House Minority Leader Kevin McCarthy. Photo: Diego M. Radzinschi/ALM

House Republicans have tapped leading conservative attorney Chuck Cooper to handle a lawsuit challenging the U.S. House of Representatives' new rules on proxy voting, alleging the system is unconstitutional and dilutes the votes of members who are physically present in the chamber.

The lawsuit, filed in the U.S. District Court of the District of Columbia on Tuesday evening, alleges House members must be physically present in order to reach a quorum and then vote. Four constituents are also behind the complaint.

"It is simply impossible to read the Constitution and overlook its repeated and emphatic requirement that members of Congress actually assemble in their respective chambers when they vote, whether on matters as weighty as declaring war or as ordinary as naming a bridge," the complaint reads. "That requirement is no less mandatory in the midst of a pandemic, as the House's forebears amply demonstrated when facing a far more deadly pandemic a little more than a century ago. A majority of the House may have voted to ignore what the Constitution demands of it, but this court may not do the same."

The complaint cites other examples where the House has not invoked proxy voting, including after the 9/11 terror attacks and the influenza pandemic of 1918.

Cooper of Cooper & Kirk is leading the lawsuit and Berke Farah is co-counsel in the challenge, firm partner Elliot Berke confirmed ahead of the complaint's filing Tuesday. Berke is outside counsel for House Minority Leader Kevin McCarthy and House Republican Conference Chair Liz Cheney.

The Wall Street Journal first reported the Republicans' planned lawsuit.

This is not Cooper's first legal showdown with House Democrats. Cooper, who represented former national security adviser John Bolton, filed a lawsuit last year on behalf of Bolton's former deputy Charles Kupperman on whether Kupperman had to comply with a congressional subpoena for his testimony in the impeachment inquiry. House Democrats withdrew the subpoena to avoid a lengthy court fight, and a federal judge dismissed the suit. Cooper also represented former U.S. Attorney General Jeff Sessions.

The House earlier this month voted along party lines to adopt a proxy voting system during the COVID-19 pandemic. Speaker Nancy Pelosi invoked the temporary rule change last week, and it will expire after 45 days.

House general counsel Douglas Letter is tied to dozens of federal lawsuits, several of which are high-profile fights with the Trump administration. Earlier this month he argued on behalf of the House's authority to subpoena financial institutions for President Donald Trump's tax records, and the outcome of that case is set to shape Congress' ability to conduct oversight, regardless of which party controls the congressional bodies.

However, legal challenges filed by individual members of Congress against the administration have struggled to stick in court. The U.S. Court of Appeals for the D.C. Circuit earlier this year ruled that more than 200 individual members of Congress lacked standing to sue Trump for alleged violations of the Constitution's emoluments clause.

The U.S. Supreme Court's 1997 ruling in Raines v. Byrd, which has been repeatedly raised as the Trump Justice Department argues the House cannot sue the executive branch, found individual congressmen did not have Article III standing to challenge the Line Item Veto Act—which they had voted against—because they could not show the law personally injured them instead of the House as a whole.

And even the lawsuits filed on behalf of the House as a whole faced a new hurdle earlier this year, when a divided three-judge panel on the D.C. Circuit found the House lacked Article III standing to seek judicial enforcement of their subpoenas, a stunning ruling that could doom several congressional lawsuits against the Trump administration. The en banc circuit vacated the ruling and last month heard arguments in the case, focused on the standing issue.

But this complaint will force attorneys for House Republicans and the House majority, controlled by Democrats, to face off against each other in court. Letter, who represents the House and lawmakers' interests in court, reports to the Bipartisan Legal Advisory Group, a group of the top five House lawmakers who vote to authorize the chamber's actions in court. McCarthy and House Minority Whip Steve Scalise, who are named in Tuesday's complaint, are both in the BLAG.

Three Democrats currently sit in the group, including Pelosi, meaning they ostensibly control the House's litigation strategy.

Past House general counsels have told The National Law Journal that as Capitol Hill has become more polarized, leading lawmakers are more willing to use litigation as a way to achieve their goals. "As the leadership became more active and controlling, I think that's the way they wanted their attorneys to act," Thomas Spulak, a partner with King & Spalding and former House general counsel from 1994 to 1995, said in a recent interview of House leadership in the late 1990s.

However, former counsel have stressed the ongoing House lawsuits are about institutional injuries and not political issues, despite them playing out amid rampant partisan clashes.

Read the complaint: