The Supreme Court earlier this week rejected a lawsuit from House Minority Leader Kevin McCarthy which sought to challenge the chamber's voting by proxy rule.

What You Need To Know

  • The Supreme Court earlier this week rejected a lawsuit from House Minority Leader Kevin McCarthy which sought to challenge the chamber's voting by proxy rule

  • The rule, put in place in the early days of the COVID-19 pandemic, allows for members to designate a colleague to vote for them if they would be otherwise absent for a vote; Republicans say it's "unconstitutional" and vowed to eliminate it should they win back the House

  • In order to vote by proxy, lawmakers must send letters to the House clerk which say that they are "unable to physically attend proceedings in the House Chamber due to the ongoing public health emergency"

  • But both Democrats and Republicans have utilized the practice; According to Rules Committee Chairman Jim McGovern's office, 339 House lawmakers, or 77% of the House, voted by proxy at least once last year, 202 Democrats and 137 Republicans

The rule, put in place in the early days of the COVID-19 pandemic, allows for members to designate a colleague to vote for them if they would be otherwise absent for a vote. 

Republicans argued in their lawsuit that such a practice is "unconstitutional," but the case was rejected twice before by lower federal courts, which determined that they did not have jurisdiction into the House's internal rulemaking and decisions. The rules of the House are determined by the controlling party, the Democrats.

In order to vote by proxy, lawmakers must send letters to the House clerk which say that they are "unable to physically attend proceedings in the House Chamber due to the ongoing public health emergency" and designate a member to vote on their behalf.

House Speaker Nancy Pelosi, who put the rule into place initially and extended it throughout the pandemic, called the high court's decision "a victory for Congress, the rule of law and public health" in a statement.

House Republicans have been fierce critics of the policy, and pledged that if they retake control of the chamber in the 2022 midterms, they will eliminate the policy.

"The American public, just as we honor those in the health field, grocery stores, truck drivers, they continue to work, I think they expect their leaders to work," McCarthy said at a press conference last week.

"We believe in in-person voting," Rep. Elise Stefanik, the GOP conference chair, said at a presser. "When Republicans win back the House, that's what we are committed to."

But Republicans themselves have utilized the rule to vote by proxy, despite their voiced opposition.

According to Rules Committee Chairman Jim McGovern's office, 339 House lawmakers, or 77% of the House, voted by proxy at least once last year, 202 Democrats and 137 Republicans. A tally from the Brookings Institution found that 70% of the original plaintiffs on McCarthy's lawsuit voted by proxy at least once through Dec. 10, 2021. McCarthy gave his blessing to members of his caucus to use proxy voting, but suggested that those who did so should remove themselves from the lawsuit, leaving just the California Republican and Texas Rep. Chip Roy. 

Earlier this month, Stefanik voted by proxy to fundraise for Republicans with former President Donald Trump at his private Mar-a-Lago club in Florida. 

"It’s the rules of the House right now," Stefanik told reporters last week, defending her actions. "So have a number of colleagues on both sides of the aisle, these are the rules that Nancy Pelosi sets."

Some critics say lawmakers are abusing the emergency policy, voting by proxy and, in some cases, attending other in-person events.

"Members are not actually taking their jobs seriously," said Wisconsin Rep. Mike Gallagher, an outspoken critic of the practice.

Last year, more than a dozen House Republicans voted by proxy on the American Rescue Plan, President Joe Biden's $1.9 trillion COVID-19 relief bill, to attend the Conservative Political Action Conference. (Ultimately, no Republicans supported the bill, which passed Congress in March of 2021, in either the House or Senate.)

But one of those lawmakers, Florida Rep. Matt Gaetz, is actually a supporter of proxy voting, arguing that his party is "getting it wrong on remote voting" in an op-ed last year.

"To date, I’ve toed the party line, but no more: the Republicans are wrong," Gaetz wrote last November. "I am now convinced that remote voting would be a devastating blow to the lobbyists and special interests who corrupt our politics and harm our nation."

"I support remote voting because we are better as public servants when we spend more time with the public we are elected to serve," he added. 

A number of Democrats have also utilized the practice while participating in other in-person events, including a group who voted by proxy while attending a Ford event in Detroit with President Biden in May of last year.

Until a change in party control of the chamber or an shift in conditions of the pandemic, the practice appears to be here to stay in the House. 

But experts say that lawmakers should meet in person in order to better represent their constituents and find compromise, something hard to come by in the highly fractious House.

"The very definition of the word Congress is people coming together," Mark Strand, president of the Congressional Institute, told Spectrum News. "That’s the give and take of the legislative process."

"People have to meet," Strand continued. "When their representatives of the people don’t come to Washington, those people are not represented. In fact, members just vote the way their leaders tell them to vote. So, you’re getting the representation of the leadership, not constituents."