As Lawmakers Fall Ill, Congress and State Legislatures Must Enact Continuity Plans

Demand Progress calls on Congress and state legislatures to institute continuity of governance plans immediately, before the COVID-19 crisis worsens and the legislatures become unable to act. Many members of Congress have been exposed to the virus, it was announced that two New York state lawmakers had contracted the virus, and it's likely many others have contracted it as well. Overseas, the European Union Parliament in Strasbourg was closed and reconvened in Brussels, and about 10 percent of Iranian parliamentarians have tested positive, while two have died.

Federal and state legislatures must be able to act over the course of what could be a lengthy crisis to ratify emergency and non-emergency legislation and to provide crucial oversight of the government's response -- but they generally do not have procedures in place to allow them to do so, and the window during which to put them into place is closing.

• Congress is in the midst of holding hearings on its spending bills that must be adopted this summer or the government will shut down; similarly, any hope of a third emergency coronavirus bill will require both chambers to function fully.
• State legislatures are in similarly dire straits, with many convening only for a few months at the beginning of the year to enact a swath of spending and authorizing bills, including addressing likely budget shortfalls and emergency spending requirements wrought by this pandemic. Many potential election law changes -- like vote-by-mail -- that could be required to ensure full participation in elections because of the crisis are likely to require state statutory changes.

The Achilles' heel to Congress and state legislatures alike is the requirement that voting in committees and on the floor must take place in person. While the House Speaker and Senate Majority Leader have the emergency power to convene Congress in an alternate location, a decision available to some but not all state legislatures, legislators are not permitted to deliberate and vote remotely, i.e., through electronic means like video-conferencing.

The nature of the coronavirus makes in-person meetings dangerous to legislators and staff, and as its grip tightens, it will become difficult if not impossible for members to travel to their respective capitol buildings. Accordingly, the only way for legislatures to legislate will be through remote deliberations and voting, and only if they change their rules in advance to make this permissible.

There are reasonable concerns about the nature of electronic voting in the context of primary and general elections, but the same concerns do not hold true for legislatures. The use of basic teleconference software that is widely and commercially available, like Zoom, makes it possible to see and hear each member that is participating, to record the proceedings, and to publish the video online. Accordingly, the use of roll call voting makes it possible for other members of the chamber, the press, and the public to hear the matter that is being deliberated upon and to see each respective member as they vote yea or nay. Should there be an error in the recorded vote, it makes correction possible as well.

We would not endorse remote deliberations in normal circumstances. However, given the nature of the emergency, it is far preferable for legislatures to be able to deliberate, vote, and hold government to account in a remote proceeding than for the legislatures to shut down entirely.

Demand Progress calls upon the U.S. House and Senate to convene immediately to allow for an emergency, temporary suspension of the provisions of their rules that prohibit remote deliberations, and urges all state legislative bodies to examine relevant rules, statutes, and constitutional provisions and take all steps possible to enable legislatures to meet and vote through online means should the circumstance arise where it becomes necessary.

Such efforts can, and must, be accomplished while protecting government transparency and the integrity of relevant proceedings and votes. It is inaction that could undermine the legitimacy, if not the very existence, of our government: Governance systems could collapse, critical needs could go unmet, and the President and governors could feel pressure to, or simply seek to, expand sweeping emergency powers even as no legislative oversight function operates. Or they could lose the necessary prod of legislatures to act and the authority by which to do so and thereby cause many needless deaths and worse.

"The failure of legislatures to prepare for coronavirus is preparation for our legislatures to fail," said Daniel Schuman, policy director, Demand Progress. "The U.S. House and Senate and the 99 state houses must ensure that they can continue in the face of the deadly coronavirus, and that includes the ability to hold remote votes and deliberations so they can continue to pass life-saving legislation and oversee executive efforts to fight this scourge."

"As lawmakers fall sick, legislative sessions across the country are being cut short out of legitimate fear of the pandemic," said David Segal, executive director, Demand Progress, and a former Rhode Island state representative. "This crisis will only worsen: It's naive to assume that it will be possible to reconvene in a few weeks, so legislatures must make necessary changes to procedures now. If they do not then governments will be thrown into chaos and we can expect to witness the spectacle of lawmakers voting in hazmat suits over coming months as they struggle with budgets, election laws, and other critical concerns."