[House Hearing, 110 Congress]
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          INVESTIGATIVE HEARING REGARDING ROLL CALL 814, DAY 1

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


                                HEARING

                               before the

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

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 13, 2008

                               __________

                             WASHINGTON, DC


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



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              WILLIAM D. DELAHUNT, Massachusetts, 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

                              ----------                              

                           OPENING STATEMENTS

                                                                   Page
Delahunt, Hon. William, Chairman.................................     1
Pence, Hon. Mike, Ranking Member.................................     4

                                APPENDIX

Prepared Statements:
    Mr. Delahunt.................................................   111
    Mr. Pence....................................................   116
    Mr. McNulty..................................................   123
Catalog of the Video Highlights and Color Key....................   126
Memorandum from the Clerk of the House, Lorraine C. Miller.......   128
Documents referenced during questioning by Mr. LaTourette........   133


             INVESTIGATIVE HEARING REGARDING ROLL CALL 814

                              ----------                              


                         TUESDAY, MAY 13, 2008

                  House of Representatives,
         Select Committee To Investigate the Voting
                          Irregularities of August 2, 2007,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 10 a.m., in room 
1539, Longworth House Office Building, Hon. William D. Delahunt 
(Chairman of the Committee) presiding.
    Present: Representatives Delahunt, Davis, Pence, and 
LaTourette.
    The Chairman. The hearing of the Select Committee will come 
to order. Let me begin with my own statement. First, the 
Committee would like to extend our thanks to the witnesses who 
will testify today. We thank them for the time and assistance 
they have already provided to the Committee as they have all 
been previously interviewed by Committee members and staff. 
Additionally, I want to extend our collective appreciation to 
all of the individuals, Members, officers, and staff of the 
House who the Committee has called upon to assist us in our 
work. Every single one of them, without hesitation, responded 
diligently and professionally to all of our requests.
    In particular, I would like to recognize the Clerk of the 
House, Lorraine Miller, who we have not asked to testify today, 
but who along with her counsel, Russ Gore, has devoted 
countless hours educating the Committee, compiling document 
productions and providing us with unfettered access to her 
staff and explaining the Clerk's Office internal operations.
    I know I speak for all of the Committee when I say that all 
of the offices and professional staff of the House with which 
we have interacted are of the highest caliber and we are 
grateful for their service; the Office of the Parliamentarian, 
the Chief Administrative Officer, and the leadership staff on 
both sides. The American people should be confident and proud 
of the collective service they provide to the people's House. 
Now, the purpose of these hearings is to discover what happened 
on August 2nd during Roll Call 814. Voting in the House can be 
chaotic, confusing and often an emotional process. And on that 
particular evening, many Members left the floor feeling 
frustrated and dissatisfied, not simply with the result, but 
with the process. I understand this Committee's mandate is to 
determine how and why this roll call unfolded in the manner 
that it did, and make recommendations to ensure the integrity 
of the voting procedures. I would also suggest that implied in 
this charge is a task to, not only ensure confidence in our 
voting procedures, but to abate the anger and mistrust that was 
evidenced that evening.
    As our first witness, Kevin Hanrahan, testified during his 
interview, ``the atmosphere in the Chamber was vitriolic, at 
best it was hateful. In my whole time I have seen some weird 
stuff, but that night was the worst. Everybody was hateful. And 
I am putting that gently.'' And while my own opinion is that 
there has been considerable improvement in the mood and 
atmosphere in the House, my hope is that the Committee's work 
can further enhance civility and respect among Members that is 
necessary for the proper functioning of the people's House.
    Now, it should be noted that a great deal of time and 
effort has already been devoted to the Committee's task. We 
have been working. Members and staff have spent hundreds of 
hours on this undertaking. I cannot overstate their diligence 
and commitment and I wish to publicly commend them. We were 
fortunate to have the benefit of a videotape of the event that 
evening. And Committee members and staff have reviewed that 
tape countless times. We have also requested and reviewed over 
5,000 pages of documents, e-mails, logs, notes and memoranda 
from over 33 individuals and six offices in the House. We have 
conducted over 20 interviews and have taken almost 50 hours of 
testimony. We will be making all of the transcripts of those 
interviews, as well as all of the documents, part of the 
official Committee record today.
    And I would move that we now, by unanimous consent, move to 
place all of the documents that I just enumerated into the 
official record. And hearing no objection it is so ordered.
    [The information described is available in the Committee 
archive. Opening statements can be found in the Appendix of 
this transcript.]
    The Chairman. Now, I would be remiss if I failed to note 
the contribution of the Congressional Research Service in 
assisting with the drafting of the interim report, which was 
filed on September 27, 2007. This interim report laid out the 
steps we anticipated would be necessary to conduct a thorough 
inquiry of the events surrounding Roll Call 814. Next, we 
conducted three public hearings on the history, rules and 
customs surrounding voting in the House of Representatives. 
What was particularly revealing, even at that early stage, was 
how little many of us, particularly myself, knew about the 
process that is involved in recording the votes cast in the 
House of Representatives. The parliamentary rules and 
procedures, as well as the instrumentalities, the computer, the 
electronic voting system, the boards, the tally slip that serve 
as the infrastructure of the voting process, is complex and it 
requires a high degree of coordination. We interviewed the 
Clerk of the House, the deputy clerks, and the parliamentarian 
emeritus, Charles Johnson.
    We conducted an in-depth walk-through of the House floor 
and the electronic voting system, or to use the acronym, the 
EVS, and took a view of the EVS control room. We used these 
hearings and the expertise of the Congressional Research 
Service to provide a strong foundation going forward.
    I must take special notice of the outstanding work of Judy 
Schneider and Mike Koempel, for without their assistance, I 
believe the Committee, or at least myself, would have been 
adrift as we embarked upon our work. I think it is important to 
note that while the videotape is clearly helpful, it has its 
limitations. I believe we have made good use of it, and I 
expect we will utilize this videotape today and in the future.
    However, as we will see, it does not provide a panoramic 
view of the House. Nor does it explain the actions of the 
principals, the key players. Therefore, our witnesses today are 
vital in understanding Roll Call Vote 814. And that is why the 
Committee invited these particular individuals to testify. At 
our first public hearing, I said a number of things that I 
believe hold true today. First, none of us chose this 
assignment. Secondly, though none of us asked for this task, I 
can say that I am privileged to serve with the other five 
members of the Select Committee. We have worked well together, 
as has our fine professional staff.
    August 2, 2007, was a Thursday, but it wasn't just any 
Thursday. It was the last day before Congress was supposed to 
break for the August recess. Members were exhausted, staff was 
exhausted and we were all anxious to go home. As a senior 
rostrum staff person said during his interview in February, 
``the workload,'' and these are his words, ``the workload that 
three months, June, July and August, was maybe one of the worst 
I have ever seen in all of my time here. We set a record with 
roll calls.'' Another officer of the House stated, ``it was the 
ugliest week I can remember in the House.'' Another said, ``we 
were all tired that night, it was a long night and we had a 
stack of votes on a bunch of amendments. And then we moved into 
what we all thought was going to be the final passage and then 
hopefully go home.'' Roll Call Vote 814 was a motion to 
recommit promptly H.R. 3161, the fiscal year 2008 
appropriations bill for the Department of Agriculture. Roll 
Call Vote 814 was supposed to take place around 10:00 at night 
after a series of 9, 2-minute votes on amendments to H.R. 3161. 
Congressman Mike McNulty was presiding.
    At this point I should note that Mr. McNulty's reputation 
among his colleagues and the staff is well known for integrity 
and professionalism, and his ability to serve as the Speaker 
pro tem. Both leaders following August 2nd have reaffirmed 
their respect for his service to this House. Majority Leader 
Steny Hoyer stated, ``I think McNulty is a competent 
accomplished presiding officer, and I think he is perceived by 
all Members as a very fair individual of high integrity, and I 
think he is that.''
    Similarly, the Republican leader, John Boehner, said on the 
morning following Roll Call 814, ``I accept the regrets offered 
by my friend from New York,'' referring to Mr. McNulty. 
``Having been in the Chair myself, I understand how it can 
happen. He and I are friends. In fact, he is one of the fairest 
Members who could ever be in that Chair.'' Well, the vote began 
at 10:34 and 5 seconds. And as time passed it was clear that 
the vote would be close. At 10:49 and 47 seconds, which would 
be 15 minutes and 42 seconds into the vote, the Speaker voted 
against the motion and the vote was tied. At 10:50 and 8 
seconds Mr. McNulty announced the tally, but did not proceed 
with any further statements that are often integral to closing 
down a vote.
    At 10:50 and 15 seconds, more Members appeared in the well 
and took possession of well cards, arguably, manifesting intent 
to change their votes. At 10:50 and 29 seconds more Members 
entered the well, similarly obtaining well cards. At 10:51 and 
30 seconds, Mr. McNulty announced that the vote is tied at 214 
and the motion is not agreed to. A fraction of a second later, 
the tally on the display board in the Chamber refreshed, I 
would use the word change or uptick, as the professionals use 
that term, reflecting a different tally than the one that Mr. 
McNulty announced. It is fair to say that chaos erupted.
    Six seconds later, two additional Members turned in well 
cards, which the clerks accepted and announced as changes. For 
those of us in the Chamber that night, the noise level was, 
again, as our first witness described, deafening. As another 
witness said, you could hardly hear. We were then, as the 
parliamentarian stated, in unchartered territory. Well, among 
the first orders of business the next day were apologies 
offered by the Majority Leader, Mr. Hoyer and Mr. McNulty, for 
the events of the evening before. During this hearing we will 
review the beginning of Roll Call 814 through the subsequent 
motion to reconsider Roll Call 815. That is the time frame that 
falls within this Committee's jurisdiction. I look forward to 
listening to the testimony we will hear today. And while I 
certainly have reached no conclusions, I do have a sense that 
when the dust settles, that as we consider the events of that 
evening with the advantage of hindsight and a calm perspective, 
a culprit may emerge. And I have a hunch that we will see it in 
the form of a rule, a rule that was enacted with a noble intent 
to curb other perceived abuses, but a rule that is, at best, 
difficult to enforce, and at worst, the catalyst for the raw 
anger that we observed on August 2nd.
    As I said, our purpose is to determine what happened and 
what changes to the voting procedures may be necessary or may 
be an improvement so that a similar situation does not reoccur. 
I look forward to working with all members of the Select 
Committee to put forth a final report that reflects the good 
work we have done to this point and encompasses the thoughtful 
and respectful deliberations that I am confident we will 
undertake to develop positive recommendations for our voting 
procedures in the House of Representatives. That concludes my 
statement, and I now yield to the Ranking Member, the gentleman 
from Indiana, Mr. Pence.
    Mr. Pence. Thank you Mr. Chairman. And I want to take this 
opportunity to thank Chairman Delahunt for holding this 
investigative hearing of the Select Committee to Investigate 
the Voting Irregularities of August 2, 2007. And on a personal 
note, Mr. Chairman, I want to thank you for the collegial 
spirit and cooperation and courtesy that you have shown to the 
Members of this Minority throughout this inquiry.
    The Chairman. Thank you.
    Mr. Pence. The integrity of the House of Representatives is 
completely dependent on the integrity of the vote that takes 
place on the floor of the Congress. Every American is entitled 
to have a voice in the People's House and to know that their 
representative's vote counts. This Select Committee has been 
tasked with the responsibility of investigating what happened 
during Roll Call 814 held on the night of August 2nd, and 
making recommendations to the House regarding necessary changes 
to the House rules and proceedings so that the voting right of 
every Member of Congress is protected.
    I am confident that today's hearing will go a long way 
toward fulfilling this responsibility. Now, there were some who 
predicted that the Select Committee would never meet, let alone 
hold public hearings. I am very pleased that all six members of 
the Select Committee have been able, over the course of many 
months, to put the interests of the American people and this 
institution above partisan politics. I would like to thank the 
members of both parties on this Committee and the staff for 
conducting this investigation in a truly bipartisan manner. As 
the Chairman said, and I would associate myself, it has been a 
privilege to work with the men and women on this Committee and 
with their capable staff and counsel. I particularly would like 
to express my appreciation for my Republican colleagues on this 
Committee. Representative Kenny Hulshof has made an 
extraordinary contribution of time and professionalism to this 
effort. And I would like to offer special gratitude and 
recognition to the vice ranking member of this Committee, Steve 
LaTourette of Ohio.
    I thank both of these men for lending their professional 
experience and their extraordinary reputations for integrity 
and commitment to the institution to this inquiry. As the 
Select Committee held educational hearings last fall and then 
moved forward with its investigation, a clear commitment to 
fairness and the facts was exhibited, befitting the serious 
business with which the Select Committee was tasked. I am 
pleased to report that we have taken on this responsibility 
with a thorough and professional investigation. As the chairman 
stated, we retained outside counsel to lead the investigation, 
we collected and reviewed over 6,000 pages of documents and 
conducted more than 21 transcribed interviews with witnesses, 
all of which, by unanimous consent today, will be a part of the 
record of these proceedings.
    As a result of these efforts, we now have a solid 
understanding, not only of what happened on the evening of 
August 2nd, but also why it happened. While our examination of 
the documentary record was substantial, it was hampered by 
limitations created by the failure of some parties to take 
timely action to preserve relevant documents. For instance, if 
the Chief Administrative Officer of the House had been more 
diligent in preserving potentially responsive documents as 
required by our authorizing resolution, the picture might be 
even clearer.
    Before I go on with my statement, since nearly a year has 
passed since that night in August, I think it would be 
appropriate to watch a short video of some of the key scenes 
from that night. And I would ask unanimous consent to make this 
video a part of the record.
    The Chairman. Without objection.
    [Video was played. The video can be found in the 
Committee's archive.]
    Mr. Pence. Catlin O'Neill, the aide to the Speaker is in 
orange, the Speaker of the House is circled in blue, the 
Majority Leader is circled in red, Jerry Hartz, an aide to the 
Speaker, is circled in yellow, and the Parliamentarian, John 
Sullivan, is circled in green.
    [The color code can be found in the Appendix.]
    Mr. Pence. Roll Call 814 was taken on the Republican motion 
to recommit the Agriculture appropriations bill on the night of 
August 2, 2007. The Republican motion would have denied 
taxpayer benefits in that bill from going to illegal 
immigrants. It was, to say the least, a contentious and 
controversial issue in Congress. The evidence will show that 
the Republican motion to recommit passed the House by a vote of 
215-213, and was overturned by the Democratic Leadership and 
the Speaker pro tem.
    In the face of pressure from the Democratic leadership to 
shut down Roll Call 814 while they were prevailing, the Speaker 
pro tem, Representative Mike McNulty, bypassed well established 
procedures for closing a vote. This failure threw the House 
into chaos, and what one veteran professional staff member 
called ``unchartered territory,'' undermining the confidence in 
the integrity of the House. Given the video record that we just 
viewed and the candor and cooperation of numerous witnesses, 
most of the facts about what happened that night are not in 
dispute.
    After the minimum time for voting had expired, Speaker 
Pelosi received a signal to go to the well and cast her vote, 
making the total 214-214. Mr. Hoyer was quite candid during his 
interview with the Select Committee, acknowledging that he had 
expressed, in no uncertain terms, a strong desire that the vote 
be closed as soon as the Speaker cast her vote. To this end, he 
yelled at the Chair to close the vote in a voice loud enough to 
be heard. This was confirmed by at least five witnesses on the 
rostrum that evening. At the time the Speaker voted, Mr. Hoyer 
can be seen near the rostrum having a conversation with Catlin 
O'Neill of the Speaker's floor staff.
    Mr. Hoyer recalled telling Ms. O'Neill words to the effect 
of ``We need to shut down the vote when we are prevailing.'' 
The video shows that Ms. O'Neill immediately turned and said 
something to the Chair, who then attempted to close the vote 
for the first time. Ms. O'Neill and Mr. McNulty both have 
denied giving or receiving any instructions about closing the 
vote that evening. It is troubling that their testimony was 
contradicted by the testimony of Mr. Hoyer. The Chair attempted 
to close the vote at 214-214, but stopped short when it became 
clear that well voting cards were still being processed. 
Believing that the parliamentarians had somehow prevented Mr. 
McNulty from closing the vote while the Majority was 
prevailing, Mr. Hoyer angrily vented his frustration toward the 
Parliamentarian, John Sullivan.
    In remarks that can be clearly heard on the video, he said, 
``We control this House, not the parliamentarians.'' This 
outburst occurred on the rostrum a few feet from Mr. McNulty. 
And shortly thereafter, Mr. McNulty banged the gavel and called 
the vote at 214-214 and declared that the ``motion was not 
agreed to.'' However, in the time between the Chair's first 
attempt to call the vote and the second, three Florida 
Republicans had changed their votes and the tally clerks were 
still entering those changes in the House's electronic voting 
system. Consequently, the display board in the Chamber upticked 
to 215-213 milliseconds after the Chair's second and final 
announcement of 214-214, creating an atmosphere of confusion 
and anger on the House floor, because at that time with those 
votes counted properly, the motion had, in fact, passed. Mr. 
McNulty explained during his interview that he intended to 
close Roll Call Vote 814 as soon as the last of the three 
Republicans had voted, concerned that holding the vote open any 
longer might allow other Members on both sides of the aisle to 
change their votes, and that such a delay might violate clause 
2(a) of rule XX, which states that, ``A recorded vote by 
electronic device shall not be held open for the sole purpose 
of reversing the outcome of such vote.'' As Mr. Hoyer himself 
readily acknowledged, the presiding officer, Mr. McNulty, 
certainly had the discretion to close the vote at this point, 
when the true vote count was 215-213 in favor of passage. 
Clause 2(a) of rule XX in the House also provides ``The clerk 
shall conduct a record vote by electronic device.'' It is 
uncontroverted that Mr. McNulty, an experienced and respected 
Chair who has presided over dozens, perhaps hundreds of votes, 
called Roll Call 814 without giving the employees of the Clerk 
of the House an opportunity to conduct a record vote, prepare a 
tally slip and certify the results.
    While the requirement of the tally slip is not formally 
codified in the Rules of the House, numerous witnesses have 
stated that this tally slip is deeply embedded in the 
traditions of the House and that they have never before seen a 
vote closed without one. Had Mr. McNulty followed this long-
standing procedure, the tally slip would have reflected a 215-
213 vote total in favor of passage of the Republican motion 
denying taxpayer benefits from going to illegal immigrants. 
Rather than simply making a new announcement of the correct 
result, Mr. McNulty compounded his error by allowing the vote 
to remain open after he had announced the final result, 
enabling three Democrat Members to switch their votes, thereby 
altering the outcome from passage of the Republican motion to 
failure.
    Remarkably, numerous witnesses and the documentary evidence 
attest that a tally slip prepared by the Clerk was never 
produced in connection with Roll Call 814. I take no pleasure 
in saying this, but it is simply not plausible that such an 
experienced presiding officer simply forgot to wait for the 
tally slip during the course of such a close and controversial 
vote. Instead, I believe the evidence gathered by the Select 
Committee will show that the Chair rushed to close the vote in 
face of pressure from the Democratic leadership, and in so 
doing, side-stepped a long-standing procedural safeguard 
designed to ensure the integrity of the vote on the floor of 
the House.
    During an interview before this Committee when asked 
whether his demeanor or actions, ``may have unintentionally 
created an environment of more pressure on [Mr. McNulty] to 
close the vote,'' the Majority Leader did not argue the point, 
but merely replied that that was ``certainly possible.'' 
Leadership instructing a presiding officer about the timing of 
closing a vote is hardly uncommon. But as one professional 
staff member explained, he had ``never seen the Chair buy into 
it, never.'' When any Majority feels that it can cut corners to 
achieve a particular legislative result, we risk reducing the 
most powerful democracy in the history of the world to a banana 
republic.
    The chaos of August 2nd was a dark moment in the history of 
the United States House of Representatives, and it must never 
be allowed to happen again. The imperious actions of the 
Democratic Leadership unduly influenced the Chair and 
undermined the will of the American people on the controversial 
and divisive issue of taxpayer-funded benefits for illegal 
immigrants. Our national legislature was designed to resolve 
just such issues through the democratic process. But to 
accomplish this, the American people must have absolute 
confidence that their will is being worked in the People's 
House, and not thwarted through political gamesmanship, 
procedural sleight-of-hand, or a win-at-all-costs mentality. We 
cannot restore Roll Call 814, but this Committee can restore 
what has been taken: the fundamental respect for the 
independence, fairness and integrity of the House of 
Representatives.
    By acknowledging what happened that evening and embracing 
the reforms necessary to ensure that it never happens again, 
this Congress can learn the lessons of August 2nd, move beyond 
that dark moment and restore the confidence of the American 
people that this is not a Democratic House, this is not a 
Republican House, this is the People's House, and their will is 
worked every time a vote is called. I look forward to hearing 
from our witnesses and thank the Chairman again for his 
courtesy and cooperation.
    [The statement of Mr. Pence may be found in the Appendix.]
    The Chairman. Thank you, Mr. Pence. And pursuant to our 
understanding I will now go to Mr. Davis for any observations 
he may have. And I would respectfully request he limit them to 
five minutes.
    Mr. Davis of Alabama. Thank you, Mr. Chairman. And I will 
try to do even better than the five minutes, because I want to 
get us to what we are here for: Just to hear from witnesses 
today. Let me begin with just one general observation. As I 
have been a member of the Select Committee over the last 
several months, I am heartened about one thing. I think that 
the work of this Committee and the cooperation this Committee 
has practiced as we moved to this point today reminds me that 
one can debate about, disagree about, have contentious 
arguments about very emotional polarizing issues and still do 
it in a respectful way. That has been the tone of the last 6 or 
7 months in which this Committee has done its work, and I 
frankly say with great confidence, I believe it will be the 
tone of the hearing today. And if we learn nothing else from 
this process, Mr. Chairman, I hope it is that the spirit with 
which we have conducted this investigation can be a template 
for the way we go about resolving many more substantive, many 
more difficult issues that face the House day in and day out.
    The other two observations I want to make are more factual. 
I expect there will be two dominant things that will happen 
over the next several hours. The first one is that, in 
approximately one hour, a Member of the House of 
Representatives, a distinguished veteran Member, Michael 
McNulty, is going to come before this Committee and do 
something that very few people of our ilk ever do in public; 
that is acknowledge that he made a mistake. And he is going to 
say that he did it not out of any malice, not out of any intent 
to disenfranchise, but because he looked up at a board that was 
tallying the votes and he mistakenly thought it reflected the 
sum total of all Members who voted that night.
    But he will acknowledge that that was a mistake. What was 
the effect of that mistake? I think the testimony will be very 
clear over the next several hours that as a practical matter 
the vote was kept open for approximately seven minutes in real-
time, more than ample time for Democrats or Republicans, people 
yea or nay on this motion to recommit, to change their vote, 
rethink their vote or do anything else they wished to do.
    Seven minutes elapsed after what Mr. McNulty will 
acknowledge was an erroneous calling of the vote. Over those 7 
minutes, some Members did change their votes and that led to 
the vote total that was announced that night. Finally, Mr. 
Chairman, I expect that the evidence will show that the 
Democratic leadership actually went beyond even that to make 
things right that night.
    The Majority Leader went to the floor of the House of 
Representatives and said let us just do it over, there was an 
erroneous calling of the vote, let us just start it over, let 
us make a motion to reconsider, let us set the vote aside, let 
us do what needs to be done procedurally so that we can do it 
right. And instead of the other side of the aisle, the 
Republican caucus saying, Mr. Leader we thank you for agreeing 
to set this vote aside, they responded by walking out of the 
House; the opposite of comity, the opposite of the kind of 
decorum that this Committee has followed and that we all urge 
on the floor of the House. So none of us are happy to be here, 
but it will be an interesting day, an instructive day, and Mr. 
Chairman, I thank you for your leadership.
    The Chairman. Thank you, Mr. Davis. The gentleman from 
Ohio, Mr. LaTourette.
    Mr. LaTourette. Thank you very much, Mr. Chairman. And I 
want to echo the remarks that have been made by the three 
previous speakers. It has been a pleasure to serve on this 
Committee. Before this service I knew you, Mr. Chairman, but I 
didn't know Mr. Davis, Ms. Herseth Sandlin very well, and it 
has been a pleasure to get to know them, and it is one of the 
happy circumstances of this work. I noticed in your rather 
lengthy opening remarks, Mr. Chairman, you didn't indicate that 
the Cleveland Cavaliers had beaten the Boston Celtics by 11 
points last night, and I am sure that that is an oversight on 
your part.
    The Chairman. It was a stolen game, Mr. LaTourette.
    Mr. LaTourette. If Steny Hoyer could dunk like LeBron James 
we wouldn't be here.
    The Chairman. That is right. See you in Boston Garden.
    Mr. LaTourette. I am glad in your opening remarks too you 
talked about how a culprit will emerge. In part of my misspent 
youth, I had read a lot of Agatha Christie, and I now have 
reread about six of her books and I find them to be very 
fascinating. And the interesting thing is that as you read 
through the pages, you think you know who the culprit is, and 
then when you get to the end you find that the culprit is not 
in fact who you thought it was. And that is really the mastery 
this Ms. Christie brought to her literary genre. And I agree 
with you that this false rule, 2(a), clause 2(a) of Rule XX, is 
one of the culprits. But I think that the evidence today will 
bring forth other culprits as well. My view is that the 
Majority party should always win in the House of 
Representatives. It should always win because there are more 
Members. And on any vote, the Democratic Party now, the 
Republican Party for the last 12 years, had more Members. And 
at any time that the Majority party can marshal their forces, 
they should win the vote.
    That is the way that the process works, that is the way our 
elections work. Now, from time to time the chairman mentioned 
what busy months those were, and I can remember a celebration 
where the new Majority celebrated their 1,000th vote. And I 
would tell, I think they really should have patted them on the 
back when they made that announcement for their 1,001st vote 
because we had two 814s, and I don't think they got credit for 
the extra 14. But 990 of those votes are pretty controversial. 
And there are only maybe 10, a very small fraction, where there 
are issues that aren't necessarily divisive by party, but 
perhaps where you live. Geography; westerners versus 
easterners, southerners versus northerners. And issues like 
guns. I think it is a fair observation that more Members of the 
Democratic Party would support more regulations on firearms 
than would in the Republican Party.
    On the issue of abortion, I would suggest that it is fair 
to say that more Members of the Democratic House are pro choice 
and the reverse would be true on the Republican side. And 
likewise with immigration; there is clearly a split between the 
parties and within the parties on this issue of immigration 
which brought us to this particular evening. And so on the 
close votes, you don't have the situation where the Majority 
just puts up its 230, 235 votes, you have some defections. And 
on this evening you had 19 Democrat defections that voted in 
favor of the motion to recommit. And continuing with the sports 
analogy just for a minute, Three River Stadium, every time they 
had a Pittsburgh Steelers game they would talk about the 
confluence of the Monongohela, the Allegheny and the Ohio 
Rivers. And this hearing, I think, will bring together a 
confluence of the rules, the unbroken precedence of the House 
and the transitions of the House, which all need to be given 
weight.
    And I think most of us are lawyers, and we are familiar 
with the black letter law, and we can talk about the rules. And 
I think it would be impossible for a rule book to cover every 
situation that could occur in the House unless it was many, 
many, many volumes. And I would hearken back to an article that 
was written right after this vote by Norman Ornstein. And I 
think he had it right. And that is, the Majority can win any 
vote, but what the Majority cannot do is win or steal a vote 
and shield some of its Members from having to take a difficult 
vote on guns, a difficult vote on abortion or a difficult vote 
on immigration, which was the case on August the 2nd.
    The second thing is this vote is still not right. Mr. 
Boehner's card was never processed. Mr. Boehner's change card 
was never processed. And this vote isn't 214-214. I think it 
should have been 215-213. And it is not 212-216, it is 211-217. 
And that is the vote that occurred on that evening if you are 
permitted to keep it open for these last 7 minutes that Mr. 
Davis talked about. And this notion that the Majority Leader 
was just really fair and said start over, there was a remedy 
here.
    The remedy was that at the time that Mr. McNulty issued the 
magic words that the motion is not agreed to, he could have 
made a second announcement that it is 215 to 213, the motion is 
agreed to and we still could have had, because the Rules of the 
House permit a motion to reconsider, any one of those three 
Democratic Members; Space, Gillibrand and McNerney, who changed 
their votes at the very end, because they would have been on 
the prevailing side, could have made the motion to reconsider 
and we would have had that vote anyway. So I look forward to 
the testimony, I appreciate the comity on both sides and thank 
you for your time this morning.
    The Chairman. Thank you, Mr. LaTourette. And now we will 
call our first witness, Kevin Hanrahan. Mr. Hanrahan, will you 
proceed to the witness table? Kevin Hanrahan is a native of 
Nebraska. He began his career in Congress in 1978 as a staff 
member of former Representative John Cavanaugh. He joined the 
Office of the Clerk in 1979 as assistant tally clerk and was 
later promoted to senior legislative clerk. Mr. Hanrahan 
recently succeeded Mark O'Sullivan as chief tally clerk of the 
House. He has served the House of Representatives under 16 
different Speakers and seven different clerks. Welcome Kevin. 
Pursuant to a conversation that Mr. Pence and I had prior, we 
have agreed to attempt to limit the questioning of the 
witnesses to an hour to be divided equally between the Minority 
and the Majority.
    And I indicated to Mr. Pence that it was my intention to 
let Mr. Davis, the Vice Chair of the Committee, to conduct our 
inquiry so that we have coherence in our questioning. And let 
me begin with Mr. LaTourette.
    Mr. LaTourette. I think actually, Chairman, the Ranking 
Member is going to ask some questions on our time and then hand 
off, if that is all right with everybody.
    Mr. Pence. The ranking member's prerogative.
    The Chairman. Sure.
    Mr. Pence. Just a couple of brief questions for our 
witness. And Mr. Hanrahan, thank you for not only----
    The Chairman. I didn't see Mr. Hanrahan with any papers in 
front of him, so I presume he did not have an opening 
statement.
    Mr. Hanrahan. That's correct, sir.
    The Chairman. So then let me again yield to Mr. Pence.
    Mr. Pence. Thank you Mr. Chairman. Let me just reiterate my 
appreciation for your cooperation with the Committee, not only 
appearing today, but also your cooperation with the Select 
Committee from the very beginning. And let me also congratulate 
you on, I think more than a quarter century of service to the 
American people in your capacity. I think you do great credit 
to the House, and we are appreciative of your service and your 
cooperation. A couple quick questions before I yield the 
Majority of our time to Mr. LaTourette. In your 25-plus years 
of experience in your capacity, have you ever been involved 
with the closing of a vote without a tally slip?
    Mr. Hanrahan. No, sir, I have not.
    Mr. Pence. The Parliamentarian, John Sullivan, told the 
Select Committee that a written tally slip is ``probably the 
most important quality control device in the announcement of a 
vote.'' Would you agree with that statement?
    Mr. Hanrahan. Yes, sir, I will agree with that.
    Mr. Pence. Lastly, for the record, did you, at any point in 
time, in connection with Roll Call Vote 814, prepare a tally 
slip?
    Mr. Hanrahan. I didn't have one ready when the vote was 
closing, but we have a practice, if you will, of in keeping 
with trying to keep things moving along rather than slow them 
down, it is not uncommon for the standing tally clerk to write 
the first digit of each of the totals in order to just save 
time. As long as we have topped over, for instance, if it is a 
200 on one side, it would be okay to write a 2 and a 100 on the 
other side, a one. It saves time. And it might be construed as 
starting something, but it shouldn't be construed as a final 
product because it is not done, it isn't finished and hasn't 
been completed and turned in. We do it once in a while just to 
move things along and try to be ready, but it is not a be-all/
end-all to the closing of a vote until we are through writing 
the tally and hand it up to the Chair for announcement to the 
House.
    Mr. Pence. In connection with Roll Call 814, is it your 
testimony that you did begin to create such a document?
    Mr. Hanrahan. To be perfectly truthful, I don't honestly 
remember. I might have, because I was not unaware of the 
situation we were in. And there may very well have been a 
partially completed tally slip.
    Mr. Pence. Let me ask you two quick questions. Do you 
recall ever completing a tally slip?
    Mr. Hanrahan. No, I never did complete one and I never 
turned it in.
    Mr. Pence. And so you never handed that tally slip to the 
parliamentarians to give to the Chair?
    Mr. Hanrahan. That is correct, sir.
    Mr. Pence. Okay. With that I would yield the balance of our 
time for questioning to Mr. LaTourette.
    Mr. LaTourette. Thank you, Mr. Pence, and Mr. Hanrahan, 
welcome.
    Mr. Hanrahan. Thank you.
    Mr. LaTourette. The first thing that I would ask you to do, 
we are going to put a picture of the rostrum up over here on 
this the easel. And if I could ask you to rise from your 
witness chair, I have prepared some labels, and would ask you 
to approach the easel and we are going to walk through who the 
people are.
    Mr. Hanrahan. Okay.
    Mr. LaTourette. Let me ask you the question, the occupant 
of the Chair is Michael McNulty of New York, is that right?
    Mr. Hanrahan. Yes.
    Mr. LaTourette. Could you put Mr. McNulty's sticker above 
his head. Not on his head, above his head. Who is the 
parliamentarian attending to the Chair?
    Mr. Hanrahan. Ethan Lauer.
    Mr. LaTourette. Could you put Mr. Lauer's sticker above his 
head. And is there a person charged with keeping the time of 
the stop watch in that picture?
    Mr. Hanrahan. Well, Gay Topper is seated here, and that 
would be her function.
    Mr. LaTourette. Okay. Could you put Gay Topper's sticker 
above her head. Do you see yourself in that photograph?
    Mr. Hanrahan. Yes, sir, down here in the lower left-hand 
corner.
    Mr. LaTourette. And you were the standing tally clerk that 
evening?
    Mr. Hanrahan. That is correct.
    Mr. LaTourette. Could you put your sticker underneath 
yourself? De'Andre Anderson was the seated tally clerk that 
evening?
    Mr. Hanrahan. Yes, sir.
    Mr. LaTourette. Could you put his sticker below him? And I 
prepared a sticker for Allys Lasky that has her as the 
assistant tally clerk, because she told us that is who she was 
when we interviewed her, but you don't believe that was her 
title then?
    Mr. Hanrahan. No, sir, she was the journal clerk.
    Mr. LaTourette. Okay. Could you put Allys Lasky's sticker 
below her? We will all understand that she is the journal clerk 
and not the assistant tally clerk. Okay. Thank you. Could you 
resume your seat? Mr. Chairman, while Mr. Hanrahan resumes his 
seat, I just want to make clear as we go forward, Mr. Pence, in 
his opening remarks played about 6 minutes of the videotape. 
And I know because we have agreed to move this along, so we 
don't inconvenience our witnesses, I want to make sure that we 
have stipulated that whenever we show the video to the 
witnesses, that the color coding that we have talked about, 
sort of the halos that we have described, in the fine tradition 
of Flemish painting, that those will be accepted by both sides 
as being accurate. And so if I indicate to a witness, would you 
please watch the tape, and the orange halo belongs to Catlin 
O'Neill, that we have agreed that that is, in fact, the case. 
Am I right about that?
    The Chairman. Could you give us the color code again Mr. 
LaTourette? Orange?
    Mr. LaTourette. I will give you the whole sheet, how is 
that? It is my understanding that counsel has agreed to that.
    The Chairman. We have agreed.
    Mr. LaTourette. Okay.
    The Chairman. Was there any reason for the particular 
colors?
    Mr. LaTourette. No, I don't think so. And as a matter of 
fact, when the Majority asked us to put a halo around Mr. 
Space, we had run out of colors, and so he is just going to be 
white.
    The Chairman. I noticed that the Parliamentarian, Mr. 
Sullivan, is in green.
    Mr. LaTourette. Right.
    The Chairman. Is there any significance?
    Mr. LaTourette. Celtic green.
    The Chairman. Thank you.
    Mr. LaTourette. All right. Mr. Hanrahan, when you were 
interviewed by the staff of the Select Committee on February 
8th, they walked through with you a protocol, do you remember 
that?
    Mr. Hanrahan. Uh-huh, yes, sir, I do.
    Mr. LaTourette. And do you remember where the protocol came 
from and what the document was?
    Mr. Hanrahan. With respect what the--how the deposition was 
going to be conducted?
    Mr. LaTourette. Well, I was just asking, do you remember 
what document they were walking you through?
    Mr. Hanrahan. I remember the document, yes. I do remember 
looking at it.
    Mr. LaTourette. Could someone take that to Mr. Hanrahan? I 
just want to show you a document that was prepared by Mrs. 
Miller, the Clerk of the House, dated September 4th, and ask 
you, when I read the transcript of your interview, is that the 
document that they were walking you through?
    Mr. Hanrahan. Yes, sir, it is.
    Mr. LaTourette. Okay. And if I could ask you--do you guys 
have it, or do you want it to refer to? I don't want to 
surprise you.
    Mr. Davis. Could I have a copy, Mr. LaTourette?
    I have it now. Thank you.
    Mr. LaTourette. If I could ask you, Mr. Hanrahan, to refer 
to page 2 of that document.
    By the way, Chairman, I ask unanimous consent it be made 
part of the record.
    The Chairman. Without objection.
    [The document, a memorandum written by Ms. Lorraine Miller, 
Clerk of the House, can be found in the Appendix.]
    Mr. LaTourette. On page 6--first of all, the first full 
paragraph on page 2, do you see that.
    Mr. Hanrahan. Yes, sir.
    Mr. LaTourette. Okay. Do you recall during the course of 
your interview on February 8th having counsel walk you through 
that paragraph basically on the protocol that exists for 
conducting an electronic vote in the House of Representatives?
    Mr. Hanrahan. Yes, sir, I do.
    Mr. LaTourette. Okay. And is that an accurate explanation 
of the protocol for conducting an electronic vote in the House 
of Representatives?
    Mr. Hanrahan. Yes, sir, it is. I could embellish it, if I 
needed to, but it is basically correct.
    Mr. LaTourette. Okay. And, at one point, on page 7, for 
those at home following, you indicate that this protocol hasn't 
been changed in 30 years. Is that still your recollection 
today?
    Mr. Hanrahan. Yes, sir, that is correct.
    Mr. LaTourette. Okay. And that protocol contemplates the 
delivery of a tally sheet, the tally slip. Is that right?
    Mr. Hanrahan. Yes, sir.
    Mr. LaTourette. Next, we are going to put up on the easel 
an exhibit that we used at one of our previous hearings. And do 
you recognize that?
    Mr. Hanrahan. Yes, sir, I do. It is one of our tally 
sheets.
    Mr. LaTourette. Okay. And when you were talking to Mr. 
Pence a little earlier, is that the document that you, as the 
standing tally clerk, or any standing tally clerk, during the 
course of a recorded vote would complete?
    Mr. Hanrahan. Yes, sir, it is.
    Mr. LaTourette. And upon completion of that tally slip, 
except for this night that we are talking about, is that slip 
prepared by the standing tally clerk, handed to the 
parliamentarian tending to the Chair, who then hands it to the 
Chair for announcement?
    Mr. Hanrahan. That is correct.
    Mr. LaTourette. Okay. And again, to be clear, no such slip 
was prepared on August the 2nd.
    Mr. Hanrahan. That is correct.
    Mr. LaTourette. There has been a suggestion when we 
interviewed the Majority Leader that there is nothing wrong 
with reading the numbers off the board. And, as a matter of 
fact, at one point in time, he said, ``Well, the standing tally 
clerk does it all the time.''
    Now, do you just want to make an observation about that?
    Mr. Hanrahan. Yes, sir, I would like to. It is not that 
simple. The summary board is, of course, available for everyone 
