The change would ensure that the business of Congress could go on during crises such as the coronavirus pandemic.
Multiple members of the House have reported positive tests or exposure to the coronavirus, the worst being 45-year-old Utah Democrat Ben McAdams, who was hospitalized with breathing troubles over the weekend. In the Senate, Rand Paul has tested positive, and Amy Klobuchar reported that her husband is hospitalized and receiving oxygen.
It’s time for Congress to follow the rest of the country and work remotely. That means taking unprecedented steps that both houses have resisted for years. While it would be a good thing to expand remote voting capacity permanently, now is not the time to leverage a crisis into long-term reforms; short-term measures that prove workable can be assessed later for their long-term viability. Remote voting should be passed immediately as a short-term emergency measure and reevaluated after the present crisis has passed.
Remote voting could never be a full substitute for the presence of Congress in Washington. Our representatives frequently need to meet with each other and their staffs and receive briefings, many of them involving information that is more securely delivered in person in the Capitol than over any network. Public hearings require physical presence. But much of Congress’s staff work could already be done outside of D.C., and the challenges of security for 535 people voting on bills are not significant. If necessary, each member could still have a (younger, D.C.-resident) staff proxy on site to verify the vote cast. Remote voting would ensure that the business of Congress could go on without large physical gatherings of infected or vulnerable representatives. If it proves workable, it could also lengthen the amount of time members of Congress could spend in their home states and districts without ignoring their core duties.
The need is bipartisan, but it would prevent the vagaries of illness from unsettling the partisan balance of power. President Trump has supported the idea, and Dick Durbin and Rob Portman have proposed a resolution:
Durbin called for establishing “a verifiable technology and procedure so members do not have to be physically present.” “Five of our Senate colleagues were unable to come to the floor of the Senate and vote because they’re in self-quarantine at this moment,” he said. “The numbers could grow to the point it could reach an extreme where there’s a question of an actual quorum on the floor of the Senate.”
Portman and Durbin’s resolution would give the Senate majority and minority leaders joint authority to allow secure remote voting for up to 30 days during emergency situations such as the current pandemic. Under the measure, the Senate could vote to extend the initial authority in additional 30-day increments.
The need in the case of the Senate should be particularly obvious: Five Senators are between the ages of 83 and 86, and more than a quarter of the chamber is age 70 or over. Senate traditionalists such as Mitch McConnell and Roy Blunt have thus far proven resistant, given their hesitance to open broader questions about changing the rules, but they should reconsider given the exigencies of the situation.
The Constitution should not be an insuperable obstacle, although it might preclude either House from going to remote voting without the other. Article I, Sections 4-5 provide:
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day [which they have]. [In each House], a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings. . . . Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Obviously, when the Framers wrote the requirements that Congress “assemble” and do so in the same “Place,” and that various rules be determined by those “present,” they anticipated physically assembling in the same location. But nobody in 1787 would have thought that this excludedpresence by telecommunication, as no such thing was possible at the time. The best methods of long-distance communication in America in 1787 were crude tools such as smoke signals. Samuel Morse’s telegraph would not be invented for another half a century; its French predecessor was not publicly demonstrated until 1793. Constitutional interpretation typically tries to apply old rules to new technology by finding analogous Founding-era practices, but there is really no contemporary analogue to being present in a legislative chamber by remote technology. The best answer is instead to leave interpretation of these requirements to the House and Senate themselves.
The Supreme Court, in its 2014 decision in NLRB v. Noel Canning, ruled that President Obama could not make recess appointments during pro forma sessions. Those pro forma sessions, at which no Senate business was conducted, were held precisely to prevent short recesses in the Senate’s calendar from giving Obama an excuse to make recess appointments. Calling short recesses and interrupting them with pro forma sessions were practices unknown at the Founding, when it was not practical for senators to travel to and from the capital in a few days.1
The Court gave strong weight to the Senate’s determination that it was not in recess during the pro forma sessions, notwithstanding the fact that it was transparently engaged in a legalistic interpretation of a “session” in order to thwart the president. The Court stressed “the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct its business”:
The Constitution . . . gives the Senate wide latitude to determine whether and when to have a session, as well as how to conduct the session . . . when the Journal of the Senate indicates that a quorum was present, under a valid Senate rule, at the time the Senate passed a bill, we will not consider an argument that a quorum was not, in fact, present.
