[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
VOTING IN THE HOUSE OF REPRESENTATIVES--RULES, PROCEDURES, PRECEDENTS, 
                          CUSTOMS AND PRACTICE 

=======================================================================

                                HEARING

                               before the

               SELECT COMMITTEE TO INVESTIGATE THE VOTING
                    IRREGULARITIES OF AUGUST 2, 2007
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 25, 2007

                               __________

                             WASHINGTON, DC

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SELECT COMMITTEE TO INVESTIGATE THE VOTING IRREGULARITIES OF AUGUST 2, 
                                  2007

             WILLIAM D. DELAHUNT, Massachussetts, Chairman
ARTUR DAVIS, Alabama                 MIKE PENCE, Indiana, Ranking 
STEPHANIE HERSETH SANDLIN, South         Member
    Dakota                           STEVEN C. LaTOURETTE, Ohio
                                     KENNY C. HULSHOF, Missouri







































                            C O N T E N T S

                              ----------                              
                                                                   Page
I. Opening Statements:
    1. Delahunt, Hon. William, Chairman..........................     1
    2. Pence, Hon. Mike, Ranking Member..........................     2
II. Appendix:
    Speaker's Opening Day Announcement...........................    37
    Letter of Resignation, Charlie Johnson.......................    40


VOTING IN THE HOUSE OF REPRESENTATIVES--RULES, PROCEDURES, PRECEDENTS, 
                          CUSTOMS AND PRACTICE

                              ----------                              


                       THURSDAY, OCTOBER 25, 2007

              House of Representatives,    
            Select Committee to Investigate
                       the Voting Irregularities of
                                            August 2, 2007,
                                                   Washington, D.C.
    The committee met, pursuant to call, at 8:30 a.m., in Room 
H-313, The Capitol, Hon. William D. Delahunt [Chairman of the 
committee] presiding.
    Present: Representatives Delahunt, Davis, Herseth-Sandlin, 
Pence, LaTourette, and Hulshof.
    The Chairman. The hearing of the select committee will come 
to order. The subject of this hearing today is Voting in the 
House of Representatives--Rules, Procedures, Precedents and 
Customs.
    Without objection, all Members' opening statements will be 
made part of the record.
    [The information follows:]
    The Chairman. Let me begin with a brief statement. First, 
let me say that I think that today's hearing is an important 
hearing. One of the main things that I was struck by as I began 
delving into the substantive aspects of this inquiry, which is 
mentioned in the select committee's interim report and includes 
the duties and discretion of the offices of the House and the 
presiding officer related to voting and the duration of a vote, 
is that the rules of the House, the House standing rules, that 
is, that govern the conduct on an electronic vote only provide 
illumination on certain aspects of these subjects.
    I had previously been unaware of which electronic votes are 
governed by precedents and customs that I daresay a few of us 
were aware of and understand. Clause 2(a) of Rule 20 states, 
and I am quoting, ``Except as otherwise permitted under Clause 
8 or 9 of this rule or under Clause 6 of Rule 28--or rather 18, 
the minimum time for our record vote, a quorum call by 
electronic voting, shall be 15 minutes.'' Clause 1 of Rule 20 
states that on the tie vote, a question fails. That seems to be 
it.
    So much of what occurs on the floor of the House is 
governed by precedents, customs and practice. Therefore, much 
of what dictates the sequence of events that comprise a floor 
vote is not black letter law, and it would appear that some of 
it is not even memorialized in writing.
    So that is why today is a particularly important hearing, 
the purpose of which is to inform the members of the committee, 
and I daresay our colleagues outside of this committee, as well 
as the American people, of the custom and practice, precedents 
and influence, and in many ways, goes to the heart of this 
institution. And I can't think of anyone more prepared to serve 
as witnesses at this hearing than the two individuals who sit 
before us and who I will introduce momentarily.
    First let me say that I am confident that the information 
that will emerge from this hearing will be integral in laying 
the foundation for the factual inquiry with which we are 
charged.
    The subject of this hearing--institutional models--as with 
the subjects of the committee's previous hearing, is not within 
the immediate expertise of any members, and is therefore 
critical for us to understand in fulfilling our charge. 
However, I am also inquisitive as to how we may inform our 
other responsibility, which is the recommendation of changes to 
the House rules.
    One of the most valuable things I think we will take away 
from this experience is the understanding of the most integral, 
innermost operations of the House of Representatives, the 
institution, if you will, because the greater our understanding 
of not only the meaning of the rules, customs and practice, but 
also the reason and history behind them, and our determination 
that their operation and purpose are generally fair and logical 
if we so determine, the greater our commitment to preserving 
their integrity.
    Let me call on Mr. Pence for his opening statement.
    Mr. Hulshof. Mr. Chairman before you yield to Mr. Pence, 
you might want to supplement the record in that we have had a 
meeting of the select committee that wasn't public when we met 
on the floor through the walkthrough. Perhaps if you could give 
a brief recitation in that the press is not allowed to 
accompany us on the floor, that we actually saw for ourselves 
the process.
    The Chairman. That is a very good point, Mr. Hulshof. We 
did, I think it was a week ago, have an opportunity to actually 
observe and participate in a vote. Not a real vote obviously, 
but a vote that was, I think, most illuminating, which ran 
through the various sequences that the Clerk's office and a 
Parliamentarian explained in some great detail. I think we all 
left that floor having a greater appreciation for the 
coordination that is required between the various individuals 
that conduct, if you will, the operations that make the House 
of Representatives function as a democratic institution.
    I see the Clerk of the House, Lorraine Miller, has joined 
us. And I want to commend and extend our collective 
appreciation for that particular effort. It really was 
illuminating. And again, I would say I think we all left with a 
better appreciation of the complexity and the coordination that 
is required. And now Mr. Pence.
    Mr. Pence. Thank you, Chairman. Thank you for calling this 
third hearing. I would agree with you that what we are about in 
this third hearing, as we have been about in the first two is 
institutional knowledge. And I am grateful for the manner with 
which this committee has cooperated thus far and hope and trust 
that we will remain cordial and collegial as we move out of 
this background institutional knowledge phase into upcoming 
hearings that will be exploring the facts and circumstances 
around the vote of August 2, 2007.
    As you said, this is the third in a series of educational 
hearings about the voting process. We have heard from the 
Clerk. As you just mentioned, we have been on the House floor. 
We received a briefing on the voting process. And today our 
hearing, I expect, will delve deeply into the rules, 
procedures, precedents, customs and practices associated with 
voting in the House.
    Our witnesses are two individuals with extraordinary 
experience and knowledge. And I might add extraordinary 
reputations for integrity in this institution. I would love to 
welcome them to the select committee and thank them for their 
long careers of service to the United States and to this 
institution. I will leave it to the Chair to introduce our two 
witnesses. But when I think about the cumulative wake of the 
years of experience assembled at this table, I am encouraged 
that we will leave this hearing better informed and with a much 
greater appreciation for the proper workings of the House of 
Representatives in the tallying of the vote than we have even 
up to this point.
    Let me say again, I appreciate the collegial manner, 
particularly the chairman and my Democratic colleagues who have 
demonstrated to us on the Republican side we have serious 
business to do here, and I am grateful that we are taking it 
seriously. Because there are some tough questions at hand. The 
reality is even in this educational background phase, questions 
have been raised that need to be answered.
    Today, I expect more questions will come to our minds as we 
hear from these experts. But I remain confident that we are 
building a good foundation of knowledge on which we will be 
able to draw substantive conclusions about the events of the 
night of August 2nd. And finding answers is really what we are 
here to do.
    Our select committee has been tasked with two jobs, getting 
to the bottom of what happened on the night of August 2, 2007 
during the roll call vote 814, and making recommendations to 
the House regarding the protection of members voting franchise 
and the House voting system. This is a solemn duty to 
investigate the irregularities of August 2nd and we approach it 
in that manner. The integrity of the House of Representatives 
is completely dependent on the integrity of the vote that takes 
place on the floor of the House. Every American is entitled to 
have a voice in the people's House and to know that their 
representative's vote counts. With our work today and over the 
past few weeks, I believe we are taking proper foundational 
steps to answer questions we have about that night and to 
develop the kind of recommendations that will ensure the 
fundamental integrity of this institution. Thank you, Mr. 
Chairman, for calling this hearing and thank our witnesses and 
look forward to the testimony.
    The Chairman. Thank you, Mr. Pence, and let me proceed by 
introducing our witnesses. And as you indicated, these are 
individuals of great integrity and erudition. Their reputations 
are well known to all of us. Mark O'Sullivan received his 
bachelor of arts at the University of Massachusetts----
    Mr. LaTourette. Everybody makes a mistake.
    The Chairman [continuing]. In 1975. Mark is a member of the 
Red Sox nation. He has served the House of Representatives 
since 1977 in the House Post Office, Office of the Door Keeper 
and Office of the Clerk and Legislative Operations. In 1978, 
Mark was appointed assistant Tally Clerk and served in this 
position until 1983. From 1983 to 1987 Mr. O'Sullivan served as 
assistant general clerk. He returned to the position of Tally 
Clerk until January of 2003 when he was appointed Chief Tally 
Clerk, a position which he currently serves with great respect 
from all members of the House.
    And again, alluding back to the hearing that was conducted 
on the floor of the House, I certainly, and I think I speak for 
most of the members, have now a much more fully--well, I have a 
much greater appreciation for the function of the Tally Clerk. 
In this position, he is responsible for the electronic voting 
system which records members' votes on the House floor and for 
authorizing the release of roll call votes to the Clerk's Web 
site and the Government Printing Office for printing in the 
Congressional Record. He supervises a staff of four assistant 
tally/floor action reporting system clerks. He has served under 
six House Speakers, seven House Clerks, and three House 
Parliamentarians.
    We are also fortunate to have one of those distinguished 
Parliamentarians here with us today, Charlie Johnson, who 
received his bachelor of arts from Amherst College, also in 
Massachusetts, which is obviously part of the Red Sox nation, 
and his Juris Doctor from the University of Virginia Law School 
in 1963. He is admitted to practice in the bars of the District 
of Columbia and the United States Supreme Court. He served in 
the Army National Guard Army Reserve from 1963 to 1966. And the 
Navy JAG Reserve Commission from 1967 to 1971. He was appointed 
to the Office of the Parliamentarian on the House of 
Representatives in May of 1964. He served as assistant 
Parliamentarian from 1964 to 1974. From 1974 to 1994 he served 
as deputy Parliamentarian. He then served as Parliamentarian of 
the House from September 16, 1994 through May 20, 2004--40 
years, 40 years to the day after his first appointment.
    He has served as an adjunct professor on congressional 
procedure, political leadership and recent congressional 
history at the University of Virginia Law School, and given 
lectures and seminars at numerous institutions, including 
Catholic University Law School, Georgetown University Law 
School, and his alma mater, Amherst College. He has been the 
editor and author of numerous publications. He was the editor 
of House Rules Manual of the 104th 105th, 106th, 107th and 
108th Congresses. He co-edited House Practice, the second 
edition. He is currently consulting to the Parliamentarian on 
writing of House precedents. He is also the co-author with Sir 
William McKay, recently retired clerk of the House of Commons, 
of an upcoming book on Parliament and Congress. And lastly, he 
has been a batting practice pitcher with the L.A. Dodgers and 
the Pittsburgh Pirates for the past 5 years. Congratulations.
    Mr. Davis. The Atlanta Braves could use a middle reliever.
    Mr. LaTourette. Mr. Chairman, before the witness, could I 
say something about Mr. Johnson. Because of part of this 
committee's assignment is to serve as an educational tool for 
the Members, I just wanted to relay an experience that I had 
when I was elected in 1994. I had never been in the legislature 
and I got here and some of the old bulls, Ralphs, to then 
Speaker Gingrich, asked, `why are they keeping the Democrats' 
Parliamentarian, Mr. Johnson?' And they said, well, we are in 
the majority now, we shouldn't be keeping the Democrats' 
Parliamentarian. I think your introduction of Mr. Johnson is 
right on the money. Over the 12 years that I had the pleasure 
to present from time to time, he wasn't the Democrats' 
Parliamentarian; he was the Parliamentarian of the House. And 
his counsel was why I thought and Mr. Davis thought he was such 
a valued witness. What he has to say about rules, practices and 
precedents I think is unimpeachable and he is going to be fair.
    And I would also like to tip my hat to you, Mr. Chairman, 
and I see that you have sought counsel of one of his former 
assistants, Muftiah McCartin; I had the pleasure of working 
with her for 12 years. And I make the same statement about her 
and what she said about rules, practices and procedures and I 
believe and I trust that, so I look forward to this hearing. 
Thank you.
    The Chairman. Thank you, Mr. LaTourette. Let me just echo 
that the people that are before us, the people that are sitting 
in this audience who are part of the operations of this House 
and the people that are behind us, while they might be 
appointed by Democrats or Republicans, I think it is important 
for the American people to understand that they are 
Institutionalists and they care about this institution. I think 
all of us are aware of that because in many cases, we have 
personal relationships with these individuals. And they carry 
out their duties in a nonpartisan way.
    And I know that the testimony we will elicit from them will 
be fair and accurate and will be made in a way that hopefully 
will be reflected enough on the party which will enhance the 
confidence of the American people and the integrity of this 
institution. We have said that differently in different ways, 
all of us, but that is why we are here. I know that neither one 
of our witnesses have a written statement.

