Political Leadership to Promote Legislative Digital Transformation

Read Brian Baird’s from the U.S. Hpuse of Representatives text based on his participation in LegisTech Series

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📌 This text is the result of the transcription of the panelist’s participation in Bússola Tech’s event


My name is Brian Baird and I’m a former member of the United States Congress. I represented the great State of Washington in our U.S. Congress for 12 years, and at that time I was very engaged in the matter of dealing with the continuity of government which is to say: how can government continue in times of crisis?


With that background, under the situation we face with Covid-19, I became engaged in trying to help Congress figure out how it could meet remotely, so that members, staff and the public were protected from the pandemic. I would like to share some lessons that we learned in that experience but of course I recognise that Brazil, in fact, was way ahead of the United States and many other Countries in its leadership in remote voting. Brazil was a model for many of us in what we did.


We realised, relatively early on in the pandemic, that remote voting was going to be a necessary solution and thankfully we have now got technology to allow us to do that. It’s well known that we can use remote meetings to do a number of things and, in fact, that’s being done all around the World on a daily basis with corporations, other governments, education etc. 


So one of the questions was: why would we want to do remote voting and remote hearings? 


The first answer obviously is the current pandemic crisis, but I would assert that there are also some other situations, for example, if a member is gravely ill or a family member of theirs is dying or also gravely ill. It seems a shame to say that we’re going to lose that member’s right and responsibility to represent their constituents because of circumstances beyond their control. I would favor, though this is not a position necessarily universally supported in our Congress, allowing members under certain specific circumstances, not just for convenience, to also meet and vote remotely. 


Now the benefits of remote voting: 


First of all, having remote hearings allows one to bring witnesses before the committee without them having the expense and time consumption of traveling to Washington/ DC or whatever capital they’re going to. Indeed, we could have international visitors testify something we need to do more of, I believe, in the US Congress, because they can testify remotely. In addition, it can sometimes be easier for us to actually make what we call a markup, which is an amendment in the bill. Oftentimes when you’re in a committee, and you’re debating a bill, the actual text of the bill is not right in front of you or it’s hard to search for it. Remote interactions allow you to more easily have an online copy in front of you with hyperlinks to different sections the bill refers to. 


In some ways, you can actually be more informed by remote meetings than by our traditional in-person meetings. In addition, the public is more readily able to view a remote hearing. Only a tiny percentage can actually come to a hearing in Washington/ DC, but if we televise all hearings in real-time or broadcast them via internet and web connections anyone, anywhere in the Country or, for that matter, the World could observe the hearing process and conceivably could even offer input. 


There’s been some very interesting work done to experiment with allowing the public to exchange information and offer input to legislation as it’s being drafted. In fact, our interior and resource committee has done some of that work and it’s a fascinating opportunity for truly participatory democratic engagement by the public. 


One other thing that I think is so important about remote voting, in our system in the U.S., our Senate is evenly divided between democrats and republicans with the tie-breaking vote coming from our vice president, in this case, Kamala Harris, who serves as the president of the Senate under our constitution. Well, without remote opportunities, if one member of the democratic side or the republican side becomes ill or should pass away, it becomes very difficult to have the same representation, if not impossible, in the Senate. Unforeseen circumstances can conceivably alter the balance of power that had been determined by the electorate. If we have remote voting, it’s possible for one senator from one side or the other to be absent physically but still cast their vote and thereby maintain the existing balance of political makeup in the house. 


But then the question became: how do we do this transition and how is Congress going to make such an important and really unprecedented transition? 


Many members of the Congress were rather resistant, to say the least, including our Speaker Nancy Pelosi, at one point, to even contemplating remote hearings or remote voting. In civil society, composed of organisations and individuals who are not part of the government itself but who have a passion for making sure our government works well, a number of organisations worked together to show that it is possible to do remote voting and remote hearings. I was part of that process and one of the things we felt was important is to show members of Congress that it can be done, so they feel comfortable with it, and show how it could be done. We reached out to a wonderful organisation called the Association of Former Members of Congress, so these are members of the House and Senate who have left the Congress but still care deeply about the institution, and we created a simulated hearing, where we had members of the House and Senate from both parties meeting remotely over Zoom and then we invited prominent witnesses. As it happened, we were able to use the technology to not only invite witnesses from within our Country, but a representative from the Spanish parliament and a member of the British parliament who had been central to their transition to remote interactions. I chaired that hearing along with a dear friend and colleague from the republican side, and we learned a lot. 


