WASHINGTON — After the Supreme Court declined to get involved in a challenge from House Republicans on Monday, another extension of a U.S. House rules change that allows members to vote by proxy for their absent colleagues during the pandemic appears even more likely.
In May 2020, U.S. House Speaker Nancy Pelosi created a process allowing sick and vulnerable members to cast votes remotely on legislation without having to appear in person — over the opposition of many Republicans.
House Minority Leader Kevin McCarthy, R-Calif., quickly launched a lawsuit against proxy voting, arguing the Constitution does not allow members to vote remotely.
A federal appeals court tossed out the House GOP’s lawsuit in July 2021, ruling that courts did not have jurisdiction under the Constitution to wade into the House’s rules and procedures, and the Supreme Court has now declined to hear McCarthy’s challenge after he asked the court to intervene months ago.
“This case raises the important question of the Constitutionality of roughly 18,000 proxy votes cast by Members of Congress,” Rep. Chip Roy, R-Austin, said in a statement after the court’s move Monday. “The legislative process cannot properly be performed by proxy; we have a moral duty to the Americans we represent to actually show up for work and deliberate the issues affecting them in person.”
As coronavirus continues to take a toll, proxy voting is still in effect and now could be for quite some time. Pelosi has so far extended the use of it until Feb. 13, and some lawmakers privately expect her to prolong it for another 45-day stretch, Axios reported.
When voting by proxy, members are required to send a letter to the House clerk, notifying her of when and why they’ll be absent and who will cast votes for them. Most of the letters have included this passage: “I am unable to physically attend proceedings in the House Chamber due to the ongoing public health emergency.”
The rules change in 2020, which marked the first time House members were permitted to perform their responsibilities remotely, also helped Pelosi ensure she maintained her slim Democratic majority even when not enough Democrats physically showed up in Washington.
And it’s been used frequently. From Jan. 3 to Nov. 26, 2021, the top four Texans who voted by proxy — Reps. Eddie Bernice Johnson, D-Dallas; Colin Allred, D-Dallas; Brian Babin, R-Woodville; and John Carter, R-Round Rock — used this vote-by-proxy method to cast a combined 498 votes.
Last week, after news broke that the FBI was on scene at Laredo Rep. Henry Cuellar’s house for a court-authorized ongoing investigation, the South Texas Democrat used the proxy method to vote on four different legislative actions: once on Wednesday and three times on Thursday. Cuellar voted by proxy on Tuesday as well.
Dozens of members have voted by proxy.
On March 8, 2021, for example, Allred, Babin and Carter all sent letters to the clerk to say a proxy would be voting for them. It’s the earliest proxy letter the House clerk has on record from Babin, who vowed to never use the practice when McCarthy announced House Republicans were suing Pelosi over the new rules change.
“I will never utilize the constitutionally dubious provisions included in H.Res. 965 for proxy voting. Period,” Babin said in a statement at the time. “I remain proud to serve the upstanding citizens of TX-36, and believe they’d agree with me on this decision.”
Some watchdog groups and nonprofits have raised the alarm as well, with one, the Congressional Institute, saying the proxy voting practice is of “dubious constitutionality.”
March 8, 2021, was a Monday, and when Johnson voted by proxy on Tuesday, March 9, it was at least the fifth time she had done so since May 2020, when the practice was introduced.
In their analysis of the data they collected on proxy voting in 2021, writers at the Ripon Society, a moderate Republican think tank, said “it appears many [members] like to create their own long weekends by showing up a day or two late or leaving a day or two early.”
And some used it for travel in the middle of the week as well. On June 30, 2021, a Wednesday, a number of Republicans, including Babin and Sherman Rep. Pat Fallon, voted by proxy so they could travel to South Texas and meet with former President Donald Trump on the border at a news conference with Gov. Greg Abbott.
“I am unable to physically attend proceedings in the House Chamber due to the ongoing public health emergency,” Babin wrote in his letter to the House clerk on June 29.
Others, such as Amarillo Rep. Ronny Jackson and San Angelo Rep. August Pfluger, opted to simply skip votes that day — including the vote to establish the select committee to investigate the Jan. 6 attack on the U.S. Capitol — rather than vote by proxy.
Pandemic precautions
While some members have used the newfound freedom proxy voting provides to travel to rallies and meet-and-greets, Allred and Johnson said they’ve voted by proxy to protect themselves and their families during the pandemic.
“The decision to implement a proxy voting system in the House, which I supported, was made in consultation with medical experts and constitutional scholars alike,” Johnson said in a statement to The Dallas Morning News.
At 86, the longtime congresswoman has represented her Dallas district since 1993. She announced her retirement late last year.
“As someone considered high-risk for severe COVID-19 illness, and with the safety of my family, staff, fellow members, and employees at the Capitol complex in mind, I have and may continue to vote by proxy when necessary,” Johnson said.
Allred, who was expecting another son when the pandemic first hit, said he used proxy voting to both avoid exposing his family to the virus and take a short parental leave once his son was born.
“After we welcomed our second son, Cameron, I took leave to be with my family during that critical time — something that should be available to every American — and I was still able to cast important votes on behalf of North Texans,” Allred said in a statement to the Morning News.
He noted that members of both parties have voted by proxy throughout the pandemic to ensure COVID-19 didn’t get in the way of helping constituents and passing legislation.
“It is important we do all we can to prevent an outbreak among members of Congress and ensure Congress can function as a coequal branch of government and pass critical legislation like the bipartisan infrastructure law,” Allred said.
The Republicans Babin and Carter did not respond to requests for comment from the Morning News.
Many in the GOP are still against the measure, despite dozens from their own party taking advantage.
“The opportunity to represent you is a great honor,” Texas Rep. Randy Weber, R-Friendswood, said in an email to supporters in December 2021. “I have never and will not ever proxy vote.”