STATEMENTS OF CHARLES E. JOHNSON, FORMER PARLIAMENTARIAN OF THE 
  HOUSE OF REPRESENTATIVES; AND MARK O'SULLIVAN, CHIEF TALLY 
             CLERK OF THE HOUSE OF REPRESENTATIVES

    The Chairman. So why don't we just simply go to questions 
first. And let me pose a question to Mr. Johnson. Charlie, in 
Chapter 50, Section 2 of your book entitled House Practice; A 
Guide to Rules, Precedents and Procedures of the House, there 
is this statement. Parliamentary law, a term that encompasses 
both formal rules and usages has come to be recognized as 
binding on the assembly and its Members. The formal rules, 
which are our standing rules, are readily available in two 
different House publications. The Chair's interpretation of 
those standing rules has been compiled. We know where we can go 
and get it, thanks to the dedication of the Office of the 
Parliamentarian over an extensive period of time, many years, 
to create a body of precedent that gives us some clarity and 
predictability in the application of the standing rules 
themselves. But when it comes to the usages or customs of the 
House that govern procedure they are not completely captioned, 
if you will, in the compilation of precedents or publications 
setting forth the standard rules. As stated by Mr. Hinds, the 
Parliamentarian, in the early 1990s, these customs are the 
unwritten law. That is his term, unwritten law. There are 
quotes around ``unwritten.'' And we hope to glean some of those 
usages and customs of the House today.
    But before we embark on that training, can you please 
explain to the committee the relative importance of usage and 
custom. When does a custom or usage become so well established 
that it is elevated to be a binding procedural law? Is it as 
binding as a well-settled rule of the Chair, a standing rule, 
if you will? And would your answer be different if the Chair 
had occasion to opine on a usage or custom? Can you discuss the 
providence of custom and usage in the Morton House where the 
majority of Members have only been here since 1999? I myself 
came here in January 1997. How does the House go about changing 
a usage or custom? I mean, can the Chair, by deviating from a 
usage or custom, establish a new precedent? Or how do we go 
about changing usage and custom? Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman. I think you started 
this inquiry off correctly about practice as a general 
proposition. Perhaps it is not totally accurate to say that all 
usage and custom is not written. Because just in the last few 
days, as I have tried to collect my thoughts in preparation for 
this hearing, I went back into Hinds' and Cannon's precedents 
beginning where you just did with our own House practice book, 
which has a three-page chapter on precedent.
    And the first citation in that chapter, which you cited, 
brings you to Hinds' precedents, Volume I, the preface. Now, 
what are Hinds' and Cannon's precedents? They are the 
compilations respectively from 1789 until 1907, when Asher 
Hinds, during his time as then-clerk to the Speaker's table, 
(he didn't have the title of Parliamentarian, and then a Member 
of Congress, took Speaker Thomas Reed's seat from Maine in the 
late 1890s. But he had it within him, with whatever staff he 
could summon, to publish those first five volumes. And they 
``speak volumes.'' \1\
---------------------------------------------------------------------------
    \1\ Subsequently Clarence Cannon, who himself became a Member, 
published Volumes 5-8; covering the period 1907-1936.
---------------------------------------------------------------------------
    You read briefly the unwritten law commentary in his 
preface. But let me put this in a little more context, because 
custom and usage is contextual. The people who have immediate 
access to it are perhaps people like myself and Members and 
staff on both sides. I see right here today distinguished staff 
on both sides who have accessed and are interested in looking 
at precedent, at black letter rule, precedent, custom, usage, 
tradition. But there is more available than meets the eye. And 
that is part of what the House realized in 1970 by enacting the 
Reorganization Act of 1970. The law requires the 
Parliamentarian, (who, by law, is appointed by the Speaker as a 
nonpartisan attorney, together with all the assistant 
Parliamentarians as nonpartisan attorneys) to compile the 
procedural precedents of the House. At that time they had not 
been published since Clarence Cannon finished his compilation 
through 1936. They had been completed but had not been fully 
published as precedent. There were citations in the House 
Manual and in an abbreviated book called Cannon's Procedure. 
And then with cryptic citations.
    Just last week, you received once again your leather-bound 
rule books, the small print which comprises up to date 
citations to precedent for the most part, rulings of the 
presiding officers, which perhaps have a little greater 
standing because they are potentially subject to the will of 
the House through appeal.
    Now, when I retired in May, on May 20th of 2004, I 
submitted a two-page resignation letter. That letter discussed 
the importance of precedent and honored the Members and staff I 
had been privileged to help advise. And it said that appeals 
from rulings had traditionally not been taken in the House 
because the Chair's competence and fairness has been honored as 
a tradition and custom. I still think that is true and it has 
to be true. But as you know, all six of you know, there have 
been a proliferation of appeals from rulings, perhaps not so 
much to have a vote of the House on the propriety of the 
Chair's ruling, which after all is all that an appeal is about, 
but rather from time to time to represent the issue as a vote 
on the underlying merits of the proposition, which I think is 
wrong as far as using appeals.
    But let us face it, it has happened and it will continue to 
happen. But when those rulings are made by the Speaker, and 
nine out of 10 are not appealed, they are then incorporated in 
the House Manual every 2 years. They then go into the House 
Practice book. The second edition has been out since 2003. My 
predecessor, Bill Brown, and I put it together with our staff. 
But then there are traditions and customs. Let me just read 
this paragraph from which you quoted. ``The value,'' and this 
is out of Asher Hinds' introduction, ``the value of precedents 
in guiding the action of a legislative body has been 
demonstrated by the experience of the House of Representatives 
for too many years to justify any arguments in their favor now. 
We have no other means of building up parliamentary law, either 
in the mother country or here, said a great lawyer who was also 
an experienced legislator.'' And while the quote, 
unfortunately, is of a Senator, so perhaps you can minimize the 
precedential value, the Senator was speaking of precedent value 
in both Houses.
    Except by instances as they arise and treatment of them and 
disposition of the law and of the good reasons that should 
govern these considerations. And the great legislator who had 
served a lifetime in the House of Representatives and the 
Senate concluded that, as you quoted from, and this is another 
Senator, John Sherman in the 44th Congress, concluded that, 
``The great body of the rules of all parliamentary bodies are 
unwritten law. They spring up by precedent and custom. These 
precedents and customs are this day the chief law of both 
Houses of Congress.'' So I think that really does properly 
characterize the value of precedent and practice. The question 
is----
    The Chairman. If I can interrupt, do you agree with that 
statement?
    Mr. Johnson. Yes. But I don't agree that they are not 
necessarily written. They are published often, not always but 
often in the precedents in footnotes, in the House Practice 
book as parliamentarian's notes, not as dispositive precedent 
but as guides. And the reason they have value is because they 
are prepared by an office which by law and unbroken custom has 
the responsibility as nonpartisan attorneys of preparing them, 
publishing them and advising all Members based on them. That 
was the law in 1970. Ongoing publication.\2\
---------------------------------------------------------------------------
    \2\ Where they are not written, they are based on trust in the 
Parliamentarian's advice articulated by that office or through the 
Chair.
---------------------------------------------------------------------------
    The Chairman. If I can again interrupt. But is there a 
discrete compilation or a compendium that is readily available 
to Members?
    Mr. Johnson. It is.
    The Chairman. In other words--let me rephrase it. For 
someone who is not particularly conversant with parliamentary 
procedure, and that depends on the individual member, but I 
dare say that there are many Members who fit that particular 
description, but if, on occasion, they wanted to access without 
going to the parliamentarian's office, how would you go about 
it, how would you locate the precedent on a particular issue 
that you were concerned about?
    Mr. Johnson. Well, all the precedents from Hinds, Cannon, 
Deschler, Deschler and Brown are on-line. Plus there are 11 
volumes of Hinds' and Cannon's precedents from 1789 through 
1936. Then there are now 16 volumes of Deschler and Deschler-
Brown. Lew Deschler was Parliamentarian for 46 years from 1928 
to 1974. He hired me. And obviously being the Parliamentarian 
for 46 years gave him some stature. He also for most of his 
time was not required to permit uninhibited access to his 
scrapbooks and precedents as he compiled them. The law came 
along in 1970 and required publication and total public access, 
which was right. But they are in print and online. The question 
is how many people, number one, know they are there and know 
how to access them and sometimes seek help in accessing them? 
Which again, the parliamentarian's office is available to do 
for all Members on a confidential basis in an attorney-client 
relationship if necessary.
    That is not to say Members and staff can't do their own 
research, and they often do. They are well advised, I think, to 
seek their interpretation of the results of that research from 
the parliamentarian's office. There are sources that clearly 
have expertise, both on committee staff, CRS, where help can 
also be obtained. A couple of days ago I started looking for a 
precedent in this general area of voting. Because I knew since 
I was here in 1964, the voting system from 1964 through 1973 
was the roll call. That was how the yeas and nays were 
recorded; it was done on tally sheets. This is rather 
fascinating. Because it is the only, that I could find, printed 
discussion of the role of the clerks in preparing the result. 
It was an occasion in 1918. And this is recorded in Cannon's 
Volume VIII, Section 3162.
    This is in print. This is usage, but it is also precedent 
because the Chair was called upon to rule on an occasion when a 
conference report was announced as defeated 149 to 150. The 
next day it became apparent that the clerk's tally was wrong by 
one vote and that the correct vote was 150 to 149, adopting the 
conference report, clearly a decisive change. So the issue came 
up about changing the Journal and, in effect, approving the 
conference report, which the day prior, the Speaker declared to 
have been rejected. Cannon wrote that, ``where an error of the 
clerk in reporting the yeas and nays, the Speaker announces a 
result, whereby an error of the clerk, the Speaker announces a 
result different from that shown by the roll, the status of the 
question must be determined by the vote as actually recorded.'' 
And then the House on motion amended the Journal of the prior 
day's proceeding.
    But let me just read a paragraph. This touches in a general 
way on where the committee, I believe, is headed. The Chair, 
and this is Speaker Champ Clark of Missouri, a distinguished 
Speaker of the House in 1918. The Chair, with the consent of 
the House, would like to make a few remarks about this matter. 
These are ``remarks.'' This is not a ruling precisely. Because 
the House did not challenge the amendment of the Journal, 
because everyone knew that the revised tally sheet was a 
correct one, the Speaker felt it necessary to make this 
comment. This is the first time for a long while that this has 
been done. And perhaps not a dozen men in the House ever saw 
the thing done before. But this is not unprecedented.
    Now, the way the Chair arrives at a yea and nay vote in the 
House is by these tally clerks handing up the figures. Of 
course, the Chair cannot go down there and count the votes. And 
would not know how to do it if he did go down there. They have 
some system of their own whereby when they get through with the 
roll, they know the number of the yeas and nays and those 
present. And then these clerks at the desk take the tally sheet 
out and go over it, one of them a Democrat, and one of them a 
Republican. And I never heard of anybody that disputed the 
integrity of either.
    So there is a description which captures until 1973, 184 
years of practice that two tally clerks process the roll call 
vote. Whether they are patronage, one Democrat and one 
Republican, I don't think is particularly relevant. The 
important thing is that the role of the tally clerks has 
traditionally been nonpartisan as Speaker Champ Clark has said, 
which commanded both, a usage or a custom of the House. When 
the House went to electronic voting in 1973, that role was 
never perceived to be changed, the role of the Tally Clerk in 
compiling the result was not considered to be sufficiently 
different to require a black letter rule on what the ongoing 
role of the tally clerks was to be. The assumption, was that 
traditional and custom was always, as Speaker Clark said, to be 
controlling. Yes, sometimes errors occurred, but the Chair was 
never guided by anything other than the proper role of clerks. 
