PHOTO: Rep. Cynthia Browning tells reporters why she made the controversial decision to request a quorum at the gathering of the House this week. Pool photo by Kevin McCullum, Seven Days

Lawmaker/Journalist Anne Donahue (R-Berlin) explains the behind-the-scenes decision-making that led to the dramatic moment in the almost-empty House chambers Wednesday when Rep. Cynthia Browning (D-Arlington) stunned the handful of assembled lawmakers by calling for a quorum before an attempted vote on allowing the House to meet and vote remotely. She explains how the disagreement between Browning and Speaker Mitzi Johnson shows the creative tension between protecting long-held principles of representative government and protecting public public health. Click here to read entire post. – Editor

by Rep. Anne Donahue

Non-spoiler alert: this next section is going to get deep into the weeds of inner workings of House processes, so unless you are a person fascinated by process, you might want to stop reading now. The big explosion last week in the House made for splashy news coverage, but the real story was far murkier than the headlines suggested.But if detailed machinations of politics intrigue you, then I wrote this for you.

As a member of the House Rules Committee, I was deeply involved in the challenging discussions about shifting our entire legislative process from the House chamber to a system of remote participation and voting for 150 members.Once it became clear that we would not be able to return to Montpelier and go about business as usual in a week, or even a month, conversations began about those alternatives.

Our state constitution itself says that the General Assembly shall not reconvene “to any other place than that in which the two Houses shall be sitting,” and that, “The doors of the House in which the General Assembly of this Commonwealth shall sit, shall be open for the admission of all persons who behave decently, except only when the welfare of the State may require them to be shut.”

In order to meet through remote technology, we had to temporarily amend our House operating rules, and do so in a way that upheld not only the words of the constitution, but also our own oaths taken as stewards of a representative democracy.Would it even be possible to debate bills, question other members, offer amendments, and vote – in short, to do our jobs representing our constituents — from a computer screen?

Within the Rules Committee, a divide emerged. The four Democrats, headed by the House Speaker, believed that technology was more than adequate to the challenge, and we should be able to handle any business at hand. We would be “conducting our business” from the House floor, as required, but participating from afar.

The three Republicans believed that debate and representation would be seriously impaired. We agreed that there were critical bills that had to be addressed, and that it would be a public health issue to meet in person, but felt that remote proceedings should be regarded as a limited emergency response only to address essential bills.

The phone conference on Tuesday last more than five hours, and at one point, it seemed that we were stalemated, because the Speaker was not willing for the resolution effectuating an emergency rules change to be limited in any way in terms of the number or type of bills that would be voted on remotely.

So why not just outvote the Republicans, and push the change through on a 4-3 committee vote to bring it to the House floor?

The problem was that we needed to reach consensus: 100% consensus among the entire 150-member House. No one wanted the entire House to reconvene for a vote on the two issues that were in front of us (the rules change, and the COVID-19 bill), given the status of the coronavirus spread. Yet we could not change the rules to vote remotely without a vote to do it, on the House floor.

There is a technical way to proceed – assuming complete consensus. A quorum is assumed to exist if no member rises to challenge whether there is a quorum. But if it is challenged, then members must be counted, and at least 76 of 150 must be present.

We have never, in my years there, actually taken action without a quorum. We sometimes have what is termed a “token session.” We schedule to meet on a Monday (when the legislature is usually closed) in order to move the notice calendar and not lose a day. The House is gaveled to order, and is immediately gaveled out. Only the one person gaveling needs to be there, but it results in moving the bills from the notice calendar to the action calendar for Tuesday.

By longstanding tradition, one other person always attends: a representative of the minority party for that session. That is because if there was no one present to ask the magic question – “Madam/Mister Speaker, do we have a quorum?” – then in fact, that single presiding member could pass a whole stack of bills. The quorum, unchallenged, is assumed and the actions are valid.

