House punts on spy bill amid flurry of masks and proxies

It is perhaps fitting that when the House convened last Wednesday and Thursday, primarily to consider Senate amendments to a previously House-passed secret spy bill, it did so wearing masks and casting stealth votes (by proxy). It was a masked ball and absentee ballot bazaar rolled into one.

Ironically, the main purpose for the House’s return, to finalize action on extending provisions of the Foreign Intelligence Surveillance Act (FISA), was dashed when the president issued a last-minute veto threat and Republicans who previously supported the bill switched positions.  Enough Democrats had opposed FISA since its inception to jeopardize chances for final passage.

Instead of putting a direct vote to agree to the Senate amendments as planned, the Democratic leadership pulled back and offered a motion late Thursday to send the bill to conference committee with the Senate. The motion was adopted 284-122 with 211 Democrats and 73 Republicans voting “aye” and 21 Democrats and 100 Republicans voting “nay.” Seventy-two votes were cast by proxy, all by Democrats, with 64 in favor and eight opposed.

Wednesday’s session marked the House’s first use of the new, temporary proxy voting rule which allows members not able to return to Washington to designate a member present to cast votes on their behalf. No member present is permitted to cast votes for more than 10 absentees. The absent members notified the House clerk which member present they had designated to vote on their behalf and submitted signed proxies to their chosen vote caster with specific instructions on how to vote on each measure or matter on which a rollcall might be put.

Altogether, 42 members were designated as proxy holders, with 28 holding just one absent member’s proxy. Only three members held five or more proxies.

The House adopted the temporary proxy voting rule on May 15, 2020, along with another change to allow committees to hold hearings and meetings remotely by video conference (H. Res. 965).  House Republicans opposed all the rules changes, except authorization for remote hearings.  When the proxy voting rule was first deployed last week, House Republicans filed suit in the U.S. District Court for the District of Columbia challenging its constitutionality on grounds that members must be physically present in the same place to vote.

When the FISA special rule was reported to the House and considered on the floor, Republicans attempted to defeat the previous question on the rule in order to amend it. Their amendment would have barred the use of proxy floor votes until the voting process’s constitutionality was resolved in the courts. The special rule was nevertheless adopted on a party-line vote with 70 votes cast by proxy, all by Democrats.

Notwithstanding the setback of FISA, the week was not a complete wash. Five minor bills were passed under suspension of the rules (40 minutes of debate, no amendments, and a two-thirds vote required for passage). Three of last week’s suspensions passed by voice vote and two by roll calls.

Ironically, the temporary House rule allowing remote committee hearings and meetings does not apply to House-Senate conference committees. The five House members appointed as conferees for the FISA conference (three Democrats and two Republicans) must meet in person with their Senate counterparts at least once in public with a quorum present. Only a majority of signatures of conferees from each house is required to file a conference report. No actual votes need be cast.

The two-day session last week demonstrated that the House can operate under a partial pandemic shutdown. So long as a substantial number of members can appear in person, carry on some semblance of debate and deliberation, and cover for their absent colleagues, the House remains a functioning body.

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.