The US House, under Speaker Nancy Pelosi (D-CA), has done it again – taken a stunningly out-of-touch position, which challenges the US Constitution, nobbles established legislative process, demonstrates either cowardice or laziness, and disses the average American. In a time of crisis, House Democrats are staying home, in favor of an unconstitutional proxy. Enter: The Congressional Beach Bum Caucus.
That is right. Unlike the Republican-led Senate, House Democrats refuse to come back to Washington – a city with coronavirus, also our Capitol. While collecting paychecks of $174,000 apiece (leadership higher), these “brave” members of the US House have concluded that, after all, they can invent a system where a few cast votes for all, a so-called “proxy” system.
Note that this idea – the notion that House members can stay at home, wandering beaches with a latte and pay – was opposed by our nation’s Founders, before lattes, freezers of ice cream, beach umbrellas or suntan lotion. Note $174,000 is three times the average American family’s income.
To be specific, legislative days are expected to be numerous, one reason early members lived in DC. The job was rigorous, a privilege – service to others, centered on duty. Remarkably, House members now work an average of 145 days a year; Senate numbers are higher. Most Americans work at least 252. In the process, we underwrite the House members’ 60 percent no-show rate.
That said, remarkable has become unbelievable. As the Senate Majority Leader, Mitch McConnell (R-KY) pointed out last week: “While essential workers across the country continue to clock in, the Democratic House of Representatives has essentially put itself on paid leave for months,” adding “they’ve convened for legislative session a grand total of two days — two — in the last eight weeks.” See: https://www.washingtontimes.com/news/2020/may/21/mitch-mcconnell-slams-house-paid-leave-may/.
So now, the US House shows up four percent of the time and collects pay, while plotting a second impeachment investigation (see: https://www.theepochtimes.com/house-democrats-tell-supreme-court-that-trump-impeachment-investigation-continues_3356441.html), and Speaker Pelosi takes odd shots at the President for being “morbidly obese.” See: https://www.foxnews.com/politics/nancy-pelosi-calls-president-morbidly-obese. Morbidly tall, sardonically humorous, unapologetically authentic, mischievously impolitic, but “obese?” Judiciary Chairman Jerry Nadler (D-NY) offered no comment on the Speaker’s comment.
But there is more to this “proxy voting” gambit – which goes live this week – than House leaders trying to “have their cake and eat it too,” voting and staying home. There is more at stake than showing the same courage as a store clerk or coffee barista.
The Constitution is at issue. Both chambers are permitted to write rules for members – recently rewritten for impeachment – but they cannot rewrite the US Constitution. The Constitution is clear: While travel was inconvenient – especially before airplanes, when it required horses – having a “quorum” or “majority of members” is required for valid votes in Congress.
Article One, Section five reads: “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.”
There can be no doubt that the Framers expected physical presence to establish a quorum, since they could “compel the Attendance of absent Members.” If physical presence were immaterial, compelling attendance would not be textual. While “proxy” voting occurred during the pre-Republic’s Constitutional Convention, it was foreclosed in the Constitution.
The reason is common sense. Framers wanted members of Congress responsible and accountable for their votes. They made governing hard, majority rule direct and physical to assure personal engagement. That sought accountability, no cheap votes by proxy.
As a matter of US history, proxy voting has never been allowed on the House floor; even in committees is has been rare and was officially banned by rule 25 years ago. No precedent exists for what the House is trying to do. See: e.g., https://www.govinfo.gov/content/pkg/GPO-HPREC-DESCHLERS-V4/pdf/GPO-HPREC-DESCHLERS-V4.pdf, and https://www.govinfo.gov/content/pkg/GPO-HPREC-CANNONS-V8/pdf/GPO-HPREC-CANNONS-V8.pdf.
That said, a quorum is needed only for votes – not to conduct intermittent business on the floor. Still, the Constitution is unyielding on this point – regardless of wars or pandemics. Congress has voted in person through every scare since our nation’s founding.
Experts attest: “Once demanded, the House cannot conduct any business – even a request to withdraw the call to quorum – until a quorum is attained.” Why? To protect majority rule and the minority. “Once a party tries to take action beyond what has been agreed to by consensus, the other side can quickly shut that down by raising an objection to the lack of quorum.” Result: “If a quorum cannot be achieved, under the Constitution, the only business allowed is a motion to adjourn.” See: https://www.congressionalinstitute.org/2020/05/06/voting-present-by-proxy-is-an-unconstitutional-oxymoron/.
Somehow, all this has gone over the heads of current House leadership. Where that leads will depend on how the House acts this week, how the Senate and White House treat this unconstitutional innovation, and what the Courts have to say about ditching Article One, Section five – for beach bumming, lattes and ice cream.
In short, the Constitution should never take a backseat to convenience; assuming duties of a House member does not allow any majority to unilaterally upend Constitutional directives. Nor can there be any vote changing rules without a physical majority. The House ditched due process during impeachment, is appears determined to ditch another provision now.
Scholars note: “The one thing that Congress cannot allow is the idea of conducting controversial business with only a small number of Members present.” Nevertheless, as Democrats attempt to rule from the clouds or while walking beaches, be ready for anything. Expect these brave Democrats to try proxy voting this week. Enter: The Congressional Beach Bum Caucus.