Republican Senate leader Mitch McConnell is defending Congress’s ability to allow voting by “proxy” when members are absent, a practice introduced by House Democrats at the height of the Covid pandemic despite fierce opposition from Republicans.
In a brief filed in federal court on Friday – written by former Attorney General William Barr – McConnell says that despite his personal opposition to proxy voting, the House and Senate have full constitutional authority to determine how they conduct their business.
“Despite his staunch opposition to proxy voting, Senator McConnell believes it is critical that the courts nevertheless respect the power of each House of Congress ‘to set the rules of its proceedings,'” Barr wrote on McConnell’s behalf.
McConnell’s position puts him at odds with the vast majority of House Republicans, who have spent years fighting a losing battle in court to overturn the practice, initiated by then-Speaker Nancy Pelosi in 2020. Then-House Republican leader Kevin McCarthy filed suit to block the practice, but it was struck down by two federal courts before the Supreme Court declined to take up the case.
In February, however, a federal district judge in Texas ruled that proxy voting in the House of Representatives was unconstitutional because the physical presence of a majority of representatives was necessary for the conduct of business. If upheld by the appeals courts, the ruling threatens to overturn large and complicated legislative packages passed with the decisive votes of absent representatives.
McConnell said the ruling is particularly problematic because it assumes courts have a role in judging Congress’s internal procedures. Trump-appointed District Judge James Hendrix never defined what it means to be “physically present” to cast one’s vote, McConnell noted, saying imposing such an “iron-clad” restriction would be “debilitating” to Congress.
McConnell argues that the ruling “threatens the ability of Congress to conduct its day-to-day business” and would take away “necessary flexibility.” He notes that there may be other national emergencies that could require remote voting. He said it could particularly disrupt common Senate practices such as voice votes and obtaining unanimous consent.
The case is pending before the 5th Circuit Court of Appeals, a conservative court that sometimes pushes legal boundaries only to be reined in by the Supreme Court.
McConnell is not alone: Homeland Security Executives Representatives of several governments and interest groups that relied on the programs funded during the height of the COVID pandemic are also calling on the appeals court to overturn the lower court’s ruling.
