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Maintaining Legislative Continuity Through Emergencies

Even amid crises such as the coronavirus pandemic, Congress and every state legislature must continue fulfilling their constitutional roles.

Legislators seated in a mostly empty chamber
Chip Somodevilla/Getty

Intro­duc­tion

Legis­latures are an indis­pens­able element of Amer­ican demo­cracy, includ­ing—and perhaps espe­cially—­dur­ing times of crisis. Yet with the Covid-19 pandemic approach­ing its third month in the United States, 13 state legis­latures are currently adjourned, suspen­ded, or post­poned as a result of the virus, while another 16 have already adjourned without any announced plans to meet again, and four have not gathered at all this year. foot­note1_8ff3g0q 1 As of May 13, 2020. National Confer­ence of State Legis­latures, “2020 State Legis­lat­ive Session Calen­dar,” accessed May 13, 2020, https://www.ncsl.org/research/about-state-legis­latures/2020-state-legis­lat­ive-session-calen­dar.aspx. These states repres­ent 57 percent of the popu­la­tion and include many of the hard­est hit like New York, Geor­gia, and Flor­ida. Congress met only sporad­ic­ally until early May, when the Senate went back into session despite concerns about health risks for senat­ors and staff. foot­note2_5k3t­bfm 2 Mike DeBonis and Paul Kane, “Senate to Return to Wash­ing­ton as Congress Struggles to Recon­cile Consti­tu­tional Duties with Risk of Pandemic,” Wash­ing­ton Post, May 2, 2020, https://www.wash­ing­ton­post.com/polit­ics/senate-to-return-to-wash­ing­ton-with-congress-strug­gling-to-recon­cile-consti­tu­tional-duties-with-risk-of-pandemic/2020/05/02/fba5a35c-8bd7–11ea-ac8a-fe9b8088e101_story.html.

Across the coun­try, legis­latures are strain­ing to carry out their essen­tial func­tions, scarcely able to recon­cile their custom­ary ways of doing busi­ness with sens­ible health precau­tions. Recently, the Arkan­sas House of Repres­ent­at­ives met in a 5,600-person basket­ball arena in order to allow members to main­tain a safe distance from one another. foot­note3_uu457m3 3 Andrew DeMillo, “Arkan­sas Lawmakers Meet at Arena over Coronavirus Concerns,” AP, Mar. 26, 2020, https://apnews.com/a8f4d3abe4f9769eca1f7c578da80b45. When the Michigan legis­lature met in person in early April, it followed elab­or­ate proced­ures, with legis­lat­ors wear­ing masks, taking turns enter­ing the cham­ber, and stand­ing far apart. foot­note4_39plf6j 4 Paul Egan and Kath­leen Gray, “Michigan Legis­lature Extends Emer­gency Declar­a­tion Through April 30,” Detroit Free Press, Apr. 7, 2020, https://www.freep.com/story/news/local/michigan/2020/04/07/watch-live-michigan-house-senate-recon­vene/2960049001/. Like­wise, in the U.S. House of Repres­ent­at­ives last month, a vote on Covid-19 relief legis­la­tion—which would have taken 20 minutes under normal circum­stances—was spaced out over an hour and a half, and members were assigned a time to vote based on their last names. Then the House took a 30-minute break for clean­ing. foot­note5_34tyyh7 5 Jacob Pramuk, “House Set to Pass $484 Billion Coronavirus Bill to Boost Small Busi­ness, Hospit­als and Test­ing,” CNBC, Apr. 23, 2020, https://www.cnbc.com/2020/04/23/coronavirus-updates-house-to-pass-small-busi­ness-relief-bill.html.

Some legis­lat­ive bodies are adapt­ing with creat­ive solu­tions in response to the pandemic. The Utah state legis­lature, for example, met virtu­ally in mid-April. Despite now-famil­iar glitches, inad­vert­ently muted mics, and one senat­or’s cat meow­ing during the meet­ing, the session was considered a success logist­ic­ally. foot­note6_tg2xyra 6 Ben Winslow, “The Utah State Legis­lature’s Virtual Special Session Deal­ing with COVID-19 is Under Way,” FOX 13, Apr. 17, 2020, https://www.fox13now.com/news/coronavirus/local-coronavirus-news/the-utah-state-legis­latures-virtual-special-session-deal­ing-with-covid-19-is-under-way. Legis­latures in other coun­tries are also moving in this direc­tion. The Brit­ish Parlia­ment met virtu­ally for the first time on April 22, as did the Cana­dian Parlia­ment on April 28. foot­note7_zw88seb 7 William Booth, “U.K.’s Zoom Parlia­ment Launches with a Few Glitches but Shows That Virtual Demo­cracy May Work for a While,” Wash­ing­ton Post, Apr. 22, 2020, https://www.wash­ing­ton­post.com/world/europe/uk-zoom-parlia­ment/2020/04/22/d3a38682–8496–11ea-81a3–9690c9881111_story.html; Ryan Tumilty, “COVID-19 Canada: First ‘Vir­tual Parlia­ment’ Brings Account­ab­il­ity with a Few Tech­nical Glitches,” National Post, Apr. 29, 2020, https://nation­al­post.com/news/polit­ics/covid-19-cana­dian-polit­ics-first-virtual-parlia­ment-brings-account­ab­il­ity-with-a-few-tech­nical-head­aches. The U.S. House of Repres­ent­at­ives recently approved proced­ural changes to help mitig­ate the health risks from more than 400 people gath­er­ing in a small space. The House’s emer­gency proced­ures tempor­ar­ily allow a member absent from the Capitol to author­ize another member to cast their vote by proxy and also permit remote commit­tee hear­ings. foot­note8_30595k2 8 Author­iz­ing Remote Voting by Proxy in the House of Repres­ent­at­ives and Provid­ing for Offi­cial Remote Commit­tee Proceed­ings During a Public Health Emer­gency Due to a Novel Coronavirus, and for Other Purposes., H.Res.965, 116th Cong. (2020), avail­able at https://www.congress.gov/bill/116th-congress/house-resol­u­tion/965. Some members of the Senate have also pressed for remote oper­a­tions, but to no avail so far. foot­note9_995u4zf 9 Katelyn Burns, “Pres­sure is Grow­ing to Allow Members of Congress to Vote Remotely Amid Coronavirus Concerns,” Vox, Mar. 18, 2020, https://www.vox.com/policy-and-polit­ics/2020/3/18/21185412/congress-vote-remotely-coronavirus-katie-porter; Scott R. Ander­son and Margaret Taylor, “Congress Dawdles on Remote Voting,” Lawfare, May 6, 2020, https://www.lawfareb­log.com/congress-dawdles-remote-voting. Other U.S. bodies have adjus­ted long­stand­ing legis­lat­ive rules and proced­ures, such as allow­ing more proxy voting or modi­fy­ing quorum require­ments that govern how many members must be present to conduct busi­ness. foot­note10_bh1b­f6c 10 National Confer­ence of State Legis­latures, “COVID-19: State Actions Related to Legis­lat­ive Oper­a­tions,” accessed May 13, 2020, https://www.ncsl.org/research/about-state-legis­latures/covid-19-state-actions-related-to-legis­lat­ive-oper­a­tions.aspx.

The push to adopt emer­gency proced­ures is a response to legit­im­ate dangers. As of this writ­ing, seven members of Congress have already tested posit­ive for the novel coronavirus. foot­note11_6iibzlr 11 Juliegrace Brufke, “Coronavirus in Congress: Lawmakers who Have Tested Posit­ive,” The Hill, last updated Apr. 9, 2020, https://thehill.com/home­news/news/489911-coronavirus-in-congress-lawmakers-who-have-tested-posit­ive. At least three state legis­lat­or­s—Michigan repres­ent­at­ive Isaac Robin­son, Louisi­ana repres­ent­at­ive Reggie Bagala, and South Dakota repres­ent­at­ive Bob Glan­zer­—have died of coronavirus related complic­a­tions, and dozens more have tested posit­ive or exhib­ited symp­toms. foot­note12_bfbw000 12 Ballot­pe­dia, “Govern­ment Offi­cial, Politi­cian, and Candid­ate Deaths, Diagnoses, and Quar­ant­ine Due to the Coronavirus (COVID-19) Pandemic, 2020,” accessed May 13, 2020, https://ballot­pe­dia.org/Govern­ment_offi­cial,_politi­cian,_and_candid­ate_deaths,_diagnoses,_and_quar­ant­ines_due_to_the_coronavirus_(COVID-19)_pandemic,_2020.

In the face of an evolving public health emer­gency, however, many of the United States’ legis­lat­ive bodies are still hold­ing only hurried or perfunc­tory legis­lat­ive sessions. And they often are using ad hoc proced­ures that do not promote robust delib­er­a­tion or engaged poli­cy­mak­ing.

We need a better approach—one that will allow legis­latures to help manage the Covid-19 pandemic and attend to other crit­ical busi­ness while taking appro­pri­ate steps to protect the health and safety of members, staff, and the many other people who inter­act with them.

Part I of this paper discusses why it is vital for legis­latures to remain fully engaged during crises like Covid-19. Congress and state legis­latures perform differ­ent roles in our consti­tu­tional system and have very differ­ent sets of tradi­tions and legal constraints. But during times of adversity, our system of govern­ment depends on elec­ted repres­ent­at­ives at both levels to remain fully engaged in the people’s busi­ness. Congress and state legis­latures are both respons­ible for crit­ical func­tions that include appro­pri­ations, ensur­ing (in differ­ent ways) the continu­ation of essen­tial govern­ment func­tions and pandemic responses, over­sight over their respect­ive exec­ut­ive branches, and advan­cing other crit­ical legis­lat­ive prior­it­ies.

Part II lays out prin­ciples for how to alter key legis­lat­ive proced­ures and rules to allow for contin­ued oper­a­tions consist­ent with public safety and core demo­cratic values. First, Congress and state legis­latures should rapidly begin trans­ition­ing to virtual meet­ings, making them as similar as possible to in-person meet­ings. Second, quorum rules should be altered spar­ingly, and only in ways that avoid comprom­ising a body’s core repres­ent­at­ive char­ac­ter. Third, legis­latures should make every effort to preserve require­ments for clearly record­ing legis­lat­ors’ votes and keep­ing them publicly account­able for their decisions, includ­ing ensur­ing trans­par­ent vote tabu­la­tion and strictly limit­ing proxy voting. Fourth, legis­latures should exer­cise extreme caution before giving greater agenda-setting or proced­ural power to a select subset of their member­ship. Finally, legis­latures should give full effect to long­stand­ing trans­par­ency and open­ness prin­ciples, taking advant­age of expan­ded tech­no­lo­gical capab­il­it­ies. Now more than ever, legis­latures owe their constitu­en­cies a heightened commit­ment to open, account­able govern­ment.

Ulti­mately, any emer­gency plans craf­ted during this period should be guided by two over­arch­ing consid­er­a­tions. First, any changes should hew as closely as possible to long­stand­ing rules and proced­ures. In other words, virtual meet­ings and other tempor­ary changes should be designed to replic­ate current prac­tice as much as possible. Second, all changes should be tempor­ary. This is not the time to perman­ently alter estab­lished proced­ures. Meas­ures should be narrowly fash­ioned to allow elec­ted repres­ent­at­ives to remain fully engaged in the people’s busi­ness and should lapse as soon as it is possible to return to regu­lar order.