in the chamber to see to track the progress of a roll call. But 
the submission of a tally slip, which is intended for 
announcement to the House as a result of the roll call, is 
limited to a discussion between the standing tally clerk, the 
seated tally clerk, as to when or if voting stations have been 
closed, which would prevent upticks and, therefore, signify 
that the tally that would be written on that slip and turned in 
could be expected to be the final for the vote and be accepted 
as the judgment of the House.
    Mr. LaTourette. I think, at one point in your interview on 
February the 8th, you indicate that perhaps the reason that it 
appears that way is that, because the standing tally clerk has 
the responsibility to, sort of, be looking around in the well 
to make sure there is no further activity, that the standing 
tally clerk may in fact look at the board, but it is only after 
consultation with the seated tally clerk that the system has 
been closed to further input. Is that right?
    Mr. Hanrahan. That is correct. And that discussion is not 
limited to the tally clerks. That is a discussion that is 
commonly and always involves the parliamentarians and the 
reading clerk when the reading clerk is in a position to call 
Members who may or may not be coming to the well to cast 
initial votes or changes, whatever the case might be. It is an 
agreement that we don't see any Members or hear any Members 
attempting to make their presence known in the well for the 
purpose of casting a vote.
    That little bit of a discussion takes just a little bit of 
time. It is a pause, if you will, but it is a perceptible 
pause. And it is meant to ensure that we all agree that there 
is not going to be any further voting and that we are then okay 
to close the voting stations and write that tally and submit it 
to the Chair for announcement to the House.
    Mr. LaTourette. And that never happened on August the 2nd?
    Mr. Hanrahan. That did not happen, no, sir.
    Mr. LaTourette. Could you put the picture back up?
    I want to talk to you about magic words for a second. 
Again, going through the protocol, your discussion on February 
the 8th, there is a traditional way that the Chair closes a 
vote, and says that any Members want to vote, any Members want 
to change their vote. Then, when the Chair announces the 
result, with the benefit of a tally slip, says that, ``on this 
vote the ayes are this, the noes are this,'' and then makes a 
declarative statement that is dispositive of the issue before 
the House. And in the case of a motion to recommit, it would be 
that the motion is not agreed to. On other matters, it would be 
that the bill is passed and the motion to reconsider is laid 
upon the table.
    Is that right?
    Mr. Hanrahan. Yes, sir, that is correct.
    Mr. LaTourette. Okay. Are you aware--we saw the videotape; 
you were in the room during Mr. Pence's opening remarks--that 
Mr. McNulty makes two attempts to stop the vote or call the 
vote. The first time he stops after saying 214-214 and makes no 
declarative statement. The second time, he indicates that it is 
214-214 and says that the motion is not agreed to.
    Based upon your 27 years of experience with the House of 
Representatives, do those words carry any significance?
    Mr. Hanrahan. Sir, they carry significance, but we--from 
the time I came to work here, I was trained to observe the 
protocol for opening and closing a roll call vote, which 
includes announcements or statements from the Chair inquiring 
of the House if there is anyone who has not voted and would 
like to or who has voted and would like to change their votes.
    We didn't touch either one of those bases that night. And 
so we, sort of, jumped over that point to arrive at the 
announcement of the tally. And the situation as it stands that 
night was that we were still processing well votes; we weren't 
done processing well votes.
    And the normal sequence of events is to allow that process 
to play itself out. The Chair then makes its inquiries. We have 
our collaborative discussion as to whether or not anybody is 
aware of any Member attempting to come to the well to get 
recorded or not, change, whatever the case might be. Then we 
close the vote. And then the Chair makes his or her 
announcement based on the tally slip that, if I am the standing 
tally clerk, I have written for the Chair, and the Chair makes 
that announcement and then proceeds to close the vote finally 
by saying that the motion to reconsider is laid upon the table.
    Mr. LaTourette. Let me ask you this. At the time, 
understanding what you just said, at the time Mr. McNulty 
closes the vote the second time--214-214, motion is not 
agreed--it is my understanding that you were still in 
communication with Mr. Anderson, the seated tally clerk, and 
were handing to him the well cards from the three Floridians 
who had voted, two Diaz-Balarts and Ros-Lehtinen.
    Mr. Hanrahan. That is correct.
    Mr. LaTourette. Aside from that, was the well static at 
that moment in time?
    Mr. Hanrahan. Aside from that, the well was static at that 
moment, yes.
    Mr. LaTourette. Okay. I think Mr. Pence, again, in his 
opening remarks, indicated a quote that you have never seen--I 
mean, you have been through a lot of close votes in 27 years, 
but you have never seen the Chair buy into it. Do you remember 
uttering those words?
    Mr. Hanrahan. Yes, sir, I do.
    Mr. LaTourette. Okay. Could you indicate to the Committee 
what it is you believe the Chair bought into?
    Mr. Hanrahan. It is not uncommon for leadership on either 
side to have an interest in moving things along for whatever 
benefit might be implied at the time.
    Our interest is not in the disposition of motions before 
the House. Our interest is to record votes accurately and 
provide the House with a result that it can rely on and know to 
be true.
    When I said that, I have heard any number of times over the 
years Members, leadership or not, come to the well and attempt 
to move things along, and it is not unheard of. In fact, we 
pretty much aren't even deterred much by it, except we take 
note of it, we are aware. We are not here to impede anything. 
We are here to move things along, but within the protocol that 
we were trained to observe: never to take shortcuts.
    Mr. LaTourette. So what did Mr. McNulty buy into? What did 
you mean?
    Mr. Hanrahan. The quick call on the vote was based on an 
observation from the summary board. Now, I can't read his mind; 
I don't know what made him say what he said. But the fact that 
he said it while we were still processing well votes, there was 
nobody more shocked than me. Because I knew exactly, but 
exactly, what was going to happen the minute De'Andre entered 
that last well vote.
    Mr. LaTourette. The Mario Diaz-Balart card.
    Mr. Hanrahan. Yes, sir.
    Mr. LaTourette. You knew the machine was going to uptick 
to----
    Mr. Hanrahan. I knew exactly what was going to happen.
    Mr. LaTourette. Did you mean at all that the Chair bought 
into the pressure?
    Mr. Hanrahan. Yes, that was probably what I was trying to 
get at. I would say that, yes, I think it was a direct result.
    Mr. LaTourette. And where was the pressure coming from?
    Mr. Hanrahan. Well, the pressure was coming, at that point 
in time, from the leadership.
    Mr. LaTourette. And who in the leadership?
    Mr. Hanrahan. Mr. Hoyer, the Majority Leader.
    Mr. LaTourette. And did you hear Mr. Hoyer tell the Chair 
to close the vote?
    Mr. Hanrahan. I did.
    Mr. LaTourette. Did you hear him say that more than once?
    Mr. Hanrahan. I would say, yes, at least twice.
    Mr. LaTourette. And was Mr. Hoyer speaking in a loud voice, 
soft voice?
    Mr. Hanrahan. It wasn't soft. It was declarative.
    Mr. LaTourette. Did you have any difficulty hearing what 
Mr. Hoyer was indicating relative to the closure of the vote?
    Mr. Hanrahan. No, sir, not at the point where he initially 
approached the well. He was very close to where I was standing. 
It wasn't hard to hear.
    I do know that another exchange took place, as you 
mentioned earlier, between he and John Sullivan. That took 
place off to the side of the rostrum, and it was not quite as 
clear to overhear that.
    But where he was at that point, it was clear to me that he 
was interested in moving things to a close.
    Mr. LaTourette. In my last 29 seconds, on pages 57 and 58 
of your observations to us in February, I just want to read you 
two paragraphs and ask if you still agree with them today. 
``There was some stuff said, I think, maybe. And I hate to do 
this. I don't even know if it is right. I am guessing Mr. 
McNulty knows better. He has been up there a hundred times if 
he has been once. He is one of the better Members we have in 
the Chair. He knows how to do this. Why he bought into that I 
don't know. I still don't know. I was stunned to hear that.''
    Then over on page 58, ``But, again, it is the whole thing 
that happened that night that makes it different from any other 
night, is the Chair's response. I mean, I have heard it a 
hundred times, `Close this vote now.' I have heard all kinds of 
admonitions and hurry-ups and we have things we have to do and 
`I don't like the way it is going; hurry up,' all that stuff. 
But I have never seen the Chair make an early call like that.''
    Mr. Hanrahan. That is correct. That is still how I feel 
about it.
    Mr. LaTourette. Thank you so much.
    The Chairman. Mr. Davis?
    Mr. Davis. Thank you, Mr. Chairman.
    Mr. Hanrahan, first of all, let me begin by thanking you 
for being here today. I know that you are an individual--and, 
frankly, a lot of folks in the room may not fully appreciate 
this, so I will open by making this point. The staff, the 
parliamentarians, the people who work the rostrum are neither 
Democrats nor Republicans. You all work for the House of 
Representatives.
    And you currently work in this Democratic Majority. You 
have worked in a Republican Majority. And then, before that, 
you worked in a Democratic Majority. Is all that correct?
    Mr. Hanrahan. Yes, sir, that is correct.
    Mr. Davis. And let me begin, Mr. Hanrahan, by talking for a 
moment about the importance of the tally sheet.
    Mr. LaTourette gave you a document that was prepared by 
Lorraine Miller, the Clerk of the House. Do you still have that 
document in front of you?
    Mr. Hanrahan. Yes, sir, I do.
    Mr. Davis. I would like you to turn to page 2, and I would 
like you to look at the same paragraph that Mr. LaTourette 
referenced. It is a paragraph that describes the process for 
closing the vote in the EVS system. Do you see that?
    Mr. Hanrahan. Yes, sir, I do.
    Mr. Davis. Now, this document was prepared by Ms. Miller at 
the request of this Committee. Is that your understanding?
    Mr. Hanrahan. Yes, sir.
    Mr. Davis. Is this kind of an explanation for how the EVS 
system is closed out; is this kind of a document routinely 
given to Members of the House? Have you ever known this kind of 
document to be in any other context given to Members of the 
House?
    Mr. Hanrahan. I am aware of an orientation process when 
Congresses begin and Members are apprised of the outline, 
anyway, of the general voting process. Of course, they are 
issued their voting cards, and that process is explained to 
them, locations of voting stations in the Chamber and that sort 
of thing.
    Mr. Davis. Do you participate in that process?
    Mr. Hanrahan. No, sir, I don't.
    Mr. Davis. And do you have any knowledge of whether even 
presiding officers are routinely given any kind of documents 
summarizing how the electronic voting system closes out?
    Mr. Hanrahan. I am not aware of one, no, sir.
    Mr. Davis. And are you aware of any kind of an orientation 
session that presiding officers go through in which they are 
given the kind of information that Ms. Miller puts in this 
document?
    Mr. Hanrahan. I am not aware of one personally, no, sir.
    Mr. Davis. And had Mr. McNulty been in the Chair numerous 
times before that night, to your recollection?
    Mr. Hanrahan. Yes, sir, many times.
    Mr. Davis. Had you ever had occasion to discuss with Mr. 
McNulty prior to the night of August 2nd the process for 
closing the vote in the EVS system?
    Mr. Hanrahan. No, sir.
    Mr. Davis. And had you ever had any occasion prior to 
August 2nd for discussing with Mr. McNulty or any other 
presiding officer the importance of a tally sheet?
    Mr. Hanrahan. No, sir.
    Mr. Davis. And I think you would agree that the written 
rules of the House do not refer to the presence of a tally 
sheet. Is that correct?
    Mr. Hanrahan. As far as I know, that is correct.
    Mr. Davis. Now, let me ask you a broader question. Is there 
any requirement in the rules that a presiding officer obtain 
the permission of the parliamentarian before he or she calls a 
vote?
    Mr. Hanrahan. Permission, no, not per se. But the protocol 
that we live with and observe on a day-to-day basis allows room 
for consultation to get to that point with the 
parliamentarians. I mean, I don't think that permission is 
required, as much as touching bases in the protocol to maintain 
accountability and quality control are probably important more 
than permission.
    But in the sense that you can't get to a point where the 
vote can be closed until the protocol basis has been met in 
order to ensure that accountability, I think it is maybe easy 
to say that, to some extent, there is a waiting period to move 
to a point where such a thing can occur.
    Mr. Davis. Well, I respect your perspective, but let me 
just ask you very directly: Who has the ultimate discretion to 
call a vote in the House of Representatives?
    Mr. Hanrahan. The Chair has to have the ultimate 
discretion.
    Mr. Davis. Now, on the night of August 2nd itself, let me 
just ask you generally, as you recall the moments after the 
motion to recommit went to zero and the space between that time 
and the space when Mr. McNulty calls the vote erroneously--I 
will go ahead and acknowledge he called it erroneously, and I 
think he will acknowledge that--and the gap between when the 
clock hits 00 and Mr. McNulty makes his premature calling of 
the vote, did you hear any member of the staff telling Mr. 
McNulty, ``You need to have a tally sheet?''
    Mr. Hanrahan. No, sir, I did not.
    Mr. Davis. Did you personally communicate to Mr. McNulty 
that he needed to have a tally sheet?
    Mr. Hanrahan. No, sir, I didn't. And I wish I had had the 
presence of mind to, in that situation, at that time. Under the 
circumstances, I wish I had done better.
    Mr. Davis. Let me ask you--if I can get our video operator 
to begin to play the tape, because I want to ask you to look at 
a series of events and comment on them.
    And if we could go to 10:50:45. And when you have found 
10:50:45, let's put it on the screen. Or 22:50:45, if you are 
using the military time for 10:50 that night.
    Mr. Hanrahan, you can see two TV screens, and you can take 
your pick. So we'll go to 22:50:45.
    Just play it.
    Watch, Mr. Hanrahan, if you would.
    [Video was played.]
    Mr. Davis. At the point that Mr. McNulty calls the vote, if 
we could dial back on the tape and just visually look at it for 
a moment.
    At the point before he calls the vote, you were standing 
there, Mr. Hanrahan, and you are processing a well card. Is 
that correct?
    Mr. Hanrahan. That appears so, yes, sir.
    Mr. Davis. And you said that you knew that there was going 
to be an uptick in the board. The board was, I believe, 214-
214. You believed that once that last card from Diaz-Balart was 
processed, that there would be an uptick from 215-213, if I 
understood you correctly?
    Mr. Hanrahan. That is correct, yes, sir.
    Mr. Davis. During your deposition in February, you were 
asked a question, and at one point, on page 39 of your 
deposition, this is what you said: ``Nobody but us is aware--
the tally clerks, I am talking about--is aware of whether there 
are any well votes to be processed.''
    What did you mean, sir?
    Mr. Hanrahan. Sir, that remark was in response to a 
scenario in which the well may or may not appear to be 
populated by Members who are attempting to vote or to change. 
But it does not speak to the fact that we may still be holding 
and processing well cards.
    And as a small, little aside here, ever since I came to 
work here, my personal preference has been to hold that yea-nay 
pad that we showed up earlier, I hold that as a platform on 
which to write the roll call number and to initial the well 
card as to being identified as submitted by the Member who 
submitted it and turn it in.
    It appears that--it may look like there is nobody there 
doing anything, but we are still processing votes and in the 
process of my marking them, verifying them, and handing them to 
the seated tally clerk, who in this case was De'Andre.
    Mr. Davis. That is something you appreciate as a tally 
clerk. Do you know whether or not the typical presiding officer 
appreciates that, Mr. Hanrahan?
    Mr. Hanrahan. Appreciate? I don't know if I----
    Mr. Davis. Well, in fact, what you said in your deposition 
is, ``Nobody but us is aware--the tally clerks, I am talking 
about--is aware of whether there are any well votes to be 
processed.''
    Mr. Hanrahan. Yes, okay, I see what you are getting at. 
Yes, sir. I don't know whether the Chair appreciates it, but it 
is the case.
    Mr. Davis. Okay. Now, do you have any way of knowing 
whether Mr. McNulty appreciated that there was about to be an 
uptick in the vote at the time he makes his call?
    Mr. Hanrahan. I don't have any way of knowing whether he 
knew there was or wasn't, no.
    Mr. Davis. And you will remember from looking at the tape, 
Mr. Hanrahan, we can see Mr. McNulty standing there, and I 
assume you agree with me, the Majority Leader is not in the 
picture at this point. We don't see the Majority Leader.
    Mr. Hanrahan. Correct.
    Mr. Davis. Do we see any member of the Majority Leader or 
the speaker's staff near Mr. McNulty at that point?
    Mr. Hanrahan. Near Mr. McNulty, no.
    Mr. Davis. What does Mr. McNulty appear to be doing, and 
not just at this moment, but as you watch the tape, in the 
moments before he calls the vote, what did he appear to be 
doing? Where did he appear to be looking?
    Mr. Hanrahan. To the summary board in the Chamber.
    Mr. Davis. And, again, recognizing that there are people 
viewing this who aren't in the Chamber every day, the summary 
board is the board that is on the left and right side of the 
Chamber that lists the vote score at any moment. Is that 
correct?
    Mr. Hanrahan. Yes, sir.
    Mr. Davis. And you agree with me that Mr. McNulty appears 
to be continually looking up at the summary board before he 
calls the vote. Is that correct?
    Mr. Hanrahan.  Yes, sir.
    Mr. Davis.  And at the time Mr. McNulty calls the vote; do 
you see him appear to be receiving any instruction from the 
Majority Leader to call the vote?
    Mr. Hanrahan.  At that point, no, sir.
    Mr. Davis.  At the time Mr. McNulty calls the vote; do you 
see him appear to be receiving any instruction from anyone?
    Mr. Hanrahan.  No, sir. Not in that picture, no.
    Mr. Davis.  Well, I focus on this because that is when he 
calls the vote.
    Now, at the time that Mr. McNulty calls the vote, who are 
the members of the staff who are closest to him on his right?
    Mr. Hanrahan.  His right are the parliamentarians, John 
Sullivan and Ethan Lauer.
    Mr. Davis.  Did either Mr. Sullivan or Mr. Lauer attempt to 
stop Mr. McNulty as he calls the vote?
    Mr. Hanrahan.  I don't believe that they did, but I also 
have to say that I don't know that they would have had an 
opportunity. It happened very quickly.
    Mr. Davis.  Well, let me just ask you. Again, we can all 
watch it for ourselves, but do you see either of them appear to 
attempt to stop him as he calls the vote?
    Mr. Hanrahan.  I didn't see one, no.
    Mr. Davis.  And, obviously, it took him some seconds to 
state the iteration. He declares a number, and then he says the 
motion is not carried. Do you see anyone attempt to interrupt 
him as he does that, Mr. Hanrahan?
    Mr. Hanrahan.  At that point, no, sir.
    Mr. Davis.  Now, you are standing here, and I think you 
have candidly and correctly acknowledged that you don't make 
any attempt to stop him at this point. Let's look at what 
happens next. Let's play the tape from this point, and we will 
have you watch it, Mr. Hanrahan. Or if we could get to the 
point he calls the vote.
    [Video was played.]
    Mr. Davis.  Let's stop at this point.
    To save time--and you have had occasion to review the tape 
before today. Isn't that correct?
    Mr. Hanrahan.  I have seen it before, yes.
    Mr. Davis.  Do you agree with me that after Mr. McNulty 
erroneously calls the vote, that voting activity continues in 
the House?
    Mr. Hanrahan.  Yes, sir.
    Mr. Davis.  And let me back up and ask one other question 
for clarification. At the time Mr. McNulty called the vote, did 
you hear any Member yelling, ``One more?''
    Mr. Hanrahan.  ``One more,'' no, sir. I don't remember 
hearing that.
    Mr. Davis.  Do you remember any Member yelling or saying 
anything that would indicate that he or she was attempting to 
cast a vote while McNulty was calling the vote at this point?
    Mr. Hanrahan.  Given the noise level, I think it is hard to 
say. I don't remember hearing that, but it doesn't mean it 
didn't happen.
    Mr. Davis.  Okay, well, by definition, I am just--And, Mr. 
Hanrahan, just so we are clear, let's go back again to what 
happens after this. Members continue to vote; is that correct?
    I think, in my opening statement, I characterized a 7-
minute gap that occurs. Does that sound about right to you, in 
terms of the time frame between when McNulty erroneously calls 
the vote and when McNulty reads his final statement about the 
vote?
    Mr. Hanrahan.  Yes, sir, that is approximately right.
    Mr. Davis.  During that approximate time frame of 7 
minutes, did some Members go to the well, fill out cards and 
change their votes?
    Mr. Hanrahan.  Yes, sir.
    Mr. Davis.  Now, what is interesting is this process 
continues even after he has called the vote. Do you agree with 
that?
    Mr. Hanrahan.  Yes.
    Mr. Davis.  Did anyone instruct you to continue to process 
well cards even though the vote had been called, if you will?
    Mr. Hanrahan.  No, sir, no one instructed me, because we 
were operating under the protocol that we always operate under.
    Mr. Davis.  Did anyone, in any way, try to prevent the 
process from going forward? Did anything happen that would 
impede Members from coming down to continue to change votes?
    Mr. Hanrahan.  No, sir.
    Mr. Davis.  And during that time frame, which you agree is 
approximately 7 minutes, I assume that Members could have 
changed votes either way. They could have gone from no to yes 
and yes to no. Is that correct?
    Mr. Hanrahan.  There was plenty of time, yes.
    Mr. Davis.  Did you observe any Member that night, Mr. 
Hanrahan, during the 7-minute gap, attempt to walk forward to 
change a vote and be prevented from doing so?
    Mr. Hanrahan.  No, sir.
    Mr. Davis.  Did any Member complain to you that night, ``I 
tried to change my vote during this 7-minute period and was 
prevented from doing so?''
    Mr. Hanrahan.  No, sir.
    Mr. Davis.  And you would remember that, wouldn't you, Mr. 
Hanrahan?
    Mr. Hanrahan.  Absolutely.
    Mr. Davis.  Let me ask you a few questions about the 
exchanges with Mr. Hoyer. And just so you are clear, I will 
have another 10-minute frame to question you, and so will Mr. 
LaTourette. But I want to go to Mr. Hoyer for one second.
    You are aware that we took Mr. Sullivan's deposition?
    Mr. Hanrahan.  Yes.
    Mr. Davis.  And I know you have an enormous regard for Mr. 
Sullivan. You view him as an outstanding parliamentarian. Is 
that correct?
    Mr. Hanrahan.  Yes, sir.
    Mr. Davis.  And you view him as someone who is certainly 
honest and candid.
    Mr. Hanrahan.  Yes, sir.
    Mr. Davis.  He was asked during his deposition, frankly, 
about the tenor of the exchange with Mr. Hoyer. I want to 
briefly quote, if I can. Mr. LaTourette asked him the question 
on page 76 of the Sullivan deposition, referring to Mr. Hoyer, 
``But was he profane?'' The response from Mr. Sullivan: ``Not 
to my recollection.''
    I want to go to page 77. Mr. LaTourette tries it again, as 
we questioners often do: ``But you don't recall the Majority 
Leader being profane?'' Mr. Sullivan's answer: ``No. He may 
have said the word `damn' or something like that. 
Distinguishing between profane and vulgar, certainly not 
vulgar. Maybe he said, `You know, this damn place; we run this 
damn'--or something like that. I don't know.''
    Are you also aware, Mr. Hanrahan, that we have interviewed 
other members of the rostrum staff that night?
    Mr. Hanrahan.  Certainly.
    Mr. Davis.  And I in no way mean to impugn or question 
anything about what you said. I think you are an exceptional 
member of the staff, and you have a reputation for such.
    But are you aware that no member of the staff that we 
interviewed has any recollection of Mr. Hoyer using profanity 
beyond the one word I just mentioned?
    Mr. Hanrahan.  No, sir, I wasn't aware of that.
    Mr. Davis.  But these other members of the staff at some 
point would have been in position to hear the exchanges between 
Hoyer and McNulty. Is that correct?
    Mr. Hanrahan.  Certainly.
    Mr. LaTourette. You mean Hoyer and Sullivan?
    Mr. Davis.  Hoyer and Sullivan, yes, I am sorry.
    Mr. Hanrahan.  Yes, sir.
    Mr. Davis.  Now, as I wrap up on this first round of 
questions, let me just begin to pull this together a little 
bit, Mr. Hanrahan.
    Was there any point that night when Mr. McNulty ignored an 
instruction from the parliamentary staff?
    Mr. Hanrahan.  I don't recall.
    Mr. Davis.  Was there any point when you recall any member 
of the rostrum staff attempting to get Mr. McNulty input and 
him refusing or declining it?
    Mr. Hanrahan.  No, sir, I don't remember anything like 
that.
    Mr. Davis.  In fact, do you remember after the erroneous 
calling of the vote, that Mr. Sullivan walks up, stands next to 
Mr. McNulty, and essentially talks him through the process for 
correcting what happened?
    Mr. Hanrahan.  I am aware that he was writing a statement 
and trying to come up with something for him to recite, yes.
    Mr. Davis.  Did Mr. McNulty follow the statement that Mr. 
Sullivan gave him?
    Mr. Hanrahan.  Sir, I don't know. I don't know what the 
statement said, so----
    Mr. Davis.  You didn't see him showing any resistance to 
what Mr. Sullivan was saying?
    Mr. Hanrahan. No resistance, no.
    Mr. Davis. And you made the observation about the 
Democratic Majority wanting to close the vote down. In the 30 
years--I hate to date you, but in the 30-some years you have 
worked for the House, it is commonplace in a close vote for the 
majority to try to close it down after zero, isn't it?
    Mr. Hanrahan. Absolutely.
    Mr. Davis. You have seen Democrats be aggressive about 
closing it down, correct?
    Mr. Hanrahan. Yes, sir.
    Mr. Davis. You have seen Republicans be aggressive, 
correct?
    Mr. Hanrahan. Yes, sir.
    Mr. Davis. You certainly saw Mr. DeLay be aggressive at 
times by closing a vote down, didn't you?
    Mr. Hanrahan. That is correct.
    Mr. Davis. My final question on this round. Mr. Boehner 
made this observation--in fact, actually, Mr. Boehner made this 
observation in a statement on the floor, referring to Mr. 
McNulty, Mr. Boehner said, ``He is in fact one of the fairest 
Members who could ever be in the Chair.''
    Mr. Boehner made that statement on the floor the day after 
all this happened, that he is in fact one of the fairest 
Members who could ever be in the Chair.
    Do you disagree with that?
    Mr. Hanrahan. No, sir, I don't.
    Mr. Davis. I have no other questions, at this point.
    The Chairman. Mr. LaTourette.
    I am sorry, I apologize. Mr. Pence.
    Mr. Pence. Just a couple of questions, but I will, Mr. 
Chairman, be yielding the balance of our redirect time to Mr. 
LaTourette.
    Let me ask you, Mr. Hanrahan--thanks, again, for your 
testimony today--a couple of points, just to make sure I am 
clear.
    Mr. Davis just spoke to you about--I think he used the word 
``commonplace'' for Members of the Majority to seek to close 
down a vote. In your nearly three decades of experience on the 
rostrum, have you seen that many times?
    Mr. Hanrahan. Yes, sir.
    Mr. Pence. Let me ask again, have you ever seen the Chair 
disregard the longstanding procedure of waiting for a tally 
slip before closing a vote?
    Mr. Hanrahan. No, sir.
    Mr. Pence. Secondly--and Mr. LaTourette delved into this 
significantly, and I referenced your testimony in my opening 
statement, which I believe you were here to hear.
    Mr. Hanrahan. Yes, sir.
    Mr. Pence. And, again, to be clear, you testified in 
questions from Mr. LaTourette that when you used the phrase 
that you had, quote, ``never seen the Chair buy into it, never. 
I wish he hadn't done it, but he did,'' close quote, Mr. 
LaTourette asked you if you believed he had bought into 
pressure. You said that was correct.
    And I want to understand clearly. You believe that 
pressure, in your words, was from the leadership and 
specifically from Mr. Hoyer?
    Mr. Hanrahan. I would say leadership generally. I assume 
that, because Mr. Hoyer was in the well, that he would be the 
prime mover of that effort to close the vote down.
    Mr. Pence. At the rostrum, you also testified under 
questioning from Mr. LaTourette, that you heard Mr. Hoyer ask 
to close the vote twice.
    Mr. Hanrahan. I did hear that, yes, two times.
    Mr. Pence. Okay.
    Let me ask you about an exchange--and Mr. Davis is very 
curious about this, so I will ask about it as well. After Mr. 
McNulty announced the result at 214-214 for the first time and 
pulled back, I want to confirm, you did observe a conversation 
between Mr. Hoyer and Mr. Sullivan on the rostrum. Is that 
correct?
    Mr. Hanrahan. Off the side, essentially.
    Mr. Pence. Off to the side.
    Mr. Hanrahan. At least relative to where I was standing.
    Mr. Pence. Leaving aside the vocabulary that the Majority 
Leader may or may not have used, how would you describe Mr. 
Hoyer's disposition at that point?
    Mr. Hanrahan. Certainly no different than any other 
experience I have had when a leader was trying to accomplish 
what he was trying to accomplish. I don't think it was 
particularly pleasant to be on the receiving end of it. I don't 
think it was unusual to hear it. And so it is kind of hard for 
me to categorize it, because it is not unusual. I have seen it 
before.
    Mr. Pence. Let me see if I can get to a specific question. 
When asked the question, ``how would you describe Mr. Hoyer's 
disposition at that point,'' you testified with one word, 
``angry.'' Would that still be a fair characterization?
    Mr. Hanrahan. Yes, sir, he was angry.
    Mr. Pence. Was that conversation within earshot of Mr. 
McNulty?
    Mr. Hanrahan. I would have to say, even if it was, given 
the noise level, he probably wouldn't have necessarily heard 
it.
    Mr. Pence. That angry exchange between Majority Leader 
Hoyer and Mr. Sullivan, did that take place shortly before Mr. 
McNulty called the vote the second time?
    Mr. Hanrahan. The second time, yes. That is my 
recollection.
    Mr. Pence. One last question before I yield. My question is 
about Mr. Space, who we saw on the video moving around with the 
yellow circle.
    How long do you recall Mr. Space had been in the well? And 
also, would it have been reasonable for Mr. McNulty to assume 
that if he had intended to vote he already would have voted? Do 
you remember?
    Mr. Hanrahan. I don't even remember seeing Mr. Space in the 
well until he presented his well card.
    Mr. Pence. Okay.
    Mr. Hanrahan. So I don't really have a way of answering 
that any better than that.
    Mr. Pence. Okay. That is responsive. Thank you.
    Mr. LaTourette.
    Mr. LaTourette. Thank you very much. And just a couple of 
questions.
    And Mr. Davis asked you about the typical Chair this, 
typical Chair that, the typical presiding officer. Mr. McNulty, 
at this point in time, was not a typical presiding officer. He 
was one of the best presiding officers the Democrats had. Isn't 
that fair?
    Mr. Hanrahan. Yes, sir.
    Mr. LaTourette. And wouldn't it be fair to indicate that 
the reason that people weren't offering a lot of advice is that 
the rostrum was stunned at the call of this vote?
    Mr. Hanrahan. I certainly was.
    Mr. LaTourette. Well, and I think--and, again, on February 
the 8th, you indicated that you thought it was your impression 
that Mr. Sullivan was stunned.
    Mr. Hanrahan. I think everybody was. That is a fair 
statement, I think.
    Mr. LaTourette. Okay. Again, the document prepared by Ms. 
Miller that we referred to, page 2, the way in which an EVS 
vote is concluded, that the last step for the seated tally 
clerk is to release the boards. Is that right?
    Mr. Hanrahan. That is the last thing, yes.
    Mr. LaTourette. And are you aware that after Mr. McNulty 
called the vote the second time and said the motion is not 
agreed to, that, in fact, the seated tally clerk was attempting 
to release the boards?
    Mr. Hanrahan. Yes, he was.
    Mr. LaTourette. And if we could put up--the seated tally 
clerk was De'Andre Anderson.
    Mr. Hanrahan. Yes.
    Mr. LaTourette. And during your interview in February, you 
were shown a document that Mr. Anderson prepared at the time of 
this event and asked--Mr. Anderson says, ``Then I got to the 
fifth step of the process, the last step, which is, `Are you 
sure you want to release the vote?' I clicked and clicked and 
click again and could not release the vote. After about 5 to 10 
seconds of trying to release the boards, more Members came into 
the well of the House to vote and submitted well cards.''
    Do you remember that exchange?
    Mr. Hanrahan. Yes.
    Mr. LaTourette. Do you remember that being what happened on 
August the 2nd?
    Mr. Hanrahan. Yes. I will say yes.
    Mr. LaTourette. Okay. And am I right that what he is 
talking about is that after Mr. McNulty says, ``214-214; the 
motion is not agreed to,'' Mr. Anderson attempted to clear the 
system, was unsuccessful because of a malfunction, apparently, 
and it is at that time that the three additional Democrats--
Space, Gillibrand and McNerney--presented themselves to submit 
well cards?
    Mr. Hanrahan. I don't know exactly at that point how far 
along. He communicated to me at a point, yes, that he was 
having difficulty getting the system to respond to his efforts 
to move us from the well voting process to the shut-down 
process.
    It is not uncommon at all to reach the drop-dead point and 
still even pull back. It happens routinely.
    And at that point in time, I would have to say that I don't 
actually know when he communicated that to me with respect to 
the appearance of the well voters, except that it couldn't have 
been much time. It had to have been a very short period of 
time.
    Mr. LaTourette. Well, let me ask you this: Do you have any 
reason, based upon your observations of August the 2nd, to 
dispute that paragraph of Mr. Anderson's statement?
    Mr. Hanrahan. No, sir. But to be perfectly fair, I was not 
the seated tally clerk that night. I don't know what key 
strokes were pushed, and I don't know what icons might have 
been clicked. And so the exact exchange and timeline is 
something that only the person seated in that chair would 
necessarily know.
    Mr. LaTourette. Well, and that is fair. And that is why I 
asked the question, do you have any information to dispute what 
Mr. Anderson has written?
    Mr. Hanrahan. No, sir, I don't.
    Mr. LaTourette. Did you receive a well card from Mr. 
Boehner, the Minority leader?
    Mr. Hanrahan. Yes, sir, I did.
    Mr. LaTourette. Are you aware that it was never processed?
    Mr. Hanrahan. I am.
    Mr. LaTourette. Are you aware that, because the protocol of 
the Clerk's office wasn't followed, that this vote was not 212-
216, as Mr. Sullivan eventually wrote down, it was really 211-
217?
    Mr. Hanrahan. Had that vote been processed, the outcome 
would have been different.
    Mr. LaTourette. Do you have any explanation for why that 
vote wasn't processed?
    Mr. Hanrahan. No, sir, except that I will tell you that in 
close votes, such as the one we had that evening, we are not 
unprepared to watch for and wait for the leadership to appear 
to cast votes, particularly when we know or at least expect 
that they are going to position themselves for a possible 
motion to reconsider. And, as everyone here knows, you have to 
be on the prevailing side to make that motion.
    Now, he did that. But my only answer to your question--and 
I realize it is not a good one, but it is the only one I have--
is there was so much going on in the House, at one point we 
simply stopped. We weren't doing anything.
    Mr. LaTourette. Right. But for whatever reason, Mr. 
Boehner's change--was never----
    Mr. Hanrahan. It was never recorded.
    Mr. LaTourette. Still, to this day.
    Mr. Hanrahan. Right.
    Mr. LaTourette. The last thing is you were asked a lot of 
questions by Mr. Davis about who could hear what, and was this 
person approximate to that person, and so forth and so on.
    The level of voice that Mr. Hoyer was using in 
communicating that he wanted the vote closed now, you heard it 
clearly?
    Mr. Hanrahan. That was audible to me, yes, because his 
initial approach to the well was right where I was standing.
    Mr. LaTourette. Okay.
    And I think that that is all. Thank you.
    The Chairman. Thank you, Mr. LaTourette.
    Mr. Davis.
    Mr. Davis. Thank you, Mr. Chairman.
    Let me just quickly pick up, if I can, Mr. Hanrahan, on the 
questions about Mr. Boehner and his well card.
    Do you remember Mr. Boehner raising any issue that night 
about his well card not being processed?
    Mr. Hanrahan. No, sir, he didn't. Not to me, anyway.
    Mr. Davis. Do you remember, for that matter, any member of 
his staff raising any issue that night about his well card not 
being processed?
    Mr. Hanrahan. I don't recall anything being said at that 
time.
    Mr. Davis. Mr. Pence, in his opening statement, made some 
assertions about what he believes the correct vote was that 
night. So let me just walk you through some basic things here.
    We have agreed that, during a 7-minute period after the 
vote is erroneously called, that Members are allowed--or 
continue to go to the well card and process their votes. Is 
that correct?
    Mr. Hanrahan. Yes.
    Mr. Davis. And a count was being kept as they did that. Is 
that also right?
    Mr. Hanrahan. Yes.
    Mr. Davis. And was Mr. Sullivan aware of that count?
    Mr. Hanrahan. I would assume that he was, yes. I don't know 
for certain. But under standard protocol, he would be.
    Mr. Davis. All right. So the statement for the Chair that 
was read that night, do you happen to remember whether or not 
Mr. McNulty's statement ever actually referenced a vote number?
    Mr. Hanrahan. Not that I am aware of, no. I never did hear 
that.
    Mr. Davis. But you are aware there is a final vote number 
that is logged that night. Is that correct?
    Mr. Hanrahan. In a tally? Yes.
    Mr. Davis. Yes.
    Mr. Hanrahan. Yes.
    Mr. Davis. And what is the final recorded tally from that 
night of August 2nd?
    Mr. Hanrahan. I believe it was 213-216--212-216.
    Mr. Davis. And which way?
    Mr. Hanrahan. Against the motion.
    Mr. Davis. All right. So 216 noes, 212 yeas. And is that a 
reflection, do you believe, of the changes that happened in the 
well during the 7-minute time frame that I referenced?
    Mr. Hanrahan. Yes, sir. I would have to say yes.
    Mr. Davis. Do you have any reason to believe that that is 
an inaccurate count or that count does not reflect the will of 
the House that night?
    Mr. Hanrahan. I have to simply say that the protocol that 
we follow wasn't followed.
    Mr. Davis. I understand that, but I am asking about the 
final recorded score of 216-212. Do you have any reason to 
assert that that was not the stated vote count of the 428 
Members who were there that night?
    Mr. Hanrahan. Well, it was the stated vote count. We know 
Mr. Boehner's card wasn't processed.
    Mr. Davis. Right. But do you have any reason to believe 
that, other than Mr. Boehner's card not being processed, which 
Mr. Boehner didn't complain about, that that is erroneous or 
inaccurate?
    Mr.Hanrahan. Other than that, I don't have any reason to 
believe.
    Mr. Davis. Let me show you one point from the tape.
    If you would go to 10:50:38, or 22:50:38, if that makes it 
easier.
    And I will ask you to look at this, Mr. Hanrahan. This will 
be the point where Mr. Hoyer approaches Mr. Sullivan, and he 
clearly says something that we believe is, ``We control the 
House,'' or something like that. Why don't you just look at it 
for a moment?
    [Video was played.]
    Mr. Davis. You see Mr. Hoyer walking away. You have said 
you can't tell if Mr. McNulty even heard this exchange. Is that 
correct?
    Mr. Hanrahan. I have no way of knowing if he heard it, no.
    Mr. Davis. Did Mr. McNulty call the vote, at that point?
    Mr. Hanrahan. After that? Right after that?
    Mr. Davis. Yes. At that point, did he call the vote?
    Mr. Hanrahan. No, sir, he didn't.
    Mr. Davis. In fact, at the point where Mr. McNulty calls 
the vote, I think you have acknowledged Mr. Hoyer is not in 
sight. Is that correct?
    Mr. Hanrahan. I did acknowledge that earlier, yes.
    Mr. Davis. Now, let me try to, perhaps, put a little bit of 
a larger perspective around this, Mr. Hanrahan. One of the 
things that we have been asked to do is make recommendations to 
the House going forward.
    Would it be helpful, in your opinion, if presiding officers 
were given some kind of regular education about the process for 
closing the EVS system?
    Mr. Hanrahan. I can't imagine that it wouldn't be helpful 
for everyone who presides to know how it works, yes.
    Mr. Davis. And do you think it would be helpful, going 
forward, if presiding officers were given instruction about the 
relevance of a tally sheet? I think you said that you have no 
reason to think that has happened now. Would it be a helpful 
thing, going forward?
    Mr. Hanrahan. I think it would be, sure.
    I also think that--actually, a training program, I am not 
aware of a training program that explains the tally sheet as 
one facet of the voting process. I know that any Member who 
assumes the Chair and presides, they get an on-the-spot rundown 
from the parliamentarian as to how things will go, from time to 
time. I don't know that it is a comprehensive plan that any 
Member who presides must sit through. There may be; I don't 
know if there is or isn't.
    Mr. Davis. And just so we are clear, you don't remember 
there actually being any controversy about the presence or lack 
of a tally sheet before August 2nd, do you?
    Mr. Hanrahan. Before August 2nd?
    Mr. Davis. Right.
    Mr. Hanrahan. As a matter of course, it was always offered 
up.
    Mr. Davis. But as a consequence--I am asking a very simple 
question. Had there been any controversy about the relevance of 
a tally sheet before that night? Had there been any question or 
issue or anything that would have alerted the rank-and-file 
Member to be aware of any issues around the tally sheet?
    Mr. Hanrahan. If I understand your question, I would say 
no.
    Mr. Davis. Now, let me go again through a series of 
questions involving Mr. McNulty.
    We have heard Mr. McNulty described as one of the fairer 
presiding officers, and you have said you agree with that. Is 
that correct?
    Mr. Hanrahan. That is correct.
    Mr. Davis. Do you have any reason to believe, Mr. Hanrahan, 
that Mr. McNulty was attempting to violate the rules of the 
House that night?
    Mr. Hanrahan. No, sir, I don't.
    Mr. Davis. Do you have any reason to believe that Mr. 
McNulty was attempting to prevent Members from voting or having 
their votes recorded that night?
    Mr. Hanrahan. No, sir.
    Mr. Davis. And did you hear Mr. Hoyer give any instruction 
or suggestion that the votes of Members be ignored that night 
in any way?
    Mr. Hanrahan. No, sir.
    Mr. Davis. And you have talked several times today, in your 
answers to Mr. LaTourette, about Mr. McNulty buying into 
something. Mr. McNulty, as the presiding officer, would have 
had the discretion, and the sole discretion, as to when to call 
a vote on the night of August 2nd. Do you agree with that, sir?
    Mr. Hanrahan. Based on the past experience that we have 
had, yes, the Chair does have that discretion.
    Mr. Davis. I have no further questions.
    The Chairman. I am going to yield for a minute to the 
gentleman from Ohio.
    Mr. LaTourette. Thank you very much. And I just ask 
unanimous consent that Artur get another minute, if that is 
where we are.
    The Chairman. Without objection.
    Mr. LaTourette. Three quick things. I mean, this whole 
business about the announced vote at the end, after everybody 
came in and changed the votes, was 212-216, but as we 
discussed, that wasn't the true vote. The true vote is 211-217, 
because Mr. Boehner's change card was not processed. Right?
    Mr. Hanrahan. Correct. Had it been processed, that would 
have been the result.
    Mr. LaTourette. And we hear a lot about every vote should 
count, everybody should count. Mr. Boehner represents 650,000 
Americans, does he not?
    Mr. Hanrahan. Yes, sir.
    Mr. LaTourette. And just to be clear, Mr. Chairman, I would 
ask unanimous consent, because I don't want to leave the record 
unclear, that this line of questioning about did Mr. Boehner 
object, did a member of Mr. Boehner's staff object--we have 
interviewed them, and Mr. Boehner and his staff indicate that, 
on this night and for some nights after, he was not aware that 
his change card had been not processed.
    And I would ask unanimous consent that--I wish I was smart 
enough to have the pages in front of me; I will get it over the 
lunch break--that those pages of Mr. Boehner's observations be 
included into the record.
    The Chairman. Without objection.
    [The information follows:]

