Congress faces the prospect of tele-legislating
- By Derek B. Johnson
- Mar 23, 2020
The legislative branch may soon have to follow the rest of the federal government and corporate America and begin working remotely to reduce risk of coronavirus transmission, but there are serious questions about whether Congress has the legal and technological infrastructure in place to make it practicable for very long.
Right now the Republican conference in the Senate is facing a potential crisis with members unable to vote. Sen. Rand Paul (R-Ky.) recently tested positive for COVID-19 and Utah Republicans Mitt Romney and Mike Lee are self-quarantined because of their contacts with Paul. Additionally, Sens. Cory Gardner (R-Colo.) and Rick Scott (R-Fla.) are sidelined because of exposure to coronavirus, leaving a narrow Republican voting majority as the body negotiates a $2 trillion economic bailout package.
"I totally support the idea of remote voting so the Senate can continue to operate during this crisis," Sen. Lindsey Graham (R-S.C.) tweeted March 23. "We should make this change before the Senate leaves town."
Sens. Rob Portman (R-Ohio) and Dick Durbin (D-Ill.) introduced legislation last week that would allow the use of technology to cast their votes from outside the Senate chamber in the event of an "extraordinary crisis."
Such voting can be done for 30 days after a crisis is jointly declared by the majority and minority leaders, after which a full Senate vote would be required to on continue the practice.
In floor comments March 19, Portman said it's "important that we have the ability to convene for the continuity of government" not just in response to the coronavirus pandemic but also for future scenarios --involving terrorism, bioterrorism and other threats -- to ensure Article 1 constitutional roles are fulfilled.
"We have the ability to do it in a secure way, an encrypted way, in a way that would protect the fundamental right to vote and I think it's important that we move forward with this," he said.
The bill specifies that any technology used to conduct remote voting must be approved as "reliable and secure" by the Secretary of the Senate and Sergeant at Arms and Director of the Doorkeepers. Portman's office did not have an on-the-record response to questions from FCW about the type of technologies or software that might be employed.
Meanwhile, House Speaker Nancy Pelosi (D-Calif.) requested that Rules Committee Chair Jim McGovern (D-Mass.) issue a report on how to conduct member voting during the crisis, while House Administration Chair Zoe Lofgren (D-Calif.) will issue a memo outlining additional resources for teleconferencing.
In order to pull it off, Congress will have to confront barriers that have historically made it difficult for lawmakers to conduct core duties remotely.
"There is some but not a lot of constitutional case law in terms of what is required and how do you tell [someone is present]," said Daniel Schuman, a former legislative attorney with the Congressional Research Service and cofounder of the Congressional Data Coalition. "But for the most part, these are embedded in House and Senate rules, not the constitution."
That means House and Senate leaders could tee up a vote to alter those rules anytime they wanted.
Schuman said he believes Congress should allow remote voting soon as possible, before members go back to their districts and the possibility of further travel restrictions make returning to Washington difficult or impossible. According to a crowdsourced list compiled by Schuman, dozens of members have already implemented remote or telework policies for their D.C. offices.
However, one of the most immediate problems is that Congress has not planned or invested in the technological infrastructure needed to conduct its most essential functions off the Capitol grounds for very long. Schuman said unique solutions may be needed for different parts of the legislative process, including members and their personal staff, committee and leadership offices, support offices and agencies like the Government Accountability Office and floor business.
While "the nucleus is there" to conduct remote congressional hearings and sessions through commercially-available video conferencing software, Congress has historically underfunded legislative branch operations. Many staffers still struggle to get up-to-date computers, and the body has given short shrift to IT modernization until recently, when a special House committee was set up to explore the topic. That committee ultimately recommended requiring the House Information Resources office to reform its approval process for using outside technology, prioritize certain technological improvements and allow members to test new technologies.
"Their IT infrastructure is old because they didn't invest in it," Schuman said. "On an emergency, ad-hoc basis they can do the basics. Barely, but they can. On a long-term basis? No way."
Beyond legal and technological constraints, shifting to a remote work posture could fundamentally alter the way Congress operates. Much of the day-to-day business of legislating involves face-to-face interaction, whether to whip votes or collaborate on bills and amendments.
"Leaders don't just cross their fingers and hope to get a majority. They talk, they buttonhole you, they put their arm around you on the Senate floor," said Sarah Binder, a senior fellow at the Brookings Institute who focuses on the institution on Congress. "Yeah, that can be replicated [remotely] but not quite.… The difference about being in the room with somebody and not being able to go home for recess, those are the types of political pressures that leaders lean on to seal deals and those are harder certainly when people are isolated."
Others, like Jake Laperruque, senior counsel at the Project on Government Oversight, have worried that even a temporary shift could make it harder for the public and members of the press to question political leaders and give well-funded lobbyists another leg up in terms of access and influence.
Those concerns would become much more prevalent the longer Congress is forced to operate remotely. Because of that, leadership will likely have to develop both a short-term solution to deal with the current wave of infections and a longer-term plan if the prohibition on large group gatherings continues indefinitely.
"I think they really have no choice but to find some makeshift way of dealing with the crisis this month and in the coming months," said Binder. "It will be jury-rigged, it will be makeshift trying to deal in real time with a real crisis with some layered on old ways of doing business. One question is since we don't know what the crisis will look like over the next six months to a year … it may be that there's a little more systematic thinking for what needs to happen over the year."
Derek B. Johnson is a former senior staff writer at FCW.