I. Legis­latures in Times of Crisis

The U.S. govern­ment cannot func­tion without legis­latures. Indeed, at the federal level, Congress was envi­sioned to be the pree­m­in­ent branch of govern­ment. “In repub­lican govern­ment,” James Madison wrote in Feder­al­ist No. 51, “the legis­lat­ive author­ity neces­sar­ily predom­in­ates.” foot­note13_med2iq1 13 James Madison, “Feder­al­ist #44,” retrieved from Congress,gov, “The Feder­al­ist Papers,” https://www.congress.gov/resources/display/content/The+Fed­er­al­ist+Pa­pers#TheFed­er­al­ist­Pa­pers-44. Congress alone has the power of the purse, the power to write legis­la­tion, and the power to declare war, among other powers. foot­note14_y4fjlie 14 U.S. Const. art. I, §§ 7–9. The framers expec­ted Congress to play an active role in day-to-day governance. foot­note15_qmrc1ft 15 Benjamin Gins­berg and Kath­ryn Wagner Hill, Congress: The First Branch (New Haven: Yale Univer­sity Press, 2019), 13–14, 43–45. See also Josh Chafetz, Congress’s Consti­tu­tion: Legis­lat­ive Author­ity and the Separ­a­tion of Powers (New Haven: Yale Univer­sity Press, 2017). While insti­tu­tional arrange­ments vary to some degree across the states,every state legis­lature also plays a cent­ral role in setting policy and over­see­ing essen­tial govern­ment func­tions. foot­note16_ebhul55 16 All 50 states have a govern­ment struc­ture that mimics to some degree the three branches of the federal govern­ment; some have sugges­ted that the federal Consti­tu­tion may require this model for the states. However, there is a great deal of vari­ation across the states in terms of the balance of power between the differ­ent branches. See Michael C. Dorf, “The Relev­ance of Federal Norms for State Separ­a­tion of Powers,” Roger Willi­ams Univer­sity Law Review 4 (1998): 52. See National Confer­ence of State Legis­latures, State Legis­lat­ive Poli­cy­mak­ing in an Age of Polit­ical Polar­iz­a­tion, Center for Legis­lat­ive Strength­en­ing, 2018, https://www.ncsl.org/Portals/1/Docu­ments/About_State_Legis­latures/Partis­an­ship_030818.pdf; National Confer­ence of State Legis­latures and National Legis­lat­ive Program Eval­u­ation Soci­ety, Ensur­ing the Public Trust 2015: Program Policy Eval­u­ation’s Role in Serving State Legis­latures, 2015, https://www.ncsl.org/Portals/1/Docu­ments/nlpes/NLPE­SEn­sur­ingThePub­lic­Trust2015_3.pdf.

Of course, chief exec­ut­ives—the pres­id­ent and state governor­s—also play a crit­ical lead­er­ship role, espe­cially during emer­gen­cies. But their powers can easily be abused and must be balanced by legis­lat­ive over­sight and cooper­a­tion. foot­note17_8s9c­s4o 17 Our colleague Eliza­beth Goitein has explored the threat that unfettered exec­ut­ive author­ity can pose to liberal demo­cratic values in the context of the pres­id­ent’s emer­gency powers. See Eliza­beth Goitein, “The Alarm­ing Scope of the Pres­id­ent’s Emer­gency Powers,” The Atlantic, Jan./Feb. 2019, https://www.theat­lantic.com/magazine/archive/2019/01/pres­id­en­tial-emer­gency-powers/576418/. While a genu­ine crisis often does require exec­ut­ive offi­cials to exer­cise increased author­ity, their power must still be cabined and appro­pri­ately checked. See Eliza­beth Goitein, “The Coronavirus is a Real Crisis. The Border Wall Obvi­ously Wasn’t,” Wash­ing­ton Post, Mar. 18, 2020, https://www.wash­ing­ton­post.com/outlook/2020/03/18/coronavirus-is-real-crisis-border-fence-obvi­ously-wasnt/. This is a concern at the state level as well. Accord­ing to an analysis prepared by CDC experts during a declared emer­gency “35 states … expli­citly permit governors to suspend or amend both stat­utes and regu­la­tions.” Gregory Sunshine et al., “An Assess­ment of State Laws Provid­ing Gubernat­orial Author­ity to Remove Legal Barri­ers to Emer­gency Response,” Health Secur­ity 17 (2019): 156, https://www.ncbi.nlm.nih.gov/pubmed/30942620. At the state level, where many of the decisions that have the most direct impact on daily life during the pandemic are taking place, governors often lack the author­ity to ensure that essen­tial govern­ment func­tions are carried out without legis­lat­ive assent. foot­note18_54bdulu 18 The recent contro­versy over Wiscon­sin’s April 7 elec­tion is a case in point. After the legis­lature refused to act, the state’s governor issued an exec­ut­ive order post­pon­ing in-person voting, an action that was over­turned by the state’s supreme court. Nata­sha Korecki and Zach Montel­laro, “Wiscon­sin Supreme Court Over­turns Governor, Orders Tues­day Elec­tions to Proceed,” Politico, Apr. 6, 2020, https://www.politico.com/news/2020/04/06/wiscon­sin-governor-orders-stop-to-in-person-voting-on-eve-of-elec­tion-168527.

Moreover, whatever action govern­ment takes during a crisis, legis­lat­ive parti­cip­a­tion is crit­ical to ensur­ing public legit­im­acy. For all their indi­vidual flaws, legis­latures remain among the most import­ant fora for public debate and are the ulti­mate vehicle for the expres­sion of popu­lar opin­ion in a delib­er­at­ive demo­cracy. foot­note19_j8rpzkj 19 See Amy Gutmann and Dennis Thompson, Why Delib­er­at­ive Demo­cracy? (Prin­ceton: Prin­ceton Univer­sity Press, 2004), 20; Jeremy Waldon, “Prin­ciples of Legis­la­tion,” in The Least Examined Branch: The Role of Legis­latures in the Consti­tu­tional State, ed. Richard W. Bauman and Tsvi Kahana (Cambridge: Cambridge Univer­sity Press, 2006), 22– 23. This is not to discount the signi­fic­ance of extreme gerry­man­der­ing and other prob­lems that under­mine the repres­ent­at­ive char­ac­ter of partic­u­lar legis­lat­ive bodies. See Michael Li and Annie Lo, “What Is Extreme Gerry­man­der­ing?,” Bren­nan Center for Justice, Mar. 22, 2019, https://www.bren­nan­cen­ter.org/our-work/analysis-opin­ion/what-extreme-gerry­man­der­ing.

Histor­ic­ally, Congress and state legis­latures have contin­ued to oper­ate during times of crisis and have actively parti­cip­ated in managing the fallout. The most obvi­ous paral­lel to the present situ­ation is the Span­ish influ­enza pandemic of 1918–19. During that period, when the United States was also embroiled in World War I, Congress and state legis­latures contin­ued to meet and pass laws, includ­ing meas­ures to help manage the pandemic. foot­note20_xj8miod 20 Carl Hulse and Nich­olas Fandos, “As Lawmakers Report Expos­ure, Congress Grapples with Virus Response,” New York Times, Mar, 12, 2020, https://www.nytimes.com/2020/03/09/us/congress-coronavirus.html; Adam Beam, “Cali­for­nia Legis­lature Suspends until April 13 Amid Outbreak,” AP, Mar. 17, 2020, https://apnews.com/5e7be7d1b9c8b­c3d44817001e04de05f; and Meghan Lopez, “Color­ado Lawmakers Consid­er­ing Possib­il­ity of Suspend­ing Legis­lat­ive Session,” Denver Chan­nel, Mar. 13, 2020, https://www.theden­ver­chan­nel.com/news/national/coronavirus/color­ado-lawmakers-consid­er­ing-possib­il­ity-of-suspend­ing-legis­lat­ive-session. In response to the Span­ish influ­enza pandemic, the House of Repres­ent­at­ives agreed to an exten­ded series of recesses inter­spersed with brief pro forma sessions where it often lacked the members neces­sary to form a quorum. In one such session, with fewer than 50 members present, congres­sional lead­ers from both parties agreed to consider a bill to recruit more doctors to the Public Health Service under a unan­im­ous consent agree­ment where all members agreed not to ask for a quorum call. The rule was adop­ted 29–19, and the bill passed without objec­tion. See United States House of Repres­ent­at­ives, “Sick Days,” Dec. 17, 2018, https://history.house.gov/Blog/2018/Decem­ber/12–14-Flu/. While such rule changes may have been neces­sary for the House to continue func­tion­ing in 1918, modern commu­nic­a­tions tech­no­lo­gies should allow Congress to respond to the present crisis without extreme alter­a­tions of quorum prac­tices.

