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Virtual Democracy: Congress and The Supreme Court Need To Move Into The Virtual Space

Below is my column in The Hill newspaper on the baffling reluctance of Congress and the Supreme Court to allow for remote or distance technology as an alternative to physical sessions. Democracy at a distance is better than no democracy at all in times of emergency. President Donald Trump was asked about Congress allowing remote voting given the various Senators who are now in quarantine. He thought that it was a good idea but that there may be constitutional barriers. The greatest barriers, particularly for the Supreme Court, remain cultural not constitutional.

Here is the column:

With most Americans sheltering in place, critical government parts are shutting down as well, though the cause may be an aversion to virtual rather than viral transmissions. Both Congress and the Supreme Court have stopped meeting out of fear of physical contact, even though the technology exists to allow officials to continue working in virtual spaces. Legal barriers could be removed to allow such a shift to a type of virtual democracy, but the main barrier seems to be conceptual and cultural.

We must not allow a constitutional system to wither like a starving man staring at an apple tree but incapable of imagining a stick. I previously criticized “remote learning” educational platforms that are supplanting traditional universities. Yet I support the rapid shifting of universities to remote learning technology to continue classes at the moment. Much might be lost in terms of the direct interaction between students and faculty, but the priority is to meet an educational mission for students.

The priority is obviously far greater for Congress and the Supreme Court. Current technology can easily accommodate the need to transmit online debates and voting, with access not just by officials but also the public. Ironically, the Framers would have been least offended by such a notion. James Madison and others were fascinated with novel theories and new technology. They wanted public sessions for Congress and the Supreme Court, and they undoubtedly would have been enthralled by technology that allows millions of citizens to be virtually present for such sessions.

For Congress, there is no clear requirement that its chambers must meet in person to carry out mandated functions. The Framers had no concept of remote communications or distance voting of course. Semaphore and smoke signals notwithstanding, remote communications back then were limited to written letters that took weeks, if not months, to be delivered.

Yet nothing in the Constitution expressly requires physical presence by lawmakers. Article One states that “each house may determine the rules of its proceedings,” and the Constitution refers to “meeting” and phrases like “at the desire” of “those present.” The Framers had clearly used such terms in the physical sense, and that certainly could support a restrictive interpretation today. But a compelling argument can be made that each chamber can define what “present” means, including a virtual presence.

The dangers of distance voting are mitigated by the fact that legislative voting by Congress is a public act in which confidentiality is not required. Any security violation regarding individual votes would then immediately be known by lawmakers themselves, like a manipulation of the electronic voting systems already used on the House floor. The concept of distance voting was indeed discussed as an eventuality following the 9/11 attacks.

While current rules require physical presence to vote in Congress, those could be amended to allow a virtual presence in an emergency. As with remote learning, it might not be the optimal approach, but necessity is the mother of invention. Congress needs to approve virtual debates and votes during this crisis. Ideally, this would not be used much, if at all, but it is important for our representatives to be heard during a time of crisis.

For decades, I have advocated for using cameras in federal courtrooms. While the Framers did not imagine, let alone discuss, a virtual presence, they did expressly address one of the most important aspects of a court system in a free nation, which as we know it now is public access. Public proceedings are mandated by the Sixth Amendment, and the Supreme Court has noted that by “immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted.”

Despite the notable role of public access, the Supreme Court opposes cameras in its chambers. Instead, it demands an absurd demonstration every week of a small number of people standing for hours or even days to grab one of the few seats inside. It is infuriating to watch as people pay “line sitters” to reserve seats in cases impacting the lives of all Americans. When national issues like same sex marriage or health care were resting in the balance, for instance, most Americans across the country had to hear second hand what arguments were made and what questions were asked.

This archaic system is neither quaint nor compelled. It is simply absurd and is now also dangerous. Rather than holding televised arguments with only counsel and the justices present during this crisis, Chief Justice John Roberts has chosen to suspend all further arguments. On the docket are cases with enormous national importance, from health care to gun rights to immigration. Yet because justices oppose cameras in its chambers, the business of the Supreme Court has now largely come to a grinding halt.

The problem has actually been the justices themselves. In 2007, former Justice Anthony Kennedy had objected that if “you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a sound bite.” It is a rather bizarre notion that millions of citizens are being prevented from seeing these arguments because the justices may not be able to control themselves from any grandstanding.

