opinion

How to inoculate democracy against a pandemic

Stay home! the public health guardians counsel. Avoid congregating in groups!

But more than 300 federal lawmakers violated that cardinal prescription last week in order to get a $2-trillion coronavirus relief bill to President Donald Trump's desk, because the U.S. Constitution bars both the Senate and the House of Representatives from adopting legislation without at least half its members physically present.

Closer to home, Michigan legislators, one of whom is already sick with COVID-19, have decided to meet just one day a week for the next month.

Gov. Gretchen Whitmer has suspended some provisions of the state's Open Meetings Act, which in normal times requires county commissions, city councils and school boards to do business in public.

A separate executive order mandates that the 50 counties and 427 municipalities scheduled to hold elections on May 5 mail absentee ballots to every registered voter in their jurisdictions in a bid to minimize in-person voting.

And the statewide shutdown has already prompted activists to pull the plug on efforts to place several citizen initiatives, including one to enact a progressive state income tax, on the 2020 ballot.

All of these are ad hoc responses to a crisis for which there is little precedent and no consensus list of best practices. But even as elected officials gird to combat the twin perils of viral contagion and economic collapse, it's critical that they prepare our democratic institutions to withstand both the current pandemic and future emergencies that make travel and face-to-face transactions hazardous.

It's critical that elected officials enjoy the flexibility they need to protect public safety, and their own well-being, under extraordinary circumstances. So the steps Whitmer has taken to facilitate electronic communication and remote conferencing make good sense.

At the same time, it has never been more important for every level of government to cultivate the trust of ordinary citizens — and to maintain that trust, elected officials must not allow neglect the mechanisms that provide some measure of transparency and accountability.

Congress

Immediate challenges: Despite its unprecedented size, the rescue package lawmakers approved last week won't be the last appropriation needed to sustain vital government services and support the economy during the crisis.

U.S. Rep. Debbie Dingell, D-Dearborn, sensibly suggests that she and her congressional colleagues should spend the next week or two listening to constituents and local government officials to get their priorities in order. But lawmakers in both parties understand they'll need to take some action to assure that municipalities retain the wherewithal to put out fires and maintain public infrastructure. Also urgently needed: Procedures and funding to guarantee that elections take place as scheduled even if social contact must remain restricted.

What's happening now: The most immediate obstacle to timely congressional action is the U.S. Constitution, whose framers failed to anticipate that lawmakers might one day be required to legislate without meeting in chambers.

The House and Senate have long skirted the constitutional requirement that each must muster a quorum — at least 218 representatives in the case of the House, and at least 51 senators in the upper chamber — by unanimous consent. As long as no member present or absent objects, a smaller group of lawmakers can exercise most of each body's critical functions.

But while it is the simplest work-around, unanimous consent can be confounded if even one lawmaker demands "the yeas and nays," which is parliamentarian-speak for a roll-call vote.

What needs to be done: A House rule adopted three years after the 9/11 attacks allows the House to adopt a provisional quorum of less than 218 if a "natural disaster, attack, contagion or a similar calamity" prevents a majority of members from reaching the House chamber for at least 96 hours.

But the constitutionality of the rule has never been tested, and a better solution would allow members able to participate to vote remotely from their home districts.

The Michigan Legislature

Immediate challenges: Appropriations legislators have already made for the current fiscal year will need to be adjusted to post-pandemic realities. A top priority: Facilitating whatever public schools can do to compensate for days of instruction lost to the virus.

What's happening now: Legislative leaders sensibly have cancelled committee meetings and pared Legislative sessions to a minimum. House Speaker Lee Chatfield (R-Levering) has asked Whitmer to issue executive orders that would streamline some initiatives he'd prioritize if the Legislature were meeting more regularly. Some, including a proposal to relax continuing education requirements for the renewal of doctor and nursing licenses, are eminently sensible; others, like the suggestion that privately operated charter cyber schools be allowed to expand enrollment, reek of opportunism.

What needs to be done: Like Congress, the Michigan Legislature needs to make plans that will allow state lawmakers to make appropriations and exercise oversight without congregating in their respective chambers. This is especially urgent if Chatfield and Senate Majority Leader Mike Shirkey continue to insist, as Shirkey's spokesperson has indicated they will, that Whitmer's pandemic-inspired executive orders will expire after 28 days unless legislators vote to extend them.

Municipal government

Immediate challenges: Counties, cities and small municipalities have been in the front lines of state and federal efforts to combat the pandemic. Whether residents have the wherewithal to observe orders and guidelines issued by state and federal authorities falls largely on the smaller units of government responsible for law enforcement, public sanitation, and critical water and sewer services.

What's happening now: Whitmer's executive order suspending some provisions of the Open Meetings Act was an expeditious way to provide municipal elected officials with the flexibility the U.S. Congress and Michigan Legislature currently lack.

What needs to be done: The longer local elected officials are permitted to conduct business via telephone and video conferencing, the more proactive they'll need to be about making sure constituents have access to those proceedings. Senate Majority Leader Mike Shirkey's concern that high-tech workarounds put older residents at a particular disadvantage are well-taken, so the municipalities' refuge in remote government should be as short-lived as public safety allows.

Elections

Immediate challenges: Preserving scheduled elections and facilitating the broadest possible participation by voters has never been more important. The right to hold elected leaders responsible for the competent discharge of their duties must not be abridged for anything short of catastrophic suffering or loss of life

What's happening now: Whitmer's insistence that voters be afforded the means to participate in the May 5 elections even if a stay-at-home order remains in place put county and local election clerks on notice that participatory democracy is not a luxury reserved for normal times.

What needs to be done: At the federal level, legislation sponsored by Sens. Amy Klobuchar, D-Minnesota. and Ron Wyden, D-Oregon, would assure eligible voters across the country to cast their ballots by mail this November. In Michigan, legislators must provide elections clerks with the resources needed to conduct the election safely even if significant restrictions on social contact remain in place.

Nor should the pandemic provide anyone with an excuse to delay Michigan voters' clearly expressed intention that responsibility for redrawing the state's congressional and legislative districts be invested in a new, non-partisan citizens' commission. Whatever measures legislative bodies adopt to remain functional during the crisis should allow the vital business of reapportionment to go forward, too.