Bifurcated Hill Approach to Handling COVID-19 Operations Gets Mixed Reviews

The House rules change allows proxy voting for a 45-day period while a “public health emergency due to a novel coronavirus is in effect.” That time can be extended or shortened at the speaker’s discretion. Up to 10 lawmakers can designate another member to cast proxy votes on their behalf. The House directed the Administration Committee to “study the feasibility of using technology to conduct remote voting” during the epidemic. The new rules also allow committees to “conduct proceedings remotely” during the emergency, including for markup sessions. Witnesses can testify remotely.

The Senate has had a mix of traditional, hybrid and all-virtual hearings since that chamber reconvened earlier this month, after Rules allowed widespread use of webcams. A Senate Armed Services Committee hearing on DOD objections to FCC approval of Ligado’s L-band plan (see 2005060065) followed a traditional format, with Defense witnesses and committee members appearing in person. A Senate Commerce Committee hearing on broadband (see 2005130059) had a mix of in-person and virtual participation.

The guidance Senate Rules developed gives committees “a lot of flexibility as to how they want to” proceed with hearings, but markups and other votes “have to happen in person,” Rules Chairman Roy Blunt, R-Mo., told us. “You’d have to change the rules” to a far more significant degree to allow remote voting either at the committee or full Senate level, which could be more difficult. Senate committees allowed proxy voting before the pandemic.

Senate Options

Senate Armed Services Chairman Jim Inhofe, R-Okla., told us he believes the committee’s hearing effectively followed guidelines from the office of Brian Monahan, Congress’ attending physician. That panel and the Commerce ones used G50 Dirksen, one of the largest hearing rooms available on the Capitol's Senate side. A large square of tables for senators and witnesses stood in a large space usually reserved for public seating. There were containers of hand sanitizer and disinfectant wipes on the tables between each seat.

“Many steps were taken” to minimize the risk to lawmakers, staff and witnesses, including ample spacing between all people in the hearing room and the presence of sanitizing supplies, Inhofe said. Participants had access to sanitizer, masks and gloves at the room's public entrance. Leaders of both committees sat at the regular dais, while witnesses and lower-ranking members used the large table. Some seating was available for aides and reporters along the walls during the Armed Services hearing, while reporters used separate space overlooking the room to cover Commerce.

Senate Commerce Chairman Roger Wicker, R-Miss., told us he believes the hybrid model was effective. It allows senators and witnesses who feel comfortable appearing in person to continue to do so while observing appropriate guidelines, he said: It allows those uncomfortable appearing in person to participate. Many Senate Commerce members participated in the broadband connectivity hearing by webcam, including Blunt and Communications Subcommittee ranking member Brian Schatz, D-Hawaii. The committee plans a Wednesday in-person executive session that will include votes on FCC Inspector General nominee Chase Johnson, the Spectrum IT Modernization Act (S-3717) and four other tech and cybersecurity measures (see 2005140057).

Senate Communications Chairman John Thune, R-S.D., told us he believes Commerce's hybrid approach “seems to be” working out well. “People who are using it seem to be pretty happy with it,” he said. It’s a “model that’s having some success.”

“I’m so glad” Blunt and Senate Rules ranking member Amy Klobuchar, D-Minn., got the rules changed to allow optional virtual participation in hearings, said Senate Commerce ranking member Maria Cantwell, D-Wash. “It’s immensely helpful in this environment.”

Senate Armed Services ranking member Jack Reed, D-R.I., questioned the overall need for an in-person presence on the Hill during the health emergency, noting risks to senators and the staff “needed to keep this institution running.” Sen. Mazie Hirono, D-Hawaii, told reporters she’s “glad” the virtual option exists and those panels should mainly be “focused on the pandemic.” She cited the Senate Judiciary Committee’s recent confirmation hearing for U.S. Circuit Court of Appeals for the District of Columbia nominee Justin Walker as not urgent.

