Balkinization: The Johnson Treatment Does Not Work on Zoom

Comments:

I find myself in complete agreement. If the House and Senate leaders weren't absolutely determined to remain in control, they'd have found some way to keep the chambers open by a form of teleconferencing. Their fear of losing control trumps their need to get things done, even in the midst of an emergency.

But another point occurs to me. Both chambers routinely conduct business without a quorum. I know political scientists and the like are jaded about this and tend to forget, but doing this is strictly unconstitutional. The only thing, constitutionally, that either chamber is allowed to do without a quorum, is send for enough members to reach a quorum.

They get around this by a combination of the enrolled bill doctrine, (If the leaders of Congress say all the rules were followed, the courts say "that's good enough for us", and ignore contrary evidence.) and being careful to avoid creating an evidentiary trail, so it can't be proven that they're doing it. For instance, CSPAN isn't allowed to pan their cameras across the virtually empty chamber while business is being conducted, to avoid generating proof of a quorum being absent.

Another way they prevent generating indisputable evidence of this constitutional violation is by using voice votes in preference to roll call votes. This is also a power transfer mechanism: Leadership carefully curates who is present, to guarantee winning the vote; The precise thing quorums are mandated to prevent!

Teleconferencing, how do you hold "voice votes"? Every vote, by default, is a roll call vote, probably with an indelible record generated. And so, the lack of a quorum will be exposed.

Teleconferencing would make quorum violations impossible to conceal.

# posted by

Brett : 9:52 AM

Important issue of course. But, the fear stated by the author of the post ( becoming a habit) is rather hunch over lunch. Worth to quote some, why Pelosi thinks it is not realistic in the near future, first the report on that:

" House Rules Committee Chairman Jim McGovern, D-Mass., released a report on the options. It concluded that proxy voting would be the best alternative to in-person voting, in which a lawmaker who was present could register a colleague’s vote."

Now, more directly quoting Pelosi:

" Pelosi said Thursday that the idea “is being pursued,” but that the concerns outlined in McGovern’s report remain unresolved. In the meantime, she said, addressing the pandemic takes priority, and Congress’ “best minds” should concentrate on that."

And:

"In an interview with CNN moments later she was even more terse, saying it may be an option in the future, but at the moment "we're not prepared for [it]."

" Yet all of those options would still require lawmakers to jump on planes and return to Washington. Pelosi suggested that even under a system of remote voting, security concerns would force members back to the nation's capital to lodge their votes on secure devices."

"It may be that we have no choice but that. But if that is the case, we want to be fully prepared, and none of those systems work unless you practice, practice, practice to make sure it works," she continued. "You know about technology; it's a wonderful thing, but it has its glitches."

And back to the report:

"While remote voting deserves ... thoughtful study, to create a secure, reliable, and user-friendly system while in the midst of a crisis is not realistic," the report says. "

End of quotation:

Not to forget, rules must be modified, and anyway, members need to be present, in order to modify the rules ( in a vote).

Finally, the following one, is " great one " I couldn't calm down quite hell amount of time, I quote:

“If anyone’s vote is wrong, we’d know immediately, because we almost always know how everyone is voting,” Khanna wrote regarding the safety of technology."

Here:

thehill.com/homenews/house/489272-pelosi-house-not-prepared-to-vote-remotely

https://www.sfchronicle.com/politics/article/Despite-coronavirus-Nancy-Pelosi-says-remote-15190782.php

Thanks

# posted by

el roam : 10:42 AM

The vast majority of legislative arm twisting is done by telephone.

# posted by

Bart DePalma : 10:49 AM

Here by the way, to the report mentioned:

" Majority Staff Report Examining Voting Option During the Covid - 19 Pandemic "

Here:

https://assets.documentcloud.org/documents/6817937/StaffReport-VotingOptions.pdf

# posted by

el roam : 11:16 AM

CRS recently had a good short discussion on remote voting (with a link to the longer House report that was hesitant in part because fear of court challenge, even if the matter seems clear to many here):

https://crsreports.congress.gov/product/pdf/LSB/LSB10447

Reliance on the reason given is therefore dubious to me in part because lobbying is already done now while people are not in the room with you.