Congress also contin­ued to meet and pass legis­la­tion through­out the course of the Civil War, even when fight­ing came near Wash­ing­ton, DC. foot­note21_7ybg­p6d 21 For example, Congress stayed in session and passed laws through early July of 1864, even as Confed­er­ate troops in the Shen­an­doah Valley prepared to launch an attack on Wash­ing­ton, DC. Confed­er­ate and Union forces fought the Battle of Fort Stevens, within the District of Columbia, on July 11–12. See “Stat­utes at Large: 38th Congress,” Library of Congress, accessed May 7, 2020, https://www.loc.gov/law/help/stat­utes-at-large/38th-congress.php; Leah Binkovitz, “The Battle in Our Back­yard: Remem­ber­ing Fort Stevens,” Smith­so­nian Magazine, July 11, 2012, https://www.smith­so­ni­an­mag.com/smith­so­nian-insti­tu­tion/the-battle-in-our-back­yard-remem­ber­ing-fort-stevens-1693525/. During the Cold War, Congress and most state legis­latures enacted continu­ity plans to allow them to remain oper­a­tional in the event of a nuclear attack. foot­note22_4ybraq8 22 National Confer­ence of State Legis­latures, “Continu­ity of Legis­lature During Emer­gency,” accessed May 7, 2020, https://www.ncsl.org/research/about-state-legis­latures/continu­ity-of-legis­lature-during-emer­gency.aspx. Both cham­bers also remained in session follow­ing the Septem­ber 11, 2001 terror­ist attacks even though the U.S. Capitol had been one of the inten­ded targets. Even after deadly anthrax powder was mailed to House and Senate offices in Octo­ber 2001, only the House adjourned, and only for one week. foot­note23_ypdngml 23 Paul Kane, “Congress in Grip of Confu­sion, Fear over Coronavirus Unsure Whether to Stay or Go,” Wash­ing­ton Post, Mar. 10, 2020, https://www.wash­ing­ton­post.com/power­post/congress-in-grip-of-confu­sion-fear-over-coronavirus-unsure-whether-to-stay-or-go/2020/03/09/2528a34c-6233–11ea-845d-e35b0234b136_story.html. State legis­latures also routinely stay in session to help manage seri­ous natural disasters like hurricanes, earth­quakes, and wild­fires. foot­note24_t6qz78s 24 The Cali­for­nia state legis­lature stayed in session through the summer of 2018 as multiple wild­fires ravaged parts of the state, blow­ing smoke into the state capital of Sacra­mento. The legis­lature ulti­mately passed a major wild­fire preven­tion bill in August. Jordan Cutler-Tietjen, “Here’s the Air Qual­ity Outlook for July 4 and Beyond, Amid North­ern Cali­for­nia Wild­fires,” Sacra­mento Bee, July 3, 2018, https://www.sacbee.com/news/cali­for­nia/fires/article214265469.html; Katy Murphy, “Cali­for­nia Wild­fire Legis­la­tion Includes PG&E ‘Bail­out,’” Mercury News, Aug. 31, 2018, https://www.mercurynews.com/2018/08/31/cali­for­nia-passes-net-neut­ral­ity-bill-on-final-day-of-legis­lat­ive-session/. Follow­ing Hurricane Katrina, the Louisi­ana state legis­lature was in joint session in Baton Rouge a few weeks after the hurricane hit New Orleans. Louisi­ana State Senate, “LA Senate & House to Hold Special Meet­ing to Receive an Update on Hurricane Katrina Recov­ery from Governor Blanco,” Sept. 13, 2005, http://senate.legis.state.la.us/Commu­nic­a­tionOf­fice/News­Releases/2005/09–13–2005.htm; “Louisi­ana’s Blanco Vows to Rebuild,” CNN, Sept. 15, 2005, http://edition.cnn.com/2005/POLIT­ICS/09/14/katrina.gov.blanco/. The state legis­lature then met again in Octo­ber, after Hurricane Rita hit Baton Rouge, and was called into an extraordin­ary legis­lat­ive session in Novem­ber of that year to mass major relief legis­la­tion. Louisi­ana State Senate, “Joint Budget Commit­tee Takes On Key Role In Approval of Appro­pri­ations of Federal Disaster Aid to State Agen­cies & Local Govern­ments,” Oct. 4, 2005, http://senate.legis.state.la.us/Commu­nic­a­tionOf­fice/News­Releases/2005/10–04–2005.htm; Louisi­ana House Legis­lat­ive Services, High­lights of the 2005 First Extraordin­ary Session and the 2006 First Extraordin­ary Session of the Louisi­ana Legis­lature, 2006, https://house.louisi­ana.gov/H_High­lights/High­lights_051ES_061ES.pdf; and Louisi­ana State Legis­lature, “Session Inform­a­tion for the 2005 First Extraordin­ary Session,” accessed May 7, 2020, https://www.legis.la.gov/Legis/Session­Info/Session­Info_051ES.aspx.

As before, continu­ity of legis­lat­ive oper­a­tions during the Covid-19 pandemic remains crit­ical. From provid­ing funds to mitig­ate the economic impact of social distan­cing to modi­fy­ing voting rules so that the 2020 elec­tion can be conduc­ted safely, Congress and state legis­latures have essen­tial roles to play. There are four areas that are espe­cially likely to require legis­lat­ors to remain engaged on an ongo­ing basis.

Appro­pri­ations. At both the federal and state levels, appro­pri­ations are typic­ally within the unique purview of the legis­lature (the so-called “power of the purse”). foot­note25_skb19jr 25 See, e.g. U.S. Const. art. I, § 8. Both federal and state laws do some­times allow exec­ut­ive officers to redir­ect appro­pri­ated funds, but as noted there are compel­ling reas­ons to limit such circum­stances. See note 17. Legis­lat­ive action is also almost always required to raise taxes or other sources of revenue. This has been Congress’s most prom­in­ent role in the Covid-19 crisis to date, which was focused initially on provid­ing emer­gency funds for public health but has now transitioned to managing the pandem­ic’s broader effects, includ­ing its massive economic fallout. foot­note26_ojuqzo5 26 “Coronavirus: Congress Passes $484bn Economic Relief Bill,” BBC, Apr. 24, 2020, https://www.bbc.com/news/world-us-canada-52398980. Legis­latures in the hard­est hit states are also work­ing on supple­mental appro­pri­ations to manage the pandemic and its consequences. foot­note27_klfnox1 27 National Confer­ence of State Legis­latures, “State Action on Coronavirus (COVID-19),” accessed May 7, 2020, https://www.ncsl.org/research/health/state-action-on-coronavirus-covid-19.aspx. Because most states are required to balance their budgets, legis­latures also are find­ing them­selves forced to make pain­ful cuts to offset the pandem­ic’s economic reper­cus­sions in terms of lost tax, tour­ist, and other sources of revenue. foot­note28_g4s92nq 28 Jesse Pound, “State and Local Govern­ments Face Budget Crunch, Hurt­ing Hopes for a Quick Economic Recov­ery,” CNBC, Apr. 12, 2020, https://www.cnbc.com/2020/04/12/state-and-local-govern­ments-face-budget-crunch-hurt­ing-hopes-for-a-quick-economic-recov­ery.html; Allan Smith, “Finan­cial Dooms­day: State, Local Govern­ments Face Layoffs, Service Cuts, Projects Derailed,” NBC, Apr. 22, 2020, https://www.nbcnews.com/polit­ics/donald-trump/finan­cial-dooms­day-state-local-govern­ments-face-layoffs-service-cuts-projects-n1188246; and Tony Room, “Cities and States Brace for Economic ‘Reck­on­ing,’ Eyeing Major Cuts and Fear­ing Federal Coronavirus Aid Isn’t Enough,” Wash­ing­ton Post, Apr. 10, 2020, https://www.wash­ing­ton­post.com/busi­ness/2020/04/10/cities-states-coronavirus-budgets/.

The work of find­ing money to respond to Covid-19 and manage the pandem­ic’s broader impacts will continue for some time. Dr. Anthony Fauci, the director of the National Insti­tutes of Allergy and Infec­tious Diseases, has noted that “it’s very diffi­cult to predict [when the United States will start to get out of the worst of the pandemic],” while the Inter­na­tional Monet­ary Fund has warned that economic uncer­tainty is “excep­tion­ally high and is much higher than in past outbreaks.” foot­note29_fai6b33 29 Dr. Anthony Fauci, inter­view by Jake Tapper, State of the Union, CNN, Apr. 12, 2020, avail­able at http://tran­scripts.cnn.com/TRAN­SCRIPTS/2004/12/sotu.01.html; Hites Ahir, Nich­olas Bloom, and David Furceri, “Global Uncer­tainty Related to Coronavirus at Record High,” IMFB­log, Apr. 4, 2020, https://blogs.imf.org/2020/04/04/global-uncer­tainty-related-to-coronavirus-at-record-high/. Congress and state legis­latures will continue to have an indis­pens­able role to play alloc­at­ing resources even as circum­stances evolve.

Continu­ing Essen­tial Govern­ment Func­tions and Pandemic Responses. Legis­lat­ive action also will be needed to ensure the continu­ation of essen­tial govern­ment func­tions and to respond to the pandemic. At a federal level, apart from appro­pri­at­ing funds, Congress has already taken steps that include expand­ing telemedi­cine services for Medi­care patients, provid­ing paid sick and family leave, suspend­ing student loan payments, and creat­ing protec­tions against fore­clos­ures and evic­tions. foot­note30_b6aeey5 30 Claudia Grisales, “Trump To Sign $8 Billion Coronavirus Response Pack­age Friday,” NPR, Mar. 4, 2020 https://www.npr.org/2020/03/04/812109864/bipar­tisan-nego­ti­at­ors-reach-deal-for-roughly-8-billion-for-coronavirus-response; Claudia Grisales, Susan Davis, and Kelsey Snell, “Pres­id­ent Trump Signs Coronavirus Emer­gency Aid Pack­age,” NPR, Mar. 18, 2020, https://www.npr.org/2020/03/18/817737690/senate-passes-coronavirus-emer­gency-aid-send­ing-plan-to-pres­id­ent; and “What’s in the $2 Tril­lion Coronavirus Stim­u­lus Bill,” CNN, Mar. 26, 2020, https://www.cnn.com/2020/03/25/polit­ics/stim­u­lus-pack­age-details-coronavirus/index.html.

At the state level, governors and other state exec­ut­ive officers gener­ally have assumed primary respons­ib­il­ity for day-to-day manage­ment of the crisis, but certain essen­tial actions never­the­less fall within the legis­lature’s primary purview. For example, a number of state legis­latures have passed laws to help manage the direct consequences of the pandemic, includ­ing by expand­ing the avail­ab­il­ity of paid sick leave, permit­ting public schools to use nontra­di­tional instruc­tion meth­ods, and modi­fy­ing state open govern­ment laws to allow other public bodies to meet remotely. foot­note31_xl9e3ft 31 E.g. Lewis Kamb, “Inslee Suspends Some Parts of Open-Govern­ment Laws Amid Coronavirus Crisis,” Seattle Times, Mar. 25, 2020, https://www.seattle­times.com/seattle-news/inslee-suspends-some-parts-of-open-govern­ment-laws-amid-coronavirus-crisis/; Laura Bednar, “Inde­pend­ence Shifts to Online Plat­form for Public Meet­ings Due to Coronavirus Crisis,” Clev­e­land.com, Apr. 18, 2020, https://www.clev­e­land.com/community/2020/04/inde­pend­ence-shifts-to-online-plat­form-for-public-meet­ings.html; Scott Logan, “Idaho Lawmakers OK $1.3 Million to Ensure Govern­ment Services in Coronavirus Crisis,” IdahoNews, Mar. 16, 2020, https://idahonews.com/news/coronavirus/jfac-oks-13-million-to-ensure-essen­tial-govern­ment-services-in-crisis; and “Kentucky Lawmakers Pass COVID-19 Relief for Schools,” WKYT, Mar. 19, 2020, https://www.wkyt.com/content/news/Kentucky-lawmakers-pass-COVID-19-relief-for-schools-568951711.html. Others have taken action to manage the broader economic fallout, like expand­ing eligib­il­ity for unem­ploy­ment bene­fits and suspend­ing evic­tions and fore­clos­ures. foot­note32_celbhrq 32 Cole Laut­er­bach, “Ducey Signs Bill Expand­ing Access to Unem­ploy­ment Due to COVID-19,” The Center Square, Mar. 27, 2020, https://www.thecen­ter­square.com/arizona/ducey-signs-bill-expand­ing-access-to-unem­ploy­ment-due-to-covid-19/article_815af­d9c-7073–11ea-b3d2–433d99119219.html; Chris­topher Gavin, “An Evic­tion and Fore­clos­ure Morator­ium is Now in Effect in Mass. During the COVID-19 Pandemic. Here’s What to Know,” Boston.com, Apr. 21, 2020, https://www.boston.com/news/coronavirus/2020/04/21/massachu­setts-evic­tion-fore­clos­ure-morator­ium-coronavirus.

