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How to Legislate During a Crisis

Legislatures are the ultimate instruments of representative democracy. They must continue to do their jobs during crises like the Covid-19 pandemic.

Both Congress and state legislatures are grappling with how to operate during the Covid-19 pandemic. Some legislative bodies have moved toward holding regular virtual sessions while social distancing measures are in place. Others have continued to meet in person under potentially unsafe conditions, while still others have adjourned, postponed, or suspended their sessions entirely.

In a new paper, Maintaining Legislative Continuity Through Emergencies, the Brennan Center describes why it is critical that legislatures continue to operate during emergencies and outlines the major considerations for any contingency plan. Daniel I. Weiner, deputy director of the Brennan Center’s Election Reform Program and co-author of the paper, spoke with staff writer Tim Lau about its proposals.

This interview has been edited for clarity and length.

How have Congress and state legislatures handled crises in the past?

Throughout U.S. history, Congress and state legislatures have worked through crises and played an active role in managing them. The most direct parallel would probably be the 1918 Spanish flu pandemic. Congress stayed in session and passed public health legislation and was actively engaged, as were a number of state legislatures — even as we were still fighting World War I.

Congress stayed in session during the Civil War even when the fighting reached Washington, DC. In fact, when the Confederates fired on Fort Sumter, one of Lincoln’s first moves was to send a special message to Congress and convene them to figure out how to deal with the crisis. Congress also stayed in session in the aftermath of the September 11 attacks even though the Capitol had been targeted. And even after anthrax was mailed to the Capitol, the Senate continued to meet, and the House adjourned for only a week.

Why is it so important for legislative bodies to keep meeting and stay engaged during a crisis?

There are at least four reasons that we need both Congress and state legislatures during crises like the Covid-19 pandemic. First, in our system of government, Congress and its state equivalents have what we call the power of the purse. In virtually all instances, they are the only ones who can appropriate money and the only ones who can raise revenue. And as we know, managing this pandemic is costing a lot of money. Congress has already passed trillions of dollars in relief packages. State legislatures are passing their own relief packages, too. But this pandemic and its economic consequences ­are likely to be with us for a while. We’re going to need to keep managing them, and that’s going to cost money, which has to come from Congress and from state legislatures.

Second, both Congress and state legislatures play a prominent role in continuing essential government services and other crisis responses (albeit in different ways). Much of the government’s response to Covid-19 so far — measures like expanding paid sick leave, extending unemployment benefits, changing the rules for public school instruction — required legislative change, either in Congress or at the state level. 

One of the Brennan Center’s priority issues during the pandemic is ensuring that the 2020 election is free, fair, accessible, and secure. Many of the things that we need for the election — such as expanded vote by mail and online voter registration — require legislative change at the state level. And of course, there’s a desperate need for additional funds, which will probably have to come from Congress. 

Third, both Congress and state legislatures must exercise oversight of their respective executives. Given the Trump administration’s attacks on independent oversight within the executive branch, it’s up to Congress to ensure, for example, that taxpayer funds aren’t wasted or stolen. That’s a role it has played in the past: Government spending tends to increase rapidly during crises, and with it the risk of corruption. Congress has often stepped in to help ensure public money is spent responsibly. State legislatures have an equivalent role to play in their states, where governors, much like the president, have taken on many additional powers in response to the pandemic. You would think responsible oversight would be a bipartisan priority since there are Democratic and Republican governors across the country. 

Finally, the pandemic is just going to be with us for a while — the need for some measure of social distancing may last for many months — and we can’t put off other urgent legislative priorities forever. You need the essential organs of government to function, even when social distancing is necessary. They have to pass budgets. They have to pass other critical legislation. The business of governing can’t just stop.

How well are legislative bodies adapting to the pandemic so far? Are there emergency plans that have been executed particularly well?

