GOP Reps. Can't Sue Pelosi Over Proxy Voting, DC Circ. Says

The D.C. Circuit ruled Tuesday that House Republicans cannot sue Speaker Nancy Pelosi, D-Calif., over proxy voting rules adopted during the pandemic, endorsing a district judge's decision that the Constitution does not allow the judiciary to settle fights over congressional rules.

A unanimous three-judge panel addressed the novel constitutional question and agreed that the "speech and debate" clause of the U.S. Constitution prevents lawsuits over a chamber's rules.

The clause applies not just to speech and debate in the literal sense, but to all legislative acts,'" Chief Judge Sri Srinivasan wrote for the panel in a 12-page opinion. "The acts presented for examination are quintessentially legislative acts falling squarely within the clause's ambit. The challenged resolution enables members to cast votes by proxy, and the 'act of voting' is necessarily a legislative act."

"Indeed, we are hard-pressed to conceive of matters more integrally part of the legislative process than the rules governing how members can cast their votes on legislation and mark their presence for purposes of establishing a legislative quorum," Judge Srinivasan added.

The panel found the case could be closed without moving on to other issues.

"Because we agree with the district court that the ['speech or debate'] clause bars consideration of the plaintiffs' suit, we have no need to consider whether they have standing," the judges said.

The House Republicans' lawyer told Law360 they plan to appeal to the U.S. Supreme Court.

"We are obviously disappointed in the D.C. Circuit's opinion but look forward to petitioning the Supreme Court for review later this summer," Elliot S. Berke of Berke Farah LLP said in an email.

The circuit judges did not divide along partisan lines, suggesting an appeal may be a long shot even at a high court with a new 6-3 majority of Republican appointees. While Judge Srinivasan was nominated by President Barack Obama and Judge Judith W. Rogers was named by President Bill Clinton, Judge Justin R. Walker was picked by President Donald Trump and elevated to the D.C. Circuit last year on a bitterly divided Senate vote where one Republican joined all Democrats in opposition.

The House Republicans' current counsel, Berke, took over the case after the previous lead counsel withdrew in May without explanation. Prominent conservative lawyer Charles J. Cooper had presented oral arguments in November and represented the Republicans along with other attorneys from his firm, Cooper & Kirk PLLC.

The lead plaintiff is House Minority Leader Kevin McCarthy, R-Calif. He was joined at one time by some 160 of the chamber's approximately 200 Republicans, but some dropped out after using proxy votes.

The origins of the case date back to May 2020, when the House approved a rule change to allow proxy voting. The 217-189 tally 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 Democratic leaders moved unilaterally, saying it was a reasonable and necessary response to the spread of COVID-19 that was permissible because the U.S. Constitution allows each chamber of Congress to set its own rules.

The unprecedented plan allows lawmakers to publicly register the votes for up to 10 absent colleagues who give clear instructions for each vote.

McCarthy and other House Republicans quickly sued Pelosi, arguing that proxy voting violated constitutional quorum provisions and an unbroken tradition of in-person voting, even through the Civil War and the 1918 influenza pandemic.

Constitutional scholars told Law360 last year that the case was likely a long shot.

U.S. District Judge Rudolph Contreras of the District of Columbia heard arguments in July 2020 and dismissed the suit a few weeks later, pointing to the "speech and debate" clause.

"The court can conceive of few other actions, besides actually debating, speaking or voting, that could more accurately be described as 'legislative' than the regulation of how votes may be cast," Judge Contreras said.

The Republicans then appealed to the D.C. Circuit, warning that "the district court's sharp deviation from well-established speech or debate clause principles has far-reaching and untenable consequences."

The D.C. Circuit panel heard oral arguments in November. All three circuit judges seemed skeptical of lawmakers' standing to sue other lawmakers over congressional rules.

"It seems to me this is yet another case where one group of politicians is sparring with another group of politicians, and they want a federal court to pick a side," said Judge Walker, who had just taken his appellate seat two months earlier.

In December, Pelosi told the circuit judges that several Republican plaintiffs had undermined their case by using proxy votes. At least 139 of the 160 or so GOP lawmakers then withdrew.

Proxy voting continues to this day, and Democratic leaders have discussed the possibility of allowing it beyond the pandemic, with possible benefits including allowing a sort of parental leave for lawmakers who welcome children into their families. News reports have documented lawmakers using proxy votes when they were absent for reasons that appeared unrelated to COVID-19.

Requests for comment Tuesday were not immediately returned by Cooper or counsel and spokespeople for Pelosi.

Judges Judith W. Rogers, Sri Srinivasan and Justin R. Walker sat on the panel for the D.C. Circuit.

The Republicans are represented by Elliot S. Berke of Berke Farah LLP. They were represented at oral arguments by Charles J. Cooper of Cooper & Kirk PLLC; attorneys from that firm previously on the case were Michael W. Kirk, Harold S. Reeves, J. Joel Alicea and Steven J. Lindsay.

Pelosi and other named House officials are represented by Douglas N. Letter and other attorneys from the U.S. House of Representatives' Office of General Counsel and Michael R. Dreeben, Kendall Turner and Anna O. Mohan of O'Melveny & Myers LLP.

The case is McCarthy et al. v. Pelosi et al., case number 20-5240, in the U.S. Court of Appeals for the D.C. Circuit.

--Additional reporting by Khorri Atkinson. Editing by Alyssa Miller.


For a reprint of this article, please contact reprints@law360.com.

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