had you voted in a voting station on the motion to recommit?
    A I did vote for the motion to recommit.
    Q At a voting station with your card?
    A At a voting station.
    Q And then subsequently to that, did you go down to the well for 
the purpose of entering a well card?
    A I did. I went down and pulled a red card and changed my vote from 
aye to no.
    Q Through testimony that has been received from other witnesses, 
the committee is aware that your changed vote was never processed, you 
were never recorded as a no. Was it your intention when you submitted 
the well card to be recorded as a no?
    A Yes.
    Q And for what purpose did you change from a yes on the motion to 
recommit to a no?
    A To be on the prevailing side of the vote in case there was a need 
to move to reconsider the vote.
    Q There was--when we had John Sullivan, his deposition, he 
suggested that that's not an uncommon practice for leaders on either 
side of the aisle to--in anticipation of being on the presiding side of 
the votes, to make a motion for reconsideration, to submit a card for 
that purpose. But he also indicated there are times when leadership on 
both sides will indicate to the staff of the Clerk's Office that only 
use the card if I signal you ordon't use the card.
    Did you issue any instructions, observations to anybody in the 
Chamber that night whether you wanted your card to be entered onto the 
electronic voting display?
    A I made no comment to anyone other than moving my vote from yes to 
no.
    Q Through the course of that time when sort of there was a little 
ruckus caused in the House floor, were you aware at all that evening on 
August 2nd that your vote had not been changed from an aye to a nay?
    A No.
    Q Are you aware of it today?
    A Yes.
    Q And when approximately did you become aware of it?
    A I don't know whether it was days or months afterwards.
    Q And it would have been a conversation with staff or somebody else 
that that came to your attention?
    A Yes.
    Q Was it your intention as you left the floor or as you entered 
that well card on August 2nd to have been recorded as a no; you wanted 
to change from an aye to a no?
    A I assume that when I left the floor, I was a no vote.
    Q A couple of times after there is some activity, you rise to the 
microphone on the Republican side of the aisle and attempted to make a 
motion to adjourn, which is ruled out of order. You're also heard on 
the tape attempting to make a parliamentary inquiry. Do you recall 
that?
    A I do.
    Q Do you recall what was the nature of the parliamentary inquiry 
you were going to propound on August 2nd?
    A I was going to try to get to the bottom of the mistake that I 
believe that had been made, because when McNulty was calling the vote 
at 214 to 214, on the board it said 215-213--215 yea, 213 nay, final. 
And I was trying to--my inquiry, if I had been recognized, was trying 
to get to the bottom of what happened right then and there before it 
was too late.
    Q And you being in the Chamber that evening actually looked up at 
either the scoreboard at either end and saw 215-213 final?
    A Yeah. I was looking at the board above the Democrat side on the 
east end of the Chamber.
    Q I don't think I have anything further at this moment.
                              examination
    BY Mr. Davis:

    Mr. LaTourette. I don't think it is appropriate that we, 
sort of, leave it out there that Boehner was somehow complicit 
in the fact that his card wasn't processed.
    So thank you. And I yield back.
    Mr. Davis. I will just take my 1 minute, Mr. Hanrahan, to 
ask you this question.
    Do you have any reason to believe that any member of the 
Democratic leadership prevented Mr. Boehner's card from being 
processed?
    Mr. Hanrahan. No, sir.
    Mr. Davis. And if Mr. Boehner's card wasn't processed, 
could it have been an old-fashioned mistake?
    Mr. Hanrahan. Yes.
    Mr. Davis. No further questions.
    The Chairman. I am going to have a few questions, Mr. 
Hanrahan.
    We have had some conversation about the display board or 
the summary board. When the word ``final'' appears on that 
board, is that tantamount to closing the vote?
    Mr. Hanrahan. In a perfect world, when the protocol is 
observed, we should be moving in a step-by-step process to the 
point where the word ``final'' would appear and the Chair then 
moves to make its final statement, in this case the motion to 
reconsider being laid upon the table.
    The Chairman. But my question is: According to the--you are 
a learned professional. And according to the rules of the House 
and according to the practices of the House, is the term 
``final'' equivalent, tantamount to the closing of a vote? Is 
that a parliamentary event?
    Mr. Hanrahan. Okay. I would have to say, just based on 
having experience with----
    The Chairman. If you don't know, then that is an acceptable 
answer.
    Mr. Hanrahan. Well, I need to embellish just a little. I 
don't want to say I don't know, because it is conceivable, and 
it happens routinely, that it is possible to move through the 
process, and a click of an icon at the EVS system, which would 
move that summary board to display the word ``final,'' can be 
accomplished in the exact same amount of time that a Member 
might appear to vote. We would have to back up.
    And so the word ``final'' would remain up there. You can't 
take it back.
    The Chairman. Thank you.
    Mr. Hanrahan. But voting can go forward.
    The Chairman. You have answered my question. I appreciate 
that.
    Again, I know you are familiar with the rules of the House. 
And you are familiar with Rule XX, clause 2(a)?
    Mr. Hanrahan. Not by the cite. If you told me what it was, 
I would know it, I think.
    The Chairman. Okay, well, if you are not familiar with it, 
then--well, that would be the closing of the vote in 
anticipation of an individual keeping the vote open to 
prevent--well, let me retract that question. If you don't know, 
you don't know.
    Those are all the questions I have. Thank you, Mr. 
Hanrahan.
    Mr. Hanrahan. Okay. Thank you.
    The Chairman. Welcome, Mr. McNulty.
    Mr. McNulty. Thank you, Mr. Chairman.
    The Chairman. Let me formally introduce you.
    Mike McNulty is in his 39th year in elective public office. 
He was first elected in November of 1969 as town supervisor of 
Green Island, New York, becoming the youngest person ever to 
hold that office.
    Mike was elected to the U.S. House of Representatives for 
the 23rd Congressional District of New York in 1988 and was re-
elected in 1990. In 1992, he was elected to represent the new 
21st Congressional District and was re-elected in November 2006 
to serve his 10th term in the U.S. House of Representatives.
    He currently serves as an At-Large Whip in the House. He 
also begins his 15th year of service on the House Ways and 
Means Committee, where he is chairman of the Subcommittee on 
Social Security.
    Congressman McNulty also enjoys spending time with his 
family.
    Welcome, Mike.
    Mr. McNulty. Thank you, Mr. Chairman.
    The Chairman. When you can fit it in.
    I understand that you have a statement. And if you could 
make your statement to the panel.

STATEMENT OF HON. MICHAEL McNULTY, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF NEW YORK

    Mr. McNulty. Thank you, Chairman Delahunt, Ranking Member 
Pence, Representative Davis, Representative LaTourette, for 
allowing me the opportunity to comment on the vote in question 
while I was serving as speaker pro tempore on August 2, 2007.
    I also want to thank Representative Herseth-Sandlin and 
Representative Hulshof for their service on this Committee and 
for their participation on the Committee when I gave my 
deposition.
    First of all, Mr. Chairman, I ask that my floor statement 
of August 3, 2007, be included in the record.
    The Chairman. Without objection.
    [Mr. McNulty's statement may be found in the Appendix.]
    Mr. McNulty. The vote in question was a motion to recommit 
the agriculture appropriations bill. To summarize, I called 
this vote prematurely, and that action caused a measure of 
chaos, confusion and anger on the House floor.
    The morning after the event, I publicly apologized on the 
House floor to all of the Members of the House of 
Representatives. I repeat that apology today.
    Beyond my August 3rd remarks, let me make these 
clarifications.
    When I announced the vote, all time for voting had expired. 
After I called the vote at 214-214, no additional votes were 
cast; only changes of votes were made.
    In my opinion, the Parliamentarian's staff, the Clerk's 
staff and everyone at the front desk did their usual 
outstanding jobs that evening. The problems which ensued were 
the result of my actions. When I announced the vote at 214-214, 
I did not do so at the direction of any other person or 
persons. I did so on my own in an attempt to enforce clause 
2(a) of Rule XX, which states that a recorded vote by 
electronic device shall not be held open for the sole purpose 
of reversing the outcome of such vote.
    I believe that it was obvious that Members on both sides of 
the aisle were changing their votes after time had expired for 
the sole purpose of changing the outcome. My attempt to enforce 
clause 2(a) of Rule XX was the reason for not following the 
usual, but not required procedure of waiting for the written 
slip from the Tally Clerk. That was clearly a mistake on my 
part. I deem it a mistake because it now seems apparent that 
the vote change which was announced by the Clerk just prior to 
my calling the vote at 214-214 had not yet been recorded by the 
computer, thus the discrepancy which ensued almost immediately 
after my announcement.
    Following my August 3 floor statement, Minority Leader John 
Boehner said, quote, I accept the regrets offered by my friend 
from New York. Having been in the chair myself, I can 
understand how it can happen. He and I are friends. He is, in 
fact, one of the fairest Members who could ever be in the 
chair. I am grateful to my friend, Leader Boehner, for his 
statement. I believe his comments indicate that he understands 
that while I erred, there was no ill intent on my part. I hope 
that when all the facts are examined, all the Members of the 
House will reach the same conclusion.
    Thank you, Mr. Chairman and members of the Committee.
    The Chairman. Thank you, Mr. McNulty. And before I go to 
the gentleman from Alabama, I just want to state for the record 
my own respect for you as an individual of integrity. I would--
I know you to be a fair individual, a fair-minded individual. 
And those words that were stated by Leader Boehner I think 
embraces the sentiment of many of us here in Congress.
    I would, for your edification, note the statement by Mr. 
Blunt during the course of his interview.
    ``And I reached out''--and these are his words--``And I 
reached out and talked to him,'' meaning yourself, ``after 
that, and told him that I didn't know anybody on either side of 
the House that thought he had intentionally done anything 
wrong, that was unethical, or that he should spend undue time 
worrying about this. It is just something we needed to work out 
and not see repeated in the future.''
    I want you to know that these were the sentiments that were 
expressed during the interview with Mr. Blunt.
    Mr. McNulty. I am grateful. He said those words to me 
personally as well. Thank you.
    The Chairman. Let me now yield to the gentleman from 
Alabama, Mr. Davis.
    Mr. Davis. Thank you, Mr. Chairman. Mr. McNulty, thank you 
for taking your time, first of all, to be here today. I know 
you had to interrupt business, family business you had in New 
York to get back here, and we appreciate you doing that. And we 
also thank you for the candor of your statement at the 
beginning.
    You weren't in the room during my opening comments, but I 
previewed them by saying that you were going to do something 
that frankly very few people of our ilk ever do, which is to 
acknowledge an error in a public forum. And you are to be 
complimented for that. And Mr. McNulty, I want to actually pick 
up where the chairman started. And I want to quote some other 
observations that have been made by Mr. Boehner and Mr. Blunt 
regarding you because I think it is important for you to hear 
them and for other interested parties to hear them.
    During Mr. Boehner's deposition, I asked him about his 
relationship with you. And he mentioned that you all had served 
for a long time, 18, 17\1/2\ years together. And I asked him, 
do you believe him, McNulty, to be an honest individual? Mr. 
Boehner said yes. Do you believe him to be an ethical 
individual? Mr. Boehner said yes. Do you believe that he 
knowingly violated any rules on the night of August 2, any 
rules of the House? No, I don't believe that he knowingly 
violated any rules.
    Mr. Blunt, during his deposition--there was another point 
that I want to read to you. I asked Mr. Blunt, did you have a 
conversation with Mr. McNulty? His answer, not that night but I 
did later. It was just more of a reassuring conversation that 
sometimes you get caught in a situation that things happen that 
you don't intend to happen and that he should feel confident in 
his respect that Members have for him personally.
    Later on Mr. Boehner says--well, let me just stop at that 
point--Mr. Blunt. Let's stop at that point.
    Let me try to put some context around this, Mr. McNulty. 
And I will try to move through it quickly because we have 
watched the tape several times today. You were the presiding 
officer on the night of August 2, 2007. And as I understand it, 
you were one of a group of Members who regularly presided over 
the House at that time. Is that right?
    Mr. McNulty. It is. It changed a little bit. Now I presided 
over the House many, many times when the Democratic Party was 
previously in the Majority for my time from 1989 to 1994. And 
at the beginning of this, the 110th Congress, I was asked by 
the Speaker staff to resume that practice and that role. And as 
a matter of fact, I was one of the presiders on the opening day 
of the 110th Congress, and I did it quite frequently after 
that. After a period of time I was doing it quite frequently 
and for very long periods of time. I asked to have that amended 
so that I would be in the chair for shorter periods of time 
just because of a physical issue I have in standing for a long 
period of time. But I did do it frequently.
    Mr. Davis. And you agree that the leadership attempts to 
select a small group of individuals and charge them with the 
regular responsibility of presiding over the House and that 
honor is given to people who are regarded as being very skilled 
presiding officers, is that correct?
    Mr. McNulty. I think in general that is correct. But also I 
have encouraged the leadership to expand that group and to get 
more Members into the chair and develop a bigger pool of 
individuals who can serve in the chair. Obviously when I first 
served in the chair, it was my first time. I was new and I had 
to learn. And I encouraged the leadership to reach out to more 
of the newer Members.
    Mr. Davis. Give me some sense--because one of the things 
that we are trying not to lose sight of, Mr. McNulty, is all of 
us on this Committee have spent a lot of time looking at these 
facts. And we have spent a lot of time looking at the video. 
And the few interested parties that may be paying some 
attention to this outside of this Committee, frankly may not 
have a real sense of even what the floor of the House is like. 
I am always astounded how many people, for example, assume that 
Nancy Pelosi is the person who is in the chair every day.
    So can you just give us some sense of what a presiding 
officer does, particularly with respect to what is relevant 
here, the calling or closing of a vote?
    Mr. McNulty. Well, the presiding officer basically follows 
the parliamentary rules and moves the business through the 
House of Representatives. And we get a lot of help from that in 
the chair from the Parliamentarians. I think just about 
everyone who has served in the chair--certainly I rely very 
heavily on the Parliamentarians in order to work through that 
process.
    If you do it quite frequently, you become more and more 
familiar with it. It is the process of repetition, and you get 
to a point where you are familiar with those little slips that 
the Parliamentarian gives you about how to proceed with certain 
things. Well, if you are experienced in the chair, a lot of 
times you don't even need those. You know those by rote. But 
the basic job is to move the process and the business of the 
House. Sometimes that is routine. Sometimes it is fairly quiet 
in the Chamber. And sometimes it is a little busier.
    Mr. Davis. Who has the responsibility for calling a vote?
    Mr. McNulty. The person in the chair.
    Mr. Davis. And give me some sense based on your extensive 
experience as a presiding officer how the person in the chair 
goes about making the decision as to when to call a vote.
    Mr. McNulty. Well, first of all, you have to wait for the 
minimum time to have expired, whether it is 15 minutes or 5 
minutes or in some cases 2 minutes. And then the vote can be 
called any time after the minimum amount of time has elapsed.
    Mr. Davis. Any time after zero?
    Mr. McNulty. Any time after zero. And----
    Mr. Davis. Let me just stop you at that. Are the rules of 
the House any more precise on this point as to when a vote 
should be called? Do the rules speak with any level of 
precision as to when a vote should be called once the clock has 
passed zero?
    Mr. McNulty. Not that I am aware of.
    Mr. Davis. Is it pretty much the custom and protocol of the 
House that the presiding officer makes the discretionary 
judgment as to when to call a vote?
    Mr. McNulty. That is correct.
    Mr. Davis. What are some of the factors that a good 
presiding officer takes into account after zero?
    Mr. McNulty. Well, I will give you an example of last week, 
the first vote of the week--or the first vote of the day. When 
it is the first vote of the day, it occurs in the morning. A 
lot of times Members are still coming in from their homes, and 
so on, or their offices. And usually you are a little bit more 
lenient in the amount of time for people to get to the floor to 
vote.
    There are times when all the time has expired and the Chair 
is made aware that, for example, the Appropriations Committee, 
subcommittee is working on a particular bill. They can't get to 
the floor right away. You have to wait an extra few minutes. We 
always accommodate that sometimes.
    It can be something like a bill signing at the White House 
where a number of Members are attending that event. If they are 
not back in time, you will hold a vote open for that. Things of 
that nature.
    Mr. Davis. So if I understand you correctly, the presiding 
officer after zero, after the clock has hit zero tries to make 
some assessment of whether all Members have cast votes who wish 
to?
    Mr. McNulty. That is correct.
    Mr. Davis. And if a presiding officer has made the 
determination that all Members have cast votes who wish to, 
does he then have discretion to call a vote?
    Mr. McNulty. Certainly.
    Mr. Davis. Let me take you to the night in question, August 
2, 2007. We know the subject of the vote that night was a 
motion to recommit. As I understand it, you had not been in the 
chair very long that night at the time this motion to recommit 
was called, is that right?
    Mr. McNulty. No. That evening I was only going to be in the 
chair for the motion to recommit and the final passage of the 
bill.
    Mr. Davis. And I remember noticing during your deposition 
that you said frankly you weren't even sure what the subject of 
the motion to recommit was, is that correct?
    Mr. McNulty. I was not until I got to the floor.
    Mr. Davis. And when you got down to the floor, did you 
receive any special instructions or did you receive any 
particular guidance that there might be something unusual or 
novel about this vote?
    Mr. McNulty. No. The only communication that I remember was 
during the course of the vote Catlin O'Neill at one point 
saying to me that the vote was going to be close or I think 
she--and somebody pointed out to me she used the word 
``tight.''
    Mr. Davis. And Catlin O'Neill works for the Speaker's 
Office, is that correct?
    Mr. McNulty. That is correct.
    Mr. Davis. And it is not uncommon for Catlin O'Neill or 
people who work for the Speaker's Office to have some routine 
interaction with the Chair, is that right?
    Mr. McNulty. That is correct.
    Mr. Davis. Let me direct you--if we can have our video 
operator turn the video on. I am going to actually point you to 
the time, Mr. McNulty, when the clock literally hits zero, 
which I believe is 22:49. If we can get to 22:49.
    Let's just let it play here. Just watch, Mr. McNulty. You 
will see it is 200 to 209. Let's just watch. Unfortunately we 
can't see the time because of the way the screen is configured. 
But if you will just watch.
    You will notice at this point it is 210 opposed, 203 in 
favor.
    Mr. McNulty. Okay. That is just the usual announcement: Are 
there any other Members who wish to vote or to change their 
votes?
    Mr. Davis. Okay. Let me stop right here. What you see at 
this point--again, unfortunately because of the way that the 
VCR is set up we can't see the actual time. I will represent to 
you that we have a timeline the staff has prepared that 
suggests that the clock reaches zero somewhere around this time 
frame, around 22:49. You will notice at this point that based 
on the vote total on the screen, the motion appears to have 
been defeated, 213 to 211. Can you explain for people who do 
not watch C-SPAN or pay attention to this every day why you 
didn't just call the vote at that point?
    Mr. McNulty. Well, because I had just made an announcement 
or--and asked the question, were there any other Members who 
wished to vote or to change their vote.
    Mr. Davis. You believed there were Members who had not 
voted, is that right?
    Mr. McNulty. Either had not voted or who might wish to 
change their vote. You usually wait a little period of time to 
make sure that no one is in the well attempting to vote.
    Mr. Davis. And let me ask if you recall that there had been 
a long sequence of other votes that night, is that correct?
    Mr. McNulty. There had been, yes.
    Mr. Davis. There has been testimony from the Majority 
Leader that the vote total in the earlier vote series had been 
427, that that had been the consistent number of people who 
were voting in the earlier series. Does that sound about right 
to you?
    Mr. McNulty. I didn't have that number in my head at the 
time but it would seem logical to me because 428 people voted 
on this vote.
    Mr. Davis. Right. And again, what is important is frankly 
your sense that night, not so much your sense now. But do you 
recall having a sense, even at this point, 211 to 213, that 
that iteration was less than the number of Members who had 
previously voted?
    Mr. McNulty. I don't recall having----
    Mr. Davis. All right. But at this point you don't call the 
vote and you said you don't call it because in effect you 
believe other Members had not voted. Is that right?
    Mr. McNulty. Oh, well, you would wait----
    Mr. Davis. Okay.
    Mr. McNulty [continuing]. A bit of time just to make sure.
    Mr. Davis. All right. Let's watch.
    At this point the clock has passed zero. The boards narrow 
to 212 to 213, still in the negative. What are you doing right 
now, Mr. McNulty?
    Mr. McNulty. I was waiting to see if there were any other 
votes.
    Mr. Davis. Now at this point, the yeses take a temporary 
lead of 214 to 213. And you still don't call the vote, is that 
correct?
    Mr. McNulty. That is correct.
    Mr. Davis. There is a lot of noise in the Chamber.
    Mr. McNulty. Catlin appeared to say something to me at that 
point or me to her. I am not sure.
    Mr. Davis. Do you remember what it was?
    Now let's stop at this point. At this point you appear to 
begin to call the vote but you stop. Can you tell us why you 
stopped?
    Mr. McNulty. It would be because I would have some 
indication that someone else wanted to vote. Someone probably 
said one more vote or----
    Mr. Davis. Okay. Is it commonplace, Mr. McNulty, from what 
you have seen that sometimes presiding officers begin to call a 
vote and someone will yell out, one more or something to that 
effect?
    Mr. McNulty. That has happened many times.
    Mr. Davis. And in effect that is what happens here, you are 
about to call the vote and in effect you stop because you hear 
motions suggesting other people are wishing to vote. Is that 
correct?
    Mr. McNulty. Correct.
    Mr. Davis. Now let's watch the tape again.
    You see Members at the well.
    Let's stop right here. We see Mr. Hoyer, the leader, who 
walks up. You saw that a moment ago. He walks up to Mr. 
Sullivan.
    Mr. McNulty. I don't see that right now but----
    Mr. Davis. You saw that a moment ago. He wasn't speaking to 
you. He was speaking to Mr. Sullivan, is that correct?
    Mr. McNulty. That is correct.
    Mr. Davis. Were you able to hear their exchange?
    Mr. McNulty. I did not hear what he said. Now I have seen 
printed many times and quoted many times what he said. And I 
have no reason to doubt that. But if you were to ask me to say 
from my own recollection to say what he said, I would not be 
able to tell you. The noise in that Chamber that night was 
deafening.
    And on that point, I just want to say about Kevin's 
testimony, because I think he is one of the finest employees of 
the House of Representatives. But I think he made an assumption 
which is not reasonable. He said something about something he 
heard Mr. Hoyer say from the well. Well, if I couldn't hear 
Steny Hoyer when he was standing where John Sullivan is, I 
certainly didn't hear him say anything from the well. So I 
wanted to get that on the record as well.
    Mr. Davis. And is it certainly fair to say, Mr. McNulty, 
that at this point that we see on the screen or either moments 
before this that Mr. Hoyer is not giving you any instruction as 
to when to call the vote?
    Mr. McNulty. He absolutely did not give me any 
instructions.
    Mr. Davis. And at this point--you have reviewed the tape 
before today, is that correct?
    Mr. McNulty. I have.
    Mr. Davis. What happens after this, Mr. McNulty, is that 
you stand there--let's just watch it for a moment. You stand 
here. There is no one around you, correct? There is no one 
close to you, no Member, no member of the staff, is that 
correct?
    Mr. McNulty. Except for the Parliamentarians.
    Mr. Davis. Right. But he is not engaged with you?
    Mr. McNulty. That is correct.
    Mr. Davis. Let's play the tape.
    What are you doing at this point?
    Mr. McNulty. I am waiting for the votes to be tallied. And 
I had made the determination at this point that after these 
votes were announced I would attempt to call the vote again. In 
order to enforce clause 2(a) of Rule XX.
    Mr. Davis. Let's stop at this point. You say that at this 
point you made the determination that you would call the vote 
after you believe that the last well change had been processed, 
is that right?
    Mr. McNulty. That is correct.
    Mr. Davis. Tell me about rule 2(a) and why you felt it was 
operative in this instance. First of all, tell us what rule 
2(a) is.
    Mr. McNulty. Well, I will read it exactly.
    Clause 2(a) of Rule XX states quote, a recorded vote by 
electronic device shall not be held open for the sole purpose 
of reversing the outcome of such vote.
    Now, in my own mind, there was no violation of clause 2(a) 
of Rule XX because I was attempting not to hold open the votes 
for the purpose of changing the vote. I was attempting to close 
the vote. I was doing the opposite. But I wanted to avoid the 
appearance of any violation of clause 2(a) of Rule XX because 
that had been brought up as an objection by Members of the 
House several times since its enactment at the beginning of the 
year 2007.
    Mr. Davis. Okay. Let me stop you and set some context. At 
this point--and again, I apologize because of the way the 
screen is configured, we can't show the audience how much time 
had elapsed after zero. But zero had lapsed for several 
minutes, is that right?
    Mr. McNulty. I believe so, yes.
    Mr. Davis. And was it your concern, Mr. McNulty, that the 
Minority might allege that the vote was being kept open in 
violation of rule 2(a)?
    Mr. McNulty. It was.
    Mr. Davis. And in response to that concern, you were of the 
mindset that once the last well change card had been processed, 
you were going to call the vote?
    Mr. McNulty. That is correct.
    Mr. Davis. And you do call the vote?
    Mr. McNulty. I do.
    Mr. Davis. Tell us why that was a mistake.
    Mr. McNulty. Well, it was a mistake because after the Clerk 
announced Mario Diaz-Balart's vote, which I believe was the 
last vote change at that time, I banged the gavel and called 
the vote. What I believe to have happened at that time was that 
although Mario's vote was recorded and announced, the computer 
had not yet caught up with that. In other words, apparently it 
takes a few seconds for it to go through the process, and maybe 
it took even a little bit more that night because there were 
some problems with the voting machine. As a matter of fact, it 
failed on the next vote.
    Mr. Davis. Now let me slow you down for a moment. You were 
looking at something. What were you looking at, Mr. McNulty?
    Mr. McNulty. I am looking at the tally on the side.
    Mr. Davis. And what did you see?
    Mr. McNulty. 214-214.
    Mr. Davis. Did you believe that the tally on the board 
accurately reflected the votes of 428 Members of the House of 
Representatives?
    Mr. McNulty. Yes.
    Mr. Davis. And would you have called the vote----
    Mr. McNulty. And I believe that included the vote of Mario 
Diaz-Balart, too.
    Mr. Davis. That was exactly my next question. Would you 
have called the vote if you thought that Mr. Diaz-Balart's vote 
had not been processed?
    Mr. McNulty. I have heard this in previous questioning. 
When I--I have taken pains every time I have ever been in the 
chair to make sure that every person's vote has counted. I have 
waited on votes that were non-controversial and not close for 
Members not in the well but coming down the aisle, waving their 
cards. Because when I see that, I do not see one person. I see 
650,000 American citizens. And they have a right to have their 
vote counted. And so I have always taken great pains in the 
hundreds of hours that I have been in the chair to make sure 
that everyone's vote counts.
    Mr. Davis. Mr. McNulty, at the time that you started to 
call the vote, obviously it takes several seconds to say the 
magic words. At the time you were saying the magic words, 214 
to 214, the motion is not carried, did you hear any Member yell 
out, ``one more'' or anything to that effect?
    Mr. McNulty. No.
    Mr. Davis. Did you see any Member standing in the well 
attempting to change a vote?
    Mr. McNulty. No.
    Mr. Davis. Did any Member manifest in any way an intent to 
come down and change a vote?
    Mr. McNulty. Not that I saw, no.
    Mr. Davis. Did any member of the parliamentary staff or any 
member of the rostrum staff try to stop you while you were 
calling the vote?
    Mr. McNulty. No.
    Mr. Davis. Now after you called the vote, I think it is 
safe to say there is a lot of consternation in the Chamber. 
There is a lot of noise. Several Members, Republicans are 
yelling ``shame, shame'' or something to that effect. When did 
you first get a sense that something was awry with your calling 
of the vote, Mr. McNulty?
    Mr. McNulty. Well, I knew it was wrong when I looked up at 
the board again.
    Mr. Davis. And then you saw 215-213----
    Mr. McNulty. The board didn't say 214-214 anymore. It said 
215-213. And I believe that the Minority had a right to be 
upset.
    Mr. Davis. We have heard a lot of testimony about the 
custom and practice of a tally sheet. When you were in the 
chair on the night of August 2, 2007, did any member of the 
parliamentary staff inform you that you could not call a vote 
without a tally sheet?
    Mr. McNulty. No.
    Mr. Davis. In your years as a presiding officer, had any 
member of the parliamentary staff ever told you that it was a 
prerequisite that a tally sheet be presented before you called 
a vote?
    Mr. McNulty. No. And as a matter of fact, the next day--the 
one question I asked John Sullivan was whether there was 
anything in the rules that required that because I wanted to 
make sure that I didn't violate any rules of the House. And the 
answer to that question was no, that it is not required in the 
rules. That does--so I am just answering your question. In my 
own mind, that does not excuse my error.
    Mr. Davis. Let me try to give you a chance again to put 
this in some context because we have certainly heard Mr. 
Hanrahan say and we will hear Mr. Sullivan I believe saying 
that it is custom and practice that a tally sheet be presented. 
Perhaps you heard while you were in the room, perhaps you heard 
Mr. Hanrahan say, I can't recall a single instance when a tally 
sheet has not been handed up to a presiding officer.
    I want you to give us a sense of why you called the vote 
without a tally sheet.
    Mr. McNulty. It was not so much a conscious decision not to 
have the tally sheet. I really wasn't thinking of that at the 
time. I was fixated on enforcing--or at least acting in such a 
manner that there would not be the appearance of me holding the 
vote open for the purpose of changing the outcome. And 
therefore, I made that decision to call the vote after the last 
vote change had been announced, and I just went ahead and did 
it. And----
    Mr. Davis. And let me just----
    Mr. McNulty. And I think in my own mind looking back on it, 
I was overly fixated on the enforcement of that rule and that 
caused me to make an error which was--which I regret.
    Mr. Davis. And let me just stop you at that point. Rule 
2(a) obviously is a part of the codified rules of the House, is 
that right?
    Mr. McNulty. That is correct.
    Mr. Davis. A tally sheet is not part of the codified rules 
of the House.
    Mr. McNulty. That is correct.
    Mr. Davis. So in effect you have a written rule that you 
needed to enforce and a custom and practice. And you chose the 
written rule, is that right?
    Mr. McNulty. I did.
    Mr. Davis. We have lots of noises and buttons around here, 
Mr. McNulty, even when we are not in session apparently.
    Now at this point again--we won't waste time going through 
the videotape because of our time constraints. But we see on 
the tape that Mr. Sullivan walks up to you and you and Mr. 
Sullivan engage in an exchange about how to make this right. Is 
that a fair characterization?
    Mr. McNulty. Yes. What happened--after I looked up at the 
board and saw the different total, I knew that I had committed 
an error. And I first started in the chair under Bill Brown 
when he was the Parliamentarian, and I remember him fondly for 
him spending a lot of time with me when I was in the chair and 
things were quiet and him tutoring me about things. And one of 
the things that I remembered that he said that popped into my 
mind at that very moment was, when in doubt do what the 
Parliamentarian says. And I knew that I had committed an error 
that had caused this chaos in the House. And I made the 
determination at that moment that I wasn't going to make any 
other ruling on that vote without the concurrence of the 
Parliamentarian. And what John said to me was, I am going to 
write out a statement for you to read. And I decided to wait 
until that was completed and to read it.
    Mr. Davis. Now while Mr. Sullivan is writing out a 
statement, is it correct to say that Members went down to the 
well and changed their votes?
    Mr. McNulty. They did.
    Mr. Davis. In fact, at least three Members went down to the 
well and changed their votes. I represent in my opening 
statement and Mr. Hanrahan agreed with me that about 7 minutes 
lapses between your premature calling and your final 
announcement of the vote.
    Does that seem about right to you?
    Mr. McNulty. That would seem about right.
    Mr. Davis. During that approximate 7-minute timeframe, do 
you know of any Member who attempted to cast a vote whose vote 
was not counted?
    Mr. McNulty. No. The only thing that I heard about later 
and I didn't really remember it at the time was what Steve 
brought up about the Leader Boehner's vote.
    Mr. Davis. Did you realize at the time that there had been 
some issue with Mr. Boehner's vote.
    Mr. McNulty. No, I didn't. Not at the time.
    Mr. Davis. During the 7-minute time frame or for that 
matter at any time that night, did Mr. Boehner manifest any 
concern that his vote had not been--his well card had not been 
processed?
    Mr. McNulty. Well, I don't know if he did to anybody else.
    Mr. Davis. But you don't know that, do you?
    Mr. McNulty. No.
    Mr. Davis. During the 7-minute time frame that we are 
referencing, you have said that you don't know of any Member 
who attempted to cast a vote and who was disenfranchised. To 
this day, Mr. McNulty, has any Member of the House of 
Representatives come up to you and said, Mike, I tried to cast 
a vote that night or I tried to change my vote and I was 
prevented from doing it?
    Mr. McNulty. No.
    Mr. Davis. Has any Member come up to you to this day and 
said, Mike, I tried to process a vote with my well card and 
your actions prevented me from doing it?
    Mr. McNulty. No.
    Mr. Davis. Was there ever any point--well, let me just 
actually close out this first round of questions. You have 
heard some testimony today about how this matter resolved 
itself. You remember that Mr. Hoyer goes to the floor and in 
effect makes a motion to set aside a vote. Do you remember 
that?
    Mr. McNulty. I think he verbally asked to vacate first. And 
there was objection to that.
    Mr. Davis. And what happened after that?
    Mr. McNulty. I think we then moved to a motion to 
reconsider.
    Mr. Davis. And what was the result of the motion to 
reconsider?
    Mr. McNulty. I think he made that request before I actually 
read the statement, and I think that John then said I needed to 
read the statement first to establish what the vote was.
    Mr. Davis. And you did that, you read that statement to 
establish the vote?
    Mr. McNulty. I read that statement, the conclusion of which 
was that the final vote was 212 to 216.
    Mr. Davis. And that included the well cards that had been 
processed in the 7-minute period I referenced?
    Mr. McNulty. That is correct.
    Mr. Davis. And at some point there was a motion that Mr. 
Hoyer makes that actually was voted on the floor, is that 
right?
    Mr. McNulty. That is correct.
    Mr. Davis. What was that motion?
    Mr. McNulty. I believe it was a motion to reconsider.
    Mr. Davis. What would the effect of a motion to reconsider 
have been?
    Mr. McNulty. It would mean you would then proceed to a 
revote on the motion to recommit.
    Mr. Davis. So in other words----
    Mr. McNulty. Because the motion to reconsider passed.
    Mr. Davis. So in other words, there is a procedural motion 
or a procedural vehicle that would have had the effect of 
setting all this aside and starting over, is that right?
    Mr. McNulty. That is correct.
    Mr. Davis. Did the Republicans agree to invoke that 
vehicle?
    Mr. McNulty. Well, there was objection to the motion to 
vacate. And then I believe that during the motion to 
reconsider, I think that is when the walkout occurred. But the 
vote eventually went on.
    Mr. Davis. But you mentioned as the vote was going on, even 
though the vote would have had the effect of setting the 
Democratic victory aside and starting over----
    Mr. McNulty. That is correct.
    Mr. Davis [continuing]. Instead of participating in the 
vote, the Republicans walked out.
    Mr. McNulty. Well, some did. Not all did. But some did.
    Mr. Davis. My time has concluded for the first round of 
questions.
    The Chairman. Thank you, Mr. Davis. Mr. Pence.
    Mr. LaTourette. Mr. Chairman, before you recognize Mr. 
Pence, can I be recognized for a unanimous consent request?
    The Chairman. Please proceed.
    Mr. LaTourette. Thank you. In Mr. Davis' questions, I just 
want the record to be clear, he referenced the votes on 
amendments that took place prior to Roll Call 814 and indicated 
that I guess there was a question that on those votes there 
were 427 Members present and voting. I would ask unanimous 
consent--because I think the record shows otherwise--that the 
staff be directed to accumulate the vote totals from Roll Call 
Vote 803 to 813 and reflect in the record the number of Members 
who were present and voting on those roll call votes.
    The Chairman. Without objection.
    Mr. LaTourette. Thank you.
    [The information may be found in the Appendix.]
    Mr. Pence. Thank you, Mr. Chairman. And I want to welcome 
our colleague Mr. McNulty to this Select Committee for the 
second time.
    I would ask, cognizant of the challenges of your schedule, 
do you need a break at this point? Would it be helpful for you 
to have----
    Mr. McNulty. I am fine.
    Mr. Pence. Very good. I am going to ask a few questions, 
and then I will yield the balance of our time to Mr. 
LaTourette.
    Let me begin simply by thanking you for your cooperation 
with this Select Committee. Many of our colleagues and many 
commentators thought this Select Committee would never even 
meet, let alone engage in a thorough and thoughtful examination 
of the events of August 2.
    And while there are issues that need to be resolved, I want 
to say publicly that I believe that your cooperation, your 
humility and the humanity that you have displayed have greatly 
facilitated this inquiry. And the Members of the Minority of 
this Select Committee are grateful for that.
    Mr. McNulty. Thank you.
    Mr. Pence. I believe that your cooperation with this Select 
Committee and the seriousness with which you have approached it 
speaks volumes about your commitment to this institution and, 
as you prepare to conclude your career in the House of 
Representatives, that you will leave here with the respect of 
this Member for that.
    Mr. McNulty. I thank the Ranking Member.
    Mr. Pence. Because I believe you are an honorable man and I 
have always respected you, I wanted to raise a couple of key 
questions, things about which we want to be clear about your 
testimony as we try and resolve and rebuild the events of that 
evening.
    Number one, both in your written statement that you 
provided us on April 9 as well as your statement today, you 
said, ``when I announced the vote at 214 to 214 I did not do so 
at the direction of any other person or persons. I did so on my 
own in an attempt to enforce clause 2(a) of Rule XX,'' et 
cetera, et cetera.
    In that same interview before this Committee, you further 
stated, ``no one instructed me to call that vote at any time 
that night that I recognized. I will be perfectly honest with 
you. Earlier on I was hoping to get some direction but it never 
came, so I used my own judgment at the time.'' That appears on 
pages 23 and 24 of your deposition.
    Later on, on page 49, you added, ``no member of the staff 
or Member of the Majority told me when to call that vote. I 
wished they had.''
    Mr. McNulty. Right. Because it is not uncommon to get a cue 
from Leadership when to wrap up a vote. But I never got any 
input from them. And all of this folklore about Steny directing 
me--if he wanted to get a communication to me, he could have 
done it. To take what Kevin--now again, I have the highest 
respect for Kevin. He may have very well heard Steny say 
something and Steny may very well have said something from the 
well apparently. How I would have been expected to hear 
something like that in the din that was going on in the Chamber 
that night I think is really a stretch. Because I didn't. So I 
used my judgment. I am talking about now--let's focus here. I 
am focusing on the key part, when I announced the vote and 
announced the result of the vote. I am saying nobody--nobody 
that I recognized gave me any direction to do that. I took that 
initiative on my own. I have acknowledged, not 9 months later 
or 8 months later when we met privately but the day after, that 
I made a mistake and I apologized for it. But I made the error. 
And let there be no mistake about it, it is not the fault of 
the Parliamentarians or the Clerk's Office or Steny Hoyer or 
anybody in the leadership as to why we are here today. It is 
because of the action that I took.
    Mr. Pence. I thank you. That is very clear.
    Did Catlin O'Neill of the Speaker's staff give you any 
instruction, direction about when the Leadership wanted the 
vote closed?
    Mr. McNulty. The only thing I remember, as I mentioned in 
my prior testimony, about Catlin is that she did say to me at 
some point that the vote was going to be tight. And I think 
that was before the vote was even over with. So that would have 
no direct bearing on, you know, several minutes later when I 
made that decision to call the vote.
    Mr. Pence. And I want to understand----
    Mr. McNulty. In other words, to be clear, she didn't say to 
me prior to me calling that vote, do it now or anything like 
that. That did not happen. Or if she did, it was way out of 
earshot of where I was.
    Mr. Pence. But to borrow from a statement that you just 
made--and correct me if I am misstating it--that would have 
been fairly common for someone in her capacity to do to give 
guidance to the Chair?
    Mr. McNulty. It would be common to say, wrap up a vote. But 
obviously what I did that night was not common. Remember, doing 
it as quickly as I did without the benefit of the tally sheet, 
that was a mistake. It was a mistake on my part. Steny Hoyer is 
not responsible. Catlin O'Neill is not responsible. She didn't 
tell me to do that. I did that on my own, and I was wrong. And 
no one else is responsible for that.
    Mr. Pence. You testified earlier today under Mr. Davis' 
questioning, you said that Mr. Hoyer, ``absolutely did not give 
me any instruction.''
    I think you are aware of some of the work this Committee 
has done. You may not be aware that as many as six witnesses 
have testified to this Committee that they were both aware of 
the Majority Leader's disposition and they were aware of his 
desire to close the vote. My question to you----
    Mr. McNulty. And where is the evidence that he communicated 
that to me?
    Mr. Pence. Let me get to that question if I can. But the 
preamble to my question is that we have six witnesses who were 
aware of both his angry disposition and of his desire to close 
the vote. I want to understand your testimony. You were not 
aware of his disposition----
    Mr. McNulty. No. I didn't say that, Mike. And I think I 
said in my private testimony that he came up and he had some 
conversation with John and he didn't appear happy, but I 
couldn't even make out what he said because there was so much 
noise in the Chamber that night. But he obviously didn't look 
happy to me. So no, I am not making that characterization that 
he wasn't upset. He probably was upset.
    Mr. Pence. Well, the only thing that I would be curious 
about, and you just answered it, is whether you were aware of 
his disposition. And secondly would be--if--and I am very clear 
that your testimony is that neither Catlin O'Neill of the 
Speaker's staff nor the Majority Leader instructed you or 
directed you to close the vote. But were you aware that he was 
instructing anyone else of his desire to see the vote closed?
    Mr. McNulty. No. But I mean, looking back on it now, 
looking at tapes and so on, and listening to all of the 
testimony you are giving, maybe that was his intent. It was not 
imparted to me that night.
    Mr. Pence. Okay. I will move on to two more quick 
questions. You are very aware of the Rules of the House, it 
would not surprise you if clause 2(a) of Rule XX also provided 
that, ``the Clerk shall conduct a record vote by electronic 
device.'' That language should not be unfamiliar to you 
necessarily, would it? Or are you aware that that----
    Mr. McNulty. I think almost all of our votes are by 
electronic device.
    Mr. Pence. But the language in the House rules, were you 
aware of the language that says, the Clerk shall conduct a 
record vote?
    Mr. McNulty. I think we do that every time, don't we?
    Mr. Pence. Okay. Good. You referred to this tally slip we 
have been talking about now for months. And you have been very 
candid about your mistake. And I would associate myself with 
Mr. Davis' statements about your sincere regret about that 
error. You said it is, ``usual but not required.''
    Mr. McNulty. I only say that because of the conversation I 
