Statement of Mr Martin B Gold Roundtable of the Permanent Subcommittee on Investigations Senate Committee on Homeland Security and Government Affairs “Continuity of Senate Operations and Remote Voting in Time of Crisis” April 30 2020 Mr Chairman Ranking Member Carper and members of the Subcommittee good morning My name is Martin Gold Nearly a half century ago I began working at the United States Senate for my mentor Senator Mark O Hatfield of Oregon I served on his personal staff and by his appointment on the Senate Select Committee on Intelligence and on the Senate Rules Committee Later I was privileged to assist two Senate Majority Leaders Howard Baker and Bill Frist I have studied and loved this institution all my adult life and have the highest respect for the role it plays at the center of our constitutional system Thank you for your invitation to participate in this roundtable Senate leaders have worked thoughtfully to mitigate the impact of the coronavirus on the chamber’s deliberations For example extended roll call votes social distancing on the Floor the substitution of conference calls for in-person meetings restrictions on access to the Capitol and the office buildings and pro forma sessions are useful strategies to minimize exposure to disease When the Senate returns to business many of these steps may continue But is there more the Senate can do to retain its deliberative character while protecting its membership and staff Proposals have been made to use technology to augment or replace customary operations Mr Chairman you and Senator Durbin have legislation to permit remote voting 1 Senator Paul has a separate resolution providing a different means to the same end More proposals may emerge Assuming they are technologically feasible are they constitutional At issue are provisions in Article I that a quorum be present to conduct business and may compel the attendance of absent Members 1 that Congress shall assemble at least once a year in a meeting 2 and that neither House without the consent of the other may adjourn to a place other than that in which they are both sitting 3 Will virtual proceedings satisfy these requirements And if they do what must be done to amend or override Senate rules to make them happen The most basic issue arises from the mandate that a majority of each House shall constitute a quorum to do business If the absence of a quorum is shown the Senate must either establish a quorum adjourn or recess pursuant to a previous order Both your resolution and Senator Paul’s stipulate that participation by a majority of Senators in a virtual vote shall constitute a quorum Would that be sufficient Given Article I authority for Congress to self-govern I believe it would While the rulemaking power is not absolute and cannot be arbitrarily exercised it is ample The Supreme Court addressed this point in United States v Ballin 4 a case that challenged legislation enacted under an 1890 House rule concerning the way quorums were established 1 Article I Section 5 Clause 1 Article I Section 5 Clause 2 as amended by the Twentieth Amendment Section 2 3 Article I Section 5 Clause 4 4 United States v Ballin 144 U S 1 1892 2 2 Prior to that year it was the practice of the House to recognize for a quorum only those Members who participated in a vote This arrangement led to the frequent tactic of “quorum breaking ” in which Representatives who were present in the House blocked legislation by simply declining to vote 5 On January 29 1890 the House considered a contested election case Smith v Jackson 6 Attempting to obstruct a resolution to seat Smith members of the minority who had vigorously debated the issue refused to vote on the motion to consider it The outcome was 161 yeas 2 nays and 165 not voting Combined with true absentees less than a majority of all sworn Representatives had voted “No quorum ” exclaimed Representative Charles Crisp of Georgia a leader of the opposition Speaker Thomas Reed conducted a count of Members in the chamber 7 He took note of all Members present not just the ones who had voted and announced that a quorum was present The Speaker’s ruling ignited a parliamentary fracas that stretched over three days At the end the House affirmed him In February it memorialized the change by adjusting its rules to make them consistent with the new precedent Later in 1890 Congress passed legislation increasing tariffs on certain goods Mr Ballin was an importer He contended the legislation was not properly enacted because a quorum of the House was not present The tally on the tariff bill was 138 yeas and zero nays with 189 5 “As early as John Quincy Adams’ time members had realized that on a matter where the sides were closely divided… if the minority simply refused to vote it would usually mean there would be no quorum for considering business The majority was almost certain to have a few absentees and so the votes cast would number fewer than half of the members of the House ” Richard B Cheney and Lynne V Cheney Kings of the Hill How Nine Powerful Men Changed the Course of American History 1983 1996 p 104 6 The dispute arose from a contested 1888 election in the Fourth District of West Virginia 7 Reed stated “The Chair directs the to record the following names of members present and refusing to vote ” James Grant Mr Speaker The Life and Times of Thomas B Reed The Man Who Broke the Filibuster 2011 p 259 3 Representatives shown as not voting However apart from the 138 Congressmen who voted the Speaker noted that 74 other Members were also present Taken together the 212 represented a quorum of the House Reed declared so and the bill passed The Ballin litigation involved the interplay of two explicit constitutional provisions One requires that a quorum be present to pass legislation The other grants Congress the right to manage its own proceedings After addressing the sweep of this rulemaking power and limitations on its arbitrary or overreaching exercise the Supreme Court upheld the validity of the statute Justice David Brewer explained “The Constitution empowers each house to determine the rules of its proceedings It may not by its rules ignore constitutional restraints or violate fundamental rights and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained ”8 Brewer continued “Within these limitations all matters of method are open to the determination of the house and it is no impeachment of the rule to say that some other way would be better more