Vermont's legislative session begins on Wednesday. Lawmakers planned to gather in Montpelier that day, vote to allow remote sessions and then head home, at least for the month of January. It turned out, with coronavirus cases rising, it wasn't safe even to meet once.
"We're all disappointed from a personal perspective and we grieve the loss of personal interaction," says state Rep. Tom Stevens, "but as vectors from every corner fo the state, it would be irresponsible to meet."
Vermont isn’t the only legislature that will remain virtual this year. Around the country, at least a half-dozen legislators have died from COVID-19. Outbreaks among lawmakers and staff have been common in states that have held in-person sessions in recent months.
“One of the first things we did is pass a resolution in the New York Senate that allows us to work remotely,” says Kevin Parker, the chamber’s majority whip. Only leaders and committee chairs actively managing bills tend to show up in Albany. “It’s been a lot different,” Parker says.
Legislating is a relational business. Much of the action happens behind the scenes, in private meetings and casual encounters. It’s easy enough to make speeches on Zoom, but it’s a lot harder to make deals.
For that reason, there are a lot of legislators who insist, in effect, that the show must go on.
“In general, we’re going to return to a fairly traditional legislative session,” says Robin Vos, speaker of the Wisconsin Assembly. “Being able to meet over the Internet is a handy occasional tool, but if we want to have a robust democracy, we have to meet in person. I’m sure people will be wearing masks and socially distancing when they can, just as people do who work in a factory or grocery or thousands of other professions.”
Although there’s a widely-shared desire among legislators to go back to work at the capitol, there’s likely to be a narrow focus in many states. This year’s sessions will largely be dominated by a handful of issues – mainly, the continuing challenges presented by COVID-19, including its impacts on the economy and state budgets, plus redistricting. Other issues may fall by the wayside, especially if there’s limited time available to gather together.
How much time legislators spend together and how sessions will run will look a little different all over the country. In some chambers, Plexiglas has been installed around desks. In others, there won’t be physical changes but there will be temperature checks and perhaps regular testing.
“When we had our special sessions in the summer and fall, we kind of routed where the public could go, where lobbyists could go,” says Missouri Senate Majority Leader Caleb Rowden. “We didn’t allow anyone in our offices. You’re not going to see the gaggles outside the chamber.”
But legislators, for the most part, will be able to look each other in the eye.
“For us, there was a real focus to ensure that members can return to the capitol,” says Hawaii House Majority Leader Della Au Belatti. “That in-person interaction that you have among legislators is very important.”
The Dangers of Meeting
After Republicans won control of the New Hampshire House in November, Dick Hinch was elected as the new speaker. A week later, he died due to COVID-19.
About 80 legislators refused to wear masks at the organizing session. Hinch, who wore a mask, set up a separate seating section for them at the outdoor ceremony, but he’d also attended a separate caucus meeting a week earlier where many attendees did not wear masks or socially distance.
Hinch's death was caused by “toxic peer pressure,” said state Rep. William Marsh, a Republican and a physician. “Those in our caucus who refused to take precautions are responsible for Dick Hinch’s death.”
Legislative meetings contain many elements that help spread the coronavirus. They are large gatherings, held indoors, featuring people talking, often loudly.
At least three South Dakota legislators came down with COVID-19 last month after attending Gov. Kristi Noem’s budget address. The Missouri Senate postponed a special session in November due to a COVID-19 outbreak that followed a mostly unmasked meeting of the GOP caucus. Two Tennessee lawmakers were hospitalized, including one who attended a GOP organizational caucus unmasked. Despite rapid testing of lawmakers as they entered the South Carolina House’s organizational session last month, at least one member was infected.
“COVID has really affected our workflow in the legislature,” Bob Cupp said last month. He’s the speaker of the Ohio House, where multiple members have contracted the disease, including two who were recently hospitalized.
