Tom Cole

Mr. COLE

Mr. COLE. Madam Speaker, I include in the Record two articles from distinguished constitutional scholars at the Congressional Institute that do raise questions about the constitutionality of the proposed rules changes. [From congressionalinstitute.org, May 13, 2020] The Quorum, the Constitutional Convention, and the Coronavirus: Some Questions The coronavirus pandemic has led some to call on Congress to continue its operations while Members are dispersed throughout the country. H. Res. 965 authorizes the Speaker to allow Members to vote by proxy when the Sergeant-at-Arms notifies her that there is a public health emergency due to the coronavirus. Conceivably, this means that a only minority of the Members will be present in the Chamber when conducting business. On the face of it, that would violate Article I, Section 5, of the Constitution, which requires a majority of Members to do business. To get insulate the votes against constitutional challenges, H. Res. 965 stipulates that proxy votes would count towards a quorum. This, however, would still seem to violate the intent of the Framers of the U.S. Constitution. What does the Constitution say about quorums in Congress? Article I, Section 5, of the U.S. Constitution sets forth a requirement that a majority of the Members of either House of Congress must be present for it to conduct business: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. what did the delegates to the constitutional convention say about the quorum? The current form of the quorum clause was the subject of debate at the Constitutional Convention of 1787. The Committee of Detail was a group of delegates entrusted with devising a draft constitution that reflected the delegates' agreements. On August 6, 1787, it reported a draft that said ``a majority of members'' would ``constitute a quorum to do business,'' though ``a smaller number may adjourn from day to day.'' Unlike the Constitution that was ratified, the Committee of Detail did not include a provision allowing for the ``smaller Number'' to ``compel the Attendance of absent Members'' or penalize those who were missing. On August 10, the delegates debated the Committee of Detail's quorum requirement. Two important concerns emerged. If the quorum were too high, it could prevent the majority from being able to transact business. If it were too low--or could be manipulated to be lowered--it would allow a small group of people to impose their will upon others. According to James Madison's Notes of Debates in the Federal Convention of 1787, some delegates advocated granting the Legislature complete or partial discretion in setting a quorum: John Francis Mercer of Maryland proposed following the example of Great Britain, where Parliament could determine its own quorum. There, he said, ``the requisite number is small & no inconveniency has been experienced.'' Gouverneur Morris of New York proposed setting the quorum at 33 Representatives and 14 Senators. This would initially be a majority for each Chamber, though it would be less than a majority as Members were added. Congress, he thought, should have a relatively low quorum since it would prevent a small group of people from withholding a quorum, which would be a particular risk when ``a particular part of the Continent may be in need of immediate aid.'' Rufus King of Massachusetts proposed initially setting the quorum at 33 Representatives and 14 Senators, but allowing Congress to increase the numbers as it saw fit. As the number of Members increased, a majority quorum would be ``cumbersome.'' Other delegates feared that a low quorum would allow small groups to make laws for the rest of the country: Elbridge Gerry, also of Massachusetts, proposed that for the House the quorum should be no less than 33 and no more than 50, with the Legislature free to select a number within these bounds. A quorum of 33 in the House, Gerry said, would allow as few as two states to make laws for the rest. George Mason of Virginia said the majority quorum provision was a ``valuable & necessary part of the plan.'' In fact, he was concerned that a mere majority would allow people to object to the plan as a whole. He reasoned that with a lower quorum, states closer to the seat of government could make laws favorable to themselves in the absence of more distant states. ``If the Legislature should be able to reduce the number at all, it might reduce it as low as it pleased & the U. States might be governed by a Juncto,'' he said. The delegates considered and overwhelmingly rejected King's motion that the Constitution set a minimum of 33 Representatives and 14 Senators while the number to be increased by law. Only the Massachusetts and Delaware delegations favored King's plan. James Madison and Edmund Randolph, both of Virginia, moved to amend the draft by inserting a provision allowing for each House to summon and penalize absent Members. All the state delegations except for Pennsylvania supported this amendment. In fact, the Pennsylvania delegation was divided on the question. Then the delegations unanimously approved the majority quorum provision, as amended, and it is this version that made its way into the U.S. Constitution. would proxy votes satisfy the constitutional requirement for a quorum? It is clear that the delegates considered the possibility of quorums of consisting of a minority of the Members and rejected this option in favor of a majority quorum. That is beyond dispute. What is disputed is whether proxy votes counting towards a quorum would pass constitutional muster. Even though the Constitution allows each House to determine its rules of procedure (Article I, section 5), proxy votes counting towards quorum seem to run contrary to the intent of the delegates at the Constitutional Convention. Proxy voting was certainly possible in the time of the Constitutional Convention. For instance, absentee or proxy voting was not unknown in the colonies. Yet, apparently, the suggestion was not raised at the Convention. One should be careful not to infer too much from silence, but one possibility is that the delegates did not consider that the Congress would ever ``meet'' by proxy. In fact, proxy voting would have settled some of the problems delegates on both sides of the issues raised. If proxy voting were permissible, then the distant states could have more easily defended themselves by stationing a member at the capital, armed with proxies of their absent colleagues. By the same token, those who feared that a small number could obstruct business by collecting proxy votes from others who shared their concerns. No one, apparently, raised proxy voting as a solution for issues with the quorum; rather, both sides seemingly operated under the assumption that a physical presence was necessary for participation in Congress. If proxy votes were to count towards a quorum, the Randolph-Madison amendment would be a redundancy. Since the amendment allows each House to ``compel the Attendance of absent Members,'' it is predicated on the notion that a physical presence is necessary for Congress to conduct its business. If a physical presence were not necessary, it would be unnecessary to ``compel the Attendance of absent Members.'' Nor would there be any reason to penalize them for failing to show. However, the states nearly unanimously voted to include this provision in the Constitution, highlighting the importance of a physical presence at the Constitutional Convention. The Framers' concern over the dangers of small numbers of Members of Congress transacting business in the absence of the majority of their colleagues is as valid today as it was in 1787. It is true that the coronavirus pandemic presents great difficulties to Congress, and both Chambers have shown that they can still conduct business without violating constitutional safeguards. As much as Congress needs to look to the here-and-now, it also must look to the future. In the long-run, the inperson presence of Members of Congress is absolutely vital to the strength of the Legislature, and no amount of proxy votes may substitute for it.

