RULES OF THE HOUSE OF REPRESENTATIVES - GPO · RULES OF THE HOUSE OF REPRESENTATIVES OF THE UNITED...

107th Congress, 2d Session - - - - - - - - House Document No. 107284

CONSTITUTION

JEFFERSONS MANUAL

AND

RULES OF THE HOUSE OFREPRESENTATIVES

OF THE UNITED STATES

ONE HUNDRED EIGHTH CONGRESS

CHARLES W. JOHNSONPARLIAMENTARIAN

U.S. GOVERNMENT PRINTING OFFICE

82900 WASHINGTON : 2003

For sale by the Superintendent of Documents, U.S. Government Printing OfficeWashington, DC 20402

VerDate 29-JUL-99 12:10 Aug 05, 2003 Jkt 000000 PO 00000 Frm 00001 Fmt 0850 Sfmt 0850 F:\MMCCART\MANUAL\108\GPO2\GPO2.000 PARL1 PsN: PARL1

HOUSE RESOLUTION 614

IN THE HOUSE OF REPRESENTATIVES, U.S.,November 14, 2002.

Resolved, That a revised edition of the Rules and Man-ual of the House of Representatives for the One HundredEighth Congress be printed as a House document, andthat three thousand additional copies shall be printed andbound for the use of the House of Representatives, ofwhich nine hundred copies shall be bound in leather withthumb index and delivered as may be directed by the Par-liamentarian of the House.

Attest:JEFF TRANDAHL,

Clerk.

(III)


[V]

P R E F A C E

The House Rules and Manual contains the fundamentalsource material for parliamentary procedure used in theHouse of Representatives: the Constitution of the UnitedStates; applicable provisions of Jeffersons Manual; Rulesof the House (as of the date of this preface); provisions oflaw and resolutions having the force of Rules of theHouse; and pertinent decisions of the Speakers and otherpresiding officers of the House and Committee of theWhole interpreting the rules and other procedural author-ity used in the House of Representatives.

The rules for the One Hundred Eighth Congress wereadopted on January 7, 2003, when the House agreed toHouse Resolution 5. In addition to a series of changes tovarious standing rules, House Resolution 5 included sepa-rate free-standing orders constituting procedures to be fol-lowed in the One Hundred Eighth Congress. Explanationsof the changes to the standing rules appear in the annota-tions following each rule in the text of this Manual.

In the One Hundred Sixth Congress, the House adopteda recodification of the Rules of the House. For an expla-nation of the recodified format, see the Preface and otherintroductory matter for the House Rules and Manual forthe One Hundred Sixth Congress (H. Doc. 105358).

The substantive changes in the standing rules made byHouse Resolution 5 of the 108th Congress included:

(1) directive to the Speaker to submit to the Clerk a listof Members in the order in which each shall act as Speak-er pro tempore in the case of a vacancy in the Office ofSpeaker until the election of a Speaker or a Speaker protempore (clause 8 of rule I);

(2) elimination of the limit on number of terms a personmay serve as Speaker (rule I);

(3) authorization for the Speaker to declare an emer-gency recess subject to the call of the Chair when notifiedof an imminent threat to the safety of the House (clause12 of rule I);

(4) authorization for the Speaker, during any recess oradjournment of not more than three days and in consulta-tion with the Minority Leader, to postpone the time for re-


[VI]

PREFACE

convening or to reconvene before the time previously ap-pointed solely to declare the House in recess (each withinthe constitutional three-day limit) (clause 12 of rule I);

(5) extension of the privileges of the floor to staff of therespective party leaderships when so assigned with theapproval of the Speaker (clause 2 of rule IV);

(6) inclusion of a member of the Committee on Rules inthe composition of the Committee on the Budget (clause5(a) of rule X);

(7) elimination of the limit on the number of terms achairman or ranking minority member may serve on theCommittee on the Budget (subjecting a chairman of thecommittee only to the term limit applicable to all standingcommittees described in clause 5(c)(2) of rule X) (clause5(a) of rule X);

(8) elimination of the limit on the number of terms achairman or ranking minority member of the PermanentSelect Committee on Intelligence may serve on that com-mittee (clause 11(a) of rule X);

(9) clarification that, although the professional staff ofthe Committee on Appropriations are subject to the samerules regarding their duties as the professional staff of allother committees, the associate or shared staff of thatcommittee are not subject to the review of the Committeeon House Administration in connection with the reportingof committee expense resolutions (clause 9(b) of rule X);

(10) authorization for committees to adopt a rule permit-ting the chairman of a committee or subcommittee to post-pone a recorded vote on the question of approving a meas-ure or matter or on adopting an amendment and to re-sume proceedings on a postponed question at any timeafter reasonable notice, provided that such rule permits,when proceedings resume on a postponed question andnotwithstanding any intervening order for the previousquestion, further debate or amendment to the same extentas when the question was postponed (clause 2(h) of ruleXI);

(11) codification of free-standing directives to the Com-mittee on Standards of Official Conduct originally estab-lished and twice reaffirmed by simple resolution (H. Res.168, 105th Cong., Sept. 18, 1997, p. , reaffirmed forthe 106th Congress by sec. 2(c), H. Res. 5, Jan. 6, 1999,p. , and reaffirmed for the 107th Congress with an ex-ception by sec. 3(a), H. Res. 5, Jan. 3, 2001, p. )(clause 3 of rule XI);


[VII]

PREFACE

(12) authority for the Speaker, when referring a matterto committee, to designate more than one committee asprimary under extraordinary circumstances (clause 2(c) ofrule XII);

(13) replacement of provision authorizing a report of theCommittee on Ways and Means on major tax legislation toinclude a dynamic estimate of the effect of such legislationon Federal revenues with a requirement that a report ofthat committee proposing to amend the Internal RevenueCode of 1986 include a macroeconomic impact analysis ora statement why such analysis is not calculable (clause3(h) of rule XIII);

(14) relaxation of prohibition against any personal elec-tronic office equipment on the floor of the House, confiningthe prohibition to wireless telephones and personal com-puters (clause 5 of rule XVII);

(15) codification of long-standing House practice that thedeath, resignation, explusion, disqualification, or removalof a Member results in an adjustment of the whole num-ber of the House, which the Speaker shall announce to theHouse and which shall not be subject to appeal (clause 5of rule XX);

(16) clarification that a motion to adjourn retains itsnormal privilege and is in order during a call of the Houseunder clause 6 of rule XX (clause 6 of rule XX);

(17) expansion of the Speakers authority to reduce theminimum time for electronic voting following a fifteen-minute vote to include all succeeding votes provided noother business intervenes and notice of possible five-minute voting is given (clause 9 of rule XX);

(18) replacement of the standard for determining wheth-er an amendment proposing a limitation on funds in ageneral appropriation bill violates clause 5(a) of rule XXIfrom a determination that the provision inevitability andwith certainty impacts revenue collections or tax statusesor liabilities to a determination of a textual relationshipbetween the amendment and the administration of a taxor tariff (clause 5(a) of rule XXI);

(19) extension of time before further motions to instructconferees may be offered from 20 calendar days to 20 cal-endar days but not less than 10 legislative days (clause 7of rule XXII);

(20) exemption for the practice of medicine from the pro-hibition against receiving compensation for affiliatingwith, or being employed by, an entity that provides profes-


[VIII]

PREFACE

sional services involving a fiduciary relationship (clause 2of rule XXV);

(21) particularization of the application of the gift ruleto perishable food, providing that the value of perishablefood sent to an office shall be allocated among the indi-vidual recipients and not solely to the Member (clause 5of rule XXV);

(22) relaxation of the prohibition against accepting reim-bursement for transportation and lodging expenses in con-nection with a charity event to permit such reimburse-ment where the net proceeds of the event go to a qualifiedcharity, the expenses are paid by the charity, and the invi-tation of free attendance is issued by the charity (clause5 of rule XXV); and

(23) restoration of automatic House passage of joint res-olution increasing the statutory limit on the public debtwhen the two Houses agree to a concurrent resolution onthe budget that requires such an increase (rule XXVII).

