After the hurricane passes, our homes might be destroyed, our power out and grocery shelves emptied. But we can gather together — in buildings that were spared, or in parking lots or parks. Our governments might be strapped for cash and overwhelmed by all the extra work, but they can resume that work, adjusting ordinances and laws as needed.
As much as the coronavirus pandemic affects us as individuals, this very different kind of disaster affects our governing bodies even more because the essence of a governing body is meeting in public to do the public’s work.
Local governments and state boards and commissions have the flexibility to meet by phone or through online meeting platforms. We’re already seeing abuses of this flexibility as local councils and school boards hold limited-public-access meetings on matters that are neither urgent nor essential, but there will be time for the Legislature to address that once the crisis passes. And it needs to.
The Legislature itself, however, has no such options. If it were impossible for lawmakers to meet in person — if the president or the governor issued a lockdown order that didn’t exempt them — they would have no way to take those actions that even an emergency-empowered governor couldn’t clearly take, like appropriating money to pay for emergency operations.
Lawmakers do not need to heed Rep. Wendell Gilliard’s call to “continue meeting using the technological tools availed to us such as e-meetings on platforms like Google Meets, Gotomeetings.com and Zoho meeting.”
Remote meetings strip government of that essential element of public participation. And as a practical matter, the state constitution requires the Legislature to meet physically “at the State Capitol Building in the City of Columbia.” It also allows the governor to “appoint a more secure and convenient place of meeting” if “the casualties of war or contagious disease render it unsafe to meet at the seat of government.” It’s not clear, though, that cyberspace would count as a place — and if it doesn’t, then anything the Legislature did could be invalidated by a court.
But legislators do need to make some adjustments so they do not find themselves in a situation where it is impossible for them to pass urgent and essential laws.
As we were reminded earlier this month, the House’s rules prohibit representatives from engaging in debate or casting a vote if they aren’t on the House floor. They can’t even vote from the balcony.
The Senate frequently allows members to cast votes from the balcony — with unanimous consent. For that matter, the Senate does all sorts of things by unanimous consent, so it probably could allow some members to vote and even participate in the debate from home in an emergency.
Unanimous consent, though, is not a sufficient safeguard for emergencies, because it means a single senator can block a request, and in any event that’s not a realistic solution in the House.
Once lawmakers are able to return to Columbia, one of their first orders of business should be changing their rules — and perhaps even state law — to allow some limited number of legislators to vote remotely during states of emergency. That wouldn’t let them operate in a complete lockdown, but at least it would reduce the chance they had to work with a skeleton crew.
This pandemic is doing incalculable damage to individuals and the economy. We can’t compound that damage by failing to learn all the lessons it has to offer, and apply those lessons against future emergencies.