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Can Congress Work From Home During A Pandemic? It's Complicated

Between stay-at-home orders and travel restrictions, the coronavirus pandemic has required unprecedented changes in how the country functions. At the same time, not every American institution has changed with the times. Congress is still trying to meet in person — and as experts predict the pandemic to continue into the summer, that has become a mounting cause for concern among lawmakers. Can Congress work from home during a pandemic? It's a complicated situation that has its roots in the Constitution, not to mention partisan disagreements.

On May 15, the House of Representatives voted to allow remote hearings and voting, for the duration of the ongoing coronavirus pandemic. Under the new rules, lawmakers who aren't able to physically be present on Capitol Hill would designate a fellow lawmaker — someone who can be physically present — to act as their proxy and vote on their behalf, starting immediately, per The New York Times. (Previously, only Senate committees were allowed to vote by proxy). It also authorizes, pending certification, the development of "operable and secure technology" to enable remote voting, and permits House committees to hold virtual hearings and depositions during the pandemic. The vote passed along party lines of 217 to 189. As of May 14, there has been no major push to allow similar rules in the Senate.

The vote follows a five-week Congressional recess, during which some lawmakers "worked from home" by holding virtual town halls and publishing useful videos on social media, but they were not permitted to vote from home. Although the Constitution only requires the House and the Senate to have a majority of members present to vote on and pass legislation, the chambers themselves have more specific rules. Both the House and the Senate require a quorum — that is, a simple majority — of members to be physically present in order to vote.

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Lawmakers have previously been able to get around these rules by holding voice votes, which are decided by calling out "yea" or "nay" and don't record specific members' votes, and operate on the assumption that the chamber has a quorum. But if any lawmaker asks for a member count, then the chamber has to verify that it has established quorum. This has actually happened during the pandemic. In March 2020, Rep. Thomas Massie — a Republican from Tennessee — drew outrage from his fellow lawmakers by asking for a quorum count to vote on the CARES Act coronavirus stimulus package, Vox reported, thus requiring representatives to fly back to Washington and pack into the chamber for the vote. The House had been prepared to vote by voice, as a safety measure complying with public health guidelines regarding social distancing during the pandemic.

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According to The Washington Post, Republicans have largely been opposed to the concept of remote voting, though House Majority Leader Rep. Steny Hoyer, a Democrat, told the Post that the Republican-majority Senate had already started holding hybrid hearings, with health experts appearing via video calls on May 12. Senate Majority Leader Mitch McConnell and House Minority Leader Kevin McCarthy have been particularly opposed to proxy voting, arguing that lawmakers were essential workers and needed to come into work while following new guidelines. The Senate reconvened on May 4, while the House of Representatives had previously extended its recess on the advice of Congress' attending physician.

Hoyer countered such concerns by noting that proxy voting would only be used in emergency situations like the pandemic, and said that “neither the speaker, nor I, nor McCarthy ... believe that there’s any substitute for in-person participation." Such a resolution is unlikely to pass the Republican-led Senate.

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