With all the talk of recent potential changes to Congress’ quorum requirements to allow remote or proxy voting, I thought now would be a good time to place the potential change in the historical context of Congress’ major changes to the quorum requirements and how any legal challenges could have long-term impacts upon how Congress regularly conducts business.
While the Constitution generally allows each house of Congress to determine the rules of its proceedings, the Constitution imposes a few limitations. One of these limitations is the requirement that “a Majority of each shall constitute a Quorum to do Business.” The Supreme Court has interpreted this clause to mean “[a]ll that the Constitution requires is the presence of a majority, and when that majority are present, the power of the house arises.” Specifically, “when the Journal of [a house of Congress] indicates that a quorum was present, under a valid  rule, at the time the [house of Congress] passed a bill, we will not consider an argument that a quorum was not, in fact, present.”
The Senate Rules specify that a quorum “shall consist of a majority of the Senators duly chosen and sworn.” Although not specified, the Senate Rules imply that a quorum occurs only when the majority of senators are present in the Senate chamber (“If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate”).
In addition to having similar rules, the House of Representatives has special procedures “attributable to catastrophic circumstances involving natural disaster, attack, contagion, or similar calamity rendering Representatives incapable of attending the proceedings of the House.” Effectively, during such a circumstance a quorum would be a majority of the members still able to attend the business of the House of Representatives.
When in session, a quorum is not usually present in either house of Congress. Instead of listening to other members speak to the C-Span cameras, members usually spend their time outside the floor (but still near the Capitol) going to hearings, marking up legislation, and meeting with constituents. Even though a quorum is not present on the floor, the rules assume that a quorum is present unless a member specifically questions the presence of a quorum.
For instance, the Senate will even often take official action without a quorum being present. Traditionally, the Senate approves most non-controversial nominations and legislation through unanimous consent. First, the Senate Majority Leader and Minority Leader will discuss potential business. The leaders will then ask each of their party’s senators if they object to any of the actions. If no senators object, the Senate Majority Leader will then ask for unanimous consent that the action be approved. With nobody objecting, the measure is considered passed.
However, when this unanimous consent occurs, there is often no more than a handful of senators present on the floor. In fact, unanimous consent (or a similar voice vote) is one of the methods the House Rules Committee suggested for conducting business during the pandemic and it is what Congress used during the 1918 flu pandemic.
Founder’s Views on Quorum
The founders originally interpreted the Constitution’s quorum requirement quite differently than Congress does today. Although references in Federalist No. 58 indicated that the founders also considered a quorum to be a simple majority, they calculated the total number of members differently. Specifically, instead of counting duly chosen and sworn members, the founders considered a majority of all authorized seats as a quorum. The first Senate refused even to conduct business for over a month until 12 senators arrived to conduct business (there were only 12 states as Rhode Island had not yet ratified the Constitution).
The Civil War Changes the Quorum
The first major change to quorum rules resulted from the Civil War. With many states not sending members to Congress and previously elected members leaving to join the Confederacy (and thus expelled), Congress struggled to have a majority of members representing all authorized seats be present. As such, Congress changed its procedures to allow a majority of duly chosen and sworn members constitute a majority. Today, this change effectively means that the members required for a quorum fluctuate when a member resigns or dies.
Speaker Thomas Brackett Reed Changes Quorum Counting
As an initial step in shifting the House of Representatives from a de facto body that required a 2/3rd majority to conduct business (much like the Senate currently requires 60 votes to conduct most business) to a majoritarian body, Speaker Thomas Brackett Reed changed how a member is counted for quorum. Previously, the House of Representatives required that a member report present on a quorum call for the member to be considered present. With many closely divided House of Representatives in the late 1800s, the majority party often only had a few additional seats. With narrow majorities and many members not present due to travel or illness, the minority party could prevent the House of Representatives from operating by refusing to be counted for a quorum. However, Speaker Reed changed the procedures by having the clerk count all members present, regardless of whether they responded.
Potential Legal Issues
Although the Supreme Court has traditionally given great deference to each house of Congress’ own interpretation of quorum requirements, given how the founders likely never envisioned the remote technology that we have today and that the Supreme Court has never examined its use for quorum purposes, it is unclear what presence the Constitution requires. Regardless of the decision reached, how courts examine the issue could have broad impacts on future congressional actions. Specifically, what evidence the courts consider when deciding whether a quorum is present will have long-term implications for quorum requirements.
Traditionally, the Supreme Court has held the journal as the official record of when a quorum is present. Even if presented with evidence that enough members of Congress were not present for a quorum, absent such an indication in the journal, the Supreme Court would not even entertain such arguments.
However, a court may be forced to consider evidence outside the journal if Congress allows proxy or remote voting. If Congress were to allow remote or proxy voting, it is not clear how the House and Senate Journals would indicate who was present on the floor and who voted remotely or by proxy. In such a situation, what evidence would the courts examine or require for proof that a quorum was present on the floor (if constitutionally required)?
Likewise, when the House of Representative had to scramble to have a quorum because a member would not allow the recent stimulus bill to pass on a voice vote, the speaker pro tempore counted those present and deemed that a quorum was present. However, no roll call actually occurred and the journal only indicated that “[a] quorum is present.” Although there is no indication that a quorum was not actually present during the vote, what would occur if in a future vote a quorum were not actually present, but the journal reflected, over an objection, that a quorum were present?
How courts decide how much outside information to consider would impact not just the requirements during the pandemic, but also have far ranging implications upon how the Senate traditionally conducts business under unanimous consent. If courts considered evidence outside the Senate Journal that a quorum of senators were not actually present on the floor, most routine Senate actions passed under unanimous consent would immediately become constitutionally suspect.
 It is unclear whether votes approved under these rules would be constitutional, a problem the House Rules Committee acknowledges in its recent report on voting options during the coronavirus pandemic.