The coronavirus pandemic has changed the way Americans go about their daily lives and work. Members of the U.S. Senate and House of Representatives are also affected, and have continued to meet periodically even with stay-at-home orders executed by the Washington, D.C. municipal government.
In addition to enforcing social distancing in the legislative chambers and limiting the number of people in the capitol building, the House also changed how its members vote. For the first time, representatives will be able to cast votes by proxy during certain times. This Deep Dive examines how this will work and why it is controversial.
What is Proxy Voting?
Proxy voting is used when an individual lawmaker cannot be physically present to cast a vote on the floor, so he or she gives permission to another member to cast a vote on his or her behalf. The process involves giving some form of signed slip to the proxy.
Traditionally (and, according to some experts, legally), members of the House and Senate must be present in their respective legislative chambers to cast a vote. However, the Senate allows the use of proxy voting in committee. The House of Representatives allowed proxy voting in committee until 1995, when then-Speaker of the House Newt Gingrich brought about rule changes that halted the practice.
Recent Proxy Voting Rules Change
On May 15, the House of Representatives adopted House Resolution 965 by a vote of 217-189. This resolution allows the following:
- A House member to designate a proxy to vote on his or her behalf
- When " a public health emergency due to a novel coronavirus is in effect," the House Speaker can designate a period when proxy voting can occur
- This proxy voting period can last up to 45 days, with 45-day extensions allowed.
- House committees can meet remotely during such periods in some instances, but may not hold executive sessions closed to the public.
- The House shall study the feasibility and legality of remote voting
How Proxy Voting Works
A House member who wishes to vote by proxy must first find another member who will be physically present in the chamber and agrees to vote on that member's behalf. The member looking to vote by proxy must then notify the House clerk by letter. The clerk must receive a hard copy of the letter signed by the member personally. To revoke or alter the designation of a proxy vote, the member can send another letter to the clerk.
The member must then send written instructions to his or her proxy prior to each vote. The holder of the proxy cannot vote on another member's behalf unless he or she has such written instructions.
When a vote occurs, the member holding the proxy must obtain recognition from the Speaker of the House and announce, "As the Member designated by [NAME] pursuant to House Resolution 965, I inform the House that [NAME] will vote yea/nay/present.” The proxy holder will then take a card, vote, and designate that vote "by proxy." In the Congressional Record, the proxy votes will be noted separately from other votes.
Once a member revokes his or her proxy voting designation, the designee can no longer cast votes on that member's behalf. That designation is also automatically revoked if the member who requested the designation votes in person on the House floor.
Controversy and Lawsuit
On May 27, Rep. Brendan Boyle (D-PA) cast a proxy vote for Rep. Zoe Lofgren (D-CA). It was the first time such a vote was cast in the House. In total, 72 Democratic House members used this process to cast votes through 42 proxies that were present in the House chamber.
Prior to the vote, House Minority Leader Kevin McCarthy filed a lawsuit against House Speaker Nancy Pelosi, alleging that proxy voting was unconstitutional. He was joined by dozens of House Republicans. The suit hinges on the use of words like "assemble" and "meet" in the Constitution when there are references to Congress. These House members contend that the writers of the Constitution envisioned members of Congress physically meeting and casting votes while being present in these meetings. The lawsuit notes that proxy voting in unprecedented during floor votes in either chamber.
Those supporting proxy voting argue that the House rules prohibited such voting in the past, not the Constitution. With the passage of HR 965, this changed House rules and now members can legally cast proxy votes. They point out that the Constitution does not say anywhere it in that members must be physically present to vote. They go further and note that Article I, Section V, says, " Each House may determine the Rules of its Proceedings."
House Speaker Pelosi argues that proxy voting is a good way to allow Congress to function in the midst of a pandemic. Those opposing proxy voting counter that this is a way to give House leadership more control and dilute the voting power of individual House members. Some opponents of proxy voting also argue that the legality of legislation passed by such votes could be questioned.
What This Means for You
Concerns about the safety of members of Congress during the coronavirus pandemic led to cancelled legislative sessions and delays in votes. Proxy voting will allow the House of Representatives to function with fewer members present during the current pandemic and future pandemics. While this reduces these members’ need to travel and helps facilitate congressional sessions, there are also concerns about the legality of proxy voting, and the prospect that it could erode the power of individual members of Congress.