accurate or even more just ”9 It was up to the House to decide how to ascertain a quorum said the Court “The Constitution has described no method of determining the presence of a majority and therefore it is within the competency of the House to prescribe any method which shall be reasonably certain to ascertain the fact ”10 8 144 U S 1 5 Ibid 10 144 U S 1 6 9 4 Brewer described a duty of judicial deference to this power “It is no objection to the validity of the rule that a different one has been prescribed and in force for a length of time The power to make rules is not one which once exercised is exhausted It is a continuous power always subject to be exercised by the house and within the limitations suggested absolute and beyond the challenge of any other body or tribunal ”11 Accordingly Congress may alter longstanding procedures to meet changing conditions 12 The Senate has also changed the way it determines that a quorum is present Prior to the Civil War the Senate considered a quorum to be a majority of Senators entitled to be sworn However with the secession of the Confederate states 18 seats of Southern Senators were abandoned and left vacant Because those states were deemed still part of the Union although in rebellion counting a quorum the old way would mean that more than two-thirds of the Senators who remained would be needed to do business Confronted with this untenable situation for much of the war the Senate finally amended its rules so as to construe a quorum to be a majority of Senators chosen and sworn 13 In the present day this construction is expressed in Senate Rule VI 11 Ibid For example subsequent to the September 11 terrorist attacks the House of Representatives provided for a revised way to count a provisional quorum in the event that catastrophic circumstances prevented a majority of Members from assembling House Rule XXII states that such circumstances include “natural disaster attack contagion or similar calamity rendering Representatives incapable of attending the proceedings of the House ” 13 Senator John Sherman of Ohio proposed the resolution The resolved clause read “That a quorum of the Senate shall consist of a majority of Senators duly chosen ” Sherman explained the problem “The framers of the government never intended that their schemes should be broken up and this government disorganized by the absence of the representatives of some of the States caused by death secession or anything of the kind We are now just in that critical condition when we cannot call for a division on a question We are afraid to call for a division we are afraid to take a sense of the Senate for fear we shall be left without a quorum ” Congressional Globe May 4 1864 p 2051 By 26-11 the Senate adopted Sherman’s resolution Congressional Globe May 5 1874 p 2087 12 5 In National Labor Relations Board v Noel Canning et al 14 the Supreme Court unanimously invalidated three recess appointments to the National Labor Relations Board in between pro forma sessions In making the appointments the Executive argued that pro forma sessions were merely an artifice to prevent exercise of the recess appointment power Once again a major consideration in a constitutional dispute was judicial deference to a coordinate Branch Citing the Ballin precedent Justice Breyer stated “The standard we apply today is consistent with the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct its business ” Breyer added “The Constitution thus gives the Senate wide latitude to determine whether and when to have a session as well as how to conduct that session This suggests that the Senate’s determination about what constitutes a session should merit great respect Furthermore this Court’s precedents reflect the breadth of power constitutionally delegated to the Senate We generally take at face value the Senate’s own report of its actions ”15 In Convention on August 10 1787 the Framers debated the proposal that a majority of members in each House would constitute a quorum to do business 16 Although they considered lesser and greater numbers they settled on a majority believing that it would foster broad representative participation in Congress’s work As George Mason of Virginia argued “In this extended country embracing so great a diversity of interests it would be dangerous to the distant parts to allow a small number of members of the two Houses to make laws ”17 14 National Labor Relations Board v Noel Canning et al 573 US 513 2014 Noel Canning slip opinion at 34-35 16 The requirement emanated from a recommendation of the Committee on Detail On August 6 1787 the Committee reported to the Constitutional Convention 17 James Madison Debates in the Federal Convention of 1787 Volume Two p 376 The opening of the First Congress met this objective The Senate convened on March 4 1789 Eight Senators from five states were 15 6 Permitting remote voting and virtual proceedings fully serves and closely relates to this central constitutional objective Related to it is the power to compel attendance of absentees Exercise of this authority is discretionary obviously more difficult with remote voting However that fact does not tarnish the validity of deeming participants to be present The Article I requirement of an annual meeting has already been satisfied for 2020 Courts have never had to construe this mandate It therefore presents a true case of first impression whether Congress must gather in person at least once in 2021 or if it would suffice to have contemporaneous participation from Members scattered in different locations coupled with a statement from Congress that the requirement had been met The same considerations apply to convening either or both Houses upon a call of the President Would the courts invalidate legislation by applying a requirement for a physical meeting if Congress declares is unsafe to convene one As Justice Robert Jackson once observed it is useful to temper “doctrinaire logic with a little practical wisdom ” Failure to do so he said could convert the Constitution into a “suicide pact ”18 If the Senate decides to authorize virtual proceedings it must either amend or override a body of Senate rules specifying either that such proceedings satisfy the rules or that the rules are expressly waived It must also take account of any precedents or orders that may operate notwithstanding contradictory language in the rules to avoid inadvertent impact on them 19 present an insufficient number for