Barring cameras in the Supreme Court may prevent grandstanding, but it also may hide more serious problems. Indeed, some justices remained on the bench when they were present solely in a physical sense. Legal icons like Justice Thurgood Marshall and Justice William Douglas resigned only after the public was shocked by their diminished capabilities in national interviews. Courtroom cameras also may expose those like former Chief Justice William Rehnquist, who was addicted to prescription drugs, and past justices who suffered from physical or psychological impairments.

This crisis should force the Supreme Court, albeit kicking and screaming, into the 21st century. The optimal approach is for the justices to meet with lawyers alone in the chamber for televised arguments. If those nine chairs are simply too close for comfort, then there is no logical reason to pause oral arguments or other critical work of the Supreme Court. Technology is available to allow both arguments and conferencing to happen remotely.

The founders of our country were amazing fonts of inventive thinking and new technology. From Benjamin Franklin and his lightning rod to Thomas Jefferson and his better moldboard plow, these were men who had been enamored with new technology as solutions to contemporary problems. They gave us a constitutional system with the flexibility and endurance to survive more than 200 years of economic, military, and social disorder. No one needs to like this virtual democratic system, however, it is far better for our government to function from a distance than to not function at all.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

101 thoughts on “Virtual Democracy: Congress and The Supreme Court Need To Move Into The Virtual Space”

  1. Pingback: Supreme Court to rule on tribal justice remotely via telephone – Gaylord News

  2. You geniuses are incredible! The United States of America is not a democracy, and the Federal Government of the united States isn’t a democracy either.

    If you understand those two things, and you read the Articles of Confederation, then you will realize the place or manner of meeting is not important, only quorum and majority consensus are important;

    “Article V. For the more convenient management of the general interests of the united states, delegates shall be annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each state to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year.

    No State shall be represented in Congress by less than two, nor by more than seven Members; and no person shall be capable of being delegate for more than three years, in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the united states, for which he, or another for his benefit receives any salary, fees or emolument of any kind.

    Each State shall maintain its own delegates in a meeting of the states, and while they act as members of the committee of the states.

    In determining questions in the united states, in Congress assembled, each state shall have one vote.

    Freedom of speech and debate in Congress shall not be impeached or questioned in any Court, or place out of Congress, and the members of congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on congress, except for treason, felony, or breach of the peace.”

    As you can see from the above except from the AOC, Congress is a meeting of the States, it takes 2/3 of the States to form a quorum, and a majority of the States is necessary to form a consensus on all questions!

    This was not changed by the Constitution, Congress is still an assembly of the States, it still requires the assembly of 2/3 of the States by members of their delegation present to operate, and a majority of members present is still required to form a majority consensus.

    However, there is no requirement for the form of the meeting, or the place, just that a quorum of the States must assemble. With technology today there is no reason that the assembly cannot be virtual, and this also leads to the whole number of representatives in the House, which should never be limited to 435, with technology there is no reason that each state should not have the whole number of representatives to which they are entitled by Article 1 Section 2 Clause 3 of the Constitution of the United States, which by the 2010 census should be 10,247, the whole number of representatives which does not exceed 1 for 30,000 in any STATE!

    Sorry, the Parties are not apportioned any representation, the Parties are not apportioned and Suffrage, and the Parties are not considered when forming a quorum to operate, and a majority consensus of by party affiliation is not the requirement for majority consensus which is by State!

    By the way, the United States of America is a Confederacy, and the Federal Government of the united States is, the united States in congress assembled, which assembled as a Bicameral Legislature is the union of a Confederated Republic, the House, with a Simple Confederacy, the Senate, to form a balanced decision making body of the States as the Union!

  3. “WASHINGTON — When Ford’s chief executive, Jim Hackett, announced on Tuesday that the carmaker would team up with General Electric to build ventilators, he tempered the good news with a note of caution: “We’re talking about early June.”

    That was just one of several examples that underscored the price of the Trump administration’s slow response to evidence as early as January that the coronavirus was headed to the United States.

    For the first time, it is now possible to quantify the cost of the lost weeks, as President Trump was claiming as recently as February that in a “couple of days” the number of cases in the United States “is going to be down to close to zero.”

