The parties in Congress typically sort out their differences in the House or Senate Chambers, their committee rooms, and the media. Sometimes, however, they turn to the courts to settle their disputes. In May 2002, House Republicans turned to the Judicial Branch to stop the House Democratic majority from implementing proxy voting, the practice whereby one Member casts a vote on behalf of another. Much to the Republicans’ disappointment, a district court judge dismissed their lawsuit and an appeals court recently upheld this decision, meaning proxy voting will continue in place for at least the time being.

On May 15, 2020, in response to the coronavirus pandemic, the U.S. House of Representatives adopted H.Res. 965, which provided for proxy voting on the Floor of the House for the first time in its history. The resolution authorizes the Speaker to permit proxy voting when the Sergeant-at-Arms, in consultation with the Attending Physician, notifies her that the country is in the middle of a public health emergency due to the pandemic. The Speaker may permit proxy voting for up to 45 days at a time, though she may extend it for an additional 45 days if the pandemic is ongoing at the expiration of the so-called “covered period.” The resolution requires absent Members to send a letter to the House Clerk designating a colleague as their proxy. They also must instruct their proxy how to vote on each issue that came before the House. Votes cast by proxy count towards a quorum. The House agreed to this resolution on a largely party-line vote, with 217 Democrats supporting it, and 185 Republicans, 3 Democrats, and 1 Independent opposing it.

In the debate on H.Res. 965, the Republicans argued, among other things, that it violated the U.S. Constitution. The Constitution requires each House to achieve a quorum to transact business, a point which is not in dispute. The Republicans say that the Constitution also requires that a Member be physically present to count towards a quorum. So, the week after the House agreed to H.Res. 965, a majority of the House Republicans, along with a handful of constituents, filed a lawsuit in the U.S. District Court for the District of Columbia challenging the constitutionality of the resolution and requesting that the court prevent it from being carried out. (The Speaker of the House, the Clerk, and the Sergeant-at-Arms each have a role in carrying out the provisions of H.Res. 965, so they were all named as defendants. They were sued in their official capacities, not as private citizens.) In early August 2020, District Court Judge Rudolph Contreras dismissed the lawsuit on the grounds that the defendants enjoyed immunity from the lawsuit per the Constitution’s Speech or Debate Clause, which states, “for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place” (Article I, section 6). The House Republicans promptly appealed to the U.S. Circuit Court of Appeals for the District of Columbia Circuit, which recently unanimously upheld the District Court’s decision to dismiss the lawsuit. The Circuit Court agreed with the District Court that the Speech or Debate Clause conferred immunity upon the defendants in this case.

“Speech or Debate Clause”—along with its simple wording in the Constitution—is a modest name for a powerful constitutional privilege. Over the years, courts have interpreted the Speech or Debate Clause expansively, beyond simply Member speeches. As Circuit Court Chief Judge Srinivasan noted in his opinion, “it is long settled that the Clause’s protections range beyond just the acts of speaking and debating.” These protections extend to “all ‘legislative acts,’” he wrote. Therefore, the question before the Courts was whether the proxy voting system was a “legislative act,” which is defined as an action a Member takes regarding House business while the House is in session or during a committee proceeding. The term encompasses both debate on legislation and any other business the Constitution entrusts to the House. (Strictly speaking, some House and Senate rights and responsibilities are not legislative—i.e., such actions are not related to the production of laws. For instance, the contingent methods of electing the President and Vice President are congressional responsibilities that are not legislative per se.) Additionally, congressional staff, including the Clerk and Sergeant-at-Arms enjoy Speech or Debate protections since they act on behalf of Members.

In reviewing the case at hand, the Circuit Court found that proxy voting and the related actions which the Clerk and Sergeant-at-Arms were required to carry out “are quintessentially legislative acts falling squarely within the Clause’s ambit.” In fact, the Court held it was “hard-pressed to conceive of matters more integrally part of the legislative process than the rules governing how Members can cast their votes on legislation and mark their presence for purposes of establishing a legislative quorum.” Given that the Court found that the acts in question were legislative acts, it ruled that the defendants were immune to a legal challenge per the Constitution’s Speech or Debate Clause. Since both the District and Circuit Courts found that the Speech or Debate Clause conferred immunity upon the defendants, neither Court went the extra step to consider the merits of the plaintiffs’ arguments about whether the Constitution required Members to be physically present for a quorum. Thus, the District Court dismissed the case and the Circuit Court affirmed that decision.

