    [Senate Hearing 116-297]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 116-297

                         CONTINUITY OF SENATE OPERATIONS AND
                           REMOTE VOTING IN TIMES OF CRISIS

    =======================================================================

                                   ROUNDTABLE

                                   BEFORE THE

                    PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                                     OF THE

                                  COMMITTEE ON
                             HOMELAND SECURITY AND
                              GOVERNMENTAL AFFAIRS
                              UNITED STATES SENATE

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 SECOND SESSION

                                   ----------

                                 APRIL 30, 2020

                                   ----------

            Available via the World Wide Web: http://www.govinfo.gov

                           Printed for the use of the
            Committee on Homeland Security and Governmental Affairs

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                                  __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    40-791 PDF                  WASHINGTON : 2020

    --------------------------------------------------------------------------------------

            COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                        RON JOHNSON, Wisconsin, Chairman
    ROB PORTMAN, Ohio                    GARY C. PETERS, Michigan
    RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
    JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
    MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
    RICK SCOTT, Florida                  KYRSTEN SINEMA, Arizona
    MICHAEL B. ENZI, Wyoming             JACKY ROSEN, Nevada
    JOSH HAWLEY, Missouri

                    Gabrielle D'Adamo Singer, Staff Director
                   David M. Weinberg, Minority Staff Director
                         Laura W. Kilbride, Chief Clerk
                          Thomas Spino, Hearing Clerk

                    PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                           ROB PORTMAN, Ohio Chairman
    RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
    JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
    MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
    JOSH HAWLEY, Missouri                JACKY ROSEN, Nevada

                Andrew Dockham, Staff Director and Chief Counsel
                       Amanda Neely, Deputy Chief Counsel
                    John Kilvington, Minority Staff Director
                          Kate Kielceski, Chief Clerk

                                C O N T E N T S

                                     ------
    Opening statements:
                                                                       Page
        Senator Portman..............................................     1
        Senator Carper...............................................     3
        Senator Romney...............................................     5
        Senator Hawley...............................................     5
        Senator Lankford.............................................    24
    Prepared statements:
        Senator Portman..............................................    35
        Senator Carper...............................................    37

                                   WITNESSES
                            Thursday, April 30, 2020

    Martin B. Gold, Partner, Capitol Counsel, LLC....................     6
    Lorelei Kelly, Director of Congressional Modernization, Beeck
      Center for Social Impact and Innovation, Georgetown University.     8
    Joshua C. Huder, Ph.D., Senior Fellow, Government Affairs
      Institute, Georgetown University...............................    10

                         Alphabetical List of Witnesses

    Gold, Martin B.:
        Testimony....................................................     6
        Prepared statement...........................................    39
    Huder, Joshua C. Ph.D.:
        Testimony....................................................    10
        Prepared statement...........................................    55
    Kelly Lorelei:
        Testimony....................................................     8
        Prepared statement...........................................    50

                                    APPENDIX

    Staff Memorandum.................................................    61
    Statement submitted by Seth Barrett Tillman......................    90

                        ROUNDTABLE: CONTINUITY OF SENATE.
                OPERATIONS AND REMOTE VOTING IN TIMES OF CRISIS

                                  ----------

                            THURSDAY, APRIL 30, 2020

                                       U.S. Senate,
                  Permanent Subcommittee on Investigations,
                        of the Committee on Homeland Security
                                      and Governmental Affairs,
                                                        Washington, DC.
        The Subcommittee met by video conference, pursuant to
    notice, at 9:04 a.m., Hon. Rob Portman, Chairman of the
    Subcommittee, presiding.
        Present: Senators Portman, Lankford, Romney, Hawley, and
    Carper.

                OPENING STATEMENT OF CHAIRMAN PORTMAN\1\

        Chairman Portman. Good morning. This roundtable will now
    come to order.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Senator Portman appears in the
    Appendix on page 35.
    ---------------------------------------------------------------------------
        I hope everyone is staying safe and healthy during these
    unprecedented times. It is certainly an unusual time.
    Overnight, this coronavirus seems to have changed our basic way
    of life in so many ways. Businesses are shuttered and millions
    of Americans are teleworking for the first time; churches and
    schools are closed. Health care workers are working around the
    clock. In the last 5 weeks, based on the numbers I saw this
    morning, it looks like nearly 30 million Americans have filed
    for unemployment. Most believe we are already approaching the
    highest percentage of unemployment since the Great Depression.
        Now more than ever, Americans need to know that their
    leaders are working for them and that they have a voice as we
    work to navigate in this pandemic. In a world where it is no
    longer safe to be within 6 feet of each other, Congress has to
    learn how to adapt.
        This is not the first time we have needed to ensure the
    continuity of Congress, by the way. For example, with the
    nuclear threat during the Cold War, the U.S. Government
    actually constructed a large bunker for Congress should we be
    required to meet outside of Washington. However, this may be
    the first time in the modern era when it is not a physical
    meeting location at risk but, rather, elected officials
    themselves and others we would be in contact with.
        We are a Subcommittee of the Homeland Security and
    Governmental Affairs Committee (HSGAC), which has jurisdiction
    over congressional organization. It is appropriate that we look
    at this issue of how to govern during these sorts of times.
    From that perspective, and while we wait for guidance from the
    Rules Committee on how to conduct more formal hearings
    remotely, today's discussion is an attempt to move Congress
    forward in times of crisis when we cannot meet in person. It
    seems fitting that our topic for today should be remote
    proceedings in Congress, including remote voting. Today our
    gathering itself is really part of our case. This is, as I
    understand it, the first time we have been able to do this in
    the U.S. Congress, certainly in the Senate. We want to show
    that it is possible to have a hearing without physically being
    in a hearing room. We are told this is a first for the U.S.
    Senate.
        In my view, remote congressional proceedings should never
    be the norm. It should be limited to times of true nationwide
    emergencies and only when it is not feasible for Senators to be
    in the same place. Any authorization to proceed remotely,
    whether it is Committee meetings, debates, or votes, should be
    limited in duration, and any extension of such an order should
    require a vote by the entire Senate. Our goal should be to
    bring both our country and our Congress back to work in person
    as soon as it is safely possible. But there are times when that
    is not possible.
        These principles are outlined in the bipartisan remote
    voting resolution that I introduced with Senator Dick Durbin
    last month. Specifically, the resolution allows the Majority
    and Minority Leaders to jointly agree to put in place a
    temporary voting arrangement for remote voting in times of an
    extraordinary crisis. But after 30 days, Senators would have to
    vote to continue to allow that remote voting; otherwise, the
    temporary mandate would expire.
        Today our Subcommittee is releasing a report containing
    both a legal analysis and technical security recommendations
    for remote voting and remote governing.
        Legally, the Supreme Court has made it clear that the
    Constitution allows the U.S. Senate to make its own rules. The
    Court has a long history of giving deference to Congress in
    determining its processes and procedures when it comes to
    issues surrounding voting. Based on our legal analysis, we
    expect remote proceedings to enjoy the same deference. I also
    believe that the Founders would be supportive of the
    legislative branch being heard during emergencies.
        We need to address the technical issues, of course, that
    surround remote proceedings. In my view, Senators should be
    required to authenticate their identity and verify their vote
    through an encrypted platform for remote voting. There are
    several off-the-shelf solutions for that that the Senate could
    use to create a secure and reliable voting platform. We have
    worked with a lot of outside experts, and we will hear about
    some of that today. We do not need to reinvent the wheel.
        I urge people to review this report, which I believe puts
    to rest many of the concerns I have heard raised about
    temporarily authorizing the Senate to proceed remotely in times
    of crisis. We very much look forward to hearing from our
    witnesses today about these issues.
        The Senate would not be the first legislative body to work
    remotely. Several States have decided to continue legislative
    business in the past month, including allowing members to vote
    remotely. Across the Atlantic, the European Union (EU) has
    implemented a remote voting system for its legislative body,
    while the Parliament of the United Kingdom (UK) is beginning to
    experiment with holding virtual proceedings.
        While a lot is uncertain about when life will return to
    normal, one thing should be clear: Congress should be able to
    continue to represent the American people--to do its job--even
    in times of crisis.
        I want to thank Senator Carper for working with me on this
    event today but also on this broader issue of remote governing.
    I appreciate him working so closely together in a bipartisan
    way to make sure that Congress can continue to operate and
    provide needed support for all Americans.
        With that, I turn to Senator Carper for his opening
    remarks.

                 OPENING STATEMENT OF SENATOR CARPER\1\

        Senator Carper. Thanks, Mr. Chairman. I want to thank you
    for your leadership on this issue. This is an extremely
    important topic, as we know. I am pleased that we are able to
    have this discussion even as we continue to work together
    remotely.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Senator Carper appears in the
    Appendix on page 37.
    ---------------------------------------------------------------------------
        I wanted to come on and say I am sitting here in my
    pajamas. Actually, I am not, but this is the first time I have
    put on a tie in quite a while, and it was hard to find in my
    closet, but I finally have. I am glad to be here with all of
    you.
        My service on this Committee, Mr. Chairman, started less
    than a year before the attacks on September 11, 2001, less than
    one year before those attacks. As our colleagues and many
    members of our staffs will recall, one of the planes hijacked
    that morning was likely headed for the U.S. Capitol. In the
    wake of that tragic day in our Nation's history, we started a
    conversation about issues like how to assemble Congress in a
    secure, remote location in the event that we could not meet in
    Washington, D.C. Mr. Chairman, I seem to recall discussion
    about the Greenbrier, like a special underground facility at
    the Greenbrier in West Virginia. There were also tough
    conversations about how to reconstitute Congress in the event
    of significant vacancies in the House and the Senate. It was a
    scary and challenging time.
        The new challenges that we face today as a result of
    Coronavirus disease (COVID-19) are no less scary and no less
    challenging.
        As COVID-19 deaths throughout our country continue to grow,
    it is essential that those of us serving in the Congress are
    able to respond quickly and effectively to the events of this
    day. Our top priority right now should be to do all we can to
    provide support to first responders, health professionals,
    businesses, and State and local governments, many of whom are
    stressed almost to the breaking point by the toll this virus
    has taken.
        With that thought in mind, I believe this is a good time to
    restart those sobering discussions from almost 20 years ago and
    begin to figure out how we can make sure this Congress and
    future Congresses are able to function during a major crisis
    that might make it difficult for us to assemble in Washington,
    D.C.
        Whenever I am confronted with a difficult policy decision
    like this one, I am reminded of three adages.
        The first one is: ``If it ain't broke, don't fix it.'' As
    we look at the rules governing emergency operations in the
    Senate, I have asked myself, ``Well, are they broken?'' I
    suppose one could point to the fact that we have been able--
    with strong bipartisan support--to enact trillions of dollars
    in spending to fund badly needed programs in recent weeks and
    argue that things are working just fine. At the same time,
    though, much more needs to be done, and divisions are starting
    to show as we debate from afar and in the media about what to
    do next and when. It may be that unanimous consent (UC) is no
    longer an option; however, inaction is not an option either. If
    a remote voting system for the Senate allows us to move to the
    next stage in our response to COVID-19, we need to consider it.
        But as we consider some of the changes that have been
    proposed to the Senate recently, I am reminded of a second
    adage, and that is: ``Do no harm.'' We should not allow any
    remote voting system established to deal with the impact of
    COVID-19 to be abused to further unrelated, partisan goals. It
    would be truly unfortunate if a system we set up to allow us to
    deal with this virus were also used in the coming months, for
    example, to confirm controversial nominees.
        Potentially even worse than that, though, would be future
    Senate Majority Leaders using remote voting ever more
    frequently in future years to conduct routine Senate business
    so that members can remain in their home States rather than
    returning to Washington to do our Nation's business.
        Just about every significant legislative success that I
    have been a part of as a member of this body--and some of them
    with you, Mr. Chairman--has come out of personal relationships
    that I have been fortunate to develop with our colleagues
    during our time in Washington and through face-to-face
    discussions and negotiations in the Capitol and in our offices.
    Losing those relationships and the ability to work closely with
    our colleagues could well mean losing forever the Senate as we
    have known it in the past and likely accelerate all of the
    negativity and the partisanship that has made Congress so
    unpopular with voters in recent years.
        Let me close, Mr. Chairman, if I can, by acknowledging that
    there are more than a few tough questions that we will need to
    confront as we try to decide what course to follow with respect
    to this issue.
        Helping us on that journey is my third, and final, adage of
    the morning, and that is, ``Find out what works and do more of
    that.'' After all, our country is not alone in grappling with
    this global outbreak. We would be wise to look closely at how
    other countries and legislative bodies are dealing with these
    same issues, including a number of States that are taking bold
    steps, and see what lessons we can learn from their
    experiences.
        Thank you again, Mr. Chairman. Sorry for the technical
    difficulties. I think we have worked our way through them. I
    want to thank our staffs for all the work that they have put
    into getting us together to have this conversation.
        To our witnesses, let me welcome each of you. I think our
    witnesses are Martin Gold, Joshua Huder, and Lorelei Kelly. It
    sounds like a good Irish lass there. But we are happy to
    welcome all of you. We look forward to hearing from you and to
    a productive and timely conversation on a topic that needs to
    be addressed at this critical time in our Nation's history.
        Mr. Chairman, I think I might have seen at least one other
    Member of our Committee. I think it is Senator Mitt Romney who
    has joined us, and there may be some others. It is good to be
    with all of you. I look forward to being with you in person
    next week.
        Chairman Portman. Thank you, Senator Carper. I am looking
    forward to being back with you as well.
        I know that Senator Romney has joined us. Senator Romney,
    without giving you any notice, would you like to make any
    opening comments? We may have other colleagues who will join
    us. I think there were three or four others who were interested
    in joining us later. But, Senator Romney, anything for the good
    of the order before we get started?