Section 4 of House Resolution 5 also established a SelectCommittee on Homeland Security with oversight and leg-islative jurisdiction over matters relating to the HomelandSecurity Act of 2002, which reorganized the Federal Gov-ernment to create a new Department of Homeland Secu-rity (see 1112a, infra). The recently published secondedition of House Practice took into account the creation ofthe new select committee but was finalized before theCommittee on Appropriations reorganized its subcommit-tees to reflect the new department (see House Practice, ch.4, 6). The Committee on Appropriations created a newsubcommittee on Homeland Security and combined thesubcommittees on Transportation and Treasury, PostalService and General Government. The reorganization ofsubcommittees is in compliance with clause 5(d)(2) of ruleX, which prohibits the Committee on Appropriation fromhaving more than 13 subcommittees (see 762, infra).

Deputy Parliamentarians John Sullivan and Tom Dun-can, and Assistant Parliamentarians Muftiah McCartin,Tom Wickham, and Ethan Lauer worked diligently to an-notate the decisions of the Chair and other parliamentaryprecedents of the 107th and 108th Congress to date ofpublication. Gay Topper, Deborah Khalili, and Brian Coo-per contributed their clerical skills to the preparation ofthis edition. All of their contributions, especially those ofMuftiah McCartin in the preparation of this Manual, aregratefully acknowledged.

Citations in this edition refer to:


[IX]

PREFACE

(1) Hinds Precedents of the House of Representatives ofthe United States (volumes I through V) and CannonsPrecedents of the House of Representatives of the UnitedStates (volumes VI through VIII), by volume and section(e.g., V, 5763; VIII, 2852);

(2) Deschlers Precedents of the U.S. House of Rep-resentatives (volumes 1 through 9) and the Deschler-Brown Precedents of the U.S. House of Representatives(volumes 10 through 16), by volume, chapter, and section(e.g., Deschler, ch. 26, 79.7; Deschler-Brown, ch. 28, 4.26);

(3) the Congressional Record, by date and page (e.g.,Jan. 29, 1986, p. 684);

(4) House Practice (2003), by chapter and section (e.g.,House Practice, ch. 1, 2);

(5) Deschler-Brown Procedure in the U.S. House of Rep-resentatives (4th edition and 1987 supplement), by chap-ter and section (e.g., Procedure, ch. 5, 8.1);

(6) the United States Code, by title and section (e.g., 2U.S.C. 287); and

(7) the United States Reports, by volume and page (e.g.,395 U.S. 486).

Readers are invited to refer to the prefaces of Hinds,Cannons, and Deschlers Precedents (Volumes I, VI, and1, respectively) for comprehensive overviews by those edi-tors of the procedural history of the House of Representa-tives from 1789 to 1976.

CHARLES W. JOHNSONJULY 25, 2003


[XI]

C O N T E N T S

THE CONSTITUTION

Page

PREAMBLE ............................................................................................ 3ARTICLE I.The legislative power .......................................... 4

II.The executive power ........................................... 64III.The judicial power .............................................. 76IV.Obligations, duties, etc., of the States .............. 78V.Amendments to ................................................... 80

VI.Law of the land, etc. ........................................... 82VII.Ratification of ...................................................... 86

Amendments ratified .......................................... 89

JEFFERSONS MANUAL

SECTION I.Importance of adhering to rules ........................ 125III.Privilege ............................................................... 128VI.Quorum ................................................................ 147

VII.Call of the House ................................................ 148IX.Speaker ................................................................ 148X.Address ................................................................ 151

XI.Committees ......................................................... 151XII.Committee of the Whole ..................................... 155

XIII.Examination of witnesses .................................. 164XIV.Arrangement of business ................................... 169XV.Order .................................................................... 171

XVI.Order respecting papers ..................................... 172XVII.Order in debate ................................................... 172

XVIII.Orders of the House ............................................ 194XIX.Petition ................................................................ 198XX.Motions ................................................................ 199

XXI.Resolutions .......................................................... 200XXIII.Bills, leave to bring in ........................................ 202XXIV.Bills, first reading ............................................... 203XXV.Bills, second reading ........................................... 203

XXVI.Bills, commitment ............................................... 204XXVII.Report of committee ........................................... 215


[XII]

CONTENTS

Page

SECTION XXVIII.Bill, recommitment ............................................. 216XXIX.Bills, reports taken up ....................................... 217XXX.Quasi-committee ................................................. 219

XXXI.Bill, second reading in the House ..................... 223XXXII.Reading papers ................................................... 225

XXXIII.Privileged questions ........................................... 227XXXIV.The previous question ........................................ 240XXXV.Amendments ....................................................... 242

XXXVI.Division of the question ..................................... 251XXXVII.Coexisting questions ........................................... 254

XXXVIII.Equivalent questions .......................................... 255XXXIX.The question ........................................................ 258

XL.Bills, third reading ............................................. 258XLI.Division of the House ......................................... 262

XLII.Titles .................................................................... 268XLIII.Reconsideration ................................................... 268XLIV.Bills sent to the other House ............................. 271XLV.Amendments between the Houses .................... 272

XLVI.Conferences ......................................................... 282XLVII.Messages .............................................................. 295

XLVIII.Assent .................................................................. 299XLIX.Journals ............................................................... 302

L.Adjournment ....................................................... 304LI.A session .............................................................. 306

LII.Treaties ................................................................ 309LIII.Impeachment ....................................................... 313

RULES OF THE HOUSE

RULE I.The Speaker ........................................................ 333II.Other Officers and Officials ............................... 353

III.The Members, Delegates, and ResidentCommissioner of Puerto Rico.

373

IV.The Hall of the House ........................................ 377V.Broadcasting the House ..................................... 384

VI.Official Reporters and News Media Galleries .. 387VII.Records of the House .......................................... 398

VIII.Response to Subpoenas ...................................... 402IX.Questions of Privilege ......................................... 406X.Organization of Committees .............................. 423

XI.Procedures of Committees and UnfinishedBusiness.

529

XII.Receipt and Referral of Measures and Matters 588XIII.Calendars and Committee Reports ................... 602XIV.Order and Priority of Business .......................... 636XV.Business in Order on Special Days ................... 647


[XIII]

CONTENTS

Page

RULE XVI.Motions and Amendments ................................. 667XVII.Decorum and Debate .......................................... 718

XVIII.The Committee of the Whole House on thestate of the Union.

746

XIX.Motions Following the Amendment Stage ........ 773XX.Voting and Quorum Calls .................................. 789

XXI.Restrictions on Certain Bills .............................. 813XXII.House and Senate Relations .............................. 857

XXIII.Code of Official Conduct ..................................... 882XXIV.Limitations on Use of Official Funds ................ 889XXV.Limitations on Outside Earned Income and

Acceptance of Gifts.893

XXVI.Financial Disclosure ........................................... 915XXVII.Statutory Limit on Public Debt ......................... 939

XXVIII.General Provisions .............................................. 942

PROVISIONS OF LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDEDBY THE LEGISLATIVE REORGANIZATION ACT OF 1970, APPLICABLE TOBOTH HOUSES

Congressional adjournment ................................................................ 947Preservation of committee hearings .................................................. 948

JOINT AND SELECT COMMITTEES

Economic Committee, Joint ................................................................ 949Internal Revenue Taxation, Joint Committee on ............................. 949Library, Joint Committee of Congress on the ................................... 950Printing, Joint Committee on ............................................................ 950Inaugural Ceremonies, Joint Congressional Committee on ............ 950Select committees ................................................................................ 951

HOUSE OFFICES

House Commission on Congressional Mailing Standards ............... 953House Office Building Commission ................................................... 953General Accounting Office .................................................................. 953Office of Compliance ........................................................................... 953Congressional Research Service ......................................................... 954Legislative Counsel ............................................................................. 954Congressional Budget Office .............................................................. 954Law Revision Counsel ......................................................................... 954Technology Assessment ...................................................................... 954Office of the Parliamentarian ............................................................ 954Office of Floor Assistants ................................................................... 955Corrections Calendar Office ............................................................... 955House Recording Studio ..................................................................... 955


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CONTENTS

Page

United States Capitol Preservation Commission ............................. 955Office of General Counsel ................................................................... 955Office of Emergency Planning, Preparedness, and Operations ....... 956Early organization of House ............................................................... 957