The Court emphasized that its deference may not be absolute in every case, but in Noel Canning, it considered the question closed so long as the Senate was sufficiently present to be capable of doing business. If both chambers changed their rules to consider remotely present members to be present and able to vote, that standard would be satisfied.
The business of the nation requires Congress to remain on duty during a crisis such as this one. Changing the rules to ensure the functioning of the national legislature is the responsible thing to do.
Column: Why impeachment isn't going away
Trump supporters are right to feel vindication after Robert Mueller’s testimony before Congress. At times the special counsel seemed unfamiliar with the contents of his own report. He came across as aloof and confused and often unable to answer both Democratic and Republican questions to the lawmakers’ satisfaction. The same media figures that began the day saying Mueller’s appearance might be the game changer ended up calling it a flop. “Democrats now have one option to end Trump’s presidency,” read the headline of Dan Balz’s analysis in the Washington Post. “The 2020 election.” Trump, as always, put it more memorably: “TRUTH IS A FORCE OF NATURE!”
The real truth is Mueller’s testimony was never going to interrupt preexisting trends. Support for impeachment has been stable for a year at around 40 percent in the Fox News poll of registered voters. Fox asks, “Do you think President Trump should be impeached and removed from office, or not?” In June 2018, 39 percent of respondents answered yes. Last week, 42 percent said the same. Opposition to impeachment has hovered around 50 percent during all this time. When the most recent Fox News poll asked if Mueller’s testimony might cause voters to change how they felt about Trump, only 8 percent said there was a strong chance of that happening. Forty-nine percent said not at all.
Views of President Trump are cast iron. Mueller might have overturned this equilibrium by offering new evidence incriminating Trump or by saying definitively that Trump obstructed justice. He did neither. Nor was he going to. It was clear from his May press conference that Mueller did not want to appear before Congress and that he had said all he was willing to say in his report. The negotiations over his testimony that stretched into midsummer, the sudden delay of his testimony by a week, and the addition of his chief of staff as counsel further indicated his reluctance as well as his lack of assurance before the cameras. The presence on the committee of Republicans hostile to Mueller’s investigation and to his findings meant that the hearing would not be entirely favorable to Democrats. Sure enough, Mueller’s performance was a disappointment.
But President Trump and Republicans would be wrong to assume that the Democrats’ drive to impeachment has ended. The will to overturn the 2016 election never depended on Mueller. He was merely the most likely instrument of Trump’s undoing. Democrats have called for impeachment since Trump’s inaugural. What they have lacked is the means. Maxine Waters raised the idea in February 2017, months before Trump fired James Comey and set in motion the train of events culminating in Mueller’s appointment as special counsel. Tom Steyer launched Need to Impeach in October 2017, a year and a half before Mueller filed his report. Last January, on the first evening of the House Democratic majority, Rashida Tlaib declared her intention to “impeach this m—f—r.”
The impeachment resolution the House voted on last week had nothing to do with Mueller or his report. It found Trump guilty “of high misdemeanors” and “unfit to be president” because of his “racist comments that have legitimized and increased fear and hatred of new Americans and people of color.” The measure didn’t even pretend to have a relationship with actual criminal or civil law. It received 95 votes nonetheless, all Democrats, including the chairman of the House Judiciary Committee. The same man who, after Mueller’s belly flop, argued before the Democratic Caucus that he has enough material to begin impeachment right now. Mueller’s testimony might not increase the number of House Democrats for impeachment from less than half (40 percent) to a majority. But it’s not as if that percentage is about to decrease, either.