                  OPENING STATEMENT OF SENATOR ROMNEY

        Senator Romney. Mr. Chairman, thank you, and, Mr. Ranking
    Member, it is good to see you and to see Marty Gold on the line
    as well. I look forward to hearing from him and the other
    panelists. I think it is an important topic.
        Several weeks ago, almost 2 months ago, I raised with
    leadership the possibility that we might need to vote remotely,
    and it was suggested that that was an idea for another time,
    and I am glad this is that other time. I wish you the very best
    in the process. I clearly think that we have to have a
    provision of this nature in place, and for me the biggest issue
    is making sure that a true emergency was taking place as
    opposed to this becoming a political tool that could be used by
    perhaps a Majority or Minority Leader to accomplish something
    that the membership at large was not in favor of.
        We have seen the emergency designation used by the
    President in a way that some of us thought was excessive, and I
    think being able to define what is a true emergency and what
    would require remote voting would be something that we would
    need to pay attention to.
        With that, thank you for convening this hearing, and I look
    forward to hearing from the panelists.
        Chairman Portman. Senator Hawley has also joined us.
    Senator Hawley, are you able to join us? Can we see if we can
    hear your audio?
        Senator Hawley. How about this, Mr. Chairman? Can you hear
    me now?
        Chairman Portman. You sound great.

                  OPENING STATEMENT OF SENATOR HAWLEY

        Senator Hawley. OK, great. Thank you. My video is not
    working, but I am able to see you and able to hear the audio,
    and I will just second your remarks, Mr. Chairman. Thank you
    for holding this timely hearing on this very timely subject. It
    is an unprecedented moment in our Nation's history, and I think
    we have to consider responsible, reasonable options to make
    sure that we can continue to do our work no matter what the
    physical circumstances are.
        Thank you for pursuing this hearing so we can explore these
    possibilities, and I look forward to hearing from the
    witnesses.
        Chairman Portman. Great. Thank you, Senator Hawley.
        I see that Senator Lankford has now joined us as well.
    Senator Lankford, do you have any opening comments? We are just
    getting started. We are about to go to the witnesses. I
    wondered if you had anything for us at the outset.
        Senator Lankford. Thank you. No. I am glad to be able to
    join you. I just look forward to the witnesses' testimony and
    giving me a chance to be able to listen in from there.
        Chairman Portman. Great. Thank you, Senator.
        I do not know if any other Senators are on. If you are,
    please speak up now.
        [No response.]
        OK. We will turn to our witnesses.
        The first witness has been referenced. Martin Gold is a
    partner at Capitol Counsel, LLC. In my view, he literally wrote
    the book that is considered the foremost authority on Senate
    rules and procedures. It is called ``Senate Practice and
    Procedure,'' and his expertise is renowned in terms of how the
    Senate can and should operate based on his extensive background
    in the Senate.
        We also are pleased to have with us Lorelei Kelly. Ms.
    Kelly is a Fellow at the Beeck Center for Social Impact and
    Innovation at Georgetown University. She leads their Resilient
    Democracy Coalition, which has been at the forefront of looking
    at ways data and technology can be used to modernize Congress.
    We thank you very much for joining us. I know you are out West.
    This is early for you. Thank you for finding a way to be with
    us.
        Finally, we have Joshua Huder with us. Joshua is a senior
    fellow at the Government Affairs Institute at Georgetown
    University. Dr. Huder holds a Ph.D. in political science and
    focuses his research and teaching on congressional procedure
    and politics. Having read his testimony, you will see he has a
    lot of interesting points to make dealing with some of the
    potential concerns that Senator Carper raised.
        I would ask you each to keep your opening statements to 5
    minutes. We will submit your full written testimony for the
    record, of course, and we will post it on the Subcommittee's
    website.
        Mr. Gold, we will start with you.
        Mr. Gold. Can you hear me, Mr. Chairman?
        Chairman Portman. I can hear you well.

     TESTIMONY OF MARTIN B. GOLD,\1\ PARTNER, CAPITOL COUNSEL, LLC

        Mr. Gold. Thank you very much. Mr. Chairman, good morning.
    Good morning, Senator Carper and other Members of the
    Subcommittee. Thank you for your invitation.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Gold appears in the Appendix on
    page 39.
    ---------------------------------------------------------------------------
        Senate leaders have worked thoughtfully to mitigate the
    impact of the coronavirus on the chamber. The question is: Is
    there more that the Senate can do to retain its deliberative
    character while protecting its membership and staff?
        Proposals, like yours, Mr. Chairman, have been made to use
    technology to augment or replace customary operations. Assuming
    that those ideas are technologically feasible, are they
    constitutional?
        The core issue arises from the mandate that a majority of
    each House constitutes a quorum to do business. Your remote
    voting resolution stipulates that participation by a majority
    of Senators in a virtual vote satisfies this requirement. I
    believe that is correct.
        While Congress' power of self-governance is not absolute,
    it is very ample. The Supreme Court addressed this point in
    United States v. Ballin, which was litigation involving an 1890
    House rule that altered how quorums were determined. Later in
    1890, Congress passed tariff legislation to increase tariffs on
    certain goods. Mr. Ballin was an importer, so he sued,
    contending that the
    legislation was infirm because a quorum of one House was not
    present--the House of Representatives. The case involved the
    juxtaposition of two constitutional provisions: the quorum
    requirement and the rulemaking power.
        Justice David Brewer in the Ballin Court explained that
    Congress may not govern itself in a way that violates
    constitutional restraints or fundamental rights but otherwise
    would write rules to suit its needs. It was up to the House to
    decide how to ascertain a quorum, said Brewer. He proclaimed
    judicial deference to the rulemaking authority, saying that
    within the limitations suggested, it was ``absolute and beyond
    the challenge of any other body or tribunal.'' So the Supreme
    Court upheld the statute.
        In the 2014 Noel Canning case, the Supreme Court
    unanimously invalidated three recess appointments made between
    pro forma sessions. Again, the issue was judicial deference.
    Citing Ballin, Justice Stephen Breyer wrote, ``The standard we
    apply today is consistent with the Constitution's broad
    delegation of authority to the Senate to determine how and when
    to conduct its business.''
        Please consider the purpose of the quorum requirement
    itself. The Framers looked at other options but settled on a
    majority, believing it fostered broad representative
    participation in Congress' work. As George Mason of Virginia
    said, ``In this extended country, embracing so great a
    diversity of interests, it would be dangerous to the distant
    parts to allow a small number of members of the two Houses to
    make laws.'' Remote voting and virtual proceedings fully serve
    the quorum objective.
        Would the courts invalidate legislation by applying a
    requirement for a physical meeting if Congress declares it is
    unsafe to convene one? As Justice Robert Jackson once observed,
    it is useful to temper ``doctrinaire logic with a little
    practical wisdom.'' Failure to do so, he said, could convert
    the Constitution into a ``suicide pact.''
        If the Senate authorizes virtual proceedings, it must
    either amend or override some existing Senate rules, specifying
    either that such proceedings satisfy the rules or that
    exception is made to them. The Senate must also consider
    precedents or orders that operate notwithstanding contradictory
    language in the rules so as to avoid an inadvertent impact on
    them.
        Mr. Chairman, the Senate could adopt a standing order that
    would temporarily override the rules without amending rules
    text. That is something you can do if you are worried about the
    implications of amending the text. That is exactly what the
    Senate did in 2013 with S. Res. 15, which was a standing order
    to reduce post-cloture time on certain nominations. That
    standing order expired at the end of the Congress.
        Virtual proceedings are not a substitute for normal Senate.
    The opportunity for Senators to interact with each other, with
    party leaders, and with staff is diminished if committees, the
    cloakrooms, and the floor do not function customarily.
    Moreover, Senators have the right to debate and the right to
    amend. Neither of those rights is vindicated by a process that
    allows for remote voting without virtual proceedings.
        It may be necessary to implement things in phases, like the
    British Parliament, in this case beginning with remote voting.
    However, as soon as possible, proceedings should replicate the
    Senate floor.
        Virtual operations are suboptimal, but even worse would be
    a Senate that needs unanimous consent to legislate while in pro
    forma sessions or one that must convene in hazardous conditions
    if there is an objection or a quorum call.
        Finally, some procedures explicitly refer to the need to
    prevail with 60 votes. In-person sessions with many absentees
    will have the distorting effect of making those thresholds
    crippling.
        I appreciate the opportunity to share these perspectives
    with you.
        Chairman Portman. I really appreciate your insights.
        Ms. Kelly, we will now turn to you for your opening
    statement.