Yet again we, selectively, have concern for a strict following of constitutional rules, here quorum and enrollment rules, pushing back against 19th Century court precedents that hold that the courts second guessing such things is bad constitutional policy. These rulings, including involving people more experienced in the business of government than some people here, have met the tests of time.

The use of judicial review is not the only way to enforce constitutional rules, and for those who care, it was seen as a much more limited method as an original matter. But, that is selectively applied when things seem "obvious." The Constitution provides the means to enforce quorum rules by allowing a small minority to ask for a quorum and recorded vote. Non-members are also in the audience and thus there are still other means of pressure. "Political scientists" alone are not at issue here. It is realistic analysis of how government operates.

Teleconferencing doesn't prevent the alleged problems, depending on how it is done. For instance, after 9/11, there was some talk of remote voting. A sizable number of people can be in the same room there, just not in D.C. Why can't we have voice votes there? I can easily imagine use of teleconferencing with a virtual floor set up with individual members operating avatars. It will to others look just like CSPAN would look. Talk of CSPAN pans aside, the House and Senate (the Senate at first did) does not operate in secret. The hopes for purity with telecommunicating comes off a bit naive.

# posted by

Joe : 11:38 AM

After all, who controls things here?

If there is some big conspiracy, it is curious why it cannot work with 21st Century technology. Anyway, the Michigan Supreme Court handled oral arguments by zoom yesterday, so the US Supreme Court can too.

The US Supreme Court will have a telephonic oral argument next month and apparently it will not just be live for the news media but to the general public. Should be interesting to see how it goes.

# posted by

Joe : 11:48 AM

"If there is some big conspiracy, it is curious why it cannot work with 21st Century technology."

My point is, the conspiracy, (And it's not big.) doesn't want to work with the technology, because it tends to defeat a key way they're empowering themselves at the expense of the general membership of the legislature.

# posted by

Brett : 11:57 AM

Just to quote more accurately from the report ( P.8 , " remote voting ") here:

"The House could implement a system by which Members could cast their votes remotely for a prescribed period of time.

Advantages: Members who are unable to travel to Washington due to the COVID19 pandemic would be able to cast votes on legislation from their home or district office.

Disadvantages: Significant security and logistical concerns surround remote voting, and opponents of the legislation could raise constitutional questions surrounding the process. Allowing remote voting would require major changes to the House rules for this purpose – and much smaller changes have taken years of study and consideration to implement. The House and outside experts studied the continuity of Congress following the attacks of September 11th, 2001, and it took years of careful deliberation to agree to change the quorum rule for catastrophic circumstances. While remote voting deserves similarly thoughtful study, to create a secure, reliable, and user-friendly system while in the midst of a crisis is not realistic. "

# posted by

el roam : 12:12 PM

Erica Werner@ericawerner [congressional reporter]

Huh .. Pelosi suggests they will be coming into session at some point to approve rules on remote voting, at which time they would also approve her new Select Committee chaired by Clyburn

My point is, the conspiracy, (And it's not big.) doesn't want to work with the technology, because it tends to defeat a key way they're empowering themselves at the expense of the general membership of the legislature.

It's not "big" but the Supreme Court, Congress, I assume local legislatures, political scientists etc. all have allegedly been in it for hundreds of years in the creation of public policy writ large. Words/meanings.

One more time. The facts do not actually show that they will be defeated, in part since the alleged conspiracy is yet again exaggerated. For instance, C-SPAN and the ability of people easily to visit and communicate with Congress would also seem to be a means to stop the "conspiracy," but huh, somehow it still goes on.

But, THIS will change it! Well, we shall see, but I doubt it.

# posted by

Joe : 12:56 PM

House report that was hesitant in part because fear of court challenge

I don't know what the real reason is, but it isn't that.

Look, it's pretty obvious that with 21st century technology, it's possible to have a legislative quorum without everyone in the same room. And in the middle of a pandemic, we need to do it.