Mr. COLE. Madam Speaker, I urge a ``no'' vote on the previous question, and I reserve the balance of my time.

Mr. COLE. Madam Speaker, I yield 4 minutes to the gentleman from Illinois (Mr. Rodney Davis), my good friend and the distinguished ranking member of the House Administration Committee.

Mr. COLE. Madam Speaker, I thank the gentleman from Massachusetts (Mr. McGovern), my good friend, for yielding me the customary 30 minutes, and I yield myself such time as I may consume. Madam Speaker, we are here today to consider a rule that provides for consideration of two items. Today's rule establishes a process for consideration of H.R. 6800, what the majority is calling the HEROES Act, but what is better described as an 1800-page, $3 trillion Democratic list of policy priorities. The rule proposes the most consequential change in the rules of the House of Representatives during my time in Congress. The change to the House rules covers two key areas: First, it would impose, for the first time in our history as an institution, a system of proxy voting on the floor of the House of Representatives. That change also allows for the adoption of totally remote voting upon the certification of a single Member of Congress, Chairman Lofgren, of a technology for that use. Second, it would also allow committees to operate remotely and approve legislation remotely. Madam Speaker, I said quite a bit about these rules changes at our committee meeting yesterday, and I continue to stand by those comments. I believe these changes will fundamentally alter the nature of the institution, and not for the better. We must never forget that the House is part of a Congress--literally, a physical meeting between delegates. When we move to acting remotely, we lose that fundamental aspect of our character. We lose the opportunity to meet together, discuss ideas, discuss legislation, and move forward together on bills that shape our Nation. And we do so in a way that does not, in my view, pass constitutional muster. Madam Speaker, I urge my colleagues to reject these rules changes today and return to the drawing board so that we can act together in a bipartisan manner to ensure that Congress can continue to operate during this crisis. Not to be outdone with attempting to change the fundamental nature of the House of Representatives, in today's rule, the majority is proposing an enormous bill that will fundamentally change the nature of our country. H.R. 6800, which we saw for the first time on Tuesday afternoon, is 1800 pages long. While we do not yet have a CBO score, the majority is purporting that the bill includes spending in excess of $3 trillion. And to make matters worse, the bill was assembled with only Democratic input. It is not a stretch to say that this bill is nothing more than Democratic policy agenda masquerading as a response to the coronavirus crisis. Madam Speaker, it goes without saying that this bill is going nowhere, and it is going nowhere fast. The Senate will not consider this bill. The President will not sign it into law. Why we are wasting what precious little time that the Speaker is allowing us to be assembled here at the Capitol on partisan policy priorities of one party instead of working together in a bipartisan manner is beyond my understanding. What is even more surprising is how quickly the majority wants to move on a bill of this magnitude. Just 6 weeks ago, Congress passed, and the President signed into law, the CARES Act, a bill that provided over $2.3 billion for coronavirus relief efforts. And just 2 weeks ago, we passed another bipartisan bill that provided an additional $500 billion in relief. Some of the money from these two bills hasn't even been spent yet. But now, Democrats are falling all over themselves to spend another $3 trillion on their own priorities. It is simply astonishing. Let me be clear of one thing, Madam Speaker: Republicans in the House, in the Senate, and in the White House stand ready to work with Democrats to pass another bipartisan coronavirus relief bill at the appropriate time and after the normal give-and-take of serious negotiation. That bill, when it comes, will be very different in scope and detail from what we are considering here today. Consider just a few of the provisions in H.R. 6800: $3 trillion in spending; Nearly $10,000 for every American; A controversial bailout of multiemployer pension plans; Forgiving $10,000 of student loan debt per person; Federalizing the national election system; Changing credit scoring models and banning debt collection; Requiring nationwide vote by mail and same-day registration. I could go on and on and on, but I think everyone gets the picture. So much of what is in this bill simply has nothing at all to do with the current crisis. It is more like a liberal Christmas card wish list. Madam Speaker, it would make more sense, in my view, to just send it straight to Santa Clause than to send it to the United States Senate. It would have a better chance of becoming law that way. Madam Speaker, this doesn't make sense. If the majority actually wants to help Americans, there are plenty of bipartisan ways to do so. We could be focusing our efforts on legislation to combat the pandemic, to get people back to work, and to restore the economy, but instead we have been handed 1800 pages and over $3 trillion in Democratic priorities that they would be pursuing regardless of the pandemic. We can do better than that; and, frankly, Madam Speaker, recently, we have done better than that. I remind my friends that we actually considered and passed, on a bipartisan basis, four relief bills with almost no partisan dissent. Those bills were negotiated before they ever arrived on the floor of this body. We should return to that method and that system. It yielded real results for the American people. What we have got today will not. Madam Speaker, I urge opposition to the rule, and I reserve the balance of my time.