One of the things I learned as Chairman was the transition is really complicated. We had 30 or 40 members in the room, we had multiple potential witnesses, and finding ways to recognise members of Congress, to manage their time speaking, making sure the witnesses were able to speak, was different. In person, if I were the Chairman, we could just watch people raise their hand and I could say “the lady from Minnesota is recognised” or “the gentleman from California is recognised” and you could see it physically. It was not so easy to do technologically. Many of our members of Congress, and it’s probably true of many parliaments, are rather senior in years and some of them are not very comfortable dealing with technology, and even in the absence of technology some members always have a staff member right behind them to help them navigate the legislative process. Well, that’s very difficult on online interactions so we had to find ways to provide technical support to members. 


One of the things we did that was important is recognise no member of Congress wants to be embarrassed and so we made sure we did practice sessions. We did four or five Zoom practice sessions so that members could get familiar with the technology and that we could avoid embarrassing moments. In fact, there were a couple of embarrassing moments in the practice sessions, quite funny ones actually, but we resolved those before the real session. It’s important to show that it can be done, to provide technological support to the members of Congress, to make sure their staff can be available to help them, and you’ve got to pick the right technology platform. That includes elements of security and it includes elements of ease of use and familiarity. Our Congress struggled with that, because of some security issues they lean towards one platform over another and those were not always the most user-friendly or familiar platforms, but I think the technology is being adapted well and rapidly and the members and their staff are getting accustomed to it. 


We also learned from the trial and practice experience and then from the real world decisions, once the civil society and our group had demonstrated that remote hearings were viable and we shared the lessons we learned with staff, the Congress began to adapt remote hearings, both the House and Senate, and then gradually the House shifted to a proxy-voting system that would allow someone to vote by representing another elected member of Congress. They had what’s called their proxy, which means “I’ve been told by one other member how she or he wants me to vote on their behalf” and that person voted for them on the floor. There were procedural issues that are important and some of them are difficult. 


How does a member of Congress seek to be recognised? To manage a large group online hearing, you have to be able to have people be on mute. If everybody has a live mic, all kinds of chaos is going to happen, so you have to be able to mute the group until someone seeks recognition. The minority party is very legitimately concerned that if a Chairperson doesn’t want to grant recognition to members of our party. How do we handle that? The Chairperson on the other hand is saying “yes, but what if we make everybody’s mic live and the intent becomes to just disrupt the hearing”. Now in truth, in-person hearings can be disrupted that way. People shout and people yell, but there are protocols for stopping that, so the question is how do we find the right balance between being able to recognise people virtually but also maintaining order virtually? To a large degree, that is going to depend on the respectfulness of the quorum by the members themselves and the dignity and integrity of the Chair. Without that, no hearing is going to work whether it’s virtual or in-person, but with that we can make this technology work. 


The procedures are different in virtual versus real hearings. There are parallels, but there are some unique differences. One of the challenges is, for example, how is a member recognised? The delicate balance here is that the members want to be able to be recognised, but the chair has to maintain protocol and decorum and some sort of functionality, so one of the things that it’s necessary to happen, is to mute all the mics because, otherwise, chaos ensues. There’s all sorts of background noise, so the Chair has to be able to mute the mics but the members have to be able to say: “I have something I want to say”, either by raising their hands physically or digitally or by expressing their voice. The key to this is going to be, whether it’s an in-person meeting or a virtual meeting. Members have to respect one another and their right to be heard, but they also have to respect the rights for the Chair to manage the meeting and the rights of their peers to be heard and to be listened to. We’re finding ways to work that out, it is not always easy but it is absolutely essential for this to work. 


