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Some Concluding Thoughts on House Delegates

Our review of the House’s treatment of delegates shows (1) the House has traditionally seen the line between debating and voting as the demarcation of appropriate delegate participation; (2) the proper role of delegates has also been described as merely advisory in nature; (3) participation in select and later standing committees has been viewed as falling within the proper debating/advisory function of delegates; (4) since 1970 the House has also permitted delegates to vote on committees and this practice no longer appears to be controversial; and (5) with respect to the constitutional limits of delegate participation, the House has never articulated or recognized a distinction between delegates and other non-members.

The issue of delegate voting in the Committee of the Whole remains a flashpoint of constitutional controversy. The House first permitted such voting in 1993 at the start of the 103d Congress, when the Democrats were in the majority, and has allowed it in subsequent congresses when the Democrats were in control. The Republicans, on the other hand, maintain that such voting is unconstitutional, and it has not been permitted during periods when they were in control.

As the Michel v. Anderson litigation made apparent, the constitutional disagreement between the two parties is actually quite narrow. Because the House Democrats recognized the new rule “came perilously close” to “granting delegates a vote in the House,” they provided for a revote in situations where the delegates would otherwise determine the outcome, and the House Counsel in Michel argued that the revote made the rule “only symbolic.” 14 F.3d at 632. In other words, because the delegates could not influence the outcome directly, their votes were merely advisory.

The Michel litigants vigorously disputed whether the new rule actually gave the delegates some influence over legislative outcomes greater than what they had before. But this was the wrong issue to focus on. Nothing in the Constitution prohibits either house from giving non-members significant influence over the shaping of legislation, and in some cases congressional rules give non-members (e.g., the president in fast track legislation) greater influence than that enjoyed by any individual member.

The real question in Michel should have been whether the Constitution prohibits giving a formal, even if meaningless, vote to non-members in the Committee of the Whole. All parties and the court seemed to agree that the Constitution bars giving any non-member, including delegates, a formal vote in the House itself, even if that vote were purely symbolic. And they also agreed that no non-member other than delegates could be given such a symbolic vote even in the Committee of the Whole.

The notion that there is some unwritten constitutional principle that embodies these distinctions seems faintly ridiculous, and, as we have discussed, the D.C. Circuit offered no real justification for them. So while there is no definitive answer to the question of whether the Constitution prohibits giving delegates a vote in the Committee of the Whole (subject to a revote), we can say with confidence the following: (1) such a vote is contrary to House precedent prior to 1993, including the 1794 precedent that sheds direct light on the intent of the Framers; (2) given the fact that the Committee of the Whole includes all members of the House and is largely indistinguishable from the House itself in its operation, a delegate vote involves different and more significant constitutional concerns than such a vote in a standing committee; and (3) any principled resolution of the issue would have to apply to any non-member, so that allowing delegates to vote in Committee of the Whole would open the door to a rule allowing mayors to vote as well.

In light of these conclusions, one has to wonder whether this game is worth the candle. Is it worth rending the constitutional fabric to give the delegates a symbolic vote that, at the end of the day, does nothing to benefit their constituents? Surely the House could find a way to increase the influence of delegates on issues of importance to DC and the territories without raising this type of constitutional doubt. Although Judge Greene’s claim that delegates traded their right to vote on committees for other concessions in 1871 appears apocryphal, it’s not a bad suggestion for how the House should proceed today.

Delegate Norton’s idea of taking a fresh look at this controversy would be a good start. The House should do so.

Krauthammer on the Post-Nuclear Senate

As I noted in November: “The Senate Republicans may also find that they have a problem with their constituents. If the Democrats filibuster a measure that is important to the Republican base, it will be difficult to explain why the Republican majority is bound to adhere to rules that their opponents do not recognize.”

Senate Republicans, meet your constituent, Charles Krauthammer.

The D.C. Circuit and the “Would-be Congressmen”

Delegate Norton cites the D.C. Circuit’s decision in Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994), for the proposition that delegates may be authorized to vote in the Committee of the Whole, but a close examination of this decision reveals it to be poorly reasoned and internally incoherent.

The court advances the following propositions: (1) delegates may serve and vote on House standing committees; (2) non-members other than delegates may not serve or vote on House standing committees; (3) it would likely be unconstitutional to give delegates a true vote in the Committee of the Whole; (4) because the revote provision in House rules makes the delegate vote in the Committee of the Whole largely symbolic, it is not unconstitutional; (5) nevertheless, giving even such a symbolic vote in the Committee of the Whole to non-members other than delegates would violate the Constitution; and (6) giving a symbolic vote in the House itself to anyone, including delegates, would violate the Constitution.

As Professor Currie notes, these propositions supported by little more than fiat.

Continue reading ‘The D.C. Circuit and the “Would-be Congressmen”’ »

The Role of Delegates on House Committees

Returning to the role played by delegates in the House, today we will look at their history on committees.

