Pairing In An Emergency
The coronavirus pandemic has prompted calls for Congress to work remotely, given that almost half of the senators and approximately one-third of House members are at a higher risk for complications from the virus. While its members opted to close the Capitol complex to the public and limited access to House and Senate office buildings, voting on legislation still requires that they assemble physically on the House and Senate floors.
Some members want to change this and are calling on their colleagues to transition to remote voting for the duration of the pandemic. In the Senate, Dick Durbin, D-Ill., and Rob Portman, R-Ohio, have introduced legislation to allow senators to vote from home. Rep. Katie Porter, D-Calif., is leading a similar effort in the House to persuade Speaker Nancy Pelosi, D-Calif., and Minority Leader Kevin McCarthy, R-Calif., that members should be allowed to vote remotely.
Similarly, scholars are calling on Congress to develop a contingency plan for conducting its deliberations virtually and to allow its members to vote remotely. And some recommend that the House and Senate revive the dormant practice of pairing as Congress works on that plan.
Pairing enables two members to offset each other so that one or both of them may be absent without changing the final outcome on a roll call vote. The practice allows members to signal their support or opposition on a question even though they are not present when the vote is taken. The practice also enables present members to avoid taking a position on the underlying issue.
The participants in a pair can point to the Congressional Record when defending their actions against future attacks. By participating in a pair, absent members may claim correctly that their absence did not determine the outcome of the vote. And members voting present may credibly minimize future criticism of their decision to avoid taking a position on an issue by casting it as a personal favor done to a colleague. While the practice permits a small number of members to be absent, pairing nevertheless requires a majority of members in the House and Senate (i.e., a quorum) to be present for Congress to operate.
HOW PAIRS WORK
According to Robert Luce, Congress’s first documented pair occurred in 1824. In 1840, Rep. John Quincy Adams, D-Mass., denounced the practice as unconstitutional and a violation of the House rules when “a Congressman gave as a reason for not voting that he had been ‘paired-off’ with another member, whose affairs required him to go home.”
In the Senate, pairing is considered to be an informal practice; it is not mentioned in the Standing Rules. Pairs are agreements between two senators to offset their positions on a roll call vote so that the absence of one or both of them does not change the outcome. In a so-called live pair, a senator who is present announces that he or she is paired with an absent colleague and will not vote. If both senators are absent, the floor leader or bill manager announces that they will be deemed as paired. Senators who agreed to pair in a vote are listed as not voting in the Congressional Record.
Most recently, Lisa Murkowski, R-Alaska, announced that she would vote present when the Senate confirmed Brett Kavanaugh to serve on the Supreme Court to offset the absence of Steve Daines, R-Mont., who would have voted in support of the confirmation. Daines missed the final vote to attend his daughter’s wedding. In 2007, Judd Gregg, R-N.H., announced that Ted Stevens, R-Alaska, and Daniel Inouye, D-Hawaii, wished to be considered as paired on a vote during the Senate consideration of the FY2008 budget resolution.
In all pairs, a senator who supports/opposes the underlying question on which a vote is taken is coupled with a senator who opposes/supports the underlying issue. According to Riddick’s Senate Procedure, “the practice is to pair on a basis of two in the affirmative to one in the negative” when the underlying question requires a super-majority to pass (i.e., votes to override a presidential veto, ratify a treaty, pass a constitutional amendment, and invoke cloture).
PAIRING AND REMOTE VOTING
The practice of pairing is premised on the idea that absent members should be allowed to have their votes recorded when not present in Congress. However, it does not enable a majority of members in the House and Senate to vote remotely. While the practice has been used in the past to constitute a quorum, it has only done so on occasions when the number of members present is a majority of the chambers. A quorum is not present if the total number of senators present on a roll call vote – those voting yea or nay plus those voting present – does not constitute a majority of the chamber’s members.