[Deschler's Precedents]
[From the U.S. Government Printing Office via GPO Access]
[DOCID:52093c02_txt-7]
[Page 127-135]
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 6. Challenging the Right to be Sworn
When the Speaker directs the membership-elect of the House to arise
to take the oath of office, any Member-elect may challenge the right of
any other Member-elect to be sworn at that time.<SUP>(15)</SUP> In
stating his objection to the right of another to be sworn, the Member-
elect must base his challenge either on his own responsibility as a
Member-elect, or on specific grounds.<SUP>(16)</SUP> If neither basis
is stated to support the challenge, the House may decline to entertain
it.<SUP>(17)</SUP> A Member-elect may also challenge the right of an
entire state delegation to be administered the oath.<SUP>(18)</SUP>
Usually, such a challenge relates not to the qualifications or
elections of the individual members of the state delegation, but to the
status of the constituency.<SUP>(~19)</SUP>
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15. For the procedure of challenging, see Sec. 6.1, infra. The
authority to challenge the right of a Member-elect to be sworn
is based on U.S. Const. art. I, Sec. 5, clause 1, which
constitutes the House as the sole judge of the elections,
returns, and qualifications of Members. Challenges are made
before the oath is administered because the oath is given under
art. VI, clause 3, to ``Representatives before mentioned'',
meaning those who meet the qualifications and election
requirements stated in the Constitution. The right of one
Member-elect not yet sworn to challenge the right of another
not yet sworn is unquestioned (see 1 Hinds' Precedents
Sec. 141).
House as judge of qualifications, see The Power of a House
of Congress to Judge the Qualifications of Its Members, 81
Harv. L. Rev. 673-84 (Jan. 1968).
16. See Sec. 6.2, infra.
17. 1 Hinds' Precedents Sec. 455.
18. See, for example, 1 Hinds' Precedents Sec. Sec. 457, 460-462.
19. See Parliamentarian's Note, Sec. 6.4, infra (systematic state
denial of voting rights). For occasions following the Civil War
when entire state delegations were challenged on the ground of
collective disloyalty, see 1 Hinds' Precedents Sec. Sec. 457,
460-462.
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When a challenge is proposed, the Speaker asks the challenged
Member(s) not to rise to take the oath with the rest of the membership,
as the House and not the Speaker determines both the preliminary and
the final action to be taken on any challenges.<SUP>(20)</SUP>
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20. See Sec. 6.1, infra. The statement has been made that the Speaker
may, but is not required to, direct the challenged Member-elect
to stand aside (1 Hinds' Precedents Sec. Sec. 143-146). The
Speaker has held, however, that such request is a matter of
order, for the convenience of procedure (1 Hinds' Precedents
Sec. 145). The Speaker has recently held that debate on the
right to be sworn of a challenged Member-elect is not in order
until after the remaining Members have been sworn (see
Sec. 6.3, infra).
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When the right to be sworn of an individual Member-elect is
challenged, he generally loses no rights thereby,<SUP>(1)</SUP> except
for his right to vote.<SUP>(2)</SUP> While his case is pending, he may
be permitted to debate his own right to the seat,<SUP>(3)</SUP> and may
serve on committees.<SUP>(4)</SUP> Challenged cases are taken up in the
order in which challenges were made.<SUP>(5)</SUP>
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1. See 1 Hinds' Precedents Sec. 155. See Sec. 2, supra, for the status
of Members-elect.
2. After the membership of the House has been sworn in en masse,
Members-elect who have not taken the oath due to absence or due
to challenges are not entitled to vote until being sworn. See
Sec. 2.2, supra.
3. See Sec. 2.5, supra. Rule XXXII clause 1, House Rules and Manual
Sec. 919 (1973) grants the privilege of the floor to
contestants in election cases.
4. See 4 Hinds' Precedents Sec. 4483. This is the traditional view, as
stated by Jefferson's Manual: ``. . . Before a return be made a
Member elected may be named of a committee, and is to every
extent a Member except that he cannot vote until he is sworn.''
House Rules and Manual Sec. 300 (1973). For a summary of the
rights and privileges of Members-elect not yet sworn, see
Sec. 2, supra.
