[Deschler's Precedents]
[From the U.S. Government Printing Office via GPO Access]
[DOCID:52093c01_txt-13]
[Page 72-80]
CHAPTER 1
Assembly of Congress
B. PROCEDURE
Sec. 12. Action on Bills and Resolutions During Organization
As a general principle, resolutions may be offered and acted upon
in both Houses of Congress during the entire period of organization,
from the first call to order to the President's message on the state of
the Union. In addition, a
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major bill may on a rare occasion be considered and passed in both Houses
before organization is completed by the adoption of rules,<SUP>(17)</SUP>
although a bill will not be considered in the House before the
administration of the oath to Members-elect.<SUP>(18)</SUP> Major bills are
not usually considered by the House as a body before rules have been
adopted and before the President has delivered his message to
Congress.<SUP>(19)</SUP> In prevailing practice, numerous ``opening day
bills'' are introduced by House Members at the beginning of a new
Congress, although they may not actually be referred to committee until
a later time.<SUP>(20)</SUP> However, in the Senate the introduction of
bills at the opening of a new Congress, or even at the opening of a new
session, is not generally permitted until after the Presidential
message.<SUP>(1)</SUP>
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17. See Sec. 12.8, infra.
18. 2 USC Sec. 25 requires that the oath be administered to the
Speaker, to Members, and to the Clerk before the House enters
into general business. If the right of individual Members to be
sworn is challenged, however, the House may proceed to business
before resolving the challenges (see Ch. 2, infra). On
occasion, the House has transacted business, including the
adoption of rules, before the election of a Clerk (see 1 Hinds'
Precedents Sec. Sec. 93, 198-203, 240, 242, 244, 245).
19. See Sec. 11, supra, for the time of taking up of legislative
business.
20. See, e.g., Sec. Sec. 12.1, 12.2, infra.
1. See Sec. 12.10, infra (first session); Sec. 11.4, supra (subsequent
session).
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In order to complete organizational business, it is of course
necessary to offer various House resolutions before the adoption of
rules; many of those resolutions, which are customarily drafted to
complete organizational business, are discussed in the preceding
sections of this chapter, and will not be discussed here.<SUP>(2)</SUP>
This section will deal with the general principles that govern the
consideration and passage of bills and resolutions offered before the
adoption of rules.
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2. Examples of such standardized resolutions, whose adoption by the
House is usually perfunctory, are the resolution to proceed to
the election of a Speaker (see Sec. 6, supra), the resolution
to elect officers of the House (see Sec. 7, supra), and the
resolutions to notify the Senate and the President of the
assembly of the House (see Sec. 7, supra).
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Primarily, any resolution affecting the organization of the House
is privileged and takes precedence over other matters before the
adoption of standing rules.<SUP>(3)</SUP> Under general parliamentary
law, one hour of debate is in order on a resolution, the time to be con
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trolled by the proponent thereof;<SUP>(4)</SUP> a resolution offered
before rules are adopted may be withdrawn at any time before action is
taken thereon, without obtaining the consent of the
House.<SUP>(5)</SUP> A pending resolution is not subject to amendment
unless the Member in control yields for that purpose,<SUP>(6)</SUP> or
unless the previous question is moved and rejected.<SUP>(7)</SUP> Any
amendment offered to a resolution during organization is subject to the
requirement that it must be germane.<SUP>(8)</SUP> For example, when an
amendment proposing punishment was offered to a resolution authorizing
the Speaker to administer the oath of office to a Member-elect, the
amendment was ruled not germane, prior to the adoption of standing
rules.<SUP>(9)</SUP>
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3. See 6 Cannon's Precedents Sec. 3.
4. See 5 Hinds' Precedents Sec. 6759; Sec. 12.3, infra.
5. See Sec. 12.4, infra.
6. See Sec. 12.5, infra.
7. See Sec. 12.6, infra. For the treatment of the motion to amend and
the motion for the previous question, prior to the adoption of
rules. see Sec. Sec. 8, 9, supra.
8. See 5 Hinds' Precedents Sec. 6760; Sec. 12.6, infra (resolution
open to germane amendment when previous question rejected).