One area where contin­ued legis­lat­ive engage­ment will be espe­cially import­ant is ensur­ing free and fair elec­tions that allow all Amer­ic­ans to safely parti­cip­ate. That will neces­sit­ate meas­ures that include expan­ded online voter regis­tra­tion, signi­fic­antly expan­ded vote-by-mail options, and the exten­sion of dead­lines for count­ing and certi­fy­ing elec­tion results. foot­note33_hltrrj1 33 Wendy R. Weiser and Max Feld­man, “How to Protect the 2020 Vote from the Coronavirus,” Bren­nan Center for Justice, Mar. 16, 2020, https://www.bren­nan­cen­ter.org/our-work/policy-solu­tions/how-protect-2020-vote-coronavirus. These are often changes that must be made by state legis­latures, several of which have already moved to expand voting by mail. foot­note34_1clm9w6 34 E.g. Audrey Hack­ett, “Ohio Moves to Mail-In Voting,” Yellow Springs News, Apr. 6, 2020, https://ysnews.com/news/2020/04/ohio-moves-to-mail-in-voting; Lind­say White­hurst, “Utah OKs Hold­ing Primary Entirely by Mail Amid Coronavirus,” AP, Apr. 16, 2020, https://apnews.com/26002ad8b3a1eef41deef71e00c69ae7; and Fritz Esker, “La. Legis­lature Approves Emer­gency Elec­tion Plan,” Louisi­ana Weekly, May 4, 2020, http://www.louisi­anaweekly.com/la-legis­lature-approves-emer­gency-elec­tion-plan/. Many other bodies will need to act to ensure that resid­ents of their states can vote in upcom­ing primar­ies and the general elec­tion without risk to their health. foot­note35_juu1x7c 35 Bren­nan Center for Justice, “Prepar­ing Your State for an Elec­tion Under Pandemic Condi­tions,” last updated Apr. 27, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/prepar­ing-your-state-elec­tion-under-pandemic-condi­tions. (In addi­tion to action from state legis­latures, there is also an urgent need for Congress to appro­pri­ate supple­mental funds to help states imple­ment new elec­tion proced­ures, which the Bren­nan Center has estim­ated will cost at least $4 billion.) foot­note36_6ybw3mc 36 Lawrence Norden et al., “Estim­ated Costs of Covid-19 Elec­tion Resi­li­ency Meas­ures,” Bren­nan Center for Justice, last updated Apr. 18, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/estim­ated-costs-covid-19-elec­tion-resi­li­ency-meas­ures.

Over­sight. Legis­latures exer­cise crit­ical over­sight over the exec­ut­ive branch. foot­note37_2gha1rr 37 L. Elaine Halchin and Fred­er­ick M. Kaiser, Congres­sional Over­sight, Congres­sional Research Service, 2012, https://fas.org/sgp/crs/misc/97–936.pdf. As early as 1792, Congress has used its over­sight powers during times of crisis to root out corrup­tion (the risk of which tends to go up with increased govern­ment spend­ing) and address other crisis-related prob­lem­s—­from inad­equate hous­ing for World War II-era defense work­ers to a lack of inform­a­tion shar­ing among govern­ment agen­cies in connec­tion to the 9/11 attacks. foot­note38_1t7enwx 38 Telford Taylor, Grand Inquest: The Story of Congres­sional Invest­ig­a­tions (New York: Simon and Schuster, 1955); “Truman Commit­tee Exposes Hous­ing Mess,” Life, Nov. 30, 1942, avail­able at https://books.google.com/books?id=RkEEAAAAM­BAJ&pg=PA45#v=onepage&q&f=false; and U.S. Congress, House of Repres­ent­at­ives, Subcom­mit­tee on Manage­ment, Integ­ra­tion, and Over­sight of the Commit­tee on Home­land Secur­ity, An Exam­in­a­tion of Federal 9/11 Assist­ance to New York: Lessons Learned in Prevent­ing Waste, Fraud, Abuse, and Lax Manage­ment, 109th Cong., 2006, avail­able at https://www.govinfo.gov/content/pkg/CPRT-109H­PRT20452/html/CPRT-109H­PRT20452.htm.

The need for congres­sional over­sight during the current pandemic is clear. More than $2 tril­lion has already been appro­pri­ated to prop up the U.S. economy. As Neil Barof­sky, the former inspector general for the Troubled Asset Relief Program (TARP), recently noted, “[w]e need to ensure that this govern­ment aid is not being stolen, wasted or given to polit­ical cronies. And we need to make sure that the public is aware of how and to whom those tril­lions are distrib­uted.” foot­note39_h9q664j 39 Neil M. Barof­sky, “Why We Desper­ately Need Over­sight of the Coronavirus Stim­u­lus Spend­ing,” New York Times, Apr. 13, 2020, https://www.nytimes.com/2020/04/13/opin­ion/coronavirus-stim­u­lus-over­sight.html. Moves by the Trump Admin­is­tra­tion to comprom­ise inde­pend­ent over­sight within the exec­ut­ive branch, includ­ing firing the long­time inspector general who was slated to over­see the pandemic bail­out and three other IGs, make it even more imper­at­ive for Congress to continue to play an active role. foot­note40_e8wexi6 40 Bharat Ramamurti, “I’m Over­see­ing the Coronavirus Relief Bill. The Strings Aren’t Attached.,” Wash­ing­ton Post, Apr. 16, 2020, https://www.nytimes.com/2020/04/16/opin­ion/coronavirus-over­sight-congress-tril­lions.html; Zachary Cohen et al., “Amid Coronavirus, Trump Seizes Chance to Carry out a Long-Desired Purge of Govern­ment Watch­dogs,” CNN, Apr. 8, 2020, https://www.cnn.com/2020/04/08/polit­ics/trump-attacks-watch­dog-inspect­ors-general-govern­ment-over­sight/index.html; and Mike DeBonis and John Hudson, “Fired Inspector General Was Examin­ing Whether Pompeo Had a Staffer Walk His Dog, Handle Dry Clean­ing, Offi­cials Say,” Wash­ing­ton Post, May 17, 2020, https://www.wash­ing­ton­post.com/national-secur­ity/state-depart­ment-inspector-general-steve-linick-mike-pompeo/2020/05/17/daf5170a-98a7–11ea-b60c-3be060a4f8e1_story.html.

Many state legis­latures will also need to play an active over­sight role. In hard-hit states like New York, Cali­for­nia, and Michigan, governors have been gran­ted broad author­ity, includ­ing control over billions of dollars in relief funds. foot­note41_lpok­l70 41 Adam Beam, “Cali­for­nia Legis­lature OKs $1 Billion for Coronavirus,” KPBS, Mar. 16, 2020, https://www.kpbs.org/news/2020/mar/16/cali­for­nia-legis­lature-oks-1-billion-coronavirus/; Jim Bren­nan, “State Budget Includes Extens­ive Cutbacks but We Don’t Know What They Are Yet,” Gotham Gazette, Apr. 16, 2020, https://www.gothamgaz­ette.com/opin­ion/9309-new-york-state-budget-extens­ive-cutbacks-mystery-trans­par­ency; and Craig Mauger, “Whit­mer Signs Emer­gency COVID-19 Response Bills, Vetoes Nearly $80M in Other Spend­ing,” Detroit News, Mar. 30, 2020, https://www.detroit­news.com/story/news/local/michigan/2020/03/30/whit­mer-signs-emer­gency-covid-19-response-bills-limits-other-spend­ing/5085760002/. In other states like Oregon, the governor is allowed to use general state funds “regard­less of the legis­lat­ively expressed purpose of the appro­pri­ation” in a declared emer­gency. foot­note42_h2yseeb 42 E.g., Or. Const. art. X-A, § 2. As at the federal level, active legis­lat­ive over­sight is an import­ant check to ensure that states spend funds wisely and that governors and other exec­ut­ive branch offi­cials do not abuse their power.

Other medium and long-term governance. Finally, it will be crit­ical in the coming months for legis­latures to take up import­ant matters unre­lated to the pandemic. While social distan­cing and improved medical care will hope­fully continue to mitig­ate the worst effects of Covid-19, a vaccine is not expec­ted until mid-2021 at the earli­est. foot­note43_ubukjgk 43 Robert Kuznia, “The Timetable for a Coronavirus Vaccine is 18 Months. Experts Say That’s Risky,” CNN, Apr. 1, 2020, https://www.cnn.com/2020/03/31/us/coronavirus-vaccine-timetable-concerns-experts-invs/index.html. It is neither prefer­able nor feas­ible for legis­latures to put off urgent prior­it­ies for that span of time. These prior­it­ies include annual budgets and other crit­ical pieces of legis­la­tion to ensure the contin­ued oper­a­tion of govern­ment. During this time, legis­latures should focus on how they can continue their work while safe­guard­ing the health of members and staff and protect­ing the public’s right to know about and parti­cip­ate in decisions that will impact their lives.

II. Recom­mend­a­tions

Given the import­ance of ongo­ing legis­lat­ive and repres­ent­at­ive governance in the midst of the pandemic, it is crit­ical that Congress and every state legis­lature put emer­gency plans in place to estab­lish how they will func­tion if, as some have predicted, the Covid-19 pandemic contin­ues to affect us in unpre­dict­able ways for the next 18 months. foot­note44_8xtxtf7 44 Rosie Perper, “A Federal Plan to Tackle the Coronavirus Pandemic Warns It 'Will Last 18 Months or Longer’ and Could Include ‘Mul­tiple Waves’,” Busi­ness Insider, Mar. 17, 2020, https://www.busi­ness­in­sider.com/us-coronavirus-warn­ing-pandemic-will-last-18-months-multiple-waves-2020–3. In this section, we discuss some best prac­tices and prin­ciples that should guide federal and state legis­latures trying to craft continu­ity of govern­ment plans.