5. See 1 Hinds' Precedents Sec. Sec. 147, 148. Where a division is
demanded on one resolution to seat several claimants, the oath
may be administered to each as soon as his case is decided (see
1 Hinds' Precedents Sec. 623).
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The pendency of a challenge does not preclude the entertainment of
other business before the House, and all other organizational business
may be completed before a challenge is resolved.<SUP>(6)</SUP> By
unanimous consent, the House may also proceed to general legislative
business pending consideration of the right of a Member to be
sworn.<SUP>(7)</SUP>
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6. See 1 Hinds' Precedents Sec. 474.
7. See 1 Hinds' Precedents Sec. Sec. 151, 152.
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After the unchallenged membership of the House has been sworn, some
preliminary action is usually taken on each challenge. The House may
simply seat a Member by authorizing the administration of the oath;
such a resolution may determine his prima facie as well as final right
to the seat.<SUP>(8)</SUP> A com
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mon type of resolution authorizes the administration of the oath to the
challenged Member-elect based on his prima facie right to the seat, but
refers the determination of his final right to committee.<SUP>(9)</SUP>
The third type of resolution refers the prima facie as well as the
final right to the seat to committee, without authorizing the
administration of the oath.<SUP>(10)</SUP> The determination by the
House as to which kind of resolution to adopt depends on both the
sufficiency of the credentials and on the strength of the grounds for
challenge.<SUP>(11)</SUP>
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8. See, for example, the resolution at Sec. 6.5, infra. The Member
proposing a resolution to seat a challenged Member-elect may,
prior to the adoption of rules, move the previous question and
cut off all debate on the subject, since House Rule XXVII
clause 3 (House Rules and Manual Sec. 907 [1973]), allowing 40
minutes debate in certain situations when the previous question
is moved, is inapplicable prior to the adoption of rules (see
Ch. 1, supra, for a full discussion; see Sec. 5.5, supra, for a
recent instance thereof). If the previous question is rejected,
or if the proposing Member yields for the purpose, amendments
may be offered, if germane, to a resolution authorizing the
administration of the oath to a Member-elect (see Ch. 1,
Sec. 12, supra, for a general discussion; see Ch. 1, Sec. 12.7,
supra, for an occasion where such an amendment was held not
germane).
9. Admission on prima facie right, without regard to final right,
usually occurs when the Member-elect comes from a recognized
constituency, vith credentials in due form and with
unquestioned qualifications (see 1 Hinds' Precedents
Sec. Sec. 528-534)
10. See Sec. Sec. 6.6, 6.7, infra.
11. For specific election contests and House action thereon, see Ch. 9,
infra.
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Except for the exclusion of Members-elect from the Clerk's roll for
irregularities in credentials, no action is taken upon the right of a
Member-elect to his seat until the time comes for his taking the oath.
Therefore, when a Representative-elect was excluded from the 90th
Congress and was re-elected to the same Congress after a vacancy in the
seat had been declared, Speaker John W. McCormack, of Massachusetts,
ruled that no action would be taken upon his right to membership until
he appeared to take the oath and was challenged once
again.<SUP>(12)</SUP>
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12. See Sec. 6.8, infra, for the ruling. See Sec. 6.9, infra, for the
challenge that was made when the Representative-elect appeared
to take the oath.
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Forms
Form of resolution providing that a Member, who had been asked
to stand aside when the oath was administered to the other Members,
be permitted to take the oath of office.
Resolved, That the gentleman from Missouri, Mr. Morgan M.
Moulder, be now permitted to take the oath of
office.<SUP>(13)</SUP>
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13. 107 Cong. Rec. 24, 87th Cong. 1st Sess., Jan. 3, 1961.
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Form of resolution authorizing the Speaker to administer the
oath of office to a challenged Member-elect and providing that the
question of final right to his seat be referred to the Committee on
House Administration.
Resolved, That the Speaker is hereby authorized and
directed to administer the oath of office to the gentleman from
Arkansas, Mr. Dale Alford.
