Laws on veterans, 9/11 families and election certification face threat in proxy voting case

By Tierney Sneed, CNN

(CNN) — Several veterans’ benefits programs, payments for 9/11 families, a ban on TikTok on government devices, and changes Congress made to how presidential elections are certified in light of the January 6 Capitol attack are all in jeopardy with a case challenging how the Democratic-led US House relied on proxy votes to pass a massive, Covid-era funding bill.

The case stems from the years-old Republican pushback to the move by then-Speaker Nancy Pelosi to allow members to vote remotely during the pandemic. The lawsuit, filed by Texas Attorney General Ken Paxton, is moving forward in an appeals court known for embracing far-right arguments out of step even with the conservative US Supreme Court.

Paxton is now running for the Senate, where legislation is routinely passed without its members physically present. Sen. Mitch McConnell, who once led the chamber Paxton now seeks to join, is supporting Congress’ power to use proxy voting, even as the Kentucky Republican was critical of Democrats’ choice to do so during the public health crisis.

A federal judge in the far-flung Texas district where Paxton filed the lawsuit previously ruled in the case that the role remote voting played in Congress’ passage of a $1.7 trillion appropriations package violated the Constitution. While a three-judge panel of the 5th US Circuit Court of Appeals reversed that ruling, the full court hinted its openness to Texas’ arguments by throwing out the panel’s opinion and agreeing to rehear the case, with oral arguments on Tuesday.

The case affects only a provision of the law concerning workplace accommodations for pregnant employees. But if the appeals court agrees with Paxton’s arguments, it will create a precedent making any part of the massive appropriations package vulnerable to legal challenge in the 5th Circuit, which covers Louisiana, Texas and Mississippi. If the case ultimately lands before the Supreme Court and the justices side with Paxton, such a precedent would apply nationwide.

Among the other provisions in the appropriations bill that the case endangers are an expansion of summer meal programs for low-income schoolchildren, legislation aimed at addressing doping in the horse-racing industry, and a permanent option for states to offer 12 months of postpartum Medicaid coverage. The Trump administration has continued the defense mounted by the Justice Department under President Joe Biden for how the House passed that bill.

The implications of the case are even broader, according to a friend-of-the-court brief from McConnell. The logic of the lawsuit threatens the way the Senate does much of its business by unanimous consent and voice votes, while inviting the courts to meddle with Congress’ internal rulemaking, he told the appeals court.

“The thing that you hear generally, from a lot of folks, is that the House and the Senate have to be able to set their own internal procedures,” Molly Reynolds, the vice president and director of Governance Studies at the Brookings Institute, told CNN. “Those are things that the two chambers have to have power over, if they’re going to function and conduct the business of the country.”

The long tail of a political battle over proxy voting

Under the rules adopted by the Democratic-controlled House in May 2020, lawmakers who did not want to travel to Washington, DC, or otherwise be in the chamber to vote because of Covid-19 could designate a lawmaker on the floor to vote on their behalf.

Republicans were mostly against the idea at first, a reflection of the partisan divide over how aggressively to respond to the virus, according to Reynolds. Some Republicans even sued Pelosi and other House officials. But the federal courts in DC rejected the lawsuit, and the Supreme Court declined to take it up.

As time went on, the use of remote voting evolved. Some members — including Republicans — embraced proxy voting for non-Covid-related reasons, such as using it to stay at home with a newborn child or to stay on the campaign trail.

When the GOP regained the House gavel in January 2023, then-Majority Leader Kevin McCarthy ended the practice — but not before the outgoing Democratic majority passed an annual spending bill just before Christmas 2022 with 226 members voting by proxy, outnumbering the 205 present in the chamber.

Paxton’s lawsuit challenges that law, alleging that it was unconstitutional under the Constitution’s Quorum Clause because the House lacked a majority physically present to pass the bill. Some of the same Republicans who filed the failed lawsuit in DC are now supporting Paxton in the case, with a friend-of-the-court brief led by Texas Rep. Chip Roy, a vocal proxy-voting critic who is now running for Paxton’s job.

“While it may be easy to adopt legislative shortcuts or turn a blind eye to the Constitution in times of crisis, our Framers ensured that no such measures could be taken,” the Republicans wrote.