    Ford’s timeline suggested that if the administration had reacted to the acute shortage of ventilators in February, the joint effort between Ford and General Electric might have produced lifesaving equipment sometime in mid- to late April….”

    https://www.nytimes.com/2020/03/24/us/politics/coronavirus-ventilators.html

    1. Book, a Trump defender would say that Democrats distracted Trump with impeachment. And on the surface that argument sounds reasonably compelling.

      But that argument would carry vastly more weight if Trump had video soundbites expressing sincere concern. Too bad he didnt think of that! What a lost opportunity.

      Had Trump and Fox News really thought ahead they would have played up the Virus threat during the impeachment trial. They could have railed every hour that Nancy Pelosi was distracting the president from fighting the pandemic. Think how smart that would have been! Which may explain ‘why’ they didnt think of it.

  4. Senate close to a deal now that doling out $500 billion will have oversight by someone other than Mnuchin and Trump. Also, Pelosi says her goal is unanimous consent today. If possible that means no changes in the House and against all GOP propaganda to the contrary the problem was their intransigence on an obviously bad idea.

    “…during closed-door negotiations on Capitol Hill, White House officials have agreed to allow an independent inspector general and an oversight board to scrutinize the lending decisions, said the two people, including a senior administration official who spoke on the condition of anonymity to discuss the status of deliberations.

    The most recent precedent for this is the $700 billion Troubled Asset Relief Program that was created during the 2008 financial crisis. To oversee TARP, Congress created an independent inspector general, a regulatory oversight board and a congressional oversight panel. Over the course of several years, investigations uncovered numerous cases of fraud at large and small companies as firms sought to obtain taxpayer money through various programs.

    The precise oversight structure for the new lending program could not be determined, and it was also unclear whether the oversight structure would be as robust as what was created during TARP. By Monday evening, a number of Republicans were on board with making changes to win Democratic support….

    ….Democratic aides said they were optimistic that a strong bipartisan Senate vote would make it possible to pass the bill by unanimous consent in the House — a process requiring only two members present in the House chamber. But that would require every lawmaker to agree — a tall order for a potential $2 trillion bill touching every part of the U.S. economy.

    Nevertheless Pelosi said Tuesday in her CNBC interview that she would like to see her chamber proceed by unanimous consent.

    “The easiest way for us to do it is to put aside our concerns for another day and get this done,” she said. “My goal always has been to bring this bill to the floor under unanimous consent….”

    https://www.washingtonpost.com/us-policy/2020/03/24/trump-coronavirus-congress-economic-stimulus/

    1. Good. I’m glad there will be some sort of oversight. Mnuchin does NOT equal oversight.

      Whether it be a border wall construction, privately run prisons on the border for kids, or a rescue stimulus, Trump just sees it as a way to channel kickbacks through his hotel business. While I’m sure he’s madly planning on how to take as much out the door with him as he can, at least there are some hoops to jump through.

  6. Why Democrats Object To McConnell’s Stimulus

    So what’s in the stimulus bill that McConnell is trying to ram through the Senate? It grudgingly provides some, but only some, of the aid Americans in distress will need. Funny, isn’t it, how helping ordinary Americans is always framed as a “Democratic demand”? And even there the legislation includes poison pills, like a provision that would deny aid to many nonprofit institutions like nursing homes and group homes for the disabled.

    But it also includes a $500 billion slush fund for corporations that the Trump administration could allocate at its discretion, with essentially no oversight. This isn’t just terrible policy; it’s an insult to our intelligence.

    After all, it would be hard to justify giving any administration that kind of power to reward its friends and punish those it considers enemies. It’s almost inconceivable that anyone would propose giving such authority to the Trump administration.

    Remember, we’ve had more than three years to watch this administration in action. We’ve seen Trump refuse to disclose anything about his financial interests, amid abundant evidence that he is profiting at the public’s expense. Trump’s trade war has been notable for the way in which favored companies somehow manage to get tariff exemptions while others are denied. And as you read this, Trump is refusing to use his authority to require production of essential medical gear.

    So it would be totally out of character for this administration to allocate huge sums fairly and in the public interest.

    Cronyism aside, there’s also the issue of competence. Why would you give vast discretionary power to a team that utterly botched the response to the coronavirus because Trump didn’t want to hear bad news? Why would you place economic recovery efforts in the hands of people who were assuring us just weeks ago that the virus was contained and the economy was “holding up nicely”?