Resolved, That the question of the final right of Dale
Alford to a seat in the 86th Congress be referred to the
Committee on House Administration, when elected, and said
committee shall have the power to send for persons and papers
and examine witnesses on oath in relation to the subject matter
of this resolution.<SUP>(14)</SUP>
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14. 105 Cong. Rec. 14, 86th Cong. 1st Sess., Jan. 7, 1959.
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Form of resolution providing that the question of the right of
either of two contestants for a seat be referred to the Committee
on House Administration, and providing that until that committee
has reported, and the House decided, neither the Member-elect nor
the contestee should take the oath of office.
Resolved, That the question of the right of J. Edward Roush
or George O. Chambers, from the Fifth Congressional District of
Indiana, to a seat in the 87th Congress be referred to the
Committee on House Administration, when elected, and said
committee shall have the power to send for persons and papers
and examine witnesses on oath in relation to the subject matter
of this resolution; and be it further.
Resolved, That until such committee shall report upon and
the House decide the question of the right of either J. Edward
Roush or George O. Chambers to a seat in the 87th Congress,
neither shall be sworn.<SUP>(15)</SUP>
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15. 107 Cong. Rec. 24, 87th Cong. 1st Sess., Jan. 3,
1961. -------------------
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Form and Procedures of Challenges
Sec. 6.1 A Member-elect challenges the right of another Member-elect to
take the oath prior to the swearing in of Members-select en masse,
whereupon the Speaker requests the challenged Member-elect to stand
aside.
On Jan. 5, 1937,<SUP>(16)</SUP> after Speaker William B. Bankhead,
of Alabama, had requested the membership of the House to rise for the
administration of the oath of office, Mr. John J. O'Connor, of New
York, arose and said:
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16. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
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Mr. Speaker, I ask that the gentleman from New Hampshire [Mr.
Jenks] stand aside.
Despite the fact that a certificate of his election has been
filed with the Speaker, it may be impeached by certain facts which
tend to show that he has not received a plurality of the votes duly
cast in that congressional district.
The Speaker: The gentleman from New Hampshire will stand aside
momentarily.<SUP>(17)</SUP>
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17. For examples of similar requests by the Speaker when challenges
have been made, see 111 Cong. Rec. 18, 19, 89th Cong. 1st
Sess., Jan. 4, 1965; 113 Cong. Rec. 14, 90th Cong. 1st Sess.,
Jan. 10, 1967; 115 Cong. Rec. 15, 91st Cong. 1st Sess., Jan. 3,
1969.
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Sec. 6.2 A Member-elect challenging the right of another to be sworn
offers, as a basis for challenge, either his own responsibility as
a Member-elect, or the strength of documents, or both.
On Jan. 10, 1967,<SUP>(18)</SUP> Member-elect Lionel Van Deerlin,
of California, stated a challenge to the right of another Member-elect
to be sworn in the following terms:
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18. 113 Cong. Rec 14, 90th Cong. 1st Sess.
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Mr. Speaker, upon my responsibility as a Member-elect of the
90th Congress, I object to the oath being administered at this time
to the gentleman from New York [Mr. Adam C. Powell]. I base this
upon facts and and statements which I consider reliable. ...
The same language has often been used to propose
challenges,<SUP>(19)</SUP> although on Jan. 3, 1937,<SUP>(20)</SUP>
Member-elect John J. O'Connor, of New York, stated a challenge not on
the basis of his responsibility but on facts tending to show that the
challenged Member-elect had not received a plurality of votes in the
district from which elected.<SUP>(1)</SUP>
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19. See, e.g., statement of Mr. William F. Ryan (N.Y.), 111 Cong. Rec.
18, 89th Cong. 1st Sess., Jan. 4, 1965; statement of Mr.
Clifford Davis (Tenn.), 107 CONG. REC. 23, 87th Cong. 1st
Sess., Jan 3, 1961.
20. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
1. If a challenge does not propose either the strength of documents or
the responsibility of the challenging Member-elect, the House
will not entertain it. 1 Hinds' Precedents Sec. 455.
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Debate on Challenges
Sec. 6.3 It is not in order to debate a challenged Member's right to
take the oath of office at the beginning of a Congress until the
remaining Members-elect have been sworn in.
On Jan. 5, 1937,<SUP>(2)</SUP> after Mr. John J. O'Connor, of New
York, had challenged the right of a Member-elect to take the oath, Mr.
