Today’s Washington Examiner editorial is absolutely right in calling for Congress to get back to work. To it, I merely add one note about why it should do so by reconvening in the nation’s capital, rather than by trying to invent some sort of remote system for members of Congress to cast votes from their home districts.
The potential problem with remote voting stems from one sentence of the Constitution. Article 1, Section 5, paragraph four says that “neither House” may adjourn “to any other place than that in which the two Houses shall be sitting.” This would seem to indicate that both chambers must “sit” and hold actual business meetings in the same location.
Granted, other provisions of the Constitution might be read to allow Congress to designate an alternative by ordinary statute, without a constitutional amendment. It’s not a slam-dunk case either way. Yet, because the last thing the nation needs is for someone to challenge, ex post facto, a law passed by remote voting, and thus create even more turmoil, it is probably wiser not to test Section Five, paragraph four’s provision except in an utmost emergency.
That said, if “safe distancing” precautions make it inadvisable for members to gather in the House or Senate chamber, even if only a few at a time, to vote, there might be a middle ground. The Constitution doesn’t say each body must vote on the floor of its chamber. Members could probably set up voting locations, by secure device, anywhere in the Capitol complex. This would merely require a slightly broader, but still quite reasonable, reading of the word “place” in the passage at issue. After all, the whole complex of Capitol and U.S. House and Senate office buildings is the place “in which the two Houses shall be sitting.”
So, yes to returning from districts across the country to Washington, D.C. But also yes to allowing some leeway, once there, for the observance of measures meant to ensure Congress’s health.
