The British Parliament shut down when the Black Death struck in 1349, but it will escape that fate during the current pandemic. “Thanks to modern technology, even I have moved on from 1349,” House of Commons Leader Jacob Rees-Mogg said Tuesday as lawmakers approved a “virtual Parliament” by unanimous vote. The much younger U.S. Congress, by contrast, is not exactly stuck in 1349, but neither is it close to deciding it can do business remotely. Why isn’t it, though? Understandable reservations from members aside, there’s really nothing to stop it.
As the federal government battles the coronavirus, an absent Congress would leave the nation without legislative attention or oversight to guard against the waste and abuse of funds. At the same time, it may be challenging for so many people to gather in the House and Senate while practicing social distancing and other safety measures — a number of lawmakers and staffers have already tested positive for the coronavirus. The Senate managed to pass a nearly half-trillion-dollar relief bill Tuesday by voice vote, without all senators having to be present, but any one senator could have blocked that vote under current Senate rules. The House passed the bill Thursday, but most members needed to be physically present because some of them insisted on a roll-call vote, and so lawmakers returned to the Capitol. Until the plan was abruptly scuttled on Wednesday, the House was also going to take up a proposal for a temporary rules change that would have allowed proxy voting during the pandemic.
Like Parliament, Congress can use technology to help it do its job. A teleworking democracy is possible, but there are a few obstacles. House Speaker Nancy Pelosi has said there are “serious constitutional, technological and security concerns” with remote voting. Clearly, concerns about politics and tradition remain as well. But reasonable approaches, with guidance from the past, can help overcome each of them.
Technology is probably the least of the hurdles. The terrorist attacks of Sept. 11, 2001, and the anthrax attacks weeks later, spurred Congress to look into what was possible. As Wired explained in October 2001, one initiative suggested that senators and representatives gather online, in “an electronic Congress.” While that idea didn’t take off at the time, 2001 did leave Congress a meaningful legacy for advancing technology. That year of disruption yielded wide use of BlackBerry email devices, for example, and the growth in the use of remote-access technology. As Rep. Anna G. Eshoo (D-Calif.) said in November 2001, the anthrax discovery on Capitol Hill “was the perfect example of the importance of the mobile office.” In the current crisis, much of what Congress can already do from the safety of members’ and staffers’ homes would be far more difficult if not for this legacy. Those early efforts were joined by others. In 2005, a hearing featured a witness participating via videoconference from Beirut, despite the constraints of a low-quality feed. In 2011, changes to House rules pushed committees to live-stream hearings and expand digital archiving. Dedicated lawmakers and tech visionaries alike have continued to work toward a Congress that harnesses technology as a policymaking tool even as its members still engage in old practices like making handwritten edits to the texts of bills being considered by committees. And some lawmakers have been promoting efforts to institute remote voting for several years.
Security hurdles, likewise, are surmountable. Since 1973, the House has used an in-person electronic voting system. The smaller Senate continues to vote using verbal roll calls. While votes are disputed from time to time, both the House and Senate systems offer reasonable guarantees that members of Congress actually appear and vote in person. In a remote system, what would happen if the deciding vote on a contentious bill was cast by an aide to an incapacitated representative or an unseen nefarious actor? Taking time to build the best and most secure system should be a given. Chambers also need to ensure that rules adequately address situations that are unusual or might not be recognized immediately, such as a lawmaker disputing the accuracy of a remote vote.
The proposed measure that was abandoned Wednesday when it became clear that it did not have bipartisan support would have allowed lawmakers who were not physically in the Capitol to designate members who were there to cast votes on their behalf. As a stopgap system, it was somewhat low-tech; members would have been able to designate their proxies and relay specific voting instructions via email and letter to the House clerk. Such proxies would have been less secure than the more technologically sophisticated ones that could be developed if proxy voting were to be introduced permanently for use in future emergencies. Congress handles highly classified information all the time, and its experience with initiatives like streaming committee hearings suggests that it shouldn’t be too hard to overcome security and technology obstacles.
The most uncertainty probably centers on legal concerns. No provision in the Constitution or federal law prohibits Congress from remote voting. But Article 1 does speak to concepts of “meeting,” “assembling” and “attendance.” Chamber rules would have to be amended, and while courts typically afford the House and Senate great leeway in making their own rules, remote voting could put Congress into uncharted constitutional territory. Skeptics note that remote voting could be a risky tool for major legislation, subjecting it to legal scrutiny, but certainly some bills, like those naming federal buildings, would not create a constitutional crisis if challenged in court. Remote voting might not be the right path for every bill, but like any legal question, the sooner remote voting is tested, the sooner courts can evaluate it. Just as actions taken after the 9/11 attacks positioned Congress to build new capabilities for working remotely, reasonable steps to put remote voting in place can create constitutional clarity for future emergencies and contingency planning.
Despite no clear indication that remote voting would advantage Democrats or Republicans, considerations of politics and tradition are by far the most difficult hurdles to clear. The House and Senate floors are exclusive communities. Progress often comes when members with different views and priorities spend time together. Through relationships, they gain a better understanding of colleagues and the communities they represent. Nearly anyone who has participated in a legislative negotiation, from those who serve on the staffs of House freshmen to those on committees working for the stalwarts of the Senate, has experienced a staff-level discussion that resolved to settle an impasse by suggesting that “your boss find mine on the floor.”
For lawmakers, showing up to vote on the floor in front of peers creates accessibility and accountability. In small-town terms, it is the equivalent of a businessman knowing that his customers will see him when he walks down Main Street. But such traditions are not threatened by the prospect of remote voting. For instance, despite years of proven capability, congressional hearing testimony via video conferencing remains relatively rare. For appearances by Cabinet secretaries, chief executives, court nominees and other witnesses of gravity, remote testimony isn’t even in the discussion. Realistically, Congress’s preference for in-person voting and witness testimony is strong, and absent a pandemic or other crisis, the use of remote technologies would remain rare.
This month, Pelosi adopted a temporary policy to allow the introduction of legislation electronically. A prominent bipartisan Senate resolution put forward by Sens. Rob Portman (R-Ohio) and Richard J. Durbin (D-Ill.) has brought the Senate closer to temporary use of remote voting than ever before. Doing what he can under difficult circumstances and constrained by the rules, Sen. Roger Wicker (R-Miss.), the chairman of the Senate Commerce Committee, convened a “paper hearing” this month on the use of data to fight the coronavirus, with committee members and witnesses submitting all questions and testimony in writing. As calls to consider remote voting increase, Congress should remember its own history in adopting technology, and accept the pragmatic value of new tools that address real needs. A tradition-bound Parliament figured this out. Congress can, too.