Bertrand H. Snell, of New York, arose to state certain remarks as to
the certificate held by the challenged Member-elect and as to the
principle that in standing aside, the challenged Member-elect yielded
none of his rights or privileges as a Member of the House. Mr. O'Connor
then arose to state a point of order, as follows:
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2. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
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Mr. O'Connor: Mr. Speaker, I make the point of order that at
this par
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ticular time the matter is not debatable. . . .
Mr. Snell: I think I have the right to make this statement now
and under the circumstances should be allowed to make it.
The Speaker:<SUP>(3)</SUP> The request made by the gentleman
from New York was that the gentleman holding the certificate of
election from the State of New Hampshire stand aside momentarily.
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3. William B. Bankhead (Ala.).
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The Chair is of the opinion that he waives no rights and just
as soon as the other Members take the oath the matter can be
settled. ...
The Chair will recognize the gentleman later if he desires to
extend his argument.
Challenge to a Delegation
Sec. 6.4 The right of an entire state delegation of Representatives-
elect to take the oath may be challenged.
On Jan. 4, 1965,<SUP>(4)</SUP> Mr. William F. Ryan, of New York,
challenged, on his behalf and on the behalf of a number of colleagues,
the right of the Representatives-elect from Mississippi (Mr. Abernathy,
Mr. Whitten, Mr. Williams, Mr. Walker, and Mr. Colmer) to take the oath
of office. Speaker John W. McCormack, of Massachusetts, requested the
Representatives-elect from Mississippi as well as a challenged Member-
elect from another state not to rise to take the oath with the other
Members being sworn in en masse.
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4. 111 Cong. Rec. 18, 19, 89th Cong. 1st Sess.
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Parliamentarian's Note: The challenge to the Mississippi delegation
was based on the constitutional argument that systematic denial of
Negro voting rights throughout Mississippi invalidated the election of
the entire House delegation from that state.
Sec. 6.5 The House may authorize, through one resolution, the
administration of the oath to an entire state delegation which has
been challenged.
On Jan. 4, 1965,<SUP>(5)</SUP> after unchallenged Members of the
House had been sworn in, the following resolution was offered, in
relation to an entire state delegation that had been challenged:
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5. 111 Cong. Rec. 18, 19, 89th Cong. 1st Sess.
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Resolved, That the Speaker is hereby authorized and directed to
administer the oath of office to the gentlemen from Mississippi,
Mr. Thomas G. Abernathy, Mr. James L. Whitten, Mr. John Bell
Williams, Mr. William M. Colmer, and Mr. Prentiss Walker.
Immediately after the adoption of the resolution, the five Members-
elect from Mississippi were sworn in all at one time.
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Preliminary House Action on Challenges
Sec. 6.6 When two persons claimed a seat in the House from the same
congressional district, one with a certificate of election signed
by the Governor of the state and the other with a certificate of
election from a citizens' election committee of the congressional
district, the House refused to permit either to take the oath of
office and referred the question of their prima facie as well as
final right to the seat to the Committee on Elections.
On Jan. 3, 1934,<SUP>(6)</SUP> the Clerk of the House, South
Trimble, transmitted to the House a signed certificate of the Governor
of Louisiana attesting to the election of Mrs. Bolivar E. Kemp, Sr., to
fill the vacancy caused by the death of the Honorable Bolivar E. Kemp.
He also transmitted a communication from the Citizens' Election
Committee of the Sixth Congressional District of the State of Louisiana
in the form of a certificate of election of Mr. J.Y. Sanders, Jr., to
fill the same vacancy. The House then adopted the following resolution:
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6. 78 Cong. Rec. 11, 12, 73d Cong. 2d Sess.
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Resolved, That the question of prima facie as well as the final
right of Mrs. Bolivar E. Kemp, Sr., and J.Y. Sanders, Jr.,
contestants, respectively, claiming a seat in this House from the
Sixth District of Louisiana, be referred to the Committee on
Elections No. 3; and until such committee shall have reported in
the premises and the House decided such question neither of said
contestants shall be admitted to a seat.