In contrast to the initial debate over admitting territorial delegates to the House, there appears to have been little or no controversy in the early Congresses about allowing delegates to serve on committees. James White was appointed to a select committee in 1795, and William Henry Harrison, the first delegate from the Northwest Territory (and future president), also served on a number of select committees. Indeed, in December 1799, Harrison was appointed to chair a select committee established to inquire into any necessary alterations “in the laws relating to the sale of lands in the Territory Northwest of the Ohio.” 6 Annals of Cong. 527.

The most controversial issue has been whether these delegates may constitutionally cast votes in committee, and whether this would be inconsistent with the House’s longstanding view that delegates may debate, but not vote.

Continue reading ‘The Role of Delegates on House Committees’ »

Felons on the Floor?

The Telegraph reports that a point of order has been raised in Parliament with regard to the propriety of allowing a “convicted criminal” the right of access to Westminster. A former member of Parliament named Chris Huhne, who two years ago resigned and pled guilty to the offense of “perverting the course of justice” (something having to do with his wife taking his “speeding points”), applied for and received a parliamentary pass that is customarily made available to former MPs.

The point of order, raised by a conservative MP (Huhne was a Liberal Democrat), questions whether these privileges can be revoked with regard to Mr. Huhne:

Given the low esteem many members of this House are held in by our constituents in regard to poor behaviour, is there any method [by which] we can actually rescind this application to ensure someone who is a convicted criminal cannot freely walk around the Palace of Westminster?

Judging by the speaker’s response, the answer is no. But this got me to wondering whether we could have the same issue in Congress. Both the House and Senate allow former members floor privileges and certain other courtesies. This handy and delightfully brief CRS report describes these privileges and notes certain exceptions. For example, former members cannot access the floor if they are registered lobbyists.

But there appears to be no exception for felons.

More Fun with House Guests: Admitting Cabinet Officials to a Seat in Congress

A recent post by Professor Gerard Magliocca brought to my attention a matter which sheds further light on how the House of Representatives has viewed participation by non-members in its proceedings. In 1864, a House select committee favorably reported a bill providing that the heads of the Executive Departments “shall be entitled to occupy seats on the floor of the House of Representatives, with the right to participate in debate upon matters relating to the business of their respective departments, under such rules as may be prescribed by the House.”

This proposal was inspired at least in part by Justice Story’s Commentaries on the Constitution.  In a passage quoted at some length by the House committee, Story commented: “If it would not have been safe to trust the heads of departments, as representatives, to the choice of the people as their constituents, it would have been at least some gain to have allowed them seats, like territorial delegates, in the House of Representatives, where they might freely debate, without a title to vote.”

The House report reflects the same view of participation by non-members as won the day during the debate over the admission of James White seventy years earlier. The report states:

The committee entertains no doubt of the power of Congress to pass this resolution. . . . [M]embers of the Cabinet do not by this resolution become members of the House; nor are they invested with any of the powers belonging to members, except to enter on the floor and to participate to a limited extent in debate. The right of each house to admit persons, not members, on its floor, and to allow them to debate any measure which may be pending, is too clear for argument. . . . It is exercised at every session when by resolution a contestant is allowed the privileges of the floor, and the right to debate the questions involved in the contest. It is exercised whenever action is had under the provisions of the general law of 1818, taken from the provisions of each special law for the organization of a Territory, passed prior to that date, that delegates from Territories shall be elected “for the same term of two years for which members of the House of Representatives of the United States are elected, and in that House each of the said delegates shall have a seat with the right of debating, but not of voting.”

In other words, the House’s authority to admit non-members, either for a limited time and subject or to a seat that continues for the entire Congress, extends to all persons, not merely to territorial delegates. Just as the House concluded in the debate over James White’s admission, the limitation is not the credentials of the persons who can be so admitted, but the fact that such persons may only debate, not vote.

As a side note, the legislation to admit cabinet members was never acted on by the full house, but later was introduced in the Senate. Many years later, as Professor Magliocca reports, President Taft picked up on the idea and included in his 1912 state of the union message a proposal that cabinet officers be provided seats in both the House and Senate. He recognized, though somewhat lamented, the fact that these officers could not vote:

Objection is made that the members of the administration having no vote could exercise no power on the floor of the House, and could not assume that attitude of authority and control which the English parliamentary Government have and which enables them to meet the responsibilities the English system thrusts upon them. I agree that in certain respects it would be more satisfactory if members of the Cabinet could at the same time be Members of both Houses, with voting power, but this is impossible under our system.

Needless to say, this proposal also never made it anywhere, although the closely related idea of providing a parliamentary-style “question time” in Congress for cabinet officials or even the president surfaces from time to time.

Quinnipiac Law Review Symposium on the Disqualification Clause

A forthcoming issue of the Quinnipiac Law Review features four articles responding to Benjamin Cassady’s “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014). The editors were kind enough to ask me to write the foreword, which you can find here. It’s extremely hilarious and entertaining. (Not really).

