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 are supported by little more than fiat.
Before getting to the merits, however, a brief word on standing. It is unlikely that a court today would reach the merits of a case like Michel, given that the D.C. Circuit’s permissive approach to legislative standing was repudiated by Raines v. Byrd, 521 U.S. 811 (1997). But even if one assumes that the Michel plaintiffs otherwise had standing, the court’s own reasoning suggests that they had no injury-in-fact. If, as the court decided, the automatic revote provision (which required the Committee of the Whole to revote without delegate participation whenever the votes of the delegates would be determinative of the outcome) rendered the votes of delegates “largely symbolic” and without any real effect on legislation, the natural conclusion should be that the Michel plaintiffs were not injured and therefore lacked standing.
Nonetheless, the court reached the merits, where it proceeded to make significant errors. It relied heaving on early House practice relating to delegates, but it entirely missed the rationale that underlay that practice. As Currie explains:
[The Michel court] rel[ied] largely on the First Congress’s endorsement of the provision for a Delegate in the Northwest Ordiance and the powers exercised by William Henry Harrison (which included making motions and serving on committees) after his election to that position in 1799. (The more significant decision to seat the Southwest Delegate, after the constitutional question had been fully debated, was not mentioned in the opinion.) The court warned that the House had gone to the limit: Similar rights for mayors, or a power to affect the result in the Committee of the Whole, or a vote of any kind on the floor of the House itself, would be unconstitutional. These distinctions were all stated as a matter of fiat, and of course no voting rights followed from the eighteenth-century experience; the prevailing argument in 1794 was that all the Delegate could do was speak- a right that could be afforded to anyone.
David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 203 n. 237 (1997) (emphasis added) (citations omitted).
As we have seen (here and here), the House has never suggested delegates enjoy a special constitutional status. This is not surprising given that the Constitution does not mention delegates and thus there would be no way of giving them special constitutional recognition without making something up out of whole cloth.
The Michel court, however, insisted that House practice had given delegates special status: “At the earliest times, Congress viewed the territorial delegates as occupying a unique middle position between that of a full representative and that of a private citizen who presumably could not serve on or chair House committees.” 14 F.3d at 631.
Note the use of the word “presumably,” which captures the “close enough for government work” flavor here. The court simply assumes that a private citizen cannot serve on a standing committee and bootstraps from this assumption to the conclusion that the House has afforded delegates the unique constitutional status of “would-be congressmen” (the actual term used by the court) by allowing them to serve on such committees.
So how does one determine the prerogatives enjoyed by these “would-be congressmen”? The court is rather unclear on this point. At one point it suggests looking at the practices of the early congresses because “those actions provide some indication of the views held by the Framers, given the propinquity of the congresses and the framing and the presence of a number of Framers in those congresses.” 14 F.3d at 631. But the court doesn’t follow up on this suggestion in any logical way.
After all, the practice of the early congresses with respect to voting in the Committee of the Whole was clear and undisputed. Delegates such as James White and William Henry Harrison were permitted to debate in the Committee of the Whole, but they were not permitted to vote. Some practices (e.g., the making of motions) evolved over the next two centuries, but the ban on delegate voting remained firmly in place until 1993. Given the longstanding and clear practice of the House on the very issue before the court, it is difficult to understand why the murkier and far less consistent House practice with respect to delegate service on committees would have any bearing on the outcome.
Nonetheless, the court determined that delegate voting in the Committee of the Whole was among the bundle of rights that could be afforded these “would-be congressmen.” But not any voting. The court made clear that its decision was predicated on the fact that the revote provision made the delegates’ votes largely symbolic. The court then concluded “[s]ince we do not believe that the ancient practice of delegates serving on standing committees of the House can be successfully challenged as bestowing ‘membership’ on the delegates, we do not think this minor addition to the office of delegates has constitutional significance.” 14 F.3d at 632.
In support of the court’s conclusion, it might be argued that giving delegates a purely advisory vote in the Committee of the Whole would not be unconstitutional. For example, if the House were to adopt a rule providing that before the Committee of the Whole votes on a measure the Clerk must read a separate tally of how delegates “voted,” this rule would be, in my view, within the House’s power under the Rules of Proceedings Clause. The same would be true if the rule provided for advisory voting by the mayors of the 100 largest cities.
The problem is that the House rule in Michel did not merely give the delegates an advisory vote in the Committee of the Whole. It gave them an actual vote, subject to a revote if their votes turned out to be determinative. The difference may be purely formal (or symbolic), but sometimes formalities matter, as the Third Congress recognized by voting against having a delegate take the oath. So too did the Michel court acknowledge the importance of formalities when it declared “it would be unconstitutional to permit anyone but members of the House to vote in the full House under any circumstances.” 14 F.3d at 630.
It is difficult to say with certainty where this formal line should be drawn. (The House, after all, later changed its mind about having delegates take the oath.) But clearly having a delegate vote on the floor of the House as a member of the Committee of the Whole looks more like “membership” in the House than merely voting in a House committee. And the Michel court offered no explanation for drawing the line between the full House and the Committee of the Whole, rather than between the Committee of the Whole and House committees.
One thing can be stated definitively. If the bundle of rights and privileges considered in Michel did not bestow “membership” in the House on the delegates, as the court concluded, they would not bestow membership on anyone else either. Thus, if it were constitutional to allow delegates a (symbolic) vote in the Committee of the Whole, it must be constitutional to allow the mayors the same. The Michel court suggests otherwise, but it provides no constitutional reasoning in support of its position, and none is apparent to me. On this point the court is not just unpersuasive. It’s just wrong.