/  Ranking Member Cole Opening Remarks at H. Res. 965 Hearing

Ranking Member Cole Opening Remarks at H. Res. 965 Hearing

As prepared for delivery during today's original jurisdiction hearing:

Our original jurisdiction hearing today is on the most consequential change to the Rules of the House of Representatives in my tenure here. Indeed, this may be the most consequential change to the Rules since the establishment of the modern committee system in the Legislative Reorganization Act of 1946. 

Today, the majority is proposing, for the first time in our history, a system of proxy voting on the floor of the House of Representatives. At the same time, the proposed rules changes would also authorize committees to perform remote proceedings, including markups. And it also allows for the adoption of totally remote voting upon the certification of one member of Congress. Though the changes are purportedly limited to the present COVID-19 pandemic timeline, the temporary change we make to the rules today becomes the precedent we follow tomorrow.

Mr. Chairman, three weeks ago Speaker Pelosi did an extraordinarily wise thing. Rather than pushing through a partisan proxy voting rules change similar to one we are considering today, she instead formed a working group of six members to consider these challenges. This working group consisted of Majority Leader Hoyer, Republican Leader McCarthy, Chairperson Lofgren and Ranking Member Davis of the House Administration Committee, and of course you and I as the Chair and Ranking Member of the Rules Committee. Over the past three weeks, this working group has been wrestling with the question of whether, and if so, how, Congress can continue to operate during this pandemic.

I particularly want to commend you, Mr. Chairman, for the thoughtful and productive way in which you approached these discussions. And rest assured, my dissatisfaction with today’s resolution is no criticism of you personally.

Last Monday, Republican Leader McCarthy, Ranking Member Davis and I posted an article on Medium that laid out four strategies for reopening the House of Representatives. These strategies were designed to strike the necessary balance between health and institutional concerns to allow the House to begin to move forward in a safe and healthy way. Before I continue, I request unanimous consent to insert a copy of that article into the record.

The four strategies we highlighted were as follows. First, modifying existing practices and structures to utilize existing House Rules and current practices. Second, employing a phased return with committees, or in other words bringing back individual committees to work on essential and needed legislation in a safe, socially-distanced format. Third, deploying technology in a “crawl, walk, run” progression. And fourth, continuing to accelerate active risk mitigation practices.

These four principles would allow Congress to safely begin to return to D.C. to continue our work. It would allow committees to come back to conduct hearings and in-person markups to draft new legislation to combat this crisis and provide relief for the American people. It would have limited the risk of using unproven technology that may or may not be secure from wrongdoers such as hackers and foreign governments. And it would have ensured that the Congress continues to meet as a CONGRESS: literally, a physical meeting between delegates. 

Above all else, Republicans believe that any change to the centuries-old rules of the House should only be done in a bipartisan way that achieves consensus. We believe the proposal we outlined would achieve that goal. 

Instead, this proposed rules package fundamentally changes two key rules of the House. First, for the first time in the history of the chamber, we are being asked to approve a system of proxy voting for members on the House floor. That rules change also holds open the possibility of moving forward with totally remote voting once the Chairperson of the House Administration Committee certifies a technology for that use. Second, again for the first time in our history, we are being asked to approve a measure that would allow committees to operate remotely and approve legislation remotely. 

While I have no doubt that the majority’s intentions are good when it comes to proposing these two changes, I believe they would fundamentally alter the nature of the institution, and not for the better. And I cannot support them.

First and foremost, I am deeply concerned about the precedent this sets for the institution. Even a temporary measure to deal with the current crisis could be used to establish precedent for something else down the line. And when it comes to the fundamental way the House does business – face to face, with members building relationships and hashing out differences – I am very reluctant to set a new precedent that erodes our normal practice. 

Second, I have real concerns about whether or not any system of remote voting or proxy voting is constitutional. The language of the Constitution clearly contemplates members being physically present in the chamber to conduct business. A move to any other kind of procedure that involves members not being physically present in the chamber to vote and to make a quorum will put the legislation passed by those methods at risk of court challenges. 

The legislation that we will likely pass by these methods in the near term will probably be bills along the lines of the CARES Act – bipartisan measures to deal with the coronavirus pandemic and the resulting economic distress. It does not make sense to me to put such important legislation at risk of court challenges because we failed to comply with constitutional requirements.

Third, I am not completely convinced that moving to a proxy voting system or a remote voting system is necessary at this time. There are other methods of operating that comply with our existing rules. By far the best option is to operate with bipartisan agreement and unanimous consent, which would not require members to return to Washington during this crisis if there are travel concerns. In the event that is not possible, we have already proven our ability to assemble and vote in person twice during this pandemic. Tomorrow, we will do so for the third time.

I am personally deeply concerned about the proposed remote voting rules change even if it is not imposed right away. The rules change we are considering today will allow for remote voting to take effect without an additional vote of the House, and instead only upon certification of technology by one member: Chairperson Lofgren. This is ceding the authority of the Rules Committee, and it denies the entire House deliberation on the technology and a vote on making such a consequential change. At the very least, I think the entire House should have an opportunity to evaluate and vote upon any remote voting system before such a change takes effect.

On the second piece of your resolution, which will allow committees to operate remotely, I have similar concerns. But I am most concerned about what it means for the institution. 

Our present committee structure has meant that for decades the members of the House meet together to discuss new pieces of legislation. Though we may not agree with each other, and sometimes may not even like each other very much, the committee system has forced us, as members of the House of Representatives, to sit down in a room and work together. It has forced us to get to know one another, to learn from each other’s perspectives, and sometimes learn that we have more in common with each other than we previously recognized.

But if this measure passes, that will no longer be the case. No longer will members be required to sit together in a room. Instead, we will lose that fundamental piece of our institution’s character. I think that is a grave loss for us as members and for the country.

I am also deeply concerned with how remote committee action will actually work. With such an untested and unproven procedure, there will undoubtedly be significant hiccups moving forward. When markups happen, how will we ensure that chairs must recognize members for timely motions? How will we ensure that minority members will receive fair and equal time and fair and equal opportunity for recognition? How sure are we that the technology we intend to use is secure and protected from wrongdoers, whether hackers or foreign nations? Today’s rule is silent on these matters, leaving most of the specifics to be determined later by you, Mr. Chairman.

We need to do better. I am disappointed that our bipartisan discussions on how to make Congress work during this time of national emergency did not result in consensus. But it is even more disappointing to understand how these rules changes, in my opinion, will begin to erode the very fabric of the House.

Thank you
Created: May 14, 2020