Many states and the federal govern­ment are currently debat­ing new contin­gency plans. Unfor­tu­nately, most of them cannot turn to previ­ous work on continu­ity of govern­ment, the major­ity of which was devised in the wake of the 9/11 terror­ist attacks and there­fore contem­plates a very differ­ent type of emer­gency. foot­note45_ll6lfgi 45 At least 13 states had some emer­gency rule changes pre-posi­tioned long before the current public health crisis. But many of the states that had the foresight to deal with poten­tial emer­gen­cies limited their laws’ applic­ab­il­ity to “enemy attacks.” See National Confer­ence of State Legis­latures, More Resources for NCSL’s Website on Continu­ity of the Legis­lature During an Emer­gency, 2020, 8–12, https://www.ncsl.org/Docu­ments/About_State_Legis­latures/more_resources_COG_Legis­latures.pdfhttps://www.ncsl.org/Docu­ments/About_State_Legis­latures/more_resources_COG_Legis­latures.pdf. States that do not have estab­lished emer­gency proced­ures should consider creat­ing them now, and the states that already do should review them to make sure that they cover a broad range of events, includ­ing pandem­ics. Both Wash­ing­ton and Oregon have recently done so and may provide useful models. Wash­ing­ton state amended its consti­tu­tion in 2019 to add “cata­strophic incid­ents” to provi­sions regard­ing legis­lat­ive powers in an emer­gency. Joseph O’Sul­li­van, “Wash­ing­ton Voters Saying Yes to Consti­tu­tional Amend­ment for Stronger State Disaster-Plan­ning,” Seattle Times, Nov. 6, 2019, https://www.seattle­times.com/seattle-news/polit­ics/elec­tion-results-2019-senate-joint-resol­u­tion-8200-consti­tu­tional-amend­ment-disaster-earth­quake-plan­ning-wash­ing­ton-state/. In Oregon, “cata­strophic disaster” legis­lat­ive proced­ures include “natural or human-caused event[s] that: (a) Results in extraordin­ary levels of death, injury, prop­erty damage or disrup­tion of daily life in this state; and (b) Severely affects the popu­la­tion, infra­struc­ture, envir­on­ment, economy or govern­ment func­tion­ing of this state.” Or. Const. art. X-A, § 4. Like­wise, in Wiscon­sin, disaster “means a severe or prolonged, natural or human-caused, occur­rence that threatens or negat­ively impacts life, health, prop­erty, infra­struc­ture, the envir­on­ment, the secur­ity of this state or a portion of this state, or crit­ical systems, includ­ing computer, tele­com­mu­nic­a­tions, or agri­cul­tural systems.” Wis. Stat. § 13.42 (2009); see also Continu­ity of Govern­ment Commis­sion, Preserving Our Insti­tu­tions: The Continu­ity of Congress, 2003,https://www.brook­ings.edu/wp-content/uploads/2016/06/continu­ity­ofgov­ern­ment.pdf (focus­ing on mass casu­alty events in the wake of a terror­ism attack and the need to rapidly recon­sti­t­ute Congress). Undoubtedly, new emer­gency plans adap­ted to Covid-19 will be unable to cover every possible twist in the coming months. As legis­latures recon­sti­t­ute them­selves and devise new oper­at­ing plans on the fly, there almost certainly will be tech­nical glitches, frus­trat­ing missteps, and missed oppor­tun­it­ies. The situ­ation calls for creativ­ity and flex­ib­il­ity.

At the same time, there are risks asso­ci­ated with poorly conceived emer­gency plans of oper­a­tion. Legis­lat­ive proced­ures and path­ways in the United States are based on centur­ies of consid­er­a­tion about how a repres­ent­at­ive demo­cracy works, about minor­ity rights, and about due process and fair debate. foot­note46_75xglgy 46 Walter J. Oleszek et al., Congres­sional Proced­ures and the Policy Process, 11th ed. (Wash­ing­ton, D.C.: CQ Press, 2019), 8; see also Robert C. Byrd, The Senate, 1789–1989: Addresses on the History of the United States Senate (Wash­ing­ton, D.C.: GPO, 1989). As the renowned congres­sional proced­ure scholar Walter Oleszek has noted, legis­lat­ive rules “provide stabil­ity, legit­im­ize decisions, divide respons­ib­il­it­ies, protect minor­ity rights, reduce conflict, and distrib­ute power.” foot­note47_x5pakgl 47 Oleszek et al., Congres­sional Proced­ures, 8.

Misguided rules that do not respect these demo­cratic norms and prac­tices can severely under­mine a legis­lature’s basic legit­im­acy. When Thomas Jeffer­son first pondered how he would over­see the conduct the Senate while he presided over it as vice pres­id­ent from 1797 to 1801, he emphas­ized proced­ures that would restrict the “the wanton­ness of power.” He emphas­ized the need for rules “not subject to the caprice of the Speaker or captious­ness of the members. It is very mater­ial that order, decency, and regu­lar­ity be preserved in a digni­fied public body.” foot­note48_8wdfmqy 48 Thomas Jeffer­son, Manual of Parlia­ment­ary Prac­tice (Carl­isle, MA: Apple­wood Books, 1993), 2–3. Since Jeffer­son wrote his Manual of Parlia­ment­ary Prac­tice more than two centur­ies ago, legis­lat­ive proced­ure has evolved as the party system took hold, Amer­ican demo­cracy has expan­ded, and the nation’s soci­ety and economy grew vastly. But core ques­tions about whether the legis­lature oper­ates in a demo­cratic and fair way have not changed: is the legis­lat­ive body repres­ent­at­ive, is it account­able to the people, and does it provides a fair and equal forum where conflict can be resolved? foot­note49_wyazd36 49 Waldron, “Prin­ciples of Legis­la­tion,” 22–23; Jane Schac­ter, “Polit­ical Account­ab­il­ity, Proxy Account­ab­il­ity and the Demo­cratic Legit­im­acy of Legis­latures,” in The Least Examined Branch: The Role of Legis­latures in the Consti­tu­tional State, ed. Richard W. Bauman and Tsvi Kahana (Cambridge: Cambridge Univer­sity Press, 2006), 45–50 (elab­or­at­ing on the account­ab­il­ity axiom and ques­tion­ing its prac­tical imple­ment­a­tion).

To be sure, legis­lat­ive organ­iz­a­tion and proced­ure reflects more than just high-minded concerns. foot­note50_tfytlbp 50 See Kenneth A. Shepsle and Barry R. Wein­gast, “Posit­ive Theor­ies of Congres­sional Insti­tu­tions,” Legis­lat­ive Stud­ies Quarterly 19(2) (1994): 149–153. Legis­lat­ive rules most decidedly can affect substant­ive outcomes, rein­force unfair power struc­tures, or unduly aggrand­ize the power of indi­vidual lead­ers. foot­note51_unmt­n7e 51 Gary W. Cox, “On the Effects of Legis­lat­ive Rules,” Legis­lat­ive Stud­ies Quarterly 25 (2000): 187; Oleszek et al., Congres­sional Proced­ures, 416–417. But this is precisely why rule changes must be closely examined and judged based on first prin­ciples.

The types of emer­gency rules a legis­lature can imple­ment vary from juris­dic­tion to juris­dic­tion. For example, when the Michigan legis­lature met in person on April 7, notwith­stand­ing the death of one of its members from Covid-19, it did so ostens­ibly because a provi­sion of the state’s consti­tu­tion was read to bar virtual meet­ings. foot­note52_qdbf52w 52 At least one legis­lator called for legis­lat­ive lead­er­ship to act creat­ively to avoid an in-person meet­ing. Mallory McMor­row, “State Senator: Legis­lature’s In-Person Meet­ing Puts Michigan at Risk,” Detroit Free Press, Apr. 3, 2020, https://www.freep.com/story/opin­ion/contrib­ut­ors/2020/04/03/coronavirus-michigan-legis­lature-social-distan­cing/2940162001/. The decision whether and how to convene devolved into partisan bick­er­ing. Abigail Censky, “Lawmakers Defy Warn­ings, Continue to Meet In Capit­ols Across the Coun­try,” NPR, Apr. 8, 2020, https://www.npr.org/2020/04/08/828952509/lawmakers-defy-warn­ings-continue-to-meet-in-capit­als-across-the-coun­try. Other state consti­tu­tions contain no such require­ment. foot­note53_munl1az 53 See National Confer­ence of State Legis­latures, “Continu­ity of Govern­ment in Consti­tu­tions,” accessed May 7, 2020, https://www.ncsl.org/research/about-state-legis­latures/examples-of-consti­tu­tional-provi­sions-relat­ing-to-continu­ity-of-govern­ment.aspx. Some have sugges­ted that the U.S. Consti­tu­tion may require in-person meet­ings, but as one scholar has noted, the Consti­tu­tion gives each house of Congress broad discre­tion to “determ­ine the Rules of its Proceed­ings,” which are gener­ally unre­view­able in court. While the framers could not have anti­cip­ated virtual attend­ance by members, the same is true for many other proced­ures used by Congress today whose consti­tu­tion­al­ity has never been ques­tioned. See Deborah Pearl­stein, “Zoom Congress Is Perfectly Consti­tu­tional,” The Atlantic, Apr. 16, 2020, https://www.theat­lantic.com/ideas/archive/2020/04/zoom-congress-perfectly-consti­tu­tional/610057/ (quot­ing U.S. Const. art. I, § 5). See also Daniel Hemel, “Congress Can’t Meet Remotely. The Coronavirus Might Mean It Has To.,” Wash­ing­ton Post, Mar. 10, 2020, https://www.wash­ing­ton­post.com/outlook/2020/03/10/coronavirus-congress-quorum/; United States v. Ballin, 144 U.S. 1 (1892) (hold­ing that the U.S. Consti­tu­tion gives the Speaker of the House broad leeway in how she recog­nizes attend­ance for purposes of assess­ing a quorum). More broadly, consti­tu­tions often include other types of proced­ural constraints, such as the U.S. Consti­tu­tion’s quorum provi­sion requir­ing a major­ity of each cham­ber’s members for the conduct of busi­ness. foot­note54_1s1ewun 54 U.S. Const. art. I, § 5. Because of these vari­ations, some juris­dic­tions may not be able to fully imple­ment every recom­mend­a­tion outlined below.

Our recom­mend­a­tions are as follows, divided into two broad categor­ies: meet­ing and legis­lat­ing, and trans­par­ency and open­ness. As noted, all of these recom­mend­a­tions are guided by the imper­at­ive to hew as closely as possible to normal proced­ures. The changes we do recom­mend should be tempor­ary and left in place only for as long as public health experts believe they are needed to protect the health or safety of members, staff, and the public. Regu­lar order should be restored as soon as it is feas­ible to do so, possibly using extra protec­tions, such as wear­ing masks or sitting farther apart. foot­note55_jefhywe 55 Many have sugges­ted that the pandemic could lead to broader accept­ance of remote work under normal circum­stances, but it is not clear to us that this logic should extend to Congress or state legis­latures. This issue may merit further study, but we do not believe the pandemic should be a cata­lyst for any perman­ent changes to regu­lar legis­lat­ive oper­a­tions.

A. Meet­ing and Legis­lat­ing

The core chal­lenge arising during the Covid-19 pandemic is how to meet and conduct legis­lat­ive busi­ness when it may be impossible or danger­ous for legis­lat­ors and staff to be phys­ic­ally present in the same space. To address this prob­lem, we recom­mend that legis­lat­ive bodies consider moving to remote meet­ings where permit­ted on a tempor­ary basis, as several have already done. foot­note56_te0gh1t 56 At least one Senate commit­tee recently was forced to rapidly alter its tradi­tional in-person hear­ing prac­tice when multiple attendees—sen­at­ors and witnesses—were forced to self-quar­ant­ine after expos­ure to the coronavirus. See David Lim, “Alex­an­der to Remotely Chair Coronavirus Hear­ing after Staffer Tests Posit­ive for Virus,” Politico, May 10, 2020, https://www.politico.com/news/2020/05/10/alex­an­der-coronavirus-hear­ing-staffer-posit­ive-248512. In addi­tion, several states have begun efforts to oper­ate remotely. See, e.g. Lee David­son, “Amid Coronavirus Threat, Utah Legis­lature Moves to Allow Remote Meet­ings,” Salt Lake Tribune, Mar. 11, 2020, https://www.sltrib.com/news/polit­ics/2020/03/11/amid-coronavirus-threat/; Jonathan Mohr, “Remote Rules Meet­ing a Likely Preview for Things to Come,” Minnesota House of Repres­ent­at­ives, Apr. 1, 2020, https://www.house.leg.state.mn.us/SessionDaily/Story/15213; and Jon Evans, “General Assembly to Begin Video Stream­ing of NC House Remote Commit­tee Meet­ings,” WECT, Apr. 9, 2020, https://www.wect.com/2020/04/09/general-assembly-begin-video-stream­ing-nc-house-remote-commit­tee-meet­ings/. Legis­lat­ors should avoid chan­ging other rules to accom­mod­ate that move unless abso­lutely neces­sary.

