Assuming the Senate can finalize language on its $2 trillion coronavirus relief legislation and sort through last-minute senatorial ego trips, the package will soon clear the chamber and migrate to the House. Then it’s up to House leaders to figure out how to move it through the chamber swiftly, without any mischief that might require the majority of House members to fly back to Washington.
The House recessed and members flew home after passing a separate, $100 billion coronavirus relief bill nearly two weeks ago, leaving the Senate to write the next, substantially larger part of the plan. Now the House leaders need to figure out how to turn their tacit agreement to go along with the Senate’s plan into legislative action.
Their preference for passing the bill would be through unanimous consent, in which a member asks for everyone to agree to the bill and, in the absence of an objection, the agreement would become official. Similarly, the House could try to pass the measure by voice vote: The speaker asks for the yeas, then the nays, and the loudest side (in practice, whichever side the speaker chooses) wins.
But a single, determined member can obstruct either of these options. A unanimous consent request can, by definition, be stopped if any member objects. On a voice vote, meanwhile, any member can raise a point of order that a quorum—a majority of the House—is not present, forcing a roll call vote.
These and other possibilities were outlined in a report released earlier this week by the House Rules Committee, which, along with leadership, is still sorting through how the chamber should proceed. Similar problems materialize with other ideas the report brainstorms. One option, called “enhanced unanimous consent,” would increase the number of members required to object to a unanimous consent request. Sounds great! But such a new rule would first have to itself be adopted by unanimous consent, to which a lone rogue could, of course, still object. There’s the same problem with proxy voting, by which an absent member would authorize another member to vote for them: You first have to successfully adopt proxy voting.
Another option that’s garnered a lot of public attention is remote voting, something that neither Speaker Nancy Pelosi nor Senate Majority Leader Mitch McConnell has shown much interest in. The Rules Committee report suggests it’s worthy of more study but essentially not feasible in the immediate future. First, it would entail serious security and logistical concerns before such a system could be up and running; secondly, there are yet more constitutional concerns about what it means for members to “assemble” and be “Present” in a “place.” While those constitutional concerns aren’t insurmountable, they are litigable, and it’s reasonable to expect that opponents of some piece of legislation passed under remote voting would tie the question in courts. And, again: You can’t pass remote voting with everyone out of town except for the one person sticking around to object.
So how is the House going to pass this $2 trillion sucker, as leaders hope to do, without flying hundreds of old people back to the coronavirus mothership that is the United States Capitol—something that would likely only delay, and not block, passage anyway?
With unanimous consent and voice vote as the most realistic, though risky, methods, House leaders will be scanning their radars for potential disruptors. They held numerous conference calls with members on Wednesday, walking through expected pieces of the Senate legislation. They’re explanatory, sure, but also a means of temperature taking: Which blocs of members (Progressives, Blue Dogs, the Freedom Caucus) might have serious issues with pieces of it—and more specifically, which individual members might be just mad enough to come back to Washington, go to the House floor, object to proceedings on one ground or another, require a recorded vote, and earn the enmity of their colleagues for eternity?
There are candidates to watch. On the Republican side, Texas Reps. Louie Gohmert and Chip Roy have a history of either threatening to block unanimous consent requests or blocking them. Michigan Rep. Justin Amash, the ex-Republican independent, is disgusted with the legislation but said Wednesday that he wouldn’t block a unanimous consent request as it “merely delays the inevitable.” On the Democratic side, meanwhile, New York Rep. Alexandria Ocasio-Cortez told CNN that she was “open” to calling for a recorded vote “if necessary.”
“With the health risks of travel, there is no easy choice here,” Ocasio-Cortez said. “But essential workers are showing up and putting their health at risk every day, and if the final text of a bill is set up to hurt them, it may be something we have to do.”
And then there’s Kentucky Rep. Thomas Massie, a consistent thorn in Republican leadership’s side who has stuck around to block unanimous consent legislation in the past. There was, I was told Wednesday afternoon, a rumor on the Hill that Massie was in D.C. (One imagines Hill leadership staffers scouring alleys throughout the city while Massie cools his heels in a safe house.) Massie’s staff did not respond to inquiries as to his whereabouts, but Massie did confirm to the Washington Post early Wednesday evening that he would be in D.C. on Thursday. He wasn’t ruling out any of his options.
It was Amash, though, who may have pointed toward a way to resolve this in the same tweets in which he said he wouldn’t block a unanimous consent request.
The Rules Committee report laid out options for getting members on the record. “Members could submit a statement for the Congressional Record stating how they would have voted had there been a recorded vote,” the report said. “Congress could even vote on a symbolic resolution supporting the legislation after the crisis passes and Members return to Washington.”
Passing the legislation via unanimous consent or voice vote, while finding a way to get members on the record either through a submitted statement or a later proxy resolution, might offer the easiest path. Those statements or symbolic votes still wouldn’t perfectly simulate the results of a proper, in-person vote. A good number of members, who might vote for the legislation if they were there in person, with the economy on the line and with leadership’s guns to their heads, might say they reject the deal over one provision or another when their submitted statement or proxy vote doesn’t actually matter. It would be a move that allows the legislation to pass while members cowardly look out for themselves.
In other words, it might hit the sweet spot.
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