A federal appeals court ruled Friday that then-House Speaker Nancy Pelosi was on solid legal footing when she allowed lawmakers to cast colleagues’ votes on the chamber floor during the coronavirus pandemic.
The 5th U.S. Circuit Court of Appeals said even though an operating quorum of lawmakers wasn’t physically present to act on legislation, they were virtually present thanks to Mrs. Pelosi’s designated-voter scheme.
Judge James E. Graves Jr., an Obama appointee writing for the majority in the 2-1 ruling, said the Constitution gives the chambers of Congress wide latitude to set their own rules, and that has long included deference on what constitutes a quorum.
Mrs. Pelosi adopted proxy voting during the pandemic, saying she feared too many lawmakers on the chamber floor at one time could spread the virus. She gave lawmakers who feared showing up in person the power to deputize a colleague to cast their vote for them.
A major spending bill passed under those rules in late 2022, even though a quorum of lawmakers didn’t actually show up in person. Texas sued, arguing the spending bill wasn’t legitimately approved.
Judge Graves said the point of the quorum rule, which is found in the Constitution, is to preserve majoritarian government. He said Mrs. Pelosi’s scheme did that, allowing more lawmakers to participate in votes than might otherwise have happened.
“The House’s proxy-voting rule did not violate anyone’s fundamental rights,” he concluded. “There is a reasonable relationship between the rule and the result it seeks — majoritarian rule. And the constitutional text, history, and tradition indicate that the Quorum Clause contains no physical-presence requirement that the House’s rule could have flouted.”
The ruling overturned a district judge who had found Mrs. Pelosi’s plans did violate the Constitution.
Judge Cory T. Wilson, a Trump appointee who dissented from Friday’s ruling, said his colleagues were saying lawmakers could be present “in the mental sense” without actually having to show up for the job.
He said that’s not what the Constitution requires.
He said it’s impossible to square the idea that a lawmaker could be mentally present with another portion of the quorum rules that allow the chamber to compel the “attendance of absent members.”
“The Quorum Clause serves as such a check on congressional power; indeed, it is an organic constraint in our republican form of government because there is no power for a house of Congress ‘to do Business’ until a quorum of its members are present,” he wrote.
The $1.7 trillion spending bill at the heart of the lawsuit passed on a 225-201 vote. Of those, 228 members — a majority — cast ballots by proxy, Judge Wilson said.
Counting only votes of those present, the bill would not have passed.
While Mrs. Pelosi instituted her proxy voting for pandemic health reasons, it quickly became a tool of convenience for lawmakers who couldn’t be pressed to get to the chamber floor.
Some lawmakers cast proxy votes so they could attend ribbon-cuttings in their home districts or political gatherings going on at the same time as votes were scheduled. One lawmaker reportedly used it to attend her son’s high school graduation.
Then-House GOP Leader Kevin McCarthy filed his own legal challenge against proxy-voting. Lower courts rejected his claims and the Supreme Court declined to hear the case.
Republicans have since eradicated Mrs. Pelosi’s proxy-voting rule, though there was an attempt earlier this year to bring it back for limited cases when lawmakers need to take maternity or paternity leave.
GOP leaders managed to kill that effort, arguing it was unconstitutional.
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• Stephen Dinan can be reached at sdinan@washingtontimes.com.