Democrats overwhelmingly support impeachment. Forty percent of adults in the most recent Economist/YouGov survey say Congress should try to impeach President Trump. That number rises to 70 percent among Democrats. It is no wonder why. Trump is a one-man rebuke of progressivism, of political correctness, of a humanitarianism that does not recognize citizenship or national borders. Since 2016 an entire media-political infrastructure has been built to push the messages that Trump’s election was illegitimate, Trump’s actions in and out of office are criminal, and Trump ought to be excised from the government as quickly as possible. Even if Mueller and his report fade from view—and there is no guarantee they will—the president’s adversaries will continue to search for the annihilating angel who will deliver them from Donald Trump.
Why? Because the impeachment debate is not about what Trump has done, is doing, or might do. It is about whether he and the social forces he represents are entitled to rule.
You wouldn’t know it from the way she’s being covered in most of the Washington media but House Speaker Nancy Pelosi is a woman with a lot of problems. Instead of in-depth coverage of the ideological divisions in her caucus and the political challenges to her leadership, she gets stuff like this, from Politico:
“Using strategies she’s honed over decades, the speaker has managed to keep a sprawling freshman class in line — and on her side — despite breaking with them on issues ranging from impeachment to the ‘Green New Deal.’”
What Speakers John Boehner and Paul Ryan wouldn’t have done for that kind of coverage when they were in charge! When they were in charge, the dissenters drove the narrative. Now that the Queen Bee of Capitol Hill is back in charge, things have turned on their head.
The reason for this is simple according to Rich Galen, a former top communications aide to House Speaker Newt Gingrich and a well-respected commentator.
“The advantage – the GREAT advantage – that Pelosi has, which Newt nor any following GOP Speaker has had is the adoration of the national press corps. They REALLY want her to succeed. Nevertheless, Pelosi has some of the same issues to deal with that Newt did: Mainly a huge freshman class that think they invented Democracy,” Galen says.
He doesn’t think she’s lost control of her conference – not yet anyway – but the she’s not breaking records for party unity. She’s already lost the vote on two motions to recommit – a parliamentary device often used to slow the progress of legislation through the House – and continues to show signs of fatigue, something that has some speculating quietly and anonymously that the job may be too much for her.
That’s a reach. Even at 78 Pelosi still shows she has command of the political skills learned at her father’s knee – he was once mayor of Baltimore, Maryland – and from various members of the Burton family whose accomplishments in California Democratic politics are still considered legendary.
Still, Pelosi did herself no favors when late last week she suggested impeachment of President Donald Trump might be off the table. By suggesting it wasn’t worth the effort she gave the proverbial “finger” to Democratic donors and activists from coast to coast who worked so hard in 2018 to win back control of the U.S. House for the Democrats precisely for the purpose of driving Trump from office.
Some may say that it’s not such a big deal. The activist wing of the party is likely harder to mollify, even as Pelosi and others work to keep them in line. Consider what the reaction would have been among the GOP faithful if, after using the repeal of Obamacare as the whip hand to drive voters to the polls in 2010 to win back control of the House for John Boehner and the Republicans, the measure was never even brought to the floor for a vote.
“Impeaching Trump is probably the one substantive matter that is non-negotiable for House Democrats,” says Mike Franc, a former GOP congressional leadership staffer and now head of the Washington office of the Hoover Institution.
“Pelosi can get away with dismissing the New Green Deal (because it is purely aspirational and agenda-setting rather than substantive) but not this. My guess is that she suffers for this sin, mostly with the Democratic base.”
For Pelosi, now and moving forward, the tail is wagging the dog. She may be the political leader and the nation’s most important elected Democrat, but she has little to say, at least so far, about what the party’s agenda will be. She faces, Franc says, “a substantive revolution” in the way policy is made on Capitol Hill, akin to what happened after the Democratic landslide of 1974 and the 1994 Republican Contract with America.
The large class of Democratic freshmen, which includes Alexandria Ocasio-Cortes and her fellow traveling socialists, do not seem, Franc says, committed to a set of real and substantive policy changes so much as they are interested in “using their platforms as Members to advance a new and socialistic state of mind in traditional and social media.”
