Political conservatives upset with the lame duck 117th Congress’ passage of a $1.7 trillion omnibus spending bill ahead of the recently-elected Republican majority’s takeover of the House of Representatives, thwarting the Republicans’ “power of the purse” for the remainder of fiscal 2023, could get some revenge if a lawsuit filed this week by Texas Attorney General Ken Paxton is successful. Given the pace of litigation in federal court, the lawsuit is unlikely to overturn the huge spending package before the end of the fiscal year, but preliminary injunctions could thwart the specific parts which Texas claims harm the interests of its state and its citizens.
The lawsuit could also have some interesting effects for other laws enacted in the prior Congress, under then-House Speaker Nancy Pelosi’s “proxy voting” rules adopted during the COVID-19 pandemic. Texas its challenging the constitutionality of those House rules due to the U.S. Constitution’s requirement that “a Majority of each [House] shall constitute a Quorum to do Business” (Art. I, §5), arguing that in order for a quorum to be present, a majority of the members (in the House of Representatives, at least 218 members) must be physically present together.
If you’ve ever watched CSPAN coverage of Congress, you often see periods of time where there’s what’s known as a “quorum call,” which usually occurs prior to a scheduled vote, so that enough members have time to reach the floor and assemble a quorum to vote. According to the House Rules, it’s only during votes that the House of Representatives is actually conducting “Business” within the meaning of the Constitution’s quorum provision. At most other times where there are proceedings on the floor of the House, the Speaker designates a member to act as chairman of the “Committee of the Whole House on the State of the Union” (the “Committee of the Whole”) and the designated chairman takes the Speaker’s place on the podium1, while the Committee of the Whole debates and amends legislation. Under the House Rules, a quorum of the Committee of the Whole is only 100 members. Theoretically, the Constitutional quorum only needs to be active when the House is exercising its power to enact legislation by voting.
And that’s precisely what Texas alleges didn’t happen during the vote on the Consolidated Appropriations Act, 2023, due to the House allowing proxy voting by members not physically present together in the House chamber. The Senate passed a reconciled version of the bill on December 22, 2022,2 then,
Members of the House met the next day to consider the Senate’s amendments to the bill. The House did not have a quorum; only 201 of the Representatives were present. Those present nevertheless proceeded to vote on accepting the Senate’s amendments. […] The votes of those physically present were 88 yea and 113 nay.
Texas complaint, ¶20.
[The] Representatives acted under a rule originally promulgated during the 116th Congress [that] allowed Members to ‘designate[] another Member as a proxy’ to ‘cast the vote’ of the designating Member if ‘a public health emergency due to a novel coronavirus is in effect[.]’.
Id. at ¶21.
Due to proxy voting, the House vote on December 23, 2022 was recorded as 225 yea, 201 nay, and 1 present, both the “yea” and “nay” sides evidently having taken advantage of the proxy voting procedure to conduct the House’s constitutional Business ahead of the Christmas holiday, and the omnibus spending bill was considered passed.
Rep. Kevin McCarthy (R-CA), who former President Trump had endorsed as House Speaker in December ahead of the omnibus vote, was still minority leader, and would face a tough battle in January to pull together the necessary votes in his fractious caucus to become Speaker, ultimately requiring 15 voting rounds to gain the gavel. Veteran Senate Republican leader, Mitch McConnell, who has held the GOP leadership position in the Senate since the second term of the Obama/Biden administration, and whom President Trump and many conservatives consider part of the D.C. “swamp,” took the opportunity of the lame duck session to work out a deal with the omnibus that he claimed advanced Republican priorities on defense, while at the same time making things more difficult for McCarthy.
Texas Attorney General Ken Paxton, who lead unsuccessful litigation in the aftermath of the 2020 election challenging the last-minute changes to voting laws in four other states, in attempt to bring the issues under the Supreme Court’s exclusive jurisdiction over lawsuits between states, now presents the question whether Congress can ignore the quorum clause of Art. I, §5 in an “emergency,” and implement proxy voting rules that were rejected by the Framers of the Constitution.
[D]elegates at the Constitutional Convention rejected proposals that would have allowed Representatives to ‘vote by proxy’—but only after James Madison added language giving Congress the power to compel absent Members’ attendance. See, e.g., Records of the Federal Convention of 1787 (Farrand’s Records), vol. 3, 620, 622.
