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.

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 are supported by little more than fiat.

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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.

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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.