Senate Republican Leader Mitch McConnell is defending Congress' ability to allow “proxy” votes when members are absent, a practice adopted by House Democrats at the height of the COVID pandemic despite fierce opposition from Republicans.
In a lawsuit filed Friday in federal court — written by former Attorney General William Barr — McConnell says that despite his personal opposition to proxy voting, the House and Senate have full constitutional authority to determine how to conduct their business.
“Despite his fierce opposition to proxy voting, Senator McConnell believes it is critical that the courts nonetheless respect the power of each house of Congress to ‘determine the rules of its proceedings,’” Barr wrote on behalf of McConnell.
McConnell’s position puts him at odds with the vast majority of Republicans in the House of Representatives, who have fought a losing battle in the courts for years to overturn the practice, which was initiated in 2020 by then-House Speaker Nancy Pelosi. Then-House Republican leader Kevin McCarthy sued to block the practice but was defeated in two federal courts before the Supreme Court declined to take up the issue.
In February, however, a federal district judge in Texas ruled that the House’s use of proxy voting violated the Constitution because it requires a majority of members to be physically present to conduct business. If upheld by the appeals courts, the ruling threatens to dismantle large, complex legislative packages that have been passed by tie-breaking votes of absent members.
McConnell said the ruling is particularly problematic because it assumes that courts have a role in reviewing Congress's internal procedures. The district judge — Trump's appointee James Hendrix — has never defined what it means to be “physically present” to vote, McConnell noted, saying that imposing such an “ironclad” restriction would be “debilitating” to Congress.
McConnell argued that the ruling “threatens Congress’ ability to conduct day-to-day business” and would remove “necessary flexibility,” noting that there could be other national emergencies that require remote voting. He said it could particularly devastate the Senate’s usual practices, such as taking voice votes and seeking unanimous consent.
The case is pending in the 5th Circuit Court of Appeals, a conservative court that has sometimes pushed the boundaries of the law but has been constrained by the Supreme Court.
McConnell is not alone: Homeland Security Leaders Several governments and advocacy groups that relied on programs funded during the height of the COVID pandemic are also urging the appeals court to overturn the lower court's ruling.
