by Brady Miller
On the evening of March 27, 2020, the U.S. House of Representatives passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and sent it to the Oval Office, where Donald Trump quickly signed it into law.[1] The CARES Act is a $2.2 trillion economic stimulus package, the largest of its kind in history, intended to alleviate financial burdens caused by the COVID-19 pandemic. Among other things, the Act is sending money directly to Americans and providing loans to the industries most impacted by the virus. After a week of intense negotiations, Secretary of the Treasury Mike Mnuchin, Speaker of the House Nancy Pelosi, House Minority Leader Kevin McCarthy, Senate Majority Leader Mitch McConnell, and Senate Minority Leader Chuck Schumer brought the final product to the Capitol on March 25. The Act passed both houses with a 96-to-0 vote in the Senate and by unanimous voice vote in the House of Representatives.[2]
While it would appear that the entirety of the U.S. Congress backed the bill, that “unanimous” vote in the House did not come without its hiccups. A handful of representatives voiced disdain for the bill, but nobody was more outspoken than Thomas Massie, a fourth-term representative from Kentucky’s 4th Congressional District. Massie, a self-titled libertarian, has gained notoriety for his skepticism regarding big government. In 2014, Politico nicknamed Massie “Mr. No” because of his propensity to vote against bills, oftentimes among a very small minority.[3] Regarding the CARES Act, Massie was in the news for a similar reason; he claimed an intention to call for a roll call vote on the bill so each member’s vote would go on the record, in accordance with the House’s Constitutional guidelines.[4] According to the Constitution, a quorum, more than half the number of seated members for that house of Congress, must be present in the chamber to “do business.”[5] House leadership wanted a voice vote, meaning all members vote simultaneously by saying “yea” or “nay,” because it would be unsafe to have the minimum 216 members required for a quorum return to Washington, D.C. from their home districts.[6] With a voice vote, a quorum—while technically constitutionally required—seemed by House leadership to be unnecessary in these extenuating circumstances.
Massie’s actions were not a partisan ploy; there was overwhelming support for the bill on both sides of the aisle. When debate on the bill ended and it came time to make his motion, Massie said, “I came here to make sure our Republic doesn't die by unanimous consent in an empty chamber and request a recorded vote.”[7] His motion was denied, and the bill was unanimously passed by a voice vote with a quorum of 216 members present, just as House leadership wanted.[8] Although Massie’s actions did not affect the vote itself, they should start a larger conversation about congressional practices in the United States.
These are unprecedented times; many of our guidelines and policies regarding COVID-19 have been written in the last month or two. Without question, the 429 sitting members of the House should not have been called back to the Capitol. Many of the House’s members are older and at a greater risk with COVID-19.[9] New York Representative Nydia Velázquez was diagnosed with COVID-19 just two days after travelling to D.C. to vote on the bill.[10] She was in close proximity to the more than 200 other representatives present and voting. Four of Velázquez’s colleagues have since been diagnosed with the virus.[11]
An in-person gathering of at least 215 people was not necessary, especially when the outcome of the vote was inevitable. While his tactics were questionable at best, Massie’s greater point magnifies the constitutional crisis COVID-19 has exposed. Most constituents will never know how their representatives in the House voted on the bill, which is a dangerous precedent to set for legislation as important as the CARES Act. Of the 429 seated members, eight have since announced that they would have voted against the bill, had a roll call vote been taken. Additionally, 48 representatives have made no public statements in any form regarding their views on the bill, meaning their constituencies have been left completely in the dark.[12] Representatives are still free to voice their opinions outside the House chamber; however, there isn’t a medium quite as impactful as a recorded vote. The very foundation of the representative democracy in which we live is the idea that elected officials represent what their constituents believe. When a constituent’s beliefs no longer fall in line with that of their representative, it is their civic duty to elect candidates who they believe will do better. For voters, choosing the candidate that represents them better than another, especially on a topic as important as combatting COVID-19, becomes much harder when only half of the House’s members vote, and even more so when those votes are not recorded.
