Law360 (May 26, 2020, 11:31 PM EDT) -- House Republicans sued Speaker Nancy Pelosi on Tuesday, escalating their fight against a Democratic rule change earlier this month that lets lawmakers cast votes for up to 10 colleagues during the coronavirus pandemic.
Minority Leader Kevin McCarthy, R-Calif., led 20 other Republican representatives and four constituents in a lawsuit against the California Democrat and a pair of nonpartisan House officials in D.C. federal court, arguing that the Democratic rule change flouts the constitutional stipulation that "a majority of each [house] shall constitute a quorum to do business."
However, judges may be reluctant to police the internal affairs of another branch because another clause of the same section of the Constitution states, "Each house may determine the rules of its proceedings."
The House approved the rule change May 15 in a 217-189 vote that saw unanimous opposition from Republicans along with three Democratic defections. The divisive vote came after two weeks of bipartisan discussions failed to produce a deal and Pelosi moved unilaterally.
The new proxy voting rule was meant to ensure continuity during a pandemic and allow lawmakers to participate even if ill, quarantined or otherwise unable to physically appear at the Capitol. One member can represent up to 10 other members for both quorum counts and votes, with prior approval and explicit instructions. About 60 members have registered a proxy so far.
"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," the Republicans said in their complaint. "That requirement is no less mandatory in the midst of a pandemic. ... A majority of the House may have voted to ignore what the Constitution demands of it, but this court may not do the same."
The plaintiffs lay out the centurieslong history of members of Congress physically present in the U.S. Capitol. The House met in Washington during a yellow fever epidemic in 1793, the Republicans said, and again during the 1918 pandemic, even "as more members fell ill with Spanish flu, some fatally."
In the Civil War, the complaint says, "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."
The lawmakers said they were harmed by because "the inescapable mathematical result of [proxy voting] is the dilution of voting power of those members who have not been given (or, like the representative plaintiffs, refuse to accept) proxies." The constituents said they also suffered from diluted voting power.
The plaintiffs asked for a temporary injunction, as well as a permanent ban on the proxy voting plan. This creates uncertainty before major House votes set for Wednesday and Thursday on national security surveillance powers and flexibility for small-business loans through the Paycheck Protection Program.
Pelosi blasted the lawsuit as a "sad stunt."
"The House made its will clear two weeks ago when it voted to implement remote voting by proxy and other necessary measures to ensure that Congress can continue to protect lives and livelihoods," she said in a statement. "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."
House Majority Leader Steny Hoyer, D-Md., called the case "yet another attempt to shut down our government, this time during a national emergency when Americans need it working the most." Other entities have adopted remote procedures, he said in a statement, including "Senate committees, the Supreme Court, and businesses and schools across the country."
Senate Majority Leader Mitch McConnell had suggested last week that he might refuse to consider any bills that pass the House using proxy voting, panning the plan as "playing games with the Constitution so they can continue their never-ending spring break into July."
The Kentucky Republican pointed to Article I, Section 5. "For about 231 years, Congresses have managed to fulfill this job requirement," McConnell said on the Senate floor. "They've worked through a Civil War, two World Wars, terrorist threats and a prior pandemic without trying to shirk this duty. The 12th Congress endured the War of 1812, including the occupation of Washington and the burning of this Capitol building, without abandoning in-person meetings."
McConnell acknowledged that both chambers of Congress often approve legislation without physical quorums, relying on procedures such as voice votes or unanimous consent. The Senate also allows proxy voting in committee. However, he said, "any House member has a right to demand an in-person attendance check."
That is exactly what happened in late March, when another Kentucky Republican — libertarian-leaning Rep. Thomas Massie — forced hundreds of lawmakers to come from across the country to approve the $2.3 trillion Coronavirus Aid, Relief and Economic Security Act relief package.
The House Republicans' lawsuit cites a March report by Democratic staff of the House Rules Committee.
"The constitutionality of remote voting is an untested principle," the report said. "If challenged, remote voting would be a novel question for a court and there is no guarantee of a favorable ruling affirming its constitutionality. ... Yet, the Constitution also explicitly provides each house with the ability to make its own rules."
The plaintiffs also cited a brief legal analysis from the nonpartisan Congressional Research Service.
"While courts have generally been reluctant to review internal House and Senate rules, they have nonetheless suggested that neither chamber may 'by its rules ignore constitutional restraints or violate fundamental rights,'" the analysis said. "But there are constitutional and prudential doctrines that could conceivably limit judicial review in this context — such as the political question doctrine, the enrolled bill rule and equitable discretion."
The plaintiffs are represented by Cooper & Kirk PLLC. Their complaint was signed by name partner Charles J. Cooper, a titan of Washington's conservative legal establishment.
Just in the past year, Cooper has represented President Donald Trump's former White House counsel in a fight over a House subpoena, the National Rifle Association in its discrimination claim against New York officials and Florida in its unsuccessful argument that it could block former felons from registering to vote over unpaid court fines. He has not shied away from controversial cases, representing the private prison company GEO Group Inc. and taking over a fraught defamation case against retired Harvard law professor Alan Dershowitz.
The Republican lawmakers who joined McCarthy as plaintiffs are Steve Scalise, Mike Johnson and Clay Higgins of Louisiana; Jim Jordan and Warren Davidson of Ohio; Andy Biggs and Debbie Lesko of Arizona; Chip Roy, Jonathan Cloud and Ron Wright of Texas; Liz Cheney of Wyoming; Tom Cole of Oklahoma; Rodney Davis of Illinois; Russ Fulcher of Idaho; Mark Green of Tennessee; Jody Hice of Georgia; Andy Harris of Maryland; Jeffrey Duncan of South Carolina; Scott Perry of Pennsylvania; and Bradley Byrne of Alabama.
The four constituent plaintiffs are Lorine Spratt of Shreveport, Louisiana; Mickie J. Niland of Gilbert, Arizona; Isabel Albarado Rubio of Leakey, Texas; and Clayton D. Campbell of Bakersfield, California.
In addition to Pelosi, the other defendants are two nonpartisan House officials: Clerk Cheryl Johnson and Sergeant-at-Arms Paul D. Irving.
The Republicans are represented by Charles J. Cooper, Michael W. Kirk, Adam P. Laxalt, Joel Alicea and Harold Reeves of Cooper & Kirk PLLC and Elliot S. Berke of Berke Farah LLP.
Counsel information was not immediately available for Pelosi and the House officials. Since they are sued in their official capacities, they may be represented by the U.S. House of Representatives' Office of General Counsel.
The case is Kevin McCarthy et al. v. Nancy Pelosi et al., case number 1:20-cv-01395, in the U.S. District Court for the District of Columbia.
--Editing by Michael Watanabe.
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