I don't know what Pelosi's and McConnell's actual problems with it are, but I'm pretty sure that their public statements about it are lies.

And I hate to say this, but Brett's theories sound plausible. Because while you can have a remote quorum, you can't really have all the stuff that doesn't get into the congressional record if you do it remotely. Every vote becomes a recorded vote. And I can imagine that scares plenty of people in Congress.

Now, unlike Brett, I don't think the various machinations they do now are unconstitutional. But the fact remains, if you do it by teleconference, it's all visible.

# posted by

Dilan : 1:24 PM

I don't know what the real reason is, but it isn't that.

I'm convinced.

As with the last post, this isn't merely some academic enterprise. There actually has been analysis and limited court challenges regarding the question. One can find one or more decisions against remote methods in state litigation. Are the specifics completely different? The limited discussions I found the last time GM referenced this topic makes this unclear but I'm far from convinced it is not a risk.

What some lower court judge, especially one of the new inclined not to be very restrained appointees will do is far from clear, especially since there is some evidence they can cite that actual presence was intended. The fact it isn't compelled or the best approach surely isn't the compelling factor for many a lawsuit.

Anyway, "in part" was said. So, there is not a single "that." Security, technical, tradition and other concerns are likely in place too. As noted, there was a House report that discusses the matter. But, why believe them if it is a conspiracy? There is also a CRS report. FWIW.

all visible

It is visible now. Congress doesn't meet in secret.

The "various machinations" also will depend on how it is actually done.

If you think the Speaker of the House and Majority Leader of the Senate are just lying, and inclined to think they and the Congress as a whole is part of some big scam (or less conspiratorially, somewhat free and loose with the rules), why telecommunicating will suddenly change this -- other than assertion -- is unclear.

Again, television, much more easy public access and other methods (such as instantaneous video by people there to show a lack of a quorum) would logically make things harder. But, apparently, not enough. Telecommunicating will? How?

It would help if actual evidence can be shown - perhaps with citation of local and state governance who used it -- but then as I said, that also has brought up litigation that blocked remote voting in certain cases. Of course, it still will be theoretical since we don't know how those liars will operate since it was never done.

Why is each a recorded vote, e.g.? Let's say the Capitol was not safe and the House split into five groups and voted remotely. We can still have voice votes w/o quorum calls. Is it that some sort of code be required to show up on the screen to show them being there? First, again, Congress doesn't operate in secret now. Still, who knows how that will work. Will a visual be necessary? They can be signed on but not even be in the room when the voice vote comes. What will be in the formal record?

The usual unanimous consent rules would still apply. There is not need to have a "recorded vote" in the sense of each member voting specifically on each matter be it in place or remotely. I don't know why people will suddenly be scared.

If anything, things might be more lax given the crisis with more encouragement of unanimous consent and smooth running of things. The New York legislature had special rules in the recent budget vote and a special effort had to be made if a legislator wanted to vote against something (my local assemblywoman talked about the process in a recent interview). There was thus a bias toward conformity, so to speak.

Making it easier to have a quorum by being able to do so remotely also very well can just make individual legislators take the whole thing less seriously. They can be watching t.v. or whatever as things happen. How this affects the dynamics of things is unclear though it does seem on some level to water down the value of the whole thing.

It is unclear how things will work here. "I do not know" is the best approach.

# posted by

Joe : 3:13 PM

Anyway, "in part" was said. So, there is not a single "that." Security, technical, tradition and other concerns are likely in place too. As noted, there was a House report that discusses the matter. But, why believe them if it is a conspiracy?

I never said anything about a conspiracy. I am saying there's a pandemic, House and Senate members are at risk of dying if they are forced to gather together in a physical Congress, and therefore theoretical arguments about hypothetical court challenges to what would necessarily be BIPARTISAN legislation (and thus less susceptible to the political valences of some recent cases) are transparently NOT the reason they aren't doing this.

If that were the only reason, McConnell and Pelosi would surely say "screw it, we'll choose safety and let the courts tell us we can't".

So it must be some other reason.

