House Minority Leader Kevin McCarthy, along with 20 other Republicans and four constituents, challenged the constitutionality of proxy voting in the chamber on Tuesday with a lawsuit aimed at Speaker Nancy Pelosi.
The plaintiffs claim that the transition to proxy voting — spurred by the coronavirus pandemic — dilutes members’ votes, and by extension, their constituents’ collective representation.
House GOP leadership aides explained the rationale in a background call with reporters Tuesday afternoon.
“Each individual member of Congress has had their vote unconstitutionally diluted by this proxy vote and their constituents have had their representation in Congress diluted by this unconstitutional House Rule,” a GOP leadership aide said.
There was some confusion initially about where the lawsuit would be filed. Aides had said it would be filed in the “D.C. Circuit,” ostensibly referring to the United States Court of Appeals for the District of Columbia Circuit, but subsequent messages referred to the D.C. District Court — two different entities. It was later filed in the D.C. District Court.
McCarthy is the lead plaintiff, joined by Republican leadership, including Minority Whip Steve Scalise of Louisiana and GOP Conference Chairwoman Liz Cheney of Wyoming.
“Voting by proxy — giving your vote, as a member of Congress, to another person — is just simply not allowed and not envisioned in the Constitution. It’s a non-delegable power and that proxy vote is prohibited,” a Republican aide said on the call.
Pelosi reiterated her reasoning to implement proxy voting in a statement after the lawsuit was announced. Members are limited to cast a proxy vote for up to 10 members. So far, 58 Democrats have sent a letter to the House Clerk announcing they plan to vote by proxy Wednesday. They authorize another member to vote on their behalf. No Republicans have signaled any intent to do so.
“The House made its will clear two weeks ago when it voted to implement remote voting by proxy and other necessary measures to ensure that Congress can continue to protect lives and livelihoods,” the California Democrat said. “The House’s position that remote voting by proxy during a pandemic is fully consistent with the Constitution is supported by expert legal analyses. Further, the Supreme Court made clear over a century ago that the Constitution empowers each chamber of Congress to set its own procedural rules.”
Even if Republican members are quarantining, GOP leadership is urging members to refrain from proxy voting.
“We don’t believe our members should use this,” an aide said.
The House is set to convene Wednesday morning and cast votes on important legislation, including FISA reauthorization. If a measure is passed under proxy voting, GOP aides said it would call into question the legitimacy of the bill.
One Republican aide equated the lawsuit as being symbolic of a “baseball game being played under protest.”
Katherine-Tully McManus contributed to this report.