The Constitution leaves a great deal of leeway to the House and Senate for establishing their own rules of procedure. But one provision is absolutely clear: In both chambers, a quorum is required to do business. And a quorum is defined as a majority of its members.
Article 1, section 5, of the U.S. Constitution states:
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.
If a physical presence were not necessary, it would be unnecessary to “compel the Attendance of absent Members.” Although proxy voting was possible at the time of the Constitutional Convention, the participants spent long days waiting for their colleagues to arrive to conduct business in person. Being physically present does make for an inefficient system, but that’s what the Founders intended – they did not intend to make it easy to reach consensus and govern. The constitutional provision for the quorum was designed to protect the public.
Quorums are not self-enforcing. So a quorum is assumed unless it questioned by a Member. That is why the House carries on non-controversial business even when it is evident that only a few Members are on the Floor. To conduct business such as voting, however, a quorum can be demanded by any Member through a point of order. Once demanded, the House cannot conduct any business – even a request to withdraw the call to quorum – until a quorum is attained. This protects the minority party. Once a party tries to take action beyond what has been agreed to by consensus, the other side can quickly shut that down by raising an objection to the lack of quorum. If a quorum cannot be achieved, under the Constitution, the only business allowed is a motion to adjourn.
This raises a question of whether the House can change its rules of procedures to allow proxy votes to count towards a quorum. Besides the oxymoronic notion that a member could vote “present by proxy,” the House’s precedents argue against it.
Proxy voting has never been allowed or even considered on the House Floor. But proxy voting has, from time to time, been allowed in Committees. Even though it has been banned since 1995, the House has established precedents for how proxy voting was treated in prior Congresses.
While Members who were absent could give their proxy to another Member on the Committee, allowing their votes to be counted, Deschler’s Precedents shows that the “no measure is to be reported from any committee unless a majority of the committee was actually present when the measure was ordered reported.” This echoes Cannon’s Precedents, a previous compilation of the precedents, which states:
Recognition of voting proxies by standing committees is a matter to be respectively determined by each committee for itself, but proxies may not be counted to make a quorum.
In other words, when allowed, Committees could count proxy votes, but they first had to have a majority of actual people attending or none of the votes would count.
It might be possible for the House to change the rules to allow proxy voting, but only after attaining a physical quorum. The one thing it cannot do under the Constitution and under the House’s own precedents is to allow those proxies to count toward a physical quorum. So it might be possible that, consistent with the Constitution, some proxy voting might be allowed if there is a physical majority present for a vote.
House Rules Committee Chairman Jim McGovern has stated his view that Members who vote by proxy must give specific instructions on how their votes would be recorded, and those instructions should be printed in the Congressional Record. If done this way, where most Members were present, and only a few were unable to make it to Washington, it would be similar to a traditional courtesy of “pairing votes.” In the not-so-distant past, “vote pairing” would occur when a Member who was voting opposite of the absent Member withheld their vote and announced a pair with the absent member, thus offsetting each other’s vote. In today’s highly polarized Congress, such courtesies are rare, which might indicate the need for an updated system.
The one thing that Congress cannot allow is the idea of conducting controversial business with only a small number of Members present. It is understandable why the House Democratic leadership wants to put this rule in place since we are in the midst of a pandemic. At the same time, political leaders cannot simply ignore constitutional requirements or proper parliamentary forms to resolve the issues. Congress is, by definition, the gathering of people together to solve issues. This cannot – and should not – be done remotely.
Observers of Congress agree that one of the primary causes of divisive partisan polarization is that Members no longer form relationships and friendships. Back when Members met five days a week instead of three, they moved their families to Washington DC. Their kids went to school together, and their spouses formed friendships with other spouses. It’s human nature to be much more civil to someone whose spouse is friends with yours or whose kid is on your kid’s soccer team.
Most importantly, legislators need to legislate. There is a give and take created by amendments and debates that require direct human interaction. Too little of that goes on now – how much worse will it be if members are just “emailing it in?” Today, leaders from the House and Senate negotiate with the President, and the other 533 legislators vote on their agreement. That’s not legislating.
Proxy voting might be more efficient than waiting for everyone to physically get to Washington DC. But efficiency was not a goal of the founding fathers. They wanted the people’s representatives to get together and work out compromise and consensus. Isolated Members voting from remote locations will further harm civility and undermine Congress’ already weakening place in the Constitution’s balance of power.