[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 4-61]
[DOCID:hrmanual-3]
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ARTICLE I.
Section 1. All <<NOTE: Sec. 3. Legislative powers vested in
Congress.>> legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House
of Representatives.
The power to legislate includes the power to conduct inquiries and
investigations. See Kilbourn v. <<NOTE: Sec. 4. Power to
investigate.>> Thompson, 103 U.S. 168 (1881); McGrain v. Daugherty, 273
U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957);
Barenblatt v. United States, 360 U.S. 109 (1959). For the power of the
House to punish for contempt in the course of investigations, see
Sec. 293, infra.
<<NOTE: Sec. 5. Members chosen by the people of the States every second
year.>> Section 2. \1\ The House of Representatives shall be composed
of Members chosen every second Year by the People of the several States,
* * *.
This clause requires election by the people and State authority may
not determine a tie by lot (I, 775).
The phrase ``by the people of the several States'' means that as
nearly as practicable one person's vote in a congressional election is
to be worth as much as another's. Wesberry v. Sanders, 376 U.S. 1
(1964); Kirkpatrick v. Preisler, 385 U.S. 450 (1967). 2 U.S.C. 2a
mandates apportionment of Representatives based upon population, and 2
U.S.C. 2c requires the establishment by the States of single-Member
congressional districts. For elections generally, see Deschler's
Precedents, vol. 2, ch. 8.
The term of a <<NOTE: Sec. 6. Term of a Congress.>> Congress, before
the ratification of the 20th amendment to the Constitution, began on the
4th of March of the odd numbered years and extended through two years.
This resulted from the action of the Continental Congress on September
13, 1788, in declaring, on authority conferred by the Federal
Convention, ``the first Wednesday in March next'' to be ``the time for
commencing proceedings under the said Constitution.'' This date was the
4th of March, 1789. And soon after the first Congress assembled a joint
committee determined that the terms of Representatives and Senators of
the first class commenced on that day, and must necessarily terminate
with the 3d of March, 1791 (I, 3). Under the 20th amendment to the
Constitution the terms of Representatives and Senators begin on the 3d
of January of the odd-numbered years, regardless of when Congress
actually convenes. By a practice having the force of common law, the
House meets at 12 m. when no other hour is fixed (I. 4, 210). In the
later practice a
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resolution fixing the daily hour of meeting at 12
o'clock meridian or some other hour is agreed to at the beginning of
each session.
Prior to adoption of the 20th amendment, the legislative day of March
3 extended to 12 m. on March 4 (V, 6694-6697) and, unless earlier
adjourned, the Speaker could at that time declare the House adjourned
sine die, without motion or vote, even to the point of suspending a roll
call then in progress (V, 6715-6718).
The Legislative Reorganization Act of 1970 (84 Stat. 1140) provides
that unless Congress otherwise specifies the two Houses shall adjourn
sine die not later than the last day in July. This requirement is not
applicable, under the terms of that Act, where a state of war exists
pursuant to a Congressional declaration or where, in an odd-numbered
(non-election) year, the Congress has agreed to adjourn for the month
preceding Labor Day. For more on this provision, see Sec. 947, infra.
<<NOTE: Sec. 7. Electors of the House of Representatives.>> * * * and
the Electors in each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State Legislature.
The House, in the decision of an election case, has rejected votes
cast by persons not naturalized citizens of the United States, although
they were entitled to vote under the statutes of a State (I, 811); but
where an act of Congress had provided that a certain class of persons
should be deprived of citizenship, a question arose over the proposed
rejection of their votes in a State wherein citizenship in the United
States was not a qualification of the elector (I, 451). In an
exceptional case the House rejected votes cast by persons lately in
armed resistance to the Government, although by the law of the State
they were qualified voters (I, 448); but later, the House declined to
find persons disqualified as voters because they had formerly borne arms
against the Government (II, 879).
The power <<NOTE: Sec. 8. Decisions of the Court.>> of the States to
set qualifications for electors is not unlimited, being subject to the
15th, 19th, 24th, and 26th amendments, and to the equal protection
clause of the United States Constitution. Carrington v. Rash, 380 U.S.
89 (1965); Kramer v. Union Free School District, 395 U.S. 621 (1969).
Congress has some power in setting qualifications for electors, as in
protecting the right to vote and lowering the minimum age for electors
in congressional elections. Katzenbach v. Morgan, 384 U.S. 641 (1966);
Oregon v. Mitchell, 400 U.S. 112 (1970).
<<NOTE: Sec. 9. Age as a qualification of the Representative.>> \2\ No
Person shall be a Representative who shall not have attained to the Age
of twenty five Years, * * *.
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A Member-elect not being of the required age, was not enrolled by the
Clerk and he did not take the oath until he had reached the required age
(I, 418).
<<NOTE: Sec. 10. Citizenship as a qualification of the Member.>> * * *
and been seven Years a Citizen of the United States, * * *.
Henry Ellenbogen, Pa., had not been a citizen for seven years when
elected to the 73d Congress, nor when the term commenced on March 4,
1933. He was sworn at the beginning of the second session on January 3,
1934, when a citizen for seven and one-half years (see H. Rept. 1431 and
H. Res. 370, 73d Cong.). A native of South Carolina who had been abroad
during the Revolution and on his return had not resided in the country
seven years, was held to be qualified as a citizen (I, 420). A woman who
forfeited her citizenship through marriage to a foreign subject and
later resumed it through naturalization less than seven years prior to
her election, was held to fulfill the constitutional requirement as to
citizenship and entitled to a seat in the House (VI, 184). A Member who
had long been a resident of the country, but who could not produce
either the record of the court nor his final naturalization papers, was
nevertheless retained in his seat by the House (I, 424).
<<NOTE: Sec. 11. Inhabitancy as a qualification of the Member.>> * * *
and who shall not, when elected, be an Inhabitant of that State in which
he shall be chosen.
The meaning of the word ``inhabitant'' and its relation to citizenship
has been discussed (I, 366, 434; VI, 174), and the House has held that a
mere sojourner in a State was not qualified as an inhabitant (I, 369),
but a contestant was found to be an actual inhabitant of the State
although for sufficient reason his family resided in another State (II,
1091). Residence abroad in the service of the Government does not
destroy inhabitancy as understood under the Constitution (I, 433). One
holding an office and residing with his family for a series of years in
the District of Columbia exclusively was held disqualified to sit as a
Member from the State of his citizenship (I, 434); and one who had his
business and a residence in the District of Columbia and had no business
or residence in Virginia was held ineligible to a seat from that State
(I, 436). One who had a home in the District of Columbia, and had
inhabited another home in Maryland a brief period before his election,
but had never been a citizen of any other State, was held to be
qualified (I, 432). Also a Member who had resided a portion of a year in
the District of Columbia, but who had a home in the State of his
citizenship and was actually living there at the time of the election,
was held to be qualified (I, 435). In the Updike v. Ludlow case, 71st
Congress, it was decided that residence in the District of Colum-
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bia for years as a newspaper correspondent and maintenance there of
church membership were not considered to outweigh payment of poll and
income taxes, ownership of real estate, and a record for consistent voting
in the district from which elected (VI, 55), and in the same case excuse
from jury duty in the District of Columbia on a plea of citizenship in
the State from which elected and exercise of incidental rights of such
citizenship, were accepted as evidence of inhabitancy (VI, 55).
Whether Congress <<NOTE: Sec. 12. Qualifications other than those
specified by the Constitution.>> may by law establish qualifications
other than those prescribed by the Constitution has been the subject of
much discussion (I, 449, 451, 457, 458, 478); but in a case wherein a
statute declared a Senator convicted of a certain offense ``forever
thereafter incapable of holding any office of honor, trust, or profit
under the Government of the United States,'' the Supreme Court expressed
the opinion that the final judgment of conviction did not operate, ipso
facto, to vacate the seat or compel the Senate to expel or regard the
Senator as expelled by force alone of the judgment (II, 1282). Whether
the House or Senate alone may set up qualifications other than those of
the Constitution has also been a subject often discussed (I, 414, 415,
443, 457, 458, 469, 481, 484). The Senate has always declined to act on
the supposition that it had such a power (I, 443, 483), and during the
stress of civil war the House of Representatives declined to exercise
the power, even under circumstances of great provocation (I, 449, 465).
But later, in one instance, the House excluded a Member-elect on the
principal argument that it might itself prescribe a qualification not
specified in the Constitution (I, 477). The matter was extensively
debated in the 90th Congress in connection with the consideration of
resolutions relating to the seating of Representative-elect Adam C.
Powell of New York (H. Res. 1, Jan. 10, 1967, p. 14; H. Res. 278, Mar.
1, 1967, p. 4997).
The exclusion of Mr. Powell was the subject of litigation reaching the
Supreme Court of the United States. In Powell v. McCormack, 395 U.S. 486
(1969), the Court found that the power of Congress to judge the
qualifications of its Members was limited to an examination of the
express qualifications stated in the Constitution.
It has been decided by the House and Senate that no State may add to
the qualifications prescribed by the Constitution (I, 414-416, 632); and
the Supreme Court so ruled in U.S. Term Limits, Inc., v. Thorton, 63
U.S.L.W. 4413 (1995). There, the Court held that States may not
``change, add to, or diminish'' constitutional qualifications of
Members, striking down a State statute prohibiting three-term incumbents
from appearing on the general election ballot. For qualifications
generally, see Deschler's Precedents, vol. 2, ch. 7, secs. 9-14.
For expulsion of seated Members, which requires a two-thirds vote
rather than a majority vote, see article I, section 5, clause 2
(Sec. 62, infra).
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Both Houses of <<NOTE: Sec. 13. Minority candidate not seated when
returned Member is disqualified.>> Congress have decided, when a Member-
elect is found to be disqualified, that the person receiving the next
highest number of votes is not entitled to the seat (I, 323, 326, 450,
463, 469; VI, 58, 59), even in a case wherein seasonable notice of the
disqualification was given to the electors (I, 460). In the event of the
death of a Member-elect, the candidate receiving the next highest number
of votes is not entitled to the seat (VI, 152).
\3\ [Representatives and direct <<NOTE: Sec. 14. The old provision for
apportionment of Representatives and direct taxes.>> Taxes shall be
apportioned among the several States which may be included within this
Union, according to their respective Numbers, which shall be determined
by adding to the whole Number of free Persons, including those bound to
Service for a Term of Years, and excluding Indians not taxed, three
fifths of all other Persons.] * * *
The part of this clause relating to the mode of apportionment of
Representatives was changed after the Civil War by section 2 of the 14th
amendment and as to taxes on incomes without apportionment, by the 16th
amendment.
* * * The actual <<NOTE: Sec. 15. Census as a basis of
apportionment.>> Enumeration shall be made within three Years after the
first Meeting of the Congress of the United States, and within every
subsequent Term of ten Years, in such Manner as they shall by Law
direct. The Number of Representatives shall not exceed one for every
thirty Thousand, but each State shall have at Least one Representative;
and until such enumeration shall be made, the State of New Hampshire
shall be entitled to chuse three, Massachusetts eight, Rhode- Island and
Providence Plantations one, Connecticut five, New York six, New Jersey
four, Pennsylvania eight, Delaware one, Maryland
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six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
The census has been taken decennially since 1790, and, with the
exception of 1920, was followed each time by reapportionment. In the
First Congress the House had 65 Members; increased after each census,
except that of 1840, until 435 was reached in 1913 (VI, 39, 40). The Act
of June 18, 1929 (46 Stat. 26), as amended by the Act of November 15,
1941 (55 Stat. 761), provides for reapportionment of the existing number
(435) among the States following each new census (VI, 41-43; see 2
U.S.C. 2a). Membership was temporarily increased to 436, then to 437,
upon admission of Alaska (72 Stat. 345) and Hawaii (73 Stat. 8), but
returned to 435 on January 3, 1963, the effective date of the
reapportionment under the 18th Decennial census.
Under the later but not the earlier practice, bills relating to the
census and apportionment are not privileged for consideration (I, 305-
308; VI, 48, VII, 889; Apr. 8, 1926, p. 7147).
Decisions <<NOTE: Sec. 16. Decisions of the Court.>> of the Supreme
Court of the United States: Dred Scott v. Sandford, 19 Howard, 393;
Veazie Bank v. Fenno, 8 Wall., 533; Scholey v. Rew, 23 Wall., 331; De
Treville v. Smalls, 98 U.S. 517; Gibbons v. District of Columbia, 116
U.S. 404; Pollock v. Farmers Loan & Trust Co. (Income Tax case), 157
U.S. 429; Pollock v. Farmers' Loan & Trust Co. (Rehearing), 158 U.S.
601; Thomas v. United States, 192 U.S. 363; Flint v. Stone Tracy Co.,
220 U.S. 107; Corporation Tax cases, 220 U.S. 107; Eisner v. Macomber,
252 U.S. 189; New York Trust Co. v. Eisner, 256 U.S. 345.
\4\ When vacancies <<NOTE: Sec. 17. Writs for elections to vacancies
in representation.>> happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.
Vacancies are caused by death, resignation, declination, withdrawal,
or by action of the House in declaring a vacancy as existing or causing
one by expulsion.
It was long the <<NOTE: Sec. 18. Vacancy from death.>> practice to
notify the executive of the State when a vacancy was caused by the death
of a Member during a session (II, 1198-1202); but since improvements in
transportation have made it possible for deceased Members to be buried
at their homes it has been the practice for State authorities to take
cognizance of the vacancies without notice. When a Member dies while not
in attendance on the House or during a recess the House is sufficiently
informed of the vacancy by the credentials of his successor, when they
set forth the fact of the death (I, 568). The death of a Member-elect
creates a vacancy, although no certificate may have been awarded (I,
323), and in such a case the candidate having the next highest number
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of votes may not receive the credentials (I, 323; VI 152). A Member whose
seat was contested dying, the House did not admit a claimant with
credentials until contestant's claim was settled (I, 326); where a
contestant died after a report in his favor, the House unseated the
returned Member and declared the seat vacant (II, 965), and in a later
case the contestant having died, the committee did not recommend to the
House a resolution it had agreed to declaring he had not been elected
(VI, 112). In the 93d Congress, where two Members-elect had been
passengers on a missing aircraft and were presumed dead, the Speaker lay
before the House documentary evidence of the presumptive death of one
Member-elect and the declaration of a vacancy by the Governor, as-well-
as evidence that the status of the other Member-elect had not been
officially determined by State authority. The House then adopted a
privileged resolution declaring vacant the seat of the latter Member-
elect to enable the Governor of that State to call a special election
(Jan. 3, 1973, pp. 15-16). For further discussion, see Sec. 23, infra.
