“There will be enormous constitutional questions around anything the House does if they fail to demonstrate a real quorum but plow ahead anyhow,” McConnell said during a floor speech.
As majority leader, McConnell has the sole power to set the Senate’s floor schedule, with few exceptions. McConnell has already largely ignored much of the Democrat-led House’s legislation for the past year and a half.
But his remarks about the constitutionality of remote voting suggested that McConnell could refuse to take up a House bill on the grounds that it was not legitimately adopted by the chamber. And it was clear that McConnell does not want to set a precedent for a practice he has vehemently opposed for the Senate, which also requires in-person attendance in order to vote on the floor. The Senate does allow proxy voting in committee.
The Senate has been in session for the past three weeks as McConnell and GOP leaders urge a return to regular business.
But the House has been largely on recess, and last week the chamber adopted new procedures — over the strong objections of Republicans — that allow members to cast their votes by proxy. The rule change is only valid for 45-day periods that can be extended during the coronavirus pandemic, and it only applies to the 116th Congress, which ends in January.
House Minority Whip Steve Scalise (R-La.) suggested Republicans will file a legal challenge once the procedure is used. Aware of that threat, House Democrats are planning to employ it first on FISA, a bill modified by the Senate after House passage. GOP leaders and the intelligence community have pushed hard for the FISA reauthorization, so if House Republicans choose to file a lawsuit, it will endanger a bill Republicans support.
Yet McConnell said there were clear legal issues with the plan, noting that the Constitution requires a physical quorum in order to do business.
“For about 231 years, Congresses have managed to fulfill this job requirement,” McConnell said. “They’ve worked through a Civil War, two World Wars, terrorist threats, and a prior pandemic without trying to shirk this duty.”
In statements to POLITICO, both Pelosi and Hoyer hit back at McConnell, saying the House gets to decide its own procedures. They also noted that McConnell has stalled hundreds of House-passed bills anyway, downplaying his threat as largely meaningless.
“Remote voting by proxy is fully consistent with the Constitution and more than a century of legal precedent, including Supreme Court cases, that make clear the House can determine its own rules,” Pelosi said. “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.”
“Article I, Section 5, clause 2 of the Constitution gives each house of Congress the ability to set its own rules. The courts have previously given the House wide latitude to do so, and the rule change we made to maintain public health fits within those bounds,” Hoyer added. “There is no reason why we should put lives at risk when technology can enable us to meet remotely – just as Senate committees have done.”