Sec. 6.7 The House agreed to a resolution excluding a Member-elect
pending an investigation of his right to the seat, which referred
to a select committee questions of his right to be sworn and to
take the seat, permitted him pay and allowances of the House
pending a final determination, and required the committee to report
back to the House within a prescribed time.
On Jan. 10, 1967,<SUP>(7)</SUP> the House agreed to a resolution
excluding Mr. Adam C. Powell, Jr., of New York, from his seat pending
the final determination of his right to be sworn:
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7. 113 Cong. Rec. 24-26, 90th Cong. 1st Sess.
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Resolved, That the question of the right of Adam Clayton Powell
to be sworn in as a Representative from the State of New York in
the Ninetieth Congress, as well as his final right to a seat
therein as such Representative, be referred to a special committee
of
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nine Members of the House to be appointed by the Speaker, four of
whom shall be Members of the minority party appointed after
consultation with the minority leader. Until such committee shall
report upon and the House shall decide such question and right, the
said Adam Clayton Powell shall not be sworn in or permitted to
occupy a seat in this House.
For the purpose of carrying out this resolution the committee,
or any subcommittee thereof authorized by the committee to hold
hearings, is authorized to sit and act during the present Congress
at such times and places within the United States, including any
Commonwealth or possession thereof, or elsewhere, whether the House
is in session, has recessed, or has adjourned, to hold such
hearings, and to require, by subpoena or otherwise, the attendance
and testimony of such witnesses and the production of such books,
records, correspondence, memorandums, papers, and documents, as it
deems necessary; except that neither the committee nor any
subcommittee thereof may sit while the House is meeting unless
special leave to sit shall have been obtained from the House.
Subpoenas may be issued under the signature of the chairman of the
committee or any member of the committee designated by him, and may
be served by any person designated by such chairman or member.
Until such question and right have been decided, the said Adam
Clayton Powell shall be entitled to all the pay, allowances, and
emoluments authorized for Members of the House.
The committee shall report to the House within five weeks after
the members of the committee are appointed the results of its
investigation and study, together with such recommendations as it
deems advisable. Any such report which is made when the House is
not in session shall be filed with the Clerk of the House.
Challenge to Member Once Excluded
Sec. 6.8 Where a Representative-elect, excluded from membership in a
particular Congress is re-elected to the same Congress, it is for
the House to determine the procedure to be followed if and when he
appears to take the oath; no action is taken until such time that
the Representative-elect appears to take the oath and is again
challenged.
On May 1, 1967,<SUP>(8)</SUP> Speaker John W. McCormack, of
Massachusetts, responded to a parliamentary inquiry as to the necessity
of the House to take affirmative action when a Representative-elect,
excluded from membership ``in the Ninetieth Congress'', by resolution,
was re-elected to the same Congress. The Speaker stated that when the
Member appeared, if he was challenged, it would be a matter for the
House to decide and for the
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House to express its will upon. He stated that the leadership intended
to take no action with regard to the seating of such Member until he
appeared to take the oath.
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8. 113 Cong. Rec. 11298, 90th Cong. 1st Sess.
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Sec. 6.9 The right to take the oath of a Member-elect. who had been
excluded by resolution from membership in the 90th Congress, was
challenged in the 91st Congress.
On Jan. 3, 1969,<SUP>(9)</SUP> the right to be sworn of Mr. Adam C.
Powell, Jr., of New York, Representative-elect to the 91st Congress,
was challenged. Mr. Powell had been excluded by the House from
membership in the 90th Congress. The Speaker<SUP>(10)</SUP> asked Mr.
Powell to stand aside while the oath of office was administered to the
other Members.
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9. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
10. John W. McCormack (Mass.).
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Senate Challenges
Sec. 6.10 On one occasion, a Senator-elect died while there was pending
in the Senate a question as to his right to take the oath of
office.
On Jan. 4, 1947,<SUP>(11)</SUP> the Senate laid on the table the
credentials of Mr. Theodore G. Bilbo, of Mississippi, whose seat was
challenged, pending the improvement of his physical condition. Mr.
Bilbo died on Aug. 21, 1947, before the matter was again brought before
the Senate.
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11. 93 Cong. Rec. 109, 80th Cong. 1st Sess.