The news that Al Franken is finally going to the Senate has prompted all sorts of musing about the Democrats’ new supermajority. But, in fact, the Democrats don’t have 60 votes--and it’s not even the fault of Independent Joe Lieberman, who’s actually been a relatively loyal Democrat of late. No, the real impediments to Senate Democrats achieving a supermajority are staph infection and brain cancer.
The former landed the 91-year-old Robert Byrd in the hospital for a month, and although he was released yesterday, there’s no timetable as to when he’ll return to Washington from his West Virginia home. Ted Kennedy, meanwhile, has made only eight votes out of a possible 214 (or 3.7 percent) this Congress as he undergoes treatment for brain cancer in Massachusetts. Although both Senators are presumably in sufficient possession of their mental faculties to cast votes (Kennedy, for instance, is reportedly in constant contact with Chris Dodd about health care legislation), they are physically incapable of being in Washington; and since Senate Rule XII requires members to be physically present in order to vote, Byrd and Kennedy could very well deprive Senate Democrats of the two votes they need to obtain a filibuster-proof majority.
Which raises the question: Why, in this day and age of teleconference and videoconference and now even telepresence technologies, do senators need to be physically present to cast votes anyway?
Amazingly, the technological developments that have facilitated telecommuting in pretty much every white-collar profession in America have yet to take root among legislators. And it’s not just the United States Congress. Even state legislatures, the laboratories of democracy, have been slow to embrace technological change. Only two chambers--the Florida House and the Pennsylvania Senate--allow remote voting, and it’s decidedly 1.0, as the legislators must have a colleague cast their vote for them; in Florida, the “absent” member must actually be present in the chamber to authorize the proxy.
There are, to be sure, plenty of high-minded reasons for these requirements at the state and federal levels. Although the rule that U.S. senators have to be physically present to vote was presumably written as such because, at the time of its drafting in 1789, the invention of the telegraph was still 65 years away, there’s no denying that making them be there has been beneficial. “The word ‘Congress’ actually means coming together,’ says the congressional scholar Norm Ornstein, who argues that the physical proximity of Congressmen forces them to, over time, “develop a greater appreciation for the opinions of others, even if those opinions are diametrically opposed to their own.”
What’s more, the requirement that legislators cast their votes in person presumably strengthens the public’s trust in the legislative process. Brenda Erickson, a senior research analyst with the National Conference on State Legislatures who has studied the issue of remote voting, says, “If it’s teleconferencing, you don’t know who’s on the other end of the line, and even if it’s videoconferencing, you don’t know about the camera angles. For the public, they’re going to feel a whole lot better if they can actually see the vote being cast.”
But none of this means that, in extraordinary circumstances, the rules requiring U.S. senators to be physically present in order to vote shouldn’t be relaxed. And one such circumstance, it seems, should be physical infirmity. Although it would be nice to think that a physical ailment that keeps a senator from voting would lead to that senator’s voluntarily giving up his seat, that obviously doesn’t happen. (South Dakota’s Tim Johnson, for instance, was absent from the Senate for nearly ten months after he suffered a cerebral hemorrhage; and let’s not even think about how long Strom Thurmond hung on to his Senate seat after he’d been incapacitated by old age.) That leaves us with an absurd situation: a 100-person legislative body that often isn’t 100 people strong, for reasons that we can now, quite easily, get around. Yes, technology hasn't advanced to the point where it can cure a senator of cancer, but it can allow for a cancer-stricken senator to be given special dispensation to vote from outside the chamber.
Granted, it should be a carefully regulated privilege. To guard against senators abusing it--in order to spend more time in their home states and or, say, run for president--remote voting would have to be approved by the Attending Physician of the United States Congress, who would determine if the medical hardship the senator claimed was sufficient. What’s more, the remote voting would have to be monitored by the office of the Senate Sergeant at Arms, just to make sure there isn’t anyone off-camera holding a gun to a Senator’s head to force him to vote a certain way--or worse, that no one’s pulling a Dave-like hoax, by which a Senator is replaced with an impostor. And just to make things really fair, the ailing Senator would even be responsible for picking up the tab for whatever it costs to enable him to vote by remote.
With all these conditions and precautions, remote voting would be safe, legal, and rare. But it would be an option--one whose time has certainly come. After all, if Will.i.am can analyze the presidential election by hologram on CNN, isn’t it about time Ted Kennedy be allowed to vote by videoconference on the Senate floor?
Jason Zengerle is a senior editor of The New Republic.