In the complaint, the House GOP alleges that such “proxy” voting is unconstitutional.
Legally speaking, I strongly suspect the House GOP’s case is a loser. Proxy voting is unprecedented, but so are the circumstances, and the Constitution leaves congressional procedures up to the House and Senate, respectively. Here, courts have no role to play. The complaint is likely to be dismissed.
Setting aside the lawsuit’s crummy prospects, what about the politics of the matter? Those, too, are crummy for House Republicans.
On its face, H. Res. 965 seems eminently reasonable. The resolution reflects the same sort of operational planning conducted by myriad businesses, non‐profits, and government agencies in response to the ongoing public health emergency. Furthermore, the change is temporary and can be cut short.
Capitol Hill, like all of D.C., is under a stay‐at‐home order through at least June 8th, and travel is hazardous. Under the circumstances, existing House rules didn’t work. Something had to be done. The alternative was the continued idling of the House.
Before opposition to proxy voting became the party line, House Republicans recognized the necessity of remote working procedures. Consider Rep. Liz Cheney’s about‐face. On April 29th, she urged Speaker Pelosi to consider a “plan to allow the House to operate or function remotely” because “paralyzing the People’s House at a moment of national crisis is unacceptable.” Yesterday, however, Rep. Cheney was among the named plaintiffs challenging the very idea she had just supported!
In a floor speech opposing H. Res. 965, Minority Leader Kevin McCarthy complained that the resolution “disconnect[s] [the House] from the American people.” Yet only weeks before, he had worked with Speaker Pelosi to pass a $2 trillion stimulus—the largest ever spending bill—by unanimous consent, which involves an opaque vote and is typically reserved for ultra‐anodyne legislation. When Rep. Thomas Massie threw a monkey wrench into McCarthy’s plans, the House GOP caucus was outraged. It’s tough to square these recent events with McCarthy’s stated opposition to H. Res. 965.
In sum, the House Republicans’ legal and political arguments against proxy voting don’t hold water.
So, what’s actually going on here?
Here’s the sad truth: In today’s dysfunctional Congress, the House GOP has every incentive to prefer a shuttered shop.
As I’ve explained elsewhere, power in the contemporary Congress has become concentrated in leadership of the majority party in either chamber. Especially in the House, the minority party has no say in the legislative agenda.
Nor do House Republicans have any desire to perform oversight. In large part due to the centralization of power I just mentioned, modern lawmakers give priority to party over Congress as an institution. In practice, this means that lawmakers lose interest in overseeing the law’s execution whenever “their guy” sits in the Oval Office.
The upshot is that House Republicans have no hand in lawmaking, and they have no will to oversee a Republican president. They’re not irrational to oppose H. Res. 965; instead, they’re responding to the perverse incentives at work in today’s Congress.
To be clear, the Republicans aren’t doing anything the Democrats wouldn’t do were the shoe on the other foot. The forces at play are structural, in that they emanate from institutional changes in Congress over the last four decades—namely, the concentration of authority in the leadership of two highly polarized parties.
This article by William Yeatman first appeared in CATO on May 27, 2020.