Senate Minority Leader Mitch McConnell (R-KY) argued in a lawsuit on Friday that despite his “fierce opposition” to House Speaker Nancy Pelosi (D-CA) allowing proxy voting in 2020, he believes the courts should not interfere with Congress’s voting practices.
McConnell made the argument in an amicus brief drafted by former Attorney General Bill Barr and other lawyers, warning that a Texas federal court’s decision to declare some legislation that passed with proxy votes unenforceable was out of line. The case is now before the U.S. Court of Appeals for the Fifth Circuit.
The court “[assigned] to itself the duty to define terms that the Framers never intended the courts to interpret,” McConnell said.
Pelosi made proxy voting an option beginning in May 2020, citing COVID-19. The practice allowed House lawmakers to vote remotely instead of on Capitol Hill.
However, Pelosi allowed the option to stretch through the end of her term as speaker in December 2023. By that point, lawmakers from both parties were openly abusing the privilege, though a study at the time found Democrats used proxy voting far more.
Proxy voting became a source of controversy as House lawmakers routinely skipped out on voting in-person. In a form they were required to fill out each time they voted remotely, they would cite the “ongoing health emergency."
Scrutiny over the practice reached a peak right before the holidays in 2022 when more than half of House lawmakers voted remotely on a $1.7 trillion omnibus spending bill.
The State of Texas, led by Attorney General Ken Paxton , sued the Department of Justice and the Department of Homeland Security, arguing the agencies could not use money they received from the legislation because a quorum had not been present when the vote passed the House.
McConnell sided with the DOJ and DHS, arguing to the appellate court in his amicus brief that the lower court's ruling "threatens Congress’s ability to conduct business on a day-to-day basis."
"An ironclad physical presence requirement removes necessary flexibility during national emergencies," McConnell said. "It risks invalidating longstanding Senate procedures, particularly the ubiquitous practices of unanimous consent and voice votes. Finally, it imperils a significant portion of already-enacted legislation."
Still, McConnell emphasized that he disagreed with how the House used proxy voting under Pelosi's leadership and noted that he "kept the Senate open" when faced with the same COVID-19 concerns when he was majority leader.
Former House Speaker Kevin McCarthy, who was House minority leader in December 2023, blasted the overwhelming number of Congress members who were absent from the Hill the day of the omnibus vote, saying their work-from-home vote on the massive spending package would “forever stain this Congress.” Other Republicans also raged about the lack of quorum, which they said required their colleagues to be physically present.
Then-Rules Committee ranking member Rep. Tom Cole (R-OK) observed that “magically proxy voting doubles on Fridays.” Former Wisconsin Republican Rep. Mike Gallagher said that "the over, overwhelming majority of members proxy voting are lying" on their proxy voting forms.
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Less than halfway through 2022, former Rep. Kai Kahele, a Democrat who represented Hawaii, was found by Hawaii Public Radio to have voted by proxy on all but five of 125 votes that had been cast in the House.
The lawsuit is still playing out in the appellate court, and the Texas attorney general's office is expected to submit its arguments to the court by mid-September.
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