In recent practice <<NOTE: Sec. 19. Vacancy from resignation.>> the
Member frequently informs the House by letter that his resignation has
been sent to the State executive (II, 1167-1176) and this is
satisfactory evidence of the resignation (I, 567) but Members have
resigned by letter to the House alone, it being presumed that the Member
would also notify his Governor (VI, 226), and where a Member resigned by
letter to the House the Speaker was authorized to notify the Governor
(Nov. 27, 1944, p. 8450; July 12, 1957, p. 11536; Sept. 1, 1976, p.
28887). Where a Member does not inform the House the State executive may
do so (II, 1193, 1194; VI, 232). But sometimes the House learns of a
Member's resignation only by means of the credentials of his successor
(II, 1195, 1356). Where the fact of a Member's resignation has not
appeared either from the credentials of his successor or otherwise, the
Clerk has been ordered to make inquiry (II, 1209), or the House has
ascertained the vacancy from information given by other Members (II,
1208). It has been established that a Member or Senator may resign,
appointing a future date for his resignation to take effect, and until
the arrival of the date may participate in the proceedings (II, 1220-
1225, 1228, 1229; VI, 227, 228). In one case a Member who had resigned
was not permitted by the House to withdraw the resignation (II, 1213),
but the House permitted it later in another case (VI, 229). Acceptance
of the resignation of a Member of the House is unnecessary (VI, 65,
226), and the refusal of a Governor to accept a resignation cannot
operate to continue membership in the House (VI, 65). Only in a single
exceptional case has the House taken action in the direction of
accepting a resignation (II, 1214). Sometimes Members who have resigned
have been reelected to the same House and taken seats (II, 1210, 1212,
1256; Jan. 28, 1965 and June 16, 1965, pp. 1452 and 13774; Jan. 6, 1983
and Feb. 22, 1983, pp. 114 and 2575). A Member who has not taken his
seat resigned (II, 1231). A letter of resignation is presented as
privileged (II, 1167-1176); but a resolution to permit a Member to
withdraw his res-
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ignation was not so treated (II, 1213). The Speaker
having been elected Vice President and a Representative of the
succeeding Congress at the same election, transmitted to the Governor of
his State his resignation as a Member-elect (VI, 230, 453). A Member of
the House having been nominated and confirmed as Vice President pursuant
to the 25th amendment, submitted a letter of resignation as a
Representative to the Governor of his State, and a copy of his letter of
resignation was laid before the House by the Speaker following the
completion of a Joint Meeting for his swearing-in as Vice President
(Dec. 6, 1973, p. 39927). A sitting Member having been confirmed as
Secretary of Defense, his letter of resignation was laid before the
House prior to his taking the oath of that office (Mar. 20, 1989, p.
4976).
A Member who <<NOTE: Sec. 20. Vacancy from declination.>> has been
elected to a seat may decline to accept it, and in such a case the House
informed the executive of the State of the vacancy (II, 1234). The House
has decided an election contest against a returned Member who had not
appeared to claim the seat (I, 638). In one instance a Member-elect who
had been convicted in the courts did not appear during the term (IV,
4484, footnote).
At the time <<NOTE: Sec. 21. Vacancy by withdrawal.>> of the secession
of several States, members of the House from those States withdrew (II,
1218). In the Senate, in cases of such withdrawals, the Secretary was
directed to omit the names of the Senators from the roll (II, 1219), and
the act of withdrawal was held to create a vacancy which the legislature
might recognize (I, 383).
Where the House, <<NOTE: Sec. 22. Vacancy by action of the House.>> by
its action in a question of election or otherwise, creates a vacancy,
the Speaker is directed to notify the Executive of the State (I, 502,
709, 824; II, 1203-1205; Mar. 1, 1967, p. 5038; Jan. 3, 1973, pp. 15-16;
Feb. 24, 1981, pp. 2916-18). A resolution as to such notification is
presented as a question of privilege (III, 2589), as is a resolution
declaring a vacancy where the Member-elect was unable to take the oath
of office or to resign because of an incapacitating illness (Feb. 24,
1981, pp. 2916-18).
The House declines <<NOTE: Sec. 23. Questions as to the existence of a
vacancy.>> to give prima facie effect to credentials, even though they
be regular in form, until it has ascertained whether or not the seat is
vacant (I, 322, 518, 565, 569), and a person returned as elected at a
second election was unseated on ascertainment that another person had
actually been chosen at the first election (I, 646). Where a Member was
reelected to the House, although at the time of the election he had been
unaccounted for for several weeks following the disappearance of the
plane on which he was a passenger, the Governor of the State from which
he was elected transmitted his certificate to the House in the regular
fashion. When the Member-elect was still missing at the time the new
Congress convened, and circumstances were such that other passengers on
the missing plane had been presumed dead following judicial inquiries in
the State
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where the plane was lost, the House declared the seat vacant
(H. Res. 1, 93d Cong., Jan. 3, 1973, pp. 15-16).
The term ``vacancy'' <<NOTE: Sec. 24. Functions of the state executive
in filling vacancies.>> as occurring in this paragraph of the
Constitution has been examined in relation to the functions of the State
executive (I, 312, 518). A federal law empowers the States and
Territories to provide by law the times of elections to fill vacancies
(I, 516; 2 U.S.C. 8); but an election called by a governor in pursuance
of constitutional authority was held valid although no state law
prescribed time, place, or manner of such election (I, 517). Where two
candidates had an equal number of votes, the governor did not issue
credentials to either, but ordered a new election after they had waived
their respective claims (I, 555). A candidate elected for the 104th
Congress was ``appointed'' by the Governor to fill a vacancy for the
remainder of the 103d Congress pursuant to a State law requiring the
Governor to appoint the candidate who won the election to the 104th
Congress. In that case the House authorized the Speaker to administer
the oath to the Member-elect and referred the question of his final
right to the seat in the 103d Congress to the Committee on House
Administration (Nov. 29, 1994, p. ----).
<<NOTE: Sec. 25. Term of a Member elected to fill a vacancy.>> A
Member elected to fill a vacancy serves no longer time than the
remainder of the term of the Member whose place he fills (I, 3). For the
compensation and allowances of such Members, see Sec. 87, infra.
<<NOTE: Sec. 26. House chooses the Speaker and other officers.>> \5\
The House of Representatives shall chuse their Speaker and other
Officers; * * *
The officers of the House are the Speaker, who has always been one of
its Members and whose term as Speaker must expire with his term as a
Member; and the Clerk, Sergeant-at-Arms, Doorkeeper (abolished by the
104th Congress, see Sec. 651d, infra), Postmaster (abolished during the
102d Congress, see Sec. 654a, infra), Chief Administrative Officer, and
Chaplain (I, 187), no one of whom has ever been chosen from the sitting
membership of the House, and who continue in office until their
successors are chosen and qualified (I, 187), in one case continuing
through the entire Congress succeeding that in which they were elected
(I, 244, 263). The House formerly provided by special rule that the
Clerk should continue in office until another should be chosen (I, 187,
188, 235, 244); and in later years the statutes have imposed on the
Clerk, Sergeant-at-Arms, and former Doorkeeper duties which contemplate
their continuance (I, 14, 15; 2 U.S.C. 75a-1, 83).
The Speaker, who <<NOTE: Sec. 27. Election of a Speaker.>> was at
first elected by ballot, has been chosen by viva voce vote by surname in
response to a call of the roll since 1839 (I, 187). The Speaker is
elected by a majority of Members-elect voting by surname, a
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quorum being present (I, 216; VI, 24; Jan. 7, 1997, p. ----). The Clerk appoints
tellers for this election (I, 217). Ultimately, the House, and not the
Clerk, decides by what method it shall elect the Speaker (I, 210). On
two occasions, by special rules, Speakers were chosen by a plurality of
votes; but in each case the House by majority vote adopted a resolution
declaring the result (I, 221, 222). The House has declined to choose a
Speaker by lot (I, 221).
The motion to proceed to the election of a Speaker is privileged (I,
212, 214; VIII, 3883), and debatable unless the previous question is
ordered (I, 213). Relying on the Act of June 1, 1789 (2 U.S.C. 25), the
Clerk recognized for nominations for Speaker as being of higher
constitutional privilege than a resolution to postpone the election of a
Speaker and instead provide for the election of a Speaker pro tempore
pending the disposition of certain ethics charges against the nominee of
the majority party (Jan. 7, 1997, p. ----). On several occasions the
choice of a Speaker has been delayed for several weeks by contests (I,
222; V, 5356, 6647, 6649; VI, 24). The contest over the election of a
Speaker in 1923 was resolved after a procedure for the adoption of rules
for the 68th Congress had been presented (VI, 24). In 1860 the voting
for Speaker proceeded slowly, being interspersed with debate (I, 223),
and in one instance the House asked candidates for Speaker to state
their views before proceeding to election (I, 218).
The Speaker <<NOTE: Sec. 28. Vacancies in the office of
Speaker.>> having died during the recess of Congress, the Clerk at the
next session called the House to order, ascertained the presence of a
quorum, and then the House proceeded to elect a successor (I, 234; Jan.
10, 1962, p. 5). Speaker Joseph W. Byrns having died during a session of
Congress but not while the House was sitting, the Clerk on the following
day called the House to order and his successor, Hon. William B.
Bankhead, was elected by resolution (June 4, 1936, p. 9016). Speaker
Bankhead also died during a session, on a day when the House was not
meeting. The Clerk on the following day called the House to order and
Hon. Sam Rayburn was elected by resolution (Sept. 16, 1940, p. 12231).
Form of resolution offered on death of a Speaker (Sept. 16, 1940, p.
12232; Jan. 10, 1962, p. 9) and a former Speaker (VIII, 3564; Mar. 7,
1968, p. 5742). A resolution declaring vacant the office of Speaker is
presented as a matter of high constitutional privilege (VI, 35). A
proposition to elect a Speaker is in order at any time and presents a
question of the highest privilege (VIII, 3383). Speakers have resigned
by rising in their place and addressing the House (I, 231, 233), by
calling a Member to the Chair and tendering the resignation verbally
from the floor (I, 225), or by sending a letter which the Clerk reads to
the House at the beginning of a new session (I, 232). In the 101st
Congress, Speaker Wright took the floor on a question of personal
privilege, to respond to charges made against him, and announced his
intention to resign as Speaker ``on the election of my successor'' (May
31, 1989, p. 10440). On June 6, 1989, Speaker Wright entertained
nominations for
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Speaker and, following the roll call, declared
Representative Foley ``duly elected Speaker'' (p. 10801). When the
Speaker resigns no action of the House excusing him from service is
taken (I, 232). In one instance a Speaker resigned on the last day of
the Congress, and the House elected a successor for the day (I, 225).
Instance wherein the Speaker, following a vote upon an essential
question indicating a change in the party control of the House,
announced that under the circumstances it was incumbent upon the Speaker
to resign or to recognize for a motion declaring vacant the office of
Speaker (VI, 35).
<<NOTE: Sec. 29. Power of House to elect its officers as related to
law.>> The effect of a law to regulate the action of the House in
choosing its own officers has been discussed (IV, 3819), and such a law
has been considered of doubtful validity (V, 6765, 6766) in theory and
practice (I, 241, 242). The Legislative Reorganization Act of 1946 (2
U.S.C. 75a-1) authorizes the Speaker to fill temporary vacancies in the
offices of Clerk, Sergeant-at-Arms, Chief Administrative Officer, and
Chaplain. For a history of the Speaker's exercise of such authority, see
Sec. 635, infra; and, for further information on the elections of
officers, see Deschler's Precedents, vol. 1, ch. 6.
The office of <<NOTE: Sec. 30. Election of Clerk in relation to
business.>> Clerk becoming vacant, it was held that the House would not
be organized for business until a Clerk should be elected (I, 237); but
in another instance some business intervened before a Clerk was elected
(I, 239). At the time of organization, while the Clerk of the preceding
House was yet officiating, and after the Speaker had been elected, the
House proceeded to legislation and other business before electing a
Clerk (I, 242, 244). But in one case it was held that the law of 1789
(see 2 U.S.C. 25) bound the House to elect the Clerk before proceeding
to business (I, 241).
<<NOTE: Sec. 31. House of Representatives alone impeaches.>> * * * and
[the House of Representatives] shall have the sole Power of Impeachment.
In 1868 the Senate ceased in its rules to describe the House, acting
in an impeachment, as the ``grand inquest of the nation'' (III, 2126).
See also art. II, sec. 4 (Sec. 173, infra); Deschler's Precedents, vol.
3, ch. 14.
A federal court having subpoenaed certain evidence gathered by a
committee of the House in an impeachment inquiry, the House adopted a
resolution granting such limited access to the evidence as would not
infringe upon its sole power of impeachment (Aug. 22, 1974, p. 30047).
Section 3. \1\ [The Senate <<NOTE: Sec. 32. Numbers, terms, and votes
of Senators.>> of the United States shall be composed of two Senators
from each State, chosen by the Leg-
[[Page 15]]
islature thereof, for six Years; and each Senator
shall have one Vote.]
This provision has now been changed by the 17th amendment to the
Constitution.
\2\ Immediately <<NOTE: Sec. 33. Division of the Senate into
classes.>> after they shall be assembled in Consequence of the first
Election, they shall be divided as equally as may be into three Classes.
The Seats of the Senators of the first Class shall be vacated at the
Expiration of the second Year, of the second Class at the Expiration of
the fourth Year, and of the third Class at the Expiration of
the <<NOTE: Sec. 34. Filling of vacancies in the Senate.>> sixth Year,
so that one-third may be chosen every second Year; [and if Vacancies
happen by Resignation,
or otherwise, during the Recess of the Legislature of any State, the
Executive thereof may make temporary Appointments until the next Meeting
of the Legislature, which shall then fill such Vacancies.]