Mr. COLE. Madam Speaker, I yield 3 minutes to the gentlewoman from Arizona (Mrs. Lesko), my good friend and member of both the Rules Committee and the Judiciary Committee.

Mr. COLE. Madam Speaker, I reserve the balance of my time.

Mr. COLE

Mr. COLE. Mr. Speaker, I yield the gentleman from Illinois an additional 30 seconds.

Mr. COLE. Mr. Speaker, I reserve the balance of my time.

Mr. COLE. Mr. Speaker, I reserve the balance of my time.

Mr. COLE. Mr. Speaker, I yield an additional 15 seconds to the gentleman.

Mr. COLE. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I have a great deal of respect for my very good friend from California, but we live in a system right now of divided government. We have a Democratic House that certainly has a voice in anything that is done. We have a Republican Senate, and we have a Republican President. We have proven that we can work together. We did for four straight bills, extraordinary amount of time, largest single bill in American history. So it is not as if the two sides don't know how to do this. For whatever reasons, my friends chose to decide to move alone. Well, they can certainly do that through this Chamber, and that is their right to do. I respect that if that is what they want to do. But if they think moving alone without Republicans will get them anywhere in the United States Senate or at the other end of Pennsylvania Avenue, I would just suggest that is probably not the case. So again, we know how to do this. We have proven we can do it; an extraordinary job by all concerned on both sides of the House to get those four bills done. Nobody works better, by the way, in a bipartisan sense than my good friend, the chairwoman of the Appropriations Committee, and nobody works with her better than my good friend, the ranking member of the Appropriations Committee. I would suggest the rest of us probably should clear out for a while and let those two work together. I bet you we could actually get a bill to pass. Mr. Speaker, I reserve the balance of my time.

Mr. COLE. Mr. Speaker, I yield 2 minutes to the gentleman from Tennessee (Mr. Fleischmann), my very good friend and the ranking member on the Homeland Security Committee of the Appropriations Committee.

Mr. COLE. Mr. Speaker, I yield an additional 30 seconds to the gentleman from Arkansas.

Mr. COLE. Mr. Speaker, I yield 2 minutes to the gentleman from Florida (Mr. Rutherford), my very good friend, an esteemed member of the Appropriations Committee, and today of all days, a career law enforcement officer as well. Mr. Speaker, we honor him for his service and his colleagues for their service to all of us.

Mr. COLE. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from Pennsylvania (Mr. Perry), a distinguished veteran in service to this country.

Mr. COLE. Mr. Speaker, I yield 1 minute to the gentleman from Georgia (Mr. Hice), a member of the Natural Resources and Oversight and Reform Committees.

