Speaker Kevin McCarthy (R-Calif.)
What happens if Congress is unable to function? We got a small glimpse during the four days of gridlock as a divided Republican House majority dithered over their choice of Speaker — meaning no ability to act in case of a crisis, to hold hearings or pass legislation. For those of us who are veterans in the efforts to protect the continuity of our governing institutions, it was a familiar dilemma.
Twenty-one years ago, in the aftermath of the attacks on the United States on 9/11, it became clear to me that we had barely escaped a constitutional crisis of immense proportions. If United 93 had left Newark on time instead of 45 minutes late, the passengers on the plane would not have known that they were headed on a suicide mission. It would likely have hit the dome of the U.S. Capitol at around the same time that another plane hit the Pentagon, with devastating impact, very possibly decapitating Congress by killing or incapacitating more than half of the House, leaving the body without the quorum required by the Constitution to do any business. Vacancies can only be filled by special elections that, in the best of circumstances, take four months. Which would mean no Congress and the equivalent of martial law at a dangerous time.
Working with practitioners and scholars, Tom Mann and I created a Continuity of Government Commission, co-chaired by former White House Counsel Lloyd Cutler and former Sen. Alan Simpson, and issued reports on all three branches, leading with Congress.
Despite the urging of Congressman Jim Langevin (D-R.I.) to create a path to a remote Congress in the event of an emergency, our Commission, focused more on the terrorist threats, did not focus on a resolution to the problem of a Congress where for one reason or another members were unable to travel to Washington or had massive deaths and incapacitation as a result of a bioterror attack or a pandemic.
COVID-19 was a wakeup call, creating the real possibility of massive quarantines of lawmakers and of transportation shutdowns. This national crisis revived the importance of making sure, at a time of peril, that the United States had a functioning Congress that could appropriate money, legislate to deal with economic, national security and public health and safety issues arising from the pandemic or another catastrophe. Tom Mann and I wrote of the need to create a system of remote voting in response.
Many lawmakers saw the need as well. Under the leadership of House Rules Committee Chairman Jim McGovern (D-Mass.), the House created a system of proxy voting, enabling members who for health or other emergency reasons could not travel to Washington or appear in person in the Capitol to get a colleague to cast specific votes. In the Senate, a rare bipartisan pairing of Democrat Dick Durbin of Illinois and Republican Rob Portman of Ohio introduced a bill providing for remote voting in the event of an emergency. The Senate did not take it up.
While the House saw some abuses of the system by individual members, using it for personal convenience instead of legitimate reasons of health or emergency absence, the system worked, both for floor voting and in committees. It was especially important given the close partisan margins in the House, and the reality — even as COVID eased from pandemic to epidemic — that new variants could easily explode into another national and international crisis.
In the aftermath of COVID, we reconstituted the Continuity of Government Commission, under the leadership of former White House Counsel and Ambassador A.B. Culvahouse and former HHS Secretary and Member of Congress Donna Shalala, and its new report on Congress recommends a path to remote voting in both houses.
The new House majority disagreed — and in its debate over its rules package, several Republicans crowed over their elimination of the proxy voting provision, talking about how the idea of the House is that it meet in person, that this is a return to normalcy (despite the fact that a large share of its membership had used proxy voting themselves on multiple occasions.) Their eloquence notwithstanding, this is a big and troubling mistake on their part.
Republicans have a five-seat margin for their majority. In the previous Congress, half of the House Republicans refused to say whether they were vaccinated, and a sizable share of the new members ran as anti-Vaxxers. Their party goals for 2023 include eliminating as many vaccine mandates as they can. There is a good chance that some of their members will get COVID, and with new and deadly variants possible, may end up with serious cases. At the same time, as climate change brings more frequent and more deadly storms, including Category 5 hurricanes like the one that hit Florida last fall, floods like those we are seeing now in California and more, there are likely to be transportation glitches.
For the House, there remains the possibility that at a time when it needs to act there will not be enough members able to get to Washington to make that vital quorum of half the membership. Or the body might be able to get that quorum but with a distorted membership, missing members from a particular region or disproportionately from one party.
If and when a half-dozen Republicans find themselves unable to get to Washington — leaving the Democrats temporarily with a majority — Kevin McCarthy (R-Calif.) and his party may want to rethink the move they made more to score points than to protect the House from a set of threats to representative governance that are all too real.
Norm Ornstein is an emeritus scholar at the American Enterprise Institute.