House Minority Leader Kevin McCarthy (R-CA) filed a lawsuit against Speaker Nancy Pelosi (D-CA) on Tuesday evening in an attempt to block the House of Representatives from allowing representatives to vote on behalf of up to ten other members of Congress as a designated proxy voter.
In addition to McCarthy, nearly two dozen Republican members of Congress have signed on as plaintiffs in the lawsuit, which also names the sergeant-at-arms and House clerk, two figures who serve a notable role in the proxy voting plan, as defendants.
“I just filed a lawsuit in federal court to overturn Speaker Pelosi’s unconstitutional proxy voting scheme,” tweeted McCarthy on Tuesday evening. “It could allow as few as 20 Representatives to control the votes of 220. This is NOT the representative democracy our Founders envisioned or what our Constitution allows.”
I just filed a lawsuit in federal court to overturn Speaker Pelosi’s unconstitutional proxy voting scheme.
It could allow as few as 20 Representatives to control the votes of 220. This is NOT the representative democracy our Founders envisioned or what our Constitution allows.
— Kevin McCarthy (@GOPLeader) May 26, 2020
The lawsuit states that, so far, 55 members of Congress had sent letters to the House clerk designating another representative as their official proxy voter. As of Tuesday evening, an additional four members of congress officially designated another representative as their proxy, bringing the total to 59 members, all of whom are Democrats.
The lawsuit, a copy of which was posted by The New York Times, accuses the Majority of ignoring “what the constitution demands of it,” and asks that the court “not do the same” in its ruling.
In the 231-year existence of the United States Congress, neither the House of Representatives nor the Senate has ever permitted a Member to vote by proxy from the floor of the chamber. Through the Civil War; through the burning of the Capitol during the War of 1812 and the terrorist attack on Washington on 9/11; and through the Yellow Fever Epidemic of 1793 and the Spanish FluPandemic of 1918, the Congress of the United States has never before flinched from its constitutional duty to assemble at the Nation’s Capital and conduct the People’s business in times of national peril and crisis. So it was for more than two centuries. Until now.
Defying this unbroken record of historical precedent, and heedless of every relevant constitutional provision, a majority of the UnitedStates House of Representatives voted on May 15, 2020, to adopt House Resolution965, 116th Congress (“H.Res. 965”), thereby authorizing its Members to vote by proxy. In an instant, and over the objections of 189 Members of the House from both political parties, the 231-year constitutional tradition of in-person assembly, deliberation, and voting among the People’s representatives came to an end.
It is simply impossible to read the constitution and overlook its repeated and emphatic requirement that Members of Congress actually assemble in their respective chambers when they vote, whether on matters as weighty as declaring war or as ordinary as naming a bridge….That requirement is no less mandatory in the midst of a pandemic, see INS v. Chadha, 462 U.S. 919, 959 (1983), as the House’s forebears amply demonstrated when facing a far more deadly pandemic a little more than a century ago.
As The Daily Wire previously reported, the House voted to allow the Speaker to enact the rule change along party lines in mid-May, with three Democrats voting against it. Under the terms of the rule change, Pelosi can establish a proxy voting period of 45-days, which can be extended or shortened based on public health information provided by the sergeant-at-arms.
Any member of Congress who wishes to vote by proxy must notify the House clerk, which provides notice to the public on its website. Per the clerk’s office, “members designated as proxies may only cast votes on behalf of other members once they have received separate exact instruction with respect to each vote.”
In a statement made after the lawsuit was filed, Pelosi accused the House Republicans of engaging in a “sad stunt,” and that the Constitution supported the move she made as falling under the power of each Chamber to enact its own procedural rules.
“House Republicans’ sad stunt shows that their only focus is to delay and obstruct urgently-needed action to meet the needs of American workers and families during the coronavirus crisis,” said Pelosi. “The House’s position that remote voting by proxy during a pandemic is fully consistent with the Constitution is supported by expert legal analyses. Further, the Supreme Court made clear over a century ago that the Constitution empowers each chamber of Congress to set its own procedural rules.”
“As our nation approaches the heartbreaking milestone of 100,000 lives lost to COVID-19, House Republicans must stop their dangerous obstruction and join Democrats to save lives, defeat the virus and grow the economy,” she continued.
During a speech on the Senate floor last week, Senate Majority Leader Mitch McConnell (R-KY) blasted Democrats for “playing games with the Constitution so they can continue their never-ending spring break well into July.”
“Since the early days of this crisis, the self-described ‘People’s House’ has been suspiciously empty of people,” said McConnell. “I understand they’ve convened for legislative session a grand total of two days — two — in the last eight weeks.”
“But there’s a new wrinkle: House Democrats jammed through a precedent-breaking remote voting scheme that will let one member cast ten additional votes,” he continued. “There will be enormous constitutional questions around anything the House does if they fail to demonstrate a real quorum but plow ahead anyhow.”
The lawsuit cites numerous examples of lawmakers meeting in person despite extenuating circumstances, such as in the Yellow Fever Epidemic of 1793, noting that it killed 10% of the population of Philadelphia, the seat of the federal government.
In response to the crisis, some members advocated relocating Congress, but it was acknowledged that “Congress would have to meet within the legal limits of Philadelphia if only in some open field for just long enough to select another place.”
Another example the lawsuit cites is when President Abraham Lincoln convened Congress several days after the start of the Civil War:
And the members assembled in the Capitol, even though they arrived to find hundreds of soldiers quartered there in the Spring of 1861. They met, even after beds had been set up in the Rotunda, in Statuary Hall, and in the corridors of the Capitol to treat wounded Union soldiers from First Bull Run. They met, even as Union soldiers stood sentry at every door. And they continued to meet throughout the war, even as 655,000 Americans lost their lives on battlefields surrounding the seat of government, in Virginia, Maryland, andPennsylvania. The war that cleaved the Union did not prevent the Members of Congress from assembling at the seat of government.
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