MISCELLANEOUS PROVISIONS OF CONGRESSIONAL BUDGET LAWS

Congressional Budget Act of 1974 ..................................................... 963Budget Enforcement Act of 1990 ....................................................... 1039

CONGRESSIONAL DISAPPROVAL PROVISIONS CONTAINED IN PUBLIC LAWS

Resolutions privileged for consideration in House ........................... 1045

INDEX

Index .................................................................................................... 1203


[XV]

MAJOR RULE CITATION CHANGES

DESCRIPTIONOLD RULE through 105th

Cong.NEW RULE

Rule Clause Rule Clause

Postponed votes ..................... I 5(b) XX 8Tie vote lost ............................ I 6 XX 1(c)Lame duck travel authority .. I 8 XXIV 10Broadcasting House pro-

ceedings ............................... I 9 V ..............Office of the Historian ........... I 10 II 7Office of the General Counsel I 11 II 8Clerk ....................................... III .............. II 2Sergeant-at-Arms ................... IV .............. II 3Chief Administrative Officer V .............. II 4Office of the Inspector Gen-

eral ...................................... VI .............. II 6Chaplain ................................. VII .............. II 5Duties of Members ................. VIII .............. III 12Committee on Standards of

Official Conduct .................. X 4(e) XI 3Referral ................................... X 5 XII 2Speakers appointment of se-

lect and conference com-mittees ................................ X 6(f) I 11

Committee membership con-tingent on party member-ship ...................................... X 6(g) X 10

Committee reporting proce-dures .................................... XI 2(l)(1),

(2)XIII 2

Content of reports .................. XI 2(l)(3)(5)

XIII 3

Availability of reports ............ XI 2(l)(6) XIII 4Committee travel ................... XI 2(n) X 8Committee broadcast rule ..... XI 3 XI 4Privileged reports .................. XI 4 XIII 5Reports of Rules Committee XI 4 XIII 6Expense resolutions ............... XI 5 X 67Committee staff ..................... XI 6 X 9Resident Commissioner/Dele-

gates .................................... XII .............. III 3Corrections Calendar ............. XIII 4 XV 6Decorum and debate .............. XIV .............. XVII ..............Recognition ............................. XIV 2 XVII 2Voting and quorum calls ....... XV .............. XX ..............


[XVI]

MAJOR RULE CITATION CHANGESContinued


Cong.NEW RULE


Dilatory motions on suspen-sions .................................... XVI 8 XV 1

Dilatory motions .................... XVI 10 XVI 1Previous question ................... XVII .............. XIX 1Motion to recommit ............... XVII 1 XIX 2Reconsideration ...................... XVIII .............. XIX 3Amendments .......................... XIX .............. XVI 6Senate amendments .............. XX .............. XXII 16Reading of bills ...................... XXI 1 XVI 8Content of reports on appro-

priation bills ....................... XXI 3 XIII 3(f)Private claims ........................ XXI 4 XII 2(d)Appropriations in legislation XXI 5(a) XXI 4Reappropriations .................... XXI 6 XXI 2(a)(2)Printing of appropriations

hearings .............................. XXI 7 XIII 4(c)Reserving points of order on

appropriation bills .............. XXI 8 XXI 1Transportation obligation

limitations ........................... XXI 9 XXI 3Cosponsorship ........................ XXII 4 XII 7Resolutions of inquiry ........... XXII 5 XIII 7Committee of the Whole

House .................................. XXIII .............. XVIII ..............Order of business ................... XXIV .............. XIV ..............Unfinished business .............. XXIV 3 XIV 3Private Calendar .................... XXIV 6 XV 5Calendar Wednesday ............. XXIV 7 XV 7District business .................... XXIV 8 XV 4Priority of business ................ XXV .............. XIV 6Unfinished business in com-

mittee .................................. XXVI .............. XI 6Suspension of the rules ......... XXVII 12 XV 1Discharge motions ................. XXVII 3 XV 2Conference reports ................. XXVIII .............. XXII 712Secret sessions ....................... XXIX .............. XVII 9Exhibits .................................. XXX .............. XVII 6Hall of the House ................... XXXI .............. IV 1Admission to the Floor .......... XXXII .............. IV 25Admission to the galleries ..... XXXIII .............. IV 6Campaign contributions on

Floor .................................... XXXII 5 IV 7Official Reporters and the

media ................................... XXXIV .............. VI ..............Pay of witnesses ..................... XXXV .............. XI 5Records of the House ............. XXXVI .............. VII ..............


[XVII]

MAJOR RULE CITATION CHANGESContinued


Cong.NEW RULE


Withdrawal of papers ............ XXXVII .............. VII 7Ballot votes ............................. XXXVIII .............. XX 11Messages ................................. XXXIX .............. XII 1Executive communications .... XL .............. XII 8Claims against the Govern-

ment .................................... XLI .............. XXV 6General provisions ................. XLII .............. XXVIII 1Code of Official Conduct ........ XLIII .............. XXIII ..............Financial disclosure ............... XLIV .............. XXVI ..............Unofficial office accounts ....... XLV .............. XXIV 13Limitation on use of frank .... XLVI .............. XXIV 49Outside earned income .......... XLVII .............. XXV 13Intelligence Committee ......... XLVIII .............. X 11Statutory Limit on Public

Debt ..................................... XLIX .............. XXVII ..............Response to subpoenas .......... L .............. VIII ..............Gift rule .................................. LI .............. XXV 5


[XVIII]

GENERAL ORDER OF BUSINESS

RULE XIV

First. Prayer by Chaplain.Second. Approval of Journal.Third. The Pledge of Allegiance to the Flag.Fourth. Correction of reference of public bills.Fifth. Disposal of business on Speakers table.Sixth. Unfinished business.Seventh. The morning hour for the consideration of bills.Eighth. Motions to go into Committee of the Whole.Ninth. Orders of the day.

SPECIAL ORDER OF BUSINESS

MONDAYS

Second and fourth Mondays:Motions to discharge committees. Rule XV, clause 2.District of Columbia Business. Rule XV, clause 4.

Every Monday:Motions to suspend rules. Rule XV, clause 1.

TUESDAYS

First and third Tuesdays:Private Calendar. Rule XV, clause 5. Individual private bills consid-

ered on first Tuesday of each month, omnibus private bills may beconsidered on third Tuesday of each month.

Second and fourth Tuesdays:Corrections Calendar. Rule XV, clause 6.

Every Tuesday:Motions to suspend rules. Rule XV, clause 1.

WEDNESDAYS

Call of Committees under Calendar Wednesday. Rule XV, clause 7.


[1]

CONSTITUTION


[3]

WE THE PEOPLE of the United States, in Orderto form a more perfect Union, es-tablish Justice, insure domestic

Tranquility, provide for the common defence,promote the general Welfare, and secure theBlessings of Liberty to ourselves and our Pos-terity, do ordain and establish this Constitutionfor the United States of America.

The First Continental Congress met in Philadelphia in September of1774 and adopted the Declaration and Resolves of theFirst Continental Congress, embodying rights and prin-ciples later to be incorporated into the Constitution of

the United States. The Second Continental Congress adopted in Novemberof 1777 the Articles of Confederation, which the States approved in July,1778. Upon recommendation of the Continental Congress, a conventionof State representatives met in May, 1787 to revise the Articles of Confed-eration and reported to the Continental Congress in September a new Con-stitution, which the Congress submitted to the States for ratification. NineStates, as required by the Constitution for its establishment, had ratifiedby June 21, 1788, and eleven States had ratified by July 26, 1788. TheContinental Congress adopted a resolution on September 13, 1788, puttingthe new Constitution into effect; the First Congress of the United Statesconvened on March 4, 1789, and George Washington was inaugurated asthe first President on April 30, 1789.

2. Formation of theConstitution.

1. The preamble.


[4]

3 6 [ARTICLE I, SECTIONS 12]CONSTITUTION OF THE UNITED STATES

ARTICLE I.

SECTION 1. All legislative Powers hereingranted shall be vested in a Con-gress of the United States, which

shall consist of a Senate and House of Rep-resentatives.

The power to legislate includes the power to conduct inquiries and inves-tigations. See Kilbourn v. Thompson, 103 U.S. 168 (1881); McGrain v.