When I managed the simulated hearing, I found that it was quite a challenge technologically to do that, such as to see who wanted to be recognised, to make sure the witnesses had time to be heard among other issues. The Chair has a lot to do and it’s harder virtually than it is in-person, but it’s better that we could at least meet. 


Nobody said serving in Parliament or Congress should be easy, and we have to adapt to conditions. We learned to deal with the difficulties and we adapted our expectations, our behaviors and our technology to fit that. 


Members absolutely must be able to talk confidentially and discreetly to other members and to their staff without that becoming public. In a real live hearing, I can just get up from my seat, walk over to a colleague from the other side to have a private conversation, and sometimes that is how you resolve problems. If two parties are disagreeing and one person can go to the other politely and discreetly, you can solve the problem. Sometimes, I need to have my staff remind me of something, or I need to ask them for advice, and I certainly don’t want that always to be public, so there must be a mechanism for staff confidentially to talk to the member. One of the issues is who controls that technology. If the majority party is in control, how do we know they’re not listening in to our members’s conversations or to our conversations with our staff. That absolutely cannot happen, so you have to structure ways that there is private and confidential communication in realtime in your hearings. 


People worry that what if the protocol of the hearing is disrupted by what’s called a “Zoom bomb” or people hacking in. We have that happening in real time in real hearings. We have protesters show up, people making scenes, people holding signs up in hearings. If they make a disruption, they’re asked to leave. We can do the same thing technologically and in some cases it’s much less menacing. 


It’s also important to make sure the person voting is who was elected to vote and we’ve got to make sure there’s clear information available to members of Congress as to what they’re voting on. We may be watching the debate on our screens but maybe we went up to use the bathroom, to get some food or we got distracted, if we come back and there’s a vote been called you have to be able to know in real time exactly what you’re voting on, how it’s been amended and what’s happening. In our system, it’s hugely important that not only know what we’re voting on but I know how each of my colleagues is voting. In our Congress, in the House, when we’re voting on the full house, there is a large panel above the front of the room at which I can look up there and see the names of every one of my colleagues and how they voted: there’s a green light if they voted yes, a red light if they voted no and a yellow light if they voted present, and nothing appears by their name if they have yet to vote. That matters to me, as an elected representative, because sometimes, we tend to vote with our parties, but there’s plenty of freedom for us to vote differently than our parties, and there are times when I’ve looked up on the board, I was planning to vote this way but there are four or five members who I trust and respect and they’re voting differently than I vote. At that point, I usually find one of them on the floor of the House of Representatives, in their seat, and I come over and ask them to share with me their insights. I would recommend that there is a mechanism by which members are able, whether it’s in real time, in-person voting, or remote voting, that you can see how each of your colleagues voted and that you have a direct, immediate real-time way to contact them if you have any questions or concerns. Yes, that can create potential for party chairs to exert pressure on members, but that happens in real time, and I’d rather have more information, and that information includes how other colleagues are voting before I cast my vote. And then importantly, I need to have an easyway to change my vote if I change my mind. That can be done up to a certain time period until the vote is finally called in real time voting, but it needs to be so also, in remote voting. 


Proxy-voting in the U.S. Congress


Our Congress, when they realised they could not meet in-person, used a device called proxy-voting, which had been used before. I don’t like it as much as direct remote voting. In proxy-voting, maybe I’m in Washington State, which is clear across the United States of America, and for safety reasons it’s not wise for me to fly there, because of a pandemic or maybe even if there were threats to our physical safety from attacks from terrorists domestic or foreign. Well, if I can’t fly there I could contact one of my colleagues online and say “look, when this legislation comes up today, I authorise you to vote a certain way on my behalf”, and we would file a paper saying my colleague has the authority to vote on my behalf. 


Well, that’s better than no vote being cast by me at all, but it’s not so good if the nature of the vote has changed, if there has been an amendment offered since I last talked to my colleague, if new information about the bill has emerged since I last talked to my colleague. If those kinds of conditions change, my colleague is only authorised to vote one way, they aren’t authorized to change that vote without my approval. 