9. See Sec. 12.7, infra.
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When bills and resolutions are offered on the floor before the
House is organized, they cannot be offered by committee, as committees
have not yet been formally constituted. Most of the organizational
resolutions are offered by ranking party leaders.<SUP>(10)</SUP> The
House does, however, maintain informal committee jurisdiction over some
of the opening functions which require resolutions, such as the
adoption of rules and the fixing of the hour of daily
meeting.<SUP>(11)</SUP> (A bill or resolution on the floor during
organization may be recommitted to a special committee to be appointed
by the Speaker.)<SUP>(12)</SUP>
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10. See, e.g., opening day of the 92d Congress, 117 Cong. Rec 13-16,
Jan. 21, 1971. Olin E. Teague, Chairman, Democratic Caucus,
offered the resolution to elect officers; Wilbur Mills, former
Chairman, Committee on Ways and Means of the 92d Congress,
offered the resolution to notify the Senate of the organization
of the House; Hale Boggs, Majority Leader, offered resolutions
to notify the President of the assembly of Congress and to set
a joint session for the Presidential message; George Mahon,
former Chairman, Committee on Appropriations of the 92d
Congress, offered a resolution to notify the President of the
election of the Speaker and of the Clerk.
11. The resolution to adopt rules and the resolution to fix the hour of
daily meeting were offered at the beginning of the 92d Congress
by William Colmer, former Chairman of the Committee on Rules of
the 92d Congress. 117 Cong. Rec. 14, 15, Jan. 21, 1971.
12. For the motion to recommit and its effect before adoption of rules,
see Sec. 9, supra.
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As to consideration of bills and resolutions before the adoption of
rules, the House proceeds not only under general parliamentary law but
also under the precedents and the rules of prior Congresses. When the
House considered an emergency bill at the beginning of the 73d
Congress, the provision was considered, by unanimous consent, as if
under a rule of the previous Congress restricting debate and
amendments.<SUP>(13)</SUP> But a statute requiring that
proposed resolutions and reports be made available to Members within a
certain time before their consideration on the floor has no effect
prior to the adoption of the rules. Such a statute has been determined
an exercise of the rule making power of the preceding Congress and
therefore not binding on the House before the adoption of current
rules.<SUP>(14)</SUP>
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13. See Sec. 12.8, infra.
14. 117 Cong. Rec. 132, 92d Cong. 1st Sess., Jan. 22, 1971, cited at
Sec. 12.9, infra. The statutory provisions referred to above
were part of the Legislative Reorganization Act of 1970, Pub.
L. No. 91-510, 84 Stat. 1140 [Sec. Sec. 108(b)(4) and 107(b)].
The ruling of the Chair (Speaker Carl Albert) was based in part
on the language of the statute itself, at Sec. 101,
characterizing its own provisions ``as an exercise of the rule-
making power of the House, subject to and with full recognition
of the power of the House to enact or change any rule of the
House at any time in its exercise of its constitutional right
to determine the rules of its proceedings.''
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As stated above, the Senate postpones action on bills at the
beginning of a second or third session until after the Presidential
message. The Senate has also refrained from legislative business during
those protracted periods when the House was unable to elect a
Speaker.<SUP>(15)</SUP> Although there is no occasion where the House
has resumed business before the organization of the Senate at the
beginning of a new Congress, the House has proceeded with general
legislative business at the beginning of a second session before a
quorum had appeared in the Senate.<SUP>(16)</SUP>
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15. See 1 Hinds' Precedents Sec. Sec. 122-25.
16. See 1 Hinds' Precedents Sec. 126.
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Introduction of ``Opening Day Bills''
Sec. 12.1 Where a large number of bills are introduced on the opening
day of the Congress, the Speaker may announce that those bills that
cannot be referred on that day may be included in the next day's
Record and printed with the date of the opening day.
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On Jan. 3, 1957,<SUP>(17)</SUP> Speaker Sam Rayburn, of Texas, made
the following announcement:
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17. 103 Cong. Rec. 50, 85th Cong. 1st Sess.
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As Members are aware, they have the privilege today of
introducing bills. Heretofore on the opening day of a new Congress
several thousand bills have been introduced. It will be readily
apparent to all Members that it may be a physical impossibility for
the Speaker to examine each bill for reference today. The Chair
will do his best to refer as many bills as possible, but he will ask
the indulgence of Members if he is unable to refer all the bills
that may be introduced. Those bills which are not referred and do not
appear in the Record as of today will be included in the next day's
Record and printed with a date as of today.
Sec. 12.2 The Speaker stated that prior to the adoption of rules, bills
could not be introduced and immediately referred to committee, in
the absence of procedure to govern them.
On Jan. 21, 1971,<SUP>(18)</SUP> Speaker Carl Albert, of Oklahoma,
made a statement concerning the introduction and reference of bills
during the organization of the House. He alluded to the practice of
Members of introducing several thousand bills on the opening day of
Congress and to the announcements of past Speakers in relation to the
impossibility of referring them all to committee on opening day. He
then stated:
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18. 117 Cong. Rec. 16, 93d Cong. 1st Sess.
