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Should Congress go virtual?

231 years of laws and traditions, and the amount of power at stake, make the design of an online platform for Congress a difficult one.

This article is for informational purposes to raise awareness of the issue, but Hewlett Packard Enterprise is not taking a position regarding whether or not remote voting should be approved at this time.

There are many reasons to work from home, and so the tech industry developed products and services to allow many workers to do their jobs out of the office. It doesn't work for everyone, of course—a plumber, a welder, and a firefighter can't work from home. But a writer, an accountant, a member of a legislative body, and others should be able to do their work using computers over the Internet.

So, if most everyone else is working from home, why can't Congress? The simple answer is that the rules require members to be physically present to vote on bills, both in the House chamber and in committees. Attempts to change the rules appear to have failed in the near term. Still, in the longer term, perhaps when the crisis has passed, Congress may see the advantages of allowing members to work from a remote location, using some variation of the remote tools most of us are using now.

The New York State Senate and Assembly went the other way, adopting resolutions allowing voting through remote electronic means, as defined by the president of the Senate and speaker of the Assembly, for the duration of the state of emergency. Other states are conducting virtual sessions or, in one case (Virginia), convening outdoors so that members can socially distance more effectively.

While the states experiment, it seems that an electronic solution won't be available for Congress during this crisis. It might be available and in place for the next crisis, but it's not worth doing as a temporary measure.

The issues discussed in this article generally apply to all other legislative bodies as well, from state legislatures down to township committees. We will focus on the U.S. Congress because it is the most familiar such body and the one most in the news.

The remote access challenge for the U.S. Congress, and probably for many other bodies, can be usefully divided into two parts: the voting/quorum problem and the everything else problem.

The voting/quorum problem

Whatever else it does, Congress cannot get anything done unless it can vote on legislation. It is also required to maintain a quorum.

Article I of the U.S. Constitution, which defines Congress and enumerates its powers, has some language that is at the heart of the problem:

"… a Majority of each [House] 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."

A quorum, when there are no vacancies in the House of Representatives, is 218. Many members of Congress do not wish to be present at the Capitol, crowded in the same room with their colleagues, at this point. Thus, many have called for some way to allow members to vote while not in the chamber. There is no precedent for members voting from anywhere other than where Congress is convened. But there is historical precedent for the U.S. Congress to change the rules for determining a quorum (see Hinds' Precedents, §§ 2895-2905).

The House of Representatives proved itself able, but just barely, to pass legislation while practicing social distancing in the session, which ended April 24. A proposal was made to allow proxy voting, under which one member could designate another member to vote for them. But House Speaker Nancy Pelosi withdrew it when it was clear it could not achieve bipartisan support.

In the past, the need for legislators to be in the chamber went without saying. Now, it comes across as antiquated and inflexible. But the seat of government is not just a bunch of office buildings; it is a place where people have met for more than 200 years to argue, to negotiate, and, as the First Amendment puts it, "to petition the Government for a redress of grievances."

 

A government where all this happens via a computer screen is very different from the one where legislators meet in person. You can forgive congressional leaders and other traditionalists for resisting or at least slowing the rush to such a radical change in how the work of government is done.

Not everyone in Congress is objecting. On March 22, New York state Congresswoman Elise Stefanik tweeted, "Congress needs remote voting. Period. Full stop." She says it's something she's been pushing behind the scenes for some time.

In a New York Times op-ed published April 28, Senators Rob Portman, Dick Durbin, and Jason Matheny proposed online voting that respects three security principles: 1) Senators must authenticate their identity before casting a remote vote; 2) a senator's vote must be verified after the vote, to prove that their decision was actually theirs; and 3) everything must be encrypted. There are many tried-and-true systems that meet all these requirements, including email using digital signatures and Transport Layer Security (TLS) as a transport.

The members of Congress who have made these proposals haven't gotten very specific about implementation. The technical aspects of how to implement remote voting don't sound all that complicated to technologists, but even beyond the security measures, there are a couple of centuries of abstruse rules about voting in Congress that will have to be pushed aside for it to work. For a simple example, there probably can't be a voice vote electronically. Is that a good thing? That's up to Congress to decide.

Remote committees, markup, negotiations, and all that

Congress does a lot more than vote as a whole in the chamber. Whether it's a good idea or not, it's possible for all of these tasks to be moved to an online presence using current, proven technology. Some are calling for just such action.

On April 21, House Majority Leader Steny Hoyer sent a letter to the chairs of the House Committees on House Administration and Rules arguing for full remote capabilities, not just for voting but for all stages of legislating, and specifically including "markup." Most of the work of Congress is done in committees, which have their own rules. Will they all be required to assume standard rules issued for remote congressional operation?

Markup is a process in committees by which amendments to bills are proposed, debated, and approved for submission to the full legislative body. In the U.S., state legislatures have similar processes. It is at this stage that most of the real legislative work is done, and historically, it is done face-to-face among legislators, their staff, and other interested parties. It would be hard to convince all involved that conducting these negotiations online would be sufficiently private and secure.

A great deal of the work of Congress is already done using email and other conventional Internet technologies. Going the next step, to where on-the-record business is performed online, is a big one, best done with a great deal of negotiation, planning, and testing. Lawmakers can't all just go on Zoom.

Security

The security challenges for such a network are serious but certainly can be met.

With respect to voting, Congress has a relatively small number of members, and so the strongest authentication, with multiple factors including a strong biometric component, could be used. The actual network for congressional operation should be, if not physically at least logically, separate from the public Internet. Most of what happens in congressional offices could probably be done on a less-restricted network.

Expertise in such network organization exists just across the Potomac at the Pentagon. The Department of Defense uses several different networks with different levels of sensitivity, including NIPRNet (Non-classified Internet Protocol Router Network) for unclassified information; SIPRNet (Secret Internet Protocol Router Network) for information classified secret; and JWICS (pronounced "jay-wix," Joint Worldwide Intelligence Communications System) for top secret and other highly classified information.

Not just a disaster plan

There are reasons to allow Congress to operate remotely beyond coping with bizarre and rare situations, such as the one the country faces now. If members of Congress are going to go ahead and devise such a plan, it needs to be with an eye toward using it. And there are many advantages to a Congress where members can participate from outside the chamber.

The fact that legislators could be back in their districts, near the people they represent, will make them more accessible to constituents. It will keep them more closely in touch with the issues directly affecting the people they represent.

It's not just about times of crisis, or at least not national ones. Often, representatives go back to their districts because of local problems, or because a family member is sick, or because a child is getting married—in other words, for all kinds of legitimate reasons. At these times, their constituents are unrepresented. Allowing legislators to do at least some of their work outside the chamber would solve these problems.

Another well-known problem with being a member of Congress is the considerable expense of it. You need to have a residence back in your state/district and one in or near Washington. A virtual Congress removes that problem and makes it possible for members to retain their personal life.

A difficult proposition

It's unlikely that even the voting/quorum problem is solvable in the near term, but it may be the sort of plan worth making for emergencies in the future. Making it a longer term prospect may also make it less threatening to many members.

But providing facilities for Congress to fully operate from remote locations is a difficult proposition. It will be expensive and complicated, and it's not worth doing if Congress will just put it in the closet when the crisis is over.

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This article/content was written by the individual writer identified and does not necessarily reflect the view of Hewlett Packard Enterprise Company.