Switch to virtual sessions tempor­ar­ily. One of the most crit­ical changes any legis­lat­ive body can make in response to the Covid-19 pandemic is to enable virtual meet­ings and hear­ings and remote votes. Unlike in many past crises, virtual meet­ings and remote voting are now feas­ible from both a tech­no­lo­gical and secur­ity stand­point. foot­note57_xexg­d52 57 Not only have other national legis­latures moved to virtual meet­ings in response to the pandemic, but the House itself already uses tech­no­logy for certain crit­ical func­tions, like tabu­lat­ing votes. See Fred­er­ick Hill, “If Parlia­ment Can Vote Remotely, Congress Can Too,” Wash­ing­ton Post, Apr. 23, 2020, https://www.wash­ing­ton­post.com/outlook/2020/04/23/congress-remote-proxy-voting-coronavirus/. Never­the­less, in ordin­ary times they remain subop­timal. Writ­ing about Congress, the schol­ars Timothy LaPira and James Wall­ner have noted that “[a] Congress whose members meet virtu­ally and vote remotely is likely more dysfunc­tional and less legit­im­ate than one whose members are phys­ic­ally present.” foot­note58_1l8q4ei 58 Timothy LaPira and James Wall­ner, “In Congress, Assembled: A Virtual Congress Creates More Prob­lems Than It Solves,” LegBranch, Mar. 26, 2020, https://www.legbranch.org/in-congress-assembled-a-virtual-congress-creates-more-prob­lems-than-it-solves/; see also Joshua Huder, “Remote Voting by Congress? Not So Fast,” LegBranch, Mar. 16, 2020, https://www.legbranch.org/remote-voting-by-congress-not-so-fast/. In the present circum­stances, however, the options are regu­lar virtual sessions, sporadic and quick­fire in-person sessions with elab­or­ate and cumber­some safety proced­ures, regu­lar in-person sessions that pose seri­ous health and safety risks, and not meet­ing at all. In this context, virtual sessions are vastly prefer­able on a tempor­ary basis.

Legis­lat­ive bodies should make every reas­on­able effort to hold virtual meet­ings that are as similar as possible to in-person meet­ings. foot­note59_zkrp­f80 59 Several members of Congress have engaged in mock virtual hear­ings in recent weeks in order to demon­strate their feas­ib­il­ity. Margaret Taylor, “Former Congress­man Brian Baird and Daniel Schu­man on How Congress Can Continue to Func­tion Remotely,” The Lawfare Podcast, Podcast audio, Apr. 20, 2020, https://www.lawfareb­log.com/lawfare-podcast-former-congress­man-brian-baird-and-daniel-schu­man-how-congress-can-continue-func­tion. See also Rachel Orey and Michael Thorn­ing, “Five New Recom­mend­a­tions for Virtual Congres­sional Hear­ings,” LegBranch, May 11, 2020, https://www.legbranch.org/five-new-recom­mend­a­tions-for-virtual-congres­sional-hear­ings/. For instance, during emer­gen­cies, it may be tempt­ing to make the legis­lat­ing process quicker or more “effi­cient.” For some, that might prompt new limits on the amount of time or number of times a member can speak, or on the number of bills a member can intro­duce. foot­note60_j8uonjf 60 A proposal in Louisi­ana does exactly that. H.R. 18, 2020 Leg., 2020 Reg. Sess. (La. 2020), avail­able at https://www.legis.la.gov/legis/View­Doc­u­ment.aspx?d=1167905. New York’s Assembly passed a provi­sion restrict­ing members to only one oppor­tun­ity to speak and only for 15 minutes. Assemb. E00854, 203rd Leg., 2020 Legis. Sess. (N.Y. 2020), avail­able at https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=E00854&term=2019&Summary=Y&Actions=Y&Text=Y. Color­ado’s law limits the number of bills that its members may intro­duce during the emer­gency. Colo. General Assemb. J. Rule 44(c)(2), avail­able at https://www.leg.state.co.us/CLICS/cslFront­Pages.nsf/FileAt­tachVw/2019Rules/$File/2019­Com­binedLe­gis­lat­iveR­ules.pdf. But such limits risk muzz­ling honest debate and dissent—a core feature of demo­cratic legis­latures. While some debates over emer­gency legis­la­tion may require special rules, such sweep­ing depar­tures from regu­lar order should be avoided.

Virtual sessions are also likely to encounter tech­nical diffi­culties. As frus­trat­ing as they may be, it is imper­at­ive that they be solved and not ignored, espe­cially during a period of demo­cratic stress. foot­note61_2hkolyb 61 If there is one lesson to take away from the crisis, it is the import­ance of plan­ning ahead both logist­ic­ally and proced­ur­ally. In 2009, the Wiscon­sin state legis­lature passed a law setting up a system for virtual legis­lature and commit­tee meet­ings. S.B. 227, 99th Leg., Reg. Sess. (Wis. 2010), avail­able at https://docs.legis.wiscon­sin.gov/2009/related/acts/363. The law estab­lished a clear system for conduct­ing virtual meet­ings and made only light changes to proced­ures, for example requir­ing that each senat­or’s iden­tity be veri­fied, that all parti­cip­at­ing members be able to simul­tan­eously hear or read proceed­ings, and that all docu­ments be avail­able to the lawmakers. As a result of the long­stand­ing law, when the scope of the coronavirus crisis became clear more than a decade later, a polit­ical settle­ment between the parties on how to proceed was already in place. In late March, the state’s House major­ity leader and Senate pres­id­ent held several dress rehears­als for a virtual legis­lat­ive meet­ing. Rather than disput­ing proced­ure, only thing Wiscon­sin had to deal with during the dress rehearsal was tech­nical diffi­culties. Riley Verrer­kind, “State Senate Holds Dress Rehearsal in Anti­cip­a­tion of Wiscon­sin’s First-Ever Virtual Session,” Wiscon­sin State Journal, Mar. 26, 2020, https://madison.com/wsj/news/local/govt-and-polit­ics/state-senate-holds-dress-rehearsal-in-anti­cip­a­tion-of-wiscon­sin-s/article_dd3e87c6–14f4–5b04–9ce1–146e29621f5f.html. Of course, such plan­ning does not neces­sar­ily result in wise decision-making over­all. Notwith­stand­ing the foresight of Wiscon­sin’s past legis­lat­ive lead­ers in plan­ning for emer­gen­cies, the current legis­lature’s actual conduct with respect to vari­ous aspects of the Covid-19 crisis has been widely criti­cized. See Feli­cia Sonmez, “Wiscon­sin Legis­lature Comes under Fire for ‘Uncon­scion­able’ Decision to Hold Primary Amid Coronavirus Pandemic,” Wash­ing­ton Post, Apr. 5, 2020, https://www.wash­ing­ton­post.com/polit­ics/wiscon­sin-legis­lature-comes-under-fire-for-uncon­scion­able-decision-to-hold-primary-amid-coronavirus-pandemic/2020/04/05/06016460–7780–11ea-9bee-c5bf9d2e3288_story.html. But the abil­ity to convene and conduct busi­ness is a neces­sary predic­ate to any action, good or bad. Legis­lat­ive busi­ness should not move forward any time a signi­fic­ant number of members cannot parti­cip­ate due to tech­nical prob­lems. foot­note62_6ley­hoh 62 For instance, while we sympath­ize with a New York Assembly provi­sion provid­ing that “no tech­nical fail­ure on the part of an indi­vidual member or a group of members that breaks their remote connec­tion to the proceed­ings shall inval­id­ate any action taken by a major­ity of the Assembly,” it prob­ably goes too far in excus­ing prob­lems that under­mine the integ­rity of proceed­ings. Assemb. E00854, 203rd Leg., 2020 Legis. Sess. (N.Y. 2020).

When decid­ing whether to move to virtual sessions, most legis­lat­ive bodies, includ­ing Congress, may confront differ­ent consti­tu­tional or internal proced­ural rules govern­ing full legis­lat­ive and commit­tee meet­ings. Virtual commit­tee meet­ings may be easier to conduct and raise fewer consti­tu­tional or legal ques­tions; legis­latures should explore that option with alac­rity. Commit­tees are where most of the process of legis­lat­ing actu­ally takes place, and they are also ground zero for over­sight. Even if full legis­lat­ive sessions must be conduc­ted wholly or partly in person, legis­latures should take advant­age of the greater flex­ib­il­ity they are likely to have with respect to commit­tee meet­ings.

Modify quorum rules spar­ingly, and only in ways that respect core repres­ent­at­ive prin­ciples. In a pandemic or other emer­gency that may pose the risk of mass inca­pa­cit­a­tion where a signi­fic­ant number of members are unavail­able, legis­lat­ive bodies may need to modify the require­ments for a quorum to allow for conduct­ing busi­ness with fewer members present. However, quorum rules should be modi­fied with extreme care and only in ways that respect basic prin­ciples of repres­ent­at­ive demo­cracy.

Quorum rules ensure the pres­ence of a suffi­cient portion of legis­lat­ors to preserve a body’s repres­ent­at­ive char­ac­ter. In essence, a quorum prevents undemo­cratic action taken by a minor­ity. foot­note63_idpusm5 63 There is debate over what propor­tion of a repres­ent­at­ive assembly should be required as a quorum. During the consti­tu­tional conven­tion, George Mason and Maryland’s John Mercer debated differ­ent propor­tions. Mercer worried that a high propor­tion would hobble the abil­ity of the legis­lature to act since it would “put it in the power of a few by seced­ing at a crit­ical moment.” George Mason argued the reverse, concerned that a lower quorum require­ment would “allow a small number of members of the two houses to make laws.” The debate contin­ues to this day. See Mike Dorf, “Super-major­ity Quorum Require­ments,” Dorf on Law, Feb. 21, 2011, http://www.dorfon­law.org/2011/02/super-major­ity-quorum-require­ments.html. However, the consensus propor­tion is one half. See John Bryan Willi­ams, “How to Survive a Terror­ist Attack: The Consti­tu­tion’s Major­ity Quorum Require­ment and the Continu­ity of Congress,” William & Mary Law Review 48 (2006): 1025, 1033, https://schol­ar­ship.law.wm.edu/wmlr/vol48/iss3/5. We express no opin­ion on this other than to remark that current rules, whatever they may be, should hold presumptive sway. We also note that in some bodies in which members are divided into parties, specific quorum rules also serve to prevent single-party action, by expli­citly requir­ing that a propor­tion of the member­ship be present and that at least one of them be a member of the minor­ity party. See, e.g. the rules of the Senate Judi­ciary Commit­tee, which requires that two members of the minor­ity party be present for trans­act­ing busi­ness. United States S. Comm. on the Judi­ciary Rule III(1), avail­able at https://www.judi­ciary.senate.gov/about/rules. This is not the time to substant­ively alter such crit­ical rules. The Amer­ican framers believed quorum require­ments were suffi­ciently import­ant to write them into the Consti­tu­tion, mandat­ing that both the House and Senate must have a major­ity of members present in order to do busi­ness. foot­note64_01j5si9 64 U.S. Const. art. I, § 5. Like Congress, most state legis­latures require a major­ity of elec­ted members to be present for quorum. foot­note65_hm9c­s36 65 Karl Kurtz, “Legis­lat­ive Walkouts are Noth­ing New,” The Thicket at State Legis­latures, Feb. 18, 2011, https://ncsl.type­pad.com/the_thicket/2011/02/legis­lat­ive-walkouts-are-noth­ing-new.html. (Noting that in Indi­ana, Oregon, Tennessee, Texas, and Vermont, two-thirds of the members make up a quorum, and in Wiscon­sin, three-fifths of the members are required to act on budget and tax bills). However, many state emer­gency laws and proced­ures suspend or rework quorum require­ments. foot­note66_9cpi­yed 66 For example, Geor­gi­a’s emer­gency or disaster proced­ure law allows for its General Assembly to “suspend the oper­a­tion of any and all consti­tu­tional rules govern­ing the proced­ure of both the House of Repres­ent­at­ives and the Senate as it deems neces­sary during the period of emer­gency or disaster.” Ga. Code Ann. § 38–3–53; see also Continu­ity of Govern­ment Commis­sion, Preserving Our Insti­tu­tions. Doing so may be an invit­a­tion to rule by a small minor­ity over­seen by whoever happens to be the lead­ers of the two cham­bers at the time. This could threaten a body’s basic repres­ent­at­ive char­ac­ter.

