Why Is Congress Refusing to Do Its Job in Person?
Emergency powers, we are always told, will be reserved only for emergencies. During earlier stages of the pandemic, the House of Representatives considered a landmark rules change to allow members to vote “by proxy” (i.e., a member physically present in the House chamber voting on behalf of a member not present). House Democratic leadership was clear at the time: “The changes that we are talking about here aren’t permanent. . . . These are temporary, to be used only during this pandemic. Once it is over, we go back to working side by side and in person.”
Skeptical of this claim, Republicans united in opposition to the proposal. Not a single Republican voted in favor of House speaker Nancy Pelosi’s proxy scheme, and in fact, 161 Republicans — nearly 82 percent of the conference in the 116th Congress — joined a lawsuit filed by Republican leader Kevin McCarthy arguing against the constitutionality of proxy voting. Our skepticism has proven warranted. Proxy voting was set to terminate after 45 days, but Speaker Pelosi extended the practice through the end of the 116th Congress, and it was again permitted by the rules governing the 117th Congress. But both constitutional and practical concerns should bring an end to a practice that has outlived its emergency usefulness, and now threatens to contribute to congressional weakness.
Some of the problems with proxy voting are constitutional. One of our several concerns includes the fact that lawmakers cannot be counted “present” during official House business if they are not physically in the Capitol. Another defect of proxy voting is that designating a proxy constitutes an unconstitutional delegation of voting power to another member. As my colleagues and I argued in the lawsuit, “the Congress of the United States has never before flinched from its constitutional duty to assemble at the Nation’s Capital and conduct the People’s business in times of national peril and crisis. So it was for more than two centuries. Until now.”
In addition to these constitutional concerns, there are practical problems with proxy voting. First, proxy voting concentrates even more power in the hands of House leadership. Under proxy rules, a single member can represent up to ten others by proxy — meaning the House majority could unilaterally pass legislation with only 20 members present. Second, proxy voting sends the clear signal that Congress cannot lead by example during the pandemic. While businesses across the country have been forced to shut down and workers have been separated into arbitrary “essential” and “nonessential” buckets, Congress effectively declared itself to be nonessential by allowing proxy voting. Third, members of Congress are abusing proxy voting and lying in the process. The rules governing proxy voting made clear that members could only designate a proxy if they were “unable to physically attend proceedings in the House Chamber” due to “the public health emergency.” Yet members have voted by proxy simply to pursue extracurricular activities, such as attending space launches.
By the end of the 116th Congress, 186 members — and almost 75 percent of the Democratic caucus — had designated a proxy at least once. At the start of 2021, with proxy voting still allowed, Republicans also began to sacrifice principle to convenience. Moreover, Democrats have used the concept of “Committee Work Weeks” to conduct virtual committee hearings while Congress is not in session. The result is that Congress is set to be in session for less than 110 days in 2021 — at least 20 days fewer than any previous session of Congress since 2013. That “emergency” pandemic measure now looks increasingly like a permanent practice, even though vaccines have been available to members of Congress since mid December and infections are down across the nation.
Unfortunately, many members of Congress would welcome permanent proxy voting. The dirty secret of the institution, as Yuval Levin of the American Enterprise Institute has put it, is that Congress is weak because its members want it to be weak. Power in Congress used to be concentrated in committees, where chairmen exercised a vise-like grip over their respective jurisdictions. Members who worked hard and conducted the unglamorous but vital work of legislation and oversight rose through the ranks and accumulated prestige. Now, power and prestige are more likely to come from inflammatory tweets, punchy TV hits, or Instagram-video views. Attaining C-list political-celebrity status has become more important for many members than conducting oversight and considering legislation.
Proxy voting pours kerosene on this trend of Congress becoming merely a media and fundraising platform. Consider when members choose to vote by proxy. Most members of Congress return to their district over the weekend, so work weeks are punctuated by “fly in” and “fly out” days. On fly-in days, members are 10 percent more likely to vote by proxy than during the middle of the week. On fly-out days, proxy-voting utilization is 22 percent higher. This was on full display last month, when more than a dozen of my Republican colleagues signed proxy forms certifying that the pandemic kept them from their duties in Congress, only to attend the Conservative Political Action Conference (CPAC) in Florida on the same day that Nancy Pelosi jammed a $1.9 trillion monstrosity of a bill through Congress. Many of these members were past critics of proxy voting or parties to the lawsuit against the practice. Thus, the mendacity of the Democrats produces an equal and opposite reaction from the Republicans.
We must end proxy voting before it ends Congress. Today, I will be introducing legislation to change House rules and eliminate proxy voting. This is a rescue mission not only for Congress as an institution, but also for the Republican Party in particular. In the aftermath of losing control of the White House, the Senate, and the House, Republicans must offer more than opposition to Democratic overreach. We must regain America’s trust by providing a positive, unifying vision for the country. We cannot provide that by chasing celebrity. We must put in the hard legislative work to develop solutions that can reverse rising health-care costs, get our children back to school (and fix schools that are failing to educate our children), and unify the free world against the Chinese Communist Party.
All of this implies a necessary prior step: We must show up for work, in person. Because the diminishment of Congress and the Us Weekly–ization of its members is an emergency, one that allows the executive branch to wield emergency powers on a permanent basis. If we do not show up for work, this emergency will get worse. We cannot restore Congress’s role as the dominant branch of government — and by extension reduce the power of the federal government — if we do not restore the physical presence of members of Congress. It’s time to end proxy voting.