       TESTIMONY OF LORELEI KELLY,\1\ DIRECTOR OF CONGRESSIONAL
     MODERNIZATION, BEECK CENTER FOR SOCIAL IMPACT AND INNOVATION,
                         GEORGETOWN UNIVERSITY

        Ms. Kelly. Senators, thank you for the opportunity to
    testify. My name is Lorelei Kelly, and I work on congressional
    modernization at the Beeck Center for Social Impact and
    Innovation at Georgetown.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Ms. Kelly appears in the Appendix on
    page 50.
    ---------------------------------------------------------------------------
        We are at a pivotal moment in our democracy. The urgency to
    restore a functional legislature increases with every moment.
    Will Congress join the rest of society, not to mention several
    other legislatures here in the United States and around the
    world, and let the technology enable us to carry on with the
    vital operations of the first branch? Will we maintain the
    promise set forth in Article I of our Constitution? Or will we
    let more and more time slip away as unprecedented taxpayer
    dollars are spent, as checks and balances go awry, and as
    Americans far and wide look to congressional leaders to inform
    us, unify us, and to help push through this crisis? Let us
    choose the first option. If you remember anything from this
    testimony about continuity of the Senate and remote
    participation, let it be that we can do this. Indeed, we are
    doing it right now here today. It is hard, but we are watching
    it happen. The more apt question for you is: How do you want to
    operate existing technology?
        Like this video conference roundtable today, millions of
    Americans are moving their work and their relationships to
    online video platforms. You can be sure that this workspace
    will be different than what you are used to in the Senate
    chamber. You can still get a lot done, and we know some things
    already.
        For example, glitches are inevitable. Lagging will happen.
    We need to figure out how to multitask. How do you signal or
    raise your hand? How are you supposed to communicate in
    confidence with your staff? Figuring out how to answer these
    questions is now our challenge. Some of them, like
    authentication, methods for remote voting, and encryption, are
    already in practice in other countries. We can do this, even
    while we are dispersed across the country. I am talking with
    you today from the cab of a pick-up truck with a hot spot on a
    farm in San Juan County, New Mexico. Your excellent staff
    helped me make this work. They can help the entire Senate.
        It is also important to remember that the Senate has
    adapted in a crisis before. To be sure, today's challenge is
    not a technical one. It is an emotional and intellectual one.
    We require a change of heart, and change is hard. But the good
    news is that there is a lot of heart to share. So many people
    love and admire this institution. We all want it to be better
    than ever on the other side of this pandemic, and we all stand
    ready to help.
        Most of us in this roundtable probably remember Senate Life
    Before BlackBerry (LBB). This was when a staffer could lose a
    Senator on a site visit. That does not happen anymore because
    mobile connectivity in most of the work flow is a norm.
        I was a congressional fellow in 2001, and I was working on
    the Hill through September 11th and the anthrax attacks. I will
    never forget the experience of my friend on Senator Domenici's
    staff. Her Hart Building desk was sprayed with foam in an
    attempt to neutralize any possible contamination. The offices
    were evacuated in mid-October. They had no access to important
    documents, to each other, to files, or to their workplace. Then
    they could not return until January of the next year. Four
    months went by while they worked in makeshift spaces, near
    Union Station or in hideaways in the Capitol. Senate staff was
    strewn everywhere, and at that time connectivity was maybe 10
    percent of what it is today.
        This experience accelerated mobile adaptation. I am not
    excusing the lack of a continuity plan at that time. We needed
    one then, and we need one now. But this time around we are so
    much more capable. If I could flip a Senate master switch
    tonight, I am sure that this chamber would race up the learning
    curve. If you give them permission, your colleagues and staff
    will rise to this occasion. This chamber has nearly 4,000
    employees. Many of them are young and accustomed to technology
    integrated throughout their lives. Remote voting in an
    emergency is vital. But so is the deliberative process. Let us
    use this time to reimagine how committees operate. Start with
    field hearings. Their rules are not bound by geography in the
    first place.
        Before we catch our breath, we will have built the
    foundations of a 21st century institution. Just think of how
    better informed we could be with remote technology capacity in
    the Senate. Imagine the realtime situational awareness we could
    have if local first responders, medical professionals,
    cashiers, teachers, health care workers could fill your
    Committee panels during this pandemic. With this roundtable
    today, we are on the right track.
        Finally, although temporary remote voting and online
    deliberations are now imperative, know that they will never
    take the place of in-person convening. Like all of our most
    important life experiences, relationships leverage technology,
    not the other way around. More than anything else, the Senate
    is about human relationships, and those ties will remain top
    priority. They will remain paramount.
        I have confidence in this abiding truth and in your
    leadership on this, and I stand ready to help. Thank you for
    having me here today.
        Chairman Portman. Thank you, Ms. Kelly. Very well done. I
    like your studio, the cab of a pick-up truck. Perfect.
        Dr. Huder, we will now hear from you.