As for the rest of your comment, I am not claiming that Congress meets in classified sessions. But Brett is right that they aren't fully transparent, that they act without quorums present, voice vote so that members' positions are not always reflected in the record, don't pan the cameras around so that voters won't know that their congressman missed the vote to get a blowjob from their staff secretary, etc. That's all true.

And ALL of that would be much harder to do if they met online. I can say this myself. When working remotely on Zoom, everyone can see when you aren't doing what you are supposed to be doing.

# posted by

Dilan : 8:37 PM

Looks as if the OP may be moot now, at least in the House. https://www.nytimes.com/2020/04/16/us/politics/house-coronavirus-remote-voting.html

# posted by

Mark Field : 9:02 PM

Brett said it was a conspiracy. You said they were lying & not transparent & apparently having sex right off camera or something. My comment was comprehensive to everyone. Again, such seedy characters, question how much "harder" it will be to do something here really. New technology, new approaches there.

Now, people actually are in the room with them when things happen. It might be easier somehow to be less transparent. And, the whole stuff with unanimous consent etc. holds. No need to be scared.

As to reasons, legal challenges very well might be only a minor reason -- it was just offered as one reason. But, Mark's article suggests there are numerous people concerned with changing the rules, in part because it could make things less deliberative and again perhaps make things easier to pass the buck.

# posted by

Joe : 10:50 PM

"The usual unanimous consent rules would still apply."

The usual unanimous consent rules are that you make sure that only a small number of members are present, all of whom are already in agreement, so that you know in advance nobody is going to "observe the absence of a quorum", or demand a recorded vote.

Unanimous consent, like voice "votes", is a way to conduct business in the absence of a quorum, by preventing the number of members present from being recorded officially. As long as there's no official record of there not being a quorum, they can continue to do business with as few as three members present in the room.

The reason they can get away with this, despite, for instance, tourists being in the visitor gallery and seeing the chamber practically empty, is that the "enrolled bill doctrine" means that the courts will generally take the word of the leadership that all the rules were followed, and refuse to look at any evidence to the contrary.

In theory, the enrolled bill doctrine can be overcome by sufficiently conclusive evidence. A half dozen tourists testifying under oath that there were only a handful of members on the floor? Won't cut it, the courts will flatly refuse to listen to them.

A roll call vote with only five votes? THAT might be just a bit too blatant for the judiciary to turn a blind eye to.

So they go out of their way to avoid anything that would generate the sort of evidence a court might find it impossible to ignore, while not sweating the informal proof that's out there, because they know the judiciary will refuse to acknowledge it.

My position is that they will fight going to remote voting by the actual members, because it would in effect make every vote a roll call vote, making it impossible to avoid creating the sort of evidentiary record of the lack of a quorum that the judiciary might find it hard to ignore.

Seriously, some time when the legislature is in normal operation, you ought to try binge watching CSPAN. All of this stuff is an open secret, because they know the courts just don't care. All they're concerned about is putting it on the record where it can't be ignored.

Gerard is right: Remote voting would give the members a chance to reclaim their power from the leadership. THAT is why the leadership won't permit it.

# posted by

Brett : 9:17 AM

This comment has been removed by the author.

# posted by

Joe : 10:33 AM

The citation of unanimous consent rules were cited mainly to show how remote voting or not remote voting the idea that somehow it will be harder on an individual legislator is questionable. The rules also are not used merely as some sort of conspiracy.

They are used for practical reasons, as a form of them are used in everyday life. "They" turn out to be like us in that respect. The idea is not to "prevent" things as part of some dubious enterprise. It is that there are thousands of little things to do and you simply can't require each and every thing to be open to a separate decision. This in part since a small minority can abuse the system. Or, simply for practical reality.

This is not any sort of secret. It is not like things were different in 1820. The actual rules, including as applied by the courts with members who more so in the past were likely to be elective government themselves, need to be understood regarding how the system actual works. "No" law means regulations. Quorum rules are there to be enforced not absolutely in practice.

In government or out of government.