That was the custom and remains so, I believe.
    Since electronic voting, and I saw it come in, it came in 
gradually. The first one or two years \3\ of getting away from 
the yeas and nays, which took 45 minutes, a system called 
recorded tellers was used. It is still a fallback procedure in 
the rules, whereby the yeas went up the left aisle and nays 
went up the right aisle and the clerks separately read or give 
them ballot cards tallied with two separate sheets the result. 
That was when the House began to allow recorded voting in the 
Committee of the Whole, number one, which was a major reform in 
1970 in the Legislative Reorganization Act.
---------------------------------------------------------------------------
    \3\ 1971-1972
---------------------------------------------------------------------------
    Until then, amendments were not roll called in the 
Committee of the Whole. And so defeated amendments were not a 
matter of record since they were not reported to the House. And 
so the House, in its wisdom, decided to allow recorded votes in 
the Committee of the Whole. They did not have electronic 
voting, but they knew that the call of the yeas and nays was 
going to take a long time on amendments in the Committee on the 
Whole, especially back when there were open rules and you had a 
number of amendments and amendments to amendments voted on in 
real-time.
    So they come up with this temporary system, all the while 
having a contract to find an electronic voting system that 
worked. But in those few years, the tallies were kept 
separately up each aisle and then the numbers were reported by 
the Members who had been appointed tellers by the Speaker or 
the Chairman of the Committee of the Whole and announced 
separately the yeas and the nays. The names were printed in the 
Record and the Journal, but once electronic voting was used, 
the tally clerks again at the rostrum were expected and 
invariably prepared that final result on a tally slip.
    I assume that, in your walkthrough the other day you saw 
that process in action. The tally clerk's role is 
indispensable. You saw the preparation of that tally sheet 
deriving from the electronic mechanism. There was one occasion 
on June 21 and 22, 1995, and it is cited, again this is 
precedent, in Volume XIV of Deschler-Brown Chapter 30 Sec. 
31.18. It involved, as Congressman LaTourette may recall, a 
situation that was very unfortunate where the Chair, on an 
amendment of the Committee of the Whole, announced the result 
from a slip showing 213 to 214.
    Just as two minority Members were approaching down two 
different aisles, the Chair with the slip in his hand, because 
the Tally Clerk at that moment, when he handed up the slip, was 
not aware that those Members were coming in, and as he handed 
up the slip, two Members appeared and the Chair would not allow 
those two Members to vote, and announced the result as 213 to 
214. Well, the minority leader, Rep. Gephardt and the minority 
were quite upset. The Committee rose immediately and the House 
adjourned.
    There was going to be a refusal to proceed the next day 
until that vote was rescinded.
    Speaker, Speaker Gingrich, and Majority Leader Armey 
readily agreed that for the sake of the institution's getting 
on with business to entertain unanimous consent in the House, 
the vote was rescinded and taken again the next day. But that 
is the only occasion of that kind of a problem that I can 
remember.
    The Chairman. There wasn't a select committee as a result 
of it?
    Mr. Johnson. There was no question of privilege, there was 
no select committee as a result. It was worked out by a 
rescission of the action the next day by unanimous consent.
    The Chairman. I am going to go to my ranking member, my 
friend from Indiana. I also am going to apologize to both 
witnesses and to my colleagues because I have a very 
significant meeting that I am already late for. So I am going 
to excuse myself and hand the gavel over to Mr. Davis.
    Mr. Pence. Thank you, Chairman. I have to confess that I 
have not spent very much time in the former parliamentarian's 
company. And I haven't been this challenged since my first day 
of law school. I thank you for your thoughtful and careful 
presentation of the assumptions, the precedents, traditions and 
customs of the House of Representatives about voting. I also 
want to say I appreciate you helping this committee and anyone 
that might look into this hearing in the future to understand 
the weight of history on this institution, which has been a 
thus far successful unbroken commitment to democracy.
    And again, I feel a little bit of an extra burden about 
that weight of history at this moment by virtue of your 
testimony. Let me, if I can, let me focus on a couple of big 
picture issues. I am open to Rule 20. And Mr. Johnson, I 
specifically wanted to ask you, Mr. O'Sullivan may have an 
opportunity to jump into this, the express language here is, 
unless the Speaker directs otherwise, the Clerk shall conduct a 
recorded vote quorum call by electronic device in such cases, 
et cetera, et cetera.
    I guess the first and foundational question that I have is 
what does the language, the Clerk shall conduct a record vote 
mean. And I guess by that I want to get specifically to the 
issue of who controls the floor, who conducts a vote, in the 
plainest sense of the term. It seems to me that in your 
testimony today, and reflecting on historical precedent, that 
the Tally Clerks play a critical role. That, in fact, I was 
amused at Speaker, is it Champ Clark in your testimony to, his 
comment that the Chair does not go down to where the clerks are 
tallying the vote and they wouldn't do it and wouldn't know how 
to do it, to paraphrase the quote.
    And so I guess the first question I have, and then I have a 
couple follow-ups on your testimony Mr. Johnson. Could you just 
speak in the very broadest terms to what that language of the 
rule means and respond very broadly to the question, who 
controls the floor? Who conducts a vote? And by that, I mean is 
it the Chair? Is it the presiding officer? Is it the 
Parliamentarian? Is it the Clerk or his or her designees? Mr. 
Johnson, maybe you can respond.
    Mr. Johnson. You ask who ``controls.'' Perhaps that is a 
term slightly different from who ``conducts.'' But the rule 
obviously and properly puts control in the presiding officer--
the Speaker--or by extension the chairman of the Committee of 
the Whole by the rule that incorporates the Speaker's 
responsibilities by reference. So the Chair, in his or her 
nonpartisan capacity conducts the vote, and it can't be any 
other way. The word ``controls'' the vote is perhaps a little 
bit more subjective.
    But ultimately, as I hope will be revealed, the conduct and 
the control do and should remain in the Chair. Now, the 
fallback, and you read, Mr. Pence, from what has been the rule 
since electronic voting, that the presumption and the 
expectation is that the electronic system will be utilized in 
preference to the alternatives of roll call, or the standby 
recorded tellers, because it is more accurate. The presumed 
infallibility of the electronic system has been consistently 
documented by rulings that are in the small print just below 
the segment you read, which suggests that unlike old roll call 
votes where Members could come in and ask unanimous consent to 
change their votes after the vote was announced because they 
claimed that the Tally Clerk had not heard their response. 
There was the element of human fallibility that allowed the 
Chair to entertain a unanimous consent request by Members, who 
claimed that they were in the Chamber trying to vote and had 
not been heard by the Tally Clerk.
    Under the old roll call system, those votes were allowed to 
be cast as long as they didn't change the result. Members were 
allowed to come in the next day and say I am recorded as not 
present, I voted aye, I want the permanent record changed to 
show what the vote was. As you all know now, a Member can come 
in and have his or her statement appear immediately following a 
vote, but not to change the result. The correct interpretation 
from Speaker Albert on forward was that the presumed 
infallibility of the electronic system eliminates that fiction 
of Members' claiming that they weren't heard. That has been 
honored. Again, that is a usage. More than that, it is 
precedent where chairs have relied invariably on the accuracy 
of the system, coupled with the ability of members to verify 
their votes at any and all voting stations. It is that 
responsibility that the Speakers have imposed on Members.
    Again, not black letter rules that the Speakers have 
imposed on Members to verify their votes. Together that 
practice has built up since 1973 to where the electronic vote 
is conclusively presumed infallible. There was only one glitch 
in all the time I can remember. It involved an anomaly where 
Rep. Roybal-Allard's vote mysteriously appeared in a vote. But 
she was clearly not there and she said so. As you probably 
learned, you can trace stations and cards all the way through a 
vote. They couldn't find that her card had ever been inserted, 
yet there was her name shown electronically. Bill Thomas and 
the House Administration Committee performed an informal 
investigation and came back with a technical explanation that 
the anomaly may have happened electronically for some very 
strange reason, that it would not happen again, and the House 
accepted that.
    Mr. Pence. Let me interrupt, if I can. You started out by 
responding that there have been controls and conducts in your 
statement that obviously the Chair ultimately under our system 
of government controls. I recognize that. But specifically, who 
conducts the vote under the rule? Who in terms of the history, 
the tradition, the express rules.
    Mr. Johnson. Tally Clerks at the direction of the Chair.
    Mr. Pence. The Tally Clerks at the direction of the Chair 
conduct the vote?
    Mr. Johnson. Yes.
    Mr. Pence. And they conduct the vote in the manner as we 
have heard in previous hearings and heard you describe?
    Mr. Johnson. Yes.
    Mr. Pence. By the assembling of the vote? You testified 
that that has traditionally been a nonpartisan process. Was 
there a time in history of the institution--I thought you 
seemed to imply that there wasn't a time where there was a 
Republican and a Democratic Tally Clerk, is that correct?
    Mr. Johnson. I think there have always been two Tally 
Clerks. More recently those old traditional patronage slots are 
dispersed based on merit and not necessarily on patronage. But 
even so, some of those old patronage Tally Clerks, I remember 
them, were very competent and very dedicated, and you wouldn't 
have known which was on whose patronage. I guess Mark and 
Lorraine can speak better to the pedigree. But as far as I 
know, the Tally Clerks were and continue to be appointed solely 
to do business of conducting a vote.
    Mr. Pence. So it wasn't on a patronage basis, but you are 
saying as far back as you can see there has always been a 
tradition of the Tally Clerk that conducts the vote operating 
in a nonpartisan manner.
    Mr. Johnson. Absolutely. And I say that not just as a 
casual observer, but having been the Parliamentarian or Deputy 
for many years, because there is a de facto relationship, 
talking about conduct, where the Parliamentarian, as the agent 
of the Chair working with the Tally Clerks, a further assurance 
that the vote is being conducted correctly. While the elected 
Clerks supervise, the Clerks of the House supervise the 
operations of the Tally Clerk's Office, yet there has always 
been a de facto tacit understanding, never contested, but 
always amicable, that when those Tally Clerks are on the 
rostrum and conducting a vote, they will be taking the advice 
and working with the parliamentarians because the 
parliamentarian's role derives as agent of the Chair.
    Mr. Pence. Clerk, did you want to speak to that broad 
question about who conducts the vote, what your understanding 
is as the chief Tally Clerk?
    Mr. O'Sullivan. Mr. Pence, at the direction of the Chair we 
would initiate a vote. I guess we would use the term. We would 
open up the electronic voting system for the vote on the 
question at hand. And so we were at the direction of the Chair. 
When do we initiate the vote and ultimately when to close it. 
So I guess in a sense we would be, like Charlie said, sort of 
an agent of the Chair to operate the system and be there to 
make sure that all Members are recorded.
    Mr. Pence. So if I may, Mr. O'Sullivan, at the direction of 
the Chair, you conduct----
    Mr. O'Sullivan. We would initiate the vote.
    Mr. Pence. You initiate the vote, but then you conduct the 
vote in a manner that--is it your understanding that the Chair 
is in roll call or the conduct of the vote or do you perceive 
that the conduct, the administration, the assembling of the 
vote is the purview of the Clerk under the rules and under the 
traditions?
    Mr. O'Sullivan. We have to make sure Members are recorded, 
that their votes are cast and recorded.
    Mr. Pence. I want to be sensitive to the balance of our 
panel, but let me ask you a couple of follow-up questions. 
Thank you. If I can. Mr. Johnson, again, you were talking about 
the electronic voting system during your previous testimony. 
And you said the assumption and procedure, the tradition, the 
custom, and then, I think, I have to look at the record, you 
made a professorial sidebar but then you came back to, I think 
your phrase was the Tally Clerks was the custom. Did I hear 
correctly in your testimony that this business of the tally 
clerks in their role in their assembling of the vote, that that 
is the core of the way that a vote has been conducted and 
essentially certified throughout the history of the 
institution?
    Mr. Johnson. Yes. That would reflect what I was trying to 
say. I did not mean to engage in semantics between ``control'' 