That part of the above paragraph in brackets was changed by the 17th
amendment.
\3\ No Person <<NOTE: Sec. 35. Qualifications of Senators.>> shall be
a Senator who shall not have attained to the Age of thirty Years, and
been nine Years a Citizen of the United States, and who shall not, when
elected, be an Inhabitant of that State for which he shall be chosen.
In 1794 the Senate decided that Albert Gallatin was disqualified, not
having been a citizen nine years although he had served in the war of
Independence and was a resident of the country when the Constitution was
formed (I, 428); and in 1849 that James Shields was disqualified, not
having been a citizen for the required time (I, 429). But in 1870 the
Senate declined to examine as to H. R. Revels, a citizen under the
recently adopted 14th amendment (I, 430). As to inhabitancy the Senate
seated one who,
[[Page 16]]
being a citizen of the United States, had been an
inhabitant of the State from which he was appointed for less than a year
(I, 437). Also one who, while stationed in a State as an army officer
had declared his intention of making his home in the State, was admitted
by the Senate (I, 438). A Senator who at the time of his election was
actually residing in the District of Columbia as an officeholder, but
who voted in his old home and had no intent of making the District his
domicile, was held to be qualified (I, 439).
\4\ The Vice <<NOTE: Sec. 36. The Vice President and his
vote.>> President of the United States shall be President of the Senate,
but shall have no Vote, unless they be equally divided.
The right of the Vice President to vote has been construed to extend
to questions relating to the organization of the Senate (V, 5975), as
the election of officers of the Senate (V, 5972-5974), or a decision on
the title of a claimant to a seat (V, 5976, 5977). The Senate has
declined to make a rule relating to the vote of the Vice President (V,
5974).
<<NOTE: Sec. 37. Choice of President pro tempore and other officers of
the Senate.>> \5\ The Senate shall chuse their other Officers, and
also a President pro tempore, in the Absence of the Vice President, or
when he shall exercise the Office of President of the United States.-
\6\ The Senate <<NOTE: Sec. 38. Senate tries impeachment and convicts
by twothirds vote.>> shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation.
When the President of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted without the Concurrence
of two thirds of the Members present.
For the exclusive power of the Senate to try impeachments under the
United States Constitution, see Ritter v. United States, 84 Ct. Cls. 293
(1936), cert. denied, 300 U.S. 668 (1937). See also Mississippi v.
Johnson, 71 U.S. (4 Wall.) 475 (1867) (dictum). For the
nonjusticiability of a claim that Senate Rule XI violates the
impeachment trial clause by delegating to a committee of 12 Senators the
responsibility to receive evidence, hear testimony, and report to the
Senate thereon, see Nixon v. United States, 113 S. Ct. 732 (1993).
[[Page 17]]
In 1868, after mature consideration, the Senate overruled the old view
of its functions (III, 2057), and decided that it sat for impeachment
trials as the Senate and not as a court (III, 2057), and eliminated from
its rules all mention of itself as a ``high court of impeachment'' (III,
2079, 2082).
An anxiety lest <<NOTE: Sec. 39. The presiding officer.>> the Chief
Justice might have a vote in the approaching trial of the President
seems to have prompted this action (III, 2057). There was examination of
the question of the Chief Justice's power to vote (III, 2098); but the
Senate declined to declare his incapacity to vote, and he did in fact
give a casting vote on incidental questions (III, 2067). The Senate
declined to require that the Chief Justice be sworn when about to
preside (III, 2080); but the Chief Justice had the oath administered by
an associate justice (III, 2422).
In impeachments for officers other than the President of the United
States the presiding officer of the Senate presides, whether he be Vice
President, the regular President pro tempore (III, 2309, footnote, 2337,
2394) or a special President pro tempore chosen to preside at the trial
only (III, 2089, 2477).
Senators elected after <<NOTE: Sec. 40. Oath and quorum.>> the
beginning of an impeachment trial are sworn as in the case of other
Senators (III, 2375). The quorum of the Senate sitting for an
impeachment trial is a quorum of the Senate itself, and not merely a
quorum of the Senators sworn for the trial (III, 2063). The vote
required for conviction is two-thirds of those Senators present and
voting (Oct. 20, 1989, p. 25335). In 1868, when certain States were
without representation, the Senate declined to question its competency
to try an impeachment case (III, 2060). See S. Doc. 93-102, ``Procedure
and Guidelines for Impeachment Trials in the United States Senate,'' for
precedents relating to the conduct of Senate impeachments.
\7\ Judgment in <<NOTE: Sec. 41. Judgment in cases of
impeachment.>> Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy any Office
of honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law.
There has been discussion as to whether or not the Constitution
requires both removal and disqualification on conviction (III, 2397);
but in the case of Pickering, the Senate decreed only removal (III,
2341). In the case of Humphreys, judgment of both removal and
disqualification was pro-
[[Page 18]]
nounced (III, 2397). The question on removal and
disqualification has been held divisible for the vote (III, 2397; VI,
512).
The question of judgment requires only a majority vote (VI, 512; Apr.
17, 1936, p. 5606).
In the Ritter case, it was first held that upon conviction of the
respondent, judgment of removal required no vote, following
automatically from conviction under article II, section 4 (Apr. 17,
1936, p. 5607). In the 99th Congress, having tried to conviction the
first impeachment case against a federal district judge since 1936, the
Senate ordered his removal from office (Oct. 9, 1986, p. 29870). In the
101st Congress, two other federal district judges were removed from
office following their convictions in the Senate (Oct. 20, 1989, p.
25335; Nov. 3, 1989, p. 27101).
Section 4. \1\ The Times, <<NOTE: Sec. 42. Times, places, and manner
of elections of Representatives and Senators.>> Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed
in each State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations, except as to the places of
chusing Senators.
The relative powers of the Congress and the States under this graph
have been the subject of much discussion (I, 311, 313, 507, footnote);
but Congress has in fact fixed by law the time of elections (I, 508; VI,
66; 2 U.S.C. 7), and has controlled the manner to the extent of
prescribing a ballot or voting machine (II, 961; VI, 150; 2 U.S.C. 9).
When a State delegated to a municipality the power to regulate the
manner of holding an election, a question arose (II, 975). A question
has arisen as to whether or not a State, in the absence of action by
Congress, might make the time of election of Congressmen contingent on
the time of the State election (I, 522). This paragraph gives Congress
the power to protect the right to vote in primaries where they are an
integral part of the election process. United States v. Classic, 313
U.S. 299 (1941); United States v. Wurzbach, 280 U.S. 396 (1930).
Congress may legislate under this paragraph to protect the exercise of
the franchise in congressional elections. Ex parte Siebolt, 100 U.S. 371
(1880); Ex parte Yarbrough, 110 U.S. 651 (1884).
The meaning of <<NOTE: Sec. 43. Functions of a State legislature in
fixing time, etc., of elections.>> the word ``legislature'' in this
clause of the Constitution has been the subject of discussion (II, 856),
as to whether or not it means a constitutional convention as well as a
legislature in the commonly accepted meaning of the word (I, 524). The
House has sworn in Members chosen at an election the time, etc., of
which was fixed by the schedule of a constitution adopted on that
election day (I, 519, 520,
[[Page 19]]
522). But the House held that where a legislature has been in existence
a constitutional convention might not exercise the power (I, 363, 367). It
has been argued generally that the legislature derives the power herein discussed from the Federal and not the State Constitution (II, 856, 947),
and therefore that the State constitution might not in this respect control the State legislature (II, 1133). The House has sustained this view by its
action (I, 525). But where the State constitution fixed a date for an election
and the legislature had not acted, although it had the opportunity, the House
held the election valid (II, 846).
Decisions <<NOTE: Sec. 44. Decisions of the Court.>> of the Supreme
Court of the United States: Ex parte Siebold, 100 U.S. 371 (1880); Ex
parte Clark, 100 U.S. 399 (1880); Ex parte Yarbrough, 110 U.S. 651
(1884); In re Coy, 127 U.S. 731 (1888); Ohio v. Hildebrant, 241 U.S. 565
(1916); United States v. Mosley, 238 U.S. 383 (1915); United States v.
Gradwell, 243 U.S. 476 (1917); Newberry v. United States, 256 U.S. 232
(1921); Smiley v. Holme, 285 U.S. 355 (1932); United States v. Classic,
313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944); Roudebush
v. Hartke, 405 U.S. 15 (1972); Buckley v. Valeo, 424 U.S. 1 (1976); and
U.S. Term Limits, Inc., v. Thorton, 63 U.S.L.W. 4413 (1995). In Public
Law 91-285, Congress lowered the minimum age of voters in all federal,
state and local elections from 21 to 18 years. In Oregon v. Mitchell,
400 U.S. 112 (1970), the Supreme Court upheld the power of Congress
under article I, section 4 and under section 5 of the 14th amendment to
the Constitution to fix the age of voters in federal elections, but held
that the tenth amendment to the Constitution reserved to the States the
power to establish voter age qualifications in State and local
elections. The 26th amendment to the Constitution extended the right of
persons 18 years of age or older to vote in elections held under State
authority.
\2\ [The Congress <<NOTE: Sec. 45. Annual meeting of Congress.>> shall
assemble at least once in every Year, and such Meeting shall be on the
first Monday in December, unless they shall by Law appoint a different
Day.]
This provision of the Constitution has been superseded by the 20th
amendment.
In the later but not the earlier practice (I, 5), prior to the 20th
amendment, the fact that Congress had met once within the year did not
make uncertain the constitutional mandate to meet on the first Monday of
December (I, 6, 9-11). Early Congresses, convened either by proclamation
or law on a day earlier than the constitutional day, remained in
continuous session to a time beyond that day (I, 6, 9-11). But in the
later view an existing session ends with the day appointed by the
Constitution for the regular annual session (II, 1160); see Sec. 84,
infra. Congress has frequently
[[Page 20]]
appointed by law a day for the meeting (I, 4, 5, 10-12, footnote; see also
Sec. 243, infra).
Section 5. \1\ Each <<NOTE: Sec. 46. House the judge of elections,
returns, and qualifications.>> House shall be the Judge of the
Elections, Returns and Qualifications of its own Members, * * *.
In judging the qualifications of its Members, the House may not add
qualifications to those expressly stated in the United States
Constitution. Powell v. McCormack, 395 U.S. 486 (1969). This phrase
allows the House or Senate to deny the right to a seat without
unlawfully depriving a State of its right to equal representation. Barry
v. United States ex rel Cunningham, 279 U.S. 597 (1929). But a State may
conduct a recount of votes without interfering with the authority of the
House under this phrase. Roudebush v. Hartke, 405 U.S. 15 (1972). For
discussion of the power of the House to judge elections, see Deschler's
Precedents, vol. 2, ch. 8 (elections) and ch. 9 (election contests); for
discussion of the power of the House to judge qualifications, see
Deschler's Precedents, vol. 2, ch. 7.
The House has the same authority to determine the right of a Delegate
to his seat that it has in the case of a Member (I, 423). The House may
not delegate the duty of judging its elections to another tribunal (I,
608), and the courts of a State have nothing to do with it (II, 959).
The House has once examined the relations of this power to the power to
expel (I, 469).
As nearly all <<NOTE: Sec. 47. Power of judging as related to State
laws as to returns.>> the laws governing the elections of
Representatives in Congress are State laws, questions have often arisen
as to the relation of this power of judging to those laws (I, 637). The
House decided very early that the certificate of a State executive
issued in strict accordance with State law does not prevent examination
of the votes by the House and a reversal of the return (I, 637). The
House has also held that it is not confined to the conclusions of
returns made up in strict conformity to State law, but may examine the
votes and correct the returns (I, 774); and the fact that a State law
gives canvassers the right to reject votes for fraud and irregularities
does not preclude the House from going behind the returns (II, 887). The
highest court in one State (Colorado) has ruled that it lacked
jurisdiction to pass upon a candidate's allegations of irregularities in
a primary election and that the House had exclusive jurisdiction to
decide such questions and to declare the rightful nominee (Sept. 23,
1970, p. 33320).
[[Page 21]]
When the question <<NOTE: Sec. 48. Power of judging as related to
State laws as to acts of the voter.>> concerns not the acts of returning
officers, but the act of the voter in giving his vote, the House has
found more difficulty in determining on the proper exercise of its
constitutional power. While the House has always acted on the principle
of giving expression to the intent of the voter (I, 575, 639, 641; II,
1090), yet it has held that a mandatory State law, even though
arbitrary, may cause the rejection of a ballot on which the intent of
the voter is plain (II, 1009, 1056, 1077, 1078, 1091). See Deschler's
Precedents, vol. 2, ch. 8, sec. 8.11, for discussion of distinction
between directory state laws governing the conduct of election officials
as to ballots, and mandatory laws regulating the conduct of voters.
Where the State <<NOTE: Sec. 49. Power of House as related to
constitutionality of State laws.>> courts have upheld a State election
law as constitutional the House does not ordinarily question the law
(II, 856, 1071). But where there has been no such decision the House, in
determining its election cases, has passed on the validity of State laws
under State constitutions (II, 1011, 1134), and has acted on its
decision that they were unconstitutional (II, 1075, 1126), but it is not
the policy of the House to pass upon the validity of State election laws
alleged to be in conflict with the State constitution (VI, 151).
The courts of <<NOTE: Sec. 50. Effect of interpretation of State
election laws by State courts.>> a State have nothing to do directly
with judging the elections, qualifications, and returns of
Representatives in Congress (II, 959), but where the highest State court
has interpreted the State law the House has concluded that it should
generally be governed by this interpretation (I, 645, 731; II, 1041,
1048), but does not consider itself bound by such interpretations (VI,
58). The House is not bound, however, by a decision on an analogous but
not the identical question in issue (II, 909); and where the alleged
fraud of election judges was in issue, the acquittal of those judges in
the courts was held not to be an adjudication binding on the House (II,
1019). For a recent illustration of a protracted election dispute
lasting four months see House Report 99-58, culminating in House
Resolution 146 of the 99th Congress (May 1, 1985, p. 9998).