        TESTIMONY OF JOSHUA C. HUDER, PH.D.,\1\ SENIOR FELLOW,
          GOVERNMENT AFFAIRS INSTITUTE, GEORGETOWN UNIVERSITY

        Mr. Huder. Chairman Portman, Ranking Member Carper, and
    Members of the Subcommittee, thank you for the opportunity to
    testify before you today. My name is Joshua Huder. I am a
    senior fellow at the Government Affairs Institute at Georgetown
    University, where I teach and research congressional operation.
    We gather today in a virtual forum at an unprecedented moment
    in American history.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Dr. Huder appears in the Appendix on
    page 55.
    ---------------------------------------------------------------------------
        Now, more than at possibly any other time, the American
    people are relying on Congress to guide us through this
    pandemic. Rising to that challenge will require Congress to
    adopt some new and creative processes to continue its
    operation.
        I want to make three points about remote voting as a
    possible alternative.
        First, it is imperative Congress adopt methods for absent
    members to participate in drafting, debating, and passing
    legislation to address the COVID-19 pandemic, as well as
    processes to formally and publicly oversee their implementation
    and execution.
        Second, remote voting may be necessary, but it also poses
    serious institutional consequences. It should, therefore,
    remain strictly and narrowly limited to emergency situations
    only and not adopted as part of the regular proceedings.
        Finally, I will highlight what I view as some of the best
    alternatives to address the current situation.
        The COVID-19 pandemic has disrupted, and will continue to
    disrupt, normal congressional operation, and it is critical
    that Congress creates committee and floor processes to fulfill
    its constitutional role and responsibilities. If Congress does
    not, it risks abdicating that authority. It would delay
    congressional responses to the pandemic, omit important sources
    of information from the policymaking process, and limit
    oversight.
        As trillions of dollars are doled out at record pace,
    Members of Congress are, in many ways, the best situated to
    understand the response's successes, failures, and needs.
    Convening to debate and oversee these programs is critical to
    ensure the programs Congress creates are executed as the
    Congress intends. Congress' role in our political system cannot
    be substituted or replicated in this way.
    Effectively addressing this crisis will require the input of
    every Representative and Senator, and that means ensuring the
    representational link between constituents and government is
    not disrupted.
        However, Congress should also be wary of the potential
    damage remote legislating could inflict. This roundtable's
    primary focus is remote voting, but functionally it is a
    discussion of remote legislating, and legislating incorporates
    a much broader set of activities than a simple vote. It
    involves deliberating in committee rooms, members' offices,
    hallways, and the chamber floors. It involves coordinating
    action, building relationships, and forming alliances. Congress
    is not merely an institution of disconnected representatives
    voting independently on separate matters. It involves much more
    than just voting. Remote legislating distances members from
    this process, and physical distance also entails informational
    distance.
        In this sense, remote legislating creates several problems.
    The gulf between rank-and-file members and the substance of
    legislating would only get larger. Today members are blocked
    from offering amendments; giant omnibus packages reduce
    individual influence and scrutiny; and less room exists for
    Senators and Representatives to craft and negotiate major
    deals. Remote legislating would only worsen this problem,
    enabling chamber leaders to negotiate in secret and keep rank-
    and-file in the dark.
        Also, it could possibly worsen polarization by reducing
    member interaction. Even in one of the most polarized periods
    in American politics, members from radically divergent
    ideological backgrounds foster fruitful political relationships
    through personal interaction. This highlights the importance
    and value of the Capitol. Seemingly trivial personal
    connections can and have influenced the entire chamber.
    Congress has always been substantially shaped by the
    interaction of its members, and convening online reduces
    opportunities for members to form those important
    relationships. Physical barriers between members only increase
    reliance on party leaders to facilitate lawmaking, which limits
    the political and policy possibilities and increases the divide
    between the parties. Limiting these procedures to emergency
    situations would protect members from individual influence.
        As alternatives to regular proceedings, I believe some of
    the best approaches in State legislatures and elsewhere blends
    an in-person participation component with streamed proceedings
    and proxy voting. This offers two advantages. The first is that
    it is quick. It can be implemented through chamber rules and
    simple changes to existing procedures. Second, it safeguards
    against permanent remote voting, which I see as a danger.
    Institutional consequences should remain limited to emergencies
    only, and proxy voting offers the best alternative to safeguard
    its limited use.
        Thank you for the opportunity to testify before you today.
    I look forward to your questions.
        Chairman Portman. Dr. Huder, thank you very much.
        We will now go to Members' questions, and each Member will
    have 7 minutes to ask questions. We will have a second round or
    even a third round if there is interest. Again, I want to thank
    all three witnesses for their testimony. Your expertise is
    really helpful right now as we look at this.
        I would like to make one general observation and then ask a
    couple of questions. Marty, you said it is not a good thing
    that Congress cannot convene, but it is even worse if the
    Senate cannot operate during emergencies--in other words, if
    the legislative branch's voice is not heard. That is kind of
    how I come at this. I have been promoting this for over 25
    years now going back to House legislation when I was in the
    House of Representatives. For me, this is not about this
    pandemic. This is a broader question.
        Ms. Kelly, you mentioned this. This is also about the
    possibility of a terrorist attack or other reasons that
    Congress would not be able to meet.
        This is something that I think should be looked at strictly
    in terms of the pandemic but the general concern that there are
    times when Congress either cannot physically or should not be
    gathering.
        To the point about relationships, interactions, and the
    preference of being in-person, again, I do not disagree with
    that. I think it is good for in-person. I do think it is kind
    of interesting to hear some people say that Congress has all
    these personal relationships, and that helps. As they would
    say, it provides the ability to get more done in a bipartisan
    way. We have lost a lot of that in Congress, and I can say that
    as someone who was in the House for 12 years and now has been
    in the Senate for over 10 years. This is unfortunately a place
    where bipartisanship is more difficult, not easier; Senator
    Carper's relationship that he talked about earlier with me and
    mine with him I think have been helpful to us working together.
    We do a lot of bipartisan work together, as I do with other
    members. But it is possible that actually remote interaction on
    a more normal basis could help that as well.
        To give you an example, we are typically off about one-
    third of the year. One-third of the year Congress is not in
    session, even under normal circumstances. I would ask my
    colleagues, do you ever interact with your colleagues on your
    side of the aisle much less colleagues on the other side of the
    aisle during that period? The answer is probably never or
    rarely. We really do not get together. We are also only usually
    in session Monday afternoon until Thursday afternoon, and so
    the rest of the week we have very little interaction with our
    colleagues.
        Some of us take great pride in our ability to get things
    done on a bipartisan basis and believe that is the most
    important part of the job to achieve things for the people we
    represent, which, by definition, have to be bipartisan to get
    through. But I do not think that remote interaction, whether it
    is the process of legislating or even the interactions you have
    in a remote roundtable such as this, necessarily take away from
    that. In fact, Ms. Kelly, you kind of spoke about this--that
    there is an opportunity here actually to increase interaction
    with members, particularly during those times when we are not
    in session, which, when you add it all up, is really the
    majority of the days of the year we are not in session. I would
    just put that out there as my general observation.
        On questions, I think, Marty, you did a good job talking
    about the constitutional issues, and I appreciate that. I think
    you are correct. I do believe that great deference is given to
    the Senate to come up with its own rules, as it should be.
        The one you did not mention, I do not think, at least
    extensively, was this issue about the enrolled bill rule and
    how that would affect the Supreme Court's review of laws passed
    through remote voting. This enrolled bill rule is a Supreme
    Court doctrine that says the courts should not look past the
    enrollment bill once the congressional leadership has signed
    off to determine whether Congress passed a law according to
    proper procedure. Once it is enrolled, that becomes the
    legislative branch's legislation it sends to the President.
        Could you speak to that for a moment?
        Mr. Gold. There are several doctrines that the Supreme
    Court has observed in one form or another to speak to the
    question of judicial deference to Congress. For example, the
    Ballin case did not rely on the enrolled bill doctrine.
    Nevertheless, the enrolled bill doctrine that you have just
    properly depicted, Senator, that says that if you have the
    leaders of the House and the Senate who are authorized to sign
    the bill affixing signatures to the bill, then the Supreme
    Court or the courts generally will not look behind that to
    determine what kind of procedures were used or whether they
    were properly formatted and so forth in order to get you to the
    end result.
        It very much, by the way, is the same thing that is the
    case in Senate rules. Senate Rule XXVI says that if you have a
    quorum of a committee that has reported a piece of legislation,
    then the Parliamentarian and the Chair will not look behind
    that and determine whether committee procedures were properly
    followed. It is a sense that you should defer to the final
    action of the committee or in this case the final action of the
    chamber without going behind it to try to pick apart what might
    have been done getting to the end.
        The enrolled bill doctrine is certainly one of the reasons
    for deference. Political question doctrine is another major
    reason for deference. The equitable discretion, the idea that
    courts should not go in and rewrite congressional rules, is a
    further reason for deference.
        There are a number of different doctrines on which a court
    could rest in terms of deciding whether or not the rulemaking
    power should be invaded, and my sense of it is that if Congress
    says, A, it is unsafe to meet; B, they have adopted a rule to
    operate in lieu of the actual physical meeting; and, C, that
    they declare in the rule that the participation by a majority
    of members, for example, in a remote vote represents a quorum,
    and so forth, I believe that all of those doctrines in one form
    or another would be sufficient to create the deference you
    want.
        Chairman Portman. Therefore, the constitutionality of
    remote proceedings and remote voting. Thank you very much.
        I want to turn to my colleagues in a second here, but, Ms.
    Kelly, one issue that I think is interesting to put on the
    table. For this roundtable, we did not come up with a new
    system from scratch. This is off-the-shelf technology that is
    available in the Senate today, so for those who raised the
    technological concerns, just to make it clear that we are
    proceeding today with technology that is readily available and
    could be improved further, as we saw earlier. But any comments
    on that quickly?
        Ms. Kelly. I think that there are any number of platforms
    that are off the shelf and could be configured or formatted
    specifically for the procedures of the House and the Senate. I
    think that the tech industry would be glad to help work with us
    on the legislative status steps and look at what is needed
    where and how to do it. This is a really hard problem, but it
    is not an impossible one. I think it would be a great endeavor
    to work together with the tech industry to bring D.C. and
    California at long last together in a common goal. Yes, I agree
    with you.
        Chairman Portman. Great. Thanks, Ms. Kelly.
        I now turn to Senator Carper.
        Senator Carper. Ms. Kelly, let me ask you a question. The
    pick-up truck that you are sitting in, is that your truck?
        Ms. Kelly. This is a 1998 Dodge truck that is used for
    hauling out here on this farm. It is my sister's truck.
        Senator Carper. No kidding? I am at my home in Delaware,
    and in the garage of our house is a 2001 Chrysler Town &
    Country minivan. The next time I do one of these, I am going to
    do it from there.
        Ms. Kelly. It is very cozy, and I have a hot spot here. I
    am having the full rural broadband experience out here on the
    farm. [Laughter.]
        That is another conversation, but it is a thing.
        Senator Carper. I thank each of you for your testimony.
    When you gave your testimony, were you giving it
    extemporaneously? Were you reading? How were you doing that?
        Ms. Kelly. This is something I will be happy to share. I
    found a teleprompter that is a sort of open source and
    available online. I will send it. It is called
    ``CuePrompter.com,'' and I cut-and-pasted into the box, and it
    turns it into this beautiful scroll, and you can control the
    speed. Then you can start and stop it. I am glad that it looked
    like I knew what I was doing. [Laughter.]
        I tried a couple of times, and I guess it worked, so thank
    you.
        Senator Carper. Mr. Chairman and colleagues, I want to say
    if we get nothing else out of this, I think we have just gotten
    a mother lode right here. Thank you.
        I am reminded of something, as I approached this hearing,
    that Joe Biden, who was elected seven times to the U.S. Senate
    before becoming Vice President, I am reminded of something that
    he used to say, and he still says. He says, ``All politics is
    personal.'' He adds to that a P.S.: ``All diplomacy is
    personal.'' I would be inclined to agree with both of those
    observations.
        Let me ask, if I could, for each of you, one or two points
    where you think you agree with the other panelists. Do you want
    to go first, Ms. Kelly?
        Ms. Kelly. I think that the most important--and I am not a
    constitutional lawyer. I did work on the Hill. But I think that
    what I heard both my fellow panelists say is that the sort of
    legacy of the past and the rules and the quorum and the 200-
    some-year-old traditions are not hard and fast obstacles in the