Mr. COLE. Mr. Speaker, I yield 4 minutes to the gentleman from Texas (Mr. Brady), my very good friend, the distinguished past chairman of the Ways and Means Committee and current ranking member.

Mr. COLE. Mr. Speaker, I yield 2 minutes to the distinguished gentleman from Illinois (Mr. Rodney Davis), my very good friend, and the Republican ranking member on the House Administration Committee.

Mr. COLE. Mr. Speaker, I continue to reserve the balance of my time.

Mr. COLE. Mr. Speaker, I am prepared to close, and I yield myself the balance of my time. Mr. Speaker, I begin by thanking my good friend, the distinguished chairwoman of the Committee on Appropriations, for the debate, and I thank her for her very good work. We have in front of us a product that, obviously, on this side of the aisle, we don't agree with. We do not believe we were included in the process. Frankly, this was unveiled without any bipartisan discussions. The Senate has already indicated it is not going to be taken up over there. The President has already indicated that he has a veto threat. There are certainly elements in this bill that I can support. I want to commend my friend. Some of their work on Tribal issues was very, very impressive. There are other elements there; there are things we can work on together in this bill. But my friends understand, as I think the fundamental reality, the Democratic House, they have every right to pass anything they want to pass. And there is a lot in this bill I disagree with, but I respect their right to move it across the floor. But you have to recognize the political reality as well, Mr. Speaker. This bill is not going to be accepted in the United States Senate. This bill is not going to be signed by the President of the United States. I would suggest, rather than pointing fingers at one another and disagreeing--and we do that on both sides of the aisle on occasion-- that we do what we did recently. We worked together extremely well. My friend, the chairwoman, had a lot to do with that. We provided unprecedented relief to the American people in an extraordinarily short period of time and did it with almost no partisan dissent on this floor. Sadly, that will not be what we see today. But because we don't do it today doesn't mean we can't do it or begin to do it tomorrow or later. But it will not succeed this way at the end of the day. I have been exactly where my friends are sitting right now. I have been in this House when we had a Republican majority in the House and a Democratic Senate and a Democratic President, and we passed a lot of things that weren't acceptable to that Democratic Senate and would never have been signed by that Democratic President. Sometimes you want to do that to make a point. This is not the time to make a point, Mr. Speaker. We are in the middle of a crisis. We need to work together. We have shown we can work together. We should actually take a great deal of pride in that, and we should go back and cooperate and move forward that way. This vehicle will not pass. There are elements in it, working with Republicans, that could pass. There are lots of other things in here that aren't going to. And the reality is we don't have a lot of time. I actually agree with my friends in the sense that we are in a crisis situation. It is important that the country see us act, but it is important that we act together. We have done it in a matter of weeks. We can do it again. Mr. Speaker, I will just end on a hopeful note. We can have this exercise today. I do look on it as a partisan exercise. I do look on it as a messaging exercise. I don't look on it as a serious effort to legislate. Serious efforts to legislate in divided government require consultation and inclusion with the other party. In this Chamber, that means--sadly for my friends in the majority-- you have to deal with the minority, because your ability to pass here, if anything rolls out of this Chamber with Democrat-only votes, essentially, is just simply not going to have any prospects in the United States Senate. It is never going to be signed by a Republican President. Mr. Speaker, I commend my friend for all her hard work. I look forward to working with her--as we have so often done in the past--in the weeks ahead, and I hope we can come together, pass additional relief and additional policy changes that help us through this time that has come upon us through no one's fault in this Chamber. Neither party wished for this to happen. Neither party had anything to do with it happening. And, frankly, when they are at their best, both parties work together to try and confront this crisis. Mr. Speaker, again, we have done that in recent weeks. I don't think we have forgotten how to do it. So I hope we put this chapter behind us. I urge rejection of this bill, but I also welcome my friends to the bargaining table and look forward to working with them so that we can come up with a product that not only meets the needs of the American people, but a product that also shows the American people that we can work together and put their good above all else. Mr. Speaker, I yield back the balance of my time.

Mr. COLE. Mr. Speaker, I yield an additional 15 seconds to the gentleman.

Mr. COLE. Mr. Speaker, I have additional speakers on the way. They have not yet arrived, so I am going to reserve the balance of my time.

Mr. COLE

Mr. COLE. Mr. Speaker, on that I demand the yeas and nays.

Mr. COLE. Mr. Speaker, I yield 1 minute to the gentleman from Minnesota (Mr. Hagedorn), my good friend and a distinguished Member of this body.

Mr. COLE. Mr. Speaker, I yield 1 minute to the gentleman from Tennessee (Mr. John W. Rose).