# posted by

Joe : 10:40 AM

A non-conspiratorial reason for the resistance might just be that the Speaker (at 80) and the Senate leader (78)(symbols of our gerontocracy?) are of a generation that just might not be comfortable or familiar with the use of technology in this way. Lots of people resist the use of technology they're not familiar or comfortable with.

# posted by

Mista Whiskas : 11:19 AM

"give the members a chance to reclaim their power from the leadership"

The members elect the leadership and can remove them if they want. If most members of the party like and want to keep the leadership that's no usurpation at all, much less one to worry about.

Bircher's like Brett* just don't like leadership because they don't allow all the crazy things on the Bircher wish list to come up and/or pass. I've never heard a better argument for leadership power!

*This is one of the same persons who confidently backed the 'US attorney who is actually a Trump appointee, donor and campaign volunteer is prosecuting Trump associates to harm Trump' krazy kooky konspiracy recently after all.

# posted by

Mista Whiskas : 11:28 AM

One may reach the " guidelines, opening up America again" of the white house, here:

https://www.whitehouse.gov/wp-content/uploads/2020/04/Guidelines-for-Opening-Up-America-Again.pdf

# posted by

el roam : 1:29 PM

"They are used for practical reasons, as a form of them are used in everyday life. "They" turn out to be like us in that respect. "

They are indeed like us, Joe. Or at least wealthy, powerful "us"'s. They cheat on their spouses with subordinates in their offices. They are lazy as hell (even under normal circumstances, working 3 days a week and taking 15 weeks off a year). They are avaricious, whether it means riding on the private jets of contributors or engaging in insider stock trading.

And you shouldn't defend them. Congress is basically run in a way to let awful people get away with things.

I don't agree with Brett very often, but he's totally right about this. Meeting via zoom would force them to drop some of the garden variety lies that Congress currently runs on. It has the same effect body cameras have on cops who are used to sexually assaulting women they detain, beating up black people, and constantly, constantly lying in court cases (as the vast majority of cops did for decades).

People who enjoy laziness, corruption, and power, don't like having to be on camera all the time.

# posted by

Dilan : 6:25 PM

People who enjoy laziness, corruption, and power, don't like having to be on camera all the time.
# posted by Blogger Dilan : 6:25 PM

What is to stop someone from just sitting in front of the camera while making calls to organize a fund-raiser and getting a blow job from a staffer (presumably off-camera, but it is Congress...)?

I just read a Twitter post by someone whose 10 yr old disconnected the video feed to his teacher and replaced it with a photo of her looking “attentive”. As she explained to her mother when caught, there are 20 kids in that class, there is no way the teacher was going to notice. She absolutely will be running for Congress some day.

# posted by

Bartbuster : 6:55 PM

Barbutster:

In the narrow sense, you are of course correct. It is possible for members of Congress to cover up misconduct even when zooming, and it is also possible to find different ways to misbehave if proceedings are on zoom.

But, again, that's like saying that police officers can still demand sex from detainees at the jail, where body cameras are turned off. That's true! But that doesn't mean that police officers who resisted body cameras didn't have in mind the fact that it might curtail them doing certain things they enjoy doing when the cameras would now be on.

As I said, I am not full Brett in the sense that I don't think it's really a "conspiracy". But yeah, Congress writes its rules and procedures to protect bad actors, just like police departments do. And among those are the stuff Brett mentions about votes without a quorum, not panning around the chamber when it is empty, and voice votes to prevent constiuents from knowing what their congressperson did. These are all professional courtesies that members of Congress pay for each other, in the same way that cops cover for each other.

And that's sort of structurally built into Congress. Because at the end of the day, Nancy Pelosi or Mitch McConnell needs the vote of the bad actors.

A Congress where more stuff occurs on camera is one that a lot of members wouldn't like. Brett's basically got the issue right even if he uses some rhetoric I wouldn't sign on to.

# posted by

Dilan : 8:14 PM

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# posted by

Joe : 9:13 PM

Joe, here's the problem. Sometimes, the real world is something to be cynical about.

I mean, first of all, was Lord Acton wrong? Does power not corrupt? And does power not attract the types of people who like to abuse power?