and ``conduct.'' As you will discover if you haven't already, I 
suppose there are always efforts to try to control timing of a 
vote from various parts of the Chamber. Those efforts are 
resisted properly by the Chair by use of the tally clerks' 
slips. So the term ``control'' in that sense has a more loaded 
meaning than I meant to convey.
    I am not trying to say that the Chair is susceptible to any 
kind of influence--which would diminish the accuracy of the 
vote.
    Mr. Pence. The last question was just specifically on the 
incident referred to Deschler Brown, volume 14 that took place 
in 1995. I think you testified that in that instance the Tally 
Clerk had handed a slip to the Chair and using the slip the 
Chair announced the result. And then the next day by unanimous 
consent that vote was vacated and the vote was retaken; is that 
correct?
    Mr. Johnson. Yes.
    Mr. Pence. The Chair had called the vote as a consequence 
of what we would call the ordinary operation of the Tally 
Clerk's roll?
    Mr. Johnson. As I recall, I was there, the moment that the 
Clerk handed off the tally slip at 213 to 214, those Members 
were just beginning to emerge separately down the side aisles 
into the well. The Clerk had processed every other vote up 
until that moment and was handing up the slip when those 
Members approached and the Chair finally announced the result 
and said the amendment is not agreed to. But the Chair, with 
the slip in his hand, which I think had been properly handed up 
at that moment, relied upon the slip, although the new Members 
were visible to the Chair.
    Mr. Pence. This really is the last question and I will 
yield back to the vice chairman.
    You made a very interesting statement about there had been 
a long period in the history of the institution where there had 
not been appeals to the ruling of the Chair, if I heard you 
correctly.
    Mr. Johnson. Yes.
    Mr. Pence. And that there has been in your words a 
proliferation of appeals. I certainly wouldn't ask the Chief 
Tally Clerk to respond to this. Why--why is this that 
important? I mean, many people looking in--frankly many Members 
on the floor will think, well, if you disagree with the Chair, 
we will appeal the ruling of the Chair. But I thought that you 
implied in your statement that there was something extremely 
important that reflected in that time and history when people 
did not appeal the rulings of the Chair, and I wondered if you 
might elaborate on that.
    Mr. Johnson. Mr. Pence, I was trying to make the point--
maybe it seems it is self-serving, but it shouldn't--that the 
appeals began to proliferate not because Members were in 
disagreement about the accuracy of the Chair's rulings, but 
rather to establish voting records--this has gone on with 
appeals from both sides--voting records on the merits of the 
underlying proposition, for example, on the consideration of an 
amendment which was not in order because the Rules Committee 
prohibited it.
    There have been several occasions where the Members have 
offered such an amendment anyway knowing that it was going to 
be ruled out of order. An appeal of the ruling of the Chair was 
a demonstration of the frustration with a special rule that 
might be governing that process. But the notion that appeals 
would be used to establish voting records which could then be 
perhaps spun in various circles, Members being for and against 
a proposition was misguided because, where the real vote was on 
the propriety of the Chair's ruling.
    When the appeals began to creep back in, when Bob Michel 
was minority leader, he would support the Chair. He would never 
support an appeal from his side if he thought the Chair's 
ruling was correct. I think the most institutionally minded 
Members, regardless of party, would support the Chair.
    There are precedents which say the Chair's count for a 
quorum for the yeas and nays of a division cannot be appealed. 
The Chair's statement of the numbers cannot be appealed 
directly. There is that new rule which you may be asking 
about--and I am not the expert on that--which says the Chair 
cannot hold a vote open solely to change the outcome.
    Mr. Pence. You are saying that what was included in the 
history of the institution was only utilized when there was an 
actual question about the tally of the vote or the 
interpretation of the rules, which has turned into a more 
substantive opportunity to record actual content, and that is a 
helpful clarification.
    I thank my colleagues and yield back.
    Mr. Davis. Thank you, Mr. Pence. Let me actually pick up, 
Mr. Johnson, on an observation that you made. You were in your 
exchanges with the chairman, Mr. Delahunt; you were drawing 
distinctions between custom, practices, precedents, and the 
formal textual rules of the House of Representatives. I don't 
want to dwell too much on the difference, but I want to make 
one observation and perhaps get you to respond to it.
    One of the issues whenever the House or a committee of the 
House examines the propriety of a presiding officer's actions 
is obviously whether or not there was a violation of the rules 
or whether perhaps there was a violation of custom and 
practice. And those of us who are lawyers are familiar with the 
idea of notice. And one of the governing concepts in the civil 
and criminal rule is that you are on notice as to whether your 
conduct is actionable or in violation.
    The strongest kinds of notice exist when someone violates a 
textual rule; I assume you agree with that. Something that is 
written down. If you are in a position of responsibility, you 
are often presumed to know the written rules, the written 
obligations. And it is possible for someone to take you through 
the text and then through a history of interpretation of the 
text.
    If the allegation is that a custom and practice was 
violated, it strikes me that might--by definition--raise some 
problems from a notice standpoint. I think you would probably 
agree with me that the body of custom, practice, precedent--
because it is not necessarily captured in one place because it 
is based on the tendencies and given subjective 
interpretations--it may be harder to flesh out a textual 
definition of the violation.
    We have a rule book in front of me right now. If I am 
alleging that somebody violated a rule, I can point to a clause 
and a page and a text and say that your actions don't comply 
with them. If I am saying that you violated a custom or 
practice or precedent, it strikes me that may be harder. Can 
you react to my observations?
    Mr. Johnson. I agree with all of those observations. It may 
be harder to respond if compelled to look for text to put 
something in context, but not necessarily impossible. That is 
why I tried to anecdotally suggest that if the Chair would want 
to know whether any Speaker had ever opined about the role of 
the tally clerks, one could do some research, as I did 
yesterday into Hinds' and Cannon's Index, volumes 9 through 11, 
under the category ``the yeas and nays.'' There was a little 
caption that led me to the actual precedent I just read from. 
It wasn't as immediate as looking for a black letter 
arrangement in the rule book.
    Now, the small print that follows this and other rules are 
citations either to the date volume and section citations to 
printed precedents or if those are not yet published in the 
precedents, they are citations to dates and to permanent record 
pages. If it is the Speaker's own ruling, his or her name, 
Speaker Pelosi or Speaker Hastert for example, will appear 
parenthetically next to the citation. And if any other Member, 
Speaker pro tem or Chairman of the Committee of the Whole, 
there will not be a citation to the Member in the Chair.
    But in any event, it is less frequent, I would dare say 
there are fewer people, certainly fewer Members and perhaps 
fewer staff who take the time and have the inclination to 
research some of these small still usage and tradition 
descriptions. It is not impossible, but I don't disagree with 
your characterization.
    Mr. Davis. The rules are much more available to Members and 
presiding officers than the customs and practices and 
precedents the House, as a general rule. I would assume you 
agree with that. In terms of being able to resort to one as 
opposed to the other.
    Mr. Johnson. Readily resort to, yes.
    Mr. Davis. And let me go back to the 1995 example, because 
I think it is instructive for obvious reasons and it is one 
that perhaps most of my colleagues were not familiar because 
some of us on this panel have been here fairly recently. Some 
Members were here in 1995--maybe perhaps one member of this 
panel was here in 1995.
    As I understand the scenario there was a Republican 
majority control in 1995, after the '94 elections. The 
presiding officer obviously was a Republican and as you 
describe it, there was a tally sheet 214 to 213, properly 
handed to the presiding officer. Apparently accurate reflection 
of the recorded vote. As the presiding officer reaches out to 
pick up the tally sheet, two Members of the minority, two 
Democratic Members, come forward apparently manifesting their 
intent to vote. Apparently their vote had not been recorded. It 
was not a matter of a change. Their vote had not been recorded. 
The presiding officer chose to not give them the courtesy of 
recognizing them. There was consternation on the floor. There 
was a motion to adjourn. Apparently some discussions back and 
forth between the leadership, and the next day the vote was set 
aside.
    As I understand responses to Mr. Delahunt, there was no 
privileged resolution. Did I understand that correctly? There 
was no privileged resolution around the dispute?
    Mr. Johnson. It did not seem necessary to either side of 
the leadership. The minority leader, as aggrieved as he was, 
used ``usual channels,'' you might say as a British 
description, to get it reversed by unanimous consent.
    Mr. Davis. Was there a textual rule that you understood to 
have precluded the presiding officer's actions on that day?
    Mr. Johnson. A textual rule? No, because he was announcing 
the result based on at least a momentary certification from the 
Clerk. So I don't think there was a textual rule. It was a 
matter again of the custom and tradition of the Chair being 
fair.
    Mr. Davis. And just to stop you in that point for a moment, 
you would certainly agree that in 1995, then as now, there was 
no textual rule referring to the courtesy of recognizing 
Members who wish to vote. None of that was covered by the text 
then and now?
    Mr. Johnson. Unless you point to the first clause of the 
code of conduct, which says that all Members, including the 
Chair, shall conduct themselves at all times in a manner 
reflecting creditably on the House and within ``the spirit and 
letter'' of the Rules. To me that reference to the spirit of 
the Rules speaks volumes, and it is part of the code of 
conduct. There is no precise rule on the case in point.
    Mr. Davis. Then and now, there is no provision of the rules 
that specifically states that if a Member manifests an intent 
to change a vote, there is no rule that really governs that 
scenario specifically?
    Mr. Johnson. Let me point further to consistent opening day 
announcements of policy by Speakers, going all the way back to 
Speakers Foley and Gingrich. Through the early nineties, votes 
were held open interminably because Members could signal 
through the cloakrooms that they were on their way and the 
Chair--a tradition grew that the Chair would honor Members who 
had asked that the vote be held open and the business of the 
House was being impacted adversely. Speaker Foley first 
reversed this policy in 1993.
    Then one of the first things on opening day in 1995 that 
Speaker Gingrich announced was that he was going to adhere to a 
strict 17-minute cutoff. They wanted to change Members' 
behavior. And you have to do it with some consequence in mind. 
You can't just urge them on opening day to be prompt. The 
consequence was that if you were not there, the Chair was going 
to have a tally slip and announce the result based on the vote 
at that moment in time. But it would be based on a slip.
    The Chair also said and has continued to say to this day, 
Madam Speaker's statement on January 5th, 2007 was that the 
Chair will never in effect disenfranchise a constituency by not 
allowing a Member in the well to vote or change his or her 
vote. So that consistent policy has electronic voting underlay, 
and so that is ``black letter'' as a printed announcement that 
has underlain every subsequent Congress since 1993, whether 
under a Republican or Democratic Speaker.
    Mr. Davis. Let me follow up on that before I move to my 
other questions. In your experiences in the House, from what 
you recall, how many instances were there privileged 
resolutions involving alleged violations of custom and practice 
and precedent?
    Mr. Johnson. I would say they have begun to proliferate. 
Perhaps one of the most memorable was the collateral challenge 
to the 3-hour vote prescription drug vote by questions of 
privilege from the Minority Leader on more than one occasion, 
even going over into the next Congress by alleging recurring 
violations of custom and practice. The questions of privilege--
you have to distinguish between what a question of privilege 
can do and cannot do. It can't be a substitute for a rules 
change. You can't have a question of privilege say that the 
rules should have said something when they did not.
    So questions of privilege have been ruled out of order when 
they are attempts to change the rules or their interpretation. 
Questions of privilege go to the dignity and integrity of 
proceedings. The question was sometimes what the resolved 
clause was trying to answer with regard to custom and 
tradition, and in the case of the 3-hour vote it was to 
conclude that a breach of custom had occurred and assert that 
it should never happen again.
    Mr. Davis. One quick question about that. How many 