a quorum Another Senator appeared on March 19 one more on March 21 and yet another on March 28 Finally on April 6 the necessary twelfth Senator arrived so that eight states in total were represented The Annals of Congress states “Richard Henry Lee of Virginia then appearing took his seat and formed a quorum of the whole Senators of the United States ” 1 Annals of Congress Proceedings of the Senate of the United States at the First Session of the First Congress Begun at the City of New York March 4 1789 18 Terminiello v City of Chicago 337 U S 1 1949 Justice Jackson dissenting 19 All are exercises of the rulemaking power and stand on an equal constitutional basis The latest in time overrides previous exercises to the extent of an inconsistency 7 One rule involves committee action • Rule XXVI paragraph 7 requires that before a measure matter or recommendation can be ordered reported from committee a majority of committee members be contemporaneously present20 and that a majority of those Senators vote to report it 21 Committees have discretion whether to permit proxy voting but proxies cannot circumvent these requirements Once something is available for consideration in the full chamber other rules are implicated • Rule VI already discussed here specifies quorum requirements optional mechanisms to produce a quorum and a prohibition against a Senator absenting himself from service of the Senate without leave • Rule X essentially defunct in modern practice specifies are requirement for a twothirds vote in order to create a special order for consideration • Rule XII provides for the process by which roll call votes shall be conducted and conditions under which a Senator may be excused from voting 22 20 Senate Rule XXVI paragraph 7 clause 1 Its origins are in the Legislative Reorganization Act of 1946 Senate Rule XXVI paragraph 7 clause 3 This rule further stipulates that “Action by any committee in reporting any measure or matter in accordance with the requirements of this subparagraph shall constitute the ratification by the committee of all actions theretofore taken by the committee with respect to that measure or matter including votes taken upon the measure or matter or any amendment thereto and no point of order shall lie with respect to that measure or matter on the ground that such previous action with respect thereto by such committee was not taken in compliance with such requirements ” 22 S Res 548 amends this rule to permit remote voting for a 30-day period upon a determination by the Majority and Minority Leaders or their designees that “an extraordinary crisis of national extent exists in which it would be infeasible for Senators to cast their votes in person ” The designation may be renewed for 30-day periods by an affirmative vote of three-fifths of Senators duly chosen and sworn Senators voting remotely are deemed present for quorum purposes Senator Paul’s proposal not yet introduced makes in order a privileged motion to authorize remote voting specifies procedures for its consideration sets a three-fourths supermajority threshold for passage and deems Senators voting remotely to be present for quorum purposes 21 8 • Rule XV requires that amendments and instructions accompanying motions to recommit be reduced to writing and be provided to the desks of the Majority Leader and the Minority Leader before being debated the Rule further provides that all motions shall be reduced to writing on demand before being debated • Rule XIX sets out debate procedures It provides for recognition by the Presiding Officer and provisions concerning protocol for the conduct of debate along with mechanisms to address alleged violations of such protocol Mr Chairman if the Senate is wary about amending its rules while being mindful that the contagion is active and could recur it might adopt a Standing Order that would temporarily override the Rules without changing their text This is what the Senate did in the 113th Congress with S Res 15 providing a Standing Order to reduce post-cloture time on certain nominations and guaranteeing a limited right to offer amendments in exchange for capping debate on a motion to proceed to legislation The Standing Order expired at the end of the 113th Congress It may be sensible to enter a Standing Order that responds to immediate and near-term emergency conditions while acting more deliberately on making permanent changes to the Standing Rules Whether proceeding by Standing Order or Rules amendment the Senate should consider • What are the conditions and mechanisms that permit conversion to a virtual Senate • For what duration does the authority for a virtual Senate remain in effect What is necessary to extend that authority and at what intervals 9 • If this is done via Standing Order for how long shall it remain in effect • What proceedings are covered Is it only voting or also debate amendments and the full range of other Senate deliberations Virtual proceedings are not truly a substitute for normal Senate operations The opportunity for Senators to interact with each other with party leaders and with staff is clearly diminished if committees the cloakrooms and the Floor do not function normally Moreover as Senator Robert C Byrd often said the two great rights of Senators are the right to debate and the right to amend Neither of these rights is vindicated by a process that allows remote voting without accommodating the need for virtual proceedings Both the quantity and quality of Senators’ engagement would be diminished It may be necessary to implement a virtual process in phases beginning with remote voting However to the greatest degree and earliest time feasible proceedings should be extended to replicate the Senate floor 23 Virtual proceedings are sub-optimal but even worse would be a Senate that needs unanimous consent to operate for prolonged periods in pro forma sessions or one that must convene in hazardous conditions if there is an objection Again I appreciate the opportunity to share these perspectives with you and I am pleased to respond to your questions 23 For example the British Parliament has authorized virtual proceedings phasing them in rather than converting all at once On April 22 Parliament instituted a hybrid Prime Minister’s Question Time with a minority of Members present in the House of Commons and most Members able to join virtually Parliament is reviewing how to expand virtual proceedings to other aspects of its business 10