California Lawmakers have Clashing Views Regarding Proxy Voting

Richard Rubin
Attorney Richard Rubin has taught at the University of San Francisco, Berkeley and Golden Gate University, is a regular columnist for the Marin Independent Journal and was Chair of the California Commonwealth Club Board of Governors, 2017-2019.

California lawmakers participated in history-making the other day as a majority of House members voted by proxy for the first time safely ensconced in their homes during the coronavirus pandemic that is changing all the rules of normal life.

 The legislation to add millions to the “paycheck protection” program especially for small businesses that have suffered huge losses and even closures related to the COVID-10 virus drew overwhelming bi-partisan support passing by 417-1. 

 Democrats labelled it the “Heroes Act.”

 It now goes to the Senate which must decide between approval which is expected to get the president’s signature or to push through a companion measure that might have trouble advancing.

 A far more controversial bill calling for an injection of an additional $3 trillion remains suspended subject to ongoing bickering over exactly how much money should go to states and local governments.

 Proxy voting requires abandonment of the traditional mode of boarding flights to Washington which would mean taking risks deemed unacceptable and unnecessary while it is possible to keep the government functioning by other means.

 Opponents have been quick to point out that this practice was not permissible even during the Civil War. Of course this was long before jets began whisking members to the Capitol though it has not been invoked for any other emergency since that war.

 The House Minority Leader, Kevin McCarthy of Bakersfield, prefers the old system and along with 20 other GOP representatives has initiated a lawsuit asking that absentee voting be declared unconstitutional.

 70 House Democrats including many from California are going along with the rules change which is creating the customary partisan divisions.

 It has quickly escalated into a growing standoff between those who want to expedite federal funding initiatives as the disease continues to spread and those who are throwing up roadblocks that could frustrate faster action.

 This feuding over what amounts to justifiable procedural changes will do nothing to allay fears of millions of Americans who have watched the death toll from COVID-19 rise to over 100,000!

 California has not escaped its ravages which has so far claimed over 3,700 lives and over 90,000 positively confirmed infections. 

 McCarthy has flatly declared proxy voting “a dereliction of duty.”  He cites in support of his position the constitutional directive that members of Congress be “present and voting.”

 House Speaker Nancy Pelosi (D-San Francisco) disagrees and has ordered remote voting allowable at least for the immediate future while the emergency exists and labels the lawsuit “a sad stunt.”

 Under these rules House members can ask up to 10 members in attendance from different states to vote for them. This has brought outcries that such a modified procedure denies proper representation.

 When first responders from California or some other state were dispatched to help pandemic victims in other regions political litmus tests were not necessary and there were no complaints.  

Normal rules do not seem to work well during a crisis of this magnitude. The virus is not choosing favorites and is impervious to party affiliations. It is not a Democratic or a Republican disease, a Red State or a Blue state disease, a poor person’s or a rich person’s disease. Everyone is vulnerable.

 Airplanes and airports proved to be fertile breeding chambers for its conveyance as millions of travelers from Europe, China and probably other nations introduced the lethal bug to all 50 states before restrictions were adopted.

 The passenger seated next to any member of Congress could unknowingly be a carrier with ample opportunity to transmit the virus during these flights.

 Planes are rapidly filling up with little regard for careful spacing as thousands of cooped up families are desperate to escape self-imposed isolation.

 Nor do the hallowed halls of Congress offer any safe haven where hundreds of members doing the people’s duty must closely congregate when they cast their votes or meeting with their staffs.

Masks are helping but many—including President Trump— are choosing not to wear them. Testing remains inadequate and a proven vaccine is not yet in sight.

Before it went into brief recess after a one-month stay, the Senate which is less than one-fifth the size of the other body has been gathering with most hands-on deck including California’s senators. 

Even so, legislative delays caused by acutely divergent approaches to how best to respond to the pandemic have prevented any negotiations regarding more federal aid from even beginning.  

This is holding up millions in state and local funding for California which is confronting a potentially catastrophic $52 billion budget deficit that is growing exponentially. 

If California and other states cannot get these monies it will endanger services that state and local governments exist to provide. In a pandemic the consequences can be far reaching including disruptions to the economy that may already require years to recover.

California uses these funds to reinforce and bolster health, housing, education, public safety, transportation, law enforcement, infrastructure development, and countless programs vital to the state’s functioning. 

If lawmakers are denied the ability to vote safely for the measures that power the nation’s prosperity and the restoration of its physical health, it is not serving constitutional principles. It is abusing them.

The House rules change is an effort to create a balance between serving the public’s needs working at home without abdicating the duty to pass laws for the nation’s general welfare. 

Even as pandemic restrictions are being gradually relaxed, the CDC, governors, mayors, the president’s health advisors and practically every science and medical expert in the nation have been urging that people stay at home other than to perform essential tasks.

Are some prepared to say that our nation’s elected officials cannot manage to carry out the business of the nation unless they are in unsafe surroundings?

Are the workings of the government put in greater danger if those empowered to ensure its proper functioning cannot do so without risking their own health and safety? 

The California legislature has drafted Assembly Constitutional Amendment, ACA 25, for adoption by the voters in November. It would permit remote attendance in any official legislative proceeding as well as proxy voting if either the Assembly or Senate adopts a rule permitting it. 

It would be operative during the pendency of any state-declared or federally-declared state of emergency and is expected to have strong bi-partisan support. 

University of California Law School Dean Erwin Chemerinsky believes the law suit will ultimately be dismissed since federal courts do not like to meddle in the affairs of another government branch and the House and Senate can make their own rules.

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