    place of moving forward and adapting. We have needed to do this
    for some time, and now we just need to do it more urgently than
    ever before. But this has always been possible, and now it is
    mandatory.
        Senator Carper. Let me ask you, Dr. Huder, what do you
    think, a point or two where the three of you agree?
        Mr. Huder. I think clearly we all agree that some process
    needs to be created. We need some way for the Senate to
    convene. This is a great example of the possibilities that are
    out there for Congress to maintain its constitutional role and
    function within the legislative process, but also in overseeing
    responses to this.
        Second, I think that we all agree that there is little
    substitute for the in-person nature and the personal
    relationships that make the Senate what the Senate is. More
    than any other legislative body in the world, the Senate is
    very much driven by its personal relationships and its social
    interaction. I think that removing that or severely limiting it
    would be something that we would all lament.
        Senator Carper. All right. Thank you.
        Marty Gold.
        Mr. Gold. Thank you, Senator. I absolutely agree with Dr.
    Huder's statement about the importance of personal interaction
    in the Senate. Not only what he said in his oral statement but
    in his written submission as well, he made a very strong point
    about that. I do not think there is anybody who really thinks
    that remote participation is a substitute for the actual
    Senate. Senator Portman made a comment in his opening remarks,
    and it is really embraced in the resolution that he offered
    with Senator Durbin, about limiting circumstances so that you
    do not resort to this on a basis other than in emergency
    conditions.
        If you begin from the premise that there is no substitute
    for the actual Senate and that the best thing you are doing is
    working in a suboptimal circumstance to do the best you can in
    circumstances where it is physically dangerous to convene, then
    you build guardrails around what you do so that you do not use
    this on too casual a basis. The proposal that Senator Portman
    and Senator Durbin have introduced, also one, for example, that
    Senator Paul introduced, has that characteristic or those
    characteristics. On what basis do you initiate it? On what
    basis do you continue it? On what basis do you sunset it? On
    what basis do you renew it?
        In other words, the point is if this were a substitute for
    the actual Senate--which Dr. Huder has made a very clear point
    that it is not, and I agree--you would not worry about those
    things so much. If it is not a substitute for the actual
    Senate, then you have to build in the protections and the
    guardrails, which these resolutions that I have seen so far
    absolutely do.
        Senator Carper. All right. Thanks.
        Let me turn back to Dr. Huder again for a moment. Dr.
    Huder, you have noted that remote participation could further
    concentrate power in the hands of congressional leadership. You
    have also argued that if members want to hold leadership
    accountable, to quote you, I think you said, they ``need to at
    a minimum be physically present.''
        Two questions. One, can you expand on the ways in which
    remote voting and participation could empower leadership at the
    expense of other members?
        Mr. Huder. Yes. One of the ways that remote voting empowers
    leaders is that they will be the ones who are in the Capitol
    itself. Even with any remote voting process, there are going to
    be people that are going to have to be in the chambers to make
    the rules, motions, and procedures that are going to be
    necessary to pass law. If lawmakers are not there, then they
    are significantly removed from the information process of
    lawmaking. That creates a situation where, if they are not
    there to learn the information through first or secondhand
    experience, it is going to be much harder for them to get
    involved in the lawmaking process, to understand what is going
    to happen, what negotiations are going on, and what policy
    provisions are in play. If they are not there, there is a
    transfer of power that leaders have more leeway to move.
        Senator Carper. Thank you.
        A related question, Dr. Huder, if I could. In your view,
    would remote participation allow for regular members to make
    contributions to the substance of legislation? Or would they
    likely be limited on a practical level, simply voting yes or
    no?
        Mr. Huder. They are absolutely limited. They would not be
    present, and it is unclear--maybe there is a process or a
    technology that could make them a little more remotely enabled,
    if you will, to make a motion or a point of order or offer an
    amendment or whatever it may be. But it is going to be very
    difficult for them to participate as they would if they were in
    the chamber. Legislating is a lot more than simply voting yes
    or no. In order to stop a bad idea, you have to prevent it from
    getting to the vote. That is just one example of many where
    being in person really is not a substitute for voting remotely.
        Senator Carper. All right. Thank you. Thank you all very
    much.
        Chairman Portman. Thank you, Senator Carper.
        I believe Senator Romney is up next. Senator Romney, are
    you on?
        [No response.]
        Chairman Portman. All right. Let us turn to Senator
    Lankford. Are you on? I know you had another call.
        [No response.]
        Senator Hawley, are you available?
        Senator Hawley. Yes, I am, Mr. Chairman. Thank you very
    much.
        Chairman Portman. Great.
        Senator Hawley. Thank you again for doing this. Thanks to
    all the witnesses for being here.
        Mr. Gold, could I just start with you, and could we go back
    for a moment to the British Parliament? We know that the
    British Parliament is moving toward a virtual parliament, and I
    wonder, what are some lessons do you think that the U.S.
    Congress could learn from the British experience thus far?
        Mr. Gold. The British experience thus far has involved the
    use of remote proceedings on something that was quite suited to
    those remote proceedings, and that was Prime Ministers'
    questions. Now, they did a hybrid proceeding in the House of
    Commons, so they had some members there, although a significant
    majority of the members were not present. But, nevertheless,
    Prime Ministers' questions was the kind of thing that was not
    unduly complex to do by a remote proceeding mechanism. So that
    is what they did. The idea was that they would begin with that
    and phase in other aspects of the legislative procedures of the
    House of Commons as it became apparent that those things were
    technologically feasible and could be managed.
        That was actually the point I wanted to make in the
    statement that I made, which is that it is not necessarily
    necessary for Congress to do everything it ought to do all at
    the same time, because there may be proceedings that can be
    attuned to a remote voting or remote participation process more
    easily than other proceedings. The fact that you cannot do
    everything at once does not mean that you should not start
    someplace and then proceed on from there. It is also the reason
    that I said that maybe we should take some care in terms of
    amending Senate rules which have a more permanent character and
    look to the possibility of perhaps a standing order that allows
    things to be done on a more experimental basis with a sunset
    clause in that standing order so that if things are not
    properly accomplished, then the rules do not have to be amended
    again in order to take care of something.
        This is obviously an experiment like the British Parliament
    is an experiment. I would caution not to go too deeply into the
    experiment all at once. Do it in the phases that can be
    managed, like the parliament has done, and to consider doing it
    on a temporary basis until one has a clearer picture of what
    ought to be done on a more permanent basis.
        Senator Hawley. I am intrigued by your point just now that
    the British Parliament's experience with Prime Ministers'
    questions in adopting virtual proceedings for some of its work,
    not necessarily all of its work, it raises the possibility in
    my mind, which is what I think you are suggesting, that one way
    for the U.S. Congress to proceed is to stagger our workload, as
    it were. We do not have to go virtual for everything. Of
    course, we do not have to do everything all at once.
        I wonder if you could just say a little bit more about what
    sort of congressional proceedings you think are particularly
    good places to start in terms of working virtually,
    implementing these virtual technologies. If we were to stagger
    our workload in the face of an extended emergency like this
    pandemic, what might that look like? Where would you counsel us
    to begin?
        Mr. Gold. The Portman and Durbin resolution begins with
    voting, and so the premise is that members have been informed
    about the content of legislation, but they want to have an
    ability to express themselves on the record as to their
    position on that legislation as opposed to saying something can
    only pass by unanimous consent or a voice vote or their
    individual opinions are not expressed. It seems to me that if
    you could find the kind of secure platforms that Senator
    Portman was talking about in his opening Statement, that might
    be a place to begin.
        Now, Dr. Huder has talked about the difficulty of the give-
    and-take on the floor: somebody wants to offer an amendment,
    somebody wants to make a point of order, somebody wants to put
    a quorum call in--all of those things that we are accustomed to
    in the normal operation of the Senate.
        I made the statement that ultimately I thought that the
    Senate should embrace as much of that as possible because the
    legislative process is more than voting. If you begin with
    remote voting and say, well, at least in that sense members
    have had the opportunity to express themselves in a meaningful
    way on the passage or defeat of a proposal, whether it is the
    final passage of the legislation or an amendment to the
    legislation, whatever the vote may be, if you begin there, I do
    think that is a place to start; and I think that that is
    attuned to technology. If you can establish that the technology
    is available to begin to mimic as closely as you can floor
    proceedings, then the greater degree that you can expand this
    to look like the normal Senate, the better, understanding
    probably that at no point will it actually look like the normal
    Senate.
        Senator Hawley. Dr. Huder, let me just turn to you, if I
    could. On the point on voting, could you just give us a word
    about any security concerns with setting up a remote voting
    system that you are aware of that you might have? Talk us
    through that.
        Mr. Huder. Senator Hawley, I am not a technology expert,
    and I also do not know the platforms that are out there, so
    this is really not my forte to discuss the security issues. My
    understanding is that in many of the State legislatures they
    are doing this through other forms of technology, either
    through some face-to-face communication with a proxy that is in
    the chamber or taking a picture of a vote or a paper vote and
    sending it to a proxy in the chamber. But in terms of actually
    voting through technology, I would not be the person. I believe
    Ms. Kelly would probably have a better answer.
        Senator Hawley. Can I just ask you, on the State
    legislatures, Dr. Huder, do you have any assessment yet of the
    different approaches that the State legislatures who are
    experimenting with remote proceedings, how those are going, or
    any assessment of their various approaches and what you think
    of them, what you think is promising, what you think is not so
    promising?
        Mr. Huder. Yes, I think that there are several State
    legislatures that everybody is in this in the very beginning;
    we are all kind of experimenting with it, and places like
    Pennsylvania and Oklahoma were a couple instances that I
    highlighted because I thought it brought an interesting and
    novel approach to a very difficult problem given this pandemic.
    They are doing a sort of proxy and remote participation
    component where members can participate or at least watch a
    live stream while voting when necessary.
        I think the concern comes when you start to bring in more
    controversial measures and there is disagreement within the
    ranks. I think that many State legislators were expressing some
    concerns that as the process becomes more unwieldy and more
    controversy arises, that it may become more difficult to enact
    or execute the processes that they have been using.
        Senator Hawley. Very good. Thank you very much. Thanks to
    all the witnesses, and thank you, Mr. Chairman.
        Chairman Portman. Thank you, Senator Hawley.
        Senator Lankford, when you are available--I know you are on
    another call--just chime in. We would love to hear from you.
        Let me, if I could, back up a little bit to the general
    premise here that we believe that the legislative branch ought
    to be able to express itself at all times, including times of
    emergencies when we cannot gather or should not gather. Again,
    this does not relate just to the pandemic, but for me I think
    about this in terms of, as was noted earlier, during the Cold
    War we had a bunker set up on a mountaintop in West Virginia
    somewhere for fear we could not gather. Certainly during 9/11
    we saw this happen where it was viewed to be unsafe to be in
    the Capitol immediately after the attacks of 9/11.
        We have had a concern in our country for some time about
    bioterrorism, and bioterrorism is not a natural virus, but it
    has some similar aspects to it and the inability potentially
    for us to gather. But to me this is about continuity. As I said
    earlier, it is also about the fact that in the Constitution and
    among our Founders there was a sense that we are the people's
    voice. We are the ones representing our individual constituents
    in our districts and our States and that we should be heard,
    particularly during times of national emergencies or, as is the
    case now, at a time when we are making huge decisions on behalf
    of our country, at a time when our economy is in free fall and
    we have a serious health crisis that is affecting so many
    Americans, having already resulted in so many fatalities, as
    many as we had in the entire Vietnam War, just in the last 3
    months. This is a time when we should be heard, and so that is
    my premise to this.
        I had a question for you, Dr. Huder. I agree that when we
    can meet, we should meet, and I think many of your observations
    are in theory maybe more applicable than they are in practice
    in terms of how Congress operates. I wish there was more
    personal interaction, and I certainly try to practice that, but
    that can be done remotely as well, particularly, as I said
    earlier, most of the year, most days of the year we are
    actually not in session. But to say that there would be a
    concentration of power and leadership in relation to remote
    voting I think belies the reality of what we have seen in the
    last couple of weeks. Congress passed legislation last week
    that provided over half a trillion dollars of your tax dollars
    and all of our constituents' tax dollars to address this
    pandemic. Think about that, over half a trillion dollars. As
    you know, normally we have significant heartburn and debate
    over $100 million here, $100 million there. We are talking
