[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]