    Finally, we’ve just had a definitive test of the underlying premise of the McConnell slush fund — that if you give corporations money without strings attached they will use it for the benefit of workers and the economy as a whole. In 2017 Republicans rammed through a huge corporate tax cut, which they assured us would lead to higher wages and surging business investment.

    Neither of these things happened; instead, corporations basically used the money to buy back their own stock. Why would this time be any different?

    Edited from: “Republicans Add Insult To Injury” by Paul Krugman.

    Today’s New York Times

    1. Love Krugman.

      All legit questions posed there, Seth. And things are going to get mighty interesting as Trump has now gone out and basically admitted as far as he’s concerned it’s back to normal next week after he’s “learned a lot.” We’ll see how the governors most affected with Covid 19 respond. Fascinating times. I suspect there are active discussions at the Pentagon right this minute about how to remove Trump without it appearing as a coup.

      It’s certainly a perverse talent of Trump to take things to civil war like levels when seeking to find a way to deal with him. Ahhh, the limits of dealing with a president completely unable to view things in anything other than the lens of monetization. And also one whose entire mantra has been ‘just trust me, I’m a business guy, I know best.’…

      Only he’s not that great at business. And he doesn’t know best. And he absolutely shouldn’t be trusted based on his track record. it would be insane to give Trump half a trillion unmonitored. Absolute insanity.

      Mitch has got to get this through his head. He got to home job Trump’s impeachment trial. He doesn’t get to home job this.

      1. Paulie, compare Trump to a military Commander in a theater of war. He is told repeatedly that the enemy is massing for an attack. But Commander Trump keeps dismissing the possibility. Then, when the attack finally springs, Commander Trump keeps promoting disinformation. Such a Commander would be court martialed and possibly sent to Leavenworth.

        And that’s where we are with Trump; a Commander whose continued leadership puts everyone at risk. The first step to dealing with this crisis is relieving Commander Trump.

        1. Peter – you have never been in the military have you? Commanders fail upward (in general) not downward and they never end up in Leavenworth for a bad judgment.

          1. But sometimes there are ‘accidents’ when dealing with the troops. Oh the tragedy. #ApocalypseNowTuesday

            1. Paulie J – are you talking about fragging? That usually happens to junior officers.

              1. Oh the possibilities.

                Let’s just say this…, nothing about Trump is normal.

                1. Paulie J – if it makes you feel any better, a large number of generals were killed in battle in WWI and Rommel was strafed by Allied aircraft. Admiral Yamamoto was assassinated.

                  1. Good friend of mine was a sniper coming out of the Navy in Vietnam. Most targets were high level VC way deep. But not all.

            1. loupgarous – an active assassination attempt against Hitler was stopped when it was decided that Hitler was the best general the Allies had. MacArthur was rescued from the Philippines when he should have been left there to rot.

          3. Paul, if Trump was slow to recognize the crisis, that is one thing. But he continues to utter false statements each day which adds to mass confusion. Again, a General like that would be cashed out of the military and regarded as a possible traitor.

            1. Peter – again, you have never been in the military. Commanders make bad decisions. Some make good decisions, but are out generaled. When you know what you are talking about, let me know.

              1. Paul, give me an example of a high-placed general who poo-pooed an imminent attack, then continued relaying false information, and still retained command. If you know so much about the military you should have no problem citing an example.

                1. give me an example of a high-placed general who poo-pooed an imminent attack, then continued relaying false information, and still retained command.

                  Commander – Barack Obama
                  General – Hillary Clinton
                  Colonel – Susan Rice

                  Event – Benghazi Terrorist Attack

        2. The first step to dealing with this crisis is relieving Commander Trump.

          The brain trust behind Operation Crossfire Hurricane appreciate your support. signed John Durham.

          Anyway, thanks Bo Bergdahl for your projection. As enemies go, Commander Trump would do well to trade you and your comrades for an equal number of foreign Covid-19 infected patients. They at least stand a chance of being cured of their illness.

    1. David I noticed years ago that conservatives feel a compulsive need to keep linking themselves to the founding fathers.

      1. Communists, by way of subversion and treason, must detach themselves from the American Founders. Communists in the United States are engaged in “in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Enemies may be cold or hot; enemies are enemies nonetheless. That communists (i.e. liberals, progressives, socialists, democrats) adhere to and give aid and comfort to “cold war” enemies does not mitigate.