The statutes of <<NOTE: Sec. 51. Laws of Congress not binding on the
House in its function of judging its elections.>> the United States
provide specific methods for institution of a contest as to the title to
a seat in the House (I, 678, 697-706) (2 U.S.C. 381 et seq.); but the
House regards this law as not of absolute binding force, but rather a
wholesome rule not to be departed from except for cause (I, 597, 719,
825, 833), and it sometimes by resolution modifies the procedure
prescribed by the law (I, 449, 600).
Decisions <<NOTE: Sec. 51a. Decisions of the Court.>> of the Supreme
Court of the United States: In re Loney, 134 U.S. 317 (1890); Reed v.
County Commissioners, 277 U.S. 376 (1928); Barry v. United States ex
rel. Cunningham, 279 U.S. 597 (1929); Roudebush v. Hartke, 405 U.S. 15
(1972).
[[Page 22]]
* * * and a <<NOTE: Sec. 52. The quorum.>> Majority of each [House]
shall constitute a Quorum to do Business; but a smaller Number may
adjourn from day to day, and may be authorized to compel the Attendance
of absent Members, in such Manner, and under such Penalties as each
House may provide.
Out of conditions <<NOTE: Sec. 53. Interpretation of the Constitution
as to number constituting a quorum.>> arising between 1861 and 1891 the
rule was established that a majority of the Members chosen and living
constituted the quorum required by the Constitution (IV, 2885-2888); but
later examination has resulted in a decision confirming in the House of
Representatives the construction established in the Senate that a quorum
consists of a majority of Senators duly chosen and sworn (I, 630; IV,
2891-2894). So the decision of the House now is that after the House is
once organized the quorum consists of a majority of those Members
chosen, sworn, and living whose membership has not been terminated by
resignation or by the action of the House (IV, 2889, 2890; VI, 638).
For many years <<NOTE: Sec. 54. The theory of the quorum present; and
the count by the Speaker.>> the quorum was determined only by noting the
numbers of Members voting (IV, 2896, 2897), with the result that Members
by refusing to vote could often break a quorum and obstruct the public
business (II, 1034; IV, 2895, footnote; V, 5744). But in 1890 Mr.
Speaker Reed directed the clerk to enter on the Journal as part of the
record of a yea-and-nay vote names of Members present but not voting,
thereby establishing a quorum of record (IV, 2895). This decision,
afterwards sustained by the Supreme Court (IV, 2904; United States v.
Ballin, 144 U.S. (1892)), established the principle that a quorum
present made valid any action by the House, although an actual quorum
might not vote (I, 216, footnote; IV, 2932). And thenceforth the point
of order as to a quorum was required to be that no quorum was present
and not that no quorum had voted (IV, 2917). At the time of the
establishment of this principle the Speaker revived the count by the
Chair as a method of determining the presence of a quorum at a time when
no record vote was ordered (IV, 2909). The Speaker has permitted his
count of a quorum to be verified by tellers (IV, 2888), but did not
concede it as a right of the House to have tellers under the
circumstances (IV, 2916; VI 647-651; VIII, 2369, 2436), claiming that
the Chair might determine the presence of a quorum in such manner as he
should deem accurate and suitable (IV, 2932). The Chair counts all
members in sight, whether in the cloak rooms, or within the bar (IV,
2970; VIII, 3120). Later, as the complement to the new view of the
quorum, the early theory that the presence of a quorum was as necessary
during debate or other business as on a vote was revived (IV,
[[Page 23]]
2935-2949); also a line of rulings made under the old theory were overruled,
and it was established that the point of no quorum might be made after
the House had declined to verify a division by tellers or the yeas and
nays (IV, 2918-2926).
The absence of <<NOTE: Sec. 55. Relations of the quorum to acts of the
House.>> a quorum having been disclosed, there must be a quorum of
record before the House may proceed to business (IV, 2952, 2953; VI,
624, 660, 662), and the point of no quorum may not be withdrawn even by
unanimous consent after the absence of a quorum has been ascertained and
announced by the Chair (IV, 2928-2931; VI, 657; Apr. 13, 1978, p. 10119;
Sept. 25, 1984, p. 26778). But when an action has been completed, it is
too late to make the point of order that a quorum was not present when
it was done (IV, 2927; VI, 655). But where action requiring a quorum was
taken in the ascertained absence of a quorum by ruling of a Speaker pro
tempore, the Speaker on the next day ruled that the action was null and
void (IV, 2964; see also VIII, 3161). But such absence of a quorum
should appear from the Journal if a legislative act is to be vacated for
such reason (IV, 2962), and where the assumption that a quorum was
present when the House acted was uncontradicted by the Journal, it was
held that this assumption might not be overthrown by expressions of
opinion by Members individually (IV, 2961).
Major revisions in the House Rules concerning the necessity and
establishment of a quorum have occurred in the 94th, 95th and 96th
Congresses. Under the practice in the 93d Congress, for example, a point
of no quorum would prevent the report of the Chairman of a Committee of
the Whole (VI, 666); but in the 93d Congress clause 6 was added to rule
XV to provide that after the presence of a quorum is once ascertained on
any day, a point of no quorum may not be entertained after the Committee
has risen and pending the report of the Chairman to the House (see
Sec. 774c, infra). Clause 6 now specifically precludes a point of no
quorum during the reception of any message from the President or the
Senate, before or during the prayer, during the administration of oaths,
during motions incidental to a call of the House, and (once a quorum has
been established on that day) during special orders when no legislative
business is pending. In the 95th Congress, the same clause of rule XV
was further amended to provide that it is not in order to make or
entertain a point of order that a quorum is not present unless the
Speaker has put the pending motion or proposition to a vote, but the
Speaker retains the right to recognize a Member to move a call of the
House at any time. A point of order of no quorum during debate only in
the House does not lie independently under this clause of the
Constitution since clause 6(e) of rule XV is a proper exercise of the
House's constitutional rulemaking authority which can be interpreted
consistently with the requirement that a quorum be present to conduct
business (as opposed to mere debate) (Sept. 8, 1977, p. 28114; Sept. 12,
1977, pp. 28800-01).
[[Page 24]]
Before these recent changes to rule XV, a quorum was required at all
times during the reading of the Journal (IV, 2732, 2733; VI, 625, 629)
or messages from the President or the Senate (IV, 3522; VI 6600, 6650;
VIII 3339); but the modern practice would require the presence of a
quorum only when the question is put on a pending motion or proposition
in the House such as on a motion incident to the reading, amendment, or
approval of the Journal or on the referral or other disposition of other
papers read to the House. A point of no quorum no longer lies during
debate in the House. The practice in the Committee of the Whole is now
governed by clause 2 of rule XXIII. No motion is in order on the failure
of a quorum but the motions to adjourn and for a call of the House (IV,
2950; VI 680) and the motion to adjourn has precedence over the motion
for a call of the House (VIII, 2642). A call of the House is in order
under the Constitution before the adoption of the rules (IV, 2981).
Those present on a call of the House may prescribe a fine as a condition
on which an arrested Member may be discharged (IV, 3013, 3014), but this
is rarely done. A quorum is not required on motions incidental to a call
of the House (IV, 2994; VI, 681; Oct. 8, 1940, p. 13403; and Oct. 8,
1968, p. 30090). The House may adjourn sine die in the absence of a
quorum where both Houses have already adopted a concurrent resolution
providing for a sine die adjournment on that day (Oct. 18, 1972, p.
37200).
At the time <<NOTE: Sec. 56. Relations of the quorum to organization
of the House.>> of organization the two Houses inform one another of the
appearance of the quorum in each, and the two Houses jointly inform the
President (I, 198-203). A message from one House that its quorum has
appeared is not delivered in the other until a quorum has appeared there
also (I, 126). But at the beginning of a second session of a Congress
the House proceeded to business, although a quorum had not appeared in
the Senate (I, 126). At the beginning of a second session of a Congress
unsworn Members-elect were taken into account in ascertaining the
presence of a quorum (I, 175); however, at the beginning of the second
session of the 87th Congress, the Clerk called the House to order,
announced the death of Speaker Rayburn during the sine die adjournment,
and did not call unsworn Members-elect or Members who had resigned
during the hiatus to establish a quorum or elect a new Speaker (Jan. 10,
1962, p. 5). In both Houses the oath has been administered to Members-
elect in the absence of a quorum (I, 174, 181, 182; VI, 22), although in
one case the Speaker objected to such proceedings (II, 875). Prayer by
the Chaplain is not business requiring the presence of a quorum and the
Speaker declines to entertain a point of no quorum before prayer is
offered (VI, 663; clause 6 of rule XV).
Decisions <<NOTE: Sec. 57. Decisions of the Court.>> of the Supreme
Court of the United States: United States v. Ballin, 144 U.S. 1 (1892);
Kilbourn v. Thompson, 103 U.S. 190 (1881); Burton v. United States, 202
U.S. 344 (1906).
[[Page 25]]
<<NOTE: Sec. 58. The House determines its rules.>> \2\ Each House may
determine the Rules of its Proceedings, * * *
The power of <<NOTE: Sec. 59. Power to make rules not impaired by
rules or law.>> each House of Representatives to make its own rules may
not be impaired or controlled by the rules of a preceding House (I, 187,
210; V, 6002, 6743-6747), or by a law passed by a prior Congress (I, 82,
245; IV, 3298, 3579; V, 6765, 6766). The House in adopting its rules
may, however, incorporate by reference as a part thereof all applicable
provisions of law which constituted the rules of the House at the end of
the preceding Congress (H. Res. 5, 95th Cong., Jan. 4, 1977, pp. 53-70)
and has also incorporated provisions of concurrent resolutions which
were intended to remain applicable under the Budget Act (H. Res. 5, 98th
Cong., Jan. 3, 1983, p. 34). The ordinary rights and functions of the
House under the Constitution are exercised in accordance with the rules
(III, 2567), and under later decisions questions of so-called
constitutional privilege should also be considered in accordance with
the rules (VI, 48; VII, 889; Apr. 8, 1926, p. 7147). But a law passed by
an existing Congress with the concurrence of the House has been
recognized by that House as of binding force in matters of procedure (V,
6767, 6768). In exercising its constitutional power to change its rules
the House may confine itself within certain limitations (V, 6756; VIII,
3376); but the attempt of the House to deprive the Speaker of his vote
as a Member by a rule was successfully resisted (V, 5966, 5967). While a
law of 1789 (see 2 U.S.C. 25) requires the election of a Clerk before
the House proceeds to business yet the House has held that it may adopt
rules before electing a clerk (I, 245). Although the Speaker ceases to
be an officer of the House with the expiration of a Congress, the Clerk,
by old usage, continues in a new Congress (I, 187, 188, 235, 244; see 2
U.S.C. 26). In case of a vacancy in the office of Clerk, Sergeant-at-
Arms, Doorkeeper (abolished by the 104th Congress; see Sec. 651d,
infra), Postmaster (abolished during the 102d Congress; see Sec. 654a,
infra), Chaplain, or Chief Administrative Officer, the Speaker is
authorized to make temporary appointments (2 U.S.C. 75a-1). The House
has adopted a rule before election of a Speaker (I, 94, 95); but in 1839
was deterred by the law of 1789 and the Constitution from adopting rules
before the administration of the oath to Members-elect (I, 140). The
earlier theory that an officer might be empowered to administer oaths by
a rule of either House has been abandoned in later practice and the
authority has been conferred by law (III, 1823, 1824, 2079, 2303, 2479;
2 U.S.C. 191).
Before the adoption <<NOTE: Sec. 60. Procedure in the House before the
adoption of rules.>> of rules the House is governed by general
parliamentary law, but the Speakers have been inclined to give weight to
the precedents of the House in modifying the usual constructions of that
law (V, 6758-6760; VIII, 3384; Jan. 3, 1953, p. 24; Jan. 10, 1967, pp.
14-15). The general parliamentary law as understood in the House is
founded on Jefferson's Manual as modified by the practice of American
legislative
[[Page 26]]
assemblies, especially of the House of Representatives (V,
6761-6763; Jan. 3, 1953, p. 24), but the provisions of the House's
accustomed rules are not necessarily followed (V, 5509, 5604). Prior to
the adoption of rules, the statutory enactments incorporated into the
rules of the prior Congress as an exercise of the rule-making power do
not control the proceedings of the new House until it adopts rules
incorporating those provisions (Jan. 22, 1971, p. 132).
Before the adoption of rules, it is in order for any Member who is
recognized by the Chair to offer a proposition relating to the order of
business without asking consent of the House (IV, 3060). Relying on the
Act of June 1, 1789 (2 U.S.C. 25), the Clerk recognized for nominations
for Speaker as being of higher constitutional privilege than a
resolution to postpone the election of a Speaker and instead provide for
the election of a Speaker pro tempore pending the disposition of certain
ethics charges against the nominee of the majority party (Jan. 7, 1997,
p. ----). The Speaker may recognize the Majority Leader to offer an
initial resolution providing for the adoption of the rules as a question
of privilege in its own right (IV, 3060; Deschler's Precedents, vol. 1,
ch. 1, sec. 8; Jan. 5, 1993, p. ----), even prior to recognizing another
Member to offer as a question of privilege another resolution calling
into question the constitutionality of that resolution (Speaker Foley,
Jan. 5, 1993, p. ----). The Speaker may also recognize a Member to offer
for immediate consideration a special order providing for the
consideration of a resolution adopting the rules (V, 5450; Jan. 4, 1995,
p. ----). The resolution adopting rules for the 104th Congress included
a special order of business for consideration of a bill to make certain
laws applicable to the legislative branch (sec. 108, H. Res. 6, Jan. 4,
1995, p. ----).
During debate on the resolution adopting rules, any Member may make a
point of order that a quorum is not present based upon general
parliamentary precedents, since the provisions of clause 6(e) of rule XV
prohibiting the Chair from entertaining such a point of order unless the
question has been put on the pending proposition are not yet applicable
(Jan. 15, 1979, p. 10). Before adoption of rules, under general
parliamentary law as modified by usage and practice of the House, an
amendment may be subject to the point of order that it is not germane to
the proposition to which offered (Jan. 3, 1969, p. 23). Before adoption
of rules, the Speaker may maintain decorum by directing a Member who has
not been recognized in debate beyond an allotted time to be removed from
the well and by directing the Sergeant-at-Arms to present the mace as
the traditional symbol of order (Jan. 3, 1991, p. 58).