If that gives AOC and others control of the agenda, what does that mean for the suburban seats Democrats took from the GOP in 2018 because voters either thought the Republican agenda was too extreme or because they wanted to send a message to Trump?
Extremism on the left, which is what AOC and her fellow Green New Dealers are offering, is no better in these districts than extremism on the right. These moderate members could get lost in the undertow if Pelosi can’t stop the drift to the left, but she can’t stay in power if she does.
Nancy Pelosi has a lot of problems – and they’re just beginning to surface.
I am not generally a big fan of lame-duck sessions because such a large number of soon-to-be former senators and congressmen are voting on their way out the door. But Congress must do something about a looming multi-employer pension plan disaster or we could see very difficult economic times ahead.
Multi-employer pension plans have more than $600 billion of unfunded liabilities and are dangerously close to failing. Once these endangered plans fail, others will not be far behind. Additionally, state and local governments have about $6 trillion in unfunded pension promises. If these potential failures come to fruition, it could be a disaster far worse than the 2008 housing bust.
The White House understands the risks and has met with the chief players on Capitol Hill, encouraging them to work together to find a lasting solution. Continue reading
By Christopher Jacobs • The Federalist
Now they tell us! A Gallup poll, conducted last month to coincide with the midterm elections and released on Tuesday, demonstrated what I had posited for much of the summer: Individuals care more about rising health insurance premiums than coverage of pre-existing condition protections.
Of course, liberal think tanks and the media had no interest in promoting this narrative, posing misleading and one-sided polling questions to conclude that individuals liked Obamacare’s pre-existing condition “protections,” without simultaneously asking whether people liked the cost of those provisions.
Overwhelming Concern about Premiums
The Gallup survey asked the public whether it viewed each of four scenarios as a major concern for them. Among those: “Your health insurance plan will require you to pay higher premiums or a greater portion of medical expenses,” and “you or someone in your immediate family will be denied health insurance coverage for a pre-existing medical condition.” Continue reading
By Senator Ben Sasse (NE) • Wall Street Journal
Brett Kavanaugh has been accused of hating women, hating children, hating clean air, wanting dirty water. He’s been declared an existential threat to the nation. Alumni of Yale Law School, incensed that faculty members at his alma mater praised his selection, wrote a public letter to the school saying: “People will die if Brett Kavanaugh is confirmed.”
It’s predictable now that every Supreme Court confirmation hearing will be a politicized circus. This is because Americans have accepted a bad new theory about how the three branches of government should work—and in particular about how the judiciary operates. Continue reading
By Cameron Cawthorne • Washington Free Beacon
Sen. Joe Manchin (D., W.Va.) on Wednesday praised President Donald Trump’s Supreme Court nominee for having “all the right qualities.” But he stopped short of giving a full endorsement, saying he will listen to his constituents about their opinions of the nominee.
Manchin appeared on West Virginia MetroNews, a statewide radio station, where host Hoppy Kercheval asked him whether he was going to to support nominee Brett Kavanaugh.
“Do you have a lean today?” Kercheval asked.
“No, I don’t have a lean. I think he seems to be a very fine person of high Continue reading
By now a lot of professional Democrats—campaign consultants, party leaders and the like—are probably wishing they’d never heard the term “big, blue wave.” It set expectations so high for the next election that almost any outcome short of a total rout of the GOP will go into the record books as a disappointment.
If the parties fight to a draw—GOP ends up in control on both sides of the Capitol with a diminished majority in the U.S. House of Representatives and better numbers than it currently enjoys in the U.S. Senate, and the number of Republican governors and GOP-led state legislative chambers does not change appreciably (which is how things would probably turn out were the election held today)—then the Democrats will have been seen to have suffered a major defeat.
Nancy Pelosi, Chuck Schumer and other leading Democrats had hoped to nationalize the election by making it a referendum on President Donald Trump’s first two years in office. They may still get the opportunity to do that—Trump, as the events on the U.S. border with Mexico reminds us, is often his own worst enemy. Nevertheless, most of the news is good as the economy has roared back to life and Continue reading
By Heather Wilhelm • National Review
After a week of political chaos, endless dispatches of depressing news from the border, and widespread evidence of years of government incompetence, I have a proposal certain to unite citizens of all political stripes. Here it is: Let’s fire every single politician in Washington, D.C.