A solution must be found. Voters have the right to know how their representatives vote on America’s COVID-19 response, just like any other issue, but for the safety of lawmakers, that vote cannot occur in person. It is time for Congress to come into the 21st century and adopt a virtual form of recorded voting. It is unclear how long this pandemic will last, but there is no doubt that both houses will have to reconvene for more action before the crisis ends. Most lawmaking happens behind the scenes, and many floor procedures are ceremonial. The most important functions, however, can still happen over the phone, a video call, or an email from the comfort and safety of the lawmakers’ homes. In extenuating circumstances such as these, there must be a way for the process to occur remotely. Congress has been historically reluctant to adopt procedural change, but without it, either the Constitution becomes just another piece of paper or the lives of many Americans are put in danger.
COVID-19 will not be the last pandemic. There will be others like it, as well as other emergencies that will require Congress’ action remotely.[13] We need action like the CARES Act, and we need votes on those actions to be public, but safety must remain the first priority. Elected officials are who the American public looks toward for leadership in times like these. Thomas Massie may have caused an inconvenience and jeopardized public health, but he also exposed a real flaw in Congress’ current procedures that, if not rectified, could significantly limit the transparency constituents expect and deserve from their representatives.
[1] Coronavirus Aid, Relief, and Economic Security Act (CARES Act), S.3548 U.S.C. §§ 1101-6000 (2020). [2] Carl Hulse, A Unanimous Senate Vote That Nobody Seemed to Agree On, Tʜᴇ Nᴇᴡ Yᴏʀᴋ Tɪᴍᴇs (March 28, 2020), available at https://www.nytimes.com/2020/03/28/us/senate-coronavirus-stimulus-bill.html. [3] Kate Nocera, Ky. lawmaker earns name for 'no', Pᴏʟɪᴛɪᴄᴏ (Jan. 16, 2013), https://www.politico.com/story/2013/01/kentucky-rep-earns-name-for-himself-by-voting-no-086318. [4] Juliegrace Brufke, Massie says he'll force roll-call vote, Tʜᴇ Hɪʟʟ (March 27, 2020), https://thehill.com/homenews/house/489857-massie-says-hell-force-roll-call-vote. [5] U.S. Cᴏɴsᴛ. art. 1, § 5, cl. 1. [6] Lindsey McPherson, House republicans flock to DC for stimulus vote, but will any object?, Rᴏʟʟ Cᴀʟʟ (March 26, 2020), https://www.rollcall.com/2020/03/26/house-republicans-flock-to-dc-for-stimulus-vote-but-will-any-object/. [7] Tyler Olson, What just happened? How the House passed the coronavirus stimulus package by voice vote, Fᴏx Nᴇᴡs (March 27, 2020), https://www.foxnews.com/politics/what-just-happened-how-the-house-passed-the-coronavirus-stimulus-package-by-voice-vote. [8] Id. [9] Theresa Herbert, How Old is Congress?, Qᴜᴏʀᴜᴍ (2020), https://www.quorum.us/data-driven-insights/the-115th-congress-is-among-the-oldest-in-history/175/. [10] Steven Nelson, NY congresswoman diagnosed with coronavirus days after sharing podium with colleagues, Nᴇᴡ Yᴏʀᴋ Pᴏsᴛ (March 20, 2020), https://nypost.com/2020/03/30/ny-congresswoman-diagnosed-with-coronavirus-days-after-sharing-podium-with-colleagues/ [11] Cristina Marcos, Florida Republican becomes sixth member of Congress to test positive for coronavirus, Tʜᴇ Hɪʟʟ (April 9, 2020), https://thehill.com/homenews/house/492020-florida-republican-becomes-sixth-member-of-congress-to-test-positive-for. [12] Lee Fang & Aida Chávez, It’s a Scandal That We Don’t Know Who Supported the Coronavirus Bailout. Help Us Find Out., Tʜᴇ Iɴᴛᴇʀᴄᴇᴘᴛ (April 9, 2020), https://theintercept.com/2020/04/09/coronavirus-stimulus-package-congress-vote/. [13] Sayuri Gavaskar, COVID-19 Is Here. How Long Will It Last?, Yᴀʟᴇ Sᴄʜᴏᴏʟ ᴏғ Mᴇᴅɪᴄɪɴᴇ (March 27, 2020), https://medicine.yale.edu/news-article/23446/.