Daugherty, 273 U.S. 135 (1927); Watkins v. UnitedStates, 354 U.S. 178 (1957); Barenblatt v. UnitedStates, 360 U.S. 109 (1959). For the power of the House

to punish for contempt in the course of investigations, see 293, infra.

SECTION 2. 1 The House of Rep-resentatives shall be composed ofMembers 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 persons vote in a congressional election is to be worthas much as anothers. Wesberry v. Sanders, 376 U.S. 1 (1964); Kirkpatrickv. Preisler, 385 U.S. 450 (1967). 2 U.S.C. 2a mandates apportionment ofRepresentatives based upon population, and 2 U.S.C. 2c requires the estab-lishment by the States of single-Member congressional districts. For elec-tions generally, see Deschler, ch. 8.

The term of a Congress, before the ratification of the 20th amendmentto the Constitution, began on the 4th of March of theodd numbered years and extended through two years.This resulted from the action of the Continental Con-

gress on September 13, 1788, in declaring, on authority conferred by theFederal Convention, the first Wednesday in March next to be the timefor commencing proceedings under the said Constitution. This date wasthe 4th of March, 1789. Soon after the first Congress assembled a jointcommittee determined that the terms of Representatives and Senators ofthe first class commenced on that day, and must necessarily terminatewith the 3d of March, 1791 (I, 3). Under the 20th amendment to the Con-stitution the terms of Representatives and Senators begin on the 3d ofJanuary of the odd-numbered years, regardless of when Congress actuallyconvenes. By a practice having the force of common law, the House meetsat noon when no other hour is fixed (I, 4, 210). In the later practice a

6. Term of aCongress.

5. Members chosenby the people of theStates every secondyear.

4. Power toinvestigate.

3. Legislative powersvested in Congress.


[5]

7 9[ARTICLE I, SECTION 2]CONSTITUTION OF THE UNITED STATES

resolution fixing the daily hour of meeting at noon or some other houris agreed to at the beginning of each session.

Prior to adoption of the 20th amendment, the legislative day of March3 extended to noon on March 4 (V, 66946697) and, unless earlier ad-journed, the Speaker could at that time declare the House adjourned sinedie, without motion or vote, even to the point of suspending a roll callthen in progress (V, 67156718).

The Legislative Reorganization Act of 1970 (84 Stat. 1140) provides thatunless Congress otherwise specifies the two Houses shall adjourn sine dienot 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 acongressional declaration or where, in an odd-numbered (nonelection) year,the Congress has agreed to adjourn for the month preceding Labor Day.For more on this provision, see 1105, infra.

* * * and the Electors in eachState shall have the Qualificationsrequisite 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 theywere entitled to vote under the statutes of a State (I, 811); but wherean act of Congress had provided that a certain class of persons shouldbe deprived of citizenship, a question arose over the proposed rejectionof their votes in a State wherein citizenship in the United States was nota qualification of the elector (I, 451). In an exceptional case the Houserejected votes cast by persons lately in armed resistance to the Govern-ment, although by the law of the State they were qualified voters (I, 448);but later, the House declined to find persons disqualified as voters becausethey had formerly borne arms against the Government (II, 879).

The power of the States to set qualifications for electors is not unlimited,being subject to the 15th, 19th, 24th, and 26th amend-ments, and to the equal protection clause of the UnitedStates 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 pro-

tecting the right to vote and lowering the minimum age for electors incongressional elections. Katzenbach v. Morgan, 384 U.S. 641 (1966); Or-egon v. Mitchell, 400 U.S. 112 (1970).

2 No Person shall be a Represent-ative who shall not have attainedto the Age of twenty fiveYears, * * *.

9. Age as aqualification of theRepresentative.

8. Decisions of theCourt.

7. Electors of theHouse ofRepresentatives.


[6]

10 11 [ARTICLE I, SECTION 2]CONSTITUTION OF THE UNITED STATES

A Member-elect not being of the required age, was not enrolled by theClerk and he did not take the oath until he had reached the requiredage (I, 418).

* * * and been seven Years a Cit-izen of the United States, * * *.

Henry Ellenbogen, Pa., had not been a citizen for seven years when elect-ed 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 abroadduring the Revolution and on his return had not resided in the countryseven years, was held to be qualified as a citizen (I, 420). A woman whoforfeited her citizenship through marriage to a foreign subject and laterresumed it through naturalization less than seven years prior to her elec-tion, was held to fulfill the constitutional requirement as to citizenshipand entitled to a seat in the House (VI, 184). A Member who had longbeen a resident of the country, but who could not produce either the recordof the court nor his final naturalization papers, was nevertheless retainedin his seat by the House (I, 424).

* * * and who shall not, whenelected, be an Inhabitant of thatState in which he shall be chosen.

The meaning of the word inhabitant and its relation to citizenshiphas been discussed (I, 366, 434; VI, 174), and the House has held thata 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 althoughfor sufficient reason his family resided in another State (II, 1091). Resi-dence abroad in the service of the Government does not destroy inhabitancyas understood under the Constitution (I, 433). One holding an office andresiding with his family for a series of years in the District of Columbiaexclusively was held disqualified to sit as a Member from the State ofhis citizenship (I, 434); and one who had his business and a residencein the District of Columbia and had no business or residence in Virginiawas held ineligible to a seat from that State (I, 436). One who had a homein the District of Columbia, and had inhabited another home in Marylanda brief period before his election, but had never been a citizen of any otherState, was held to be qualified (I, 432). Also a Member who had resideda portion of a year in the District of Columbia, but who had a home inthe State of his citizenship and was actually living there at the time ofthe election, was held to be qualified (I, 435). In the Updike v. Ludlowcase, 71st Congress, it was decided that residence in the District of Colum-

11. Inhabitancy as aqualification of theMember.

10. Citizenship as aqualification of theMember.


[7]

12[ARTICLE I, SECTION 2]CONSTITUTION OF THE UNITED STATES

bia for years as a newspaper correspondent and maintenance there ofchurch membership were not considered to outweigh payment of poll andincome taxes, ownership of real estate, and a record for consistent votingin the district from which elected (VI, 55), and in the same case excusefrom jury duty in the District of Columbia on a plea of citizenship in theState from which elected and exercise of incidental rights of such citizen-ship, were accepted as evidence of inhabitancy (VI, 55).

Whether Congress may by law establish qualifications other than thoseprescribed by the Constitution has been the subject ofmuch discussion (I, 449, 451, 457, 458, 478); but in acase wherein a statute declared a Senator convicted ofa certain offense forever thereafter incapable of hold-ing any office of honor, trust, or profit under the Gov-

ernment of the United States, the Supreme Court expressed the opinionthat the final judgment of conviction did not operate, ipso facto, to vacatethe seat or compel the Senate to expel or regard the Senator as expelledby force alone of the judgment (II, 1282). Whether the House or Senatealone may set up qualifications other than those of the Constitution hasalso 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 ithad such a power (I, 443, 483), and during the stress of civil war the Houseof Representatives declined to exercise the power, even under cir-cumstances of great provocation (I, 449, 465). But later, in one instance,the House excluded a Member-elect on the principal argument that it mightitself prescribe a qualification not specified in the Constitution (I, 477).The matter was extensively debated in the 90th Congress in connectionwith the consideration of resolutions relating to the seating of Representa-tive-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 theSupreme 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 quali-fications of its Members was limited to an examination of the express quali-fications stated in the Constitution.

It has been decided by the House and Senate that no State may addto the qualifications prescribed by the Constitution (I, 414416, 632); andthe Supreme Court so ruled in U.S. Term Limits, Inc., v. Thorton, 63U.S.L.W. 4413 (1995). There, the Court held that States may not change,add to, or diminish constitutional qualifications of Members, strikingdown a State statute prohibiting three-term incumbents from appearingon the general election ballot. For qualifications generally, see Deschler,ch. 7, 914.

For expulsion of seated Members, which requires a two-thirds vote ratherthan a majority vote, see article I, section 5, clause 2 ( 62, infra).

12. Qualificationsother than thosespecified by theConstitution.


[8]


Both Houses of Congress have decided, when a Member-elect is foundto be disqualified, that the person receiving the nexthighest number of votes is not entitled to the seat (I,323, 326, 450, 463, 469; VI, 58, 59), even in a casewherein seasonable notice of the disqualification wasgiven to the electors (I, 460). In the event of the death

of a Member-elect, the candidate receiving the next highest number ofvotes is not entitled to the seat (VI, 152).