had with John Sullivan.
    Mr. Pence. Okay. Let me just ask you as a factual matter. 
You referred to your career in the previous Democratic Majority 
that you presided over the vote many, many times I think was 
your characterization. Had you ever in any time serving in the 
chair closed a vote without a tally slip?
    Mr. McNulty. No.
    Mr. Pence. Last question. At any point during Roll Call 814 
did you ever receive a written tally slip prepared by the Tally 
Clerks?
    Mr. McNulty. I don't believe so. I think the only tally 
that I had was the one that was written at the bottom of the 
statement that John Sullivan gave me, which I subsequently 
read.
    Mr. Pence. Very good. Thank you. I will yield the balance 
of our time to Mr. LaTourette.
    Mr. LaTourette. Thank you very much. Mike, welcome. And I 
want to just chime in that I don't think anybody on either side 
thinks that you set out to break the rules or intended to break 
the rules. I happen to think you are one of the best presiding 
officers that the Democratic Party has and I was pleased, as I 
expressed on the record, that you, under the auspices of the 
Speaker, have resumed those duties because I think you are good 
at it.
    Having said that though, I do want to say that when I 
listened to Mr. Davis and agree with him that you didn't 
intentionally do anything, sometimes a mistake can lead to a 
violation of something. And just to give you an example, the 
other day I was driving in Ohio and I thought that the speed 
limit was 25--or excuse me--35, and it actually turned out to 
be 25. I was mistaken in that regard. And the police officer 
who pulled me over wasn't impressed by my mistake of fact. So 
to be clear, I don't believe and I don't think anybody believes 
you intentionally created this difficulty or made the mistake, 
but a mistake can also be a difficulty, and that is what this 
Committee is charged with.
    Mr. McNulty. But there is another difference there which is 
that you violated a rule and I don't believe I did.
    Mr. LaTourette. Well, we are going to get to that, and I 
intend to walk you through that pretty aggressively.
    Let me go to--oh, and I should mention because we had some 
trouble when we were interviewing you before about eyesight and 
who was where. The parties have stipulated that if I show you 
clips from the video that--and I will give you--I will have the 
staff give you the sheet so you can follow along. But Catlin 
O'Neill will have an orange halo around her. Jerry Hartz will 
have a yellow one. Steny Hoyer red. Nancy Pelosi blue. John 
Sullivan green. Kirsten Gillibrand purple. And Zack Space 
because we ran out of colors is white. And you don't have one. 
Do you have that in front of you?
    Mr. McNulty. Yes.
    Mr. LaTourette. So when I ask you--when we roll the tape a 
little bit later and I will ask you if you say that you don't 
agree that Catlin O'Neill has orange around her, then please 
tell me. But otherwise to move expeditiously through it, I 
think that that is what I would like you to understand.
    You indicated that when we interviewed you before and again 
have reinforced today that the only communication from Catlin 
O'Neill during the course of that evening was that it is going 
to be close and maybe stay on your toes.
    Mr. McNulty. It is the only one I remember, Steve.
    Mr. LaTourette. Then I would ask the staff to play for us 
in--first chapter 4 and then stop it right after chapter 4. I 
ask you to watch chapter 4 on the monitor.
    Okay. Chapter 4, to my observation, the orange circle, 
which we have stipulated is Catlin O'Neill, comes down the 
aisle from the Majority side and approaches the rostrum and 
appears to be engaged in conversation with you.
    Mr. McNulty. Yes.
    Mr. LaTourette. Do you remember that conversation?
    Mr. McNulty.  That may very well have been when she made 
the statement about I think this is going to be a close vote.
    Mr. LaTourette. Okay. But just--I don't want to be tricky 
but--you know that that conversation happened sometime during 
the evening. Do you have a reasonable certainty that it was 
during that sequence?
    Mr. McNulty.  I think it was--a reasonable certainty, yes. 
Because I think that is the only time she came that close to me 
and had a direct conversation. I think there was one other time 
when she was further away.
    Mr. LaTourette. Okay. Let's go to----
    Mr. McNulty.  I think that was the one where she mentioned 
it would be a close vote.
    Mr. LaTourette. Okay. Let's go to--please play chapter 5.
    Okay. Chapter 5, again, the orange circle which is Catlin 
O'Neill leaves the Democratic leadership table, rises to the 
rostrum and, from my observation, was having a conversation 
with you. Do you agree with that?
    Mr. McNulty.  Yes.
    Mr. LaTourette. What did she and you talk about?
    Mr. McNulty.  I would have to be guessing at this one.
    Mr. LaTourette. I really don't want you to guess. Do you 
have any recollection as to what that conversation was about?
    Mr. McNulty.  I don't. The only other common thing that it 
might be would be to say when to--to ask for additional votes 
or something after time has expired. But something routine like 
that. But I don't remember anything beyond that.
    Mr. LaTourette. But to be clear, that is a guess. You don't 
remember?
    Mr. McNulty.  Yes. That is a guess. I don't remember.
    Mr. LaTourette. Okay. If we could play chapter 6, please.
    The Chairman. Would the gentleman yield for a moment?
    Mr. LaTourette. Sure.
    The Chairman. In your question you described the exchange, 
if there in fact was one, as a conversation. Can we determine 
if the tape runs the duration of that conversation?
    Mr. LaTourette. I am sure we can. I would be happy to ask 
unanimous consent when my clock isn't ticking that we have the 
staff determine that.
    The Chairman. Well, thank you very much. I yield back.
    Mr. LaTourette. Chapter 6, please.
    Mr. McNulty.  Now I think in that one she is not talking to 
me. It looks like she is talking to Ethan.
    Mr. LaTourette. You can stop there. So my question is, you 
don't recall what we have just played, chapter 6 being a 
conversation between Ms. O'Neill and yourself?
    Mr. McNulty.  No. And I think it looks obvious that it is 
not.
    Mr. LaTourette. Well, I don't want to dispute--it is 
obvious she comes up the stairs to the rostrum, you look at her 
and you get up. I think if we played it a minute more or a 
couple seconds more, you are going to bang the gavel. But you 
don't remember having----
    Mr. McNulty.  I don't.
    Mr. LaTourette. Okay. And lastly, chapter 7. Could you stop 
it there for just a second? You now see sort of the marriage of 
the orange and red circle sort of in the manner of the 
Olympics. And again, looking at our cue sheet, the red circle 
belongs to the Majority Leader, Mr. Hoyer. And Mr. Hoyer has 
indicated in his testimony or in his deposition with the Select 
Committee that he believes he was expressing a desire to Ms. 
O'Neill that the vote be shut down when we are ahead. Okay. 
Could you continue to play, please?
    Stop it there. Okay. Again, the orange circle appears to go 
up. You lean over, and would you agree that it appears that 
there are words being exchanged between you and Ms. O'Neill?
    Mr. McNulty.  I leaned forward a couple of times that night 
in order to hear things. But I am not sure, Steve, on that one. 
The other ones, it was obvious that there was a communication. 
On that one, I am not sure.
    Mr. LaTourette. Okay. So again, since you are the witness 
and I am not, I would just say that you don't recall that 
interchange between yourself and Catlin O'Neill.
    Mr. McNulty.  I don't recall----
    Mr. LaTourette. There being one?
    Mr. McNulty.  That is correct.
    Mr. LaTourette. Okay. Great. You do, in fact, during the 
course of that--and I would be happy to rewind it for you and 
replay it--but you do in fact gesture to someone with your 
hand. Did you notice that?
    Mr. McNulty.  Yes.
    Mr. LaTourette. Okay. Do you have any idea--do you recall 
talking to anybody if it is not Ms. O'Neill at that moment in 
time?
    Mr. McNulty.  I just don't remember that one, Steve.
    Mr. LaTourette. That is fine. Again, from the testimony of 
other people, including the Majority Leader, the Majority 
Leader indicated that when he entered the Chamber and came down 
to the well, that he yelled that he wanted the vote closed and 
closed now. I have understood you to say that if the leader was 
in the well you didn't hear him?
    Mr. McNulty.  I did not hear that.
    Mr. LaTourette. And I think what Mr. Pence was getting at 
is that all of the other Members of the rostrum who have been 
interviewed did, in fact, hear that direction.
    Mr. McNulty.  Well, they were all closer than me.
    Mr. LaTourette. Well, including I would say Ethan Lauer, 
who was standing next to you.
    Mr. McNulty.  Well, I did not hear that.
    Mr. LaTourette. That is what I am saying. So I just want to 
tell you----
    Mr. McNulty.  I absolutely did not hear that.
    Mr. LaTourette. That is where I think Mike was going in 
that discussion.
    Now I want to get to this----
    Mr. Davis.  Would the gentleman yield for one second? I 
don't want to use this time to obviously argue about the facts. 
But Mr. LaTourette's observation that Mr. Lauer was next to 
you. Mr. Lauer is actually in the same place that Mr. Sullivan 
was. I mean, he is a little bit removed from him. So to suggest 
they are in a very close position is absolutely inaccurate, Mr. 
LaTourette.
    Mr. LaTourette. Well, and I appreciate that and I thank the 
gentleman for bringing it up. And as a matter of fact, Mr. 
Lauer would be further away than Mr. McNulty at the time that 
the Majority Leader was in the well making his observations. 
But I thank the gentleman for making my point.
    I want to get to this 2(a). 2(a) was a much publicized 
response to the 3 hour and some Medicare Part D vote in which 
it was alleged arms were broken, and so forth and so on. But at 
the end of the day the protocol that Mr. Hanrahan testified 
about was followed, a tally sheet slip was handed up, the 
computer was shut down appropriately, the Chair read from the 
tally slip, and we were done. And to purge the House of the 
culture of corruption, the new Democratic Majority determined 
that they would put in clause 2(a). I think that as we have 
explored this matter as a Committee, we have found--I have 
referred to it as a soup sandwich in that it says for the sole 
purpose of influencing or affecting the outcome of the vote. 
And it is a soup sandwich because the presiding officer could 
come up with any reason. He could say, because it is Tuesday, 
because my wife laid out a blue tie today, because I thought 
people were at the White House.
    Are you a lawyer?
    Mr. McNulty.  I am not a lawyer.
    Mr. LaTourette. Are you familiar with something called mens 
rea in the criminal law.
    Mr. McNulty.  Yes.
    Mr. LaTourette. Okay. Well, in my mind, the only way that 
this clause 2(a) can be definitively violated is if the 
occupant of the Chair says, yeah, I did it. I mean, that is it. 
Because we have to--you know, unless we can get Mr. Spock and 
do the Vulcan mind meld and, you know, say that you know this 
is what happened, that the person in the Chair has to say, I 
held it open for the sole purpose of influencing the outcome of 
this vote. I don't ask you to agree with that, but that is my 
sense of 2(a).
    Mr. McNulty.  You are probably right, but what I was trying 
to do was to avoid even the appearance of impropriety with 
regard to that.
    Mr. LaTourette. And I know you were.
    But I want to get to your mens rea, and this goes to my 
opening observation about mistaken, not intentional, and 
everything else; and that is, you indicated to us in your 
interview, and you have reaffirmed that here to today, that as 
a presiding officer you were cognizant of rule 2(a).
    Mr. McNulty.  Very cognizant, maybe overly so.
    Mr. LaTourette. And you wanted to make sure that nothing 
you did ran afoul of clause 2(a)?
    Mr. McNulty.  I will repeat, I wasn't so much worried about 
running afoul of it, because I knew in my own mind that I was 
not violating clause rule 2(a), but that there could be the 
appearance of a violation of clause--of rule 2(a)--clause 2(a) 
of Rule XX.
    Mr. LaTourette. But let me walk you again to your interview 
and your statement today, and let me go back.
    You called the vote twice before John Sullivan's statement. 
But the first time you say 214-214, you don't speak the magic 
words, the motion is not agreed to, and you stop?
    Mr. McNulty.  That is correct.
    Mr. LaTourette. And based upon your earlier interview, you 
said you stopped because you became aware of people calling one 
more, or activity in the well, that evidenced that other 
Members wanted to vote?
    Mr. McNulty.  Yes.
    Mr. LaTourette. And, as a matter of fact, five Members do 
then vote with well cards; two Democrats and three Republicans. 
There comes a time after the conversation between Mr. Hoyer and 
Ms. O'Neill that you call it a second time without benefit of 
the tally slip by referencing the board, and you call it 214-
214 again, and this time you say, and the motion is not agreed 
to?
    Mr. McNulty.  But that had nothing to do with anybody 
else's conversations. That had to do with my--what was going 
through my mind about the enforcement of clause 2(a) of Rule XX 
and my determination in my own mind that after the last vote 
change was announced, I was going to call that vote; not what 
it was, I was going to call that vote.
    Mr. LaTourette. And I am not saying that you buckled to 
pressure.
    Mr. McNulty.  And I wouldn't even know in my own mind what 
that vote would be until it was done.
    Mr. LaTourette. That is exactly right. But that is what I 
want to get to. And that is, because you told us this, and I 
think this is important; and you may not agree with me, but I 
think this is important.
    You have indicated to us that in your mind the application 
of rule 2(a) was going to cause you to call that vote after the 
Mario Diaz-Balart card had been entered.
    Mr. McNulty.  I would say the appearance of--I mean, I have 
to say to you, Steve, there was never any question in my mind a 
violation of clause 2(a) of Rule XX would be if I was holding 
the vote open for the purpose of changing the outcome.
    I was in the process of closing the vote down; I was doing 
the opposite, so there was no violation of clause rule 2(a) in 
my mind. But I could understand, and as a matter of fact, 
expected later on that there could be the appearance of that, 
particularly if the Majority side prevailed and I was holding 
the vote open.
    Mr. LaTourette. No, I get it, and I don't think we are 
disagreeing. But I had understood you to say in your interview 
that you, as the presiding officer surveying the well, seeing 
that after Diaz-Balart and Ros-Lehtinen came down, submitted 
well cards, you told us that you had reached the conclusion, as 
the presiding officer, you were going to call the vote after 
those votes were processed, and that you were concerned that to 
keep the vote open after that would have given this appearance 
of a violation of rule 2(a). That is what you told us.
    Mr. McNulty.  I don't disagree with that.
    Mr. LaTourette. Okay. That is all I want to say. Okay.
    Now, but clearly--and so when you called the 214-214, the 
clock upticks, or the thing upticks.
    Mr. McNulty.  That's correct. Because I believe that 
Mario's vote had not yet been recorded by the computer.
    Mr. LaTourette. That's right. But you would agree that 
within moments, and certainly today, you understand that what 
you read off the display was not right, the votes that had 
actually been processed into the system at that point in time, 
once the computer refreshed, was really 215----
    Mr. McNulty.  Well, that is a technical question. I mean, 
when I called the vote, it was 214-214. So you are asking a 
technical question whether a vote is counted before it is 
recorded. I don't really know the answer to that question, but 
that vote had not yet been recorded.
    Mr. LaTourette. Okay. Well, we will ask somebody else that.
    Mr. McNulty.  That is a technical question.
    Mr. LaTourette. I think that Diaz-Balart, Mario, his card 
is in the system.
    Mr. McNulty.  It was certainly my intention to count his 
vote.
    Mr. LaTourette. Right. And then I think--could you put up 
the--we have sort of a time sequence of when votes were in and 
recorded and everything else. And quite frankly, when Mario 
Diaz-Balart's card goes in, it makes it 215-213.
    Mr. McNulty.  Yes.
    Mr. LaTourette. Okay. Now, at that point in time you, as 
the presiding officer, because Mr. Davis asked you if anyone 
told you not to close the vote or close the vote or anything 
else, but when you attempted to call it the first time, nobody 
told you to call it the first time, right? The Parliamentarian 
didn't say, call it now?
    Mr. McNulty.  No. It was my same mind-set about clause 
2(a), Rule XX.
    Mr. LaTourette. And when you closed it the second time, the 
Parliamentarian--I mean, Mr. Davis' observation is, nobody told 
you not to do it; well, nobody told you to do it, either.
    Mr. McNulty.  That's right. And I have always taken 
responsibility for that. I did it.
    Mr. LaTourette. Right. And you, as the presiding officer 
invested with the discretion in terms of when to close that 
vote down, you had a choice at that sort of pivotal moment; and 
that is, you read off the board, 214-214.
    I will ask somebody else, but for purposes of this question 
I am going to ask you to assume that it really was 215-213 in 
terms of votes being in the system and just not making it from 
Anderson's computer to the screen.
    You could have re-called the vote at 215-213 and that the 
motion is agreed to; you had that discretion as the presiding 
officer, did you not?
    Mr. McNulty.  If John Sullivan had told me to do that, I 
would have done it in a New York minute.
    Mr. LaTourette. I understand that.
    Mr. McNulty.  And I described earlier what my mind-set was 
at that time, was that I made a serious error, and I wasn't 
intent on making another one. And I decided at that point to 
heed the words of both Bill Brown and Jim Wright, who both said 
to me, when in doubt, follow the instructions of the 
Parliamentarian.
    On the rest of that vote I was going to follow the 
instructions of the Parliamentarian. And the Parliamentarian 
said to me, he was going to write a statement for me to read, 
and I did not make any ruling until he finished composing that 
statement and me reading it.
    Mr. LaTourette. When did he tell you he was going to write 
a statement for you?
    Mr. McNulty. You can probably find that on the tape. I 
think he came up and said something to me--I think.
    Mr. LaTourette. Did you think it was contemporaneous with 
when you made the mistaken call?
    Mr. McNulty. It was very shortly after that.
    Mr. LaTourette. But the last question--I have heard what 
you said, that you sort of said, from this moment on you are 
going to do whatever the Parliamentarian. But do you disagree 
with the observation that you could have re-called the vote 
based upon the votes that were in the system, 215-213, motion 
is agreed to; and there still would have been available a 
motion to reconsider by the Majority party made by one of the 
19 Democrats that voted for the motion?
    Mr. McNulty. I think all of that could have happened. It is 
just, Steve, that at that point in time I knew I made a serious 
error. I felt terrible about it, and I didn't want to 
complicate the situation, so I waited to get instructions from 
the Parliamentarian.
    Mr. LaTourette. I've got you. Thank you very much.
    The Chairman. Mr. Davis.
    Mr. Davis. Thank you, Mr. Chairman. Let me pick up Mr. 
McNulty directly on Mr. LaTourette's last set of questions to 
you, because I was a little bit struck by them.
    He asked you, well, once you saw the uptick went from 215-
213, why not just change what you said and announce that the 
motion is carried? Did anyone hand you a tally sheet showing 
the vote was 215-213?
    Mr. McNulty. No.
    Mr. Davis. And perhaps I am wrong, but I thought we were 
hearing all day from Mr. LaTourette and Mr. Pence and Mr. 
Hanrahan how important a tally sheet was.
    If you had called the vote at 215-213, you would have been 
doing it without a tally sheet, correct?
    Mr. McNulty. That is correct.
    Mr. Davis. The only difference is, their side would have 
won and not ours, but there still wouldn't have been a tally 
sheet either way, right?
    Mr. McNulty. No. If I just made that pronouncement on my 
own, it would have been without the benefit of a tally sheet.
    Mr. Davis. And let us just for a moment actually go back 
one more time into the tape.
    Mr. Operator, if you can go back to the time that Mr. 
McNulty calls the vote at 21:50 or 10:51:56.
    Or 22, I am sorry. 22:51--is it 26 or 56? 26. Just get to 
that point.
    And I want you to note Mr. McNulty, frankly, how quick a 
time frame elapses before other Members go up there and start 
changing their votes again.
    Mr. Davis. Mr. McNulty, at 22:51:31, you complete your 
sentence saying the motion is not carried. Ten seconds later 
what do you see in the well?
    Mr. McNulty. I see, I believe it is Zach Space and Kirsten 
Gillibrand.
    Mr. Davis. Within 10 seconds of your prematurely calling 
the vote, at least two Members go to the well, do you agree 
with that?
    Mr. McNulty. Yes.
    Mr. Davis. Mr. LaTourette asked you why you didn't just 
call the vote again apparently without a tally sheet at 215-
213. If you had called the vote without a tally sheet at 215-
213, that would have meant that both Gillibrand and Space would 
have been prevented from changing their vote; isn't that right?
    Mr. McNulty. That's correct.
    Mr. Davis. And if prevented Gillibrand and Space from 
changing their vote, as they clearly stand in the well, you 
would have been disenfranchising them; is that right?
    Mr. McNulty. I believe so.
    Mr. Davis. And just for the record, it is not just the two 
of them, another Member comes forward--Mr. McNerney?
    Mr. McNulty. That's correct.
    Mr. Davis. So we have at least three Members--McNerney, 
Gillibrand and Space--who go on to change their votes. If you 
had called the vote during the 7-minute window, all three of 
them would have been disenfranchised.
    Mr. McNulty. I believe so.
    Mr. Davis. You were asked a number of questions about 
whether Ms. O'Neill communicated any instructions to you to 
close the vote out.
    Mr. McNulty, you have been in the House for 20-some years 
or for 19 years, is there anything improper or unusual about a 
member of the Speaker's staff suggesting to a presiding officer 
that the vote be closed out?
    Mr. McNulty. No. It is fairly routine.
    Mr. Davis. As I understood your testimony, though, you are 
not saying the communication did--you are not saying it was an 
improper communication, you are simply saying you don't recall 
receiving it.
    Mr. McNulty. No.
    And there may have been, like I said at the beginning, just 
an indication of a call for the additional votes or changes of 
votes, something like that, which would have been very routine. 
But no one instructed me to call the vote when I called the 
vote.
    Mr. Davis. And for the record--though Ms. O'Neill can speak 
for herself, since Mr. LaTourette took the care to characterize 
other individuals' testimony--I represent to you that Ms. 
O'Neill in no way contradicts that.
    Now, as far as Mr. Hoyer goes, as a 19-year Member of the 
House, is there anything unusual about a Majority Leader or 
Majority Whip suggesting that a vote should be closed out, 
anything improper about that?
    Mr. McNulty. Well, it would only be improper if someone was 
in the Chair and that was suggested and someone else was trying 
to vote. But other than that, it would not be unusual.
    Mr. Davis. Now, what is interesting to me is, for all the 
questions about what Mr. Hoyer did or didn't do, this doesn't 
change if you look at the tape 50 times, 100 times or one time, 
when you call the vote, you were looking up at the board; and I 
can't see the gentleman from Maryland, Mr. Hoyer. Do you agree 
with that?
    Mr. McNulty. Say that last part.
    Mr. Davis. At the time that you call the vote, I don't see 
Mr. Hoyer anywhere in sight; and I see you looking up at the 
board, correct?
    Mr. McNulty. I don't see him, but I have got a block on my 
screen here.
    Mr. Davis. Well, I am not talking about this moment on the 
screen. That is a different point.
    But at the time when you called the vote--you have seen 
that several times--I see you looking at the board. I don't see 
Representative Hoyer anywhere. So for all the questions about 
whether he pressured you or influenced you, I don't even see 
his physical presence.
    Do you agree with that?
    Mr. McNulty. I don't recall his physical presence, and I 
know that he was never successful in communicating anything to 
me.
    Mr. Davis. So even if there were some admission or 
exhortation from the Chair to call a vote, Mr. McNulty, it 
seems to me, frankly, that you either didn't hear it or ignored 
it.
    Mr. McNulty. I never heard anything as far as a direction 
to me from Steny Hoyer.
    Mr. Davis. Now, one final set of questions.
    There is some question from Mr. Pence about the atmosphere 
in the Chamber that night, and I think Mr. Pence read Mr. 
Hoyer's comments about whether his agitation might have created 
some sense of pressure.
    What was the pressure that you felt when you were 
evaluating when to call that vote, Mr. McNulty?
    Mr. McNulty. The possible charge later on that there might 
have been a violation of clause 2(a) of Rule XX. That is what I 
was concerned about.
    And today I feel as though I was overly concerned about it.
    Mr. Davis. But in other words, the pressure you felt that 
night wasn't from the leadership to call a vote prematurely. 
The pressure you felt was that if you kept the vote open too 
long, the Minority might have objected to a violation of 2(a); 
that sounds like what you are saying.
    Mr. McNulty. Yes.
    Mr. Davis. I will yield the balance of my time to the 
Chairman.
    The Chairman. Mr. Pence.
    Mr. Pence. Thank you, Mr. Chairman. Just a couple more 
questions from me, and then I will yield to Mr. LaTourette and 
be able to let you go.
    One point of clarification for my colleagues: Mr. Davis 
suggested that the Minority would have preferred for you to 
call the vote. And I am paraphrasing my friend, but I think in 
his dialogue with you, he just suggested that the Minority 
would have preferred that you call the vote at 215-213 even 
without a tally slip.
    Let me be very clear. It is the judgment of the Minority 
that at the time you used your discretion following Mr. Diaz-
Balart's vote being presented, at the time that you decided to 
close the vote, we believe the vote, had it been properly 
processed into a tally slip and handed to you, would have 
reflected 215-213. And Members of the Minority are not and have 
not advocated overturning--that you should have overturned that 
long-standing tradition that would have meant we would have 
won.
    I think Mr. LaTourette's point there is that, had the tally 
slip been created at the moment that you clearly today have 
expressed your intent to close the vote, following Mr. Diaz-
Balart's vote, that it is our judgment the vote at that time 
was 215-213.
    Let me move on to my questions.
    Mr. Hoyer stated during his interview that he told Catlin 
O'Neill that he wanted the vote closed when the Majority was 
prevailing. That is on page 44 of his deposition, for the 
record.
    There is a brief conversation visible--as Mr. LaTourette 
walked you through the video, there is a brief conversation 
visible between Mr. Hoyer and Ms. O'Neill at the rostrum. She 
appears to--well, she does immediately turn and appears to be 
saying something to you, although your testimony today is that 
you cannot recall what that was.
    You know, it strikes me as highly unlikely that if the 
Majority Leader of the House of Representatives told an 
employee of the Speaker's Office that he wanted the vote 
closed, as he stated, and she immediately turned and said 
something to you, that Mr. Hoyer's wishes would not have been 
conveyed during that conversation.
    Does that strike you as unlikely, as well, or unusual?
    Mr. McNulty. No. I am just telling you what I recall as I 
recall it. And there was no communication from Catlin to me 
that Steny Hoyer was directing me to close that vote. That did 
not happen.
    Mr. Pence. Thank you. But given the Majority Leader's 
testimony that he had----
    Mr. McNulty. There are a lot of things that you can look at 
on the tape and interpret stories and so on, but some of them 
are true and some of them are not. That one is not.
    Mr. Pence. Let me push on to the question of when we had 
the opportunity to interview you before, you were asked, and I 
think this appears on page 62 of--one moment.
    Just for clarification, you were asked in your interview 
how would you characterize Mr. Hoyer's demeanor during that 
interaction with Mr. Sullivan, and we are referring to that 
point in the tape where we see them having a conversation. Your 
reply was agitated. Did you know----
    Mr. McNulty. I think I said that earlier, too, something to 
that effect.
    Mr. Pence. You did.
    Mr. McNulty. I wasn't happy or something.
    Mr. Pence. You did.
    Did you know--do you recall knowing what Mr. Hoyer was 
agitated about?
    Mr. McNulty. You know, things were happening so rapidly 
that evening; and I was fixated on not violating the appearance 
of clause 2(a) of Rule XX, and I was looking at the board 
constantly.
    So, no, I didn't hear what he said to John. I know he said 
something. He didn't look happy to me. If you were to ask me to 
independently, say what his words were, I couldn't tell you of 
my own knowledge.
    I can tell you what they are now because they have been 
published umpteen times; but if you were relying on me to be 
the source of that, I wouldn't be able to truthfully tell you 
that I remember him saying that. It was just very, very loud 
and I was concentrating on other things at the time.
    Mr. Pence. Let me ask this one other way, and then you can 
say ``no'' again.
    Did you suspect that Mr. Hoyer was upset because you had 
not closed the vote while the Majority was prevailing?
    Mr. McNulty. Let me put it to you this way: If he wanted to 
express that thought, why couldn't he have turned his head to 
me and told me that? He didn't.
    Mr. Pence. During his interview with this Committee, when I 
asked Mr. Hoyer whether his demeanor or actions, quote--and 
this was my question--``may have unintentionally created an 
environment of more pressure on Mr. McNulty to close a vote,'' 
the Majority Leader merely replied that that was, quote, 
``certainly possible.''
    Mr. McNulty. I felt no pressure from Steny Hoyer that 
night. My concentration was on enforcing the rules of the 
House, including the new rule.
    Mr. Pence. Thank you. That probably answers my last 
question.
    So Mr. Hoyer's, what many have characterized as angry 
demeanor--you characterize it as agitated--it is your testimony 
it had no effect on your decision to prematurely close the 
vote?
    Mr. McNulty. That is absolutely true. And if he wanted to 
communicate anything to me at the time he was having the 
conversation with John, he was close enough to me to turn to me 
and say something. He did not.
    Mr. Pence. I think that is all I have.
    Mr. LaTourette, do you have anything further?
    Mr. LaTourette. I do.
    Just three quick lines of inquiry, Mike, and thank you for 
your patience and your answers to the questions.
    When we talked to you earlier, on page 27 of your 
testimony, you were asked, do you think it was significant that 
there wasn't a tally sheet; and you say, I think it was pretty 
darn significant; I didn't wait for it because I felt that if I 
allowed additional time in between the time after Mario had 
voted, that other Members of the House might be persuaded on 
both sides of the aisle to change their votes; so we can get 
into one of those situations where a couple change on one side, 
a couple change on the other side, time keeps going on and I 
could be subject to criticism for violating clause 2(a). So I 
decided after Mario's vote when I saw no one in front of me 
with a card--attempting to get a card ready to vote, that I 
would call the vote.
    And then you have reinforced that today. That was your 
mind-set at the time?
    Mr. McNulty. Yes.
    Mr. LaTourette. And let me, if we could play chapter 8 of 
the tape, please, and just ask you to watch chapter 8 for a 
second. And I would ask you to pay particular attention to the 
time, which is 22:51:14, when you announced for the second 
time--hold on a second--when you announced the second time the 
vote to when Mr. Sullivan opposes it.
    [Video played.]
    Mr. LaTourette. We are now at 22:52:39, which is about a 
minute and a half after you gaveled the vote for the second 
time. It didn't appear to me--and at this moment in time that 
we have frozen it, it appears that Mr. Sullivan is writing the 
statement that you referred to and you subsequently read. It 
appears to me that that is the first time that Mr. Sullivan, 
since your calling of the vote at 214-214, the motion is not 
agreed to, had any contact with you; is that right?
    Mr. McNulty. It appears that way.
    Mr. LaTourette. So again, you know, and you know what is 
troubling us--I mean, what is troubling us is, you called the 
vote 214-214, when it is really 215-213. And then in that 
intervening time, wherein the Parliamentarian does not appear 
to be giving you any instructions, three Democratic Members 
come to the well and change their votes, three Democratic 
Members who you say weren't attempting to change their votes 
when you made the decision that you would be criticized for 
violating clause 2(a) if you didn't call it after Mr. Diaz-
Balart's vote. And on page 60 of your interview with us 
earlier, I said--I asked you this question, can you as the 
presiding officer indicate for what purpose you kept the vote, 
that vote, open beyond your declaration of 214-214 other than 
for the sole purpose of having the outcome of the vote 
affected. Your answer is, I did it for the sole purpose of 
following the directions of the Parliamentarian after I had 
committed an error.
    I don't see the Parliamentarian giving you any direction.
    Mr. McNulty. Which is what I said today. But let me clarify 
what was in my mind then, Steve.
    After I committed that error, which was very obvious the 
moment that the changed vote appeared on the board, I made the 
determination in my mind that I committed an error, that it was 
a serious error, and I wasn't going to compound it by 
committing another one, and that I made the decision in my own 
mind I was not going to make no further ruling on that vote 
until and unless I was directed to do so by the 
Parliamentarian.
    So I made that decision to wait until the Parliamentarian 
gave me further instruction. That is the sum and substance of 
my mind-set at the time.
    Mr. LaTourette. Okay. I appreciate it and I thank the 
Chair.
    Thank you, Mike.
    The Chairman. Mr. McNulty, thank you for your testimony 
today. And I can appreciate the experience that you had and the 
fact that you probably chose the wisest course of action, which 
was seeking the advice and listening to the guidance and the 
suggestions of Mr. Sullivan, whom we will hear from this 
afternoon. But thank you, Mike, again for your testimony.
    Mr. McNulty. I thank all of the Members, and I apologize 
for being the reason that you are here. Thank you.
    Mr. Pence. Thank you, Mike.
    The Chairman. You are excused.
    And we will recess until 2:00, at which time we will 
reconvene.
    [Whereupon, at 1:30 p.m., the Committee recessed, to 
reconvene at 2:00 p.m. the same day.]
    The Chairman. Welcome, Leader Hoyer. I am going to give a 
formal introduction, and then we will go to the Minority side.
    Mr. LaTourette. We are actually starting on your side.
    The Chairman. Well, let me formally introduce the Majority 
Leader.
    Congressman Hoyer represents Maryland's Fifth Congressional 
District. He is currently serving his 14th term in Congress. In 
November 2006, he was elected by his colleagues in the 
Democratic Caucus to serve as House Majority Leader in the 
110th Congress, becoming the highest ranking member of Congress 
from Maryland in history.
    He has held positions of great responsibility in the House 
Democratic leadership. Prior to being an elected Majority 
Leader, he shared as Whip Chair of the Democratic Caucus, co-
chair of the Democratic Steering Committee and candidate 
recruiter for House Democrats.
    Welcome, Steny.
    And we will go right to the vice chairman of the Committee, 
the gentleman from Alabama, Mr. Davis.
    Mr. Davis. Thank you, Mr. Chairman.
    And Mr. Leader, welcome.
    Mr. Hoyer. Thank you for giving me this opportunity.
    Mr. Davis. And let me. Just so you understand the agreement 
that we have made with respect to time today, I am going to 
have approximately 30 minutes to question you for a direct 
exam, if you will; then the Minority will have 30 minutes.
    The Majority side will reserve 10 minutes for rebuttal and 
the Minority will have an additional 10 minutes.
    Let me begin, Mr. Leader, by saying that we are very 
appreciative of your cooperation in this matter. As you recall 
very well, you spent approximately 3 hours of your time, when 
we promised you 1 hour, when we took a deposition in your 
office; and you know how long-winded your colleagues can be.
    But you have been extremely gracious with your time. You 
have been gracious enough to orient your schedule today to be 
here. The House is in session today. There are a number of 
things you could be doing, and we are genuinely appreciative of 
your cooperation.
    Mr. Hoyer. In terms of long-windedness, some people say I 
live in a glass house.
    Mr. Davis. Mr. Leader, you are aware that the Select 
Committee was empowered by the House to investigate alleged 
voting irregularities regarding the Roll Call Vote 814 on the 
night of August 2nd. And we have had extensive depositions; we 
have deposed over 20 witnesses, including yourself.
    We have heard testimony from one of the Clerks, Kevin 
Hanrahan, today. And we have just heard testimony from Mike 
McNulty, the presiding officer. And there will be other 
witnesses; Mr. Sullivan, the Chief Parliamentarian, will 
testify and two of his staffers will testify.
    So those in this room have gotten a little bit fatigued 
with seeing the tape many times today. And I am going to try 
not to spend too much time with the tape, but to ask you some 
more general questions. And I want to begin by trying to get 
people a little bit focused on what it is we are even talking 
about.
    I had a chance to talk to my office, and I got a 
instructive call from a viewer. Apparently this was carried on 
one of the C-Spans earlier; and someone called in and said, I 
get most of what you all are talking about, but nobody has ever 
told me what this ``motion to recommit'' business is. And the 
person is like--it is like trying to follow a tennis match 
without knowing what the rules are.
    So I am going to ask you to begin by setting a little bit 
of context. Exactly what is a motion to recommit?
    Mr. Hoyer. Well, a motion to recommit is a motion that the 
Minority usually makes. A Majority can make a motion to 
recommit, a Majority Member, but it is reserved to the Minority 
at the end of the consideration of the bill to make a motion to 
recommit.
    There are two types of motions to recommit--or, I suppose, 
three types. One is a motion to recommit without instructions, 
in effect, send the bill back to Committee.
    The second is a motion to recommit to report back 
forthwith. That simply means that an amendment that might be 
attached to that motion would be voted upon, and if it 
prevailed, it would immediately come back on the floor. And the 
bill, as amended, would then be passed. So that it is like the 
adoption of an amendment.
    There is a third type, which the motion that night was, a 
motion to recommit and report back promptly. The difference 
between ``forthwith'' and ``promptly'' is that the bill 
actually for ``promptly'' goes back to Committee; it does not 
actually go back to Committee with a ``forthwith.'' And as a 
result of going back to Committee, it will delay that bill for 
a very substantial period of time--in this case, more than 30 
days because we were about to leave.
    Mr. Davis. Now, let me again stop you and put this in 
context for people that don't follow the House every day.
    You are saying, in effect, that a motion to recommit 
``promptly'' has the effect of killing the bill? That is what 
you are saying in plain English?
    Mr. Hoyer. It has the effect of killing, really----
    Mr. Davis. Or substantially delaying?
    Mr. Hoyer [continuing]. Substantially delaying.
    Mr. Davis. The motion to recommit that was offered by 
Republicans this night of August 2nd, as I understand it, was a 
motion to recommit that would have had the effect of 
substantially delaying the bill; is that right?
    Mr. Hoyer. Yes, sir.
    Mr. Davis. The bill that was on the floor was the 
Agriculture Appropriations bill; is that right?
    Mr. Hoyer. Yes.
    Mr. Davis. Now, one of the things I want to clarify--
