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quorum-Johnson
Sen. Ron Johnson (R-WI) can participate in hearings under quarantine, but he wouldn't have a vote on the Senate floor if he's not physically present.
Sen. Ron Johnson (R-WI) announced this morning that he was the third Republican Senator to contract the coronavirus in the outbreak that has overtaken President Trump and the First Lady. Like Sens. Mike Lee (R-UT) and Thom Tillis (R-NC), he will spend an indeterminate amount of time in quarantine. And under the Senate rules, that’s a problem for Republicans.
The Constitution dictates that a majority of each chamber of Congress “shall constitute a Quorum to do Business.” Under Senate rules, that means 51 Senators must be present to conduct business on the floor. Mike Pence, as the Vice President, does not count with respect to a quorum.
The Senate has 53 Republican members. Only 50 are available to be physically present at the moment. Unlike the House, which established rules for proxy voting, the Senate has no such protocol, and requires physical presence for any floor votes, up to and including a quorum call.
Those of you who watch C-SPAN know that from time to time, a Senator will conclude his or her speech by saying “I note the absence of a quorum,” leading to Senate staff to begin a roll call. This is a typical tactic to freeze the Senate in place as it waits for another Senator to get to the floor. Senators do not rush to the floor when a quorum call is initiated, because norms dictate that the next Senator speaking can waive the quorum call without objection.
What if those norms flew out the window, however? What if, in the midst of an aggressive power grab to obtain a Supreme Court seat weeks before a national election, the Democratic minority saw the three quarantined Senators as an opportunity to shut down Senate business for the immediate future?
The scenario would work like this. Under Senate rules a quorum is presumed to be present. A Democrat would have to get the floor, which they can do simply by objecting to whatever unanimous consent the Republicans want to move forward on a matter. That Democrat would simply note the absence of a quorum, and then leave the chamber and actually hide (you’ll see why later).
At that point, Republicans would be stuck: even if they could assemble all of their available members, it would only add up to 50, not enough for a quorum. If Democrats boycott the quorum call, Republicans cannot do anything on the floor for the time being. They probably could still hold committee hearings, such as the Judiciary Committee confirmation hearing of Judge Amy Coney Barrett. But they would be stymied from doing anything on the floor, as long as they’re down three members.
There are provisions in the Constitution for the Majority Leader to instruct the Senate sergeant at arms to arrest absentee Senators and physically drag them to the Capitol. This actually happened in 1988, when Republicans were trying to block a vote on campaign finance reform. The sergeant at arms “led a posse of six Capitol police officers” in the middle of the night. They found Sen. Bob Packwood in his office, and forced open a door he had wedged a heavy chair alongside to block entry. He was carried feet-first onto the Senate floor.
Obviously preparations would have to be made to scatter all Democratic Senators, including the one who makes the quorum call, to the four winds. (I imagine him running into a waiting car outside the Capitol and hightailing it out of town.) Of course, if just one more Republican contracted COVID-19, the Democrat who initiates the quorum call could stay in the chamber, and Republicans would still be out of luck.
Democrats have already considered making quorum calls as part of the array of options to make it harder on Republicans to conduct business. Slowing down the Senate could delay the Barrett confirmation until after the election. Republicans would be able to deal with Barrett in the lame duck session, but a resounding Democratic victory in November, and the possibility of seating Mark Kelly in Arizona immediately (because that election fills the rest of the late John McCain’s term), puts pressure on Republicans and lowers the margin for error.
Lee and Tillis both sit on the Senate Judiciary Committee, which might have its own quorum problem, as George Washington University professor and Congressional rules expert Sarah Binder explains. Committee rules require physical presence of a quorum to report the Barrett nomination to the full Senate. If Democrats boycott that proceeding, Republicans would only have 10 of its 22 members available. (This doesn't necessarily stop Mitch McConnell from bringing up the Barrett nomination without a committee vote, however.)
Of course, Johnson, Lee, and Tillis will not be in quarantine forever. They could be back in action in time for a Senate vote on Barrett. But Democrats pulling the quorum call gambit this week, when some lower court judicial confirmations have been set up, would signal that they mean business about using the rules to their fullest capacity. And given that Senate Republicans congregate at indoor caucus lunches every week, where they meet without masks, many more Republican positive tests, perhaps on a staggered timeline, are possible if not likely.
Plus, by forcing quorum calls, Democrats would keep every single Republican in Washington rather than on the campaign trail. Numerous Republican Senators are in tight races at home and don’t want to be stuck running back and forth to the Capitol.
Finally, each passing day that makes it tougher for Republicans to complete the Barrett nomination offers a slight possibility that a member cracks, and pushes out the fight until after the election. You could imagine this weighing on a Mitt Romney or Lamar Alexander, both of whom have vowed to vote for any nominee presented before them, but perhaps not under such circumstances. At this point, Democrats have a new tool at their disposal to make life tough on the Senate majority. They should use it, because the stakes are too high to acquiesce.
That said, you can always count on Republicans to respond to aggression with aggression, finding a way to get a quorum to conduct business. As David Segal of Demand Progress told me about the COVID-stricken Republican Senators, “I wouldn’t put them past using hazmat suits.”
