Work from home is a bad option for US Congress

COVID-19 is spreading through the White House and Washington, D.C. Meanwhile, major congressional votes are coming on the Supreme Court nomination of Judge Amy Coney Barrett in the Senate and maybe a national bailout package in the House of Representatives. So it's time to revisit an issue that came up early in the pandemic but was never properly resolved: Could Congress vote remotely? And if so, would be a good idea?

It's never been tried. The Constitution gives Congress power over its own rules, which would seem to let the two houses adopt remote voting if they wanted. Traditionally, the courts defer to Congress' judgment when Congress is exercising a power that is textually allocated to it by the Constitution.

Yet the Constitution does specify that "a majority of each (house) shall constitute a quorum to do business." This so-called quorum clause could be interpreted to require most senators and representatives to be present in Washington, D.C. — and maybe even in or near the Capitol — for Congress to operate. If that's how the Supreme Court sees it, the quorum clause could block Congress from dispersing home and operating on a fully remote basis.

Back in May, both the Senate and House saw proposals for some form of remote voting. Neither has been adopted — so far. Opposition from Senate Majority Leader Mitch McConnell could potentially be explained on the ground that McConnell, like Trump, wanted to minimize the significance of COVID-19. But House Speaker Nancy Pelosi was also ambivalent about it, first expressing concern and then saying it was an option.

The reality is that remote voting would almost certainly weaken the power of leadership in either house. Coordination is much easier if people are all in the same place, and centralized coordination is essential to party discipline. And party discipline is the wellspring from which the power of leadership flows.

There are some stopgap measures that could be used if just a few members of the House or Senate are sick and can't come to the floor. One is the old practice of pairing, which used to be common in the Senate. The idea is that the senator planning to vote one way but who could not be present would find a senator voting the other way who would agree to vote "present" rather than casting an opposing vote. The result is that the total votes on each side remains stable.

Pairing relies on mutual respect, friendship and trust, which are in decreasingly short supply in Washington. The practice has become rare.

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However, during Justice Brett Kavanaugh's confirmation vote, Sen. Lisa Murkowski, an Alaska Republican, paired what she claimed would have been a "no" vote with Republican Sen. Steve Daines of Montana, who had to be away to attend his daughter's wedding. This isn't a perfect example, because the two come from the same party. What's more, it allowed Murkowski to dodge a controversial vote by voting "present."

Nevertheless, the instance shows that pairing is still possible under the right circumstances. If individual senators were unable to vote on Barrett's nomination because of COVID-19, and they could find pairs on the other side (a big if, to be sure), then more fundamental reform could be avoided.

As for committee work, it arguably isn't formally covered by the Constitution. So a committee hearing or vote could more easily take place remotely, provided the House or Senate adopted a rule allowing remote committee meetings.

The major question remains whether, if the pandemic spread more broadly, or if became more virulent, it would be wise for Congress to try and adopt rules for systematic remote voting.

On the surface, this may seem like a no-brainer. The business of Congress is the people's business. It shouldn't come to a halt because of this disease. A Congress that cannot meet would be a weakened Congress. Weakening Congress only serves to enhance the already tremendous power of the presidency.

Yet there are reasons to be cautious about allowing Congress to work from home. No matter how limited an exception Congress might create for pandemic circumstances, it would be extremely tempting for lawmakers to institutionalize working from their own districts. It's always an advantage for a member of Congress to be near their voters. Members of Congress spend a lot of time traveling back and forth to their constituencies for exactly this reason. It's therefore possible to imagine that, if remote voting were allowed, members of Congress would begin to reduce the time they spend in Washington, D.C.

And that would be bad. A functioning legislative body depends on compromise. Compromise, in turn, is based not only on cold, hard calculations but on human interaction and the formation of interpersonal bonds. It's certainly true that such trans-partisan connections and compromises are getting more and more usual in our polarized era. But that's a reason to think we need more interaction between members of the two parties, not less.

If left at home in their own partisan bunkers, members of Congress would be even more tempted to serve purely local and hyperpartisan interests than they already are. The ideal of the common national interest may sound naive when Americans are so deeply divided over so many issues. But without the aspirational ideal, it would be almost impossible to get anything done in Congress. And that result would be even worse for democracy than the situation we have now.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."