The House and Senate rules require members to assemble in person to vote. Senate Rule XXVI, stipulates that senators may vote remotely, or by proxy, in committee proceedings, but only if a sufficient number of their colleagues are physically present to vote on their behalf. Notably, the rule does not permit every senator on a committee to conduct the panel’s business remotely. In the House, Rule XI goes even further. It prohibits all proxy voting in committee proceedings. Majorities in the House and Senate could, admittedly, alter these rules using their authority under the Constitution. But, ironically, they must be physically present to do so.
There are limits to what members can do by changing the rules. For example, the Supreme Court ruled in United States v. Ballin that the House and Senate could not approve rules that “ignore constitutional restraints.” While members may permit proxy voting in committees in limited circumstances, they cannot change the rules to allow virtual deliberation and remote voting on the House and Senate floors. This is because the Constitution requires that a majority of each chambers’ members be present to do business.
Several provisions in the Constitution suggest that a virtual presence is insufficient. For example, the Constitution stipulates that Congress must assemble at least once a year. And it bars the House and Senate from meeting in a different location from that at which they sit presently. While the Congress has met in various places in its history, including Philadelphia and New York City, its members had to first physically congregate in the same place before they could approve meeting in a different location. The Constitution assumes that members must travel to the same location and protects them from arrest “during their Attendance at the Session of their respective Houses, and in going to and returning from the same.”