There are some good examples. The Utah legislature held a virtual session that wasn’t perfect. There were technical glitches. A legislator’s cat meowed during the session.  But overall, it was a logistical success. Meanwhile, in Congress, House Democrats moved through a plan that wouldn’t allow for virtual sessions but would permit remote voting by proxy (where one legislator casts a vote on behalf of another legislator, pursuant to specific instructions). The plan would also permit virtual committee hearings.  That’s a step in the right direction.

There are also examples from abroad. Both the British Parliament and the Canadian Parliament have held virtual sessions, including in the British Parliament the iconic Prime Minister’s Questions, one of the most famous parliamentary proceedings. They did that online for the first time. And you are seeing other bodies experiment with different rules as well, from allowing proxy voting to changing quorum requirements. 

Overall, in the United States, some states are doing it well, some are doing it poorly. Some jurisdictions are delegating too much power to legislative leadership to move things along rapidly without allowing for sufficient debate. Or they’re creating a proxy vote system that is too lax, that doesn’t provide enough accountability. So, there’s an urgent need to set forth some basic principles about how we should do these things. But it is important to recognize that people are trying.

What transparency and accountability issues might arise with these legislative continuity plans? What, if any, are the unique challenges that legislative bodies face compared to the executive or judicial branches of government? 

In some ways, the biggest challenge that legislative bodies face is that the stakes are really, really high. For all the faults that they may have, legislatures are really the ultimate organs of representative democracy. People have a sense of being entitled to access to their elected legislatures and transparency about the working of the legislature to a degree that’s probably greater than for any other branch of government. And the legislature really has to figure out a way to do that that honors those commitments.

This is particularly true right now given that Americans across the board are really starting to worry about unfettered executive power — an issue that the Brennan Center has engaged with at length. During a crisis when executives across the country are asserting such expansive authority, you really do need legislatures to also be fully engaged, because we know from experience that unfettered executive authority, even if well-intentioned, is risky and problematic. 

Another challenge that legislatures face during this crisis is a logistical one, which is that they tend to be bigger than both courts and the executive. The House, for example, involves 435 voting members, plus delegates. State legislatures generally have dozens if not hundreds of members. So, the challenge is bigger than it is with, say, live casting a court argument or a governor’s press conference. Our view is that those challenges can be managed, and that you have to balance the logistical challenges with the fact that the legislature is, in a way, the ultimate embodiment of the people’s sovereignty. It needs to remain uniquely accessible and uniquely democratic. 

In the paper, you argue that any of the procedural changes that a legislature makes should be temporary, that they should only last as long as absolutely necessary. Why is that? What should happen if the pandemic drags on longer than expected?

Well, first of all, temporary doesn’t necessarily mean only a month or only two months. These measures have to be in place for as long as public health experts really believe that in-person sessions of the legislature, with relatively normal procedures, are not feasible.  And that could be a couple of months, but maybe more.

Second, there’s a rich discussion happening right now more broadly about the nature of work in American society and whether we should be moving more to remote work. However, I would suggest extreme caution when it comes to applying those sorts of ideas to Congress and to state legislatures, because they are not just any other workplace. Congress is the ultimate governing body of the United States. And the prevailing theory has been that Congress works best when its members interact, when they gather in one place and work together at the business of legislating. Whether or not that theory is true, I think it’s safe to say that it would be premature to suggest that Congress should move to some sort of remote arrangement on a permanent basis. That’s certainly also true for state legislatures.  

That speaks to the idea of the legislative branch as a deliberative body, right?

Yes. Deliberation is at the core of what we hope Congress and our state legislative bodies will do. They don’t always live up to that ideal, but that’s still what our ideal is. And for all the wonders of technology, meaningful deliberation is still best done in person.

What motivated this paper was a sense that our choice right now is between imperfect options. We clearly think that, under the current circumstances, virtual sessions are the vastly superior option. But that doesn’t really make them a model for how our government should operate forever. And generally, times of crisis are probably not the best time to make radical changes to the structure of how our government operates. You should deal with the crisis now, and then you should figure out if we’ve learned anything that might be useful going forward. 

Read the full Brennan Center report, Maintaining Legislative Continuity Through Emergencies.