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H.Doc.107-285 Reproduced with the permission of The Washington Post,  2002, http://www.washingtonpost.com/wp-srv/nation/specials/attacked/remembrance/vic--list.html ...


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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).

[[Page [22]]]

  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); 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).

  * * * 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). 
Under clause 5(c) of rule XX, upon the death, resignation, expulsion, 
disqualification, or removal of a Member, the Speaker announces any 
adjustment to the whole number of the House. Such an announcement is not 
subject to appeal (see Sec. 1024a, infra).
  For many years <<NOTE: Sec. 54. The theory of the quorum present; and 
the count by the Speaker.>> a quorum was determined only by noting the 
number 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). However, in 1890 
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, which 
was upheld by the Supreme Court (IV, 2904; United States v. Ballin,

[[Page [23]]]

144 U.S. 1 (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). 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 has not conceded 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, 2935-2949). Also, a line of rulings made 
under the old theory was 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). For a 
discussion of the Ballin decision and the Chair's count to determine a 
quorum, see House Practice, ch. 43, Sec. 5.
  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 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 former clause 6 of rule XV 
(current clause 7 of rule XX) was adopted to provide that after the 
presence of a quorum is once ascertained on any day, a point of no 
quorum could not be entertained after the Committee had risen and 
pending the report of

[[Page [24]]]

the Chairman to the House (see Sec. 1027, infra). Clause 7 of rule XX 
now specifically precludes a point of no quorum unless a question has 
been put to a vote. However, the Speaker retains the right to recognize 
a Member to move a call of the House at any time (but may, under clause 
7(c) of rule XX recognize for a call of the House after the previous 
question has been ordered only when the Speaker determines by actual 
count that a quorum is not present). A point of order of no quorum 
during debate only in the House does not lie independently under this 
clause of the Constitution since former clause 6 of rule XV (current 
clause 7 of rule XX) 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, p. 28800).
  Before these recent changes to former rule XV (current rule XX), 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 6 of rule XVIII. 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

[[Page [25]]]

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 7 of rule XX).
  Decisions <<NOTE: Sec. 57. Decisions of the Court.>> of the Supreme 
Court of the United States: Kilbourn v. Thompson, 103 U.S. 190 (1881); 
United States v. Ballin, 144 U.S. 1 (1892); Burton v. United States, 202 
U.S. 344 (1906).

<<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, 
107th Cong., Jan. 3, 2001, p. ----). The House twice reaffirmed free-
standing directives to the Committee on Standards of Official Conduct 
contained in a simple House resolution (H. Res. 168, 105th Cong., p. --
--, reaffirmed for the 106th Congress by sec. 2(c), H. Res. 5, Jan. 6, 
1999, p. ----, and reaffirmed for the 107th Congress with an exception 
by sec. 3(a), H. Res. 5, Jan. 3, 2001, p. ----; see Sec. 806, infra). In 
the 108th Congress those free-standing directives were codified in 
clause 3 of rule XI (sec. 2(h), H. Res. 5, Jan. 7, 2003, p. ----). 
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 the Act of June 1, 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 Speak

[[Page [26]]]

er 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. 663a, infra), Postmaster (abolished during the 102d Congress; 
see Sec. 668, 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 Act of June 1, 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 Speakers have been inclined to give weight to the 
rules and precedents of the House in modifying the usual constructions 
of that law (V, 5604, 6758-6760; VIII, 3384; Jan. 3, 1953, p. 24; Jan. 
10, 1967, p. 14). The general parliamentary law as understood in the 
House is founded on Jefferson's Manual as modified by the practice of 
American legislative 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). 
Prior to the adoption of rules, the statutory enactments incorporated 
into the rules of the prior Congress as an exercise of the rulemaking 
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. 115). 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, ch. 1, Sec. 8), 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. 49). The Speaker also may 
recognize a Member to offer for immediate consideration a special order 
providing for the consideration of a resolution adopting the rules (H. 
Res. 5, Jan. 4, 1995, p. 447). The resolution adopting rules for a 
Congress has included a special order of business for consideration of 
specified legislation (sec. 108, H. Res. 6, Jan. 4, 1995, p. 463; sec. 
3, H. Res. 5, Jan. 6, 1999, p. ----).

[[Page [27]]]

  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 former clause 6(e) of 
rule XV (current clause 7 of rule XX) 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. 139). 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, p. 457). 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. 98). 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. 52).
  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 continued 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.

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