Admit it, friends: Deep down, you love this plan. In an ideal world, you might want to fire every single politician in Washington, D.C., right away — I personally have a few honorable and notable exceptions in mind, but it’s probably best to keep everyone on their toes — but we all know that’s not realistic. Fortunately, there’s an alternative idea that is at least somewhat realistic, despite naysayers from both parties: term limits.
We already have term limits for the president, of course, which I hope you find marvelous no matter who is in office. But what about Congress, that multi-headed beast with a 17 percent approval rating and an impressive penchant for getting almost nothing meaningful or important done? Continue reading
Government shutdowns are petty, but they're rarely as detrimental as pundits and politicians fear.
By US News•
For various reasons it’s become popular to threaten to shut down the federal government. Whether that goes back to the Reagan years when Democrats would run out the clock on the fiscal year to try and force spending increases the White House didn’t want or the years in which the tea party Republicans decided the American people would stand with them in closing the government to stop Obama initiatives, there are people in government who believe hanging the “Closed” sign on the Washington Monument is a political winner.
It isn’t. It makes everyone involved look petty and small. The American political process is by design deliberative. The founders designed a system that forced compromise between regions of the country, between politicians of dissimilar views and of competing interests at all levels of government. Pushing the government to close because there’s no money to run it is akin to taking one’s ball home from the playground because the other kids will not agree to play the game by the rules you want.
All that said, the government never really shuts down. The president is allowed far too much discretion to declare services essential, meaning all kinds of people get to stay on the job without pay, working away as usual processing government checks, funding grants, administering programs and doing all kinds of things that, while they might be the purpose for which people get up and go to work each day, would hardly be classified as “essential” in any kind of real emergency. Continue reading
By Mattie Duppler • National Review
There is now discussion of reviving earmarks: the practice, banned in the House of Representatives since 2010, of inserting funding for lawmakers’ pet projects into bills to secure their support. Earmarks epitomize the obsequious logrolling that makes Washington the most hated place in the nation (on earth?) — and their absence has proved crucial to the Republican effort to restrain government spending, one of the great untold success stories of the past eight years. That Republicans would even suggest earmarks should be restored reveals at best an unsophisticated grasp of spending mechanisms, and at worst a complete abandonment of the victories the party has scored in restraining Washington’s spendthrift instincts.
It is often forgotten what two years of the Obama-Pelosi-Reid triumvirate augured for the size of government. Federal spending, which had generally held steady around 20 percent of GDP in the modern era, was projected to rise to more than 26 percent of GDP by 2020 after just two years of Democratic control.
House Republicans, driven to power by Americans who recoiled at this looming threat of unstable government growth, promised to turn this around. And they did: Through dogged spending cuts in bimonthly continuing resolutions, and then with the imposition of budget caps in the Budget Control Act in August of 2011, Republicans erased the spending legacy of the Pelosi- and Reid-led Congress, which only a few years earlier had been eyed wearily as the new normal. Today federal spending stands at about 21 percent of GDP.
By Michael Barone • National Review
The Republicans have passed their tax bill, without a single Democratic vote, despite low to dismal poll ratings. It’s reminiscent of the passage by Democrats, without a single Republican vote, of Obamacare in March 2010.
Democrats lost 63 seats and their House majority that fall. Republicans hope they won’t follow suit. They argue, accurately, that their bill will lower taxes for almost all taxpayers and that it will stimulate economic growth, which already has risen above the growth in the Obama years.
The effects of Obamacare, in contrast, were harder to model, and some backers’ claims — if you like your insurance, you can keep it — soon were revealed as glaringly untrue. We’ll see whether the greater simplicity of the tax bill makes a difference in political fallout.
One thing in common between the two bills is that voters have seemed congenitally skeptical about the claims of the party in power. Obamacare continued to be unpopular until, presto, Donald Trump took office and Republicans threatened repeal.