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Since the rules of the 93d Congress have not yet been adopted,
the right of Members to introduce bills, and the authority of the
Speaker to refer them, is technically delayed. The Chair will state
that bills dropped in the hopper will be held until the adoption of
the rules, at which time they will be referred as expeditiously as
possible to the appropriate committee. At that time, the bills
which are not referred and do not appear in the Record as of that
day will be included in the next day's Record and printed with a
date as of the time the rules were adopted.
Action on Resolutions Prior to Adoption of Rules
Sec. 12.3 A resolution offered in the House prior to the adoption of
the standing rules is debatable under the hour rule.
On Jan. 3, 1969,<SUP>(19)</SUP> Speaker John W. McCormack, of
Massachusetts, ruled, prior to the adoption of rules, that one hour of
debate would be in order on a pending resolution, the time to be
controlled by the proponent thereof.
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19. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
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Sec. 12.4 Prior to the adoption of the rules, a resolution may
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be withdrawn at any time before action is taken thereon.
On Jan. 21, 1971,<SUP>(20)</SUP> after immediate consideration was
asked by Mr. William M. Colmer, of Mississippi, on a resolution, he
stated that the wrong resolution had been submitted and requested
unanimous consent to withdraw the resolution. Speaker Carl Al
bert, of Oklahoma, ruled, over objection, that Mr. Colmer had the right
to withdraw the resolution without obtaining unanimous consent.
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20. 117 Cong. Rec. 13, 92d Cong. 1st Sess.
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Sec. 12.5 Prior to the adoption of the rules, a pending resolution is
not subject to amendment unless the Member in control yields for
that purpose, or unless the previous question is rejected.
On Jan. 4, 1965,<SUP>(1)</SUP> Mr. James C. Cleveland, of New
Hampshire, stated a parliamentary inquiry:
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1. 111 Cong. Rec. 20, 89th Cong. 1st Sess.
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Mr. Cleveland: If the resolution is adopted, will it be
impossible for me to offer my own resolution pertaining to the same
subject matter, either as an amendment or a substitute?
The Speaker:<SUP>(2)</SUP> If the resolution is agreed to, it
will not be in order for the gentleman to offer a substitute
resolution or an amendment, particularly if the previous question
is ordered.
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2. John W. McCormack (Mass.).
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Mr. Cleveland: Is it now in order, Mr. Speaker?
The Speaker: Not unless the gentleman from Oklahoma yields to
the gentleman for that purpose.<SUP>(3)</SUP>
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3. The pending resolution was offered by Mr. Carl Albert (Okla.).
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Germaneness of Amendments Prior to Rules Adoption
Sec. 12.6 Ruling by the Speaker that prior to the adoption of the
rules, a pending resolution on which the motion for the previous
question is rejected is open to any germane amendment.
On Jan. 10, 1967,<SUP>(4)</SUP> Speaker John W. McCormack, of
Massachusetts, held that prior to the adoption of rules any germane
amendment would be in order on a resolution for which the previous
question was voted down.
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4. 113 Cong. Rec. 31, 90th Cong. 1st Sess.
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Sec. 12.7 The Speaker held not germane, prior to the adoption of rules,
an amendment adding punishment to a resolution providing that the
Speaker administer the oath of office to a Member-elect.
On Jan. 3, 1969,<SUP>(5)</SUP> following a point of order, Speaker
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5. 115 Cong. Rec. 25, 91st Cong. 1st Sess.
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John W. McCormack, of Massachusetts, held as follows on the germaneness
of an amendment, prior to the adoption of the rules:
The Chair will state . . . that while we are operating under
general parliamentary law . . . volume VIII, section 3384 of
Cannon's Precedents states: ``While the House is governed by
general parliamentary usage prior to the adoption of rules, the
Speakers have been inclined to give weight to the precedents of the
House in the interpretation of that usage.''
The Chair anticipated that the question of germaneness would be
raised and has had the precedents of the House thoroughly
researched.
The Chair might state there was no comparable case that the
Chair can ascertain as a result of research in the annals of the
House. However, it appears to the Chair that the punishment of Mr.
Powell<SUP>(6)</SUP> for acts committed in the 88th or 89th
Congresses, or declaring his seat vacant in the 91st Congress, is
not germane to the proposition that he be now sworn in.
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6. Mr. Adam C. Powell (N.Y.).
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The Chair sustains the point of order.
Consideration of Measures Before Adoption of Rules
Sec. 12.8 When the House considers a major bill before the adoption of
rules, the legislation is considered under general parliamentary
law, embracing not only the forms and precedents recognized over a
period of years but also the rules of prior Congresses, including
past rules restricting debate and amendments.
On Mar. 9, 1933,<SUP>(7)</SUP> the opening day of the 73d Congress,
the House considered a bank bill transmitted by President Franklin D.