The motion to commit is permitted after the previous question has been
ordered on the resolution adopting the rules (V, 5604; Jan. 3, 1989, p.
81; Jan. 3, 1991, p. 61) but is not debatable (Jan. 7, 1997, p. ----).
It is the prerogative of the minority to offer a motion to commit even
prior to the adoption of the rules, but at that point the proponent need
not qualify as opposed to the resolution (Jan. 3, 1991, p. 61; Jan. 4,
1995,
[[Page 27]]
p. ----). Such a motion to commit is not divisible, but if it is
agreed to and more than one amendment is reported back pursuant thereto,
then separate votes may be had on the reported amendments (Jan. 5, 1993,
p. ----). The motion to refer has also been permitted upon the offering
of a resolution adopting the rules, and prior to debate thereon, subject
to the motion to lay on the table (Jan. 5, 1993, p. ----).
The two Houses <<NOTE: Sec. 61. Joint rules.>> of Congress adopted in
the early years of the Government joint rules to govern their procedure
in matters requiring concurrent action; but in 1876 these joint rules
were abrogated (IV, 3430; V, 6782-6787). The most useful of their
provision continue to be observed in practice, however (IV, 3430; V,
6592).
Decisions <<NOTE: Sec. 61a. Decisions of the Court.>> of the Supreme
Court of the United States: United States v. Smith, 286 U.S. 6 (1932);
Christoffel v. United States, 338 U.S. 84 (1949); United States v.
Bryan, 339 U.S. 323 (1950); Yellin v. United States, 374 U.S. 109
(1963); Powell v. McCormack, 395 U.S. 486 (1969).
* * * [Each House may] <<NOTE: Sec. 62. Punishment and expulsion of
Members.>> punish its Members for disorderly Behaviour, and, with the
Concurrence of two thirds, expel a Member.
Among the <<NOTE: Sec. 63. Punishment by reprimand or
censure.>> punishments that the House may impose under this provision,
the rules of the Committee on Standards of Official Conduct outline the
following: (1) expulsion from the House; (2) censure; (3) reprimand; (4)
fine; (5) denial or limitation of any right, power, privilege, or
immunity of the Member if not in violation of the Constitution; or (6)
any other sanction determined by the Committee to be appropriate (Rule
20(e), House Comm. on Standards of Official Conduct, 104th Cong.). In
action for censure the House has discussed whether or not the principles
of the procedure of the courts should be followed (II, 1255). In one
instance, pending consideration of a resolution to censure a Member, the
Speaker informed him that he should retire (II, 1366), but this is not
usual, and Members, against whom resolutions have been pending have
participated in debate either by consent (II, 1656) or without question
as to consent (II, 1246, 1253). A Member against whom a resolution of
censure was pending was asked by the Speaker if he desired to be heard
(VI, 236). But after the House had voted censure and the Member has been
brought to the bar by the Sergeant-at-Arms to be censured, it was held
that he might not then be heard (II, 1259). A resolution of censure
should not apply to more than one Member (II, 1240, 1621). Censure is
inflicted by the Speaker (II, 1259) and the words are entered in the
Journal (II, 1251, 1656; VI 236), but the Speaker may not pronounce
censure except by order of the House (VI, 237). When Members have
resigned pending proceedings for censure, the House has nevertheless
adopted the resolutions of censure (II, 1239, 1273, 1275, 1656).
[[Page 28]]
Members have been censured for personalities and other disorder in debate
(II, 1251, 1253, 1254, 1259), assaults on the floor (II, 1665), for
presenting a resolution alleged to be insulting to the House (II, 1246),
and for corrupt acts (II, 1274, 1286). For abuse of the leave to print,
the House censured a Member after a motion to expel him had failed (VI,
236). In one instance Members were censured for acts before the election
of the then existing House (II, 1286).
In the 94th Congress the House by adopting a report from the Committee
on Standards of Official Conduct reprimanded a Member for failing to
report certain financial holdings in violation of rule XLIV, the Code of
Official Conduct, and for investing in stock in a Navy bank the
establishment of which he was promoting, in violation of the Code of
Ethics for Government Service (H. Res. 1421, July 29, 1976, pp. 24379-
82). (For the Code of Ethics for Government Service, see H. Con. Res.
175, 85th Cong., 72 Stat. B12.) In the 95th Congress following an
investigation by the Committee on Standards of Official Conduct into
whether Members or employees had improperly accepted things of value
from the Republic of Korea or representatives thereof, the House
reprimanded three Members, one for falsely answering an unsworn
questionnaire relative to such gifts and violating the Code of Official
Conduct, one for failing to report as required by law the receipt of a
campaign contribution and violating the Code of Official Conduct, and
one for failing to report a campaign contribution, converting a campaign
contribution to personal use, testifying falsely to the committee under
oath, and violating the Code of Official Conduct (Oct. 13, 1978, pp.
36984, 37009, 37017). In the 96th Congress two Members were censured by
the House: (1) A Member who during a prior Congress both knowingly
increased an office employee's salary for repayment of that Member's
personal expenses and who was unjustly enriched by clerk-hire employees'
payments of personal expenses later compensated by salary increases, was
censured and ordered to repay the amount of the unjust enrichment with
interest (July 31, 1979, p. 21592); (2) a Member was censured for
receiving over a period of time sums of money from a person with a
direct interest in legislation in violation of clause 4 of rule XLIII,
and for transferring campaign funds into office and personal accounts
(June 10, 1980, pp. 13801-20). In the 98th Congress the House adopted
two resolutions (as amended in the House) censuring two Members for
improper relationships with House pages in prior Congresses (July 20,
1983, p. 20020 and p. 20030). In the 100th Congress the House adopted a
resolution reprimanding a Member for ``ghost voting,'' improperly
diverting government resources, and maintaining a ``ghost employee'' on
his staff (Dec. 18, 1987, p. 36266). In the 101st Congress another was
reprimanded for seeking dismissal of parking tickets received by a
person with whom he had a personal relationship and not related to
official business and for misstatements of fact in a memorandum relating
to the criminal probation record of that person (July 26, 1990,
p.19717). In the 105th Congress the House reprimanded the Speaker and
ordered him to reimburse a portion
[[Page 29]]
of the costs of the investigation by the Committee on Standards of Official
Conduct (Jan. 21, 1997, p. ----).
Debate on a resolution recommending a disciplinary sanction against a
Member may not exceed the scope of the conduct of the accused Member
(Dec. 18, 1987, p. 36271).
The power of <<NOTE: Sec. 64. Punishment by expulsion.>> expulsion has
been the subject of much discussion (I, 469, 476, 481; II, 1264, 1265,
1269; VI, 56, 398; see Powell v. McCormack, 395 U.S. 486 (1969)). In one
case a Member-elect who had not taken the oath was expelled (II, 1262),
and in another case the power to do this was discussed (I, 476). In one
instance the Senate assumed to annul its action of expulsion (II, 1243).
The Supreme Court has decided that a judgment of conviction under a
disqualifying statute does not compel the Senate to expel (II, 1282;
Burton v. United States, 202 U.S. 344 (1906)). The power of expulsion in
its relation to offenses committed before the Members' election has been
discussed (II, 1286), and in one case the Judiciary Committee of the
House concluded that a Member might not be punished for an offense
alleged to have been committed against a preceding Congress (II, 1283);
but the House itself declined to express doubt as to its power to expel
and proceeded to inflict censure (II, 1286). Both Houses have distrusted
their power to punish in such cases (II, 1264, 1284, 1285, 1288, 1289;
VI, 56, 238). However, the 96th Congress punished Members on two
occasions for offenses committed during a prior Congress (H. Res. 378,
July 31, 1979, p. 21592; H. Res. 660, June 10, 1980, pp. 13801-20). It
has been held that the power of the House to expel one of its Members is
unlimited; a matter purely of discretion to be exercised by a two-thirds
vote, from which there is no appeal (VI, 78). The resignation of the
accused Member has always caused a suspension of proceedings for
expulsion (II, 1275, 1276, 1279; VI, 238).
The House, in <<NOTE: Sec. 65. Procedure for expulsion.>> a proceeding
for expulsion, declined to give the Member a trial at the bar (II,
1275); but the Senate has permitted a counsel to appear at its bar (II,
1263), although it declined to grant a request for a specific statement
of charges or compulsory process for witnesses (II, 1264). Members
threatened with expulsion have been heard on their own behalf by consent
(II, 1273, 1275), or as a matter of right (II, 1269, 1286). In general,
there has been discussion as to whether or not the principles of the
procedure of the courts should be followed (II, 1264). The Senate once
expelled several Senators by a single resolution (II, 1266). Members and
Senators have been expelled for treason (II, 1261), for high misdemeanor
inconsistent with public duty (II, 1263), for friendship or association
with enemies of the Government and absence from their seats (II, 1269,
1270), and for bearing arms against the Government (II, 1267). In the
96th Congress, the House expelled a Member who had been convicted of
bribery (a felony) for accepting funds to perform official duties as a
Member of Congress (H. Res. 794, Oct. 2, 1980, pp. 28953-78).
[[Page 30]]
<<NOTE: Sec. 66. Propositions for punishment entertained as of
privilege.>> A proposition to reprimand, censure, or expel a Member
presents a question of privilege (II, 1254; III, 2648-2651; VI, 236;
July 26, 1990, p. 19717); and, if reported by the Committee on Standards
of Official Conduct (or a derivation thereof), may be called up at any
time after the Committee has filed its report (Jan. 21, 1997, p. ----).
An expulsion resolution when offered may be laid on the table (Oct. 1,
1976, p. 35111) or referred to committee (Mar. 1, 1979, p. 3753) before
the proponent is recognized to debate it. A proposition to censure is
not germane to a proposition to expel (VI, 236). On Oct. 2, 1980, the
House expelled a Member who had been found guilty of accepting money in
exchange for a promise to perform certain legislative acts (H. Res. 794,
96th Cong., pp. 28953-78).
A resolution providing that the House immediately proceed to consider
whether a Member should be expelled presents a question of privilege
(Speaker Clark, Dec. 9, 1913, pp. 584-86).
Decisions <<NOTE: Sec. 67. Decisions of the Court.>> of the Supreme
Court of the United States: Anderson v. Dunn, 6 Wh. 204 (1821); Kilbourn
v. Thompson, 103 U.S. 168 (1881); United States v. Ballin, 144 U.S. 1
(1892); In re Chapman, 166 U.S. 661 (1897); Burton v. United States, 202
U.S. 344 (1906); Powell v. McCormack, 395 U.S. 486 (1969).
\3\ Each House <<NOTE: Sec. 68. Each House to keep a journal.>> shall
keep a Journal of its Proceedings, and from time to time publish the
same, excepting such Parts as may in their Judgment require Secrecy; * *
*
The Journal and <<NOTE: Sec. 69. The Journal the official
record.>> not the Congressional Record is the official record of the
proceedings of the House (IV, 2727). Its nature and functions have been
the subject of extended discussions (IV, 2730, footnote). The House has
fixed its title (IV, 2728). While it ought to be a correct transcript of
the proceedings of the House, the House has not insisted on a strict
chronological order of entries (IV, 2815). The Journal is dated as of
the legislative and not the calendar day (IV, 2746).
The Journal records <<NOTE: Sec. 70. Journal a record of proceedings
and not of reasons.>> proceedings but not the reasons therefor (IV,
2811) or the circumstances attending (IV, 2812), or the statements or
opinions of Members (IV, 2817-2820). Exceptions to this rule are rare
(IV, 2808, 2825). Protests have on rare occasions been admitted by the
action of the House (IV, 2806, 2807), but the entry of a protest on the
Journal may not be demanded by a Member as a matter of right (IV, 2798)
and such demand does not present a question of privilege (IV, 2799). A
motion not entertained is not entered on the Journal (IV, 2813, 2844-
46).
[[Page 31]]
While the House <<NOTE: Sec. 71. House's absolute control of entries
in the Journal.>> controls the Journal and may decide what are
proceedings, even to the extent of omitting things actually done or
recording things not done (IV, 2784; VI, 634), and while the Speaker has
entertained a motion to amend the Journal so as to cause it to state
what was not the fact, leaving it for the House to decide on the
propriety of the act (IV, 2785), holding that he could not prevent a
majority of the House from so amending the Journal as to undo an actual
transaction (IV, 3091-93), in none of those rulings was an amendment
permitted to correct the Journal which had the effect of collaterally
changing the tabling of a motion to reconsider. In fact, under the
precedents cited in Sec. 775, infra, under clause 1 of rule XVI it has
been held not in order to amend or strike out a Journal entry setting
forth a motion exactly as made (IV, 2783, 2789), and thus it was held
not in order to amend the Journal by striking out a resolution actually
offered (IV, 2789), but on one occasion the House vacated the Speaker's
referral of an executive communication by amending the Journal of the
preceding day (Mar. 19, 1990, p.4488). Only on rare instances has the
House nullified proceedings by rescinding the records of them in the
Journal (IV, 2787), the House and Senate usually insisting on the
accuracy of its Journal (IV, 2783, 2786). In rare instances the House
and Senate have rescinded or expunged entries in Journals of preceding
Congresses (IV, 2730, footnote, 2792, 2793).
The Journal should <<NOTE: Sec. 72. Record of votes in the
Journal.>> record the result of every vote and state in general terms
the subject of it (IV, 2804); but the result of a vote is recorded in
figures only when the yeas and nays are taken (IV, 2827), when the vote
is recorded by electronic device or by clerks, under the provisions of
clause 5 of rule I, or when a vote is taken by ballot, it having been
determined in latest practice that the Journal should show not only the
result but the state of the ballot or ballots (IV, 2832).
It is the <<NOTE: Sec. 73. Approval of the Journal.>> uniform practice
of the House to approve its Journal for each legislative day (IV, 2731).
Where Journals of more than one session remain unapproved, they are
taken up for approval in chronological order (IV, 2771-2773). In
ordinary practice the Journal is approved by the House without the
formal putting of the motion to vote (IV, 2774).
