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The Incredible Shrinking Quorum

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The Constitution requires a majority, but under new House rules as few as 20 members could be present.

How can Congress do its work in a time of social distancing? The Senate has remained in session as usual, but the House took steps last week to allow voting by members who aren’t in the chamber. Its resolution, passed May 15 without Republican support, is constitutionally faulty and could invalidate every law enacted over the next few months.

The House has always met in person, but under H.Res. 965 one representative can act as a proxy for up to 10 other representatives and vote on their behalf. The Constitution allows each congressional chamber to set its own rules on voting, but that isn’t the problem. Not only did the House change the voting rules, it also changed the quorum rules, which determine whether enough members are present to conduct a vote.

Article I, section 5 of the Constitution provides that “a majority of each [chamber] shall constitute a quorum to do business.” By allowing each representative present to cast 11 votes—his own plus 10 proxies—the new rule could reduce the threshold from 218 members to 20.

The quorum requirement is a core democratic protection. During the Constitutional Convention, George Mason observed: “If the Legislature should be able to reduce the number at all, it might reduce it as low as it pleased & the [United] States might be governed by a Juncto”—a cabal.

There are alternatives that would be constitutional. The speaker could keep a vote open all day and allow representatives to come to the floor individually or in small groups, cast their votes and leave. Another possibility is having a majority present for a quorum and allowing lawmakers who aren’t present to vote remotely.

Now that the House has passed the rule, it’s up to the Senate, the president and the courts to decide if they will accept its validity. Senate Majority Leader Mitch McConnell could announce that he won’t consider any such legislation valid and refuse to act on it. The Senate as a whole could create its own rule that either accepts or rejects the validity of the House rule. The president could also veto any legislation that passes the House without a quorum, or he could refuse to sign or enforce it.

Read the full article at The Wall Street Journal.