instances do you recall privileged resolutions challenging 
action of a presiding officer in terms of calling a vote?
    Mr. Johnson. I don't know that I have seen any, other than 
in the aftermath of what happened August 2nd there were other 
such questions of privilege.
    Mr. Davis. I am asking prior to August 2nd.
    Mr. Johnson. I can furnish that for the record. One I can 
remember, Tip O'Neill was in the Chair, on whether a roll call 
vote--the television should cover the floor during a vote as 
unedited coverage. That was offered as a question of privilege.
    Mr. Davis. But with respect to the very narrow question, I 
take it your answer is that you don't have any recollection 
today of an instance where a presiding officer's calling of the 
vote was challenged?
    Mr. Johnson. No, because the avenue is there most of the 
time for an immediate confirmation.
    Mr. Davis. And just to clarify, a Member can stand up and 
move for reconsideration of the vote if they so choose?
    Mr. Johnson. Yes, in the full House.
    Mr. Davis. And you mentioned the other avenue, informal 
discussion between the leadership to move by unanimous consent 
to set the vote aside.
    Mr. Johnson. Yes.
    Mr. Davis. Let me turn to the rule that was added by the 
new majority in the House in January of this year. It is a one-
sentence addition to the clause 2(a), rule XX. This is a quote: 
A record vote by electronic device shall not be held open for 
the sole purpose of reversing the outcome of such vote.
    The language is interesting because frankly in my 
experience a lot of Members don't actually know the language. 
They know that we did something to address the lengthy vote 
delay regarding the 2003 Medicare bill. And by way of anecdote, 
even in discussing this provision, a number of Members will say 
that my understanding is that the vote can't be held open for 
purposes of influencing the vote. That is not written here. Not 
only is the word ``influencing'' not used, the word ``purpose'' 
is not used without the modifier ``sole.''
    A number of Members have said you cannot hold open the vote 
for the purpose of changing the vote. That is an inaccurate 
statement of the rule. Many formulations that I have heard 
anecdotally do not accurately state the rule.
    The rule says ``for the sole purpose of reversing the 
outcome.'' Let me raise two scenarios to both of you and get 
reaction. By definition ``sole purpose'' seeks to inquire as to 
the presiding officer's intent. And as all of us know there can 
be multiple intents behind action. Someone could decide to 
leave a vote open with one possible intent being influencing 
the outcome or reversing the outcome. One could have another 
intent of leaving a vote open to allow Members to think about 
changing their votes or to reconsider on both sides.
    Obviously both sides are sitting there capable of being 
lobbied by the Members and capable of changing and a Member 
could leave a vote open for those two reasons--or the presiding 
officer could leave a vote open for those two reasons and have 
a third in mind. Perhaps there is a Member who is not here and 
we don't know where that Member is and that Member could be en 
route. That Member could be in Maryland or in the tunnels.
    A Member--a presiding officer could have a fourth instinct, 
uncertain whether or not there are Members who are attempting 
to change their vote, could see motion in the well, not sure if 
people are moving around or if they are moving towards the well 
to change their votes.
    All of that to say, the rules seem to focus very clearly on 
exclusivity of purpose and they preclude and exclusively forbid 
a particular kind of purpose. But by definition it seems to me 
that the rules contemplate that a presiding officer could be 
motivated by multiple factors. Let me get you to respond to 
that. Does that make sense to you?
    Mr. Johnson. Yes, it is the mens rea of the Chair that is 
the test of whether this rule is violated. Who rules on what? 
The Chair, him or herself. The Chair presumably knows its 
intent. Others can claim to know because they have seen 
pressures brought to bear externally, but it is the Chair's 
intent as discerned by the Chair at that moment in time as the 
vote is being kept open. I think that there have been several 
parliamentary inquiries in this Congress under this rule during 
the pendency of a vote, to which in two or three cases that I 
have seen the Chair has responded to the parliamentary inquiry 
that either the Tally Clerk has not yet finished processing 
changes or the Chair is aware that other Members are on their 
way to vote.
    Those are statements of public record showing that the 
Chair can, and does, have other considerations in mind, more 
than reversing the result.
    Mr. Davis. And as you understand the rules, Mr. Johnson, 
there is no provision of the rule which requires the Chair to 
declare or the presiding officer to declare his reason for 
delaying the vote. There is no provision that anywhere requires 
a statement of intent on the part of the Chair?
    Mr. Johnson. To the contrary. I think that would be 
inappropriate for the Chair.
    Mr. Davis. And certainly if there is no custom, practice or 
rule to the contrary, it would be enormously unusual.
    Mr. Johnson. Let me point out, Mr. Davis, as the Chairman 
said, I am under contract as a consultant with the 
Parliamentarian to work on the precedents. But I am very close 
to the Parliamentarian and his staff and I honor them and they 
are dear friends, and I would do everything appropriate to tell 
people, when asked, that they are doing the right thing in the 
interpretation of this rule and they should be supported in 
their advice.
    But the question of how you challenge an alleged point of 
order on this rule is very difficult because it could come 
during a vote which is in progress. And if the Chair overrules 
the point of order because that was not his sole intent and 
some Member appeals the ruling of the Chair, the system is 
incapable, as I understand it, of allowing another recorded 
vote to be conducted within a pending vote. So the system would 
not allow a dispositive vote on the appeal from the Chair's 
ruling if it ever comes to that. And hopefully it won't.
    So when, if at all, is a point of order cognizable? Is it 
immediately following the announcement of the result? I think 
it does constitute a question of order from which an appeal can 
be taken. Now, there is some----
    Mr. Davis. Let me stop you one second. I want to move and 
give other Members a chance to ask questions. Let me pose one 
question before I go to Mr. LaTourette. It deals again with the 
text of clause 2(a) of rule XX. As I said earlier, a number of 
Members mistakenly believe that it says changing the outcome, 
influencing the outcome, altering the outcome. It says 
``reversing the outcome.''
    So let me give you a scenario as my last question and you 
can react to it. I could imagine a vote being kept open, let's 
say the number is 214 to 213. That is the number on the board. 
That is the number as far as the presiding officer knows. I 
could imagine a scenario where the presiding officer leaves 
that vote open for an extended period of time. There is an 
outcome that is on the board that has not yet been rendered 
final. One side is leading 214 to 213. The presiding officer 
keeps the vote open. I can certainly imagine that there might 
be a challenge in that instance on the theory that the numbers 
are up, there is no one attempting to change their vote. Mr. 
Presiding Officer, you are keeping the vote open simply for the 
purpose of reversing the outcome. That is one scenario. That 
kind of scenario seems to be expressly covered by this rule. 
You can't reverse something which has not yet occurred.
    There is another scenario where the vote is tied, that 
there is no outcome one way or the other in either situation.
    Mr. Johnson. There is an outcome.
    Mr. Davis. That is right. The motion does not carry if it 
is tied. But there is also a tradition and custom, as I 
understand it, of giving Members a chance--what I understand, 
the preference is for there to be a margin one way or another. 
You can react to that. I understand that the rules don't 
require that, but I want to get your reaction as to whether or 
not that is the custom.
    If for whatever reason the vote is tied, and that seems to 
be a different scenario than if there is a one-vote margin one 
way or another. Can you comment on that?
    Mr. Johnson. I believe I can. Because the rules say, in the 
case of a tie, the question shall be lost. So that is a result 
dictated by black letter rule. And I don't think there is a 
custom or tradition that says, well, let's just wait and see if 
someone changes so it is not a tie because it is more decisive. 
I don't think--I have never advised an occupant of the Chair to 
wait and see if someone will change from a tie.
    Mr. Davis. But at 213 to 213 that would mean hypothetically 
the motion to recommit would not carry.
    Mr. Johnson. Yes.
    Mr. Davis. Therefore, someone who keeps the vote open to 
reverse the outcome, you would have to create a scenario that 
it was a motion to carry. 213 to 213, the motion fails.
    Mr. Johnson. A reversal is the key, you are right.
    Mr. Davis. 213 to 213, the outcome would be that the motion 
fails. To reverse the outcome would mean that the motion would 
have to carry. Correct?
    Mr. Johnson. That is correct.
    Mr. Davis. And the other scenario of it being 214 to 213 
the vote being kept open for the purpose of someone flipping 
votes and turning it the other way?
    Mr. Johnson. Or someone else coming in. In either scenario 
you do not have 435 Members voting. On November 21st, 2003, all 
Members were there.
    Mr. Davis. Let me go to Mr. LaTourette.
    Mr. LaTourette. Thank you very much, Mr. Davis, and thank 
you, Mr. Johnson, for your testimony. I have three lines of 
inquiry but before I get to those three lines I want to follow 
up on some items that Mr. Davis mentioned in his questioning. 
Specifically, Speaker Pelosi at the beginning of this Congress, 
I think that is what you are referring to, the relevant part of 
her announcement, was that: Members will be given a reasonable 
amount of time to accurately record their votes. No occupant of 
the Chair will prevent a Member who is in the well before the 
announcement a chance to cast his or her vote.
    That is what you are referring to?
    Mr. Johnson. Yes.
    Mr. LaTourette. And again going back to the unfortunate 
event of 1995 that was included in the Speaker Gingrich's 
opening statement as well.
    Mr. Johnson. Yes.
    Mr. LaTourette. So it could be argued that what the then 
occupant of the Chair did was violate the Speaker's opening 
statement by not allowing those two Members of the minority who 
appeared in the Chamber and were trying to vote from casting 
their vote.
    Mr. Chairman, I ask unanimous consent that Speaker Pelosi's 
opening day announcement be included in the record.
    Mr. Davis. No objection.
    [The Speaker's opening day announcement may be found in the 
Appendix.]
    Mr. Johnson. One little nuance. The Members were 
approaching the well, they were in the Chamber. And the use of 
the word ``well'' means that they are in the Chair's immediate 
view as perhaps opposed to coming down an aisle.
    Mr. LaTourette. In my mind, as a Member, that is a 
distinction without a difference. You have people trying to 
vote.
    Mr. Johnson. I don't dispute that.
    Mr. LaTourette. And the other one on the remedy for a 
violation of rule XX. If a point of order is made during the 
course of the roll call vote, there is no opportunity to appeal 
the ruling of the Chair. Isn't the answer because it is 
hortatory and the remedy is a question of privilege?
    Mr. Johnson. That is a precise question the Parliamentarian 
is looking at right now. Another argument might be that it is 
subject to a point of order immediately following the vote, 
after which if the Chair is overruled on appeal, that could 
vitiate the vote. It does not necessarily change the result 
back to what it might otherwise have been. I don't think anyone 
would suggest that if the Chair is overruled in his decision 
that he wasn't holding the vote up solely to reverse the result 
and the House disagreed, that that would immediately change the 
result. It may vitiate the vote by operation of the rule.
    That is a matter of new interpretation. But the question of 
privilege could be another approach to it.
    Mr. LaTourette. And I would have to say, having this new 
rule in place, Mr. Davis's questions really point to the fact 
that it is a rule that does not mean anything because how are 
we ever going to call on the person in the Chair unless he or 
she admitted it? It is a rule change that leaves me puzzled.
    Mr. Johnson. It does not mean anything unless and until the 
House, if permitted, reverses the Chair. Then it may mean 
something.
    Mr. LaTourette. This isn't a question, but a statement--but 
you almost have to have the occupant of the Chair saying yes, I 
did it.
    Mr. Johnson. Yes.
    Mr. LaTourette. I want to talk to you about the role of the 
presiding officer. On page 804, in reference to the Speaker pro 
tem's obligation on the count of the division.
    I think this applies to all. One of the suppositions on 
which parliamentary law is founded is that the Speaker will not 
betray his duty to make an honest count of the division.
    Is that reference to your letter of May 20, 2004? On page 
2, the first full paragraph you write: ``I believe that the 
long-standing tradition and role of the Chair in rendering 
impartial and proper decisions has been maintained and 
appreciated despite the switch in party majorities and despite 
occasional efforts to appeal various rulings. It has been 
reassuring when bipartisan majorities understand and support 
the rulings of the Chair solely on the basis of their propriety 
as nonpartisan institutional standards with precedential 