The articles by Peter Charles Hoffer, Brian C. Kalt, Buckner F. Melton, Jr. and Seth Barrett Tillman are well worth reading.

The First House Debate on Admitting Delegates

On November 14, 1794, the House resolved into the Committee of the Whole House to consider the report of an ad hoc committee led by Representative Baldwin. The Baldwin committee had been tasked with considering whether to admit to the House one James White, who had presented his credentials as “Representative of the Territory of the United States south of the river Ohio, in the Congress of the United States.” 4 Annals of Cong. 873. White’s claim to admission was founded indirectly on the Northwest Ordinance, which had promised that the legislature of the Northwest Territory could send a delegate to Congress “with the right of debating, but not of voting.”

Because the Northwest Ordinance preceded the adoption of the Constitution, it refers to “Congress” (meaning the Congress under the Articles of Confederation), rather than the House or Senate. Following the adoption of the Constitution, Congress passed a law providing the Southwest Territory with the same “privileges, benefits, and advantages” as provided in the Northwest Ordinance, but not specifying whether the right to send a delegate to Congress referred to the House, the Senate or both. Continue reading ‘The First House Debate on Admitting Delegates’ »

Delegate Morrissey and the Voters Who Love Him

So when we left off our discussion of Virginia Delegate Joseph Morrissey (D-Henrico turned I-Prison), I noted:

All of this is likely academic as the voters will probably not take up Morrissey’s case as a cause celebre ala Wilkes. But it should be noted that Wilkes was a famous libertine and some of his expulsions were based on his authorship of a pornographic parody that scandalized British society of the time. So you never know.

It’s always a good idea to qualify your predictions so subsequent events don’t make you look like a fool. As it happens, Morrissey’s constituents (at least those who bothered to show up in a low turnout election) were perfectly happy to keep him as their representative in Richmond, even though it means he will be commuting from a jail cell to his seat in the oldest continuous lawmaking body in the Western Hemisphere.

Continue reading ‘Delegate Morrissey and the Voters Who Love Him’ »

Membership Has its Privileges: Participation of DC and Territorial Delegates in House Proceedings

Last week, on the opening day of the new Congress, DC Delegate Eleanor Holmes Norton argued that the House should adopt a rule allowing her and territorial delegates (representing Puerto Rico, Guam, the Virgin Islands and American Samoa) to vote in the Committee of the Whole. Since 1993, the House has had such a rule during periods in which Democrats held the majority. Norton also asked for a special committee to study the issue of delegate voting.

Following the House’s decision to reject her requests, Norton stated: “The audacity of stripping a vote for taxpaying Americans won fairly by vote of the House and approved by the federal courts was outdone today by the refusal of the House majority to restore the vote of District citizens.”

The federal court decisions referred to in Norton’s statement are Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994) and the lower court decision by Judge Harold Greene in the same case. Both these courts upheld the practice of allowing delegates to vote in the Committee of the Whole, but only on the ground that the re-vote portion of the rule (requiring, in essence, that the votes of the delegates would not count whenever they would be determinative of the result) made it constitutionally inoffensive. Judge Silberman’s opinion for the appellate court described the vote given to the delegates as “largely symbolic,” while Judge Greene was more blunt, calling it “meaningless.”

These opinions also relied heavily on House practice and precedent with regard to participation by delegates and non-members in its proceedings, but they appear to have overlooked some of the most important precedent. In my next few posts, I will discuss the relevant history and how the House has looked at this constitutional question.

Here is what I tentatively think these posts will show:

  • Because the Constitution provides that “the House of Representatives shall be composed of Members chosen every second Year by the People of the several States,” delegates from DC and the territories, which are not states, cannot be members of the House.
  • Historically, the House has viewed it as constitutionally permissible to allow non-members the right to participate in debate, so long as they cannot vote.
  • More recent practice has allowed delegates to vote in standing committees. This practice can be squared with the traditional view, I believe, because the activities of committees are most reasonably viewed as being on the “debating” side of the debating/voting line. Voting on certain matters, such as issuing subpoenas or holding witnesses in contempt, however, may raise additional issues.
  • The real disagreement between House Republicans and Democrats has come down to voting in the Committee of the Whole. This disagreement is much narrower than it might appear (or Norton’s rhetoric might suggest) because the Democrats only gave the delegates a symbolic vote precisely because of concerns about the constitutionality of the practice. The Republicans presumably believe that giving non-members a vote in the Committee of the Whole is a constitutional impropriety, even if it is effectively harmless error.

Having said all this, I think Norton’s idea of having a committee (it could be a standing committee such as Judiciary’s Subcommittee on the Constitution) look at this issue makes sense. The principle is that delegates can debate, but not vote. But the power to debate can be quite meaningful (as illustrated by the Senate filibuster), while the power to vote at issue here is merely symbolic. Perhaps there is ground for a compromise by, for example, enhancing the authority of the delegates to debate matters that specifically impact their constituents.