Never­the­less, when deal­ing with continu­ity of govern­ment in an emer­gency, a legis­lature needs to consider the possib­il­ity of mass inca­pa­cit­a­tion of its member­ship, partic­u­larly in the event of a rapid attack or natural disaster (or if legis­lat­ors cannot be in the same phys­ical space and remote sessions are not permit­ted). Under such a circum­stance, quorum rules may need to change, but legis­lat­ors should take care to preserve core safe­guards. One example of appro­pri­ate caution involves the rule changes passed in Oregon, which waived its legis­lat­ive quorum require­ment in the event of a mass inca­pa­cit­a­tion and coun­ter­bal­anced it with a super­ma­jor­ity rule that a three-fifths major­ity of those able to attend would have to vote for any legis­la­tion in order for it to be enacted. foot­note67_5w9qqad 67 Or. Const. art. X-A, § 4. This year, after the coronavirus outbreak, Oregon’s legis­lature considered a proposal to drop its quorum require­ment but rejec­ted it. S.J.Res. 201, 2020 Legis. Assemb., 2020 Sess. (Or. 2020), avail­able at https://olis.oregon­le­gis­lature.gov/liz/2020R1/Meas­ures/Over­view/SJR201. This deals with the prac­tical diffi­culties created when large numbers of inca­pa­cit­ated members drive down the repres­ent­at­ive core of the legis­lature by requir­ing a super­ma­jor­ity for enact­ing a law.

Modi­fy­ing quorum rules may be espe­cially pertin­ent in states with consti­tu­tions that require the legis­lature to meet in person to pass laws. However, there are often creat­ive solu­tions that may be prefer­able to more radical changes. For example, it may be possible to conduct a blen­ded live-plus-virtual meet­ing, in which a small number of members meet in person while others attend virtu­ally and are recog­nized for quorum purposes. foot­note68_oj0suf8 68 For instance, the U.S. Consti­tu­tion gives the Speaker of the House broad leeway in how she recog­nizes attend­ance for purposes of assess­ing a quorum. Ballin, 144 U.S. 1; Pearl­stein, “Zoom Congress.” As long as all members have an equal right and abil­ity to attend (virtu­ally or in person) and the rules are not other­wise altered, these arrange­ments are prefer­able to alter­ing quorum require­ments. foot­note69_gfin5m3 69 In Massachu­setts, for example, Repub­lican and Demo­cratic legis­lat­ors held exten­ded nego­ti­ations over the state legis­lature’s proposed virtual voting and debate proced­ures. An early version of the rule changes would have limited legis­lat­ors’ oppor­tun­it­ies to engage in debate and created other proced­ural barri­ers to full parti­cip­a­tion. Ulti­mately, the Demo­cratic major­ity agreed to a series of changes that satis­fied the Repub­lican caucus. See State House News Service, “Lawmakers Set Rules for Debate, Voting in Remote Sessions Amid Coronavirus Pandemic,” Boston Herald, May 5, 2020, https://www.boston­her­ald.com/2020/05/05/lawmakers-set-rules-for-debate-voting-in-remote-sessions-amid-coronavirus-pandemic/.

Continue tabu­lat­ing indi­vidual votes. Even as legis­latures move to remote sessions, they should continue to tabu­late indi­vidual legis­lat­ors’ votes as they ordin­ar­ily would. In the rush to enact laws while deal­ing with public health concerns, several states have been temp­ted either to suspend recor­ded votes or even to presume how a member votes (for example, by treat­ing a fail­ure to vote “no” as an affirm­at­ive vote). foot­note70_i7wjw1g 70 See, e.g., Assemb. E00854, 203rd Leg., 2020 Legis. Sess. (N.Y. 2020) (deem­ing all legis­lat­ors to have voted in the affirm­at­ive unless they specific­ally enter a negat­ive vote). In Missouri, the legis­lature contem­plated grouped votes in lieu of roll-call votes. Kaitlyn Schall­horn, “Lawmakers Return­ing to Capitol: What to Know about Proced­ural Changes,” Missouri Times, Apr. 6, 2020, https://themissouri­times.com/lawmakers-return­ing-to-capitol-what-to-know-about-proced­ural-changes/. These actions, however well-inten­tioned, under­mine demo­cratic account­ab­il­ity and should be avoided. Recor­ded votes on import­ant legis­la­tion require repres­ent­at­ives to take a clear posi­tion, for which their constitu­ents can hold them account­able. Espe­cially given other changes already in place like virtual meet­ings and modi­fied quorum require­ments, an emer­gency is not an adequate justi­fic­a­tion for doing away with such an import­ant compon­ent of the repres­ent­at­ive process.

Use proxy voting only when neces­sary and with clear limits. It may be neces­sary in some circum­stances to permit voting by proxy. In general, prox­ies are discour­aged for the same reason that indi­vidual vote tallies are preferred. Under normal circum­stances, lawmakers are expec­ted to show up, take part in debate, and then cast their votes in person so that there is no doubt of their account­ab­il­ity for each vote. foot­note71_6cnr­wp3 71 The Bren­nan Center has criti­cized unres­tric­ted proxy voting in New York legis­lat­ive commit­tees for promot­ing absent­ee­ism and lack of account­ab­il­ity. See Jeremy M. Creelan and Laura M. Moulton, “The New York State Legis­lat­ive Process: An Eval­u­ation and Blue­print for Reform,” Bren­nan Center for Justice, July 21, 2004, https://www.bren­nan­cen­ter.org/our-work/research-reports/new-york-state-legis­lat­ive-process-eval­u­ation-and-blue­print-reform.

States that are able to estab­lish a coher­ent virtual legis­la­tion system should not permit proxy voting. But as noted, several states are constrained by consti­tu­tional provi­sions that appear to bar virtual meet­ings. In those limited instances—or if moving to a full virtual session is simply not polit­ic­ally feas­ible—­some form of proxy voting may be needed on a tempor­ary basis.

In the rare circum­stances when proxy voting is neces­sary, proxy rules should be tightly craf­ted to ensure that votes are clearly recor­ded for each legis­lator and to prevent using the proxy system as a way to hand over votes en masse. For example, in some cases, proxy voting rules have allowed legis­lat­ors to author­ize a designee to vote as he or she “sees fit.” foot­note72_rug7kpp 72 See, e.g., Congres­sional Research Service, Proxy Voting and Polling in Senate Commit­tee, 2015, 4–5, https://crsre­ports.congress.gov/product/pdf/RS/RS22952. This undif­fer­en­ti­ated proxy vote author­iz­a­tion should not be permit­ted. The better approach is the one taken by the Arkan­sas House of Repres­ent­at­ives, whose Covid-19 emer­gency proced­ures require legis­lat­ors to indic­ate specific proxy votes in writ­ing ahead of time. The emer­gency rules recently adop­ted by the U.S. House of Repres­ent­at­ives contain a similar require­ment. foot­note73_wchorzq 73 H.R. 1001, 92nd General Assemb., First Extraordin­ary Sess. (Ark. 2020), avail­able at https://www.arkleg.state.ar.us/Bills/FTPDoc­u­ment?path=%2FBills%2F2020S1%2FPub­lic%2FHR1001.pdf; Author­iz­ing Remote Voting by Proxy, H.Res.965.

Avoid deleg­at­ing addi­tional power to legis­lat­ive lead­ers. Some legis­latures have craf­ted new or emer­gency proced­ures grant­ing legis­lat­ive lead­er­ship signi­fic­ant new power to set prior­it­ies and alter proced­ures during the crisis. foot­note74_phih8k7 74 In Color­ado, for example, its emer­gency law creates an Exec­ut­ive Commit­tee that has the power to determ­ine what legis­la­tion is mission-crit­ical and to cut off legis­lat­ors from call­ing up for consid­er­a­tion more than a partic­u­lar number of bills. More Resources for NCSL’s Website, 2–4. In Cali­for­nia, the head of the Senate is allowed to summar­ily remove or replace members of any stand­ing commit­tee. S.R. 86, 2019–2020 S., 2019 –2020 Reg. Sess. (Cal. 2020), avail­able at http://custom.statenet.com/public/resources.cgi?id=ID:bill:CA2019000S­R86&ciq=ncsl&client_md=1f47bf­b94477c8bec421c383433a31c1&mode=current_text. Such changes that concen­trate legis­lat­ive power among a small number of members serving in lead­er­ship should be avoided or minim­ized.

In most states, and certainly in Congress, legis­lat­ive lead­ers already have signi­fic­ant agenda-setting and proced­ural author­ity. foot­note75_gfdx­wyh 75 See Rick Rojas, “Back in Session, State Legis­latures Chal­lenge Governors’ Author­ity,” New York Times, May 9, 2020, https://www.nytimes.com/2020/05/08/us/coronavirus-state-legis­latures.html; Jordain Carney and Maggie Miller, “McCon­nell under Fire for Bury­ing Elec­tion bills in ‘Legis­lat­ive Grave­yard,’” The Hill, July 27, 2019, https://thehill.com/home­news/senate/454967-mccon­nell-under-fire-for-bury­ing-elec­tion-secur­ity-bills-in-legis­lat­ive-grave­yard. That power is often neces­sary, but it can also be used to cut off consid­er­a­tion of import­ant issues a leader person­ally disfa­vors. For instance, in recent weeks, both federal and state legis­lat­ive lead­ers have received criti­cism for attempt­ing to limit consid­er­a­tion of certain relief legis­la­tion and other efforts to mitig­ate the effects of the pandemic. foot­note76_fuw4mpg 76 See, e.g., Allan Smith and Julie Tsir­kin, “McCon­nell Taps Brakes on Next Round of Coronavirus Aid as State, Local Govern­ments Plead for Help,” NBC, Apr. 23, 2020, https://www.nbcnews.com/polit­ics/congress/mccon­nell-taps-breaks-next-round-coronavirus-aid-state-local-govern­ments-n1189541; Sonmez, “Wiscon­sin Legis­lature Comes under Fire.”

