A growing number of members of Congress — including Rep. Mark Meadows, R-N.C., the incoming White House chief of staff — have put themselves under “self-quarantine” after they came into contact with a coronavirus-infected individual at a conference of conservative activists last month. They’re unlikely to be the last lawmakers exposed to the virus as it spreads across the country: Members of Congress, like the rest of us, are vulnerable to an illness that knows no party lines. The House and Senate need to plan for an outbreak that sidelines a significant number of lawmakers for days or weeks.
Unfortunately, Congress is woefully unprepared for continuing its work during a pandemic. The Constitution requires both houses to establish a quorum — defined as a majority of members — to conduct business. Any lawmaker can issue a quorum call in her chamber, and if a majority is not present, then the chamber cannot enact any legislation until that threshold is again met.
Under House and Senate rules, only members who are present in person count toward a quorum. So if at least half of either chamber is under quarantine or otherwise unable to attend a session, the legislative process could come to a grinding halt right in the middle of a crisis.
That would be not only disruptive, but potentially disastrous. It’s quite likely federal agencies will need additional funds and additional authorities to manage the coronavirus outbreak. If either chamber falls short of a quorum, Congress will not be able to enact legislation responding to urgent needs.
The House — but not the Senate — has taken modest steps to prepare for a prolonged failure to establish a quorum. In 2005, with memories of the Sept. 11 terrorist attacks still fresh, the House amended its rules to allow for a “provisional quorum” to conduct business if catastrophic circumstances prevent a majority from meeting. The provisional quorum procedure is cumbersome, though, and it would not allow the House to act quickly to respond to an outbreak.
Under the current provisional quorum procedure, the House first must summon its members back into attendance and wait at least 72 hours. Next, the sergeant-at-arms must prepare a “catastrophic quorum failure report” in consultation with Congress’s attending physician, the clerk of the House and public health and law enforcement officials. Once that report is delivered, House rules require an additional 24-hour wait before the depleted chamber can resume business.
By that point, at least four days will have elapsed without legislative action. Even then, the House cannot pass a bill without the concurrence of the Senate — which might not be able to meet at all, because it hasn’t followed the House’s lead in adopting a provisional quorum procedure.
The world is very different now than it was in 2005, when the House amended its rules. Video conferencing technology has reached the point that anyone with a smartphone and a cellular or wireless connection can participate virtually in a meeting. There is no reason the House and Senate need to shut down for days or weeks when all their members still can converse face-to-face from the safety of self-isolation.
The only impediment arises from the House’s and Senate’s own rules. The Constitution says that “a majority of each [house] shall constitute a quorum to do business,” but it doesn’t specify whether the majority threshold can be met by video conference. (Not surprisingly, the founders did not anticipate Skype and Zoom.) The Constitution also says “each house may determine the rules of its proceedings.” A fair reading of these two provisions is that if the House and Senate adopt rules allowing their quorum requirements to be satisfied by videoconference, those rules would bind.
The most directly relevant Supreme Court decision supports this view. In 1890, the House changed its rules so that members who are present but do not vote yes or no on a particular bill still would count toward a quorum. The Supreme Court upheld that rule two years later in the case of United States v. Ballin. As Justice David Brewer wrote for a unanimous court, the Constitution “has prescribed no method” for determining whether a quorum is present, “and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact.”
Members of Congress may be reluctant to adopt rules that would allow for video conference meetings under ordinary circumstances. That lawmakers from different parties and regions congregate together in Washington — where they rub shoulders, slap backs and break bread — arguably contributes to collegiality and cooperation among their ranks. Partisan polarization on Capitol Hill during the past several years suggests that in-person sessions might not be accomplishing their objectives. Still, veneration for Congress’s institutional history — if nothing more — may persuade lawmakers that in-person meetings should remain the norm.
But these are not normal times, and they will become increasingly abnormal as infections and fatalities mount. Amended rules should provide for legislative sessions by video conference if the leaders of both parties, in consultation with public health authorities, agree that holding or traveling to an in-person meeting would pose unreasonable health or safety risks.
Video conference sessions should be limited to bills directly related to the emergency at hand, with the minority leader’s concurrence required before a matter is put to a vote. Thus, the Senate would not be able to use a video conference session to ram through a controversial judicial nominee. (The Senate should, though, provide an exception to the no-nominations rule for the unlikely event that a pandemic incapacitates so many jurists that the Supreme Court or a lower federal court cannot conduct business without additional confirmations.)
Some doubts still may linger about the legal validity of legislation enacted via video conference, even though the constitutional case for Congress-by-video is overwhelmingly strong. To quash such doubts as quickly as possible, the House and Senate should pass legislation allowing for a fast-track appeal to the Supreme Court of any case challenging the constitutionality of a statute enacted during a video conference session. The Supreme Court, which already has the capacity to hold votes remotely, could then affirm what already is apparent: Congress has the power to do this.
But what’s most important is that Congress act fast. Members still will need to meet once in person to amend their rules to allow for future video conference sessions. Both chambers are in session this week, but not the week that begins next Monday, March 16. By the time lawmakers are scheduled to reconvene on Monday, March 23, the outbreak may have reached the point that an in-person meeting would seriously endanger many older members. (Twenty-seven senators and more than 60 representatives are above age 70 and thus particularly vulnerable to the disease.)
Continuity of government is a critically important element of crisis management. We need all three branches of the federal government to remain up and running even if — indeed, especially if — other sectors of society shut down. Congress is now a weak link, but it has a chance to fix that. It should seize the opportunity.
Daniel Hemel is an assistant professor of law at the University of Chicago and a visiting professor at Stanford University law school. He wrote this article for the Washington Post.