significance.''
    And I think that is the paragraph you were discussing 
earlier and I would ask unanimous consent that that be made 
part of the record as well.
    Mr. Davis. Without objection.
    [The letter from Mr. Johnson, Congressional Record, May 20, 
2004, may be found in the Appendix.]
    Mr. LaTourette. We all know the Speaker of the House is 
elected by the majority party. The occupants of the Chair are 
representatives of the Speaker, appointed by the Speaker. And 
so for the past 12 years the occupants of the Chair have all 
been Republicans and since the beginning of this Congress they 
have all been Members of the Democratic Party.
    Could you describe from an institutional standpoint, what 
is the role of the presiding officer? Is he or she a partisan? 
Is he or she a Democrat in the way they conduct business? Are 
they combatants in debate or are they above the fray?
    Mr. Johnson. They are above the fray. They should be.
    They are not combatants. They don't participate in debate.
    They are not supposed to.
    Regardless of the partisanship of the person appointed--we 
have always been very insistent with the Speaker's staff when 
asked, regardless of who the Speaker happens to be, the staff 
requests from all Members asked to preside that they adhere to 
certain guidelines. Whether the Member is on the committee 
handling the bill; whether the Member is competent in the 
Chair. That is not information to be published, but the fact 
that so-and-so is in the Chair and so-and-so is not might be an 
indication that the Speaker's staff believe that our advice 
about who is being called on to preside should be heeded.
    That is not always the case. on occasion there are Members 
who appear and disappear into and out of the Chair without 
advice from the Parliamentarian. The important point is once 
that Member is in the Chair, that an immediate conversation 
becomes appropriate between the Parliamentarian and the 
presiding officer, whether it is someone brand new or someone 
who has partisan stripes or whatever, to try to assure fairness 
and anticipate problems.
    So that if the Member feels that he or she cannot be 
nonpartisan or detached going forward, anticipation in this 
role is absolutely essential. You have to be able to look 
forward to see what might be happening on the particular issue 
and whether the person in the Chair can be impartial.
    I have asked people, I was not embarrassed to ask some 
Members in the Chair, ``Do you feel you are appropriately in 
the Chair at this point?'' And usually they say yes, but 
sometimes they will not even be aware that there is a potential 
perceived conflict, much less an actual conflict.
    And that conversation is in confidence. On your walkthrough 
the other day you probably saw the mute button.
    Did John demonstrate? The button along the edge of the 
rostrum allows the Chair and the Parliamentarian to have a 
conversation unheard by the two audio systems, in-house or 
public. The proper utilization of that button, the light will 
show if the microphone is on, and the ability to have that 
conversation is essential.
    I have to believe that occupants of the Chair should be 
advised if they are not inclined to be above the fray.
    Mr. LaTourette. Let me get to something else you talked 
about in preparation of tally slips and some observations made 
by the Speaker in 1918. The staff pointed out during the 
walkthrough the press and public was not with us, so we have 
purloined some tally slips and I just wanted to have a tally 
slip displayed as I ask you some questions.
    Is that something you recognize?
    Mr. Johnson. Yes.
    Mr. LaTourette. That is the tally slip that is currently in 
use by the House of Representatives.
    Mr. O'Sullivan. We refer to that--we would call that a page 
from a yea-nay pad.
    Mr. Johnson. Slip.
    Mr. O'Sullivan. When we refer to the tally slip, it is the 
preparation for the call of the roll. It is another document 
that we use traditionally for the election of the Speaker. But 
if we have to call the roll we would use the tally sheet.
    Mr. LaTourette. What do you call this? A slip?
    Mr. O'Sullivan. I always call that a slip from the yea-nay 
pad. If it is tally sheets people are familiar with, that is 
fine.
    Mr. LaTourette. So whatever it is called, this is the 
document that the standing Tally Clerk prepares at the 
conclusion of the vote?
    Mr. O'Sullivan. That is correct.
    Mr. LaTourette. And Charlie--Mr. Johnson, during our 
walkthrough the other day we had the opportunity to speak with 
the current Parliamentarian of the House, Mr. Sullivan, and he 
indicated on page 43 of the transcript, not in response to any 
question, he said, ``May I say something about the production 
of this slip? This is probably the most important quality 
assurance process step in the process because when I get that 
slip I know that the numbers that are written on that slip came 
from a voting system that was closed to further input at the 
time those numbers were written down.''
    I have two questions: One, do you agree with Mr. Sullivan's 
observation about the importance of the slip?
    Mr. Johnson. Yes.
    Mr. LaTourette. And what is your understanding of the 
significance of that slip in a vote?
    Mr. Johnson. It is a de facto certification from the Tally 
Clerk, from the entire Clerk's operation, transmitted to the 
Chair, that there are no more changes being processed into the 
system. As far as that Clerk is certifying at that moment--and 
those moments change, that the slip handed up is the result as 
the system has absorbed it with voting stations closed and no 
other cards being processed at that moment.
    Mr. LaTourette. So it is the Clerk's certification pursuant 
to rule XX to the Chair through to the Parliamentarian that is 
the accurate count on the vote?
    Mr. Johnson. Yes.
    Mr. LaTourette. In your 40 years as Parliamentarian or in 
the Parliamentarian's office, including the 1995 episode that 
we have talked about, are you aware of any recorded vote 
conducted in the House of Representatives where a slip or a 
tally sheet has not been transmitted by the Clerk to the Chair?
    Mr. Johnson. No. There have been some belated simultaneous 
transfers as the Chair is reading, and this has happened--the 
Clerk is handing up the slip, the Parliamentarian is handing it 
to the Chair, perhaps as the Chair may be reading from the 
board, because the board says ``final'' on it. And if there is 
any discrepancy--Mark, you will have to correct me--where if 
the Chair is reading numbers that for whatever reason don't 
coincide with what is on the slip, the Parliamentarian can use 
the mute button and say this is not being corroborated by the 
slip.
    Mr. LaTourette. And let me ask you that. If there were an 
instance where a slip is never transmitted by the Clerk through 
the Parliamentarian's chair, how could the Chair call the vote?
    Mr. Johnson. How could in fact or how could properly?
    Mr. LaTourette. Properly.
    Mr. Johnson. Well, I would urge that there would be no 
other proper alternative to the announcement of the numbers and 
the announcement of the result. And I think--I hope John made 
it clear that it is the announcement of the procedural result, 
not necessarily the characterization as final on the board--and 
not necessarily the recitation of numbers. I can't count the 
number of times when the Chair has read numbers from a slip 
only to have the Tally Clerk hand up another slip. Those are 
the up-to-the-moment numbers and that can happen several times 
in one vote.
    But I can't imagine a way, because the machine -- unless 
the machine is inoperable somehow at the last second, the Tally 
Clerk reports an inoperability, I can't imagine the Chair's 
doing anything other than following a certification from the 
Clerk.
    Mr. Davis. If you would yield for a moment let me inform 
the panelists and the Members there has been one vote that has 
been called on a motion to adjourn. Obviously we are at the 
very beginning of a 15-warning and I expect the vote to be on 
at least 20 minutes or so. I would propose that Mr. LaTourette, 
if you are near the end of your questions, that we go to you, 
that we stop so that we can cast this vote, adjourn for about 
5, 10 minutes or so and reconvene.
    Mr. LaTourette. I appreciate that. I have one more line of 
questioning. I hope I can complete it in 10 minutes.
    The issue of pressure on the occupant of the Chair. And 
during your testimony you indicated that--the note that I made 
is that it is not uncommon for influence within or without the 
Chamber to be attempted to be placed on the occupants of the 
Chair. And I wrote down you said ``properly rejected.'' What do 
you mean by that?
    Mr. Johnson. I mean there is a distinction between when the 
Chair receives a signal from leadership, it is usually a 
signal, either verbal or some other way communicated from the 
majority leadership. The Chair has obviously been appointed by 
the majority, that as they view their monitor, from their 
perspective, if the Chair can close the vote, he should. Not 
that he must. Not that he is going to be excoriated by the 
Speaker if he does not. From the leadership's perspective they 
would prefer that the vote either stay open or close. There are 
signals that have been used over time--that suggest to the 
Chair what the leadership would like to see consistent with a 
proper call of the result.
    Mr. LaTourette. What do you mean--you indicated that that 
is not uncommon. I have seen it, we have all seen it. What did 
you mean by the phrase ``properly rejected'' and what I took 
you to mean----
    Mr. Johnson. It means if the Chair knew that the vote was 
not fully processed, he would properly reject the importuning 
of the leadership to shut the vote down.
    Mr. LaTourette. And on the issue of pressure, Mr. Davis in 
his question talked about the difference between black letter 
laws and the rules and precedent and the notion--I don't know 
if all of us are lawyers--that there is notice. You can't be 
punished for conduct that you did not know was wrong.
    When there is a person in the Chair, what interaction 
between the person in the Chair and the Parliamentarian in 
terms of advising the occupant of the Chair that they are 
comporting with the rules, customs, and traditions of the 
House? Is there one?
    Mr. Johnson. Yes, and I think I alluded to it earlier. 
Preferably it is a constant interaction. It is a confidential 
interaction. And it is an anticipatory interaction. Because the 
Parliamentarian wants the Chair to be doing the right thing and 
being perceived to be doing the right thing. The conversation 
is ongoing, and the conversation can begin before the person is 
appointed. The best occupants of the Chair, I think if they are 
doing it for the first or second time, come for advice in 
advance, for a private tutorial if you will.
    Or new Members may be asked to preside during Special 
Orders during which time any of the Parliamentarians may talk 
to those Members and find out if they are interested in 
returning to the Chair in a more difficult role in some future 
time, and to answer any and all questions. Not to be a 
lecturer, but to answer any and all questions.
    Mr. LaTourette. And then my last question, you indicated 
during the 1995 vote that we have been discussing. Were you the 
Parliamentarian on the floor at that moment in time?
    Mr. Johnson. I think so.
    Mr. LaTourette. And did you offer advice to the occupant of 
the Chair that he was engaged in behavior that was, if not a 
violation of the Speaker's announcement on opening day, 
certainly----
    Mr. Johnson. It happened so quickly during that 
announcement that I believe I did say there are Members that 
haven't been recorded. I did not hit the button and say to the 
Chair you are wrong, doing the wrong thing, you are going to be 
criticized. I did not have that much presence of mind. I wish I 
had.
    Mr. LaTourette. Would that have been an appropriate role 
for the Parliamentarian?
    Mr. Johnson. I think so.
    Mr. Davis. What we will do is temporarily adjourn and 
reconvene, and it is the Chair's understanding that there is 
only one vote and the Members can quickly cast it and return so 
that Ms. Herseth-Sandlin and Mr. Hulshof have a chance to 
question. The hearing is adjourned for 10 minutes.
    [Recess.]
    Mr. Davis. The Chair reconvenes the Select Committee. I 
recognize Ms. Herseth-Sandlin.
    Ms. Herseth-Sandlin. Thank you, Mr. Chairman. And Mr. 
Johnson, thank you. It was 24 days after you retired that I 
arrived to the Congress, and it has been fascinating to listen 
to your responses to the Members this morning. We have learned 
an awful lot. I think my colleagues have, and I look forward to 
sharing information with others of my colleagues.
    I do want to pick up on the line of questioning that Mr. 
LaTourette was pursuing as it relates to the interaction 
between the Parliamentarians and the presiding officer as time 
is drawing down. And it looks as though in terms of the steps 
prior to calling the vote.
    Could you talk a little bit about--you had mentioned that 
there had been times that the Chair is starting to read or has 
read the numbers and then another tally slip is presented. Can 
you talk about what leads to multiple tally slips being 
prepared and presented to a presiding officer?
    Mr. Johnson. Yes. As the vote winds down, there are cue 
cards available. Some Chairs really read them, others have 
enough experience or at least think they know what is on the 
cards. The Chair first asks are there any other Members who 
wish to be recorded. You have all experienced that. And only 
after that does the Chair inquire are there any other Members 
who wish to change their votes? That question from the Chair is 
often the signal to the Tally Clerk potentially to shut down 
the voting stations. When the Chair asks for changes.
    Mr. O'Sullivan. In practice, though now it is a cue, but we 