NTCA CEO Shirley Bloomfield, who testified at the broadband hearing, told us she was initially a “little queasy” about appearing there given current pandemic conditions in D.C., but ultimately decided to do so. “I got myself into the mode of” beginning to “dip my toe in the water” with appearing in public places, she said. “It’s just not the same” appearing virtually. “Sometimes if you’re not sitting at the table, it’s harder to jump in” and fully participate. Two other industry officials testified in person, while Free Press Action Senior Adviser Gene Kimmelman did so online.

House Division

There’s a greater partisan divide on the House’s shift to proxy voting and virtual committee proceedings. “Convening Congress must not turn into a super-spreader event,” said House Rules Committee Chairman Jim McGovern, D-Mass., during the Friday debate on the procedures change. “We’re not suggesting permanent changes. No one believes we do our best work in-person and side-by-side more than me.”

House Commerce Committee ranking member Greg Walden, R-Ore., criticized the plans as akin to a “wrecking ball” that could smash the “foundation of democratic lawmaking by making government more remote and isolated from” citizens. “No one seriously thinks that remote hearings, with technological difficulties, will be improved by these changes,” he said.

House Democrats argue the procedures change is needed to effectively function amid the pandemic while also preventing spread of COVID-19 among lawmakers and others on Capitol Hill. “There’s no secrecy here,” said House Majority Leader Steny Hoyer, D-Md., during the debate. “There’s no ... smoke and mirrors.”

“It’s time for the House to return to Washington so we can get serious legislating done,” emailed House Communications Subcommittee ranking member Bob Latta, R-Ohio.

Both chambers should be working during the pandemic, FCC Commissioner Brendan Carr told us in response to a question about a recent tweet in which he asked why the House hasn’t been in session with safeguards like the Senate. People throughout the economy are working, with the FCC continuing to hold monthly meetings, he said: “We’re pushing work product out" and "engaging with each other online and otherwise, so I think that tweet was suggesting that both chambers of Congress should be working as well.”

Concerns

Legislators are at higher risk for several reasons, including age and frequency of travel, said Josh Seidman, healthcare consulting firm Avalere managing director. It's risky to stay in enclosed spaces like the Capitol for prolonged periods because having many people in close quarters makes it difficult to maintain appropriate physical distance, he said. Seidman recommended employees stay at home when operations can be done efficiently remotely. Contact tracing is one key to returning conditions to normal, he said.

Congressional experts believe effects of the changes to procedure will depend on how they are put into practice.

“We’ll have to see what happens over the next couple of months as members innovate and try things out and familiarize themselves” with the technology they use for virtual participation, said Georgetown University Beeck Center for Social Impact + Innovation Director-Congressional Modernization Director Lorelei Kelly. “We can come out of this better than before, more informed and with an improved deliberative process.” The “members are going to need to be the first movers,” she said.

Congress should “demand a really top-shelf, bespoke system” to handle remote participation, Kelly said. “Congress right now uses Zoom and WebEx” platforms, which “are pretty decent for webinar-style information-gathering hearings, but they’re not customized for markups.” It’s “not like you can build something for Congress and then sell it” as a commercial software product, she said. “Congress needs to put out a challenge, especially to the tech companies” to ensure the legislative branch “pushes through this better than ever.”

R Street Institute Governance Resident Senior Fellow James Wallner said the proxy voting the House is allowing is far less problematic than remote voting, which would “violate the spirit if not the letter of the Constitution.” Voting from afar in “only one chamber of Congress is even more problematic than both” because the adjournment clause requires permission from both chambers to move the legislature to another location, he said. “The House isn’t going to be D.C., but the Senate is.”

“The legislative process is a production process,” Wallner said. “All we think about are the votes that happen at the end, but there’s a whole lot of stuff that goes into it beforehand. Remote voting complicates the ability of legislators to do that, and it exacerbates a lot of the things that members and the press and the American people find so dysfunctional about how Congress operates already operates in person.”