        The entire communistic American welfare state is unconstitutional including, but not limited to, affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, TANF, HAMP, HARP, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

        Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.

  9. No, they vote in session, in Congress. No quorum, no vote. When these partisan ass wipes send troops all over the world, they do not get to fight from home. These comgresscritters should be subject to the same rules.

  11. Anyone who thinks CONGRESS, or any elected representative, is someone to admire or respect, in ANY way, is an idiot. These senators and representatives are idiots and opportunists who do not deserve an ounce of admiration or respect.

  12. I thank Jonathan for the blog itself Res Issa is a truly open forum that values free expression At one time Jonathan was a young idealistic law professor who taught and was passionate about environmental law His comer students do not recognize his modern incarnation What happened and how did this brilliant attorney lose his wayang why did he reinvent himself.It seems that somewhere along the way Brother Jonathan became enamored in the cult of celebrity hood As a pundit he has defended a veritable rogues gallery of thugs Billy Barr Kavanaugh Roger Stone and Trumpand saves his criticism for the Bidenfamily Justice Scalia Ginsberg and particularly Sotomayor To his credit he has been critical of Trumps boorishness and the ridiculous comments of the political left But we must remember that he writes for an audience In his blog and in the Hill publication he tosses red meat to the Trump supporters and these controversies increase his value as a celebrity lawyer and But what do I know Very little

    1. “What happened and how did this brilliant attorney lose his way and why did he reinvent himself.”
      *****************
      Like John Adams said “ A boy of 15 who is not a democrat is good for nothing, and he is no better who is a democrat at 20.” JT is not “good for nothing.” He grew up.

      1. Mespo, the Democratic party did not exist until Andrew Jackson. So it’s hard to believe John Adams made that comment.

        1. Um, whatever your name is; the quote Mark cited doesn’t say party. What’s hard to believe is how anyone could be so wrong, so often as you and yet remain so confident that what you think you know has any chance of being true. I’m sure there’s a name that would be fitting such a person…

          One of the pleasures of compiling the Yale Book of Quotations was tracing and cross-referencing different versions and precursors of famous quotes. This one is usually credited to Georges Clemenceau, but W. Gurney Benham‘s Book of Quotations cites French premier and historian Francois Guizot (1787-1874), translating his statement as “Not to be a republican at 20 is proof of want of heart; to be one at 30 is proof of want of head.” Benham asserts that “Clemenceau adopted this saying, substituting ‘socialiste’ for ‘republicain. ‘”

          But I was delighted to find that John Adams had expressed a similar idea well before Guizot entered adulthood. Thomas Jefferson preserved this quip, writing in a 1799 journal that Adams had said: “A boy of 15 who is not a democrat is good for nothing, and he is no better who is a democrat at 20.”
          https://freakonomics.com/2011/08/25/john-adams-said-it-first/

            1. the quote doesn’t say “Democrat’. I was correct.

              You were correct about what? Here is your comment:

              Mespo, the Democratic party did not exist until Andrew Jackson. So it’s hard to believe John Adams made that comment.

              Not only were you incorrect using Democrat, you said party, which you were wrong about as well. Lastly, the quote says democrat and was made by John Adams.

              The only thing you may be correct on was regarding when the Democrat Party came into existence. I don’t even care if that statement is accurate, because it’s as relevant to the point as if you stated flies like the manure you spread on a daily basis.

              Brother, if you ever want to lose the title of Paint Chips, you are going to have to phone a friend, because this shite ain’t working for you.

              1. Olly, you were incorrect and refuse to admit it. Adam’s would have been speaking of a future party instead of what existed in his time. You’re an aggressive ignoramus who double-down on mistakes.

        2. “democrat” was used in the lower, generic case. Adams has no use for party politics at all, but was critical of the notion there was anything notably good done by the Athenian assembly.

    2. What happened!? Are you for reals, bro? JT has a wife and kids to pay for and feed and cloth. Not to mention University for his kids.

      Don’t even get me started how expensive that can be. Not to mention, a dog that has needs too.

      JT probably still really likes environmental law, but it’s not feasible when you have a lot of bills to be in and out of litigation, rolling the dice, on winning and losing…

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