3 [Representatives and direct Taxes shall beapportioned among the severalStates which may be included with-in this Union, according to their re-

spective Numbers, which shall be determined byadding to the whole Number of free Persons, in-cluding those bound to Service for a Term ofYears, and excluding Indians not taxed, threefifths of all other Persons.] * * *

The part of this clause relating to the mode of apportionment of Rep-resentatives was changed after the Civil War by section 2 of the 14thamendment and, as to taxes on incomes without apportionment, by the16th amendment.

* * * The actual Enumeration shall be madewithin three Years after the firstMeeting of the Congress of the

United States, and within every subsequentTerm of ten Years, in such Manner as they shallby Law direct. The Number of Representativesshall not exceed one for every thirty Thousand,but each State shall have at Least one Rep-resentative; and until such enumeration shall bemade, the State of New Hampshire shall be enti-tled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Con-necticut five, New York six, New Jersey four,Pennsylvania eight, Delaware one, Maryland

15. Census as a basisof apportionment.

14. The old provisionfor apportionment ofRepresentatives anddirect taxes.

13. Minoritycandidate not seatedwhen returnedMember isdisqualified.


[9]


six, Virginia ten, North Carolina five, SouthCarolina five, and Georgia three.

The census has been taken decennially since 1790, and, with the excep-tion of 1920, was followed each time by reapportionment. In the First Con-gress the House had 65 Members; increased after each census, except thatof 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) amongthe States following each new census (VI, 4143; see 2 U.S.C. 2a). Member-ship was temporarily increased to 436, then to 437, upon admission ofAlaska (72 Stat. 345) and Hawaii (73 Stat. 8), but returned to 435 onJanuary 3, 1963, the effective date of the reapportionment under the 18thDecennial census.

Under the later but not the earlier practice, bills relating to the censusand apportionment are not privileged for consideration (I, 305308; VI,48, VII, 889; Apr. 8, 1926, p. 7147).

Decisions of the Supreme Court of the United States: Dred Scott v.Sandford, 19 Howard, 393; Veazie Bank v. Fenno, 8Wall., 533; Scholey v. Rew, 23 Wall., 331; De Trevillev. 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; Franklin v.Massachusetts, 505 U.S. 788 (1992); Utah v. Evans, 536 U.S. 452 (2002).

4 When vacancies happen in the Representa-tion from any State, the ExecutiveAuthority thereof shall issue Writsof Election to fill such Vacancies.

Vacancies are caused by death, resignation, declination, withdrawal, orby action of the House in declaring a vacancy as existing or causing oneby expulsion.

It was long the practice to notify the executive of the State when a va-cancy was caused by the death of a Member duringa session (II, 11981202); but since improvements intransportation have made it possible for deceased Mem-

bers to be buried at their homes it has been the practice for State authori-ties to take cognizance of the vacancies without notice. When a Memberdies while not in attendance on the House or during a recess the Houseis 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

18. Vacancy fromdeath.

17. Writs forelections to vacanciesin representation.



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19 [ARTICLE I, SECTION 2]CONSTITUTION OF THE UNITED STATES

(I, 323), and in such a case the candidate having the next highest numberof votes may not receive the credentials (I, 323; VI 152). A Member whoseseat was contested dying, the House did not admit a claimant with creden-tials until contestants claim was settled (I, 326); where a contestant diedafter a report in his favor, the House unseated the returned Member anddeclared the seat vacant (II, 965), and in a later case the contestant havingdied, the committee did not recommend to the House a resolution it hadagreed to declaring he had not been elected (VI, 112). In the 93d Congress,when two Members-elect were passengers on a missing aircraft and werepresumed dead, the Speaker laid before the House documentary evidenceof the presumptive death of one Member-elect and the declaration of avacancy by the Governor, as well as evidence that the status of the otherMember-elect had not been officially determined by State authority. TheHouse then adopted a privileged resolution declaring vacant the seat ofthe latter Member-elect to enable the Governor of that State to call a specialelection (Jan. 3, 1973, p. 15). For further discussion, see 23, infra.

In recent practice the Member frequently informs the House by letterthat his resignation has been sent to the State executive(II, 11671176) and this is satisfactory evidence of theresignation (I, 567). However, Members have resigned

by letter to the House alone, it being presumed that the Member wouldalso notify his Governor (VI, 226). Where a Member resigned by letterto 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). Wherea Member does not inform the House, the State executive may do so (II,1193, 1194; VI, 232). The House has, on occasion, learned of a Membersresignation by means of the credentials of his successor (II, 1195, 1356).Where the fact of a Members resignation has not appeared either fromthe credentials of his successor or otherwise, the Clerk has been orderedto make inquiry (II, 1209) or the House has ascertained the vacancy frominformation given by other Members (II, 1208).

It has been established that a Member or Senator may resign, appointinga future date for his resignation to take effect, and until the arrival ofthe date may participate in the proceedings (II, 12201225, 1228, 1229;VI, 227, 228; Dec. 15, 1997, p. ; June 5, 2001, p. ; Nov. 27, 2001,p. ; Jan. 27, 2003, p. ). It has been possible even for a Memberto resign a seat in the House effective on the election of a successor(Deschler, ch. 8, 9.3). However, the State concerned must be willing totreat the prospective resignation as a Constitutional predicate for theissuance of a writ of election to fill a vacancy (see, e.g., Jan. 8, 1952, p.14, indicating that the Executive of the State declined to take cognizanceof a prospective resignation; and July 9, 1991, p. , Nov. 12, 1991, p., and Jan. 27, 2003, p. , indicating that the Executive of the Statetook cognizance of a prospective resignation). When the Governor of Okla-homa received a prospective resignation from one of its Members, the Stateprovided by statute (enrolled Senate Bill Number 7X) for the holding of

19. Vacancy fromresignation.


[11]

20[ARTICLE I, SECTION 2]CONSTITUTION OF THE UNITED STATES

a special election before the effective date of the resignation (Feb. 27, 2002,p. ).

For the State to take cognizance of a prospective resignation, it musthave assurances that there is no possibility of withdrawal (or modification).In one case a Member who had resigned was not permitted by the Houseto withdraw the resignation (II, 1213). However, the House has allowedwithdrawal in the case of defective resignation; that is, where the Memberhad not actually transmitted the letter of resignation (VI, 229), or hadtransmitted it to an improper state official (Oct. 9, 1997, p.). A Membermay include in a letter of prospective resignation a statement of intentionthat the resignation be irrevocable in order to allay any concern aboutthe prospect of withdrawal (June 5, 2001, p. ; Jan. 27, 2003, p. ).

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 cannotoperate to continue membership in the House (VI, 65). Only in a singleexceptional case has the House taken action in the direction of acceptinga resignation (II, 1214). Sometimes Members who have resigned have beenreelected 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, 11671176); buta resolution to permit a Member to withdraw his resignation was not sotreated (II, 1213). The Speaker having been elected Vice President anda Representative of the succeeding Congress at the same election, trans-mitted to the Governor of his State his resignation as a Member-elect (VI,230, 453). A Member of the House having been nominated and confirmedas Vice President pursuant to the 25th amendment, submitted a letterof resignation as a Representative to the Governor of his State, and acopy of his letter of resignation was laid before the House by the Speakerfollowing the completion of a joint meeting for his swearing-in as VicePresident (Dec. 6, 1973, p. 39927). A sitting Member having been confirmedas Secretary of Defense, his letter of resignation was laid before the Houseprior to his taking the oath of that office (Mar. 20, 1989, p. 4976).

A Member who has been elected to a seat may decline to accept it, andin such a case the House informed the executive of theState of the vacancy (II, 1234). The House has decidedan election contest against a returned Member who had

not appeared to claim the seat (I, 638). In one instance a Member-electwho had been convicted in the courts did not appear during the term (IV,4484, footnote). On November 7, 1998, less than a week after his re-electionas Representative from the 6th district of Georgia, Speaker Gingrich an-nounced that he would not be a candidate for Speaker in the 106th Con-gress and that he would resign his seat as a Member of the 106th Congress.Although the letter of withdrawal was tendered on November 22, the

20. Vacancy fromdeclination.


[12]


Governor did not attempt to call a special election until after the termbegan on January 3, 1999 (Jan. 6, 1999, p.).