Despite these concerns, the under­stand­able desire to focus on prior­ity issues and to conserve strained legis­lat­ive capa­city during emer­gen­cies has led several states to pass rules or laws that give their legis­lat­ive lead­er­ship more power to control the agenda. For example, Color­ado’s emer­gency law creates an Exec­ut­ive Commit­tee that has the power to determ­ine what legis­la­tion is mission-crit­ical and to cut off legis­lat­ors from call­ing up for consid­er­a­tion more than a partic­u­lar number of bills. In Cali­for­nia, the head of the Senate is allowed to summar­ily remove or replace members of any stand­ing commit­tee. foot­note77_xweg3e3 77 S.R. 86, 2019–2020 S., 2019 –2020 Reg. Sess. (Cal. 2020).

No matter how well-inten­tioned, these expan­ded powers are ripe for abuse. Lead­ers who already wield signi­fic­ant power should not have the abil­ity to arbit­rar­ily cut off oppos­ing views. Concen­trat­ing more author­ity in the hands of a small number of members can also exacer­bate the risk of corrup­tion. foot­note78_dkpg4lp 78 Corrup­tion among past legis­lat­ive lead­ers has been a signi­fic­ant prob­lem, includ­ing, for instance, in New York, where legis­lat­ive lead­ers already wield more power than those in most other bodies around the coun­try. See Joseph Ax, “Former N.Y. State Legis­lat­ive Lead­ers to Face Corrup­tion Trials in Novem­ber,” Reuters, July 30, 2015, https://www.reuters.com/article/us-usa-crime-corrup­tion/former-n-y-state-legis­lat­ive-lead­ers-to-face-corrup­tion-trials-in-novem­ber-idUSKCN0Q428E20150730.

The risks asso­ci­ated with grant­ing lead­ers more power are likely to substan­tially outweigh the bene­fits. This is espe­cially true given the substan­tial power most legis­lat­ive lead­ers already enjoy, the poten­tial for virtual meet­ings and tech­no­logy to enable some­thing approach­ing normal order, and the possib­il­ity that the Covid-19 pandemic may continue in some form or another for years, as previ­ously noted. Non-emer­gency busi­ness will need to continue even while emer­gency proced­ures are in place, and legis­lat­ive lead­ers should not be able to stifle demo­cratic debates on those matters.

That being said, there is one circum­stance in which legis­lat­ive lead­er­ship should be given addi­tional power in an emer­gency. In some states, the legis­lature is consti­tu­tion­ally limited to conven­ing for a set number of days or during a partic­u­lar date range, and only the governor has the power to call it into emer­gency session. foot­note79_9p84fsx 79 National Confer­ence of State Legis­latures, “Special Sessions,” accessed May 8, 2020, https://www.ncsl.org/research/about-state-legis­latures/special-session­s472.aspx. Where feas­ible, states should vest that power in legis­lat­ive lead­ers, as Utah recently did. foot­note80_qf53zw6 80 Dennis Romboy, “2 of 3 Utah Consti­tu­tional Amend­ments Pass,” Deseret News, Nov. 6, 2018, https://www.deseret.com/2018/11/7/20658067/2-of-3-utah-consti­tu­tional-amend­ments-pass.

B. Trans­par­ency and Open­ness

Beyond delin­eat­ing the basic mech­an­ics of meet­ing and legis­lat­ing, emer­gency legis­lat­ive continu­ity proced­ures must preserve trans­par­ency and oppor­tun­it­ies for public parti­cip­a­tion in the legis­lat­ive process—which are often among the first casu­al­ties of emer­gency lawmak­ing. Many state legis­latures have closed their capitol build­ings or public galler­ies. foot­note81_0jt8c8w 81 See, e.g., Tres Savage, “Three Key Ques­tions Hover over the Oklahoma Capitol,” NonDoc, Apr. 27, 2020, https://nondoc.com/2020/04/27/three-key-ques­tions-hover-over-the-oklahoma-capitol/; Ben Winslow, “Economy, Local Health Orders, Re-Open­ing Utah on Tap for the Legis­lature’s COVID-19 Special Session,” Fox 13 Salt Lake City, Apr. 15, 2020, https://www.fox13now.com/news/coronavirus/local-coronavirus-news/economy-local-health-orders-re-open­ing-utah-on-tap-for-the-legis­latures-covid-19-special-session; and Jaclyn Driscoll, “Missouri Lawmakers Uncer­tain When They’ll Return To State Capitol,” KCUR, Mar. 30, 2020, https://www.kcur.org/2020–03–30/missouri-lawmakers-uncer­tain-when-theyll-return-to-state-capitol. Others have adop­ted virtual session proced­ures but have made no clear provi­sions for how the public or press are to have access and provide input. foot­note82_n1k72zg 82 Annie McDonough, “Will the State Legis­lature Actu­ally Go Virtual?,” City & State New York, Apr. 5, 2020, https://www.cityand­stateny.com/articles/polit­ics/new-york-state/will-state-legis­lature-actu­ally-go-virtual.html; Briana Bier­schbach, “Era of Coronavirus Tests Open­ness in Minnesota Legis­lature,” Star Tribune, Mar. 30, 2020, https://www.startribune.com/govern­ing-in-the-era-of-coronavirus-tests-open­ness/569165092/. In some cases, states have suspen­ded their open govern­ment laws, though it appears in most cases that these moves are bluntly craf­ted efforts to facil­it­ate virtual meet­ings more than they are motiv­ated by a desire to act in secrecy. foot­note83_xjdzkbp 83 Nick Grube, “Suspen­sion Of Hawaii’s Open Govern­ment Laws More Extreme Than Other States,” Honolulu Civil Beat, Mar. 30, 2020, https://www.civil­beat.org/2020/03/suspen­sion-of-hawaiis-open-govern­ment-laws-more-extreme-than-other-states/; Massachu­setts Muni­cipal Asso­ci­ation, “Gov. Signs Order Suspend­ing Parts of Open Meet­ing Law to Enable Local Decision-Making During COVID-19 Emer­gency,” accessed May 8, 2020, https://www.mma.org/gov-signs-order-suspend­ing-parts-of-open-meet­ing-law-to-enable-local-decision-making-during-covid-19-emer­gency/; and Lewis Kamb, “Inslee Suspends Some Parts of Open-Govern­ment Laws Amid Coronavirus Crisis,” Seattle Times, Mar. 25, 2020, https://www.seattle­times.com/seattle-news/inslee-suspends-some-parts-of-open-govern­ment-laws-amid-coronavirus-crisis/.

Given the avail­able tech­no­lo­gical capab­il­it­ies, the public has every right to expect that the legis­lat­ors will continue to oper­ate with roughly the same degree of trans­par­ency and open­ness that would exist in ordin­ary circum­stances. Several organ­iz­a­tions have put forward thought­ful sugges­tions for how they can do so, with which we largely concur. foot­note84_dgfpezq 84 See, e.g., Common Cause, “During COVID-19 State of Emer­gency, Trans­par­ency and Public Access to Govern­ment Proceed­ings Must Be Main­tained,” Mar. 18, 2020, https://www.common­cause.org/press-release/during-covid-19-state-of-emer­gency-trans­par­ency-and-public-access-to-govern­ment-proceed­ings-must-be-main­tained/; State Innov­a­tion Exchange, “Legis­lat­ing in a Pandemic: Trans­par­ent & Remote Governance,” accessed May 8, 2020, https://statein­nov­a­tion.org/legis­lat­ing-in-a-pandemic-trans­par­ent-remote-governance/. In our view, the most import­ant guidelines are the follow­ing:

  • Provide ample public notice for all proceed­ings. There should be wide­spread public notice of sched­uled proceed­ings, includ­ing commit­tee hear­ings.
  • Preserve real-time public access. The public should have the abil­ity to easily observe meet­ings live and be given oppor­tun­it­ies to parti­cip­ate equi­val­ent to doing so in person—ideally via video confer­ence but in the very least by tele­phone and through writ­ten testi­mony. If audio or video cover­age of a meet­ing or proceed­ing is inter­rup­ted, the meet­ing should be suspen­ded absent clear exten­u­at­ing circum­stances.
  • Clearly identify all parti­cip­at­ing legis­lat­ors. Legis­latures should ensure that members of any public body are clearly iden­ti­fied and audible, and that the chair of the proceed­ing clearly states which members are parti­cip­at­ing remotely, both at the begin­ning of and through­out the meet­ing.
  • Make record­ings and other docu­ments publicly avail­able. All open sessions or meet­ings should be recor­ded. The record­ings should promptly be made avail­able to the public via a govern­ment website. Public docu­ments used during proceed­ings, includ­ing testi­mony or legis­lat­ive language, should also be made avail­able, as they would under normal circum­stances.

Imple­ment­ing these recom­mend­a­tions will give the public the abil­ity to continue parti­cip­at­ing in legis­lat­ive proceed­ings and hold­ing their elec­ted repres­ent­at­ives account­able during a crit­ical time.

Conclu­sion

The United States cannot effect­ively confront emer­gen­cies without its legis­latures. In 1861, after confed­er­ate forces star­ted the Civil War by firing on Fort Sumter, Pres­id­ent Lincoln took two actions simul­tan­eously. One was to muster the state mili­tias. The second was to call Congress into emer­gency session “to consider, and determ­ine, such meas­ures as, in their wisdom, the public safety, and interest, may seem to demand.” foot­note85_munxyak 85 “Proclam­a­tion Call­ing Mili­tia and Conven­ing Congress,” Apr. 15, 1861, in Collec­ted Works of Abra­ham Lincoln (New Brun­swick, NJ: Rutgers Univer­sity Press, 1953) IV:332–33, avail­able at https://quod.lib.umich.edu/l/lincoln/lincoln4/1:527.1?rgn=div2;view=full­text.  When the nation confron­ted its greatest crisis more than 150 year ago, Congress was indis­pens­able to preserving the Union.

Today, amidst the Covid-19 pandemic, Congress and state legis­latures must simil­arly remain fully engaged in the busi­ness of govern­ing, and take the steps neces­sary to fulfill their consti­tu­tional roles.

 

The authors thank Bren­nan Center Research and Program Asso­ci­ate Gareth Fowler for outstand­ing research and tech­nical assist­ance, and Bren­nan Center Staff Writer Timothy Lau, Web Produ­cer Justin Charles, and the rest of the Center’s Commu­nic­a­tions team for their help in edit­ing this paper and ready­ing it for public­a­tion. Bren­nan Center Vice Pres­id­ent for Demo­cracy Wendy Weiser helped develop the original idea for this paper and contrib­uted import­ant insights. Bren­nan Center Pres­id­ent Michael Wald­man also provided valu­able feed­back and ideas, as did Policy Coun­sel Maya Efrati. All errors are the respons­ib­il­ity of the authors.

 

End Notes