The former rule required the reading of the Journal on each
legislative day. The reading could be dispensed with only by unanimous
consent (VI, 625) or suspension of the rules (IV, 2747-2750) and had to
be in full when demanded by any Member (IV, 2739-2741; VI, 627-628; Feb.
22, 1950, p. 2152).
The present form of the rule (clause 1 of rule I; see Sec. 621, infra)
was drafted from section 127 of the Legislative Reorganization Act of
1970 (84 Stat. 1140), incorporated into the standing rules in the 92d
Congress (H. Res. 5, Jan. 22, 1971, p. 144), and was further amended in
the 96th Congress (H. Res. 5, Jan. 15, 1979, pp. 7-16). Under the
current practice,
[[Page 32]]
the Speaker is authorized to announce his approval of
the Journal which is deemed agreed to by the House, subject to the right
of any Member to demand a vote on agreeing to the Speaker's approval
(which if decided in the affirmative is not subject to the motion to
reconsider). In the 98th Congress, the Speaker was given the authority
to postpone a record vote on agreeing to his approval of the Journal to
a later time on that legislative day (clause 5(b) of rule I; H. Res. 5,
Jan. 3, 1983, p. 34). While the transaction of any business is not in
order before approval of the Journal (VI, 2751; VI, 629, 637; Oct. 8,
1968, p. 30096), approval of the Journal yields to the simple motion to
adjourn (IV, 2757), administration of the oath (I, 171, 172), an
arraignment of impeachment (VI, 469), and questions of the privileges of
the House (II, 1630), and the Speaker may in his discretion recognize
for a parliamentary inquiry before approval of the Journal (VI, 624).
Under clause 1 of rule I, as amended in the 96th Congress, a point of
order of no quorum is not in order before the Speaker announces his
approval of the Journal. A point of order of no quorum is not in order
during the reading of the Journal if a quorum has once been established
on that day under clause 6(c)(1) of rule XV, and clause 6 of rule XV
generally prohibits the making of points of order of no quorum unless
the Speaker has put the question on the pending motion or proposition.
Under the practice <<NOTE: Sec. 74. Motions to amend the
Journal.>> before clause 1 of rule I was adopted in its present form,
the motion to amend the Journal took precedence over the motion to
approve it (IV, 2760; VI, 633); but the motion to amend may not be
admitted after the previous question is demanded on a motion to approve
(IV, 2770; VI, 633; VIII, 2684). An expression of opinion as to a
decision of the Chair was held not in order as an amendment to the
Journal (IV, 2848). A proposed amendment to the Journal being tabled
does not carry the Journal with it (V, 5435, 5436). While a proposed
correction of the Journal may be recorded in the Journal, yet it is not
in order to insert in full in this indirect way what has been denied
insertion in the first instance (IV, 2782, 2804, 2805). The earlier
practice was otherwise, however (IV, 2801-2803). The Journal of the last
day of a session is not approved on the assembling of the next session,
and is not ordinarily amended (IV, 2743, 2744). For further discussion
of the composition and approval of the Journal, see Deschler's
Precedents, vol. 1, ch. 5.
Decisions <<NOTE: Sec. 74a. Decisions of the Court.>> of the Supreme
Court of the United States: Field v. Clark, 143 U.S. 649 (1892); United
States v. Ballin, 144 U.S. 1 (1892).
* * * and the <<NOTE: Sec. 75. Yeas and Nays entered on the
Journal.>> Yeas and Nays of the Members of either House on any question
shall, at the Desire of one fifth of those Present, be entered on the
Journal.
[[Page 33]]
The yeas and <<NOTE: Sec. 76. Conditions of ordering yeas and
nays.>> nays may be ordered before the organization of the House (I, 91;
V, 6012, 6013), but are not taken in Committee of the Whole (IV, 4722,
4723). They are not necessarily taken on the passage of a resolution
proposing an amendment to the Constitution (V, 7038, 7039; VIII, 3506),
but are required to pass a bill over a veto (Sec. 104; VII, 1110). In
the earlier practice of the House it was held that less than a quorum
might not order the yeas and nays, but for many years the decisions have
been uniformly the other way (V, 6016-6028). Neither is a quorum
necessary on a motion to reconsider the vote whereby the yeas and nays
are ordered (V, 5693). When a quorum fails on a yea and nay vote it is
the duty of the Speaker and the House to take notice of that fact (IV,
2953, 2963, 2988). If the House adjourns, the order for the yeas and
nays remains effective whenever the bill again comes before the House
(V, 6014, 6015; V, 740; VIII, 3108), and it has been held that the
question of consideration might not intervene on a succeeding day before
the second calling of the yeas and nays (V, 4949). However, when the
call of the House is automatic under clause 4 of rule XV, the Speaker
directs the roll to be called or the vote to be taken by electronic
device without motion from the floor (VI, 678, 679, 694, 695); and
should a quorum fail to vote and the House adjourn, proceedings under
the automatic call are vacated and the question recurs de novo when the
bill again comes before the House (Oct. 10, 1940, pp. 13534-35; Oct. 13,
1962, pp. 23474-75; Oct. 19, 1966, p. 27641). While the Constitution and
the rules of the House guarantee that votes taken by the yeas and nays
be spread upon the Journal, neither requires that a Member's vote be
announced to the public immediately during the vote (Sept. 19, 1985, p.
24245).
The yeas and nays may not be demanded until the Speaker has put the
question in the form prescribed by clause 5 of rule I (Oct. 2, 1974, p.
33623).
The yeas and <<NOTE: Sec. 77. Demanding the yeas and nays.>> nays may
be demanded while the Speaker is announcing the result of a division (V,
6039), while a vote by tellers is being taken (V, 6038), and even after
the announcement of the vote if the House has not passed to other
business (V, 6040, 6041; VIII, 3110). But after the Speaker has
announced the result of a division on a motion and is in the act of
putting the question on another motion it is too late to demand the yeas
and nays on the first motion (V, 6042). And it is not in order during
the various processes of a division to repeat a demand for the yeas and
nays which has once been refused by the House (V, 6029, 6030, 6031). The
constitutional right of a Member to demand the yeas and nays may not be
overruled as dilatory (V, 5737; VIII, 3107); but this constitutional
right does not exist as to a vote to second a motion when such second is
required by the rules (V, 6032-6036; VIII, 3109). The right to demand
yeas and nays is not waived by the fact that the Member demanding them
has just made the point of no quorum and caused the Chair to count the
House (V, 6044).
[[Page 34]]
In passing on <<NOTE: Sec. 78. Yeas and nays ordered by onefifth.>> a
demand for the yeas and nays the Speaker need determine only whether
one-fifth of those present sustain the demand (V, 6043; VIII, 3112,
3115). In ascertaining whether one-fifth of those present support a
demand for the yeas and nays the Speaker counts the entire number
present and not merely those who rise to be counted (VIII, 3111, 3120).
Such count is not subject to verification by appeal (Sept. 12, 1978, p.
28984)), and a request for a rising vote of those opposed to the demand
is not in order (VIII, 3112-3114). Where the Chair prolongs his count of
the House in determining whether one-fifth have supported the demand for
yeas and nays, he counts latecomers in support of the demand as well as
for the number present (Sept. 24, 1990, p. 25521). After the House, on a
vote by tellers, has refused to order the yeas and nays it is too late
to demand the count of the negative on an original vote (V, 6045).
A motion to <<NOTE: Sec. 79. Reconsideration of the vote ordering the
yeas and nays.>> reconsider the vote ordering the yeas and nays is in
order (V, 6029; VIII, 2790), and the vote may be reconsidered by a
majority. If the House votes to reconsider the yeas and nays may again
be ordered by one-fifth (V, 5689-5691). But when the House, having
reconsidered, again orders the yeas and nays, a second motion to
reconsider may not be made (V, 6037). In one instance it was held that
the yeas and nays might be demanded on a motion to reconsider the vote
whereby the yeas and nays were ordered (V, 5689), but evidently there
must be a limit to this process. The vote whereby the yeas and nays are
refused may be reconsidered (V, 5692).
In the general <<NOTE: Sec. 80. Effect of an order of the yeas and
nays.>> but not the universal practice debate has not been closed by the
ordering of the yeas and nays until one Member has responded to the call
(V, 6101-6105, 6160, 6161). A motion to adjourn may be admitted after
the yeas and nays are ordered and before the roll call has begun (V,
5366); and a motion to suspend the rules has been entertained after the
yeas and nays have been demanded on another matter (V, 6835).
Consideration of a conference report (V, 6457), and a motion to
reconsider the vote by which the yeas and nays were ordered (V, 6029;
VIII, 2790) may be admitted. A demand for tellers or for a division is
not precluded or set aside by the fact that the yeas and nays are
demanded and refused (V, 5998; VIII, 3103).
Decisions <<NOTE: Sec. 81. Decisions of the Court.>> of the Supreme
Court of the United States: Field v. Clark, 143 U.S. 649 (1892); United
States v. Ballin, 144 U.S. 1 (1892); Twin City Bank v. Nebeker, 167 U.S.
196 (1897); Wilkes County v. Coler, 180 U.S. 506 (1901); Marshall v.
Gordon, 243 U.S. 521 (1917).
\4\ Neither House, <<NOTE: Sec. 82. Adjournment for more than three
days.>> during the Session of Congress shall, without the Consent of the
other, adjourn for more than
[[Page 35]]
three days, nor to any other Place than that in
which the two Houses shall be sitting.
The word ``Place'' in the above paragraph was construed to mean the
seat of Government, and consent of the Senate is not required where the
House orders its meetings to be held in another structure at the seat of
Government (Speaker Rayburn, Aug. 17, 1949, pp. 11651, 11683).
On November 22, 1940, p. 13715, the House of Representatives adopted a
resolution providing that thereafter until otherwise ordered its
meetings be held in the Caucus room of the new House Office Building.
Likewise the Senate on the same day, p. 13709, provided that its
meetings be held in the Chamber formerly occupied by the Supreme Court
in the Capitol. The two Houses continued to hold their sessions in these
rooms until the opening of the 77th Congress. These actions were
necessitated because of the precarious condition of the roofs in the two
Chambers. On June 28, 1949, p. 8571, and on September 1, 1950, p. 14140,
the House provided that until otherwise ordered its meetings be held in
the Caucus room of the new House Office Building, pending the remodeling
of its Chamber. On June 29, 1949, p. 8584, and on Aug. 9, 1950, p.
12106, the Senate provided that its meetings be held in the Chamber
formerly occupied by the Supreme Court in the Capitol, pending
remodeling of its Chamber. The House returned to its Chamber on January
3, 1950, and again on January 1, 1951. The Senate returned to its
Chamber on January 3, 1950, and again on January 3, 1951.
The House of <<NOTE: Sec. 83. Adjournment of the House within the
threeday limit.>> Representatives in adjourning for not ``more than
three days'' must take into the count either the day of adjourning or
the day of the meeting, and Sunday is not taken into account in making
this computation (V, 6673, 6674). By special order, the House may
provide for a session of the House on a Sunday, traditionally a ``dies
non'' under the precedents of the House (Dec. 17, 1982, p. 31946; Dec.
18, 1987, p. 36352; Nov. 17, 1989, p. 30029; Aug. 20, 1994, p. ----).
The House has by standing order provided that it should meet on two days
only of each week instead of daily (V, 6675). Before the election of
Speaker, the House has adjourned for more than one day (I, 89, 221). The
House has by unanimous consent agreed to an adjournment for less than
three days but specified that it would continue in adjournment for ten
days pursuant to a concurrent resolution already passed by the House if
the Senate adopted the concurrent resolution before the third day of the
House's adjournment (Nov. 20, 1987, p. 33054). The Committee on Rules
has reported a rule authorizing the Speaker to declare the House in
recesses subject to calls of the Chair during five discrete periods,
each consistent with the Constitutional constraint that neither House
(recess or) adjourn for more than three days without consent of the
other House (Dec. 21, 1995, p. ----; Jan. 5, 1996, p. ----).
[[Page 36]]
Congress is adjourned <<NOTE: Sec. 84. Resolutions for adjournment of
the two Houses.>> for more than three days by a concurrent resolution
(IV, 4031, footnote). When it adjourns in this way, but not to or beyond
the day fixed by Constitution or law for the next regular session to
begin, the session is not thereby necessarily terminated (V, 6676,
6677). Until the 67th Congress neither House had ever adjourned for more
than three days by itself with the consent of the other, but resolutions
had been offered for the accomplishment of that end (V, 6702, 6703). On
June 30, 1922, the House adjourned until August 15, 1922, with the
consent of the Senate. Pursuant to a concurrent resolution (H. Con. Res.
266) the Senate granted its consent to an adjournment sine die of the
House on August 20, 1954, and the House granted its consent to the
Senate to an adjournment sine die at any time prior to December 25,
1954. The Senate acting under the authority of the aforementioned
resolution adjourned sine die on December 2, 1954. The adjournment
resolution in the second session of the 97th Congress provided for
adjournment sine die of the House on December 20 or December 21 pursuant
to a motion made by the Majority Leader or his designee, and granted the
consent of the House to adjournment sine die of the Senate at any time
prior to January 3, 1983, as determined by the Senate, and the consent
of the House for adjournments or recesses of the Senate for periods of
more than three days as determined by the Senate during such period (H.
Con. Res. 438, Dec. 20, 1982, p. 32951). Another concurrent resolution
in the 97th Congress provided for an adjournment of the Senate to a day
certain and granted the consent of the Senate to an adjournment of the
House for more than three days to a day certain, or to any day before
that day as determined by the House (S. Con. Res. 102, May 27, 1982, pp.
12504, 12505). On one occasion the two Houses provided for an
adjournment to a certain day, with a provision that if there should be
no quorum present on that day the session should terminate (V, 6686).
The two Houses have adjourned to a certain day, with a provision that
they may be reassembled by the Leadership if legislative expediency so
required such reassembling (July 8, 1943, p. 7516; June 23, 1944, p.
6667; Sept. 21, 1944, p. 8109; July 18, 1945, p. 7733; July 26, 1947, p.