So, individuals trying to track down the person who’s voting as their proxy, in real time, as situations are changing, is not easy. I profoundly prefer a remote opportunity so I can change my vote, if I need to, in real time. 


Parliamentary and Committee Staff


Life during the pandemic has changed for members of Congress, but it also has changed profoundly for our personal, our committee and professional staff. If you took our personal staff before, we used to work with them closely, we would spend hours together discussing legislation, meeting with constituents in our congressional districts. Now, many of our staff are working from home, so the ability for us to have direct interaction is hard and also, importantly, staff are feeling isolated in some cases. Whereas, they used to embrace and enjoy the collegiality of having their colleagues right beside them, now they may not see their fellow staff members for a longtime. 


Sadly, we’ve also seen, we’ve had such ugliness and divisiveness in our politics of late, and the January 6th event on the Capitol was terribly shocking. But now, we have staff members who might be frightened for their personal safety, working from home, possibly in the presence of their families, and with no security whatsoever, because while the Capitol building can be secured – it was not well secured on January 6th, but that has been changed – individuals staff members working from home are rather vulnerable and sadly, there have been some bad actors who have exploited that and threatened staff members. 


It’s also true that staff can deal with answering emails, letters or taking phone calls from constituents. Well, imagine if you’re home and maybe you’ve got a three-year-old child crawling around or playing beside you when you get an angry call from a constituent. How do you feel and deal with that angry call while still being a good parent? Finding ways to help our staff deal with the technical tasks they have to deal with while taking care of themselves in a remote interaction can be really hard but very important. We have actually created online webinars to help staff deal with stress, whether it’s the stress of Covid-19 or more recently the stress of the attacks of January 6th, and those have been hugely helpful. 


We’ve created webinars on emotional self-care, on communication with constituents, and we have a group called the congressional management foundation that has led much of that effort, and I’ve been privileged to be part of that, but I urge you to make sure your staff and your other employees are also being taken care of as they try to do their job remotely. 


The Continuity of Congress


The last thing I want to discuss is something that, sadly, we had to deal with at a profound level on September 11th, 2001 and it has been reawakened by Covid-19, and then more recently, the January 6th attacks, and that is how the Congress itself can have continuity. What happens if members of Congress are not able to meet in-person because of a direct terrorist attack or a pandemic threat?


The truth is, without going into too much detail, the United States of America, sadly, is ill-prepared to deal with it. If we lost many members of Congress, in the House or the Senate, replacing House of Representatives members can take months, because that requires a direct special election to be held if a seat becomes vacant due to death or incapacity, and if we don’t have enough members to form a quorum necessary to do business we can have our legislative body effectively frozen until that quorum can be restored. I mentioned this in the context of remote voting for two reasons. We need mechanisms for more rapid replacement, but we also need mechanisms for remote voting and remote hearings so that, for example, if heaven forbid, there were a terrorist attack on the Capitol that killed many members of Congress and made it impossible or unsafe for members to reconvene in the Capitol, we would need to do two things, one replace the members who have perished rapidly, so we can get back to business, and we need a way for members to meet safely, remotely, so that the business of the Country can still be done. 


Why don’t we want this? We don’t want our legislative bodies or our executive branch to be effectively paralysed and incapacitated at a time of the most grave needs and challenges facing our Country. We must make sure the elected representatives in a constitutionally valid and practically manageable way can meet, can take testimony at hearings, can interact with one another and can cast votes which are valid, informed and meaningful that have the full force of the law and that are consistent with our constitutional duties. 


The evidence is clear that remote technologies can help make that happen, but that’s going to require some changes in how we do business, it’s going to require appropriate technologies, some adaptation by the members of Congress and their staff. Most importantly of all, it’s going to require decorum, an absolute commitment to our constitutional duties and a respect for one another, and the tolerance for one another as we seek to function in unusual times, in new ways, which in many ways actually may be of some benefit both in the near term and in the long term. It is such a privilege for all of us to be part of democratic constitutional republics and parliamentary systems, and remote technology is part of how we continue that proud tradition.

[header image source: unsplash] 

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