplate the physical gathering of Congress. Article I, § 4 and the Twentieth Amendment require that Congress “shall assemble” once a year; Article I, § 5 authorizes a minority of Members to “compel the Attendance of absent Members” and states that neither house “shall, without the consent of the other, adjourn…to any other place than that which the two Houses shall be sitting”; and Article I, § 6 makes Members immune from arrest “during their Attendance at the Session of their respective Houses,” and provides that Members “shall not be questioned in any other place…for any speech or debate in either House.” (Emphasis added in all quotes.)
But while these provisions may support a conclusion that the Framers envisioned a physical meeting of Congress (as it was of course the only possible method of meeting at the time), none would appear to clearly bar remote voting. Of the group, only the Twentieth Amendment and the clause relating to consent for adjournments (the Adjournments Clause) appear to impose any requirements on Congress. Congress has assembled “at least once” this year, satisfying the Twentieth Amendment. As to the Adjournments Clause, “any other place” has historically been construed by the House to be a location outside of the District of Columbia. It is not clear that implementing remote voting would require either the House or the Senate to adjourn to another “place.” or even how one would define the proper “place” of a virtual session. But if the Clause is triggered, Congress can satisfy the provision—as it has done in the past— by adopting a resolution authorizing each chamber to convene outside of Washington D.C. (Notably as well, a federal statute grants the President authority to reconvene Congress “at such other place as he may judge proper” if he determines that “the prevalence of contagious sickness” or “other circumstances” make it “hazardous to the lives or health of the members to meet at the seat of Government.”)
There is, however, one constitutional provision that has been thought by some to present a possible barrier to remote voting: the quorum requirement.
The Quorum Requirement
Perhaps the strongest argument against the constitutionality of remote voting is Article I, § 5’s requirement that a “quorum” of a majority of Members is necessary for either house “to do Business.” The quorum principle—that a certain number of members of a governing body be present at a given meeting for the body to exercise its powers—was well established in parliamentary practice by the time of the Constitutional Convention. The debate then was not over whether to have a quorum requirement, but instead where to set it. Some felt a majority requirement was too high and would result in “great delay” and “great inconvenience” if either house consistently struggled to obtain a quorum. But others, including George Mason, believed that setting the quorum requirement any lower would be “dangerous to the distant parts to allow a small number of members of the two Houses to make laws,” as the “Central States could always take care to be on the Spot and by meeting earlier than the distant ones….” The Framers, apparently animated by an understanding that too high a quorum requirement could debilitate Congress, but that too low a requirement would risk undue influence by the states in close proximity to the capital, set the quorum requirements at a majority of Members.
(For the rest, see the PDF linked below.)
“Constitutional Considerations of Remote Voting In Congress,” CRS Legal Sidebar, LSB10447, April 14, 2020 (7-page PDF)
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