don't immediately--if other Members are appearing to vote we 
don't immediately close the voting stations.
    Mr. Johnson. That is right. If the Chair has asked that and 
knowing that there are going to be a number of Members voting, 
clearly it is a signal for the stations to be kept open even 
after the Chair's first inquiry. But once the slip is handed up 
and the Chair begins to read from it, many times the Tally 
Clerk will say to the Parliamentarian, ``here is another slip, 
because someone else has just come in.'' The Tally Clerk won't 
have given a slip initially until he feels that everyone is in 
the system that they know about. Either electronically or by 
voting cards that have been submitted at the rostrum, the red 
or green or amber cards which are either submitted because a 
Member may have forgotten his electronic voting card or because 
it is a vote change within the last 5 minutes of a 15-minute 
vote.
    And until the Tally Clerk correctly compiles a list of 
changes, because changes are always announced, as I recall, by 
the Reading Clerk, who is given the list of changes by the 
Tally Clerk and read just prior to the announcement. That list 
of changes obviously goes into the Record and it is considered 
important contemporaneously because it shows leadership and 
other Members who are changing. And changes made electronically 
within the first 10 minutes of a vote are not going to be on 
that list. Or if it is a 5-minute vote and a Member has changed 
their vote electronically that Member will not be on that list. 
But if a Member submits a card at the well, he or she will be 
on the list. And it is appropriate I think for changes to be 
shown.
    But even so, I don't think the Tally Clerk prematurely 
hands a slip up knowing there is still some processing to enter 
into the system. I don't ever recall that. But at certain 
moments where the Tally Clerk feels that he has cleared all the 
cards that are in his possession and marked them and preserved 
them, then a slip comes up. And very often Members will then 
appear to change votes or to vote initially. They may have been 
in the Chamber but just choosing not to vote until they are 
certain of their vote. And so all of those reasons perhaps 
account for new slips coming up. Is that responsive?
    Ms. Herseth-Sandlin. Yes, and so perhaps both you, Mr. 
Johnson and Mr. O'Sullivan can answer the next question, we 
talked about a proliferation of things here in the last few 
years. Have you seen incidences in which Members are going to 
the well to change their votes in far more frequency over the 
last few years than previously or has it always been the case 
that there are a lot of last minute changes of votes in the 
well?
    Mr. O'Sullivan. Ms. Herseth, that is a little bit difficult 
to answer. It depends on the roll call and the issue at hand. 
In general, I think the number of Members voting in the well 
have come down a little bit.
    In 1995, there was a change in Congress from the Democrats 
to the Republicans. In the beginning of that Congress for some 
reason we had an incredible number of well votes the first few 
months. And to the point where it was being questioned, was 
this sort of coordinated? We were having 40, 50 well votes per 
vote.
    Ms. Herseth-Sandlin. Let me clarify. I am asking 
specifically--and you mentioned it is difficult to answer, it 
depends on the vote. Let me clarify, have you seen within the 
last couple of years increased incidences of Members who have 
voted on the EVS or even in the well who change their vote in 
the final moments or even after time has run out when voting on 
a motion to recommit?
    Mr. O'Sullivan. I would--probably say no. But with this 
caveat. Usually if a vote is going to create well votes at the 
end, it would be that type of motion, a motion to recommit. If 
we were going to have a vote that would cause a lot of well 
voting, it would probably be a motion to recommit or a motion 
where you get into sort of a double negative. If you vote yes, 
you are against it or if you vote no you are for it. One of 
those things.
    Ms. Herseth-Sandlin. And is it in those instances where 
there may be multiple tally sheets that are prepared and 
submitted but ripped up?
    Mr. O'Sullivan. Slips, yes, could be.
    Ms. Herseth-Sandlin. And would it be your advice, Mr. 
Johnson, as the Parliamentarian--you said earlier that 
anticipation is the key and conversations between the 
Parliamentarian and the presiding officer--would it be your 
opinion that there should be a conversation between the 
presiding officer and the Parliamentarian in anticipating an 
incidence of changing votes in the final moments or after time 
has run out on a particular motion whether it is a motion to 
recommit or other type of----
    Mr. Johnson. I would urge that conversation if the Chair is 
uncertain or hesitant to take an initiative. But hopefully, and 
I can say from experience, the best occupants of the Chair are 
very accustomed to viewing the scenario directly in front of 
them, with the Tally Clerk only a few feet away and they know 
that it is the Tally Clerk standing in the well who is talking 
to the Tally Clerk at the machine and then filling out the 
slip. The Chair sees that and the best occupants of the Chair 
don't need the Parliamentarian to tell them to wait for the 
slip or wait for another slip because they will see and react 
to the dynamic of that situation. Or at least they see Members 
coming into the well, or if they see a dynamic where they think 
that the result may not be final on that slip, they will look 
potentially for another slip.
    But that is not to say that there aren't occasions and 
there probably should have been more occasions where the 
Parliamentarian's conversation with the Chair would have been 
helpful, if not necessary.
    Ms. Herseth-Sandlin. And you had said in response to 
questions of Mr. LaTourette that while you couldn't recall 
another situation where the presiding officer called the vote 
before the certification of the tally slip, you don't recall 
these simultaneous transfers where the Chair was reading from 
the board because the board had ``final'' on it.
    Does the Parliamentarian advise the presiding officer that 
he or she should not refer to the board at any point in the 
proceeding, but wait until the tally slip is presented?
    Mr. Johnson. Yes. Yes, I would say, having been through so 
many of those votes, there are times when you are either 
distracted or not as attentive as you should be to that precise 
moment. But the most important thing for the Parliamentarian, 
talking about acting with anticipation, is to prioritize what 
is most important at that time. Because there are many times 
where there may be a potential for distraction as Members and 
staff approach the Chair and the Parliamentarian is trying to 
keep them at a distance. At that moment the priority is to pay 
attention and to the advise the Chair.
    There may be a glance at the board and at the slip. If they 
don't jibe and if the Chair happens to be reading from the 
board and you are handing him up a slip that does not jibe with 
it, you would stop him. But almost always what he is saying 
from off the board, assuming he is not reading from the slip, 
does jibe with what he is being given in his hands.
    So to talk about the contemporaneousness of that transfer, 
it is usually not a problem. But it can potentially be a 
problem. So when there is any doubt if it is brought to the 
Parliamentarian's attention or the Tally Clerk's attention or 
to the Chair's attention, they could stop and indicate to 
everyone that they are relying solely on the slip.
    Ms. Herseth-Sandlin. So if a presiding officer began to 
call a vote reading numbers from the electronic board and the 
Parliamentarian did not yet have a tally slip in hand, you 
would hit the mute button and advise the presiding officer that 
a tally slip had not been prepared, ``final'' did not occur yet 
on the board?
    Mr. Johnson. That would be the proper role of the 
Parliamentarian. Whether it is done in all cases, you know, 
there are so many mitigating factors and they are not excuses 
but that should be the role of the Parliamentarian.
    Ms. Herseth-Sandlin. And then Mr. O'Sullivan, how again is 
it, I know we talked some about this in the walkthrough, but 
given that Mr. Johnson did make reference specifically that 
there had been simultaneous transfers and the presiding officer 
may be looking up at the board and seeing ``final.'' How is it, 
again, that the seated Tally Clerk makes the decision to put 
``final''? Is it because a tally slip has been prepared?
    Mr. O'Sullivan. Ms. Herseth, no. The word ``final'' should 
appear after the presiding officer has announced the tally and 
has disposed of the issue at hand. Either the motion to 
reconsider is laid on the table or if there is no motion to 
reconsider, in the case of an amendment, the amendment is not 
agreed to and they move on. At that point the word ``final'' 
normally appears.
    Now, there have been instances where, as I think John 
Sullivan mentioned, you get to that final period where a Member 
presents himself in the well, and the presiding officer many 
times will allow that Member to be recorded. So then at that 
point the word ``final'' may have appeared because the Tally 
Clerk hit the key to begin to exit the system. You hit final 
and exit--and then you release the displays, by which, in 
effect, you exit the system. And if you hit the word ``final'' 
you still can input votes. That is sort of the situation 
sometimes.
    Ms. Herseth-Sandlin. Which occurred on roll call 814, 
because I believe that there were still cards that the seated 
Tally Clerk was entering, processing into the system after 
``final'' appeared.
    Mr. O'Sullivan. I wasn't there that evening, so I don't 
want to speak for the person who was there.
    Ms. Herseth-Sandlin. And we will revisit, but you have 
explained how that could occur.
    Mr. O'Sullivan. It is possible.
    May I say something? I would say it is rare. It is really--
it happens rarely, but it can happen where the word ``final'' 
appears and votes are still entered. But the normal 98, 99 
percent of the time, even higher, is to wait until the final 
disposition of the question and then the word ``final'' and 
then release the displays.
    Ms. Herseth-Sandlin. Mr. Johnson, do you recall what year 
rule XIX, section 2 on motions following the amendment stage of 
the motion to recommit was added to the rules?
    Mr. Johnson. The guarantee--I am sorry; would you repeat 
that question?
    Ms. Herseth-Sandlin. In rule XIX, motions following the 
amendment stage, motion to recommit, do you recall what year a 
motion to recommit, that section was added to the written 
rules?
    Mr. Johnson. Well, an iteration of the current rule became 
a rule as of 1909.\4\ That was the Joe Cannon revolt.\5\ That 
was a huge issue because the Speaker was not only Speaker but 
he was Chairman of the Rules Committee, which had been 
reporting rules denying recommittal motions \6\ and going right 
to final passage, probably as large a watershed moment as the 
House has faced in its procedural history.
---------------------------------------------------------------------------
    \4\ The rule was adopted in 1880, then an iteration of the current 
rule restricting the authority of the Rules Committee became a rule as 
of 1909.
    \5\ The revolt against Speaker Joe Cannon.
    \6\ To the minority.
---------------------------------------------------------------------------
    Until that time in 1909, when motions to recommit were 
being offered, they were being offered by the chairman of the 
committee to make so-called sweetheart corrections in order to 
deny the minority opposition the right to offer a substantive 
motion.
    So after the amendment was adopted in 1909, it stood until 
1995, when the current rule was put in place. That was the 
result of a series of motions to recommit which were restricted 
by the Rules Committee in the late 80's and early 90's. The 
Rules Committee, relying upon a 1934 ruling,\7\ even in the 
face of the 1909 rule that guaranteed one motion to recommit, 
rule did not say ``which \8\ shall always be allowed to contain 
proper instructions.'' And so Speaker Foley, I think correctly, 
but certainly in difficult rulings, which were appealed, which 
are all listed in here,\9\ ruled that it was within the 
authority of the Rules Committee to report a rule that limited, 
as long as it did not totally deny a straight motion to 
recommit. Those eight rulings were based on a 1934 precedent 
which was the only precedent in all those years. But it was a 
proper basis, even though there were appeals.\10\
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    \7\ By Speaker Rainey
    \8\ ``Which, if offered by the Minority Leader or his designee..''
    \9\ Section 859 of the House Manual.
    \10\ They were unsuccessful appeals which set further precedent.
---------------------------------------------------------------------------
    Appeals have proliferated. 1990-1994 was a watershed period 
in the incidence of appeals. But there was a real dispute, the 
Republican minority felt that they were aggrieved, that the 
Rules Committee was shutting down proper motions to recommit.
    So the Hamilton-Dreier Committee on Congressional Reform in 
its 1993-94 bipartisan recommendation, and then the Republican 
rules package in January of 1995 presented the current rule 
that focused on the minority leader or his designee that they 
could not be denied instructions in a motion to recommit if 
they were proper. That is the current form of the rule, I 
believe.
    Ms. Herseth-Sandlin. Thank you. Back to the tally slip. 
Some of what we have heard about the circumstances regarding 
roll call 814 is that no tally slip was ever prepared. Can you 
recall any instance, Mr. O'Sullivan, in which a tally slip was 
never prepared for a roll call vote?
    Mr. O'Sullivan. No. Like Charlie said, there may have been 
