Proxy Voting and the Constitution
Seventy-two members of the House of Representatives made history this week when they voted in absentia to approve the Uyghur Human Rights Policy Act of 2020 (S. 3744). According to reports, they were the first members to have their votes counted even though they were not physically present in the House chamber to cast them. In the past, House rules required members to be physically present in a committee or on the floor to vote. But the House changed those rules recently in response to the COVID-19 pandemic. Its new rules allow absent members to vote by proxy in committee and on the floor during a designated public health emergency. While the House has previously allowed proxy voting in committees, the decision to allow absent members to vote on the floor in absentia is unprecedented. And it appears to violate the spirit, if not the letter, of the Constitution.
What Is Proxy Voting?
An absent member votes by proxy by authorizing a colleague who is present to vote on his or her behalf. The House has never before allowed absent members to vote by proxy on the floor. It has allowed the practice in committee deliberations periodically. But in those instances, it almost always placed limits on the practice. For example, the House approved proxy voting when official business or an unforeseen circumstance caused a member to miss an in-person vote. It also required absent members to give their physically present colleagues written instructions on how they should cast their votes. The House has permitted general proxies (i.e., those without instructions) on procedural votes. Committees could not report legislation unless a majority (i.e., a quorum) of its members was physically present. This requirement underscores the limited nature of proxy voting in earlier periods. And the House rules have included a blanket prohibition on proxy voting- both in committee and on the floor- since the 104th Congress.
Proxy Voting In A Pandemic
In response to the COVID-19 pandemic, the House has adopted new rules to end its decades-long ban on proxy voting. Specifically, members approved a resolution (H. Res. 965) on May 15 authorizing proxy voting in limited circumstances by a vote of 217 to 189. Among its provisions, the resolution empowers the Speaker of the House ("or the Speaker's designee") to announce a "covered period" in which proxy voting is allowed in committees and on the House floor. A "covered period" may last up to 45 days. But the Speaker ("or the Speaker's designee") may extend it for an additional 45 days.
The resolution details a special process that both absent and physically present members must follow to vote by proxy. Absent members must first send the House clerk a signed letter that specifies which member they are authorizing to vote on their behalf. The letter must also include specific instructions from absent members to their physically present colleagues detailing how to vote their proxy. The resolution stipulates that the clerk must notify the member named as a proxy in the letter upon its receipt. It also directs the clerk to inform party leaders about the nature of the proxy. The resolution limits to ten the total number of proxies that a physically present member can cast at one time. Members who are physically present are required to announce proxies before voting.
In a departure from its previous experience with proxy voting in committees, the House resolution stipulates explicitly that absent members requesting to vote by proxy are to be counted along with those who are physically present to determine the presence of a quorum under the House rules (and the Constitution).
The resolution directs the Committee on Administration to study the available technology for implementing remote (as opposed to proxy) voting in the future. Once the House Administration Committee certifies that the technology is available and secure, the resolution directs the Chairman of the Rules Committee to insert regulations in the Congressional Record that detail how to implement remote voting in the House. After publication, the Speaker's announcement of a "covered period" authorizes members to vote remotely instead of by proxy.
Proxy Voting and the Constitution
The House rules have long required its members to assemble in person- to be physically present- to vote on the floor. And Rule XI prohibited proxy voting in committee proceedings. Of course, a majority of the House can always change the rules using its authority under the Constitution’s Rules and Expulsion clause (Article I, section 5, clause 2). Supporters of H. Res. 965 point to its stipulation that "each House [of Congress] may determine the Rules of its Proceedings" as evidence that proxy voting is constitutional.
But there are limits to what a House majority can do under the Constitution and where it can do it. For example, the Supreme Court ruled in United States v. Ballin that the House could not approve rules that violate other provisions of the Constitution. In the decision, Justice David Brewer acknowledged that while "the Constitution empowers each house to determine its rules of proceedings," by their rules, the House and Senate could not "ignore constitutional restraints or violate fundamental rights." When applied to the present case, Brewer's reasoning suggests that the House cannot use its power under the Rules and Expulsion clause to allow its members to cast floor votes in absentia. Doing so would violate other constitutional provisions that relate to how the House operates.
For example, the Constitution's Qualifications and Quorum Clause (Article I, section 5, clause 1) requires that a majority of its members be present before the House can conduct business.
“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”
To mitigate this concern, H. Res. 965 states explicitly that absent members will be counted along with those members who are physically present to establish a quorum.
“Any member whose vote is cast or whose presence is recorded by a designated proxy under this resolution shall be counted to establish a quorum under the rules of the House.”
Other constitutional provisions complicate the House's effort here to use its power under the Rules and Expulsion clause to change how it interprets the Qualifications and Quorum clause. The requirements those provisions place on the House suggest that a remote presence (as envisioned by the drafters of H. Res. 965) is unconstitutional for the purposes of establishing a quorum.
For example, the Constitution's Meetings of Congress Clause (Article I, section 4, clause 2) that Congress must assemble at least once a year.
“The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.”
The Constitution also provides a general idea of what happens when members of Congress assemble. For example, the House Journal clause (Article I, section 5, clause 3) stipulates that one-fifth of the members present may order a recorded vote. This provision suggests that absent members are not present and, therefore, are incapable of assembling (and voting).
The House effort may also be unconstitutional, given the Senate's resistance to allowing proxy voting on the floor. This is because the Adjournment clause (Article I, section 5, clause 4) bars the House and Senate from meeting in a different location from where they sit presently.
“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”
At a fundamental level, this suggests that the House cannot conduct its business remotely while the Senate continues to meet in the Capitol in Washington, D.C. While the Congress has met in various places in its history, including Philadelphia and New York City, its members had to first physically congregate in the same area before they could approve meeting in a different location.
The Constitution also assumes that members must travel to the same location and protects them from arrest "during their Attendance at the Session of their respective Houses, and in going to and returning from the same" (Article I, section 6, clause 1).
When taken together, these provisions suggest that the Constitution does not allow House members to vote by proxy if a quorum of its members are not physically present.
Implications
The Constitution empowers the House to determine the rules by which it conducts its proceedings. But the Constitution limits that power as well. The House cannot adopt rules that violate constitutional provisions.