Texas complaint, ¶52.
Here, Texas refers to the next part of Art. I, §5, which provides that
…a smaller Number [of Members than a Quorum] 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.
Texas, in its complaint, notes that “[t]he power to ‘compel the Attendance of absent Members,’ would make little sense if the Constitution did not require physical attendance.”3
Absent a quorum of members physically present, the House cannot conduct constitutional “Business,” but can only either adjourn for the day, or compel the attendance of absent Members so a quorum may be established, i.e. start a “quorum call.” Consequently, argues Texas, “[t]hough President Biden signed the Consolidated Appropriations Act, his signature was a nullity because the act never ‘passed the House of Representatives.’”4
Just as the states made unusual, unprecedented, and unconstitutional rules changes to their election laws during the COVID-19 pandemic, so too did Speaker Nancy Pelosi’s COVID changes to the House rules implement proxy voting in a way that had never been done during previous national emergencies. “For 231 years, Congress operated with in-person quorum calls and voting—as had the Continental Congress.”5
In-person voting continued for more than two centuries. During the Yellow Fever epidemic, Thomas Jefferson urged President Washington to keep Congress sitting in Philadelphia, then the capital, even if it meant meeting “in the open f[ie]lds.” T. Jefferson, Letter to George Washington (Oct. 17, 1793), Natl. Archives. In the aftermath of that epidemic, the Third Congress enacted a law—still in force today—stating that “[w]henever Congress is about to convene, and from the prevalence of contagious sickness, or the existence of other circumstances, it would, in the opinion of the President, be hazardous to the lives or health of the members to meet at the seat of Government,” the President could “convene Congress at such other place as he may judge proper.” Acts of the Third Congress of the United States, Sess. I, ch. 17 (April 3, 1794), codified at 2 U.S.C. § 27. What it did not do was enact legislation that would allow Members to vote by proxy in future public-health emergencies.
Complaint, at ¶53.
All through the COVID-19 pandemic, workers deemed “essential” were required to show up in person for their jobs.
In the 20th Century, Congress assembled during the 1918 Spanish Flu pandemic. 57 Cong. Rec. 1, 10 (Dec. 2, 1918). Throughout the Cold War, Congress stood ready in the event of a nuclear attack to continue doing business in person in a secret congressional bunker hidden in West Virginia. The Secret Bunker Congress Never Used, Natl. Public Radio (Mar. 26, 2011). And into the 21st Century, following the September 11 attacks that had targeted the U.S. Capitol, Congress considered scenarios to address the continuity of Congress, most directly with expedited election of Members to the House in extraordinary circumstances. It did not, however, seriously consider or adopt proxy voting. See, e.g., R. Eric Petersen and Sula P. Richardson, Cong. Res. Serv., RL32958, Continuity of Congress: Enacted and Proposed Federal Statutes for Expedited Election to the House in Extraordinary Circumstances (Aug. 9, 2005).
Id. at 55.
Even in times of national crisis and grave danger to the safety of the assembled Members, Congress has never before authorized proxy voting by its Members, much less purported to have passed a law when a quorum could be achieved only by pretending that absent members were present.
Id. at 59.
But COVID-19, as we know, was (D)ifferent, and rules were made to be broken, if the issue was important enough.
We’ll see if the courts will require the House to follow the quorum clause, or if phoning it in is sufficient compliance with the Constitution.
—end—
This is why during most floor proceedings, the presiding officer is addressed as “Mr. Chairman” or “Madam Chairman.”
By reconciled, I mean that because the House and Senate versions of the bill originally contained different legislative language, it’s necessary for the House and Senate to agree and vote on a bill that contains identical language, a process called “reconciliation,” which happens as a normal part of the lawmaking process between the two chambers. In this bill, the Senate first voted to adopt the House’s amendments reconciling the two versions.
Complaint at ¶42.
Id., p.2.
Id. at ¶51.
I later realized that though I mentioned the "interesting consequences" the suit might have if it's successful in getting a declaratory judgment that proxy voting is unconstitutional, I didn't return to explain that.
(Though it'd probably take too much time for me to research and figure out which laws passed under Pelosi didn't have a quorum except for proxy votes. If there were others, obviously they'd be at risk of being challenged as unconstitutionally enacted as well.)
It'd be rather hilarious for much of Pelosi's recent "legacy" to be undone by her hubris.