In the extraordinary circumstances we faced this past week, we needed to take a vote about changing the rule to permit remote voting, yet wanted to act without an actual quorum in order to avoid having a large group of people gathering in Montpelier to vote. Thus, the only way to achieve it was that full degree of consensus.So, we kept looking for a way to reach agreement. The Speaker remained adamant about not limiting what bills could be addressed by remote vote, and I knew we had members who would never support an unrestricted rule change. (And I was among them.)

The Speaker was convinced that after some trial runs, in a few weeks when we had the first of our new bills ready for a vote, members would become comfortable with the technology and feel confident in their ability to meet their constitutional obligations.Voting to make the change this week, however, would in effect make it irreversible on the part of any minority members who remained unpersuaded. Yet not voting this week would mean having to convene again, even if only a few people.

I proposed a compromise: vote this week with the members “in person” (unofficially present, for the non-quorum vote) to authorize a later vote in which everyone could participate remotely, and which would ratify the rule change as long as ¾ of the members agreed.In that way, the Speaker would have the opportunity to have practice sessions proceed but not have to return for a vote later, because the ratification vote would be authorized to be, itself, a remote vote.

Even though the resolution would still have no limitations on the type of bills that might be addressed by remote voting, I felt the ¾ vote would protect those who were most worried about the ability to function fully, because it would require far more than a simple majority to force the change upon them later.There was pushback to make it a 2/3rds vote, but I was not willing to go further.

I knew that left me with having to convince those members in my caucus that this was enough protection for them that they would agree to proceed with passing the resolution this week. Otherwise, any one person could block the compromise by showing up and asking whether there was a quorum.

(I warned you that this report was deep into the weeds of process. But it was more than process. Core constitutional principles were also at stake.) It was now Tuesday evening, and in fact the Speaker’s email to all members to explain this brand-new proposal did not go out until just after midnight, with the House scheduled to convene (without a quorum) and vote at 1 p.m. on Wednesday.

“What she did, the Speaker said, was to “put principle above public health.” Perhaps. But then again, maybe the health risk was not overwhelming given that the 80 or so members that quickly assembled were able to spread across all points of the large chamber and then leave again quickly after the vote.”

We had, of course, ended up with a proposal to enact a resolution that would authorize a remote vote on the issue of whether we could vote remotely. I didn’t think of it in exactly that way, but it was the actual effect.For one member, this whole series of events crossed a line of any acceptable or constitutional process.

So, when the dozen or so of us gathered in the House chambers to vote – acting on the faith of those who accepted what we were going to do on their behalf – that member stood up and asked, “Madam Speaker, do we have a quorum?”

It stunned everyone, because there was no warning that someone was planning to not collaborate in the staged process. It was also a surprise because the objector was a member of the Speaker’s own party. But I know that if I had felt as she did, that we were about to enact a rule that violated my constitutional oath, and to do it without even having a quorum present, I would have done the same thing. In fact, if we had not reached the ¾ vote compromise, it could well have been me, standing there.

This member was publicly lambasted and later penalized (she was demoted from her committee) for placing the public health at risk by forcing a quorum of legislators to come from across the state to gather in the chamber and vote.

What she did, the Speaker said, was to “put principle above public health.” Perhaps. But then again, maybe the health risk was not overwhelming given that the 80 or so members that quickly assembled were able to spread across all points of the large chamber and then leave again quickly after the vote.

The day before, the Senate gathered a 17-member quorum in its much smaller chamber to vote on our COVID-19 bills and chose not to authorize remote voting. They will have to return again to vote out any other bills, or for any future rules change. We also did not have to vote for that resolution, at that time or even that day. The Speaker could have reconsidered whether the member’s objections were sound; we could have looked for further compromise. It was her decision to move forward by calling in the troops.

And principle, especially constitutional principle, actually matters, a lot. As someone else noted later, “All too often in times of crisis we are willing to allow our rights to be diminished in the name of safety or expediency.”

Finally, achieving the vote Wednesday did not actually bring about a full solution. The Speaker still will have to convince ¾ of the membership that they can effectively represent their constituents using remote technology. Otherwise, it will be back to square one to hammer out a new agreement – which will itself require a new, in-person vote.