Mary Margaret Olohan
– Health professionals said lawmakers should stay out of Washington, D.C., and vote remotely.
– U.S. senators proposed legislation allowing them to vote remotely, and legislatures across the country have begun to examine and pass such measures.
– But remote voting might not be entirely constitutional, said R Street Institute senior fellow James Wallner.
– “It violates the spirit, if not the letter, of the constitution,” Wallner told the Daily Caller News Foundation.
Health professionals said lawmakers should stay out of Washington, D.C., and vote remotely, but such remote voting might not be entirely constitutional.
As cases of coronavirus escalate across the country, D.C. Mayor Murial Bowser announced a stay-at-home order for the nation’s capitol Monday, saying residents of Washington, D.C., would face 90 days in jail and a $5,000 fine if they violate the order. As of Tuesday, there were 3,405 confirmed cases of coronavirus in the DMV area and 495 cases in D.C.
The House of Representatives is scheduled to be out until April 20, Politico reported, but at least some lawmakers might have to remain in the city as House Speaker Nancy Pelosi, bent on including Democratic initiatives in coronavirus legislation, refuses to move to remote voting and pushes action on legislation.
At least four members of Congress tested positive for the virus so far: Reps. Joe Cunningham, Mike Kelly, Mario Diaz-Balart and Ben McAdams.
‘Critical’: Health Experts Warn Against Congress Convening
Health experts told the Daily Caller News Foundation that lawmakers gathering in the nation’s capitol pose serious health risks to themselves and others.
“At a time when we are increasingly shifting the workforce from the office to home — encouraging the adoption of teleworking where possible to lower the risk of further spreading the COVID19 virus — it would be critical for Congress to re-enforce the importance of this message by adopting remote legislative practices,” Dr. Dennis Carroll, president of the Global Virome Project, told the DCNF.
Carroll, who directed the pandemic influenza and emerging threats unit for almost 15 years at the Agency for International Development (USAID), said reconvening Congress would pose a “great risk to both the members of Congress but also to their staff.”
“Congress would become a viral national mixing bowl as people would coming from every corner of the country – and allow the virus to spread even more widely and rapidly,” he added. “Remember it’s not just those that are obviously sick who spread virus but those who are infected and a symptomatic. ”
Dr. Ron Waldman, Professor of Global Health at the Milken Institute School of Public Health at George Washington University, said he believes D.C. health regulations should pertain to everyone in the city.
“I think it would be highly advisable for people to avoid large gatherings, such as those that would bring a House of Representatives together at the same place and at the same time,” he said. “We already know there has been transmission between congress people and senators, and I don’t know why one would want to take the chance.”
Waldman added that he thinks teleworking is “highly advisable.”
“There’s no question that this outbreak is going to be brought to a more rapid end if people practice extreme social distancing,” he said. “We need to follow the epidemiology of the out break and the federal government, states, and localities need to be thinking hard and fast about when they will feel that the situation has relented to the point that they would be willing to lift the recommendations in place.”
He continued: “But that time is certainly not now. As a citizen who relies on Congress, I would feel much better if they were doing that at a distance from each other.”
Senators Propose Remote Voting
Some senators proposed legislation that would allow lawmakers to vote remotely. Democratic Illinois Sen. Dick Durbin and Republican Ohio Sen. Rob Portman introduced bipartisan legislation March 19 that would allow senators to vote remotely during a national crisis.
“We live in an age where national emergencies, public health crises, and terrorism can threaten the ordinary course of Senate business,” Durbin said in a statement at the time. “We need to bring voting in the Senate into the 21st century so that our important work can continue even under extraordinary circumstances.”
He added: “While I know there is resistance to changing a Senate tradition to allow for remote voting during national emergencies, I believe this is an important issue and worthy of robust discussion amongst our Senate colleagues.”
Across the country, state legislatures scramble to pass resolutions allowing themselves to meet virtually or maintain social distancing guidelines. Arkansas lawmakers convene six feet from one another on a basketball arena, while Ohio lawmakers vote from separate rooms and New York senators pass legislation permitting them to vote by “remote means, including but not limited to teleconference or video conference.”
Rachel Bovard, senior director of policy at the Conservative Partnership Institute, noted that though there are constitutional questions as far as remote voting is concerned, “Congress is considered essential.”
“Doctors, nurses, delivery drivers, and grocery store clerks are still showing up to serve others, Members of Congress should be expected to as well,” Bovard told the DCNF. “Representative democracy has survived wars, depressions, and terrorist attacks. This is the job they were elected to do, regardless of circumstance.”
Bovard added that most staff jobs can and should be done remotely, such as drafting legislation, responding to constituent concerns and policy research.
“Members should not be putting their staff unnecessarily at risk,” Bovard said. “Many coalition meetings I’m a part of that involve congressional staff have turned into phone calls or Zoom meetings, and I would expect that to increase. Staff can still get information to their Member of Congress without entering the building. Members should be the only ones on the premises. And, as this moves forward and another congressional response may be warranted, they should be prepared to show up and vote.”
Constitutional Or Not?
Remote voting might not be entirely constitutional, according to R Street Institute senior fellow James Wallner.
“It violates the spirit, if not the letter, of the constitution,” he told the DCNF.
The whole point of Congress, Wallner said, is to assemble together in the same place in order to conduct the business of the nation. He added that safety and responsibility “must be considered alongside the constitution obviously, but they can’t ended up themselves be grounds to violate the constitution.”
“If that’s the case, then the constitution means nothing,” he said. “I think that’s very important to keep in mind. Certainly there are concerns and safety concerns and health concerns associated with this, and I think trying to figure out how to balance those concerns and how to protect against them is critical. But it’s not impossible.”
Wallner pointed out that there are several provisions in the Constitution that suggest remote voting, or a virtual presence, is not sufficient.
“For example,” he wrote in a March 26 LegBranch piece with Timothy LaPira, “the Constitution stipulates that Congress must assemble at least once a year. And it bars the House and Senate from meeting in a different location from that at which they sit presently. While the Congress has met in various places in its history, including Philadelphia and New York City, its members had to first physically congregate in the same place before they could approve meeting in a different location.”
“The Constitution assumes that members must travel to the same location and protects them from arrest “during their Attendance at the Session of their respective Houses, and in going to and returning from the same,” he continued.
Grappling with the dangers of nationwide sickness is not a “new thing for Congress,” Wallner added, pointing out that Congress faced similar challenges during the 1793 Philadelphia Yellow Fever epidemic. At the time, Philadelphia had about 50,000 to 55,000 residents, Wallner said, and while 20,000 of those residents fled the city, another 5,000 died during the epidemic.
“So this is a very serious thing,” Wallner said. “Congress had adjourned in June of that year, but pursuant to the constitution, they were scheduled to come back in December.”
Former President George Washington’s cabinet was still meeting in Philadelphia at the time, Wallner said, and the president wrote to constitutional expert and former President James Madison for advice on what to do and whether he had the constitutional power to convene Congress in a different location during the dangerous epidemic.
“Madison said, no, you don’t have that authority,” Wallner said, adding that Madison advised Washington to write to members of Congress, warn them about the situation in Philadelphia, and suggest that Congress meet in another location as a recommendation. “Then Congress would have to assemble and decide if that is where, in fact, they wish to meet,” Wallner said.
“Congress can only act when Congress is together,” he said. “And so it’s Congress’s decision on where it meets, when it meets and what kind of rules it follows when it does meet. But in order to make those decisions, it has to actually convene itself.”
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