a situation where a Member jumped the gun and read the board as 
we were sending up a tally slip. It was just proceeded to 
finalize, close the vote on that basis. But off the top of my 
head I cannot recall a tally being announced without a slip.
    Ms. Herseth-Sandlin. But is it your understanding that the 
circumstances regarding roll call 814, even after there was an 
initial call by the Chair almost simultaneous with the 
``final'' appearing on the board, and then Members who were in 
the well changing votes that continued to be entered after 
``final'' was there, is it your understanding that even after 
all of that there was no tally slip----
    Mr. O'Sullivan. That is right. That is right.
    Ms. Herseth-Sandlin. One final question, Mr. Johnson. After 
we integrated the electronic voting system in 1974 and the roll 
of the Tally Clerks, as you stated at the outset of today's 
hearing, was never perceived to change once the electronic 
voting system was adopted. And I think you joined the Clerk's 
office, Mr. O'Sullivan, 4 years later in 1978.
    Mr. O'Sullivan. Right.
    Ms. Herseth-Sandlin. Do either of you ever recall any 
discussions, either within the Clerk's office or in the 
Parliamentarian's office, or in consultation with prior 
Speakers, or Speaker Pelosi as she assumed the Speakership this 
year--again going back to the issue of the infallibility of the 
electronic voting system, but recognizing the quality assurance 
Mr. Sullivan pointed out in our hearing last week--has there 
ever been a discussion about changing the manner in which the 
Tally Clerks or their responsibilities and the need for a tally 
slip or addressing the situation of multiple tally slips in 
light of the electronic voting system and what it can provide 
the presiding officer?
    Mr. Johnson. Early in the history of the electronic voting, 
there were--I guess it was Carl Albert. The first 1 or 2 years 
of electronic voting permitted Members to change their votes as 
often as possible from voting stations even up to the very 
final moment. And that, as you can imagine, was leading to all 
kinds of uncertainty. Yet, there was still a slip. The 
uncertainty of the result with no instant accountability--there 
was going to be accountability the next day when people read 
the Record, but they were not going to see who was making the 
last-minute changes from terminal X in the last row. And votes 
would flip-flop unpredictably to the point where the Speaker--
it was Carl Albert's Speakership--with the minority leader 
agreed, that in the last 5 minutes of the 15 vote changes had 
been to be controlled in the well so that the Tally Clerks 
could get the changes--number one, and that there would be 
changes announced. They imposed that kind of discipline. The 
Members were not going to get a free ride so as not to show 
changes, as some were doing for that brief time, and the Tally 
Clerk was going to have some time to prepare that list of 
changes as well as to submit a tally slip to the Chair.
    There was never the absence of a slip. Initially, those 
slips changed rather quickly because votes would flip-flop two 
or three times within seconds before that adjustment was made 
by the Speaker. But otherwise, I don't think the role of the 
Tally Clerk over time has ever been under discussion.
    Mr. O'Sullivan. The whole procedure of conducting votes and 
the closing of votes is almost the same since I have been here. 
Every vote has little permutations, a little different, a 
Member's arrival, and things like that. But the whole idea is 
basically done the same.
    Ms. Herseth-Sandlin. And I said--I apologize, Mr. Hulshof, 
one final clarification. Mr. Johnson, you had stated that you 
thought it would have been a proper action that you think it 
would be a proper action for a Parliamentarian, in the event a 
presiding officer starts to prematurely call a vote in the 
absence of a tally slip, to hit the mute button and advise the 
presiding officer of that. Would it also be proper action of 
the Parliamentarian to converse with the Tally Clerks to ensure 
that the tally slip was ultimately prepared and presented?
    Mr. Johnson. Yes.
    Mr. Davis. Before the Chair recognizes Mr. Hulshof, it 
appears that maybe another vote is being called which 
apparently is a motion to adjourn. So let me ask you, how many 
minutes do you think your questions will take? Obviously we 
have not enforced time limits today. The Chair would like to be 
fair.
    Mr. Hulshof. I will attempt to conclude questioning to give 
us the opportunity to walk downstairs and vote. If you let me 
go forward, perhaps I can conclude.
    Mr. Davis. The Chair recognizes Mr. Hulshof.
    Mr. Hulshof. Thank you, Mr. Chairman. Bringing up the rear, 
so to speak, a lot of these questions have been asked. I am 
hoping to tie up some loose ends. I guess the first one--I know 
Mr. Delahunt had another commitment--is to submit for the 
record Speaker Champ Clark, whose home county is now in the 
Ninth Congressional District that I am privileged to represent. 
I don't have this on firsthand authority but my guess would be 
that he would be part of Cardinal Nation, not Red Sox Nation. 
Let me get that out early on.
    Mr. O'Sullivan, a lot of our focus has been on custom, 
precedent, usage, and Mr. Johnson has received I think the bulk 
of the inquiries. Let me, again just tying up a loose end, you 
were extremely helpful during our walkthrough last week. You 
spent over an hour with us. That has not been part of the 
record per se. But demonstrating for us specifically all of the 
procedures, the safeguards that the Clerk's office has put in 
place in order to get to that certification. That was extremely 
helpful.
    And, again, while you haven't had a lot of questions just a 
couple of follow-up questions. You now, as I heard you in the 
last response, you now have adopted our verbiage, that the 
tally slip, even though the tally slip as you designed is 
something other than this diagram that is just to your right, 
correct?
    Mr. O'Sullivan. We have the official tally sheet which we 
would use to call the roll, if we had to.
    Mr. Hulshof. But for the presiding officer, this tally slip 
is the certification for the presiding officer?
    Mr. O'Sullivan. Yes.
    Mr. Hulshof. And reading from the board is not 
certification by the Clerk; is that also true?
    Mr. O'Sullivan. I would think, yes. This is what we would 
say is the tally.
    Mr. Hulshof. And as you stated before, roll call vote 814 
you were not present?
    Mr. O'Sullivan. That is right.
    Mr. Hulshof. This was during one of the appropriations 
bills, there were a lot of amendments.
    Mr. O'Sullivan. Right.
    Mr. Hulshof. And I think you had already gone home for the 
night recognizing that the next day was going to be another day 
full of votes and to keep a fresh Clerk in the chair, you had 
gone home for the evening and you were not there that evening; 
is that right?
    Mr. O'Sullivan. That is correct. That is correct.
    Mr. Hulshof. Mr. Johnson, I want to just supplement the 
record in some of the things that you have referenced. For 
instance, one of the things that you referenced was Speaker 
Gingrich--the practice of receiving signals from the outside, 
that Speaker Gingrich changed the policy and in fact in our 
rule book that is reflected, is it not, on page 808, for those 
who choose to avail themselves of this, that in essence about 
two-thirds of the way down--I am reading now: Starting in the 
104th Congress, the Speaker has announced that each occupant of 
the Chair would have the Speaker's full support in striving to 
close each electronic vote at the earliest opportunity and that 
Members should not rely on signals relayed from outside the 
Chamber to assume that votes will be held open until they 
arrive.
    And every subsequent Speaker, including Ms. Pelosi, has 
adopted that condition; true?
    Mr. Johnson. Yes.
    Mr. Hulshof. In fact, you also just referenced under Ms. 
Herseth-Sandlin's question this practice of in the last flurry 
of votes being switched, I think that is also referenced as 
precedent on page 109--I'm sorry--on page 807: In 1975, Speaker 
Albert announced that changes could no longer be made at the 
electronic stations, but would have to be made by ballot card 
in the well. And further, that changes may be made 
electronically during the first 10 minutes, but changes during 
the last 5 minutes would have to be made by ballot card in the 
well.
    Mr. Johnson. That was the reference I made earlier to 
Speaker Albert. That confirms the 1975.
    Mr. Hulshof. Yes. There has been some back and forth 
between my friends Mr. Davis and Mr. LaTourette about the new 
clause in the rules about the reversal--reversing the outcome. 
And, in fact, at the bottom of page 807, there have been some 
parliamentary inquiries concerning the rule on holding votes 
open solely for the purpose of reversing the outcome. And it 
says at the top of 808: The Chair is constrained to 
differentiate between activity between the establishment of an 
outcome on the one hand and activity that might have as its 
purpose the reversal of an already established outcome on the 
other.
    And so that is the quandary, is it not, as we determine, 
try to determine the state of mind of the presiding officer?
    Mr. Johnson. Those three dates, Mr. Hulshof, are the sole 
precedents in this Congress up to the time of publication of 
the Manual. There may have been some subsequently, I don't 
know. But those three are worth examining to see whether all of 
them were just responses to parliamentary inquiries or any of 
them were points of order. None of them were appealed at that 
point, but that is the body of precedent such as there is under 
this new rule.
    Mr. Hulshof. Again, to clarify a few points raised by 
previous questions, in this vote in 1995 there was 
certification by the Clerk, was there not, a written tally 
sheet prepared prior to the presiding officer announcing the 
vote? You are nodding.
    Mr. Johnson. Yes, I am sorry. The first of what should have 
been several tally slips, or at least another one had been 
handed to him. That is my recollection. Where it said 213 to 
214, and he immediately read from that slip as Members--two 
Members were coming into the well.
    Mr. Hulshof. There also has been some reference to the vote 
on November 21st of 2003, known as the Medicare vote. And I 
think you stated--again let me underscore this--that all 
Members were present in the Chamber; correct? In fact you 
recall, as I do, and I had the occasion to personally examine 
that vote in great detail in another forum, that even after the 
period of 3 hours or nearly 3 hours had passed not all Members 
had recorded their votes. Do you recall that specifically?
    Mr. Johnson. No, I would say it stood at 216 to 218 for 
most of that 3-hour period with only one Member who was present 
abstaining, who had not yet voted. I remember who it was and 
where he was.
    Mr. Hulshof. As do I.
    Mr. Johnson. He drew attention.
    Mr. Hulshof. In the interest of time, let me get to the 
final couple of questions that I have, and again on the role of 
the presiding officer. In legal jargon what comes to my mind is 
the neutral and detached magistrate that the law contemplates. 
I am talking about civil law, criminal law and perhaps that 
doesn't necessarily fit concisely our own rules but that we are 
looking for that presiding officer to be that fair, that 
neutral and detached magistrate. Would you agree with me?
    Mr. Johnson. Yes.
    Mr. Hulshof. You mentioned competency in the Chair. Again 
just as a point of reference, when I used to work in the radio 
station, I had come from a campus station, I got stuck in the 
overnight time slot, midnight to 6, until I became a little 
more conversant putting sentences together and what have you.
    In a similar way, I think both parties have done this. 
Newly elected Members often get the Special Order times because 
there it is often not controversial rulings that they would 
have to make, but it allows them to log time in the Chair and 
gain some experience and then perhaps they are prepared to be 
in the Chair during more difficult times. Is that a fair 
assessment?
    Mr. Johnson. Yes.
    Mr. Hulshof. There is something to the competence of the 
presiding officer. Is there a confidence level that you had as 
a Parliamentarian with certain Members? Probably as we can all 
acknowledge that Mr. LaTourette logged a lot of time, probably 
more than anyone on the select committee. Is there a confidence 
level that comes with the Parliamentarian depending upon who is 
in fact in the Chair?
    Mr. Johnson. Yes.
    Mr. Hulshof. Again, why is that?
    Mr. Johnson. I suppose it is human nature and experience as 
much as anything. It is not only a personal friendship that may 
have developed, but it is a respect that, for example, if a 
Parliamentarian is temporarily distracted or not attentive or 
whatever, that that occupant of the Chair will presumably have 
had enough experience and incentive to take an initiative.
    Mr. Hulshof. And given a presiding officer who had 
extensive experience presiding over the body, even during some 
difficult times, would most certainly--maybe not understanding 
all the precedents or the written precedent, but would 
certainly understand the custom, the usage, the normal 
practice, the ebb and flow, if you will, even during a very 
difficult vote; would he not?
    Mr. Johnson. I would assume so, certainly hope so.
    Mr. Davis. Mr. Hulshof, are you near?
    Mr. Hulshof. Yes, sir. In the interest of time, Mr. Chair, 
I would yield back.
    Mr. Davis. Thank you, Mr. Hulshof. I think we have 3 
minutes left in the vote. Let me thank our two very able 
witnesses for being here and enlightening us today. Our 
witnesses will have 5 days to supplement the record.
    The Select Committee is adjourned.
    [Whereupon, at 11:09 a.m., the committee was adjourned.]

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