Early English parliaments bore little resemblance to the legislative body that exists today in London. It began as a consultative gathering of feudal lords and high-ranking bishops, summoned by the king from time to time to approve statutes or, more often, raise funds through taxation. Only after many centuries did those occasional parliaments become Parliament, a full-fledged legislature capable of standing up to the British monarchy—and eventually taming it.
The United States is now playing out that process in reverse. Two branches of the federal government persist. The presidency still functions, albeit dysfunctionally, much as it did before the coronavirus pandemic upended the nation and killed more than 25,000 Americans. The Supreme Court’s nine members are sequestered in their homes but continue to issue decisions and orders. On Monday, the justices announced that they would even hold some oral arguments next month by phone.
But Congress, the legislature that once drafted the New Deal and investigated Watergate, is effectively dissolved. Only a skeleton crew of lawmakers remain in and around the District of Columbia; they occasionally gavel in for a few minutes for pro forma sessions that block President Donald Trump from making any recess appointments. The other five-hundred-plus legislators are scattered across the country in their respective homes, riding out the storm.
Congressional leaders have no intent to summon them back any time soon. In a letter to House members on Monday, House Majority Leader Steny Hoyer said that the House is “not expected” to meet again before the fourth of May “absent an emergency.” Exactly what Hoyer defines as an “emergency” in this context is unclear. (Perhaps one will pop up.) “Members are further advised that if the House is required to take action on critical legislation related to the coronavirus response or other legislative priorities, Members will be given sufficient notice to return to Washington, DC,” he added. Senate Majority Leader Mitch McConnell made a similar announcement on Tuesday.
Congress’s absence from the stage is a monumental failure of leadership by House Speaker Nancy Pelosi, McConnell, and other top lawmakers. By not urging their caucuses to stay in the District of Columbia last month, leaders from both parties have effectively shut down the legislative branch in the middle of a national crisis. It was obvious when legislators began to leave town last month that it would be difficult to reconvene them when they were needed. Now that lawmakers from both parties are openly resisting a return any time soon, the legislature’s dysfunctions are laid bare.
Congress still retains the technical ability to pass legislation through unanimous-consent resolutions. In practical terms, this allows congressional leaders to pass measures while freezing rank-and-file lawmakers out of the process. Kentucky Representative Thomas Massie’s treatment last month shows how it can instead function as a coercive tool to bully dissenting lawmakers into submission on major legislation. After Massie indicated that he would call for a recorded vote on the phase three bill, Trump castigated the conservative legislator on Twitter as a “do nothing Kentucky politician” and said voters should “throw Massie out of the Republican Party.” The roll-call bid failed when no other member seconded his motion.
Massie may have had a point. Leaders from both parties hailed the garguantuan “phase three” bill as a $2 trillion stimulus package for American workers and companies affected by the nationwide economic freeze. Since then, rarely has a day gone by without more flaws in the legislation coming to light. While the law blocks banks and insurance companies from taking advantage of the small-business relief program, for example, hedge funds have already started claiming their own bailout payouts. Other low-key provisions have given lucrative tax breaks to the wealthiest Americans and real-estate investors. Meanwhile, most Americans still haven’t seen a cent of the widely-touted direct payments, and they will likely need even more financial relief in the weeks and months ahead.
What’s more, there are other legislative matters beyond immediate relief that cry out for action as well. Neither chamber has passed a universal vote-by-mail bill to protect the November elections from the impact of the pandemic. The United States Postal Service has warned lawmakers that it will run out of money this summer unless Congress intervenes, imperiling an institution first run by Benjamin Franklin. And the Trump administration says it will need to extend the window to carry out the constitutionally required 2020 census because of the pandemic—a task that only Congress can fulfill through legislation.
Lawmakers’ inability to cast votes remotely has only compounded the problem. More than 60 House lawmakers asked the chamber’s Rules Committee in March to consider temporary changes that would remedy the situation. “There may be a definition of ‘present’ that reflects new technology where we can be sure that it is an accurate vote by a member of the Congress and is being done in remote fashion,” Illinois Senator Dick Durbin said last month on the Senate floor. “It’s time for the Senate to wake up to the 21st century and make sure we’re using technology that allows us to communicate with each other without any danger or risk to public health.”
Leadership from both parties has categorically resisted the change. “The leader doesn’t want it to happen,” Missouri Senator Roy Blunt, who chairs the Senate Rules Committee, told reporters last month. “It’s not going to happen. We are going to continue to vote in person.” Pelosi, who also categorically ruled it out, later suggested that she feared that the Supreme Court would strike down any legislation passed by remote voting, a point also made by the House Rules Committee in a recent report. While Congress probably couldn’t get away with never gathering in person again, it’s also hard to imagine the high court not granting them some leeway to adopt remote voting in the middle of a pandemic, especially when the justices themselves are conducting all of their business from their own homes.
The U.S. Congress is hardly the only deliberative body in the world that’s been forced to face these challenges. Foreign legislatures have taken similar steps in recent months to reduce their activities. The Canadian parliament temporarily suspended itself outright last month after authorizing Prime Minister Justin Trudeau’s government to spend money until it returns on April 20. So did the British parliament, which is planning to restore some functions next week by working remotely. Countries with Westminster-style governments, where the executive and legislative branches are more intermingled, have more flexibility to ensure they can continue to function during a crisis like this.
The United States, for better or worse, does not. The American government is not designed for lawmakers to shirk their duties indefinitely, either on a practical level or a democratic one. Congress’s abdication of duty has given us a presidency with no immediate checks on its power. Just in recent weeks, Trump has shredded Congress’s oversight provisions for the stimulus money, placed his son-in-law in charge of a murky public-private operation, and all but declared that he would dole out supplies to states based on his electoral needs.
There should be hearings and subpoenas and testimony every step of the way. But instead we have a loose assemblage of legislators who shall apparently remain scattered until the executive branch needs them to write it another check. Even England’s kings and queens haven’t had it this good since the Magna Carta.