I wonder how you feel about the history of policing in America. Because that's sort of the paradigmatic example of how what you call "cynical realism" is in fact an absolutely correct assessment of human nature.

As Johnnie Cochran, a giant figure in my region when I was going up, used to say, "a police officer is the single most important figure in government. Because he can take your life". And black people, for generations, lived with this. Over and over again, police lied in court, abused the people it dealt with, shot and killed innocent black people, and covered it all up. The supposed "good cops" that everyone talked about all covered for the "rogue cops".

That's how power actually works. You might wish to label that "cynical realism", but that's exactly how power works.

First, the type of people who seek power include an overrepresentation of folks who wish to abuse it.

Second, once the folks in the first group gain some measure of power, structures are put in place to protect them, because they are needed and can screw people over who stand up to them.

And once those structures are put in place, goody two shoes types who talk about the "sacrifices" of public service and the "good people" who shouldn't be smeared by "a few bad apples" run interference for the powerful.

I learned my theories of government from watching the LAPD. Because they reflected the realities of power.

Politics works much the same way. These people aren't "public servants". My garbageman is a public servant. Think any of those douches in Congress would be willing to collect garbage? Doctors who work for little money in public hospitals and prisons are public servants. Think any members of Congress would like to work with prisoners?

People seek power because they enjoy the exercise of power. Because they benefit from the exercise of power. Because the exercise of power makes them famous. Because the exercise of power gives them access to riches.

And most importantly, once those people get power, the supposedly "good people" in the group have to cover for them.

And that's why we shouldn't go around carrying water for members of Congress. You may find that to be "cynical realism", but it is cynical realism that accurately describes how Congress has functioned since forever.

# posted by

Dilan : 9:31 PM

"Think any members of Congress would like to work with prisoners?"

I'm about as cynical as it gets, but there are a few.

That's the guy I wanted to vote for in the Republican primaries back in 2016. He dropped out of the race before I could. You may disagree with his ideology if you like, but he's certainly no monster.

But, your description of the average member of Congress is spot on. It's the same dynamic you'll see in almost any organization: Once you get a critical mass of bad apples, they take over and corrupt as many of the others as they can, just out of self preservation.

The problem is rather exacerbated by the vast increase in federal power, utterly unauthorized by amendments to the Constitution. Paul and his father got treated as cranks simply for insisting that Congress ought to obey the Constitution. Massey caught hell in the House for simply objecting to their passing a law without a quorum, something which is unambiguously unconstitutional.

You can scarcely work in Washington if you've got an objection to swearing to uphold the Constitution and then turning around and violating it on a daily basis. Small wonder that the joint is corrupt, when its operation in defiance of the Constitution requires it to be run by people willing to be foresworn and violate the highest law of the land.

# posted by

Brett : 10:08 PM

I said this:

Mr. W., older people are a mixed bag there.

The current Senate Pro Tempore is over 80 and sends amusing tweets. Shag was pretty comfortable with the Internet in his upper 80s. Members of Congress already use technology in a range of ways.

Fear of change might be a reason, but that's true for much younger people. Plus, the concerns also is some fear of loss of control (again, not just the leadership -- this can give them more power depending on how proxy voting or remote voting is used) not being there to interact brings.

I will defend those who warrant it to the degree they are worth it. I find some takes of how things work rather off, including firm arguments of what is put out as cynical realism that in practice is off base. On this subject, I see a lot of confusion.

===

I just want to emphasize that there isn't any "one" reason here. But, to the degree there is fear of lack of control, it is a complicated thing even there. So, I will replace my previous comment with this one.

As to cynicism being warranted, it sometimes is warranted. The take very well still can be off base in practice. I lived in this world as much as everyone else here.

# posted by

Joe : 10:30 PM

But, your description of the average member of Congress is spot on.
# posted by Blogger Brett : 10:08 PM

Dildo's description of what a lot of cops do is pretty accurate. But you're fine with that. See Martin, Trayvon

# posted by

Bartbuster : 12:07 AM