because, again, I tend to listen to calls to my office because 
it means somebody in some cave was listening--several people 
said to me, I heard the Republicans say in their opening 
statement that they want to keep illegal aliens from getting 
benefits, and why are you Democrats against that? Several 
people come off and ask, why are Democrats for illegal aliens 
getting benefits?
    Now, without getting into loving detail on this, can you 
explain exactly what it was the Republicans were trying to do 
on their motion, substantively, and why most Democrats were 
opposed to it?
    Mr. Hoyer. The bill of the Agriculture Appropriations 
Committee was relatively non-controversial. It had bipartisan 
support. The bill really had nothing to do with illegal 
immigration and certainly did not allow anything that was 
against the law for illegal immigrants.
    Democrats were not opposed to the expression--when I say 
``Democrats,'' I don't want to speak unanimously. The motion 
effectively has been used relatively frequently by the 
Republicans for the purposes of, from our perspective, adding 
what are not necessarily germane amendments in a motion to 
recommit, which have to be somewhat germane; and they try to 
make them so.
    In this case, as Congresswoman DeLauro, who is the chair of 
the subcommittee pointed out, A, the bill would have been 
effectively very substantially delayed--this is an 
appropriation bill; we wanted to get it over to the Senate--
secondly, that the subject matter of the motion on illegal 
immigrants really had little, if anything, to do with this 
bill----
    Mr. Davis. Let me just slow you down and ask you a few 
things and see if you agree with them.
    It is already illegal for people who aren't U.S. citizens 
to get benefits from the U.S. Ag Department; is that correct?
    Mr. Hoyer. The last thing I was going to say:--and it also 
replicated existing law.
    Mr. Davis. Right. So the motion to recommit was unnecessary 
because it is already against the law for illegal aliens to 
receive government benefits. You agree with that?
    Mr. Hoyer. Yes.
    Mr. Davis. And do you agree, Mr. Hoyer, some people have 
said that motions to recommit of this nature are frankly 
brought for the purpose of embarrassing certain Members in the 
casting votes that may be hard to explain.
    Without spending a lot of time on that, have I got that 
right?
    Mr. Hoyer. I won't spend a lot of the time.
    It is my perception that--and very frankly, leadership 
staff of Mr. Boehner and Mr. Blunt have asserted this in a 
newspaper article covering motions to recommit--that these are 
made for political reasons or purposes of putting certain 
people, mostly Democrats, in a political dilemma of supporting 
the proposition, but not wanting to kill the bill in the same 
process.
    Mr. Davis. And one----
    Mr. Hoyer. If the motion were made, for instance, to do it 
``forthwith,'' that would not have had that effect. The reason 
the ``forthwith'' is used, is so that Democrats are put in a 
position of killing the bill that had bipartisan support or 
voting against a proposition they may otherwise agree with.
    Mr. Davis. And one other point before we move from the 
definition of ``a motion to recommit'':
    If anyone were really serious about adding a provision 
that, for whatever reason, felt the need to restate current 
law, there is a Committee process and that amendment could have 
been offered in Committee; is that correct?
    Mr. Hoyer. It could have been offered in Committee, but 
even simpler, they could have been offered a motion 
``forthwith.''
    Mr. Davis. Yes.
    Mr. Hoyer. And had the amendment been adopted, it would 
have been immediately attached to the bill.
    Mr. Davis. All right. Now that you have explained what it 
is that we were arguing about on the floor that night, I want 
to ask you a little bit about the duties of a presiding 
officer, because you know that Mr. McNulty's actions have been 
at issue.
    He was the presiding officer, and I think you are aware 
that he made the decision to call a vote that night. And he has 
acknowledged that when he called the vote, it was an error. And 
he said today that it was an error, not of a willful nature, 
not out of any intent to disenfranchise, but I was looking up 
at the board, and I believed that it reflected all the vote 
changes that were going on, had ended up in a 214-214 score.
    And he said this morning, I just missed the fact that the 
gentleman from Florida had changed his vote, and the tally 
board didn't reflect it. That is what Mr. McNulty told us.
    I want you to give everyone a little bit of a sense of 
exactly what a presiding officer's responsibilities are with 
respect to the termination of a vote.
    Mr. Hoyer. The duties of a presiding officer are obviously 
to manage the deliberations of the House, whether it is the 
Speaker, the Speaker pro tem or the Chair of the Committee of 
the Whole House or the House meeting as the Committee of the 
Whole House.
    In furtherance of that responsibility, obviously the 
calling of the vote--that is, asking for Members to start 
voting on a proposition that is before them after the debate is 
concluded--under the rules, providing for the 15 minutes that 
the rule says is a minimum for Members to be given the 
opportunity to vote; and then--in his or her discretion to then 
close the vote at the conclusion of the vote from the Speaker's 
or presiding officer's perception.
    Mr. Davis. And when a presiding officer exercises that 
discretion to close the vote, as an experienced Member of the 
House, as a former presiding officer yourself, what are the 
factors that a good presiding officer takes into account?
    Mr. Hoyer. Well, first of all, the rules require 15 
minutes. It says it shall be a minimum of 15 minutes. So the 
threshold of the Speaker and the presiding officer is to assure 
themselves that the 15 minutes has run.
    Beyond that, there has been a practice of the House to add 
some more time. In this instance, most of the Members were on 
the floor. There were--as you know, there were 428 Members 
voting on all of these votes--relatively unusual that nobody 
left and nobody came in.
    The presiding officer then has to make a judgment that 
Members have, in fact, voted. It does so by seeing whether 
there are Members in the well. The presiding officer then, upon 
his conclusion that the votes have been cast, has the 
responsibility of calling the vote and announcing that vote to 
the House.
    Mr. Davis. You are familiar with rule 2(a) of clause XX of 
the House of Representatives?
    Mr. Hoyer. Yes.
    Mr. Davis. That is a rule that the new Majority adopted 
last year.
    Would you characterize the rule, Mr. Hoyer?
    Mr. Hoyer. Well, the rule provides for the vote not being 
held open for the sole purpose of allowing Members to be 
opportuned or urged or encouraged to change their vote to 
change the outcome of the vote.
    Now, that is hard to interpret for the presiding officer as 
to exactly why somebody wants to change their vote; whether 
they want to change their vote because they made a mistake, 
whether they want to change their vote because they have 
changed their mind on the substance of that vote, or frankly, 
whether they personally have decided they want to change their 
vote because they want their side to prevail.
    It is very difficult for the presiding officer to sort of 
get into the mind of the voter; and in fact, the rules 
essentially say that we cannot question the motives of another 
Member and their vote.
    I think that it is appropriate that we can't question their 
motives. I personally believe that that rule is almost 
impossible to enforce.
    And both sides obviously believe they are right in their 
position; and not only Members of the leadership, but other 
Members are talking to other Members throughout the course of a 
vote saying why they ought to vote ``aye'' or ``nay'' on a 
particular proposition.
    So the rule is a very difficult one to enforce. But it 
clearly says that if the presiding officer perceived that the 
rule was being violated, that the presiding officer would have 
a responsibility to ensure the enforcement of the rules.
    Mr. Davis. Difficult rule to enforce, difficult rule to 
interpret, but it is the presiding officer ultimately who has 
the power to interpret and enforce; do you agree?
    Mr. Hoyer. I think the presiding officer is the sole 
determinant of that issue, yes.
    Ultimately, the House would be if there were an appeal of 
the ruling of the Chair, but certainly, in the first instance, 
the sole authority is in the presiding officer's hands.
    Mr. Davis. There has been a lot of testimony today and some 
argument in the course of this morning that a tally sheet is 
indispensable to the calling of a vote. As you know, Mr. 
McNulty called the vote that night without a tally sheet. For 
that matter, even when he made the final calling of the vote, 
there was no tally sheet. There was never a tally sheet 
prepared that night.
    It is my understanding that the rules of the House contain 
no reference to a tally sheet, is that right--
    Mr. Hoyer. That's correct.
    Now, I don't know that a tally sheet was never--
    Mr. Davis [continuing]. In the context of closing a vote?
    Mr. Hoyer. In this vote there was not, as I understand. I 
did not know at the time, because I think I have said when I 
appeared before you last, I did not know, for a couple months 
later, that there had not been a slip.
    Mr. Davis. The Speaker's Office selects a group of 
Members----
    Mr. Hoyer. Can I make a comment on that?
    The tally slip, my observation over a long period of time 
and last week is that the person who fills out the tally sheet 
looks at the board, puts the number down, and hands it to the 
Parliamentarian.
    Mr. Davis. The Speaker's Office assembles a group of 
Members who are part of the roster of regular presiding 
officers; is that correct?
    Mr. Hoyer. Yes.
    Mr. Davis. Mr. McNulty was a part of that group, as of 
August 2, 2007?
    Mr. Hoyer. Yes.
    Mr. Davis. And do you have any knowledge that presiding 
officers are given any kind of instruction or any kind of 
information stating to them that there must be a tally sheet 
before they call a vote? Have you ever heard of that kind of 
instruction being given as a matter of course to presiding 
officers as they are trained?
    Mr. Hoyer. No. And, of course, my belief is that while it 
is the best practice to follow, it is not essential.
    Mr. Davis. And if we can jump ahead a little bit, you have 
reviewed the videotape, Mr. Hoyer, of that night several times?
    Mr. Hoyer. We have all done the instant replay, yes.
    Mr. Davis. Do you recall the point where Mr. McNulty calls 
the vote erroneously; as he acknowledges. He says, 214-214, and 
the motion is not carried; you recall that moment?
    Mr. Hoyer. Can I make a point though? Mr. McNulty called 
214-214 twice.
    Mr. Davis. Right. That's right.
    Mr. Hoyer. In his first instance, I think he was absolutely 
accurate in his count. I am absolutely convinced that the 
voting machine reflected a count of 214-214 subsequent to the 
Speaker's voting. And, very frankly, I am not sure why the vote 
was not concluded at that time.
    Mr. Davis. All right.
    Now, let me go back to the point, though, where he says, 
the motion is 214-214 and adds the critical language, the 
motion is not carried. From your review of the videotape, did 
any Member of the parliamentary staff approach Mr. McNulty and 
say, you have to have a tally sheet?
    Mr. Hoyer. Not to my knowledge.
    Mr. Davis. Do you remember the Tally Clerks or anyone else 
trying to stop or interrupt Mr. McNulty at all?
    Mr. Hoyer. Not to my knowledge.
    Mr. Davis. And as Mr. McNulty makes his calling of the 
vote--for that matter, the first time when he says, 214-214, 
and then stops himself; or the second time, when he uses the 
words, the motion is not carried, do you have any recollection 
of any member of the parliamentary staff that night intervening 
and saying, stop, Mr. McNulty, you need a tally sheet?
    Mr. Hoyer. I want to be precise in my answer because the 
answer to your question is ``no.'' Did I perceive members of 
the parliamentary staff intervening? I didn't know what they 
were intervening, but my perception was, there were discussions 
between the Parliamentarian and the presiding officer.
    Mr. Davis. But you don't know the content and you have no 
memory of anybody saying, you have got to have a tally sheet to 
call this vote?
    Mr. Hoyer. No. As a matter of fact, I would be surprised if 
somebody said that because it is not necessary to have a tally 
sheet.
    It is, as I have said, the best practice to have a tally 
sheet. I do not know of an instance and I believe there is no 
instance where the board does not reflect the vote.
    In the second 214-214, what happened, from my perception, 
was contemporaneously with Mr. McNulty reading from the board, 
214-214--this is the second time he did it, 214-214--
contemporaneously, almost instantaneously as if it was being 
done the same time, the clerk entered into the machine, Mr. 
Mario Diaz-Balart's vote, making it 215-213.
    But my own view is--what happened is, at the same time Mr. 
McNulty read the 214-214, almost instantaneously after he had 
gotten out 214-214, the board changed.
    The board was accurate in both instances.
    Mr. Davis. There have been a lot of questions this morning 
about the appropriate relationship between the Majority Leader 
and the presiding officer as far as the calling of a vote goes.
    Could you give us a brief description of what the role of a 
Majority Leader would be in the context of closing a vote?
    Mr. Hoyer. Well, the Majority Leader obviously has the 
responsibility, first of all, of scheduling legislation.
    The Majority Leader also is responsible for helping to 
manage the business on the floor and to speak on behalf of the 
majority, at times to state our position or to, frankly, try to 
put us in a position of prevailing on the questions that we 
want to prevail on or defeating the questions we want to 
defeat.
    The Minority Leader has the same role on his side of the 
aisle to do the same for his party. So that in terms of a vote, 
as Mr. Blunt stated the day after, August 3rd, on the floor, 
that for 4 years, he said, it was his role when the vote should 
quit. Those are his words, not mine.
    But essentially, in my opinion, what he meant was that--and 
you have had testimony from the Parliamentarians--that where 
there was a nod or shake of the head or, you know, it is time 
to cut it off, both sides try to manage the vote so they can 
prevail. Again, within the rules, within fair consideration of 
those who may be seeking to vote, both sides have, over the 
years, conveyed their thoughts as to when the vote should come 
to a close within the rules.
    Mr. Davis. And when the Majority or Minority convey a sense 
that a vote should close, is it fair to say that it is still up 
to the presiding officer whether or not to follow that 
admonition?
    Mr. Hoyer. Absolutely.
    Mr. Davis. The night of this vote in question, there has 
been a lot of scrutiny as to your interaction with Mr. McNulty 
that night. Let me take you through a brief set of questions 
and simply ask you for a brief answer to each of them.
    Was there a point that night when you in some way verbally 
communicated to anyone in the Chamber that you felt that the 
vote should close?
    Mr. Hoyer. Yes.
    Mr. Davis. And to whom did you make that communication.
    Mr. Hoyer. Generally toward the Chair. I didn't have a 
discussion with Mr. McNulty. I was in the well, and at the time 
the Speaker voted, I wanted the vote to come to a close.
    Mr. Davis. How did you communicate that?
    Mr. Hoyer. I think I said, it is time to shut it down. It 
may have been something like that.
    Mr. Davis. Were you standing close to Mr. McNulty when you 
said, time to shut it down, or words to that effect?
    Mr. Hoyer. Close. Probably, what? Do you think 20 feet 
away? Maybe a little less than that if you are in the well.
    I was essentially by the microphone on the Majority side 
when I said that. And I said it probably a couple of times.
    I said it loudly enough, so I thought it could be heard by 
anybody who wanted to know what I thought.
    Mr. Davis. Did Mr. McNulty follow the admonition?
    Mr. Hoyer. He did not.
    Mr. Davis. What did he do instead?
    Mr. Hoyer. Well, I am not sure exactly when I said to do 
it. He waited, and after the Speaker voted, he then--and was 
read across as having voted, he called the vote at 214-214. As 
I said, I believe the vote was then 214-214. Sixteen minutes 
and 1 second had transpired, the minimum period had transpired. 
I think he was within his right. My own view is the vote should 
have come to a close at that point in time.
    Obviously, as you have heard testimony, and we have all 
experienced, votes don't necessarily come to close when they 
are announced. And the reason for that is the Speaker, in the 
exercise of fairness, tries to assure the fact if there are 
additional votes, to allow those to be cast.
    Mr. Davis. Now after you--let me make sure I fully 
understand your testimony. You are in the well, you are not 
standing up next to the presiding officer.
    Mr. Hoyer. I am in the well.
    Mr. Davis. And there is a lot of voice. I am not saying you 
spoke loudly, but it was a very noisy Chamber that night.
    Mr. Hoyer. I think it has been referred to as chaos. I am 
not sure it was exactly chaos, but it was loud and contentious.
    Mr. Davis. In fact, is it fair to say that numerous Members 
were saying, close the vote, or call the vote, or something 
like that?
    Mr. Hoyer. There were a large number of Members on my side 
of the aisle who were urging that the vote terminate.
    Mr. Davis. Was there ever a point when you climbed up to 
the rostrum and walked close to Mr. McNulty and instructed him 
to close the vote?
    Mr. Hoyer. No. I did go to the rostrum, as you know--
actually, I didn't go to the rostrum, the Parliamentarian, as 
you know, stands down the step and about 4 or 5 feet from the 
presiding officer, and as everyone knows, I did go up to talk 
to Mr. Sullivan.
    Mr. Davis. In fact, just so we are clear, Mr. McNulty 
attempts to call the vote. He begins to call it at 214-214 at 
approximately 10:50 that night. Do you have any way of knowing 
how close in proximity that was to you orally saying, close the 
vote down. Was it a minute, second?
    Mr. Hoyer. It was a relatively short period of time we are 
talking about. This vote took about 24, 25 minutes, as I 
recall, somewhere in that time frame. If it was 16 minutes, it 
was probably leading up to that, or shortly after. I can't 
recall specifically that time frame within that 30 to 60 
seconds. It was probably undoubtedly within that time frame 
because I perceived that when the Speaker voted, we had 
prevailed, and I wanted the vote to come to a close.
    Mr. Davis. So, just so I am clear, in the instance when you 
recall communicating in some fashion that the vote was closed, 
Mr. McNulty did not follow the instruction, is that right?
    Mr. Hoyer. No, he did not.
    Mr. Davis. Later on, Mr. McNulty does call the vote in a 
definitive way at 22:51. We have seen the tape several times, 
and I will represent to you that you are not physically visible 
in the tape at the time that Mr. McNulty calls the vote. Do you 
agree with that from what you have seen?
    Mr. Hoyer. Yes.
    Mr. Davis. You are not near Mr. McNulty. You can't be seen. 
Do you agree with that?
    Mr. Hoyer. Yes.
    Mr. Davis. Do you agree that Mr. McNulty appears to be 
looking up at the board as he is waiting before he appears to 
call the vote the second time?
    Mr. Hoyer. Yes.
    Mr. Davis. Was there any oral instruction from you that was 
close in proximity to the time that Mr. McNulty calls the vote 
the second time?
    Mr. Hoyer. No. I never talked to Mr. McNulty prior to, I 
think, the conclusion of this event.
    Mr. Davis. At the time Mr. McNulty calls the vote, you 
recall there is much consternation on the floor, and one of the 
points of contention is that several Democratic Members went 
into the well and they cast vote changes. Do you recall that 
happens?
    Mr. Hoyer. Yes.
    Mr. Davis. And I think there has been agreement among all 
witnesses that roughly 7 minutes lapses between the time that 
Mr. McNulty calls the vote at 214 and the time that Mr. McNulty 
reads the final vote. Is that roughly consistent with your 
memory? There has been widespread agreement it is about 7 
minutes.
    Mr. Hoyer. Yes.
    Mr. Davis. During that 7-minute time frame, three 
Democratic Members, Space, Gillibrand and McNerney go into the 
well to change their votes. The question has been asked, Well, 
why were they allowed to go into the well and change their 
votes? Would you agree, Mr. Hoyer, that that 7 minutes allowed 
ample time for any Member to change their vote, regardless of 
what side of the issue they were on?
    Mr. Hoyer. Yes.
    Mr. Davis. Do you know, do you have any recollection that 
night of any Member coming to the well seeking to change a vote 
from yes to no, and being denied the opportunity to do so?
    Mr. Hoyer. No.
    Mr. Davis. Do you have any memory that night of any Member 
of either party coming to the well, holding up a card, or in 
any way manifesting an intent to change their vote and being 
denied the right to do so?
    Mr. Hoyer. No.
    Mr. Davis. Before that 7 minutes, during that 7 minutes?
    Mr. Hoyer. No. My conclusion is that the final vote that 
was called 212-216, again, the 428 that were voting that night, 
everybody had an opportunity to vote, everybody had an 
opportunity to vote as they chose, and Mr. McNulty was, I 
think, accurate in his final call, which I say, was 216-212. 
With the exception, of course, which I know has been discussed 
earlier today, of the fact that Mr. Boehner's vote was not 
counted, which would have made it 211-217.
    Mr. Davis. Let's put this in some context. If Mr. Boehner's 
well card had been processed, what would the effect have been 
of processing Mr. Boehner's change of vote?
    Mr. Hoyer. It would have had no effect on the outcome, but 
what it would have done, and why Mr. Boehner did it, it would 
have put him in a position to make a motion to reconsider as a 
member of the prevailing side.
    Mr. Davis. You ultimately made that motion yourself, didn't 
you?
    Mr. Hoyer. I previously informed the parliamentarian that I 
was either going to ask that the vote be vacated after the 
second call of 214-214, and then almost, as I said, 
contemporaneously, the display on the board of 215-213. The 
Minority was rightfully angry and upset by that disparity, by 
that contradiction, and it was my view that, given that, in 
fairness, we ought to revote the issue. The vote went on, as 
you know, from that point on. But I told Mr. Sullivan shortly 
after that occurred that it was my intention to try to vacate 
by unanimous consent or move to reconsider.
    Mr. Davis. So there were several options that night for 
making the situation right. There was a motion to reconsider 
that could have been advanced, is that correct?
    Mr. Hoyer. Yes.
    Mr. Davis. There was a motion to vacate that could have 
been advanced.
    Mr. Hoyer. Not a motion, but a request for unanimous 
consent.
    Mr. Davis. That was one other option. Were the Republicans 
amenable to any of those options?
    Mr. Hoyer. I heard, when I made--ultimately, when I made 
the motion, the unanimous consent request to vacate the vote, 
there were a large number of objections I heard from behind me 
to my right. Now, I don't know who objected because I was 
looking at the Chair and asking for unanimous consent from the 
Chair. But there were a lot of objections to that. And there 
may have been some on my side. I don't know.
    Mr. Davis. But ultimately, you did make a motion that 
night, and there was a vote on it, isn't that correct?
    Mr. Hoyer. Immediately, yes. I don't know whether 
immediately, but very, very soon, I then made the motion to 
reconsider.
    Mr. Davis. If I could just finish out this line of 
questions before I yield my time, Mr. Chairman. What did the 
Republicans do as that motion to reconsider was being voted on?
    Mr. Hoyer. Most of them left the Chamber.
    Mr. Davis. Do you remember what Mr. Boehner did?
    Mr. Hoyer. I don't.
    Mr. Davis. If I represent to you rather than cast a vote on 
the motion to reconsider that supposedly he had attempted to 
make, that he left the Chamber too, would you disagree with 
that?
    Mr. Hoyer. No, I wouldn't disagree with it because I was 
not looking at Mr. Boehner or, frankly, behind me at that point 
in time. I was facing the Chair. When the Republicans started 
to walk out, I did look around and watch them march out.
    Mr. Davis. Let me just end with one observation and ask if 
you agree with it. After Mr. McNulty makes what he acknowledges 
is an error, whether you believe it is an error or not, he 
acknowledges it was an error, there were several procedural 
options that were available that would have had the effect of 
creating another vote or setting aside the vote. You, at the 
risk of losing the vote and vote those options, even though, 
frankly, you didn't know that night how many Democratic Members 
even remained, did you?
    Mr. Hoyer. No.
    Mr. Davis. If there had been a revote that night, there was 
a very real risk that the Democratic side, if you will, would 
have lost. Is that right?
    Mr. Hoyer. There was certainly a risk.
    Mr. Davis. Despite that risk, you attempted to reopen or 
create another vote, and you took on that risk yourself, didn't 
you?
    Mr. Hoyer. I did. I thought that it was important to 
correct--the mistake that Mr. McNulty made was a mistake not of 
animus or intent, but of timing. The Diaz-Balart vote, he 
thought--I don't know what he said, but my perception is he 
thought it had been cast.
    Mr. Davis. Mr. Hoyer, one final question, if you would give 
me a brief answer. Can you give me any explanation of why the 
Minority would have, instead of just letting the vote be set 
aside and have another vote that night, can you give me any 
explanation of why they would in effect decline those options 
and come out and ask for an investigation that has lasted 9 
months and has cost half a million dollars?
    Mr. Hoyer. I don't have the answer to that question.
    Mr. Davis. Do you suspect it is politics?
    Mr. Hoyer. There is no doubt in my mind it is politics. I 
think, frankly, the Minority party was very badly stung by 
keeping the floor open for 3 hours on a vote. No slip was ever 
passed up; apparently never asked for. For an hour and 45 
minutes the Democratic side was prevailing on the issue. A vote 
was never taken by the Speaker. My own view is the Speaker was 
acting within the rules. But I think it was an abuse of power, 
as I have said in my previous comments.
    I think that the Republicans were upset. It is tough being 
in the Minority, particularly in the House of Representatives, 
which, unlike the Senate, has a Rules Committee and can put 
pretty tight controls on the Minority, and is frustrating. 
Having served in the Minority for 12 years, I can feel their 
pain, if you will. I don't say that in any way as mocking. I 
really do. It is a frustrating situation. I think they were 
frustrated that night. I think the bill was not itself 
controversial. But this was, as I said earlier, a political 
effort to put some of our Members in a position of voting 
against something they otherwise would have been for solely 
because they didn't want to kill the Agriculture appropriation 
bill.
    So my speculation is that when that occurred, they got 
angry and they decided to pursue this matter. I was the one who 
made the decision not to table the motion to have this 
investigation, because in my opinion--or panel--because, in my 
opinion, what was done was proper, and looking at it to the 
extent that it cleared up this matter was not a problem.
    Mr. Davis. Thank you, Mr. Hoyer.
    The Chairman. I am going to recognize Mr. Pence at this 
point in time. Without objection, the Chair will grant the 
Minority an additional 4 minutes since the Majority went past 
the 30-minute limit.
    Mr. Pence.
    Mr. Pence. Thank you, Mr. Chairman. Thank you.
    I want to thank the distinguished Majority Leader for 
appearing before our Select Committee today. I also want to 
thank you for your cooperation from August 3 forward. I sense 
in your testimony today a questioning of our motives, about 
politics being our motivating factor, but let me take this 
opportunity to thank you for not moving to table the resolution 
creating this Select Committee, thank you for supporting 
efforts to properly fund this Committee so that we could do 
more than 20 interviews, review thousands of documents, and pay 
the kind of careful attention to the integrity of the vote on 
the floor of the House of Representatives that I think all of 
us that care about the institution want to preserve.
    I also want to thank you for your candor both in your 
previous interview with the Select Committee and your candor 
again today. I think you know that in our nearly 8 years of 
service together, that I see you, our political differences 
notwithstanding, I see you as a man deeply committed to both 
the principles you have come to Washington to advance, as well 
as the institution.
    Mr. Hoyer. Thank you.
    Mr. Pence. And I welcome you.
    Mr. Hoyer. Thank you very much.
    Mr. Pence. I am going to ask you just a couple of 
questions, Mr. Leader, and then I am going to yield the balance 
of our time to----
    Mr. Hoyer. The hardworking Mr. LaTourette.
    Mr. LaTourette. Thank you so much.
    Mr. Pence. During your interview----
    Mr. Hoyer. Talking about my initial appearance?
    Mr. Pence. Your initial appearance before the Select 
Committee, which took place on April 16, 2008, you were very 
candid about acknowledging that after Speaker Pelosi cast her 
vote, and I expect Mr. LaTourette will take us all through the 
video one more time.
    Mr. Hoyer. Look forward to it.
    Mr. Pence. You were very candid in acknowledging after 
Speaker Pelosi cast her vote in making the total 214-214, you 
said towards the Chair, in a voice, as you reiterated this 
afternoon, loudly enough, to use your phrase, loudly enough to 
be heard, you said it a couple of times, was your testimony 
moments ago, words to the effect of, ``Close it down.'' You 
said today you----
    Mr. Hoyer. Shut it down or close it down, one of the two 
phrases.
    Mr. Pence. Time to shut it down.
    Mr. Hoyer. My intent was, I think, clear.
    Mr. Pence. You communicated that toward the Chair.
    Mr. Hoyer. Yes.
    Mr. Pence. Let me support your testimony by saying that by 
our recollection, fully a half a dozen officers of the House 
working at the rostrum recall hearing you communicate words to 
that effect.
    Mr. Hoyer. They recall accurately.
    Mr. Pence. You also stated that you had a conversation with 
Catlin O'Neill, an employee of the Speaker of the House, not an 
employee of yours.
    Mr. Hoyer. Works for the Speaker.
    Mr. Pence. You had a conversation with Catlin O'Neill 
shortly thereafter in which you were, and I am quoting you now, 
``Clearly saying to Catlin that we need to shut down the vote 
when we are prevailing.'' Is that still your recollection?
    Mr. Hoyer. Essentially, yes. The only thing, I want to make 
it clear that my communication not directly to the Speaker, but 
I think the presiding officer could hear me, was that I was 
cognizant of the rule and I was cognizant of the fact of 
whether anybody was in the well. But when those two 
circumstances were met, there is no doubt I wanted the vote 
concluded within the rules when we were prevailing.
    Mr. Pence. Understood. Thank you.
    Mr. McNulty has testified before this panel once in 
deposition and once earlier today. He reiterated today again, 
and I will paraphrase with leave of my colleagues, and be happy 
to be corrected in a subsequent record, but he, in effect, has 
testified consistently that while he was aware of your 
presence, he was aware of conversations that you had with 
particularly the Parliamentarian that had been reported widely. 
That he was not aware of your desire that the vote be closed, 
and let me quote from his interview. He said, ``No one 
instructed me to call the vote at any time that night, I 
recognize. I will be perfectly honest with you. Earlier on I 
was hoping to get some direction, but it never came. So I used 
my own judgment at the time.'' That is on page 23 and 24 of the 
April 9 interview with Mr. McNulty.
    Would that come as a surprise to you, Mr. Hoyer, that Mr. 
McNulty at no time during the course of the vote was ever aware 
of your express intention that the vote be closed?
    Mr. Hoyer. Surprise? Disappointment. But I don't know 
surprise. As I think it has been referenced it was at that 
point in time pretty loud in the Chamber, a lot of moving 
around on both sides of the aisle, a lot of people urging 
action to be taken at one time or another, so that I certainly 
wouldn't dispute Mr. McNulty in his assertion. I don't know 
what he saw or heard. All I can say is what I saw.
    Mr. Pence. Your testimony is you, at a minimum, would have 
been disappointed.
    Mr. Hoyer. Mr. Pence, if I can, in reading, in hearing of 
some of the testimony, apparently there was some testimony from 
the Parliamentarian about the Republican side of the aisle, and 
of course, Mr. Blunt indicated for 4 years it was his role to 
determine when the vote should quit, as he said; end. I accept 
that. Whether it is conveyed by, time to do it, or shaking of 
the head affirmatively its time to shut it down, or a sign, 
sort of let's cut it off. A lot of staff give that to me when I 
am speaking. I did not use hand signals. I was trying to 
communicate. Now whether Mr. McNulty heard it or not, I don't 
know.
    Mr. Pence. I expect this will come up in further 
conversations before the panel today, but in reviewing Catlin 
O'Neill's testimony, she also did not recall receiving any 
direction, instruction from you, relative to when the vote 
would be closed. Would that surprise you?
    Mr. Hoyer. No. As I said in my deposition, it would not 
surprise me that she said she didn't receive instructions from 
me. After all, I am not in a position to instruct Ms. O'Neill. 
Ms. O'Neill is the Speaker's staffer, very competent. Her 
grandfather, obviously a former Speaker of the House. But we 
did have a conversation. It was not a long conversation. She 
may have--she stands pretty much down between where I was 
standing. If you go up the stairs, you are going to pass her 
because she stands pretty much down at the bottom left as you 
are looking at the rostrum. As I went by, I am sure I conveyed 
to her that I wanted it shut down. Whether or not she believed 
that was direction or not, I don't think I have the authority 
to direct her.
    The Chairman. Would the gentleman yield?
    Mr. Hoyer. I think she knew my sentiment.
    Mr. Pence. I would be pleased to yield.
    The Chairman. We continue to use the term conversation. By 
agreement between the Majority and the Minority, we have 
requested that the staff examine on the video the duration of 
what would appear to be verbal exchanges between parties. I 
guess my question would be: Do you remember at the time that 
Mr. Pence is referring to----
    Mr. Hoyer. A conversation?
    The Chairman. Do you remember saying something to her, and 
if you did, do you remember any response from Ms. O'Neill?
    Mr. Hoyer. I think it was more an observation as I was 
going by. I am certain I didn't have a conversation, but I well 
could have said I want this shut down, it ought to be shut 
down. Again, I want to reiterate----
    The Chairman. Not to interrupt, but to interrupt, you are 
using the term as you were going by. I think it is important to 
not fall into the belief that these were extended conversations 
whereby you and her or any other individual took time to 
discuss tactics or strategy or what should occur next.
    Mr. Hoyer. I want to be candid with you.
    The Chairman. We are asking for that.
    Mr. Hoyer. My expression that it ought to be shut down was 
not to a limited audience. That was my belief. It remains my 
belief. And I conveyed that. Catlin was in the vicinity.
    The Chairman. Others have noted that your expression 
conveyed that with clarity.
    Mr. Hoyer. With clarity. I thought it was very clear.
    Mr. Pence. Reclaiming my time, Mr. Chairman. One more 
question and then I am going to yield to Mr. LaTourette.
    Let me return. I don't know that you had the opportunity to 
answer my question before the chairman interjected, and I would 
clarify that even from her interview she indicated that she did 
not recall receiving even a signal from you, whether it be 
signal, instruction, a directive, a word about closing the 
vote.
    Would it surprise you that Catlin O'Neill testified that 
she received no direction from you to close the vote?
    Mr. Hoyer. Well, I think I did not give her direction. If 
anything, I was directing direction, desire to the presiding 
officer. I don't need to go through Catlin O'Neill, with all 
due respect to Catlin, she's wonderful, but I don't need to go 
through her. The Majority Leader, I think, not only has the 
right but responsibility to communicate, as Mr. Blunt said he 
did for 4 years, and as Mr. DeLay did before him, that based 
upon our responsibilities to our party and to the propositions 
we want to see prevail or fail, to try to manage those efforts.
    Again, I stress within the rules in a manner that we are 
successful. I think that is my responsibility. But I can 
understand because I don't think I gave her direction. I think 
she is probably accurate in that.
    Mr. Pence. For the record, she also indicated you never 
signaled her to close the vote.
    Mr. Hoyer. I didn't signal anybody. I was articulate or 
lacking in articulateness.
    Mr. Pence. Let me say, I think on behalf of the Minority of 
this Committee, Mr. Leader, that we do believe, as Mr. Davis 
used the term earlier, that it is perfectly commonplace for 
Members of the leadership in the Majority to indicate a 
preference about when votes should be closed, and appreciate 
very much your candor before this Committee about your repeated 
and, to use your phrase, loudly enough communications toward 
the Chair to make your intentions clear.
    Let me ask one more question. The videotape on the vote 
shows a fairly heated exchange. We have spoken with you about 
this on the record in the past, and I would say for the record 
today, I have appreciated your humility and regret about that 
moment, and it is not my purpose to be judgmental about that 
evening from an emotional standpoint.
    Mr. Hoyer. I am judgmental about my own conduct.
    Mr. Pence. Let me say, we know the heated exchange to which 
we are referring with Mr. Sullivan on the rostrum, the 
uncontroverted statement you made to him, was, ``We control 
this House, not the Parliamentarian.'' Specifically on that 
issue is it fair to say that that exchange was in close 
proximity to Mr. McNulty?
    Mr. Hoyer. Certainly in close proximity. As I explained, we 
all know where the Parliamentarian sits. Mr. Sullivan was not 
seated, he was standing, because he was not acting as the 
Parliamentarian, Mr. Lauer was at that point in time. He is the 
Parliamentarian. Mr. Lauer is an assistant Parliamentarian or 
deputy--assistant Parliamentarian, I guess.
    The conversation clearly occurred--I want to withdraw that. 
It was not a conversation. Mr. Sullivan may have responded, but 
I don't think so. It was a one-way assertion, me to him, that 
the Parliamentarian does not run the House, we do. By that, I 
meant the Majority party, and the Speaker. I believe that then, 
I believe it now, and I believe to have it otherwise would not 
be in the interest of the House of Representatives or our 
democracy. But it was not a conversation, it was a one-way 
assertion, and we all looked at the tape, it was relatively 
brief; I was there a matter of seconds, made my point. I was 
angry.
    This is not a confessional, as it was referred to earlier 
in the paper today, but it is, as I have told you, had I been 
calmer and cooler, I think I would have been less loud in my 
representation of what I believed to be the fact as it relates 
to the relationship between the parliamentarian and the 
Speaker.
    Mr. Pence. Thank you, Leader. I will yield, Mr. Chairman, 
to Mr. LaTourette for the balance of our time and have a few 
follow-up questions in our next round.
    Mr. LaTourette. Mr. Leader, welcome. As you know from our 
interview, I am not a nitpicker. We are going to just move 
through some details. I hadn't thought I needed to ask some of 
these questions, but a couple of things during Mr. Davis, and I 
love Mr. Davis, he is a great questioner, but he asked some 
things that I don't want you to be mistaken, and the one was we 
have stipulated that there were a number of 2-minute votes on 
amendments to the Ag approps bill before we got to this moment 
in time. That is not a static number. It went from anywhere 
from 422 members voting to 431.
    Mr. Hoyer. What I was referring to, on each of the votes on 
the motion to recommit there were 428 votes.
    Mr. LaTourette. That is correct. I thought I heard you say 
there was always 428 Members in the Chamber.
    Mr. Hoyer. On those three votes.
    Mr. LaTourette. Second of all, this whole notion of 
promptly versus----
    Mr. Hoyer. Actually, four votes. 214s twice, 215, 213 