At the time of the secession of several States, Members of the Housefrom those States withdrew (II, 1218). In the Senate,in cases of such withdrawals, the Secretary was di-rected to omit the names of the Senators from the roll

(II, 1219), and the act of withdrawal was held to create a vacancy whichthe legislature might recognize (I, 383).

Where the House, by its action in a question of election or otherwise,creates a vacancy, the Speaker is directed to notify theExecutive of the State (I, 502, 709, 824; II, 12031205;Mar. 1, 1967, p. 5038; Jan. 3, 1973, p. 15; Feb. 24, 1981,

pp. 291618). A resolution as to such notification is presented as a questionof privilege (III, 2589), as is a resolution declaring a vacancy where theMember-elect was unable to take the oath of office or to resign becauseof an incapacitating illness (Feb. 24, 1981, pp. 291618).

The House declines to give prima facie effect to credentials, even thoughthey be regular in form, until it has ascertained wheth-er or not the seat is vacant (I, 322, 518, 565, 569), anda person returned as elected at a second election wasunseated on ascertainment that another person had ac-

tually been chosen at the first election (I, 646). Where a Member was re-elected to the House, although at the time of the election he had beenunaccounted for for several weeks following the disappearance of the planeon which he was a passenger, the Governor of the State from which hewas elected transmitted his certificate to the House in the regular fashion.When the Member-elect was still missing at the time the new Congressconvened, and circumstances were such that other passengers on the miss-ing plane had been presumed dead following judicial inquiries in the Statewhere the plane was lost, the House declared the seat vacant (H. Res.1, 93d Cong., Jan. 3, 1973, p. 15). In the 108th Congress the House codifiedin clause 5 of rule XX its practice of accounting for vacancies (sec. 2(l),H. Res. 5, Jan. 7, 2003, p. ).

The term vacancy as occurring in this paragraph of the Constitutionhas been examined in relation to the functions of theState executive (I, 312, 518). A Federal law empowersthe States and Territories to provide by law the timesof elections to fill vacancies (I, 516; 2 U.S.C. 8); but

an election called by a governor in pursuance of constitutional authoritywas held valid although no State law prescribed time, place, or mannerof such election (I, 517). Where two candidates had an equal number ofvotes, the governor did not issue credentials to either, but ordered a newelection after they had waived their respective claims (I, 555). A candidateelected for the 104th Congress was appointed by the Governor to fill avacancy for the remainder of the 103d Congress pursuant to a State lawrequiring the Governor to appoint the candidate who won the election to

24. Functions of theState executive infilling vacancies.

23. Questions as tothe existence of avacancy.

22. Vacancy byaction of the House.

21. Vacancy bywithdrawal.


[13]


the 104th Congress. In that case the House authorized the Speaker toadminister the oath to the Member-elect and referred the question of hisfinal right to the seat in the 103d Congress to the Committee on HouseAdministration (Nov. 29, 1994, pp. 29585, 29586). For a discussion of aState election to fill a prospective vacancy of the House, see 19.

A Member elected to fill a vacancy serves no longertime than the remainder of the term of the Memberwhose place he fills (I, 3). For the compensation andallowances of such Members, see 87, infra.

5 The House of Representativesshall chuse their Speaker and otherOfficers; * * *

The officers of the House are the Speaker, who has always been oneof its Members and whose term as Speaker must expire with his termas a Member; and the Clerk, Sergeant-at-Arms, Chief Administrative Offi-cer, and Chaplain (I, 187), no one of whom has ever been chosen fromthe sitting membership of the House and who continue in office until theirsuccessors are chosen and qualified (I, 187). In one case the officers contin-ued through the entire Congress succeeding that in which they were elected(I, 244, 263). Former officers include Doorkeeper (abolished by the 104thCongress, see 663a, infra) and Postmaster (abolished during the 102dCongress, see 668, infra). The House formerly provided by special rulethat the Clerk should continue in office until another should be chosen(I, 187, 188, 235, 244). Currently, certain statutes impose on the officersduties which contemplate their continuance (I, 14, 15; 2 U.S.C. 75a1, 83).

The Speaker, who was at first elected by ballot, has been chosen vivavoce by surname in response to a call of the roll since1839 (I, 187). The Speaker is elected by a majority ofMembers-elect voting by surname, a quorum being

present (I, 216; VI, 24; Jan. 7, 1997, p. 117). The Clerk appoints tellersfor this election (I, 217). Ultimately, the House, and not the Clerk, decidesby what method it shall elect the Speaker (I, 210). On two occasions, byspecial rules, Speakers were chosen by a plurality of votes; but in eachcase 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 recog-nized for nominations for Speaker as being of higher constitutional privi-lege than a resolution to postpone the election of a Speaker and insteadprovide for the election of a Speaker pro tempore pending the dispositionof certain ethics charges against the nominee of the majority party (Jan.7, 1997, p. 115). On several occasions the choice of a Speaker has beendelayed for several weeks by contests (I, 222; V, 5356, 6647, 6649; VI,

27. Election of aSpeaker.

26. House choosesthe Speaker and otherofficers.

25. Term of aMember elected to filla vacancy.


[14]

28 [ARTICLE I, SECTION 2]CONSTITUTION OF THE UNITED STATES

24). The contest over the election of a Speaker in 1923 was resolved aftera procedure for the adoption of rules for the 68th Congress had been pre-sented (VI, 24). In 1860 the voting for Speaker proceeded slowly, beinginterspersed with debate (I, 223), and in one instance the House askedcandidates for Speaker to state their views before proceeding to election(I, 218).

A proposition to elect a Speaker is in order at any time a vacancy existsand presents a question of the highest privilege (VIII,3383). Upon a vacancy in the Office of Speaker, theHouse elects a new Speaker either viva voce following

nominations (in the case where a Speaker has died between sessions ofCongress or resigned) or by resolution (in the case where a Speaker hasdied during a session of Congress). For example, in the case where theSpeaker had died between sessions of Congress, the Clerk at the next ses-sion called the House to order, ascertained the presence of a quorum, andthen the House proceeded to elect a successor viva voce following nomina-tions (I, 234; Jan. 10, 1962, p. 5). In a case where the Speaker died duringa session of Congress, but not while the House was sitting, the Clerk onthe following day called the House to order and the Speakers successorwas elected by resolution (June 4, 1936, p. 9016; Sept. 16, 1940, p. 12231).In a case where the Speaker resigned on the election of my successor(May 31, 1989, p. 10440), he entertained nominations for Speaker and,following the roll call, declared the winner of the election duly electedSpeaker (June 6, 1989, p. 10801). In one instance a Speaker resignedon the last day of the Congress, and the House unanimously adopted amotion to elect a successor for the day (I, 225).

Form of resolution offered on death of a Speaker (Sept. 16, 1940, p. 12232;Jan. 10, 1962, p. 9) and of a former Speaker (VIII, 3564; Mar. 7, 1968,p. 5742; H. Res. 328, Jan. 25, 1994, p. 89; H. Res. 418, Feb. 8, 2000, p.). A resolution declaring vacant the Office of Speaker is presented asa matter of high constitutional privilege (VI, 35). Speakers have resignedby rising in their place and addressing the House (I, 231, 233), by callinga Member to the Chair and tendering the resignation verbally from thefloor (I, 225), by tendering the resignation during recognition under a ques-tion of personal privilege (May 31, 1989, p. 10440), or by sending a letterwhich the Clerk reads to the House at the beginning of a new session(I, 232). When the Speaker resigns no action of the House excusing himfrom service is taken (I, 232). Instance wherein the Speaker, followinga vote upon an essential question indicating a change in the party controlof the House, announced that under the circumstances it was incumbentupon the Speaker to resign or to recognize for a motion declaring vacantthe Office of Speaker (VI, 35). In the 108th Congress the House adoptedclause 8(b)(3) of rule I, under which the Speaker is required to deliverto the Clerk a list of Members in the order in which each shall act asSpeaker pro tempore in the case of a vacancy in the Office of Speaker

28. Vacancies in theOffice of Speaker.


[15]


(sec. 2(a), H. Res. 5, Jan. 7, 2003, p. ). The Speaker delivered to theClerk the first such letter on February 10, 2003 (Mar. 13, 2003, p. ).