10521; June 20, 1948, p. 9348; Aug. 7, 1948, p. 10247), and in the 91st
Congress, the two Houses agreed to a concurrent resolution adjourning
both to dates certain but which also provided that the House was subject
to recall by the Speaker if legislative expediency so warranted (July
20, 1970, p. 24978). In the 93d Congress, first and second sessions, the
two Houses agreed to concurrent resolutions adjourning the Congress sine
die with a provision that the two Houses could be reassembled by the
Leadership (Dec. 22, 1973, p. 43327; Dec. 20, 1974, p. 41815). Recall
provisions were also included in the sine die adjournment resolutions
for the first and second sessions of the 101st Congress (Nov. 21, 1989,
p. 31156; Oct. 27, 1990, p. 36850) and the second session of the 104th
Congress (Oct. 3, 1996, p. ----). In the first session of the 102d
Congress, the two Houses agreed to a concurrent resolution providing for
an adjournment
[[Page 37]]
of the House and Senate until 11:55 a.m. on January 3, 1992, or until
recalled by their joint leaderships, with the proviso that when the second
session convened at noon on January 3, 1992, the Senate and House would
not conduct organizational or legislative business but would adjourn on
that day until January 21 and 22, 1992, respectively, unless sooner recalled
(H. Con. Res. 260, 102d Cong., Nov. 26, 1991, p. 35840); and that prohibition
against the conduct of business was considered not to preclude recognition
for one-minute speeches and special-order speeches by unanimous consent
(Jan. 3, 1992, p. ----).
A concurrent resolution to provide for adjournment for more than three
days is offered in the House as a matter of privilege (V, 6701-6706),
and is not debatable (VIII, 3372-3374). The Legislative Reorganization
Act of 1970 provides for a sine die adjournment, or (in an odd numbered
year) an adjournment of slightly over a month (from that Friday in
August which is at least 30 days before Labor Day to the Wednesday
following Labor Day) unless the nation is in a state of war, declared by
Congress (sec. 461(b); 84 Stat. 1140). Congress can, of course, waive,
this requirement and make other determinations regarding its adjournment
(see Sec. 948, infra).
The requirement that resolutions providing for an adjournment sine die
of either House may not be considered until Congress has completed
action on the second concurrent resolution on the budget for the fiscal
year in question, and on any reconciliation legislation required by such
a resolution, contained in section 310(f) of the Congressional Budget
Act of 1974 (P.L. 93-344), was repealed by the Balanced Budget and
Emergency Deficit Control Act of 1985 (P.L. 99-177). That law amended
sections 309 and 310 of the Congressional Budget Act to prohibit the
consideration of concurrent resolutions during the month of July
providing adjournments in excess of three days until the House has
approved general annual appropriation bills within the jurisdictions of
all the subcommittees on Appropriations for the ensuing fiscal year, and
until the House has completed action on all reconciliation legislation
for the ensuing fiscal year required to be reported by the concurrent
resolution on the budget for that year (see Sec. 1007, infra).
A resolution providing for an adjournment sine die is not debatable
(VIII, 3372-3374), though a Member may be recognized during its
consideration under a reservation of objection to a unanimous-consent
request that the resolution be agreed to (Oct. 27, 1990, p. 36850).
* * *
Section 6. \1\ The Senators and <<NOTE: Sec. 85. Compensation of
Members.>> Representatives shall receive a Compensation for their
Services, to be ascertained by Law, and paid out of the Treasury of the
United States.
[[Page 38]]
The 27th amendment to the Constitution addresses laws ``varying the
compensation for the services of the Senators and Representatives (see
Sec. 258, infra). The present rate of compensation of Representatives,
the Resident Commissioner from <<NOTE: Sec. 86. Salary and
deductions.>> Puerto Rico, and Delegates is $133,600 per annum. The rate
of compensation of the Speaker and the Vice President is $171,500 per
annum (2 U.S.C. 31; 3 U.S.C. 104) with an additional $10,000 per annum
to assist in defraying expenses (2 U.S.C. 31b; 3 U.S.C. 111). The
Majority and Minority Leaders of the House receive $148,400 per annum (2
U.S.C. 31). These rates of compensation are all (except for the expense
allowances) subject to annual cost of living adjustments (2 U.S.C.
31(2)). The present rate of compensation of Senators is that fixed by
section 1101 of Public Law 101-194, as adjusted pursuant to 2 U.S.C.
31(2).
Under the Federal Salary Act of 1967 (2 U.S.C. 351-362), the Citizens'
Commission on Public Service and Compensation (formerly the Commission
on Executive, Legislative and Judicial Salaries) is authorized and
directed to conduct quadrennial reviews of the rates of pay of specified
government officials, including Members of Congress, and to report to
the President the results of each review and its recommendations for
adjustments in such rates. Not later than the first Monday after January
3 of the calendar year following a report of the Commission, the
President transmits to Congress his recommendations in light of such
report (2 U.S.C. 358). The recommendations of the President take effect
only after the enactment into law of a bill or joint resolution
approving them in their entirety and an intervening general election of
Representatives. A bill or joint resolution to approve such
recommendations is privileged (see Sec. 1013, infra) if offered by the
Majority Leader or his designee within 60 calendar days of the
President's transmittal, and must undergo a recorded vote on passage (2
U.S.C. 359).
In 1985, the Salary Act was amended (P.L. 99-190, sec. 135) to require
a salary commission report with respect to fiscal year 1987. The
President transmitted his recommendations concerning that report in his
fiscal year 1988 Budget message (Jan. 5, 1987, H. Doc. 100-11). When not
disapproved by the Congress in accordance with the Salary Act (2 U.S.C.
359), those recommendations took effect on March 1, 1987. On return to
the normal quadrennial cycle, the President transmitted with his fiscal
year 1990 Budget message recommendations concerning a salary commission
report with respect to fiscal year 1989 (Jan. 9, 1989, H. Doc. 101-21).
Those recommendations were disapproved by Public Law 101-1 (H. J. Res.
129, 101st Cong., Feb. 7, 1989, p. 1708). In 1989, the Salary Act was
amended (P.L. 101-194, sec. 701) to redesignate the Commission, refine
the parameters for quadrennial adjustments, and provide for privileged
consideration of legislation to approve adjustments recommended by the
President. The quadrennial review contemplated by the statute did not
occur in 1993. The next quadrennial review contemplated by the statute
would be conducted in 1997 (2 U.S.C. 356), and the Commission is to
report the results
[[Page 39]]
of that review to the President by December 15 of that year (2 U.S.C.
357). Adjustments hereafter are to maintain equal levels of pay among
the Speaker, the Vice President, and the Chief Justice; among the Majority
and Minority Leaders, the President pro tempore of the Senate, and level
I of the Executive Schedule; and among Representatives, Senators, certain
judges, and level II of the Executive Schedule (2 U.S.C. 362).
The statutes also provides for deductions from the pay of Members and
Delegates who are absent from the sessions of the House for reasons
other than illness of themselves and families, or who retire before the
end of the Congress (2 U.S.C. 39; IV, 3011, footnote). The law as to
deductions has been held to apply only to Members who have taken the
oath (II, 1154). Members and Delegates are paid monthly on certificate
of the Speaker (2 U.S.C. 34, 35, 37, 57a). The Sergeant-at-Arms, or in
case of his disability the Treasurer of the United States, disburses the
pay of Members (31 U.S.C. 148). 4 U.S.C. 113 provides that the residence
of a Member of Congress for purpose of imposing State income tax laws
shall be the State from which elected and not the State or subdivision
thereof in which the Member maintains an abode for the purpose of
attending sessions of Congress.
Questions have arisen <<NOTE: Sec. 87. Questions as to
compensation.>> frequently as to compensation of Members especially in
cases of Members elected to fill vacancies (I, 500; II, 1155) and where
there have been questions as to incompatible offices (I, 500) or titles
seat (II, 1206). The Supreme Court has held that a Member chosen to fill
a vacancy is entitled to salary only from the time that the compensation
of his predecessor has ceased, Page v. United States, 127 U.S. 67
(1888). See also 2 U.S.C. 37.
In the 92d <<NOTE: Sec. 88. Travel and Members' representational
allowances.>> Congress, the provisions of H. Res. 457 of that Congress,
authorizing the Committee on House Administration (now House Oversight)
to adjust allowances of Members and committees without further action by
the House, were enacted into permanent law (85 Stat. 636; 2 U.S.C. 57),
but the 94th Congress enacted into permanent law H. Res. 1372 of that
Congress, stripping the Committee of that authority and requiring House
approval of the committee's recommendations, except in cases made
necessary by price changes in materials and supplies, technological
advances in office equipment, and cost of living increases (90 Stat.
1448; 2 U.S.C. 57a). The Committee on House Administration (now House
Oversight) retains authority under 2 U.S.C. 57 to independently adjust
amounts within total allowances and to set terms and conditions of such
allowances (Mar. 21, 1977, p. 8227; Apr. 21, 1983, p. 9339).
In the 104th Congress the Committee on House Oversight promulgated an
order abolishing separate allowances for Clerk Hire, Official Expenses,
and Official Mail, in favor of a single ``Members' Representational
Allowance'' (MRA). The MRA is provided for the employment of staff in
the
[[Page 40]]
Member's Washington and district offices, official expenses incurred
by the Member, and the postage expenses of first, third, and fourth
class frankable mail.
Until January 1, 1988, the maximum salary for staff members was the
rate of basic pay authorized for Level V of the Executive Schedule (by
order of the Committee on House Administration, Mar. 21, 1977, p. 8227).
Under section 311 of the Legislative Branch Appropriations Act, 1988, as
contained in section 101(i) of Public Law 100-202 (2 U.S.C. 60a-2a), the
maximum salary for staff members is set by pay order of the Speaker. A
Member may not employ a relative on his MRA (5 U.S.C. 3110).
Until the 103d Congress, a Member could employ a ``Lyndon Baines
Johnson Congressional Intern'' for a maximum of two months at not to
exceed $1,160 per month. Such internships were available for college
students and secondary or postsecondary school teachers (H. Res. 420,
93d Cong., Sept. 18, 1973, p. 30186). Any paid internship is now funded
through the MRA.
The statutes provide for continuation of the pay of clerical
assistants to a Member upon his or her death or resignation, until a
successor is elected to fill the vacancy, such clerical assistants to
perform their duties under the direction of the Clerk of the House (2
U.S.C. 92a-92d). Upon the explusion of a Member in the 96th Congress,
the House by resolution extended those provisions to any termination of
service by a Member during the term of office (H. Res. 804, Oct. 2,
1980, p. 28978).
For current information on the MRA and the method of its accounting
and disbursement, see current U.S. House of Representatives
Congressional Handbook, Committee on House Oversight.
At its <<NOTE: Sec. 88a. Ban on Legislative Service
Organizations.>> organization the 104th Congress prohibited the
establishment or continuation of any legislative service organization
(as that term had been understood in the 103d Congress) and directed the
Committee on House Oversight to take such steps as were necessary to
ensure an orderly termination and accounting for funds of any
legislative service organization in existence on January 3, 1995 (sec.
222, H. Res. 6, Jan. 4, 1995, p. ----).
Separate from the <<NOTE: Sec. 89. Leadership staff allowances.>> MRA
specified above, the leaders of the House (the Speaker, Majority Leader,
Minority Leader, Majority Whip and Minority Whip) are entitled to office
staffing allowances consisting of certain statutory positions as well as
lump-sum appropriations authorized by section 473 (84 Stat. 1140). The
portion of these allowances for leadership office personnel may be
adjusted by the Clerk of the House in certain situations when the
President effects a pay adjustment for certain classes of federal
employees under the Federal Pay Comparability Act of 1970 (P.L. 91-656;
84 Stat. 1946).
Under <<NOTE: Sec. 89a. Speaker's ``pay orders.''>> section 311(d) of
the Legislative Branch Appropriations Act, 1988 [2 U.S.C. 60a-2a], the
Speaker may issue ``pay orders'' that adjust pay levels for officers and
employees of the House to maintain certain relationships with com-
[[Page 41]]
parable levels in the Senate and in the other branches of government.
For the text of section 311(d), see Sec. 1013(13), infra.
* * * They [the <<NOTE: Sec. 90. Privilege of Members from
arrest.>> Senators and Representatives] shall in all Cases, except
Treason, Felony, and Breach of the Peace, be privileged from Arrest
during their attendance at the Session of their respective Houses, and
in going to and returning from the same; * * *
The word ``felony'' <<NOTE: Sec. 91. Assertions of privilege of
Members by the House.>> in this provision has been interpreted not to
refer to a delinquency in a matter of debt (III, 2676), and ``treason,
felony, and breach of the peace'' have been construed to mean all
indictable crimes (III, 2673). The Supreme Court has held that the
privilege does not apply to arrest in any criminal case. Williamson v.
United States, 207 U.S. 425 (1908). The courts have discussed and
sustained the privilege of the Member in going to and returning from the
session (III, 2674); and where a person assaulted a Member on his way to
the House, although at a place distant therefrom, the House arrested him
on warrant of the Speaker, arraigned him at the bar and committed him
(II, 1626, 1628). Other assaults under these circumstances have been
treated as breaches of privilege (II, 1645). Where a Member had been
arrested and detained under mesne process in a civil suit during a
recess of Congress, the House decided that he was entitled to discharge
on the assembling of Congress, and liberated him and restored him to his
seat by the hands of its own officer (III, 2676). Service of process is
distinguished from arrest in civil cases and related historical data are
collected in Long v. Ansell, 293 U.S. 76 (1934), where the Supreme Court
held that the clause was applicable only to arrests in civil suits, now
largely obsolete but common at the time of the adoption of the United
States Constitution. Rule L, infra, was added in the 97th Congress to
provide a standing procedure governing subpoenas to Members, officers,
and employees directing their appearance as witnesses relating to the
official functions of the House, or for the production of House
documents.
<<NOTE: Sec. 92. Members privileged from being questioned for speech or
debate.>> * * * and for any Speech or Debate in either House, they
[the Senators and Representatives] shall not be questioned in any other
place.
[[Page 42]]
This privilege as <<NOTE: Sec. 93. Scope of the privilege.>> to ``any
speech or debate'' applies generally to ``things done in a session of
the House by one of its Members in relation to the business before it.''