referenced on the board, which was never called, and then the 
final vote.
    Mr. LaTourette. Right. In reference, just this whole 
business about the education of the C-SPAN community on what a 
motion to recommit is, you are not indicating in the 12 years 
that the Democratic party was in the Minority in this House you 
didn't craft a motion to recommit to sort of put members of the 
Majority party in a difficult situation through those votes, 
are you?
    Mr. Hoyer. We did. As a matter of fact, we offered in the 
12 years almost exactly the same number that you have offered 
in 15 months.
    Mr. LaTourette. Well, we are professional writers. Let me 
ask you this too; when Mr. Gephardt was the Minority Leader----
    Mr. Hoyer. In the eye of the beholder.
    Mr. LaTourette. When Mr. Gephardt was the Minority Leader, 
do you recall walking out of the Chamber en masse with your 
colleagues because you were disgruntled over something that had 
occurred and you were aggrieved by the Majority at the time?
    Mr. Hoyer. Yes, I do. I remember thinking to myself at the 
time: This is silly.
    Mr. LaTourette. Right.
    The Chairman. And you regret it now, Mr. Hoyer.
    Mr. Hoyer. I don't know whether I regret it, but I thought 
it was silly then and didn't make much of a point with the 
public.
    Mr. LaTourette. Lastly, this business about the Ag approps 
bill being delayed. This vote occurred on August 2nd. The Ag 
approps bill didn't pass in its final form through the House 
until December 19 as part of an appropriations omnibus bill. 
And so it didn't pass in August because we weren't here, it 
didn't pass in September, it didn't pass in October, it didn't 
pass in November. So this delay of 30 days or so really wasn't 
the lynchpin that--it certainly didn't kill the bill. I grant 
you that they would have had to have brought it back after we 
got back. But nobody seemed to be in any big rush.
    Then Mr. Pence's observation----
    Mr. Hoyer. May I comment on that?
    Mr. LaTourette. Of course you can. Sure.
    Mr. Hoyer. Thank you. You are absolutely correct that the 
bill didn't pass until later in the year in December, I suppose 
it was.
    Mr. LaTourette. 19th.
    Mr. Hoyer. However, I believed it important and we believed 
it important to get it to the Senate because, of course, the 
fiscal year ends on September 30, and as you know, the House 
last year passed every one of its appropriation bills on or 
before August 2. We thought it was important to do that to get 
those bills to the Senate so they could consider them. 
Unfortunately, as you know, that did not occur, and therefore 
we had a very late passage ultimately of all the bills.
    Mr. LaTourette. Well, and you are now experiencing--we used 
to have an expression when we were in the Majority that the 
Democrats are our opponents but the Senate is our enemy, and 
you are now discovering, in fact, they don't always move 
according to the calendar you would wish.
    Mr. Hoyer. We have found agreement.
    Mr. LaTourette. Two other things. I think Mr. Pence asked 
you about whether or not you would be surprised that Mr. 
McNulty didn't hear. If I could have the picture of the 
Chamber, the rostrum put up. I think that that question was 
generated by the fact that six other people heard you, who were 
on the rostrum, and including--you are familiar with Mary Kevin 
Niland, who is the Reading Clerk. You know who she is.
    Mr. Hoyer. Yes.
    Mr. LaTourette. Would you agree with me she is the woman in 
yellow?
    Mr. Hoyer. I would. She lives in my district.
    Mr. LaTourette. Mary Kevin Niland was able to hear your 
attempt to communicate with the Chair. I think that is where 
the question came from. Not saying that Mr. McNulty did 
anything wrong.
    I want to go to the first call of the vote. Could somebody 
give the distinguished Majority Leader this color-coded thing. 
Since we saw you last, we have made some improvements in the 
videotape so we don't have to rely on eyesight. If you look on 
the back, there is a color coding and we have put halos around 
people. And you will be honored to know that you are a red halo 
and Catlin O'Neill is an orange one. That should help you sort 
of navigate what I am going to ask you to watch.
    The Chairman. Would the gentleman yield for a moment. I am 
going to ask that the volume be turned up so that we all have a 
better perception or comprehension of the noise level that 
existed at the time. I understand that there was an enhancement 
done of the comments by Mr. Hoyer to Mr. Sullivan. But I do 
think it is important that we hear the noise, the din, if you 
will, that some described as deafening. I think that was Mr. 
Hanrahan's testimony, in the Chamber at the time. So, Hugh, if 
you would ratchet up the volume.
    Mr. LaTourette. I thank the gentleman.
    We are going to roll chapter seven, please, with volume----
    Mr. Hoyer. When you say chapter seven.
    Mr. LaTourette. It is to get him to the right place.
    [Video was played.]
    Mr. LaTourette. Stop it there, please. I have indicated 
that before this moment in time, which is 22:49:48.10, it 
appears that the orange and the red circles are pretty close to 
each other, as they have become concentric circles, and that is 
you and Catlin O'Neill, just for reference.
    Carry on.
    [Video was played.]
    Mr. Hoyer. The green is Mr. Blunt?
    Mr. LaTourette. The green is Mr. Sullivan.
    [Video was played.]
    Mr. LaTourette. Thank you very much. Let me know if you 
disagree, but what it appeared occurred was that you and Ms. 
O'Neill came to within close proximity, and you know whether 
you had a conversation or not, and I will ask you about that in 
a minute. She then departed that space where you are located 
and engaged Mr. McNulty in something. Mr. McNulty leans over. 
And then the Speaker's vote is read.
    Mr. Hoyer. Can I make----
    Mr. LaTourette. Let me finish this statement. Mr. McNulty 
calls it 214-214 after the Speaker's vote is announced. What 
would you like to say?
    Mr. Hoyer. I couldn't tell. Maybe Catlin has testified to 
that, Ms. O'Neill has testified to that. I couldn't tell where 
she was facing. We came together for obviously a second or two, 
as I said, testified earlier. Now whether or not she then went 
and spoke to Mr. McNulty, I don't know.
    Mr. LaTourette. Okay. And we will get that from other 
people. But does that look like the time when you might have 
been saying to her what you have said before, and that is, When 
we are ahead, we need to get out of this thing. Would that have 
been the likely moment in time?
    Mr. Hoyer. Could have been.
    Mr. LaTourette. In fact, Mr. McNulty brings down the gavel, 
calls it 214-214 after the Speaker's vote is announced, and 
your observations, and I think you are exactly right, that that 
was perfectly within Mr. McNulty's right to do, in that all 
votes had been recorded and announced and there appeared to be 
no one in the well attempting to change their vote.
    Mr. Hoyer. Right.
    Mr. LaTourette. Mr. McNulty did not complete the vote at 
that moment in time. You agree with that.
    Mr. Hoyer. I agree that he did not say the magic words. I 
don't, by the way, adopt the premise of the magic words. They 
are useful to have words that we all understand triggers a 
reaction, but I don't think there are any magic words. The 
rules don't have magic words, I don't think.
    But what you notice is that immediately upon his announcing 
the 214-214, the vote screen disappears. Now I am not sure who 
makes that determination. But somebody obviously made a 
determination. They thought at that point in time, the vote was 
concluded. Absent the magic words, they drew that conclusion 
themselves.
    Mr. LaTourette. But let me ask you this. Do you think that 
the vote was over at that moment in time?
    Mr. Hoyer. I don't think he articulated clearly enough that 
the vote was concluded, and therefore--and he obviously 
believed that as well because he allowed the vote to then 
continue.
    Mr. LaTourette. Which was within his province as the 
presiding officer.
    Mr. Hoyer. Absolutely.
    Mr. LaTourette. When we talked to you before, one of the 
things that apparently got your blood pressure going was you 
believed that at this moment in time the parliamentarian had 
stopped Mr. McNulty from completing the vote.
    Mr. Hoyer. That was my perception. I don't know that.
    Mr. LaTourette. If I told you that Mr. McNulty said that 
didn't happen and the parliamentarians will testify later and 
say that didn't happen, and your perception was wrong, is that 
surprising to you?
    Mr. Hoyer. No. If they said that didn't happen, then I was 
incorrect.
    Mr. LaTourette. You were incorrect.
    Mr. Hoyer. But I was not incorrect that that was my 
perception. The reason--that was my motivation for reaction.
    Mr. LaTourette. I know that. That is what you said. But Mr. 
McNulty actually indicated that he stopped because he heard 
people yelling, One more, and he believed that other people 
wanted to cast ballots, which would be an appropriate response 
by the presiding officer if that is what he or she believed.
    We then go to the second vote, the second call of the Chair 
by Mr. McNulty. He calls it 214-214, and I understand you 
disagree with me on the magic words, but he does say, And the 
motion is not agreed to. He is in error at that moment in time 
because although the three Floridians have turned in their well 
cards, the seated Tally Clerk is still entering Mr. Diaz-
Balart's well card and the uptick that occurs a minute later is 
what really makes it 215-213. Do you agree with that?
    Mr. Hoyer. Yes.
    Mr. LaTourette. There are some choices here and all the 
choices go the way we sort of talked about. One is the Chair 
would have been within his rights to say, Oh, I made a mistake. 
He could have demanded a tally slip to be brought up to him 
that said, 215-213, the motion carries. Is that correct?
    Mr. Hoyer. I think he could have. Those are options 
available, I presume. Not presume, I believe those options were 
available to the Speaker. However, my view would be he never 
called the vote at 215-213. He never articulated a 215-213 
count. He realized his articulation of 214-214 was in error and 
he subsequently indicated he called the vote prematurely.
    Mr. LaTourette. Right.
    Mr. Hoyer. But that is not unusual, because Speakers do 
this on a regular basis, in light of that, his determination 
was to continue the vote to assure that all Members who wanted 
to change their vote were given that opportunity and were 
counted.
    Mr. LaTourette. Almost. We will get to that in just a 
second. Relative to the rights that you would have had as a 
member as the Majority party, if Mr. McNulty had demanded a 
slip be sent up to him, 215-213, which was within his rights 
and certainly would have comported with the rules and would 
have reflected what the vote actually was at this moment in 
time, any one of the 19 Democrats who had voted on the 
prevailing side could have made the motion to reconsider and we 
would have had the revote. Is that not a correct statement of 
the rules of the House?
    Mr. Hoyer. Yes.
    Mr. LaTourette. Now we get to this sort of nagging and 
troublesome--let me just go to this motion to reconsider 
because this is troubling me a little bit. It has sort of been 
presented--and you were very magnanimous and I think you 
deserve a lot of credit as the Majority Leader for recognizing 
a serious wrong had been committed and going to attempt to 
rectify it. The problem that I have is that all of your 
attempts to rectify had you guys winning. By that, I mean, a 
do-over, a motion to reconsider quite frankly is like playing a 
football game over. Every vote is different. There is a 
dynamic. The floor is like a living creature. You are trying to 
get your guys to vote some way, we are trying to get our guys 
to vote. There is a lot of pressure that builds towards the 
banging of the gavel.
    A motion to reconsider, I mean, unless all your guys went 
out for pizza, you are always going to win the motion to 
reconsider because there is more of you. And as a matter of 
fact, the way you got from 215-213 to 212-216 is three people 
did that walk of shame, Gillibrand, Space and McNerney. They 
went down and said, It's going to be tough, I am having to have 
to explain to the Chillicothe Gazette why I think illegals 
should have food stamps. But I am a party guy. So I don't 
think----
    Mr. Hoyer. The three previous people who did that, Ms. Ros-
Lehtinen, Mr. Balart, and Mr. Balart will all have to go home 
and explain why for 15 minutes, for 16 minutes and 30 seconds, 
they believed that your motion was not a good motion.
    Mr. LaTourette. Listen, I agree with you 100 percent. But 
that gets me to this new rule you all have put in place, clause 
2(a) of Rule XX.
    Mr. Hoyer. Oh, yes.
    Mr. LaTourette. In response to the horrendous Part D 
Medicare vote, which was held open for a very long, but as you 
indicated, didn't violate the rules of the House. I think you 
might have misspoke because a tally slip was handed up, but it 
was handed up after 3 hours. A tally slip actually concluded 
that vote.
    Mr. Hoyer. Can I comment? What I said was we weren't ahead 
for 1 hour and 45 minutes. At no time then was the tally slip 
asked for or handed up. The reason it wasn't is because Mr. 
DeLay wanted to wait until you had the votes. As soon as you 
had the votes, the vote came quickly to a close. I think you 
were within the rules.
    Mr. LaTourette. I do too. I guess that leads me to implicit 
in that answer is, and I believe Representative Hastings of 
Washington was in the chair during that extended period of 
time, is it your belief that Representative Hastings of 
Washington as the Speaker pro tempore at any time during that 3 
hours could have demanded of the Tally Clerk and the 
Parliamentarian he be provided with a tally slip that indicated 
that you had prevailed?
    Mr. Hoyer. It is my position that at any time during that 
period of time Mr. Hastings has the authority to gavel the vote 
to a close and announce the vote from the board.
    Mr. LaTourette. Okay. Perfect.
    Mr. Hoyer. At no time in the 27 years that I have served, 
have I ever heard of the board being at variance with the tally 
sheet.
    Mr. LaTourette. Right. I heard you say that. And just 
because you told us that before and I just wanted to indicate 
because I thought you made a great point when we were 
interviewing you--that I have seen it too. The standing Tally 
Clerk will look at the board and write the numbers down on the 
pad from the board.
    We had the opportunity to talk to Mr. Hanrahan today, and 
he indicates while that is right, that is so that the standing 
Tally Clerk can sort of make sure the well is static, you don't 
have more people running up there, but he only writes those 
numbers down after he has received confirmation from his 
partner that no more votes are in.
    So it is not a matter of as Mr. McNulty did. So that is why 
you have never gotten an uptick, because they don't begin to 
write those numbers down until the system is closed.
    Mr. Hoyer. I don't want to quibble with Mr. Hanrahan. If 
that is what he says he does, he does. But my perception, and 
this happened last week, and I looked very carefully, Mr. 
Hanrahan with pad in hand looked at the board, wrote the number 
down, turned and gave to the Parliamentarian, who was advising 
the Speaker.
    Mr. LaTourette. I think he would agree with you, but he 
would also indicate there is a step in there where the seated 
Tally Clerk says, System closed, no more votes. Which is 
different than what happened August 2.
    When we chatted with you earlier, on page 28 of your 
interview we were probing this 2(a) business, and the ability 
of the Speaker, and I think indicated to you our 
dissatisfaction, and I think from your comments your 
dissatisfaction with 2(a) is you almost have to crawl in the 
head of the guy or the gal that is in the Chair. The only way 
that there can be an actionable violation of clause 2(a) is if 
the person in the Chair says, ``You're right, I did it, and I 
don't care.'' Right?
    Mr. Hoyer. My view is that 2(a) is not enforceable, and 
frankly, I would not be unhappy if this Committee recommended, 
because it's unenforceable, that we delete it. Both sides do 
it.
    Mr. LaTourette. Pursuant to the vast authority that is 
given to the presiding officer, I asked you on page 28, ``Mr. 
McNulty testified to us that it was his judgment that to keep 
the vote open after Mario Diaz-Balart's well card was entered 
would have been violative of rule 2(a), and he intended to 
close the vote after Mario Diaz-Balart's vote was entered.
    If that is Mr. McNulty's position, which he has reinforced 
here today, that as the Presiding Officer that you say is 
invested with the authority to close the vote, if that was the 
testimony, that the vote in his mind was closed when he said 
214-214 because he mistakenly believed the Mario Diaz-Balart 
card was in, and the motion is not agreed to, I asked you would 
you dispute his authority to do that. You said no. Do you have 
any different answer today?
    Mr. Hoyer. No.
    Mr. LaTourette. It is your belief that the Presiding 
Officer is the sole interpreter of 2(a), as bad as it may be?
    Mr. Hoyer. Yes.
    Mr. LaTourette. Mr. Davis asked you about 9 months and half 
a million dollars and the fact that this is just political. I 
think as somebody who has worked hard on this Committee, I find 
that a little offensive. We know that Mr. Boehner's card was 
never counted. Having listened to a lot of people give speeches 
about every vote counts and every vote should be counted, and 
one of my colleagues contesting the second election of 
President George W. Bush based upon the fact 125,000 votes in 
Ohio wasn't enough, this, whether mistake, accident, anything 
else, disenfranchised 630,000 people who didn't have the 
opportunity to have their vote recorded the way that he 
intended on that evening, for whatever reason he chose to do 
it. Right?
    Mr. Hoyer. Can I respond to that? I absolutely agree with 
you.
    Mr. LaTourette. I know you do.
    Mr. Hoyer. But I want to go a little further. Somebody, not 
a Member, made a determination not to count that vote. My anger 
that you saw displayed was exactly along that point.
    Mr. LaTourette. I know that.
    Thank you so much.
    The Chairman. Thank you, Mr. LaTourette.
    Mr. Davis, do you have any follow-up questions?
    Mr. Davis. A little bit, Mr. Chairman.
    Mr. Hoyer, let me pick up on that last point because, 
again, all this procedural talk can sound confusing to people, 
including Mr. Boehner's constituents, perhaps. Mr. Boehner 
initially voted for the motion to recommit, is that right?
    Mr. Hoyer. Yes.
    Mr. Davis. When the well card that we have been talking 
about wasn't processed, and let's make sure we are clear about 
something, he was trying to change his vote against the motion 
to recommit. Now let's forget the procedural effect of that, 
but that is what he was trying to do. He was going from saying, 
I feel so strongly about the illegals that I think we need to 
put a redundant proposition in there to keep them from getting 
benefits, to Whoops, so I can make a procedural move on the 
floor of the House. Now I am going to change it and say the 
opposite of what I said earlier.
    This whole question of how his constituents felt about the 
issue and whether his constituents would have been 
disenfranchised, I just want to make sure they characterize 
what his vote would have been.
    Let me move on to one last set of questions here.
    Mr. Hoyer. Can I say something? In fairness though, Mr. 
Boehner cast his vote for procedural reasons, not substantive 
reasons that way. He tried to change his vote, and I understand 
that.
    Mr. Davis. Now the picture that I think some people may 
have, Mr. Hoyer, listening to the testimony today, may be a 
picture that there is a point when you are walking around 
loudly and obviously say, Close the vote, End the vote, and 
that basically anybody with an eardrum that night would have 
heard you. That is kind of the picture we have. So I want to 
play a critical portion of this tape and ask you a few 
questions about it. I represent to you that a time line 
prepared by the staff says that at 10:47 Mr. McNulty says, Two 
minutes. Members have 2 minutes in which to vote on the motion 
to recommit.
    So I am going to make an assumption that is plausible, that 
there are roughly 2 minutes left on the board, maybe a little 
bit less, maybe a little bit more. So I am going to ask that we 
go to 22:49, and I want to ask that the volume be turned up 
frankly as high as we can turn it up and I want you to just 
watch from 22:49 until I tell him to stop.
    [Video was played.]
    Mr. Davis. Do you see yourself, Mr. Hoyer?
    Mr. Hoyer. Standing there in the orange.
    The Chairman. You are in the red.
    Mr. Davis. Can you spot yourself, Mr. Hoyer?
    Mr. Hoyer. Not yet.
    Mr. Davis. The circle will come into view when you come 
into view.
    [Video was played.]
    Mr. Davis. Do you see yourself now, Mr. Hoyer?
    Mr. Hoyer. Yes.
    Mr. Davis. Let's stop at this point. 22:49. Approximately 
33 seconds before you even come into view. Do you agree with 
that? Another 33 seconds lapses before you even come into view 
at this point.
    Mr. Hoyer. I am in view now.
    Mr. Davis. Right. I am just asking if I counted right.
    Mr. Hoyer. Yes.
    Mr. Davis. Keep playing here.
    [Video was played.]
    Mr. Davis. Mr. Hoyer, I never heard you. Did you hear 
yourself during this stretch we just watched?
    Mr. Hoyer. No.
    Mr. Davis. Mr. Hoyer, I never saw you walk toward the 
rostrum and approach Mr. McNulty. Did you see yourself walk 
toward the rostrum and approach Mr. McNulty?
    Mr. Hoyer. No.
    Mr. Davis. This was turned up the highest volume we can 
possibly turn it. I never heard your voice. Do you agree with 
that?
    Mr. Hoyer. I agree with that.
    Mr. Davis. The reason that stretch is critical is that is 
the stretch before Mr. McNulty makes his first calling of the 
vote.
    Now continue to play, if you would, sir.
    [Playing video.]
    Mr. Davis. We may turn it down a little bit. Keep it 
playing, though.
    [Video was played.]
    Mr. Davis. Stop.
    Mr. Hoyer, do you see yourself at that point? Do you see 
yourself go up there and quickly walk away?
    Mr. Hoyer. I missed that.
    Mr. Davis. If you would just do that again.
    Mr. Hoyer. Oh, to Mr. Sullivan?
    Mr. Davis. Yes.
    Mr. Hoyer. I don't see it right now. But I was there.
    Mr. Davis. Please restart.
    [Video was played.]
    Mr. Davis. Stop.
    Mr. Hoyer. As you can see, it was not a conversation.
    Mr. Davis. I did hear you then, and I heard you say 
something to the effect, We control this House. I did not hear 
you say, Call the vote. Did you hear yourself say call the 
vote?
    Mr. Hoyer. I did not say that.
    Mr. Davis. I don't see you turn toward Mr. McNulty and give 
him any instructions.
    Mr. Hoyer. I was not focused on Mr. McNulty, nor did I turn 
to him, nor did I say anything to him.
    Mr. Davis. So, if I can simply end, Mr. Hoyer, by making 
this observation, I understand that there may have been a point 
that night when you, with some level of vigor, communicated 
that the vote should be called.
    What I will represent to you and everyone in this room is 
that, if you look at the tape, it is very clear that in the 
minutes prior to both of the vote callings by McNulty, you 
don't hear you a single time.
    And I will yield back my time.
    The Chairman. With that, I will yield to the ranking 
member.
    Mr. Pence. Thank you, Mr. Chairman. I just have a couple 
more questions for the leader. And I want to repeat my 
gratitude for his public-mindedness and cooperation over the 
course of the past 8 months.
    I am not entirely sure where Mr. Davis was going with that 
line of questioning.
    Can I just ask you one more time--you said----
    Mr. Davis. You can ask Mr. Davis if you would like.
    Mr. Pence. In your testimony here today, you communicated 
that it was, quote, ``time to shut it down.'' You said it, 
quote, ``a couple of times.'' You said it, quote, ``loudly 
enough to be heard.'' You said it, quote, ``toward the Chair.''
    Is that still your testimony?
    Mr. Hoyer. That is still my testimony. But in listening to 
the tape, there was so much noise that perhaps I need to go to 
hand signals. I say that not facetiously.
    If this hearing is about whether I tried to convey to the 
Speaker that I thought the vote ought to be concluded, we 
needed no hearing. I tried to convey that to the presiding 
officer.
    Mr. Pence. Let me ask, were you close enough to Catlin 
O'Neill to be heard?
    Mr. Hoyer. Yes.
    Mr. Pence. By her?
    Mr. Hoyer. I am sure. I thought I was close enough to the 
Speaker to be heard, but he says he didn't hear me. And when 
you listen to it--I had not listened to it that way--you can 
see how much noise was in the Chamber at that period of time.
    But I believe that everybody is telling the truth here. The 
problem is, we all see it a little differently from our vantage 
points. And, you know, I----
    The Chairman. And predispositions.
    Mr. Hoyer. Well, and predispositions. But my view is that 
if this hearing is about whether I wanted to convey something 
to the Speaker, there ought not to be a hearing, because I 
absolutely tried to do that. I believe I was within my 
responsibility, and I wanted to do it.
    And I wanted the vote shut down after the Speaker voted. 
There was nobody in the well. And consistent with the rules, as 
Mr. LaTourette has said, Mr. McNulty would have been within his 
rights to conclude the vote at that time. He didn't, and we now 
have the issue of the 215-213.
    I thought that was a legitimate problem. I appreciate your 
comments about my taking that position that it needed to be 
corrected.
    Mr. Pence. Well, respectfully to the Majority Leader, I 
would say what this hearing is about the fact that your 
testimony is that, as is the common practice of leadership 
throughout the years on the floor of the Congress, you 
repeatedly, and at one regrettable moment even angrily, 
conveyed your desire that the vote be closed. And the net 
effect of that was the vote was closed in a manner that ignored 
the longstanding practice of the House floor to allow the Clerk 
to complete a record vote.
    Let me slide to that question, if I can, and I would really 
like to get your sense of it. And then one more question after 
that, and I will yield to Mr. LaTourette and let the leader go 
about his business.
    We talked a lot about clause 2(a) of Rule XX. There is 
another piece of that that simply provides, quote, ``The Clerk 
shall conduct a record vote by electronic device.'' That is in 
the House rules.
    In your testimony--and forgive me for not having the page--
but you referred to the Clerk and the Parliamentarian as 
ministerial officers. And I don't take issue with that 
characterization.
    Mr. Hoyer. I did.
    Mr. Pence. But when you approached the Parliamentarian, 
frustrated as you were after the first call of 214-214 was 
stopped, you said and have confirmed you said angrily to the 
Parliamentarian, ``We control this House, not the 
Parliamentarian.''
    As recently as last week on the House floor, you, again, 
reiterated, in another controversy, a frustration over votes 
being changed and indicated to the Members gathered on the 
House floor that you thought it was within the purview of the 
Majority to close the vote.
    And I guess my specific question for our purposes, if I 
may--let me ask the question, and then you can comment however 
long you need to--do you believe the majority can close a vote 
with or without the assent of the Clerk of the House in, quote, 
``conducting a record vote''?
    Mr. Hoyer. Absolutely.
    Mr. Pence. Let me ask----
    Mr. Hoyer. The rules says ``conduct.'' In my view--and I 
have reread the rules since Mr. Hulshof asked me the question 
while we were having the depositions.
    Conducting the vote, turning on the machine, making sure it 
is working properly, seeing the votes as they are cast either 
by voting card or by paper card, the green or red cards, is the 
ministerial duty of opening up the machines, making sure the 
levers work, things of that nature. But the conduct of the 
election, in the sense of when it starts, when it closes, and 
the ultimate determination of calling the vote, is the Speaker 
and the Speaker's alone. It is not the decision of the 
Parliamentarian or the Clerk or any other of the ministerial 
officers.
    I believe that emphatically. And to believe otherwise, I 
think, undermines the democracy of the House of Representatives 
and turns it over to people who are not elected but who are 
critically important employees of the House in conducting our 
business, but they are not the decision-makers.
    Mr. Pence. And I appreciate the clarity and consistency of 
your position. But I want to understand it, that your testimony 
is you believe the Majority can close a vote even without the 
assent of the Clerk of the House.
    If I may ask----
    Mr. Hoyer. Absolutely.
    Mr. Pence. In plain English, who would count the vote?
    Mr. Hoyer. You said close the vote without the assent of 
the Clerk. The assent implies that the presiding officer needs 
the approval or consent of the Clerk to close a vote. I 
absolutely reject that premise out of hand. The Speaker can 
close the vote within the rules--I keep stressing within the 
rules--at such time as the Speaker makes a determination to 
close the vote.
    The paper slip is not necessary. I asked this morning where 
this paper slip was. It does not exist. Why doesn't it exist? 
Because it is thrown away as soon as it is done. Why? Because 
it is not the official record of anything. The official record 
is the tally sheet that is kept, which is a large document 
which is not passed to anybody. The slip is what Mr. Hanrahan 
or somebody else--he could make a mistake. But I have never 
seen, in 27 years, there be a discrepancy between the board and 
the machine. I don't think there has been that I have ever 
heard of.
    In this instance--and this is all about a split instance 
where Mr. McNulty saw 214-214. Why did he see 214-214? Because 
the tally machine at that point in time, that second in time, 
had counted 214-214. The problem that resulted was--and the 
confusion and the anger and the upset feelings, which I fully 
understand, resulted because a split-second--less than almost a 
second, almost contemporaneously with his seeing 214--we all 
believe Mike McNulty is one of the most honest, high-integrity, 
principled Members of this body. He saw 214. He reported 214-
214.
    He made a mistake. He made a mistake not consciously, not 
intentionally, not in any way to skew the vote inaccurately, 
but because he did not know that Mr. Mario Diaz-Balart's vote 
had not been computed. And it came up almost instantaneously.
    And, frankly, from my perspective, he did what a person of 
his integrity would do. He later announced that he had called 
it prematurely, and he was going to further allow people to 
either change or confirm their vote as they saw fit.
    Mr. Pence. And I think, as the leader acknowledged today 
with the response, he could have--one of the options he could 
have done to remedy that would be to request a tally slip that 
reflect the moment that he spoke the words, ``The motion is not 
agreed to.'' And as Mr. LaTourette raised with you and you 
acknowledged with the words, he could have--
    Mr. Hoyer. He could have done that. That is accurate, and I 
responded that. I think he could have done that.
    Mr. Pence. And the Republican motion would have passed.
    Mr. Hoyer. What he did was--and as Mr. LaTourette pointed 
out, one of our people could have moved to reconsider, so we 
could have been in the same position.
    But having said that, he could have done that. That was an 
option available to him. He was not compelled to do that. He 
took the alternative to assure that every Member was able to 
vote that wanted to either change their vote because he had 
called it prematurely at 214-214.
    215-213 never had magic words applied to it. Somebody not 
elected determined and pushed the button ``final.'' Somebody 
not elected determined at 214-214, the first time, to take the 
voting screen off the television.
    Neither compelled the Speaker to take action. That was a 
decision made in error, as it turns out, but not with any 
animus.
    Mr. Pence. Let me--and I know this came up in our interview 
with you before. I think the Majority Leader would be aware, 
and we will likely hear it in testimony from the 
Parliamentarian momentarily, that there is no contemporary 
memory of the previous two Parliamentarians of any vote being 
closed without a tally slip until the night of August 2nd.
    Mr. Hoyer. Mr. Lauer, in his testimony before you, did 
indicate he thought there may have been one other instance.
    Mr. Pence. Well, let me----
    Mr. Hoyer. I believe that is the case.
    Mr. Pence. Let me just push away from the table for just a 
second and get to the issue of why that occurred in this 
instance and ask you--you made a comment that I thought was 
both admirable and candid during your interview. The chairman 
of the Committee began this hearing this morning speaking about 
the search for a culprit. Mr. LaTourette said that there may be 
several culprits, in this instance.
    One of them, I will grant, could be the confusion of the 
moment; disagreement about interpretations of the rules and 
traditions of the House.
    But another--and I say this with great respect--another 
theory is that the reason why Mr. McNulty abruptly closed the 
vote when the Clerk of the House was still counting the votes 
of Congressman Diaz-Balart was because of the possibility that 
your demeanor and your behavior, particularly in connection 
with the Parliamentarian, might have--and I will use the words 
that I used in our interview--may have, quote, 
``unintentionally created an environment of more pressure'' on 
Mr. McNulty to close the vote.
    You responded, I thought, generously when I asked, ``Do you 
have anywhere that maybe inadvertently you created an 
environment where he felt more pressure to drop the gavel than 
he would have otherwise?'' Your response then was that was, 
quote, ``certainly possible.''
    Mr. Leader, on reflection, do you believe that your 
behavior that night could have contributed to pressure on Mr. 
McNulty that resulted in the vote being called prematurely and 
at odds with the vote total that the tally clerk was preparing?
    Mr. Hoyer. I think the answer to that is it could have, but 
I take Mr. McNulty at his word that it did not.
    Mr. Davis. I thank the leader and Mr. LaTourette.
    Mr. LaTourette. Mr. Chairman, I see our time has expired.
    The Chairman. It has expired. If the gentleman from Ohio 
has a few----
    Mr. LaTourette. I just have two questions, and one has two 
parts. And I will attempt to be very brief.
    The Chairman. Two parts and two different questions.
    Mr. Davis. I would ask for additional time, frankly, if you 
have that much. Because, honestly, the point I would make to 
the Chair is the leader has been here for a very long time, we 
have both gone over time, and I would ask that the witness be 
excused.
    The Chairman. Well, I am going to extend to the gentleman 
from Ohio an additional 2 minutes.
    Mr. LaTourette. Thank you so much for your courtesy, Mr. 
Chairman.
    Mr. Leader, a couple of times, I have heard you reference 
testimony and what people have said to this Committee. Have you 
had the opportunity or your staff been afforded the opportunity 
to review the testimony that has come before this----
    Mr. Hoyer. I have seen some of the testimony, yes.
    Mr. LaTourette. Okay. And here is the two-part question, 
and it deals with rules versus customs and traditions of the 
House.
    You have heard that the two Parliamentarians have indicated 
for 40 years a vote has never been called with a tally slip. 
You correctly say that is not in the rules; that is not part of 
Rule XX.
    When I had the pleasure of presiding when we were in the 
Majority, there is a practice when the leader of either party 
or the Speaker of the House is recognized, he or she is usually 
yielded a minute, and they don't seem to talk for a minute. No 
disrespect for you, but I have heard you talk longer than a 
minute when you have been yielded a minute.
    The Chairman. And you have been yielded 2 minutes, Mr. 
LaTourette.
    Mr. LaTourette. That is right, and I have a 1:08 left, 
buddy.
    And I don't find that anywhere in the rules. And would you 
agree with me, that is not a rule of the House?
    Mr. Hoyer. Yes.
    Mr. LaTourette. It is a custom practice, courtesy, that the 
person presiding is told to, if you--and, as a matter of fact, 
leaders of both sides are pretty good, because if the manager 
on the Republican side only has 2 minutes left, he knows that 
if he gives Mr. Boehner a minute, then Mr. Boehner could talk 
for 20 minutes. And the same courtesy is afforded to you and to 
Speaker Pelosi, right?
    Mr. Hoyer. Yes.
    Mr. LaTourette. So that is a custom practice. I was just 
wondering what your reaction would be the next time you were 
yielded a minute and you exceed that minute, if someone were to 
object, make a point of order, do you think that would be 
appropriate?
    Mr. Hoyer. No.
    Mr. LaTourette. Thank you.
    Mr. Hoyer. Can I comment on your observation?
    Mr. LaTourette. It is now up to the chairman.
    Mr. Hoyer. I would like to comment on your observation. If 
Mr. Delahunt would prefer that I didn't, because he wants end 
my testimony, I would understand that.
    I think the paper slip is a useful best practice to rely 
on. I reiterate that I do not believe it is necessary, nor do I 
believe it is more accurate than the board. I have never, in 27 
years, found a distinction between the two.
    I believe this was not a question of the slip. Much has 
been made of the slip. The question is whether or not on the 
215-213 it was a final vote. The Speaker never called 215-213 
at any time during his presiding. He called a 214, a second 
214, and a 212-216.
    Mr. LaTourette. Right.
    Mr. Hoyer. 215-213 was never called by the responsible 
authority to end the vote at that number.
    The slip is a useful, important device to confirm the vote. 
But I believe he was right each time that he called the vote at 
the instant he called it.
    As I have said, in the second 214, contemporaneously 
almost, the vote changed. He missed that. He made a mistake. He 
said that. We all acknowledge it. And I, therefore, tried to 
correct that mistake and did, in fact, correct that mistake, I 
thought, by either vacating the vote by unanimous consent or 
asking that it be redone to assure every Member the opportunity 
to vote as they saw fit.
    Mr. LaTourette. Thank you.
    Mr. Hoyer. Can I close by simply saying----
    The Chairman. No, because I am going to ask unanimous 
consent to allow myself to have a minute and a half.
    And I am going to ask--I know, at one point in time, the 
ranking member at the beginning of a question made some 
assumptions that I believe were assumptions only and not 
supported by any facts.
    But I am going to ask the reporter if she could return to 
the final question or the next-to-final question by Mr. Pence 
and read it aloud, so that I can pursue that with Mr. Hoyer.
    [Reporter reads back as requested.]
    The Chairman. That will be fine.
    I don't know if you are aware of the testimony this morning 
by Mr. McNulty or his interview before the Committee that was 
done in private, but let me represent to you that, if you 
intended to bring pressure, according to Mr. McNulty, he did 
not hear what you said. You were unsuccessful.
    Mr. Hoyer. It is my understanding that he said he didn't 
feel pressure.
    The Chairman. And there had been statements made that the 
vote was overturned due to pressure from the Democratic 
leadership. Would you care to comment on that?
    Mr. Hoyer. Which vote, the 215-213?
    The Chairman. No. Well, the 215 to the 213, the 214 to the 
214, the second one.
    Mr. Hoyer. Well, the 214, of course, we wouldn't want to 
overturn that because we would have prevailed on the 
proposition, because, in a tie, the proposition fails.
    On the 215-213, as I have reiterated on a number of 
occasions, Mr. McNulty never called that vote. Somebody, not an 
elected Member, decided to put up on the board that that was 
the final vote. They made the conclusion then, as did the 
person who has the vote screen up at the time of the vote at 
the end of the first 214-214 that the vote had concluded.
    Both were in error. That doesn't mean that they were doing 
something wrong. They made a mistake. Mr. McNulty made a 
mistake, as he acknowledges, by calling the vote early. I don't 
believe there is a culprit here, in the sense of culprits. I 
think a series----
    The Chairman. To inform the leader, my reference in my 
opening remarks was that the culprit might be in the form of a 
well-intentioned rule that was in response to perceived abuses 
on other occasions.
    However, I concur at this juncture with both the leader and 
the gentleman from Ohio, in terms of the difficulty of 
enforcement and the practicality of the operation of that rule. 
And it might be very well a recommendation by this Select 
Committee to review that particular rule.
    Having said that, I thank the Majority Leader for his 
testimony, and we will see you on the floor later.
