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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 ...
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 ]] 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 ]] 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 ]] 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 ]] 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 ]] 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 ]] 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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