One virtue of a virtual Congress

The need for social distancing has led to new demands for distant voting. With the coronavirus in the air, Congress is awash with proposals to allow senators and representatives to cast votes away from the chamber floors on Capitol Hill. It is true that desperate times call for desperate measures, but however extreme this reform may seem, remote voting would indeed be allowed under the Constitution. This new practice could also lead to the reform of one regrettable habit of the legislative branch.

The Framers likely assumed that members of the chambers would gather in a single room in order to conduct business. References to “assemble” and “attendance” in the Constitution suggest as much. Congress could easily satisfy this narrow reading of these terms if each chamber met in cavernous spaces. For instance, the Senate could meet in the baseball stadium where the Washington Nationals play, while the House could gather on the football field where the Washington Redskins play. Then legislators could easily sit several feet apart as they work.

But the chambers need not be so constrained. Laws can have meaning and serve purposes without being tied to the technology of a particular era. For instance, modern presidents have signed legislation by autopen, even though this technology is somewhat new. The justification for this is that so long as the president makes a decision about whether to approve a bill, the mechanics of putting pen to parchment are irrelevant. The same holds true for the Supreme Court. The justices have reached decisions by phone, sometimes hundreds of miles away from Washington. Six justices are necessary to conduct business, and they have concluded that voting by phone on important matters satisfies that requirement.

Congress could do something similar. The Framers perhaps demanded no more than for legislators to debate and collectively reach decisions in real time. The internet permits that live discussion and passing laws, either by voice vote or by roll call. With the advent of technology, one chamber can “assemble” virtually on Zoom, while legislators can also attend meetings in Google. A chamber can sit to conduct business online.

The more general point is that if legislators are monitoring proceedings in Congress online and can vote remotely, they are in “attendance” and can be present for quorums. What is good for the president and the Supreme Court must be good for Congress. There are positives and negatives of remote voting, so here are two potential disadvantages.

First, Congress will no longer have the excuse of being unable to conduct business when members go back to their constituencies. What was once a part time assembly may become a full time legislature, where leaders call votes during such inconvenient times for members. Many people do wish that Congress would return to its roots as a part time institution. To quote Will Rogers, “This country has come to feel the same when Congress is in session as when the baby gets hold of a hammer.”

Second, though legislators do not have to pay attention to floor debates even when they are physically present, one might suppose that they will get more distracted if they have two browsers open, one trained on the proceedings in Congress and one centered on Sunday Night Football. A debate on a motion to recommit would suffer compared to a drive down the field in the final minute of the fourth quarter.

But there would be one positive that overwhelms these drawbacks. Last week, six members exercised the collective authority of the Senate and passed the $484 billion appropriation. Though the Constitution declares that a majority of each chamber would be a quorum to do business, the Senate had nothing like a quorum for this vote. Under current practices, however, both chambers assume a quorum, an assumption that can be overcome only if some legislators will call for it.

That assumption is almost as mistaken as supposing that lobbyists exist to further the public good. The Constitution decrees that the chambers can pass a bill only if there is a quorum. Members cannot just avert their gaze from this violation of the Constitution. The minimum mandate for passing legislation is not waivable. To pass legislation in a chamber, the presence of at least a majority of the voting members is required.

With a move to virtual sessions, Congress could cut the embarrassment of a handful of legislators passing legislation. If bills are uncontroversial, the chambers can meet online, and the majority in each can pass them. All in all, the move to remote voting could generate a salutary reform and also eliminate at least one excrescence of the Constitution.

Saikrishna Prakash is a law professor at University of Virginia and a senior fellow at the Miller Center of Public Affairs, and the author of “The Living Presidency: An Originalist Argument Against Its Ever Expanding Powers.”