As House holds first-ever proxy vote, Republicans attack on campaign trail and in court

For the first time in U.S. history, House members on Wednesday voted without being physically present in the Capitol, a change in congressional rules brought about by the COVID-19 pandemic that Republicans are already turning into a campaign issue.

In the past, House members always had to be present in the House chamber to cast a vote on legislation. But at least 70 of 432 House members — all Democrats — were expected to vote by proxy Wednesday under a plan pushed through by Democrats earlier this month in response to the spread of the coronavirus.

Twenty-six of California’s 53 House members voted by proxy, including four of the six representatives who won traditionally Republican-held seats in 2018.

The first House vote to be held with proxies was related a measure calling for sanctions on Chinese officials for the treatment of Muslim minorities. The first proxy vote was cast by Rep. Brendan Boyle (D-Pa.) for Rep. Zoe Lofgren (D-San Jose). She was an aye.

After that, they were expected to vote on reauthorizing the national security surveillance program known as the Foreign Intelligence Surveillance Act, or FISA. The program expired in March. President Trump and House Republicans oppose changes made to the program in the bill.

Republican House leaders are challenging the constitutionality of proxy voting in federal court, stating that the Constitution requires members to physically be present in order to vote, and that Congress didn’t allow such proxy voting during other disasters and emergencies, including the Spanish flu outbreak of 1918 or the Civil War.

“Congress has never flinched from its constitutional duty to uphold and assemble inside this body. But today is different,” House Minority Leader Kevin McCarthy (R-Bakersfield) said at a news conference Wednesday. He called out the 46 Democrats in the California delegation, noting that “19 million people in California will not have a voice. It will be lent to somebody else.”

His leadership team instructed rank-and-file Republicans to not vote by proxy and instead return to Washington for the series of votes.

The GOP lawsuit, filed in U.S. District Court in Washington, is likely to face long odds in the courts, which have typically deferred to the legislative branch to create its own rules for how it will operate.

Democrats say the House has the authority to make its own rules.

“The Constitution gives each chamber of Congress the ability to set its own rules, and the courts have given us wide latitude to do so,” House Majority Leader Steny H. Hoyer (D-Md.) said in a statement.

The Senate has continued to operate in person during the pandemic.

House Democratic leaders say that Dr. Brian Monahan, the attending physician on Capitol Hill who is responsible for advising lawmakers on COVID-19 safety in the Capitol, recommended that the much larger House membership shouldn’t yet return to Washington for regular sessions.

Monahan told lawmakers that their airplane ride to Washington is where they are most susceptible to infection, according to Rep. Judy Chu (D-Monterey Park).

“I do have great concerns about flying back,” Chu said before votes held earlier this month that required members to go to Washington. “I take this very seriously, especially because we West Coasters have a minimum of a five-hour flight” each way.

She selected Rep. Mark Takano (D-Riverside) to serve as her proxy.

Democratic and Republican House leaders met repeatedly in April and early May in an effort to find a compromise that would allow the House to work safely. Democrats argued that they needed to come up with a contingency plan to keep the government functioning on a largely remote basis. But after weeks with no momentum, Democrats pushed through the changes, which are intended to be temporary.

Under the new rules, House lawmakers are no longer required to travel to Washington to participate in floor votes. They may instead vote by proxy — assigning their vote to another lawmaker who will be at the Capitol to cast it for them. The proxy must vote in accordance with the instructions of the absent member. A provision allows for direct remote voting eventually.

To designate a proxy, the representative must send a letter to the House clerk naming the proxy before the vote begins.

The letters designating their proxies don’t include details of why the individual member will be absent. Each generally follows the same template, stating, “I am unable to physically attend proceedings in the House chamber due to the ongoing public health emergency” and naming the member who will vote for him or her. Members from the East Coast were popular proxies of the California members. At least 10 chose a fellow Californian to vote in their place.

Rep. Mark DeSaulnier (D-Concord) voted by proxy following an extended hospital stay — including four weeks on a ventilator — due to broken ribs that led to pneumonia. And Rep. Gil Cisneros (D-Yorba Linda) did so because he had hernia surgery Tuesday after six weeks of delay because of the coronavirus, according to his spokesman.

Republicans were poised to use the proxy vote against other vulnerable Democrats, including Rep. Mike Levin (D-San Juan Capistrano).

Republican Brian Maryott, who is challenging Levin, accused him of giving away his vote to his proxy, Rep. Dan Kildee of Michigan, even though California is beginning to reopen, the state Assembly is meeting, and essential workers are at work.

“Why then, did Mike think it was necessary to surrender his core duty of voting? If Mike is dead-set on allowing someone else to represent our district in Washington, I will volunteer to go in his place, and voters should keep that in mind in November,” Maryott said in a statement.

Levin’s campaign manager, Adam Berkowitz, responded by saying that Maryott doesn’t “fully understand how proxy voting works,” pointing out that the proxy requires “explicit written instructions” of how to vote.

“Mike is proud to have not yet missed a vote as a freshman member of Congress,” Berkowitz said.