    about hundreds of billions with a ``B.'' As someone once said,
    a million here, a million there, it begins to add up. Now it is
    a billion here, a billion there, it begins to add up, or even a
    trillion here, a trillion there. Yet because of, I think, the
    necessity for us to act and the inability for us to gather,
    there was significant concentration of power in those who were
    working on this in Washington, and this was the Republican
    leadership and the Democrat leadership. But there was no input
    from members. There was no debate. There were no amendments.
    There was no vote.
        I think the notion that somehow remote voting leads to more
    concentration, I think at least in the experience that I have
    had in this particular pandemic and my sense as to how this
    could work in the future should, God forbid, there be an attack
    on our country as there was on 9/11 or some other way that we
    were not able to gather, my concern is that people would not
    have their representatives being heard.
        So whether it is voting, which is the ultimate sacred
    responsibility, or whether it is all of the processes that lead
    up to that, including hearings like this one, including the
    opportunity to have debate, offer amendments, to be heard, it
    seems to me that that would help to ensure that democracy,
    small ``D,'' is exercised.
        What am I missing? What are your thoughts on that?
        Mr. Huder. Mr. Chairman, I think you are exactly right that
    Congress needs to be voting at this moment and they need to be
    signing on the record or disagreeing on the record with the
    decisions that are being made and the types of policies that
    are being passed. I think that is critical.
        I think it also highlights the importance and concerns with
    remote voting. When we are discussing massive trillion-dollar
    or half-trillion-dollar response packages, the type of speed
    necessary to pass these packages in a timely manner is going to
    necessitate circumventing normal legislative procedures where
    you have committee hearings vetting the proposals and the
    policies, you have oversight hearings. The necessity of getting
    something out quickly means that you are going to have to
    obscure some of the deliberative processes that are normal to
    the legislative process.
        The concern comes when you start to turn to more routine
    legislation that Congress will need to be adopting later on
    this year. For example, the National Defense Authorization Act
    will be something that Congress may need to pass as this
    pandemic continues, or appropriations bills or a continuing
    resolution of some sort, and it may need to be addressed while
    the pandemic still rages on.
        My concern is that remote voting comes to limit the
    deliberation that you would see on some of the very important
    matters that Congress will have to adopt that are not emergency
    response packages. This is why I believe that your resolution
    and many of the other things that would enable remote voting
    and remote participation are absolutely critical at this
    moment. There are also some long-term concerns that may limit
    the deliberation that would otherwise exist on very important
    legislation.
        Chairman Portman. Getting back to what Mr. Gold said
    earlier on, which is that the best would be if we could be
    together--and I could not agree with that more--but our worst
    is that we have a situation where we cannot gather and our
    voices are not heard. As a practical matter, as a professor who
    studies political science and particularly the U.S. Congress
    and our processes and procedures, a lot of this has to do with
    balance of power. The Constitution was set up to ensure that
    the legislative branch, the executive branch, and the judicial
    branch had this delicate balance and that there was deference
    where appropriate but not overreach. Without the legislative
    branch being able to convene and to be able to speak, obviously
    power then shifts to the other branches, particularly to the
    executive branch, which I think is counter to what the Founders
    intended, and goes back to this notion that we are asked to
    represent our States, our districts. I thank you for that.
        My time has expired. We will turn to Senator Carper. I do
    have some questions on the technical aspects on this that I
    will come back to, Ms. Kelly. Senator Carper.
        Senator Carper. Thanks, Mr. Chairman.
        One of the most valuable expenditures of my own time in the
    Senate has been actually not necessarily the time we have spent
    in a committee hearing or on the Senate floor voting, although
    those can be very helpful. Some of the most valuable time I
    have had in terms of building relationships is when we have
    traveled together on the congressional delegation trips. I know
    Senator Portman has been on any number of those. I have had the
    pleasure of being on some of them, too, as has he.
        I am going to think out loud here for a minute, which is a
    scary proposition, but the idea of--as I said earlier, let us
    find out what works, do more of that; find out what does not
    work, do less of that. There are other countries, other States
    around the United States who have been experimenting in this
    arena for a while. Just like the way that States are taking a
    different approach to opening up, coming back to normal, we are
    going to find out from the States what worked and what does not
    work.
        I wonder how we would go about finding out around this
    country, and around the world what works and what does not
    work. It would be interesting, I think, for us to hear from
    parts of the world as well and maybe to hear from some of the
    places, whether it is States or another country, where they
    have tried this and failed miserably, and we will see what we
    can learn from both of them. This might be a stretch, but the
    idea of where we could put on an airplane folks from the Senate
    who would have some expertise in this area, maybe let them go
    visit a couple of countries together, and they will learn
    something from those countries, but also have a chance to get
    to know each other better and to build some of the bonds that I
    think are helpful to getting things done.
        I just want to lay that out there off the top of my head.
    It may be a good idea, it may not be. But it might work on a
    couple different levels. Much of my success, what success I
    have enjoyed in the last almost 20 years, but much of it has
    been the result of forging relationships with people on the
    other side of the aisle and building trust through
    interpersonal interaction. James Lankford is on this call, and
    he is going to be joining us again shortly. One of those
    examples for me was Tom Coburn, a Republican from Oklahoma, a
    successful businessperson, a doctor, obstetrician, a House
    Member, and a Senator. We built over the years a close bond
    which made the rest of the Committee on Homeland Security and
    Governmental Affairs, I think to look back, and he passed away
    a month or so ago, but it was the interpersonal interactions
    that we had that enabled us to develop a trust to lead. Efforts
    like that to overcome partisan divides I think are more
    important now than ever.
        A question of Ms. Kelly, if I could, and then a question of
    Dr. Huder, if I could. Ms. Kelly, do you have any
    recommendation based on your work for sustaining personal
    relationships between legislators, even in a remote setting?
        Ms. Kelly. Yes, thank you for that question. Actually, I
    have been involved with a couple of what we called ``mock
    hearings,'' and we used Zoom to mimic some of the basic
    functions of a hearing. We in the second one had a member of
    the U.K. Parliament present. She was so generous, so happy to
    help, and so interested in what was going on in the United
    States as well.
        The good news is that there are two websites that have a
    continually updated scroll of what is going on in State
    legislatures in the United States. The National Conference of
    State Legislatures has a whole COVID-19 banner, and continuity
    of government is one of the boxes they have checked. You can go
    there and see continually what States are doing. Just from your
    membership on your Committee--California, Kentucky, Oklahoma,
    Utah--they have all taken steps, or they are all doing
    something, and they have done it differently. It is really
    interesting to go through, and they are linked right to the
    legislative language.
        In terms of international progress forward on this, the
    International Parliamentary Union (IPU), which has an entire
    section that looks at information technology (IT) in
    legislatures, and it has for many years, has a legislative data
    and transparency conference in the U.S. Capitol every year that
    all the Congress nerds go to, those people who keep things
    running behind the scenes. I think we can take real confidence
    knowing that the institution of Congress has made great strides
    in the last 10 years. Congress is a mostly machine-readable
    organization now. There are treasure troves of data that are
    structured and made available online now. A lot of what we are
    talking about here has the foundation in place.
        To your point about global parliamentarians and members of
    other legislatures, as you said that, I thought of the North
    Atlantic Treaty Organization (NATO) Parliamentary Assembly,
    which is one of these groups that started during the Cold War
    to bring legislators together. The U.S. Congress used to have a
    much more robust international program also that was run out of
    the Library of Congress that could be brought back. The
    foundations are there.
        I was a national security staffer on the Hill and worked a
    lot on NATO, and it seems to me that right now, for many
    reasons, including information weaponization, that the
    technological and the technical architecture of legislative
    bodies should be considered critical infrastructure and should
    be looked at through a security framework, and certainly
    continuity of government brings it into stark relief. But for a
    lot of different reasons, including security, continuity, and
    access, these are issues that so many countries are facing.
    Even though parliaments are very different than Congress, part
    of the problem is Congress cannot be a parliament, and that is
    one of the reasons it gets stuck when you try to force things
    down on it. But the truth is a lot of these technologies that
    we are talking about have already not only been piloted but
    metabolized into systems of governing. We can take a lot of
    confidence in that they will share it with us. For that
    question, it is important, and I can share those links with
    you, how to get informed daily on it.
        Senator Carper. Thanks so much.
        Mr. Chairman, I have a related question for Dr. Huder, but
    I would be happy to yield at this point to one of our
    colleagues if one of our colleagues is waiting to speak.
        Chairman Portman. Senator Carper, go ahead with your
    question.
        Senator Carper. All right. Thank you.
        A similar kind of question, Dr. Huder, if I could. How
    would a move to remote participation impact the social aspect
    of congressional work and the opportunity to build or at least
    try to build bipartisan coalitions?
        Mr. Huder. I think one of the problems with remote
    participation is typically you only call or reach out in
    instances where you already know somebody. I do not randomly
    call strangers, for example. I meet people and then we exchange
    numbers, and then we build a relationship where phone calls and
    text messages and interaction can be done. I just see it as a
    difficult layer to the process. So much of Congress is face-to-
    face interaction. It is members bonding over their dogs. It is
    members talking to one another in the hallway or in the
    elevator. I find that hard to replace in the remote voting
    setting.
        I think that is one of the parts that makes it very
    difficult, is that if you do not have the opportunity for a
    space for members of different parties to co-exist, you kind of
    lose many of those informal touches, so to speak, that build
    those relationships. There has been a lot of anecdotal evidence
    about how air travel, for example, and the changing
    congressional calendar have reshaped the way that Members of
    Congress interact and who they work with. Whether that is part
    of a broader political divide, that is probably partly the
    case; but it is also partly the case that Members of Congress
    just do not socialize as much because they do not live in D.C.
    They do not have common social circles, or their kids do not go
    to the same school anymore.
        A lot of these sort of informal social connections were
    many of the political connections that formed bridges across
    the aisle, and remote legislating as a permanent sense would, I
    think, damage an already damaged situation in that particular
    circumstance. While it is necessary, I do not think it is a
    long-term solution.
        Senator Carper. All right. Ted Kennedy told me a story
    early on in my time in the Senate about how the Senate on
    certain days of the week during the summer would have picnic
    dinners out on The Mall with their colleagues and families. Ted
    Stevens told a great story once that I have often shared with
    others--I will not go into it now--about the fact that he car-
    pooled early in his time in the Senate with three other
    Senators--two Democrats, two Republicans. They lived in, I
    think, Northern Virginia. Just the ability to work together
    across the aisle just from car-pooling was pretty
    extraordinary. Thank you very much.
        Chairman Portman. Thank you, Senator Carper.
        I have some technology questions, but I am compelled to
    comment again. I wish Congress operated more the way Dr. Huder
    explained. There is unfortunately not as much interaction as
    there was when I first got elected back in the 1990s in the
    House. Certainly I lament that, but I do not know that remote
    voting is going to make it any worse at a time when we cannot
    otherwise gather. In fact, I think just the opposite; it gives
    us the opportunity to come together, which I think Senator
    Carper would agree it has been a month now since we have had
    any bipartisan interaction of any sort unless members have
    reached out, as I have with Senator Carper and some other
    distinct colleagues, but there has been no interaction. That is
    the reality. It may not be the theory, but that is the
    practical reality.
        One, this is to be used for emergencies only, not to be
    used as a regular procedure, of course. But, two, I think it
    actually has opportunities, remote interaction, to enhance
    rather than limit the interactions we have with our colleagues.
    I think it is a matter of using technology, as so many people
    are today. Probably half the people I represent in the State of
    Ohio are working remotely today, in whole or in part, they are
    teleworking, they are on conference calls with their
    colleagues, but they are interacting with them. At a time like
    this when we cannot be together, I certainly think it is
    appropriate for Congress not just to vote remotely but also
    have more interaction remotely, and I think the technology is
    there and it is very possible.
        Ms. Kelly, I keep telling you I am going to come to you on
    technology, and I am going to dig into this issue and drill a
    little deeper. But I see that my colleague Senator Lankford has
    rejoined us, and I am going to give him the opportunity now to
    ask questions, and I will come back to you. Senator Lankford.