How Best to Prepare
Virginia state Sen. Ben Chafin died from COVID-19 complications last Friday. The Virginia Senate has been meeting at a science museum event center to allow for wide spacing of senators' desks. The Virginia House has been meeting virtually and plans to do so throughout 2021.
Last year, the Arkansas House gathered at one point in a basketball arena to give members more room to spread out. Representatives in Kentucky came to the capitol but at points stayed in their cars, casting votes by text. New Jersey lawmakers approved legislation by conference call.
“In 2020, we saw states look at their constitutions and the question of where the legislature has to take place, does it have to be at the seat of government,” says Natalie Wood, of the National Conference of State Legislatures (NCSL). “In over half the states, one chamber or both adopted rules to allow remote participation on the floor.”
Even after all these months of the pandemic, organizing sessions still had an improvisational air. And the rules put in place for organizing sessions in recent weeks won’t necessarily guide this year’s sessions.
“We start on Jan. 6 and we have some precautions already in place,” says Rowden, the Missouri leader. “We’re going to take the month of January to assess where we are and figure out what the lay of the land looks like from a public health perspective.”
Some states will face unique challenges. In Alaska – where the capital city of Juneau can be reached only by plane or boat – many lawmakers convening from distant districts often bunk together. That won’t be an option this year.
“In normal times, members fly back and forth on a weekly basis,” says Belatti, the Hawaii House leader. “We have a lot of members having to rethink their travel plans, which then makes it difficult for them to stay in touch with their constituents.”
Around the country, lots of legislative leaders and staff are consulting with state or local health officials to figure out which protocols will work best.
“The legislature worked hand-in-hand with the Colorado Department of Public Health and Environment, the governor's office and NCSL to develop safety protocols, including mask recommendations, testing protocols, social distancing precautions and much more,” says Colorado House Majority Leader Daneya Esgar. “We did everything we could to ensure that our three-day, laser-focused special session (in November) was as safe as possible.”
Rules Violations and Risks
Even when rules are carefully put in place, they aren’t always rigorously enforced. Legislators have been known to refuse testing or masks. During Colorado’s special session, lots of GOP legislators didn’t wear masks. The regular session has been postponed for at least a month, due to COVID concerns.
“Generally, the feeling is, if you wear a mask, you’re a Polis supporter,” mask-wearing Republican state Rep. Matt Soper told the Denver Post, referring to Democratic Gov. Jared Polis. “If you don’t wear a mask, you’re a true patriot. And it’s not so much about wearing masks. It’s about being told that you have to wear a mask.”
Last year, Ingham County Health Director Linda Vail chided the Michigan Senate for multiple safety violations during hearings. (A dozen Michigan lawmakers and three times that many legislative staffers have had COVID-19.) "Abiding by current health protocols in these situations is crucial, especially in this moment where we are experiencing a drastic spike in COVID-19 case numbers,” she wrote in a letter to Senate leaders in November. "This is particularly concerning because we know that legislators and members of the public who gather at these meetings travel from various corners of the state and risk bringing the virus back home to their communities.”
That’s also true of witnesses. President Trump’s lawyer Rudy Giuliani testified unmasked before several legislatures, claiming there’d been election irregularities. Soon after, he was briefly hospitalized with COVID-19, leading chambers in Arizona and Michigan to cancel sessions.
Few leaders have been willing to lay down clear benchmarks – if X number of legislators or Y number of staff get infected, the chamber will shut down. Instead, they intend to see how things play out, doing what they can to mitigate the spread. Even when legislators are meeting in person, a lot of hearings and testimony will take place over video.
With cases high all over the country, the risks remain great. As far as some lawmakers are concerned, COVID-19 is still not being taken seriously enough.
“On the same day we learn one of my House colleagues is in the ICU with COVID-19, I was notified that masks will be merely ‘strongly encouraged’ for legislators on the House floor,” Kentucky Democratic state Rep. Josie Raymond tweeted just before Christmas.