Paxton filed the case in Lubbock, Texas, where two-thirds of all civil lawsuits are assigned to Judge Wesley Hendrix, an appointee of President Donald Trump who has sided with Texas in other high-profile cases against the federal government in matters concerning emergency room requirements for abortion care and climate change regulations.

The Justice Department under Biden asked for the case to be moved to Austin or Washington, DC, alleging “judge shopping” by Paxton’s office and arguing that those venues made more sense for procedural reasons. Hendrix rejected the request and ultimately ruled in Paxton’s favor in 2024 that the appropriations bill was passed in violation of the Constitution’s Quorum Clause.

Hendrix’s ruling invalidated only a smaller piece of legislation tucked into the law, the Pregnant Workers Fairness Act, which requires workplaces to extend certain accommodations to pregnant employees. He concluded that Texas proved the workers’ law was harming the state in a way that gave it standing in the case, but he said Paxton’s attacks against other pieces of the law failed to meet that procedural threshold.

A three-judge panel of the 5th Circuit reversed Hendrix’s ruling, but the full 5th Circuit’s announcement this year it would hear the case was a signal it may be inclined to side with Texas.

Paxton’s office and the Justice Department did not respond to CNN’s inquiries.

“The Quorum Clause focuses on participation, not on physical presence,” the Justice Department said in a court brief.

Wide-ranging implications

While only the pregnant workers provision is targeted in the appeal, a 5th Circuit ruling finding its passage unconstitutional would open the door to lawsuits challenging any other part of the massive appropriations package.

As a practical matter, litigants will run into hurdles suing over government money that has already been spent. But year-end spending packages are often stuffed with an assortment of other, non-funding-related pieces of legislation, and this law was no different.

More than half of its 1,600-plus pages of legislative text are devoted to law changes outside of the appropriations process. That includes the Electoral Count Act, which lawmakers drafted in response to the January 6, 2021, Capitol attack to clarify that vice presidents play only a ceremonial role in Congress’ certification of the election.

It also included a raft of veterans’ support bills that boosted health services for former members of the military and that protected them from predatory debt collection procedures. Also in the law was the Fairness for 9/11 Families Act, which facilitates certain payments to the families of victims of that terrorist attack. A major overhaul of rules for retirement savings was included in the appropriations package, as was a fix to the 2021 law that created the Horseracing Integrity and Safety Authority to respond to another court ruling finding the anti-doping measure was unconstitutional.

The appropriations bill also created three temporary judgeships, raising questions about how any precedent against the funding law’s constitutionality could be used to challenge decisions by those judges.

Potential impacts going forward

The spending package for 2023 was the only bill the House voted on while pandemic remote voting was allowed where there wasn’t a majority on the floor, as Hendrix’s opinion noted.

In its briefs with the 5th Circuit, Paxton’s office played down the potential reach of the case, arguing that “decision in favor of the State will affect only one law from the short-lived proxy-voting era.”

Still, former national security officials wrote in their own friend-of-the-court brief that courts should not constrain Congress’ ability to allow remote voting going forward. Doing so could hobble the government in the event of another public health crisis, natural disaster or terrorist attack, they said.

“Nationwide threats unfolding over the course of days or weeks could prevent or significantly delay Congress’s ability to convene in person,” wrote the group of former officials, who include ex-CIA Director Michael Hayden and Adm. Michael Mullen, a former chairman of the Joint Chiefs of Staff.

“But even brief disruptions could be disastrous. If Congress needed to act within hours—to raise or suspend the debt ceiling, enact or extend appropriations, or respond to an imminent national security threat—an inability to convene physically could trigger severe economic, diplomatic, or security consequences,” they added.

The case also looms over the tools the Senate uses hundreds of times a year to approve bills, resolutions and nominees without a recorded vote. The legal threats to those procedures, known as voice votes and unanimous consent, “significantly impair the daily operations of the Senate,” McConnell said in his brief, which was authored by former Attorney General Bill Barr.

While the lower court’s ruling in the case tried to distinguish those procedures from House proxy voting, McConnell was not convinced.

“Without procedures for conducting business without a majority physically present on the floor of the Senate, business would grind to a halt,” he said.

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