For the first time in history this week, members of the House of Representatives voted without actually being in the chamber. More to the point, they had other members cast their votes for them.
Proxy voting, as it is known, was an extraordinary change to the House rules jammed through alongside Nancy Pelosi’s $4 trillion COVID-19 “relief” package, and it allows Members to delegate their voting responsibility—the one they fought so hard in an election to obtain—to another Member.
In doing so, it removes the responsibility of elected Members of Congress to be present when legislation is written, debated, and passed; to respond to and sway with the tides of the legislative process. It diminishes the fundamental nature of politics itself, which is to be present; to bear witness to and engage with the changes that collectively determine the character of the country.
Such a move is unprecedented. Not during the Spanish Flu of 1918 or other pandemics; the Civil War; when the British burned all of Washington, D.C. during the War of 1812; and not even during 9/11, when the Capitol was a terrorist target, did Members of the House wither in the face of their duty to represent for their part of the country, and to be present to vote its interests.
That is, until now.
The rules passed by the House authorize proxy voting for 45 days, a period of time which can be extended for “a coronavirus emergency” as determined by the Sergeant at Arms. But the precedent has now been set that, should an emergency arise, the men and women we elect to face it can do so from home. On their couches.
Serious Constitutional Questions
COVID-19 has unraveled the country in many ways, revealing everything from the frailness of our public health policy to the brittleness of our supply chains. It has also unmasked the diminished view we take of our politics, where our individual elected representatives are not critical to policy formulation, but merely levers to be pulled in favor of one policy or another, determined by a handful of unelected staff, interpreting the whims of the political leadership.
It’s a far cry from the statesmanship of our past, which held oration to be an end in and of itself; which valued mastery of the physicality of the legislative process; which cleaved, fully, to the weight of the constitutional duty statesmen had been given, regardless of the risk. (Particularly when the risk, according to the Centers for Disease Control, is far lower than originally estimated.)
It is also, very likely, unconstitutional.
A lawsuit filed by 21 Republican House members against House Speaker Nancy Pelosi (D-Calif.) leads with a quote from Chief Justice John Roberts himself, who, in NFIB v Sebelius, remarked that “sometimes the most telling indication of [a] severe constitution problem . . . is the lack of historical precedent for Congress’s action.” It’s an observation that resonates in the face of previous pandemic precedents, in which Members of the House made their way to Washington in spite of—or, perhaps understanding that it was their duty, because of—the present peril.
The brief goes on to cite the Constitution’s repeated references to “meeting,” “attendance,” “assemble,” “sitting” and “recess” as evidence of the House as the Founders envisioned it—a deliberative body, “where the People’s representatives would gather together, face to face, to debate and address the issues of the day.”
It further cites the Democrats’ own committee report, which identified the “best option” as “use[ing] the existing House rules and current practices,” rather than upending the centuries of accumulated tradition to grapple with a problem the House has already faced, and faced successfully.
The Physical Vitality of Our Politics
But beyond the constitutional criticisms, proxy voting has an existential element that cannot be overlooked.
Critical moments in our legislative history have been dominated by physical presence. Daniel Webster, in his most famous 1830 address on slavery, nullification, and his hopes for “my united, free and happy Country,” brought the Senate gallery to tears. But Webster recognized that the reprint of his address would lose the power of human delivery, and took pains to convert the spoken words “embellished as they had been by gestures, modulations of voice, and changes of expression” to convey the same resonance.
The power of the Senate’s talking filibusters is less about their substance than about the sheer physical stamina required to stand, literally, for hours in defense of a cause. There is equal power in being “in the room” during a negotiation, where persuasion is gained through argument, but also communicated through body language. Lyndon Johnson, perhaps one of the Senate’s finest manipulators of the institution, was famous for grabbing men by their lapels and getting very close to their face in making his point.
The process of legislating is far more than amending words on a page, or tapping out new policy in a Word document. It is cajoling, maneuvering, and horse-trading. It is parliamentary tussles over points of order and trading rhetorical jabs in hours of debate. It is late night deal-making, and emotional appeals on issues that divide the country.
In other words, delegating our politics erases the vital, human elements of our self-government.
The House is Diminished
There is also the practical matter that, as a matter of representation, citizens also lose. The legislative process is full of surprises. Amendments come at the last minute, legislative text is updated and modified, points of order are sprung without warning.
When a member has transmitted his vote to another on one question, who decides if and when other, unanticipated questions arise? Representative Pramila Jayapal (D-Wash.) has submitted her proxy to Rep. Jamie Raskin (D-Md.). Is Raskin equipped to make a last-minute decision on behalf of the citizens of the 7th District of Washington? Or is it Jaypal’s unelected staff who will have that authority? Or her party’s leadership? Or the armies of lobbyists, bureaucrats, think tanks, and advocacy groups that remain in D.C., regardless of the pandemic?
Delegating voting authority in this way severs the connection between a popularly elected member of Congress and those who sent her there to vote their interests. It will only serve further to dilute the representative process, while centralizing power among interested parties intent on furthering theirs.
In 1814, after the British had turned Washington, D.C. to burning rubble, Members of the House packed into the Patent Office (the present-day National Portrait Gallery), one of the few public buildings that was spared.
In extremely tight quarters, they debated the wisdom of abandoning D.C. for another, more comfortable, and safer location. Joseph Pearson of North Carolina rose, and chided his colleagues. “If . . . Congress should, under the impulse of terror, or any other motive, remove from here, they will only give cause of triumph to the enemy.” He went on, “So far from entering into the feelings of the nation, for such conduct the people would scout us from our seats.”
The House of 1814—like the House of the Yellow Fever epidemic of 1793, the Spanish Flu of 1918, the Civil War, and 9/11—continued to meet in person, conducting the business of those who elected them. In the shadow of their memory, the House of 2020 finds itself diminished.
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