The effect of a law to regulate the action of the Housein choosing its own officers has been discussed (IV,3819), and such a law has been considered of doubtfulvalidity (V, 6765, 6766) in theory and practice (I, 241,

242). The Legislative Reorganization Act of 1946 (2 U.S.C. 75a1) author-izes the Speaker to fill temporary vacancies in the offices of Clerk, Ser-geant-at-Arms, Chief Administrative Officer, and Chaplain. For a historyof the Speakers exercise of such authority, see 640, infra; and, for furtherinformation on the elections of officers, see Deschler, ch. 6.

The Office of Clerk becoming vacant, it was held that the House wouldnot be organized for business until a Clerk should beelected (I, 237); but in another instance some businessintervened before a Clerk was elected (I, 239). At thetime of organization, while the Clerk of the preceding

House was yet officiating, and after the Speaker had been elected, theHouse proceeded to legislation and other business before electing a Clerk(I, 242, 244). But in one case it was held that the Act of June 1, 1789(2 U.S.C. 25) bound the House to elect the Clerk before proceeding to busi-ness (I, 241).

* * * and [the House of Represent-atives] shall have the sole Power ofImpeachment.

In 1868 the Senate ceased in its rules to describe the House, actingin an impeachment, as the grand inquest of the nation (III, 2126). Seealso art. II, sec. 4 ( 173, infra); Deschler, ch. 14.

A Federal court having subpoenaed certain evidence gathered by a com-mittee of the House in an impeachment inquiry, the House adopted a reso-lution granting such limited access to the evidence as would not infringeupon its sole power of impeachment (Aug. 22, 1974, p. 30047).

Until the law expired on June 30, 1999, an independent counsel wasrequired to advise the House of any substantial and credible informationthat may constitute grounds for impeachment of an officer under his inves-tigation (28 U.S.C. 595(c)). For a description of impeachment proceedingsprompted by a communication from an independent counsel, see 176,infra.

SECTION 3. 1 [The Senate of the United Statesshall be composed of two Senatorsfrom each State, chosen by the Leg-

islature thereof, for six Years; and each Senatorshall have one Vote.]

32. Numbers, terms,and votes of Senators.

31. House ofRepresentatives aloneimpeaches.

30. Election of Clerkin relation tobusiness.

29. Power of Houseto elect its officers asrelated to law.


[16]


This provision has now been changed by the 17th amendment to theConstitution.

2 Immediately after they shall be assembled inConsequence of the first Election,they shall be divided as equally as

may be into three Classes. The Seats of the Sen-ators of the first Class shall be vacated at theExpiration of the second Year, of the secondClass at the Expiration of the fourth Year, andof the third Class at the Expiration of the sixth

Year, so that one-third may be cho-sen every second Year; [and if Va-cancies happen by Resignation, or

otherwise, during the Recess of the Legislatureof any State, the Executive thereof may maketemporary Appointments until the next Meetingof the Legislature, which shall then fill such Va-cancies.]

That part of the above paragraph in brackets was changed by the 17thamendment.

3 No Person shall be a Senator who shall nothave attained to the Age of thirtyYears, and been nine Years a Cit-

izen of the United States, and who shall not,when elected, be an Inhabitant of that State forwhich he shall be chosen.

In 1794 the Senate decided that Albert Gallatin was disqualified, nothaving been a citizen nine years although he had served in the war ofIndependence and was a resident of the country when the Constitutionwas formed (I, 428); and in 1849 that James Shields was disqualified, nothaving been a citizen for the required time (I, 429). But in 1870 the Senatedeclined to examine as to H. R. Revels, a citizen under the recently adopted14th amendment (I, 430). As to inhabitancy the Senate seated one who,being a citizen of the United States, had been an inhabitant of the Statefrom 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

35. Qualifications ofSenators.

34. Filling ofvacancies in theSenate.

33. Division of theSenate into classes.


[17]


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 theDistrict of Columbia as an officeholder, but who voted in his old homeand had no intent of making the District his domicile, was held to be quali-fied (I, 439).

4 The Vice President of the United States shallbe President of the Senate, butshall have no Vote, unless they beequally divided.

The right of the Vice President to vote has been construed to extendto questions relating to the organization of the Senate (V, 5975), as theelection of officers of the Senate (V, 59725974), or a decision on the titleof a claimant to a seat (V, 5976, 5977). The Senate has declined to makea rule relating to the vote of the Vice President (V, 5974).

5 The Senate shall chuse theirother Officers, and also a Presidentpro tempore, in the Absence of the

Vice President, or when he shall exercise the Of-fice of President of the United States.

In the 107th Congress the Senate elected two Presidents of the Senatepro tempore for different periods when the majority of the Senate shiftedafter inauguration of the Vice President (S. Res. 3, Jan. 3, 2001, p. ).

6 The Senate shall have the sole Power to tryall Impeachments. When sitting forthat Purpose, they shall be on Oathor Affirmation. When the President

of the United States is tried, the Chief Justiceshall preside: And no Person shall be convictedwithout the Concurrence of two thirds of theMembers present.

For the exclusive power of the Senate to try impeachments under theUnited 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 claimthat Senate Rule XI violates the impeachment trial clause by delegatingto a committee of 12 Senators the responsibility to receive evidence, heartestimony, and report to the Senate thereon, see Nixon v. United States,

38. Senate triesimpeachment andconvicts by two-thirdsvote.

37. Choice ofPresident pro temporeand other officers ofthe Senate.

36. The VicePresident and hisvote.


[18]


506 U.S. 224 (1993). For a discussion of Senate impeachment procedures,see 60820, infra.

7 Judgment in Cases of Impeachment shall notextend further than to removalfrom Office, and disqualification to

hold and enjoy any Office of honor, Trust orProfit under the United States: but the Partyconvicted shall nevertheless be liable and subjectto Indictment, Trial, Judgment and Punishment,according to Law.

There has been discussion as to whether or not the Constitution requiresboth removal and disqualification on conviction (III, 2397); but in the caseof Pickering, the Senate decreed only removal (III, 2341). In the case ofHumphreys, judgment of both removal and disqualification was pro-nounced (III, 2397). In the Ritter case, it was first held that upon convictionof the respondent, judgment of removal required no vote, following auto-matically from conviction under article II, section 4 (Apr. 17, 1936, p. 5607).In the 99th Congress, having tried to conviction the first impeachmentcase against a Federal district judge since 1936, the Senate ordered hisremoval from office (Oct. 9, 1986, p. 29870). In the 101st Congress, twoother Federal district judges were removed from office following their con-victions in the Senate (Oct. 20, 1989, p. 25335; Nov. 3, 1989, p. 27101).For a further discussion of judgments in cases of impeachment, see 619,infra.

SECTION 4. 1 The Times, Places and Manner ofholding Elections for Senators andRepresentatives, shall be prescribedin each State by the Legislaturethereof; but the Congress may at

any time by Law make or alter such Regula-tions, except as to the places of chusing Sen-ators.

The relative powers of the Congress and the States under this graphhave been the subject of much discussion (I, 311, 313, 507, footnote); butCongress 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 prescribinga ballot or voting machine (II, 961; VI, 150; 2 U.S.C. 9). When a Statedelegated to a municipality the power to regulate the manner of holding

42. Times, places,and manner ofelections ofRepresentatives andSenators.

41. Judgment incases of impeachment.


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an election, a question arose (II, 975). A question has arisen as to whetheror not a State, in the absence of action by Congress, might make the timeof election of Congressmen contingent on the time of the State election(I, 522). This paragraph gives Congress the power to protect the right tovote in primaries where they are an integral part of the election process.United States v. Wurzbach, 280 U.S. 396 (1930); United States v. Classic,313 U.S. 299 (1941). Congress may legislate under this paragraph to pro-tect the exercise of the franchise in congressional elections. Ex parteSiebolt, 100 U.S. 371 (1880); Ex parte Yarbrough, 110 U.S. 651 (1884).