Kilbourn v. Thompson, 103 U.S. 168 (1881), cited at III, 2675. See also
II, 1655 and Sec. Sec. 301-302, infra, for provisions in Jefferson's
Manual on the privilege; and Deschler's Precedents, vol. 2, ch. 7. The
clause precludes judicial inquiry into the motivation, preparation, or
content of a Member's speech on the floor and prevents such a speech
from being made the basis for a criminal conspiracy charge against the
Member. United States v. Johnson, 383 U.S. 169 (1966). The Supreme Court
held in United States v. Helstoski, 442 U.S. 447 (1979), that under the
Speech or Debate Clause, neither evidence of nor references to
legislative acts of a Member of Congress may be introduced by the
Government in a prosecution under the official bribery statute. But the
Supreme Court has limited the scope of legislative activity which is
protected under the clause by upholding grand jury inquiry into the
possession and nonlegislative use of classified documents by a Member.
Gravel v. United States, 408 U.S. 606 (1972). The Court has also
sustained the validity of an indictment of a Member for accepting an
illegal bribe to perform legislative acts. United States v. Brewster,
408 U.S. 501 (1972). Nor does the clause protect transmittal of
allegedly defamatory material issued in press releases and newsletters
by a Senator, as neither was essential to the deliberative process of
the Senate. Hutchinson v. Proxmire, 443 U.S. 111 (1979). A complaint
against an officer of the House relating to the dismissal of an official
reporter of debates has been held nonjusticiable on the basis that her
duties were directly related to the due functioning of the legislative
process. Browning v. Clerk, 789 F.2d 923 (D.C. Cir. 1986), cert. den.
479 U.S. 996 (1986).
Legislative employees acting under orders of the House are not
necessarily protected under the clause from judicial inquiry into the
constitutionality of their actions. Powell v. McCormack, 395 U.S. 486
(1969); Kilbourn v. Thompson, 103 U.S. 165 (1880); Dombrowski v.
Eastland, 387 U.S. 82 (1967). But see Gravel v. United States, 408 U.S.
606 (1972), where the Supreme Court held that the aide of a Senator was
protected under the clause when performing legislative acts which would
have been protected under the clause if performed by the Senator
himself. There is no distinction between the Members of a Senate
subcommittee and its chief counsel insofar as complete immunity under
the Speech and Debate Clause is provided for the issuance of a subpoena
pursuant to legitimate legislative inquiry. Eastland v. U.S.
Servicemen's Fund, 421 U.S. 491 (1975). See also Doe v. McMillan, 412
U.S. 306 (1973) (relating to the dissemination of a congressional
report) for the immunity under this clause of Members of the House and
their staffs, and for the common-law immunity of the Public Printer and
Superintendent of Documents.
For federal court decisions on the applicability of the clause to
unofficial circulation of reprints from the Congressional Record, see
McGovern v. Martz, 182 F. Supp. 343 (1960); Long v. Ansell, 69 F.2d 386
(1934), aff'd,
[[Page 43]]
293 U.S. 76 (1934); Methodist Federation for Social
Action v. Eastland, 141 F. Supp. 729 (1956). For inquiry into a Member's
use of the franking privilege, see Hoellen v. Annunzio, 468 F.2d 522
(1972), cert. denied, 412 U.S. 953 (1973); Schiaffo v. Helstoski, 350 F.
Supp. 1076 (1972), rev'd 492 F.2d 413 (1974). For inquiry into the
printing of committee reports, see Doe v. McMillan, 412 U.S. 306 (1973);
Hentoff v. Ichord, 318 F. Supp. 1175 (1970).
For assaulting a <<NOTE: Sec. 94. Action by the House.>> Member for
words spoken in debate, Samuel Houston, not a Member, was arrested,
tried, and censured by the House (II, 1616-1619). Where Members have
assaulted other Members for words spoken in debate (II, 1656), or
proceeded by duel (II, 1644), or demanded explanation in a hostile
manner (II, 1644), the House has considered the cases as of privilege. A
communication addressed to the House by an official in an Executive
Department calling in question words uttered by a Member in debate was
criticized as a breach of privilege and withdrawn (III, 2684). An
explanation having been demanded of a Member by a person not a Member
for a question asked of the latter when a witness before the House, the
matter was considered but not pressed as a breach of privilege (III,
2681). A letter from a person supposed to have been assailed by a Member
in debate, asking properly and without menace if the speech was
correctly reported, was held to involve no question of privilege (III,
2682). Unless it be clear that a Member has been questioned for words
spoken in debate, the House declines to act (II, 1620; III, 2680).
For assaulting a Member, Charles C. Glover was arrested, arraigned at
the bar of the House, and censured by the Speaker by direction of the
House, although the provocation of the assault was words spoken in
debate in the previous Congress (VI, 333).
Decisions <<NOTE: Sec. 95. Decisions of the Court.>> of the Supreme
Court of the United States: Kilbourn v. Thompson, 103 U.S. 168 (1881);
Tenney v. Brandhove, 341 U.S. 367 (1951); United States v. Johnson, 383
U.S. 169 (1966); Dombrowski v. Eastland, 387 U.S. 82 (1967); Powell v.
McCormack, 395 U.S. 486 (1969); Gravel v. United States, 408 U.S. 606
(1972); United States v. Brewster, 408 U.S. 501 (1972); United States v.
Helstoski, 442 U.S. 477 (1979); Hutchinson v. Proxmire, 443 U.S. 111
(1979).
\2\ No Senator or <<NOTE: Sec. 96. Restriction on appointment of
Members to office.>> Representative shall, during the Time for which he
was elected, be appointed to any Civil Office under the Authority of the
United States, which shall have been created, or the Emoluments whereof
shall have been encreased during such time; * * *.
[[Page 44]]
In a few cases questions have arisen under this paragraph (I, 506,
footnote; and see 42 Op. Att'y Gen. 36 (1969); see also Deschler's
Precedents, vol. 2, ch. 7).
<<NOTE: Sec. 97. Members not to hold office under the United States.>>
* * * and no Person holding any Office under the United States, shall
be a Member of either House during his Continuance in Office.
The meaning of the word ``office'' as used in this paragraph has been
discussed (I, 185, 417, 478, 493; II, 993; VI, 60, 64), as has also the
general subject of incompatible offices (I, 563).
The Judiciary Committee <<NOTE: Sec. 98. As to what are incompatible
offices.>> has concluded that members of commissions created by law to
investigate and report, but having no legislative, executive, or
judicial powers, and visitors to academies, regents, directors, and
trustees of public institutions, appointed under the law by the Speaker,
are not officers within the meaning of the Constitution (I, 493).
Membership on joint committees created by the statute is not an office
in the contemplation of the Constitutional provision prohibiting Members
of Congress from holding simultaneously other offices under the United
States (VII, 2164). A Member of either House is eligible to appointment
to any office not forbidden him by law, the duties of which are not
incompatible with those of a Member (VI, 63) and the question as to
whether a Member may be appointed to the Board of Managers of the
Soldiers' Home and become local manager of one of the Homes, is a matter
for the decision of Congress itself (VI, 63). The House has also
distinguished between the performance of paid services for the Executive
(I, 495), like temporary service as assistant United States attorney
(II, 993), and the acceptance of an incompatible office. The House has
declined to hold that a contractor under the Government is
constitutionally disqualified to serve as a Member (I, 496). But the
House, or its committees, have found disqualified a Member who was
appointed a militia officer in the District of Columbia (I, 486) and in
various States (VI, 60), and Members who have accepted commissions in
the Army (I, 491, 492, 494). But the Judiciary Committee has expressed
the opinion that persons on the retired list of the Army do not hold
office under the United States in the constitutional sense (I, 494). A
Member-elect has continued to act as governor of a State after the
assembling of the Congress to which he was elected (I, 503), but the
duties of a Member of the House and the Governor of a State are
absolutely inconsistent and may not be simultaneously discharged by the
same Member (VI, 65).
[[Page 45]]
The House decided <<NOTE: Sec. 99. Appointment of Memberselect to
offices under the United States.>> that the status of a Member-elect was
not affected by the constitutional requirement (I, 499), the theory
being advanced that the status of the Member-elect is distinguished from
the status of the Member who has qualified (I, 184). And a Member-elect,
who continued in an office after his election but resigned before taking
his seat, was held entitled to the seat (I, 497, 498). But when a
Member-elect held an incompatible office after the meeting of Congress
he was held to have disqualified himself (I, 492). In other words, the
Member-elect may defer until the meeting of Congress his choice between
the seat and an incompatible office (I, 492). As early as 1874 the
Attorney General opined that a Member-elect is not officially a Member
of the House, and thus may hold any office until sworn (14 Op. Att'y
Gen. 408 (1874)).
The House has <<NOTE: Sec. 100. Relation of contestants to
incompatible offices.>> manifestly leaned to the idea that a contestant
holding an incompatible office need not make his election until the
House has declared him entitled to the seat (I, 505). Although a
contestant had accepted and held a State office in violation of the
state constitution, if he were really elected a Congressman, the House
did not treat his contest as abated (II, 1003). Where a Member had been
appointed to an incompatible office a contestant not found to be elected
was not admitted to fill the vacancy (I, 807).
Where a Member <<NOTE: Sec. 101. Procedure of the House when
incompatible offices are accepted.>> has accepted an incompatible
office, the House has assumed or declared the seat vacant (I, 501, 502;
VI, 65). In the cases of Baker and Yell, the Elections Committee
concluded that the acceptance of a commission as an officer of
volunteers in the national army vacated the seat of a Member (I, 488),
and in another similar case the Member was held to have forfeited his
right to a seat (I, 490). The House has seated a person bearing regular
credentials on ascertaining that his predecessor in the same Congress
had accepted a military office (I, 572). But usually the House by
resolution formally declares the seat vacant (I, 488, 492). A Member-
elect may defer until the meeting of Congress his choice between the
seat and an incompatible office (I, 492). But when he retains the
incompatible office and does not qualify, a vacancy has been held to
exist (I, 500). A resolution excluding a Member who has accepted an
incompatible office may be agreed to by a majority vote (I, 490). A
Member charged with acceptance of an incompatible office was heard in
his own behalf during the debate (I, 486).
Where it was held in federal court that a Member of Congress may not
hold a commission in the Armed Forces Reserve under this clause, the
U.S. Supreme Court reversed on other grounds, the plaintiff's lack of
standing to maintain the suit. Reservists Committee to Stop the War v.
Laird, 323 F. Supp. 833 (1971), aff'd, 595 F.2d 1075 (1972), rev'd on
other grounds, 418 U.S. 208 (1974).
[[Page 46]]
Section 7. \1\ All Bills <<NOTE: Sec. 102. Bills raising revenue to
originate in the House.>> for raising Revenue shall originate in the
House of Representatives; but the Senate may propose or concur with
Amendments as on other Bills.
This provision has been the subject of much discussion (II, 1488,
1494). In the earlier days the practice was not always correct (II,
1484); but in later years the House has insisted on its prerogative and
the Senate has often shown reluctance to infringe thereon (II, 1482,
1483, 1493). In several instances, however, the subject has been matter
of contention, conference (II, 1487, 1488), and final disagreement (II,
1485, 1487, 1488). Sometimes, however, when the House has questioned an
invasion of prerogative, the Senate has receded (II, 1486, 1493). The
disagreements have been especially vigorous over the right of the Senate
to concur with amendments (II, 1489), and while the Senate has
acquiesced in the sole right of the House to originate revenue bills, it
has at the same time held to a broad power of amendment (II, 1497-1499).
The House has frequently challenged the Senate on this point (II, 1481,
1491, 1496; Sept. 14, 1965, p. 23632). When the House has conceived that
its prerogative has been invaded, it has ordered the bill or Senate
amendment to be returned to the Senate (II, 1480-1499; VI, 315, 317;
Mar. 30, 1937, p. 2930; July 2, 1960, p. 15818; Oct. 10, 1962, p. 23014;
May 20, 1965, p. 11149; June 20, 1968, p. 22127; Nov. 8, 1979, p. 31518;
May 17, 1983, p. 12486; Oct. 1, 1985, p. 25418; Sept. 25, 1986, p.
26202; July 30, 1987, p. 21582; June 16, 1988, p. 14780; June 21, 1988,
p. 15425; Sept. 23, 1988, p. 25094; Sept. 28, 1988, p. 26415; Oct. 21,
1988, pp. 33110-11; June 15, 1989, p. 12167; Nov. 9, 1989, p. 28271;
Oct. 22, 1991, p. 27087; Oct. 31, 1991, p. 29284; Feb. 25, 1992, p. ----
; July 21, 1994, p. ----; Aug. 12, 1994, p. ----; Oct. 7, 1994, p. ----;
Mar. 21, 1996, p. ----; Apr. 16, 1996, p. ----; Sept. 27, 1996, p. ----;
Sept. 28, 1996, p. ----), or declined to proceed further with it (II,
1485). A bill raising revenue incidentally was held not to infringe upon
the Constitutional prerogative of the House to originate revenue
legislation (VI, 315). Discussion of differentiation between bills for
the purpose of raising revenue and bills which incidentally raise
revenue (VI, 315). A question relating to the invasion of the
Constitutional prerogatives of the House by a Senate amendment may be
raised at any time when the House is in possession of the papers, but
not otherwise; thus, the question has been presented pending the motion
to call up a conference report on the bill (June 20, 1968, Deschler's
Precedents, vol. 3, ch. 13, sec. 14.2; Aug. 19, 1982, p. 22127), but has
been held nonprivileged with respect to a bill already presented to the
President (Apr. 6, 1995, p. ----). On January 16, 1924, p. 1027, the
Senate decided that a bill proposing a gasoline tax in the District of
Columbia should not originate in the Senate (VI, 316). Among the
measures the House has returned to the Senate: a Senate
[[Page 47]]
passed bill providing for the sale of Conrail and containing provisions relating to the tax treatment of the sale, notwithstanding inclusion in that
bill of a ``disclaimer'' section requiring all revenue provisions therein to
be contained in separate legislation originating in the House (Sept. 25,
1986, p. 26202); a Senate passed bill prohibiting the importation of
commodities subject to tariff (July 30, 1987, p. 21582); a Senate-passed
bill banning all imports from Iran, a tariff measure as affecting
revenue from dutiable imports (June 16, 1988, p. 14780); a Senate-passed
bill dealing with the tax treatment of income derived from the