Roosevelt to the Majority Leader. Passage was moved on the bill before
printed copies were available for Members, and the bill was considered
under a unanimous-consent procedure restricting debate and amendments:
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7. 77 Cong. Rec. 83, 73d Cong. 1st Sess.
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Mr. Byrns:<SUP>(8)</SUP> Mr. Speaker, I ask unanimous consent
for the immediate consideration of H.R. 1491, and in its
consideration that there shall be 40 minutes of debate, one half of
such time to be controlled by the gentleman from Alabama [Mr.
Steagall] and the other half by the gentleman from Pennsylvania
[Mr. McFadden]; that at the conclusion of the debate the previous
question shall be considered as ordered on the bill to final
passage.
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8. Mr. Joseph W. Byrns (Tenn.).
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Before the request had been agreed to, Mr. William B. Bankhead, of
Alabama, stated a parliamentary inquiry:
As far as I am advised, the House has not yet adopted rules of
procedure for this Congress. As I understand it,
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unless objection is raised, the ordinary proceedings governing the
House during the 72d Congress would prevail in the consideration of
this unanimous consent request?
The Speaker:<SUP>(9)</SUP> The gentleman is correct. . . .
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9. Henry T. Rainey (Ill.).
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Mr. O'Connor:<SUP>(10)</SUP> Just to clear up the parliamentary
situation, as I understand the request of the gentleman from
Tennessee, it involves the consideration of this bill in the House
as though the rules of the 72d Congress
had been adopted, and, as it were, under suspension of the rules;
and the bill will not be subject to amendment. Is this correct?
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10. Mr. John J. O'Connor (N.Y.).
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Mr. Byrns: The bill will not be subject to amendment.
Sec. 12.9 Prior to the adoption of rules, the House operates under
general parliamentary law, and statutory enactments incorporated
into rules of prior Congresses as an exercise of the rule-making
power do not control proceedings of the next House until it adopts
rules incorporating those provisions. Accordingly, prior to the
adoption of rules, the requirement of the Legislative
Reorganization Act of 1970 that proposed resolutions must be
available to Members for three calendar days prior to
consideration<SUP>(11)</SUP> is not in effect.
On Jan. 22, 1971,<SUP>(12)</SUP> Mr. Durwood G. Hall, of Missouri,
made a point of order against a proposed resolution on the ground that
consideration thereof would be ``against the law of the land'', in that
the requirements of the Legislative Reorganization Act of 1970,
Sec. Sec. 108(b) (4) and 107(b), as to the time of availability of
printed reports and resolutions to Members, had not been complied with.
Speaker Carl Albert, of Oklahoma, ruled as follows:
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11. Pub. L. No. 91-510, Sec. Sec. 108(b)(4) and 107(b), 84 Stat. 1140.
12. 117 Cong. Rec. 132, 92d Cong. 1st Sess.
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The Chair would point out to the gentleman from Missouri [Mr.
Hall] that at the present time, as the gentleman from Missouri [Mr.
Richard W. Bolling] has just stated, the House is operating under
the general parliamentary law. No rules have yet been adopted. The
provisions of the Legislative Reorganization Act, while enacted
into law in the 91st Congress, cannot restrict the authority of
this present House, in this 92d Congress, to adopt its own rules.
The Constitution is, of course, superior to any public statute
and the Constitution in article I, section 5, gives each House the
authority to determine the rules of its proceedings, and it has
been repeatedly held that the power of each new House to make its
own rules may not be impaired or controlled by the rules or actions
of a preceding House.
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These principles are, in fact, recognized and enunciated in
Public Law 91-510, the Legislative Reorganization Act. Section 101
of that act states in part that the rules changes recommended
therein are enacted ``as an exercise of the rule-making power of
the House, subject to and with full recognition of the power of the
House to enact or change any rule of the House at any time in its
exercise of its constitutional right to determine the rules of its
proceedings.''
The Chair overrules the point of order.
Senate Practice as to Introduction of Bills During Organization
Sec. 12.10 At the beginning of a Congress the Senate does not
customarily permit the introduction of bills until after the
President has delivered his message on the state of the Union.
On Jan. 5, 1955,<SUP>(13)</SUP> the opening day of the 84th
Congress, Senator Lyndon B. Johnson, of Texas, made an announcement to
the Senate:
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13. 101 Cong. Rec. 7, 84th Cong. 1st Sess.
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As is customary, the Senate will transact no further business
in the way of the introduction of bills or other matters until
after the President has delivered his message on the state of the
Union.<SUP>(14)</SUP>
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14. For an explanation of the custom and its rationale, see Sec. 11.4,
supra.