This, however, may be seen by some as an overly broad interpretation of the Speech or Debate clause, especially since the question had bearing on a specific constitutional requirement.  The legislation in question is a House procedural vote, not a law passed by both Chambers and signed by the President.  Certainly, for instance, the Speech or Debate clause could not countenance a House Majority passing a procedural resolution that prohibited the House Minority from voting on certain issues.  That would violate the constitutional role of a Member of Congress.  So the immunity granted by the Speech or Debate Clause must have some limitations when it comes to other constitutional questions. As much as the Speech or Debate Clause is incredibly important for the independence and strength of Congress, applying overly broadly could lead to unconstitutional actions on the part of Congress or its Members.

As we have written before, the Constitution leaves a great deal of leeway to the House and Senate for establishing their own rules of procedure. But it’s not absolute. The Constitution includes more than a few procedural requirements, such as the two-thirds supermajority in both Chambers to override a presidential veto. Further, in the case United States v. Ballin, the Supreme Court wrote that neither the House nor Senate may “by its rules ignore constitutional restraints or violate fundamental rights…”

The quorum requirement is without a doubt a “constitutional restraint.” The Constitution is absolutely clear: In both Chambers, a quorum is required to do business. And a quorum is defined as a majority of its members, and the Constitution anticipates the physical presence of the 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. 

So, the next step for the plaintiffs is to appeal to the U.S. Supreme Court, which is what a lawyer representing the House Republicans pledged to do this summer. If the Court agrees to hear an appeal, they could uphold the lower courts’ reasoning that the Speech or Debate Clause conferred immunity upon the defendants. However, if the Court finds that the Speech or Debate Clause does not apply and that the plaintiffs had standing to sue, they would then move on to address the Republicans’ arguments that proxy voting dilutes Members’ votes and that counting proxies towards a quorum violates the plain language of the Constitution.

If the Supreme Court does not take up an appeal, there could be another avenue to challenge the quorum requirement that avoids the Speech or Debate immunity issue. In the future, there could be a plaintiff who may suffer some injury due to a law Congress might pass in the future where the quorum required to act on the legislation was reached using proxy votes. In such a case, the plaintiff would be suing a government agent enforcing the law, rather than the Speaker of the House, the Sergeant-at-Arms, and the Clerk. Since the government agent would not be acting on legislative business, the Speech or Debate Clause could not conceivably confer immunity. Since Speech or Debate immunity would be irrelevant, the courts would need to address the question of whether the Constitution’s quorum requirement demanded physical presence.  For us today, though, the question is whether we should wait for some critical national legislation to be held up in Court, or settle the constitutional question now.

Proxy voting will continue for the foreseeable future, even throughout the rest of this Congress. On June 28, Speaker Nancy Pelosi of California extended the “covered period” until August 17, 2021. Additionally, there are rumblings that the Speaker will extend it again throughout the fall or even until the end of the year, though her staff said she has not yet decided. Some Democrats have also suggested a willingness to consider some form of remote voting for the longer term. For instance, in March, Majority Leader Steny Hoyer (D-MD) said, “I think there will be discussion about should we be able to vote remotely in other circumstances post-COVID-19.” He also said, “There is really, you know, no magic in being in a particular room when you vote.” While the Democrats control the House, we should expect remote voting in some form or another.

We respectfully disagree with the distinguished Majority Leader. The Congressional Institute has criticized proxy voting since the practice was introduced. Proxy voting discourages critical collegial interactions that occur when Members vote in person. Further, it increases the control congressional leaders, like the Speaker, have over the legislative process. Counting proxy votes towards the quorum also violates the text of the Constitution. We can only hope that the Supreme Court weighs in on the merits of the case. Or rather, we hope that the case becomes moot because the House should scrap proxy voting post haste.

For the opinion from the United States District Court for the District of Columbia, click here.

For the opinion from the United States Court of Appeals for the District of Columbia Circuit, click here.