The meaning of the word legislature in this clause of the Constitutionhas been the subject of discussion (II, 856), as to wheth-er or not it means a constitutional convention as wellas a legislature in the commonly accepted meaning ofthe word (I, 524). The House has sworn in Memberschosen at an election the time, etc., of which was fixed

by the schedule of a constitution adopted on that election day (I, 519, 520,522). But the House held that where a legislature has been in existencea constitutional convention might not exercise the power (I, 363, 367). Ithas been argued generally that the legislature derives the power hereindiscussed from the Federal and not the State Constitution (II, 856, 947),and therefore that the State constitution might not in this respect controlthe State legislature (II, 1133). The House has sustained this view by itsaction (I, 525). But where the State constitution fixed a date for an electionand the legislature had not acted, although it had the opportunity, theHouse held the election valid (II, 846).

Decisions 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); Inre Coy, 127 U.S. 731 (1888); Ohio v. Hildebrant, 241

U.S. 565 (1916); United States v. Mosley, 238 U.S. 383 (1915); United Statesv. 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); Roudebushv. Hartke, 405 U.S. 15 (1972); Storer v. Brown, 415 U.S. 724 (1974); Buckleyv. Valeo, 424 U.S. 1 (1976); U.S. Term Limits, Inc., v. Thorton, 514 U.S.779 (1995); and Foster v. Love, 522 U.S. 67 (1997). In Public Law 91285, 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 articleI, section 4 and under section 5 of the 14th amendment to the Constitutionto fix the age of voters in Federal elections, but held that the tenthamendment to the Constitution reserved to the States the power to estab-lish voter age qualifications in State and local elections. The 26th amend-ment to the Constitution extended the right of persons 18 years of ageor older to vote in elections held under State authority.


43. Functions of aState legislature infixing time, etc., ofelections.


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2 [The Congress shall assemble at least once inevery Year, and such Meeting shallbe on the first Monday in Decem-

ber, unless they shall by Law appoint a differentDay.]

This provision of the Constitution has been superseded by the 20thamendment.

In the later but not the earlier practice (I, 5), prior to the 20th amend-ment, the fact that Congress had met once within the year did not makeuncertain the constitutional mandate to meet on the first Monday of De-cember (I, 6, 911). Early Congresses, convened either by proclamationor law on a day earlier than the constitutional day, remained in continuoussession to a time beyond that day (I, 6, 911). But in the later view anexisting session ends with the day appointed by the Constitution for theregular annual session (II, 1160); see 84, infra. Congress has frequentlyappointed by law a day for the meeting (I, 4, 5, 1012, footnote; see also 243, infra).

SECTION 5. 1 Each House shall be the Judge ofthe Elections, Returns and Quali-fications of its own Members, * * *.

In judging the qualifications of its Members, the House may not addqualifications to those expressly stated in the United States Constitution.Powell v. McCormack, 395 U.S. 486 (1969). This phrase allows the Houseor Senate to deny the right to a seat without unlawfully depriving a Stateof its right to equal representation. Barry v. United States ex relCunningham, 279 U.S. 597 (1929). But a State may conduct a recountof votes without interfering with the authority of the House under thisphrase. Roudebush v. Hartke, 405 U.S. 15 (1972). For discussion of thepower of the House to judge elections, see Deschler, ch. 8 (elections) andch. 9 (election contests); for discussion of the power of the House to judgequalifications, see Deschler, ch. 7.

The House has the same authority to determine the right of a Delegateto his seat that it has in the case of a Member (I, 423). The House maynot 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 Househas once examined the relations of this power to the power to expel (I,469).

As nearly all the laws governing the elections of Representatives in Con-gress are State laws, questions have often arisen asto the relation of this power of judging to those laws(I, 637). The House decided very early that the certifi-cate of a State executive issued in strict accordance

47. Power of judgingas related to Statelaws as to returns.

46. House the judgeof elections, returns,and qualifications.

45. Annual meetingof Congress.


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with State law does not prevent examination of the votes by the Houseand a reversal of the return (I, 637). The House has also held that it isnot confined to the conclusions of returns made up in strict conformityto 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 votesfor fraud and irregularities does not preclude the House from going behindthe returns (II, 887). The highest court in one State (Colorado) has ruledthat it lacked jurisdiction to pass upon a candidates allegations of irreg-ularities in a primary election and that the House had exclusive jurisdictionto decide such questions and to declare the rightful nominee (Sept. 23,1970, p. 33320).

When the question concerns not the acts of returning officers, but theact of the voter in giving his vote, the House has foundmore difficulty in determining on the proper exerciseof its constitutional power. While the House has alwaysacted on the principle of giving expression to the intentof the voter (I, 575, 639, 641; II, 1090), yet it has held

that a mandatory State law, even though arbitrary, may cause the rejectionof a ballot on which the intent of the voter is plain (II, 1009, 1056, 1077,1078, 1091). See Deschler, ch. 8, 8.11, for discussion of distinction betweendirectory State laws governing the conduct of election officials as to ballots,and mandatory laws regulating the conduct of voters.

Where the State courts have upheld a State election law as constitutionalthe House does not ordinarily question the law (II, 856,1071). But where there has been no such decision theHouse, in determining its election cases, has passed onthe 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 Houseto pass upon the validity of State election laws alleged to be in conflictwith the State constitution (VI, 151).

The courts of a State have nothing to do directly with judging the elec-tions, qualifications, and returns of Representatives inCongress (II, 959), but where the highest State courthas interpreted the State law the House has concludedthat it should generally be governed by this interpreta-tion (I, 645, 731; II, 1041, 1048), but does not consider

itself bound by such interpretations (VI, 58). The House is not bound, how-ever, 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, theacquittal of those judges in the courts was held not to be an adjudicationbinding on the House (II, 1019). For a recent illustration of a protractedelection dispute lasting four months see House Report 9958, culminatingin House Resolution 146 of the 99th Congress (May 1, 1985, p. 9998).

50. Effect ofinterpretation of Stateelection laws by Statecourts.

49. Power of Houseas related toconstitutionality ofState laws.

48. Power of judgingas related to Statelaws as to acts of thevoter.


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The statutes of the United States provide specific methods for institutionof a contest as to the title to a seat in the House (I,678, 697706) (2 U.S.C. 381); but the House regardsthis law as not of absolute binding force, but rathera wholesome rule not to be departed from except forcause (I, 597, 719, 825, 833), and it sometimes by reso-

lution modifies the procedure prescribed by the law (I, 449, 600).Decisions of the Supreme Court of the United States: In re Loney, 134

U.S. 317 (1890); Reed v. County Commissioners, 277U.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 Majority of each [House] shallconstitute a Quorum to do Busi-ness; but a smaller Number may

adjourn from day to day, and may be authorizedto compel the Attendance of absent Members, insuch Manner, and under such Penalties as eachHouse may provide.

Out of conditions arising between 1861 and 1891 the rule was establishedthat a majority of the Members chosen and living con-stituted the quorum required by the Constitution (IV,28852888); but later examination has resulted in adecision confirming in the House of Representatives theconstruction established in the Senate that a quorum

consists of a majority of Senators duly chosen and sworn (I, 630; IV, 28912894). So the decision of the House now is that after the House is onceorganized the quorum consists of a majority of those Members chosen,sworn, and living whose membership has not been terminated by resigna-tion or by the action of the House (IV, 2889, 2890; VI, 638). Under clause5(c) of rule XX, upon the death, resignation, expulsion, disqualification,or removal of a Member, the Speaker announces any adjustment to thewhole number of the House. Such an announcement is not subject to appeal(see 1024a, infra).

For many years a quorum was determined only by noting the numberof Members voting (IV, 2896, 2897), with the result thatMembers by refusing to vote could often break aquorum and obstruct the public business (II, 1034; IV,2895, footnote; V, 5744). However, in 1890 SpeakerReed directed the Clerk to enter on the Journal as part

of the record of a yea-and-nay vote names of Members present but notvoting, thereby establishing a quorum of record (IV, 2895). This decision,which was upheld by the Supreme Court (IV, 2904; United States v. Ballin,

54. The theory of thequorum present; andthe count by theSpeaker.

53. Interpretation ofthe Constitution as tonumber constituting aquorum.

52. The quorum.

51a. Decisions of theCourt.

51. Laws of Congressnot binding on theHouse in its functionof judging itselections.


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55[ARTICLE I, SECTION 5]CO

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