                 OPENING STATEMENT OF SENATOR LANKFORD

        Senator Lankford. Great. Thanks, Senator Portman. I
    appreciate that, and I appreciate the dialogue that we have to
    be able to be here in this back-and-forth time period. This is
    exceptionally helpful. It is exceptionally important for us to
    be able to talk through how we maintain this. All of us are
    interacting with constituents. It is almost like a live hearing
    at this point for me, Senator Portman, because I had to step
    out into the hallway to be able to visit with a constituent.
    Literally during this time period, I was stepping into the
    hallway because I was also connecting with a group from the
    panhandle of my State, listening to some questions that they
    had, and then coming right back to this hearing. This is more
    real life happening for us as we are multitasking away from the
    Hill as well as being back all connected on it. But I do want
    to ask some specific questions, though.
        For Marty Gold, there has been a longstanding requirement
    for wet signatures for things for the Parliamentarian and some
    process things like that that require physical presence. In
    your advice, how many things would have to be dealt with for
    dropping a bill, for doing an amendment on a bill, for
    engagement on any kind of changes that would really have to
    have pretty dramatic changes in our back-of-house operation for
    how we actually implement bills and vote on them?
        Mr. Gold. Senator, thank you for that question. You are
    exactly correct. When we start to think about this just from
    the perspective of remote voting and then we begin to extend it
    beyond that to all of the rest of the Senate operations that
    are connected with having a bill become a law, we find all
    manner of rules, precedents, orders, and practices that are
    implicated in this. Somebody is going to have to take a very
    good inventory of all of that to determine what has to be done
    in each case to make sure that you have checked a necessary box
    so you can get the final point of the enrollment of a bill and
    tell the courts that they ought to be deferring to Congress
    because the bill has been properly enrolled and all of the
    necessary steps have been taken to lead to that moment.
        This is exactly the reason why I do not think that the
    Senate should be going about amending its rules without having
    given a lot of study to that question. But for the same reason,
    I do not think the Senate needs to paralyze itself,
    understanding that all those things are out there. In other
    words, you can figure out what it is that you can do at the
    moment and figure out how to put a standing order into effect
    and ask the Parliamentarian what the Parliamentarian believes
    are necessary boxes to check to make that work, see how it
    works, let it sunset or let it be renewed as the case may
    dictate, and then in the meantime determine what it is that you
    need to do on a permanent basis.
        I will say this: Nothing distorts the situation more than
    Congress being absent. That is the biggest thing. Dr. Huder
    made the point about how this empowers the leadership against
    the individual member. I agree with that. I will also say it
    empowers the individual member against the leadership. If you
    have to get unanimous consent to pass something in a pro forma
    session and somebody objects, where are you? Or if you try to
    have a pro forma session and do some business and somebody puts
    a quorum call in and you have not got members around, where are
    you? Or the point I was making in my Statement about the fact
    that many of the Senate procedures require 60-vote thresholds
    to get you from Point A to Point B, like the cloture rule or
    budget waivers or many, many other things, if you are talking
    about 60 out of 100 Senators, that is one thing. If you are
    talking about 60 out of 75 or 80 Senators because you have a
    lot of people absent, that is another thing. Senator Portman
    talked about the absence of Congress and the distortion that
    creates relative to the power of the executive branch and its
    relationship to the Congress.
        The one thing that we know for sure--or there are two
    things that we know for sure. This is suboptimal, and you have
    to see what boxes need to be checked. Then write procedures
    that allow them to be checked. That is one thing you know for
    sure. But the other thing you know for sure is that nothing
    distorts the situation more, including all the personal
    relationships we have been talking about, than for Congress to
    be completely absent.
        Senator Lankford. One of the grand challenges that we have
    is there is a perspective that if only we would allow Congress
    to be able to make a big Zoom call and be able to vote yes or
    no, then this solves the voting issue. One of the things that
    you bring up there that I want to be able to bring up as well
    is this issue there is a lot of back-of-the-house that has to
    be done, and it has to be done legally and appropriately that
    cannot cleanly be done by everybody connecting online and just
    saying ``aye'' or ``nay.'' That is something we are going to be
    able to work through the process on.
        One of the other questions I wanted to be able to ask you
    was the type of bill that should be engaged, because I think we
    all have agreement that this should be extremely limited and it
    should be extremely temporary. We would all say, hey, there are
    moments like this that we should be able to be engaged more.
    But we also know of moments all the way back to 1814 when the
    Capitol was burned down and we had to be able to move offsite,
    for times like 9/11 we moved away, times during wartime and we
    have had limited access. This is not the first time nor will it
    be the last time that we have had time that Congress has not
    been able to meet or has had to look for other places to meet
    or other methods to meet.
        Part of the challenge that we would have with remote voting
    in particular, more so than remote committee meetings, like
    what we are doing right now, or a roundtable, this is
    relatively simple to be able to do. But when you get into
    remote voting and such, it is trying to find what bills should
    be appropriate to do, because it is not uncommon to get into
    the middle of a debate, you get into heated debate on the floor
    on an issue, and suddenly there is a quorum call that just
    basically sets things aside so members can get a chance to talk
    and work out differences. You cannot do that in a remote
    setting the same way that you do at other times.
        Is there advice from anyone that you would be able to raise
    to say, ``In my perspective''--and, again, we will have a
    different one, but ``In my perspective,'' you would say, ``here
    is the type of vote or the type of bill that should be
    addressed in this type of moment and bills that should not be
    addressed in this type of moment?''
        Mr. Gold. That is a wonderful question. I think my own
    sense is that it is very difficult to determine that in advance
    because you do not understand the kind of circumstances that
    will apply at the moment that you have to exercise this power.
        For example, at the moment we are not having to do
    appropriations. At the moment we are not having to deal with
    that. Now, what happens if Dr. Fauci is correct and the
    coronavirus comes back in the fall, particularly, let us say,
    during the time of the lame duck session, which always happens
    after the election, or has in recent Congresses certainly, when
    a lot of legislation that has been left over, big omnibus
    legislation that is left over, now has to be addressed? Perhaps
    it comes back in such a virulent form--nobody knows that now,
    but perhaps it comes back in such a virulent form that it is
    obviously a health hazard for Congress to convene. If you have
    restricted the kind of legislation that can be addressed by
    this mechanism, you may defeat the purpose of the mechanism.
    The purpose of the mechanism is to allow for Congress to
    participate, for members to express themselves, to represent
    constituents, not to just have it funneled through the
    leadership and have it funneled by unanimous consent. Some
    things cannot pass by unanimous consent.
        We do not know the kind of circumstances that may
    necessitate for this to operate. We may be in a posture--or it
    is set up now, and then in the summer months for whatever
    reason it is not necessary, and then the coronavirus or some
    mutation of the coronavirus comes back in the fall, and all of
    a sudden it is very necessary. I would not advise hamstringing
    the kind of legislation ahead of time.
        Senator Lankford. Mr. Chairman, I have one last question.
        Chairman Portman. Absolutely.
        Senator Lankford. I know I am a minute over time, and I
    appreciate that.
        Let me give you an example of this, of a type of vote that
    could occur. As any Congress, any Senate especially needs to
    do, we have both legislation and personnel. We have nominations
    that need to occur. We are very behind on nominations right now
    both because we have been out of session for a month and just
    the slowdown in the nomination process in general over the last
    several years. Should it, for instance, be appropriate to say
    we are going to come back into session, we are in remote, we
    are going to try to get through 20 different nominations in the
    course of the day today in 2-hour voting blocs, we are going to
    continue to be able to just move 24 hours a day moving through
    nominations, even though we are not physically at that point to
    be able to have a moment like that? Would you consider that to
    be appropriate? Should there be appropriate guidelines or
    boundaries that are set for that type of voting as well?
        Mr. Gold. Senator, I know that there will not be partisan
    agreement on this point. I know that. But my own sense is that
    that is a constitutional responsibility of the Senate. It is a
    constitutional responsibility to deal with advice and consent
    to treaties, and it is a constitutional responsibility to deal
    with legislation. In other words, I do not think that the
    constitutional responsibilities of the Senate should be hived
    off from one another, say that these responsibilities can be
    addressed and those responsibilities cannot.
        I think that you would probably be better off if you had
    some sort of agreement between the leadership on how you were
    going to exercise those responsibilities. But just as I do not
    think that there is a particular piece of legislation that
    ought to be hived off, I also do not think there is a Senate
    function that should be hived off, even though, for purposes of
    comity, it is probably better off to get some kind of
    understanding between the leadership on what the Senate will do
    while it is operating in suboptimal circumstances.
        Senator Lankford. Great. Thank you.
        Mr. Chairman, thank you for allowing me to ask one last
    question. I appreciate that.
        Chairman Portman. Let me say that the other challenge we
    face right now where we have not been able to gather for a
    month is that we have nominations, as Senator Lankford has
    talked about, but specifically nominations related to COVID-19.
    We have
    executive branch nominees that are needed for a response to
    COVID-19 who are not controversial particularly, where there
    would not be, I do not believe, much partisanship around them.
    Yet we cannot move on them because we are not able to remote-
    vote or even remote-discuss. As I said earlier, we have not had
    any such sessions.
        Let me, if I could, Ms. Kelly, ask you a couple technical
    questions, as I said, dig a little deeper here, and then I am
    going to ask Senator Carper for his thoughts as we begin to
    wrap this up. I know everyone has other responsibilities, and
    we said we would get you out of here before 11 a.m.
        With regard to security, what technical requirements would
    you think are necessary for a platform that Senators would use
    to vote remotely?
        Ms. Kelly. I am not a computer scientists or a technical
    expert. I have run with a lot of techies who can answer your
    question in great detail. I do know, however, that our access
    to expertise is very significant and that a lot of the folks
    especially in D.C. who have worked on this have set up whole
    systems for the executive branch, including the Department of
    Defense (DOD).
        I was looking at a Research and Development (RAND)
    Corporation paper the other day on Central Intelligence Agency
    (CIA) telecommuting where they had to create some kind of a
    sensitive compartmented information facility (SCIF) in their
    home office. I think that there are interesting ideas coming
    out of the House. I heard one which would be to make use of the
    Federal Bureau of Investigation (FBI) local offices or military
    facilities in States and districts. I think those are good
    short-term possibilities.
        I do know also that there are real constitutional
    challenges in using things like a common cloud. Security for
    Congress has to be almost a bespoke system. It is probably one
    of the reasons why we have not built one yet. It is very
    expensive, and you can only sell one. I think that is one of
    the challenges. That does not excuse us not having moved ahead
    on building a modern technology system for Congress.
        One of the places I would also refer you to as you move
    forward is the Select Committee on Modernization in the House.
    That Committee has--25 percent of its members are from
    Washington State, and there is something in the DNA or in the
    water in Washington State that makes it such a tech-literate
    civic society. I think that that would be a place to turn. I
    know that Suzan DelBene, Derek Kilmer, Mr. Newhouse, they
    continually brought up--because I sat through all of the
    hearings over the last year and a half, 16 hearings. This was
    an issue that came up continually.
        As for security in remote voting, I would suggest looking
    at the link that I put in my written testimony to the
    Parliament of Brazil, which actually for years now has had a
    hacker lab inside the parliament, which, in other circumstances
    when there was not a pandemic, has experimented throughout the
    chambers with methods and really got, like Mr. Gold was saying,
    sort of a digital mimic of really specific functions and niche
    needs. I think that that is the kind of thing that we can do
    now. Maybe we need something like a chamber challenge.
    Challenges are very typical in technology. It is crowdsourcing
    ideas. I think you could crowdsource ideas within the Senate
    and the House themselves and share lessons learned in some kind
    of a cross-chamber repository.
        To another point that you brought up, I think something
    that we do not know yet, because it is not visible, is that
    there is a really large sort of invisible constituency out
    there for explanation and collaboration and moving forward and
    kind of--I call it like a ``maker space of modern civics,'' is
    the States. I did all this district research in States and
    districts for 18 months, and I was just amazed at what citizens
    are coming up with in collaboration with their elected leaders,
    certainly in Congress. The Ohio State University is like the
    mother ship of a lot of this innovation. I have partners at the
    Ohio State University. You have Kettering in Dayton. You have
    really amazing infrastructure already to help us sort of dig
    ourselves out of this civic memory hole that we have been in.
        I would also recommend this article that is probably 8
    years old now called ``Interested Bystanders.'' It was a
    collaboration between, I think, Google Civics and--I am trying
    to remember--an individual named Kate Krontiris, who is a civic
    researcher. It really talked about sort of the reorganization
    of civics and how much more sort of interpersonal and
    individualized people desire to interact with their government.
    It is really a beautiful kind of iteration of what we already
    have, and so I want you to have courage and know that there is
    a lot going on out there, but we have not named it yet. It has
    everything to do with how we are going to organize ourselves
    now going forward, to tap those resources. They are there, and
    I would be happy to share the ones I know. But I think if we
    make a place for them to show up--so it is not just about a
    vote, but it is about a voice. That is why I think that I am so
    interested in the deliberative process, which is how do we
    reimagine committees during this time and maybe we can pull
