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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.

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