    some of our new best practices out and continue forward with
    them when we can show up in person again.
        In any case, I can find you the people to answer the very
    specific technical questions, but I hope that you continue on
    with this concern for renewing civics, because I think it is
    there.
        Chairman Portman. Great. Thank you, Ms. Kelly, and I will
    say those people have found us, and we have found them, and
    some of them are actually associated with Georgetown
    University, as you know, Dr. Huder. I wrote an op-ed in the New
    York Times with one of those technical experts 2 days ago along
    with Senator Durbin. We are working with outside groups that
    have some very strong views on this, and there are different
    platforms. We are focusing on two things, really: just
    authentication that it is the right person, verifying that, and
    this is done in financial transactions all over the world; and
    then encryption to be sure that it cannot be hacked, that it is
    safe.
        We think, as you said in your opening statement, this is
    not so much a technical challenge; it is, you said, I think, an
    emotional and psychological challenge. I think that is the
    issue. It is just tradition. It is hard to leave tradition.
        All of us want to be together when we can be together. The
    question is: When you cannot be together, how do you perform
    your necessary functions? I would say on top of that I think
    technology and remote interaction can actually improve how
    Congress operates even outside of a crisis, not for voting but
    just for interaction, as we have done today, which I think has
    been very positive.
        With that, I would like to turn back to Senator Carper for
    any additional questions and for his closing comments. Again, I
    appreciate his partnership in this venture, as we have
    partnered on so many other things together. I think this has
    been a very useful exercise. Senator Carper.
        Senator Carper. Mr. Chairman, I perked right up when Ms.
    Kelly mentioned Ohio State University.
        Chairman Portman. Yes.
        Senator Carper. As the Chairman knows, I spent 4 years
    there as a Navy ROTC midshipman right in the middle of the
    Vietnam War and have a great fondness and connections and go
    back there from time to time. I have now one more reason to go
    back, and, Ms. Kelly, I think you have called Ohio State the
    ``mother ship.'' Folks in Ann Arbor call us different things,
    not quite that kind. But thank you for that piece of
    information.
        I have been jotting down, Mr. Chairman, colleagues, and to
    the witnesses, I have been jotting down every now and then when
    someone says something that I think is especially relevant or
    important, and I want to mention some of those as we wrap up
    here. One of the things I jotted down is the technology that we
    are talking about should not be used routinely necessarily,
    particularly when we are voting, but if we used it basically in
    emergencies and to at least make sure to do it with that in
    mind.
        I also wrote down that the idea here is to enhance
    interpersonal relationships, not to diminish them. I mentioned
    earlier Vice President Biden's admonition that all politics is
    personal, all diplomacy is personal. I think that is true. The
    idea, as we embrace the technologies that we are talking about,
    is to do so in a way that enhances interpersonal relations and
    interaction.
        One other comment I wrote down was ``extremely limited''
    and the word ``temporary.'' I wrote down that nothing distorts
    the process more than for Congress to be completely absent, and
    I would certainly agree with this.
        Another comment, for the purpose of that comment, is to
    enhance the ability of Congress to enhance the ability of
    Congress to participate, not to diminish it.
        I am going to ask in closing for each of our witnesses to
    give us one or two bullet points, very short admonitions of
    maybe what to do and not to do as we prepare to wrap up. But
    this has been fascinating, and, Mr. Chairman, you are known by
    all of us as a very thoughtful, reasonable, and nonpartisan
    Member of the Senate who focuses on getting things done and who
    is not unwilling to take on difficult issues, and this is not
    an easy one either.
        Maybe I could wrap it up and ask each of our witnesses--and
    we will start with Marty Gold, if you will--just one or two
    things that you would like to leave us with. When we were in
    our training courses, going through the preflight or flyover
    missions, happened to be in classes for those purposes, at some
    point in a lecture or presentation to us as ensigns and
    midshipmen, they would come to a point that was a really
    relevant point that was going to be on the test, if you will,
    they would stomp their feet. But we are not going to know today
    if you were stomping your feet, but if you were, give us a
    couple of foot stompers as we prepare to close out things; if
    you do not remember anything else, remember this. Ms. Kelly,
    would you start us off, please? You are there in the pick-up.
        Ms. Kelly. In the pick-up, yes.
        Senator Carper. What is the area? New Mexico?
        Ms. Kelly. I am in the Four Corners in New Mexico. This is
    where I am from. This is where I grew up.
        Senator Carper. Oh, wow.
        Ms. Kelly. But I made it to D.C. My thoughts, as you were
    talking, are that this is a crisis, but it is also a tremendous
    long-term opportunity. What I would suggest is let us ask the
    tech industry for help. Let us ask them to--like we did in the
    1930s and 1940s, put aside these immediate short-term profits
    and go for an Eyes on the Prize movement forward, a meta
    challenge for all of us, but especially for the technology
    industry. I like to call this sort of a moment that we have an
    Article I renaissance. We could come out of this with a renewed
    understanding of how important the first branch of government
    is. The first branch of government owns the real estate of
    democracy. It really does, far more than the executive. We can
    do this. We have the bone structure. A lot of it is just
    rethinking it and bringing it into the modern era.
        This has been true for decades at this point, so I do not
    want to lose that. I know we are in a crisis, but we have
    already got momentum, the fact that we have this continuity
    working group together, it has this great group of people
    working here on this panel today, people who have thought about
    these challenges already and can bring their skills to bear
    right now. Let us not forget that this is our moment to have
    this renaissance in Article I and to move forward into the 21st
    century at long last as a much improved democratic system.
        Senator Carper. Your words, Ms. Kelly, remind me of
    something that Albert Einstein used to say: ``In adversity lies
    opportunity.''
        Ms. Kelly. That is right.
        Senator Carper. There is plenty of adversity here, so there
    has to be some opportunity as well. I think it was Rahm Emanuel
    who came up with it, saying, ``Never waste a good crisis.''
        Ms. Kelly. That is true, too. [Laughter.]
        Senator Carper. Those words of wisdom come to mind at this
    time. So thanks so much.
        Ms. Kelly. Yes.
        Senator Carper. Dr. Huder, please?
        Mr. Huder. I want to thank the Chairman and Ranking Member
    for gathering us together today. We are in a very difficult
    moment right now as a country, and this is a very important
    issue, how Congress continues to function when health risks
    emerge and it literally cannot convene under normal
    circumstances. Holding this hearing is in many ways a
    validation that it can work, it can continue to operate in
    these difficult moments, and it is important that we continue
    to draw attention to the ways that Congress can continue to
    operate.
        Senator Carper. All right. Thank you. Marty Gold, please.
        Mr. Gold. Thank you, Senator. I would emphasize the
    importance of being willing to experiment with new things. The
    Senate is a venerable institution. The Senate changes very
    slowly, as you know. The ``Continuing Body'' does not tend to
    adapt itself much to new circumstances and so forth. But I am
    reminded of the television in the Senate and the controversy
    that that caused when it first came up. It was originally
    proposed by Senator Mansfield for use in the Nixon impeachment
    trial that never happened. It was adopted for one moment in
    1974 when the Senate swore in Nelson Rockefeller as Vice
    President, and then the place was dark again for more than a
    decade.
        The House of Representatives put in television in 1979, and
    when Senator Baker, my old boss, became Majority Leader of the
    Senate, he proposed it in 1981, and, boy, was that resisted. It
    was resisted for 5 years past the time that he actually served
    in office until finally, in 1986, Senator Dole and Senator
    Robert C. Byrd, the two Leaders at the time, put in the
    television in the Senate resolution, and then on an
    experimental basis. It was only after it was in effect for
    several months that the Senate finally decided to proceed with
    it. To tell you the truth, that entire experience, the decade
    between Mansfield's proposal and the final implementation of
    television, is very much emblematic of the Senate. It moves
    slowly. But if the Senate had not been willing to experiment
    with that, think of where we would be today where the public
    would regard the Senate, I think, as an artifact of the
    Constitution rather than a central part of the government.
        The Senate needs to experiment with this, and I would very
    much encourage it along the lines of the commentary that has
    been made this morning.
        Senator Carper. Thank you. Thank you all.
        Mr. Chairman, if I could, I would like close on a humorous
    note. We have legislative correspondence, as my colleagues
    know, each of us has legislative correspondence we respond to,
    to the people who contact our offices. It used to be we would
    reply to mail that we would get, and I am a welcome advocate in
    making use of the U.S. Postal Service (USPS). I think my
    colleagues, especially in rural parts of our country,
    [inaudible]. But I asked my mail team, the so-called mail
    team--and it is comprised of four women. Their supervisor is
    this fellow named Kevin, and Kevin has come to describe these
    four women as the ``ladies of the quill.'' The ladies of the
    quill, it turns out, use modern technology to respond not so
    much to the mail we get like they used to about 20 years ago,
    but for every email we receive, [inaudible]. Last month,
    [inaudible] for every letter that we get--and there are
    something like 500 emails for every one letter. In fact, the
    people who contacted me, all due respect to the Postal Service
    now, it is important to support the Postal Service, they are
    not doing that through snail mail. They are doing it through
    email. We have changed very much the way we communicate with
    our constituents. In fact, we communicate [inaudible] better
    for them and maybe even do their jobs more effectively.
        I want to close by saying when I first got here to the
    Senate, I had somebody say, well, we [inaudible]. The world
    changes, and we need to be able to change with it. My hope is
    that as we go down this path, we do so in a way that
    [inaudible] it has been a real comfort, and I think maybe if we
    are smart about it [inaudible].
        I just want to thank our friend and colleague Rob Portman
    in particular [inaudible] for bringing this together and
    bringing in [inaudible]. It is great to see all of you.
    [inaudible].
        Chairman Portman. Thank you, Senator Carper. I appreciate
    it. To the point of things are changing, we had another
    Facebook live town hall yesterday. We have done one every week
    during this month-long absence from Washington. And, that is
    where people are. They are online. The interaction we are
    talking about with Members of Congress that could be enhanced
    through technology in my view, even outside of a crisis, also
    relates to our constituents, of course, and our ability to
    communicate with them could be enhanced through not just remote
    voting and remote governance but remote participation as we
    have had today.
        First of all, I want to thank all of our witnesses. This
    has been a tremendous opportunity to glean from your expertise,
    your knowledge, and your backgrounds. To Marty Gold, thank you.
    As usual, you have your foot firmly planted on the traditions
    of the Senate but also how to move forward and make the Senate
    more effective. As you said, it moves slowly, but we have made
    a lot of changes. You were not around before the filibuster,
    but think what a big change that has resulted in.
        Ms. Kelly, thank you very much for your focus on the
    technological opportunities here.
        Dr. Huder, thank you very much for your willingness to
    share with us some of your concerns about the need for us to do
    this in a way that results in more not less interaction so that
    we are not going further down this track of Congress being
    polarized. I think those were very good points. I thought the
    opening statements were great, but also, as I told you, you
    will have the opportunity to make a longer statement for the
    record, which you will have online.
        By the way, to that point, I would urge everyone who is
    watching today or listening today, check out the report.\1\
    This is a bipartisan Permanent Subcommittee on Investigations
    (PSI) report. As Senator Carper will tell you, we try to do
    things together, and, we have come up with a consensus document
    that I think is very helpful. When you think about this issue
    broadly, you will see a lot of the issues we discussed today
    outlined and additional issues as well. You can find it on
    hsgac.senate.gov. ``HSGAC'' is the name of the Committee. That
    is H-S-G-A-C dot Senate dot gov. So hsgac.senate.gov. Go to the
    PSI link. That is the Subcommittee that we are in currently. So
    hsgac.senate.gov, and then the PSI link to find the report.
    ---------------------------------------------------------------------------
        \1\ The memorandum referenced by Senator Portman appears in the
    Appendix on page 61.
    ---------------------------------------------------------------------------
        Senator Carper, thank you again for being a great partner
    today and showing how we can function even during a national
    crisis. I look forward to the time when both of us can be back
    together in the hearing room and working on our other PSI
    projects, as we have many that are in the works. Meanwhile, I
    think this was a very successful experiment, and it is an
    example of what can happen. It is really a Senate first, and I
    hope it will be one that other committees and subcommittees
    will look at as an example of what we can do, even at a time
    when we are not able to gather physically.
        I also want to thank the Senate staff who made this
    possible. Karl Jackson and the Senate Recording Studio team,
    thank you all very much. Thanks for dealing with our challenges
    as we have worked through this the last couple weeks. As I
    said, this technology is off-the-shelf Senate technology, so it
    is available to others, but it is one that we had to perfect,
    and we thank you for your work on that.
        I also want to thank all the other staff who have been so
    helpful: Dan Muchow--we heard from Dan earlier--has been
    terrific. Kate Kielceski--she is not going to cut me off
    because I am only going to say nice things about her. But,
    seriously, Kate has done a great job in monitoring this today.
    Also, of course, our team--Amanda Neely, Sam Mulopulos, Andy
    Dockham, John Yaros, and others--we want to thank you. Senator
    Carper and I appreciate all of you helping to make this happen.
    This is an opportunity for us to show what can be done through
    technology and specifically today to get more information out
    there about remote voting, and I think we have come up with
    actually some very good principles that ought to apply not just
    in this situation--as Mr. Gold has said, this may be replicated
    down the line, sadly--but in all situations, to have that tool
    in the toolbox in case it is needed to ensure that the
    legislative branch, the Article I branch, as was said, the
    first branch, has the ability to continue to express itself.
        Thank you again. Thank you, Senator Carper and all the
    witnesses, and I look forward to seeing you all in person soon.
        This roundtable is adjourned.
        [Whereupon, at 11:03 a.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                     [all]