    Mr. Hoyer. Thank you very much.
    Mr. LaTourette. Mr. Chairman, before you recess--I don't 
need the leader for this.
    Thank you so much for your cooperation.
    Mr. Hoyer. Thank you.
    Mr. LaTourette. I know you are going to take a little 
recess. Could I just ask before we reconvene, because there was 
one matter that came up in the leader's testimony that I feel 
the need to discuss with the Members, not in an open session 
yet. And maybe we could take a 10-minute break, and, for 5 
minutes, we all could just have a brief conversation.
    The Chairman. All right. Why don't we reconvene at 4:05? 
And the members of the Office of the Parliamentarians can be 
seated at their seats.
    We will recess.
    [Recess.]
    The Chairman. Welcome, gentlemen.
    The crowd seems to be thinning.
    The Committee is now in order.
    I enjoy reading these biographies. It has all kinds of 
vital information, like the Parliamentarian was born in Chicago 
in 1952. I am saying that with a certain facetiousness, 
obviously. He resides in Virginia. He is the third of nine 
children of James Patrick Sullivan and Mary Claire Wiley. He 
attended the United States Air Force Academy and the Indiana 
University School of Law. He is a member of a variety of bar 
associations, including the United States Court of Appeals for 
the Armed Services.
    Mr. Sullivan was appointed as the Parliamentarian of the 
House in 2004 after having served as Deputy Parliamentarian and 
as Assistant Parliamentarian. Before joining the Office of the 
Parliamentarian, he served as a trial and appellate lawyer in 
the Air Force and as counsel to the House Armed Services 
Committee.
    Ethan Lauer is a native of Fond du Lac, Wisconsin, and 
obtained his undergraduate degree from the University of 
Wisconsin. He later went on to study law at the University of 
Minnesota and was admitted to the Wisconsin Bar in 1999.
    He joined the Office of the Parliamentarian in 1999 and 
serves as Assistant Parliamentarian in the House of 
Representatives.
    Mr. Max Spitzer currently serves as Assistant 
Parliamentarian in the House of Representatives. Prior to 
joining the Office of the Parliamentarian in 2006, he studied 
law at Duke University and completed a clerkship in the State 
of Pennsylvania.
    As part of his studies, Mr. Spitzer served as research 
assistant and summer associate at law firms in the United 
States and abroad. He has written several academic works in the 
area of law and history.
    Welcome, gentlemen, and thank you for your attendance here 
today to help us with our mandate.
    And let me begin by yielding the time to the gentleman from 
Alabama, Mr. Davis.
    Let me first inquire of the panel. Mr. Sullivan, do you, as 
the Parliamentarian, have a statement that you wish to make?
    Mr. Sullivan. No, thank you.
    The Chairman. Fine.
    Mr. Davis.
    Mr. Davis. Thank you, Mr. Chairman.
    Let me welcome all three of you. And let me begin, frankly, 
in the spirit with which we started today.
    One of the things that has been enhanced by the work the 
six of us have done on this Committee is our collective 
appreciation of what you gentlemen do. Frankly, a lot of us 
tend to lapse into the routine of seeing you all up there but 
not necessarily paying a whole lot of attention to what you do 
or, more importantly, fully appreciating what you do. And 
sometimes it takes an unexpected set of events like August 2, 
2007, to crystallize the importance of the very excellent staff 
we have to the process.
    So I want to begin by thanking all three of you, and 
reiterating something that, frankly, may not be understood by 
the public, that the staff, the Parliamentarian, tally clerks, 
reading clerks don't work for the Majority. They work for the 
House of Representatives. And all three of you have conducted 
yourselves that way when you work for a Congress that was run 
by Republicans and now that you work for a Congress run by 
Democrats. And I think all of my colleagues would share those 
sentiments.
    The way I intend to structure my questions today, Mr. 
Sullivan, I am going to use military rules and essentially 
speak to the commanding officer who is here, since you are the 
Chief Parliamentarian, and I am going to direct my questions at 
you. If Mr. Lauer or Mr. Spitzer want to jump in and interject 
observations, they are certainly free to do that. And I will 
give them a chance at the end to see if they wish to differ 
from your testimony in any way.
    But out of deference to you as the Chief Parliamentarian, I 
am going to direct my questions to you, sir, if that is 
appropriate.
    And you have to actually audibly answer. I have to get you 
in the habit of that for the record.
    Mr. Sullivan. That would be fine. Thank you.
    Mr. Davis. Let me begin by asking you about the issue that 
we have talked about all day long, and it is the question of a 
tally sheet.
    As you know from your deposition, as I think you know from 
becoming aware of the disputed facts in this case, there is an 
argument that has been made that a tally sheet is a standard 
custom and practice of calling a vote. You described it as the 
ultimate quality-assurance mechanism for determining the 
accuracy of a vote in your deposition.
    I want to ask you some questions about, frankly, Member 
awareness of these issues around tally sheets.
    It is my understanding as Parliamentarian that you 
sometimes have occasions to brief presiding officers and to 
have discussions with presiding officers about the nature of 
their duties. Am I right about that?
    Mr. Sullivan. That is correct.
    Mr. Davis. Give me just an estimate in 2007 of how many 
presiding officers you sat down with and had some briefing with 
them about what it means to be a presiding officer.
    Mr. Sullivan. I would estimate maybe 50.
    Mr. Davis. Of that 50 Members, approximately how many did 
you discuss--with whom did you discuss a tally slip?
    Mr. Sullivan. Probably none.
    Mr. Davis. Probably none.
    Mr. Sullivan. The reasons--the briefings I am speaking of 
are mainly to orient the Member to the physical plants that 
they are going to be operating in and who is going to be there 
to assist them and the extent to which we will have prompts 
prepared for them in writing or rather using the mute button 
and prompting them verbally.
    I usually will cover the very essential aspects of 
presiding officer practice: How to confer recognition and how 
to do so tentatively, and to discover for what purpose 
recognition is being sought before conferring it; the very 
narrow set of occasions in which the Chair takes initiative to 
enforce the rules of the House, rather than awaiting a point of 
order from the floor; the technique to use with the gavel to 
apprise a Member that her time has expired and bring her speech 
to a close--very essential things.
    I assure them that we will get as deep in the weeds with 
them as they like over time. And there will be object lessons 
as they wade in to the practice of presiding.
    But I don't recall any occasion to get into the weeds of 
the tally slip and its role in the closing of a vote.
    Mr. Davis. Do you remember a single one of the 
approximately 50 Members with whom you have met asking you 
about the electronic vote system and how the electronic vote 
system closes down a vote?
    Mr. Sullivan. No.
    Mr. Davis. So you would agree that, in the briefings that 
you provided for Members, you didn't discuss tally slips and 
you didn't get into the EVS system? Would you agree with that?
    Mr. Sullivan. Yes.
    Mr. Davis. Let me go to the night of August 2, 2007. I take 
it, based on that answer, that prior to that night you had 
never had any occasion to discuss with Mr. McNulty the 
advisability of a tally slip?
    Mr. Sullivan. I don't believe I had.
    Mr. Davis. And prior to that night, had you had any 
occasion to discuss with Mr. McNulty the fine points of how the 
EVS system closes a vote down?
    Mr. Sullivan. No.
    Mr. Davis. Had you had any occasion prior to the night of 
August 2, 2007, to discuss with Mr. McNulty even the relevance 
of the board and the vote totals that are announced on the 
board?
    Mr. Sullivan. I don't believe so. In recent years, we have 
begun a practice of using prompting sheets for the Member who 
is closing out a vote if they are new to it. And on that sheet, 
we, even before these events, had begun to have some sort of 
mention of, ``Don't look at the scoreboard. Look at the slip in 
your hand.'' That was just to keep them from jumping the gun by 
looking at the scoreboard.
    But in the case of Mr. McNulty, because he had a fairly 
good rote recitation of those incantations, I don't think we 
would have put one of those sheets in front of him.
    Mr. Davis. Had you had any occasion prior to August 2nd to 
say to Mr. McNulty, don't ever view what is on the board as 
being the ultimate determination of what a vote count is in the 
House?
    Mr. Sullivan. No.
    Mr. Davis. Do you remember having any occasion to tell any 
presiding officer prior to August 2, 2007, that it is 
inadvisable to look at the board? Do you have any recollection 
of raising that issue with any presiding officer?
    Mr. Sullivan. Well, if I saw a presiding officer who looked 
like he might be thinking of announcing a result from the 
scoreboard, I would say, ``Don't look at the scoreboard. Wait 
for a final slip.''
    Mr. Davis. Had you ever done that with McNulty?
    Mr. Sullivan. No, I don't believe so.
    Mr. Davis. Mr. Boehner testified during his deposition that 
his belief that the accurate score that night, that 215 in 
favor of the motion and 213 against, was based on his looking 
up at the board and seeing 215-213 final.
    Does it surprise you that Mr. Boehner would have that 
mistaken belief about the board?
    Mr. Sullivan. That is not surprising. Mr. Hoyer has the 
same sort of attitude.
    And it is correct that if there is a slip extant, it is not 
going to vary from the board. But it is the fact that that slip 
is extant that tells you that the number on the board has 
become static, is no longer a moving target.
    Mr. Davis. Let me just ask you this question before I move 
on. You obviously interact with Members, and you have gotten to 
know a lot of us from the expertise that you provide.
    Do you think it is fair to say, Mr. Sullivan, a significant 
number of Members, experienced and inexperienced, believe that 
when they see a number go up on the board, it is actually an 
accurate count of what is going on on the floor?
    Mr. Sullivan. I believe they do. I think the question here 
is, is it still in motion or has it come to rest?
    Mr. Davis. Now, you know I believe that Mr. McNulty has 
acknowledged that he made an error that night. He did it today. 
In fact, he did it the day after the vote. Is that correct?
    Mr. Sullivan. Yes, I listened to that part of his testimony 
this morning.
    Mr. Davis. Describe for me, if you would, what you think is 
the error that Mr. McNulty made.
    Mr. Sullivan. If I may, first, I would like to say that I 
let Mr. McNulty down. And he is a very upright man to lay all 
the blame on himself, the way he did this morning, but I think 
it was too much.
    But the error was to announce a number, a pair of numbers 
that had not settled from a source that had not been documented 
as settled.
    Mr. Davis. And if I can repeat, it seems that Mr. McNulty's 
position is that he believed that when the Diaz-Balart card was 
processed, that it was reflected in the tally that was on the 
board, and that when he looked up and saw 214-214, he felt 
empowered to call the vote because he thought that Diaz-
Balart's card was counted.
    Have I essentially captured his testimony right, as far as 
you recall?
    Mr. Sullivan. I believe that is what he said.
    Mr. Davis. And the error rests in the fact that, actually, 
Diaz-Balart's card had not been processed and, indeed, was 
processed at almost the same instant he called the vote. Is 
that right?
    Mr. Sullivan. That is right.
    Mr. Davis. You have known Mr. McNulty for a while now. Do 
you view him to be an individual of the highest integrity and 
ethics?
    Mr. Sullivan. Absolutely.
    Mr. Davis. And was your sense of that reinforced by his 
appearance here this morning?
    Mr. Sullivan. Absolutely.
    Mr. Davis. Did he strike you as someone who testified here 
honestly and credibly?
    Mr. Sullivan. His testimony this morning was absolutely in 
character for him. That is how he is.
    Mr. Davis. After Mr. McNulty made his error that night on 
the floor, the video makes it very clear that you spent some 
time in consultation with him, that you spent some time having 
a conversation with him. Do you have a ballpark memory of what 
it is that you said to Mr. McNulty?
    Mr. Sullivan. I told him an ostensible result had been 
announced. It included the language that would make an 
announcement final, but that, in my judgment, it could not be 
accorded legitimacy.
    What was wrong with the announcement was not the particular 
numbers it contained, but that it contained unsettled numbers. 
And, in my judgment, to just introduce a different pair of 
unsettled numbers would not solve the problem.
    So what I was doing was waiting for the numbers to settle 
and using that time to compose a statement that, in my mind, 
was going to serve as a final tally slip with explanation of 
error.
    Mr. Davis. Now, let me stop you at that point, because you 
said something that I think is very important, given some 
contention that----
    The Chairman. Would the gentleman yield for a moment?
    Could you please, John, pull the microphone closer, speak 
into it? Thank you.
    Mr. Davis. Yes. That would help, Mr. Sullivan.
    I want to go back down this road of what you just said, 
because, given some contention today, I think it is important.
    One of the issues that has been raised is the fact that 
several Democratic Members went into the well and changed their 
votes. You recall from watching the videotape Mr. Space, Mr. 
McNerney and Mrs. Gillibrand all go into the well to change 
their votes.
    Do you recall that?
    Mr. Sullivan. Yes. Well, I don't recall that. I learned 
that from the tapes. I have no independent recollection of it.
    Mr. Davis. You said that it was your belief that the vote 
had not settled, that the vote was still dynamic. Do I take 
that to mean that you felt that there were still Members in the 
process of changing their vote or Members who manifested an 
intent to change their vote?
    Mr. Sullivan. I based it almost entirely on the fact that, 
as soon as Mr. McNulty completed the full form of announcement, 
the board changed, which told me that the system had not been 
closed to further input. And I didn't know whether that uptick 
was the last uptick.
    Mr. Davis. And not only did the board change, but our 
timeline reflects that within 7 to 10 seconds you can 
physically see Ms. Gillibrand walking forward to turn in 
another card. Does that sound about right, from your 
recollection?
    Mr. Sullivan. I don't have any recollection of that. I was 
rocked back on my heels, and----
    Mr. Davis. Did you hear people--did you hear the Clerk 
announcing changes in votes, though? Does that register with 
you?
    Mr. Sullivan. I certainly have observed that by watching 
the videotape at this date. But I don't think, when I try to 
play back a tape in my head from my actual recollection, I 
don't know that I recall that.
    I do recall going through the process in my mind of 
diagnosing that we had an illegitimate situation and then 
figuring out why it was illegitimate. It felt illegitimate; I 
had to figure out why it felt illegitimate, and then what would 
tend to correct it. And that took me a little longer than I 
would like.
    Mr. Davis. Let me just show you one part of the tape, so we 
can be crystal-clear about this.
    If you would go to 22:51.
    And if you would just watch, Mr. Sullivan.
    You can start it.
    [Video was played.]
    Mr. Davis. You will note that two individuals changed their 
votes, in effect: Mr. Space and Mrs. Gillibrand. Is that a 
correct representation of what you just saw?
    Mr. Sullivan. Yes.
    Mr. Davis. Is there anything that you believe to be 
inappropriate about those individuals being allowed to process 
their changes of vote at this point?
    Mr. Sullivan. Well, in critiquing my own performance, that 
was 30 or 40 seconds, I think, that I was trying to figure out 
what the situation ought to be.
    Mr. LaTourette. I am sorry, you were saying what?
    Mr. Davis. You need to lean directly into the microphone.
    Mr. Sullivan. Figure out what we ought to be doing.
    Mr. Davis. Did you see the Democratic leadership--well, let 
me ask the question differently. The fact that Gillibrand and 
Space changed their votes, in effect, that was a function of 
the fact that, in effect, nothing is going on here. In effect, 
there is a dynamic period where a vote has been called, but 
obviously Members are still proceeding to change their vote. Do 
you agree with that?
    Mr. Sullivan. Yes.
    Mr. Davis. And was that a function of any instruction or 
order by the Democratic leadership that these individuals be 
allowed to change their votes?
    Mr. Sullivan. No. It was a totally anomalous situation in 
which a putative result was extant. I mean, the Chair had said 
the words that ordinarily would end that proceeding. But they 
were so immediately and so forcefully contradicted by the 
scoreboard that I thought that it could not stand, and we had 
to let the thing play out.
    Mr. Davis. In effect, the changed votes of three 
individuals--McNerney, Gillibrand and Space--were counted that 
night. Is that correct?
    Mr. Sullivan. Yes.
    Mr. Davis. And to this day, do you believe that that was 
inappropriate or in any way a violation of the will of the 
House to count those three votes that were changed?
    Mr. Sullivan. I don't know that I can judge what the will 
of the House was. It was a bad way to conduct a vote.
    Mr. Davis. But during this period of time--and I will 
represent to you that there was widespread agreement today it 
is about a 7-minute period in between Mr. McNulty's erroneous 
calling of the vote and the time that he announces the right 
result. During that 7 minutes, any Member who wished to change 
could have done so. Is that right?
    Mr. Sullivan. That is right.
    Mr. Davis. It would have been equally open to Members to go 
off no on aye and off aye on no. Is that correct?
    Mr. Sullivan. That is right.
    Mr. Davis. Was there any point that night, Mr. Sullivan, 
when you attempted to give Mr. McNulty an instruction and he 
ignored you or refused to follow your instructions?
    Mr. Sullivan. No.
    Mr. Davis. Was there any point when you suggested that he 
do something and he refused to do it?
    Mr. Sullivan. No.
    Mr. Davis. There has been a lot of questioning about your 
exchange with Mr. Hoyer that night. There was a heated exchange 
with Mr. Hoyer. Is that correct?
    Mr. Sullivan. I think I had five exchanges with Mr. Hoyer. 
One of them was the one that everybody seems to focus on, and 
that had a little heat to it.
    Mr. Davis. The exchange that we saw, he seems to say 
something of the effect that we control this House, or words to 
that effect, not the Parliamentarians.
    Did Mr. Hoyer act in an abusive manner to you at any point, 
Mr. Sullivan?
    Mr. Sullivan. No.
    Mr. Davis. Did Mr. Hoyer use any profanity toward you at 
any point?
    Mr. Sullivan. I don't believe so.
    Mr. Davis. I think you say in your deposition, he might 
have used a word that starts with ``D'' and ends in ``N'' that 
we have heard sometimes.
    Mr. Sullivan. The question was repeated enough times that I 
thought, you know, there was something--and I said, well, if 
there was something, then maybe he said ``this damn place'' 
instead of ``this place.'' But I don't have any particular 
recollection.
    Mr. Davis. And just to put it in some context, did a 
Republican Member of the House approach you last week and have 
a heated exchange with you?
    Mr. Sullivan. Yes. I think some of the heat was from me, 
though.
    Mr. Davis. Without naming that individual, as I don't want 
to embarrass him, which would you say was the more heated, 
provocative encounter, the one that you had last week with this 
individual or the one you had with Mr. Hoyer?
    Mr. Sullivan. I think the one last week, but I think I 
exacerbated the situation.
    Mr. Davis. What was the individual doing last week that 
exceeded what Mr. Hoyer did?
    Mr. Sullivan. I felt that he was accusing our office of 
manipulating the form of the question that the Chair puts on an 
appeal.
    Mr. Davis. Had you ever had that kind of an allegation ever 
made by Mr. Hoyer?
    Mr. Sullivan. No.
    Mr. Davis. Has any Democratic Member ever made that kind of 
allegation to you?
    Mr. Sullivan. Probably.
    Mr. Davis. All right, probably. All right. But not Steny 
Hoyer? [Laughter.]
    The Chairman. Yield back, Artur?
    Mr. Davis. All right. But not Mr. Hoyer?
    Mr. Sullivan. I don't believe so.
    Mr. Davis. All right.
    And one final set of questions, Mr. Sullivan. Was there any 
point--I figure Mr. LaTourette asked so many questions he 
didn't know the answer to, I would try at least one to balance 
it out.
    But let me just ask this observation. Was there any point 
that night when either Mr. McNulty or Mr. Hoyer did anything 
that you felt was an intentional violation of the rules or the 
customs of the House of Representatives?
    Mr. Sullivan. No.
    Mr. Davis. All right. No further questions.
    The Chairman. Mr. Pence, I will yield the balance of my 
time, as well as your 20 minutes, to you and your side.
    Mr. Pence. Thank you, Mr. Chairman.
    I want to welcome this panel. And I know I speak for 
everyone on the Committee when I say that we are grateful for 
your cooperation, and we are mindful of the discomfort that 
being questioned by Members of Congress that you serve would 
present to all of you professionally.
    And I want to say that my take-away from this inquiry is to 
have a higher opinion of each of you and a higher opinion of 
those who serve at the rostrum than I had before this inquiry. 
And I expect that will be broadly shared by members of this 
Committee and Members of the Congress. So I thank you for your 
service and your cooperation.
    Mr. Sullivan, a couple of quick questions, and then I just 
had a couple questions for Mr. Lauer. And I will yield, as has 
been my practice, to Mr. LaTourette.
    Very specifically, Mr. Sullivan, did the tally clerks 
prepare a tally slip for Roll Call 814?
    Mr. Sullivan. No. No.
    Mr. Pence. Prior to Roll Call 814, have you ever seen a 
vote closed without a tally slip being prepared?
    Mr. Sullivan. I don't recall ever seeing that.
    Mr. Pence. Mr. Davis asked an intriguing line of 
questioning about the preparation that you provide for Members 
who serve as pro tem in the chair. You said that you personally 
as Parliamentarian would not have discussed the tally slip. Is 
that because it is not a significant element of a record vote 
or because it is so deeply entrenched in the traditions that 
you would not have mentioned it, or if you have a third 
response.
    Mr. Sullivan. I think the latter. I think it is part of the 
DNA of the way the House proceeds.
    Mr. Pence. You have testified during your interview with 
this Committee that the tally slip, consistent with your 
immediate previous statement, is, quote, ``probably the most 
important quality control device in the announcement of a 
vote.''
    Could you elaborate on that? Why is the tally slip so 
important to maintaining the integrity of the voting process in 
the House of Representatives?
    Mr. Sullivan. The electronic voting system has 47 input 
devices: 46 boxes at which Members use smart cards, and the 
Tally Clerk's terminal at the rostrum. And they are closed down 
from the periphery so that at some point or other during the 
electronic vote the seated Tally Clerk closes the 46 boxes and 
all further transactions are conducted by ballot card in the 
well. And then toward the end, very near the end, the seated 
Tally Clerk closes down even the 47th input device, his 
terminal at the rostrum, and then tells the standing Tally 
Clerk, I just shut the entire system down to further input, it 
is safe for you to look up at the board and capture a result. 
The standing Tally Clerk waits for whatever length of time 
constitutes a computer refresh cycle. I think it is 1.5 seconds 
or .5 seconds, but they wait a beat, assure themselves that 
they have a static number and write it on a tally slip. And 
that tally slip once extant is a marker to all of us that 
somebody captured a result from a system that had been closed 
to further input.
    Mr. Pence. Thank you. Last question for you, Mr. Sullivan. 
I believe you were seated here in the hearing room when the 
Majority Leader testified on the topic that I would like to 
raise with you. I specifically asked the Majority Leader, do 
you believe the Majority can close a vote with or without the 
assent of the Clerk of the House, quote, conducting a record 
vote? As Parliamentarian, would it be your view that a Majority 
of the House can close a vote without the assent of the Clerk 
of the House conducting a record vote?
    Mr. Sullivan. I don't have an understanding how the 
Majority has anything to do with it. I would think in terms of 
presiding officer. And I would observe that the role that is 
assigned to the Clerk in clause 2 of Rule XX is that of an 
agent. And her principal is the presiding officer. So when the 
rule says the Clerk shall conduct the vote, the Clerk shall 
make sure the electronic voting system is properly employed and 
everything, she is operating at the direction and control of 
the gavel--the presiding officer. And I suppose it is true that 
the presiding officer could say I am going to depart from best 
practice, I am going to--when I think the numbers have 
settled--announce a result. But until this occasion that has 
never occurred.
    Mr. Pence. Until this occasion it had never occurred 
without the assent of the Clerk.
    Mr. Sullivan. Not to my knowledge. The only precedent I 
found, I think it is the only one, that mentions the tally slip 
in particular, not a tally sheet as they use in a manual call 
of the roll. On one occasion the presiding officer, there was a 
motion to adjourn, and he had the tally slip in his hand and 
was about to announce that the House had adjourned, but he 
paused and entered a leave of absence request on behalf of a 
sick Member. And someone complained, ``wait a minute, you have 
a tally slip in your hand, you can't do that, your duty is to 
read the tally slip.'' But other than that, it is largely 
intramural lore.
    Mr. Pence. Thank you. That is very helpful. Let me ask Mr. 
Lauer a quick question. There has been a lot of talk about 
pressure that the Chair may or may not have felt. In your 
deposition you were asked the following question. You appear 
from the video to be standing at the rostrum and you are close 
to where the rather heated exchange took place between Mr. 
Hoyer and Mr. Sullivan. In your opinion was there a palpable 
sense of pressure to close the vote? You responded yes. Is that 
your testimony today, that there was a palpable sense of 
pressure at the rostrum at the time of this vote?
    Mr. Lauer. Yes.
    Mr. Pence. And you testified in response to the question, 
``was that pressure coming from Mr. Hoyer,'' your response was, 
``he was a big part.'' Is that still your testimony today?
    Mr. Lauer. Yes.
    Mr. Pence. And in your proximity, if we can put the poster 
up, I want to make sure that the record reflects your proximity 
to, and I don't know, Mr. Lauer, if you can see this. I believe 
we have got a label over your head. Would you mind stepping 
over there and showing us where you were at the rostrum when 
you sensed this palpable sense of pressure coming from Mr. 
Hoyer? And let the record reflect the witness is pointing to 
himself. Facing the rostrum he is at the left of the presiding 
officer--excuse me, to the right hand of the presiding officer, 
but left facing the rostrum. Thank you.
    Let me ask you one other question. Do you recall testifying 
to this Committee that there was another instance of a vote 
being closed without a tally slip?
    Mr. Lauer. Yes.
    Mr. Pence. When did you provide that testimony or can you 
recount that for us?
    Mr. Lauer. Yes. I believe it was the first interview. And 
the question was asked has a vote ever been closed in the 
absence of the normal tally slip. And at first I said no. And 
then later in the interview the question came up again, and I 
thought I did remember a case where I was, as I was on August 
2nd, assisting the Chair, and saw a vote that was closed before 
a tally slip actually made it into the hands of the presiding 
officer. But I couldn't recall any specifics. And I trust it 
was not a figment, but I believe it did happen.
    Mr. Pence. Thank you. I will yield to Mr. LaTourette.
    Mr. LaTourette. Thank you very much. And gentlemen, thank 
you all for being here. And I would just say having had the 
opportunity to preside from time to time, the House of 
Representatives is lucky to have you as employees. And I think 
you all do a great job. We are going to put up on the lectern 
over there, on the issue of training, there was some discussion 
about training. And this is a document, a large document dated 
April 25, 2007, and ask you Mr. Sullivan, do you recognize that 
document?
    Mr. Sullivan. Yes, I do.
    Mr. LaTourette. Okay. You can have a seat. Let us give him 
the small one. Am I correct that as part----
    Mr. Davis. Can I have a copy too, Mr. LaTourette?
    Mr. LaTourette. Yes. I would be happy to get you one. Does 
somebody else have a copy? Can you get it to Mr. Davis and get 
one to the chairman? Because of the desire of the 
Parliamentarian to make things go smoothly, this is a sheet 
that was in existence as of April 25, 2007, and it would be 
from time to time based upon your testimony placed upon the 
rostrum to assist the presiding officer, is that right?
    Mr. Sullivan. Yes.
    Mr. LaTourette. The third line says ignore scoreboard, rely 
on tally slip.
    Mr. Sullivan. Yes.
    Mr. LaTourette. And was that to indicate to the person who 
was acting in place of the Speaker that to read off the 
scoreboard was not the preferred way to do it and you should 
wait for the tally slip?
    Mr. Sullivan. Yeah. It was my way to steer them towards 
tally slip consciousness.
    Mr. LaTourette. And was this--when was this? This is dated 
April 25, 2007. But did you have any idea how long it has been 
used?
    Mr. Sullivan. This form has been used in a variety of 
iterations. That third line might be slightly different from 
one to another. But I think it was during Mr. Hastert's term as 
Speaker that I began for Mr. Hastert to create a sheet for him 
on closing out a vote. Because whenever he got in the chair, 
Members would be pestering him constantly. Everybody would be 
coming up to get a piece of the Speaker. And it wasn't easy for 
him to remain plugged in. So I would write out basically what 
is the bottom half of that sheet for him, so that he could when 
he got the tally slip just fill in the blanks with the numbers 
and then read. And then after a time we made it a typed 
endeavor and used it with any presiding officer who we thought 
was not used to the incantations of closing a vote.
    Mr. LaTourette. And was this document in existence on 
August 2nd of 2007?
    Mr. Sullivan. This or something equivalent.
    Mr. LaTourette. And, Mr. Lauer, do you know whether or not 
this was on the rostrum in front of Mr. McNulty?
    Mr. Lauer. I do not know.
    Mr. LaTourette. You do not know. And if it was not, Mr. 
Sullivan, did you indicate that it would be your belief based 
upon Mr. McNulty's expertise that he wouldn't need this?
    Mr. Sullivan. Right.
    Mr. LaTourette. Mr. Sullivan, do you believe that a 
presiding officer can announce a result that differs from the 
tally of the Clerk?
    Mr. Sullivan. No.
    Mr. LaTourette. I want to--and let me just talk about the 
interplay of rules and customs, practices and procedures, and 
ask the Majority Leader this. When I would be in the chair and 
someone would yield a minute to the Majority Leader, the 
Minority Leader or the Speaker of the House, Members of my 
party would always come up to me and say, why do you--shut them 
down, they have talked for 15 minutes and they only got a 
minute. And am I correct that that is, based upon the long-
standing tradition of the House, that courtesy is given to the 
leadership of each party and certainly to the Speaker of the 
House?
    Mr. Sullivan. Yes.
    Mr. LaTourette. Would I find that in the rules anywhere?
    Mr. Sullivan. Only inasmuch as the Chair is--the power of 
recognition is in the rules, and the precedents on what 
constrains the Chair's exercise of discretionary recognition. 
That custom is supported by the--it is the magnanimity of the 
Chair that allows the leaders to go on.
    Mr. LaTourette. And let me ask you this. If the next time a 
Democratic Member yielded one minute to Majority Leader Hoyer 
and he spoke more than one minute, what would your ruling as a 
Parliamentarian of the House be if I made a point of order that 
he had exceeded his time limit?
    Mr. Sullivan. I would ask the Chair to say that it is the 
custom of the House to hear its leaders at their length.
    Mr. LaTourette. As it is the unbroken custom, practice and 
precedent of the House to provide the Speaker pro tempore with 
a tally slip?
    Mr. Sullivan. Yes.
    Mr. LaTourette. Clause 2(a) of Rule XX is something that is 
vexing us.
    Mr. Sullivan. The new sentence.
    Mr. LaTourette. The new sentence.
    Mr. Sullivan. Yes.
    Mr. LaTourette. And Mr. Hoyer I think, and I found Mr. 
Hoyer's testimony to be refreshing, and I think he hit the nail 
on the head, that the enforcement of clause 2(a) rests with the 
occupant of the chair, it is for the Chair to determine in the 
first instance whether or not he or she is holding the vote 
open solely to affect the outcome?
    Mr. Sullivan. Well, on Thursday, May 8th, we had a ruling 
of the Chair sustained on appeal to the effect that the new 
sentence in clause 2(a) is susceptible only of collateral 
enforcement, that it does not support the litigation of a point 
of order in real time.
    Mr. LaTourette. I understand that. But in terms of the 
bedrock parliamentary procedure is that we hope that the 
presiding officer follows the rules of the House.
    Mr. Sullivan. Yes.
    Mr. LaTourette. And in this instance the person in the 
chair is entrusted with the responsibility of following the 
rules.
    Mr. Sullivan. Yes.
    Mr. LaTourette. And the rule as presently written, the 
words ``solely for the purpose,'' that can only be obtained, we 
can only get to the bottom of it by ascertaining of the Chair 
what their purpose was.
    Mr. Sullivan. I agreed with you earlier, he is the judge 
and a defendant on a specific intent crime.
    Mr. LaTourette. Okay. And I asked Mr. Hoyer this, and let 
me just read you this exchange and ask you if you agree, on 
page 28 of Mr. Hoyer's interview, which he reaffirmed today, 
Mr. McNulty testified to us that it was his judgment to keep 
the vote open after the Mario Diaz-Balart well card was 
entered--that it was his judgment that to keep it open after 
that moment in time would have violated clause 2(a) and he 
intended to close the vote after Mario Diaz-Balart's vote was 
entered. If that is Mr. McNulty's position, that as the 
presiding officer, that he and Mr. Hoyer said is invested with 
the authority to close a vote, if that were to be his 
testimony, that the vote in his mind was closed when he said 
214-214, the motion is not agreed to, would you dispute his 
authority to do that? The Majority Leader said no, and I would 
ask you the same question.
    Mr. Sullivan. Well, I guess de facto I did dispute that by 
making the judgment that the announcement of 214-214 without 
proper closing of the system could not be accorded legitimacy 
and that the substitution of 215-213 for the numbers in that 
announcement would not solve that problem, and that we had then 
to allow the numbers to settle and make a complete 
announcement.
    Mr. LaTourette. Well, let me ask you this. I am talking 
about whether or not 2(a), clause 2(a) was violated by the 
occupant of the chair. And I think I believe, and you tell me 
if I am wrong, that the only way that that can ever be 
definitively determined is if the person in the chair says, 
yeah, I kept it open for the sole reason of influencing the 
vote. In this instance we have the converse. We have the 
presiding officer indicating to us that based upon the traffic 
and his seeing what was going on in the House, he had reached 
the conclusion that to keep the vote open after the Diaz-Balart 
card was entered would have been violative of 2(a). How does 
that not get us to a violation of clause 2(a)?
    Mr. Sullivan. I don't know. One of the things that I am--I 
don't know if we are talking past one another, but I don't 
think a confession by the presiding officer is the only way a 
violation could be adjudged. As the Chair held on May 8th, a 
collateral challenge could allege and adduce some sort of 
reprimand for a violation.
    Mr. LaTourette. What better evidence could you have than 
the Chair saying I did it? I mean I understand what you are 
saying; you could have totality of the circumstances, there 
could be other factors upon which you could impute the Chair's 
mens rea. But when the Chair says I did it, I mean you don't 
need more evidence for that, do you? You are not suggesting 
that?
    Mr. Sullivan. No. This is where I let Mr. McNulty down on 
the evening of August 2nd. The fact that I did not give him an 
opportunity to let me know what he was thinking and I didn't 
give him the immediate benefit of my thinking.
    Mr. LaTourette. Well, I think you are being too hard on 
yourself, just the way Mr. McNulty was too hard on himself. 
There were some choices after this vote was prematurely called 
at 214-214. And you have said that you wanted things to settle. 
Well, there is a moment in time in terms of votes that had been 
handed to the standing Tally Clerk and entered into the system 
by the seated Tally Clerk, Mr. Anderson, the vote was settled 
at 215-213, was it not?
    Mr. Sullivan. I didn't think so. I don't think I diagnosed 
the situation before others started to trickle in. I lingered 
longer than I remembered with Tom Wickham down toward the--
below the mace, whispering about the situation we were in.
    Mr. LaTourette. But you were--the time that you took to 
assess or figure out what was going on can't affect the 
parliamentary status of the proceedings of the House of 
Representatives, can it?
    Mr. Sullivan. Well, the one thing I knew for sure was that 
the announced result could not be accorded legitimacy, and no 
other result had the benefit of announcement. So we were still 
engaged.
    Mr. LaTourette. Right. But that is my point, I guess. Could 
you as a valid disposition have written a slip for Mr. McNulty 
to call this vote 215-213 and the motion is agreed to?
    Mr. Sullivan. If that was where the numbers settled at that 
point, yes.
    Mr. LaTourette. Well, because at that moment in time Mr. 
McNulty had made, you called them magic words in previous, that 
he had made a definitive statement concluding the vote, and 
that is that the motion is not agreed to. Are you also aware 
that Mr. Anderson, the seated Tally Clerk, upon hearing those 
words attempted to get out of the vote and close down the 
system? Are you aware of that today?
    Mr. Sullivan. No. I know that he pushed the button that 
causes the word ``final'' to appear, so he was on his way out. 
It is a two-step process, I believe, and the word ``final'' is 
the penultimate step.
    Mr. LaTourette. And what would have happened if Mr. 
Anderson had been successful?
    Mr. Sullivan. I don't know. This was a totally anomalous 
situation. I knew one thing for sure, that we had an announced 
result that could not be accorded legitimacy, and we were in 
territory that nobody had ever charted. And I was trying to 
compose a logical, just resolution of it. And to me the 
gravamen of the problem was that the numbers had not been 
allowed to settle. And so my first mission was to let the 
numbers settle. And that is why I wrote for so long in front of 
Mr. McNulty, because I was listening to what was going on 
behind me and looking up at the board from time to time to see 
whether we had reached stasis. And I don't think that the words 
there were that long. You could probably write them in about 15 
seconds.
    Mr. LaTourette. Okay. Thank you. Thank you, Mr. Chairman.
    The Chairman. Does the ranking member wish 2 minutes of 
direct before I go?
    Mr. Pence. I would be happy to follow Mr. Davis.
    Mr. Davis. I just have a few questions, Mr. Chairman. Mr. 
Sullivan let me pick up on the last observation that you made 
to Mr. LaTourette. You put a lot of stock in the question of 
whether or not the vote had settled. Just as a matter of common 
sense it seems to me that if three Members went up there to 
change their votes that the vote had not settled. Does that 
make sense to you?
    Mr. Sullivan. Yes.
    Mr. Davis. One of the points of contention today, 
obviously, has to do with Mr. Hoyer and whether or not there 
was some undue pressure influence on the Chair. From what I 
observed on the tape, and what I think most of us have observed 
today, you are standing pretty close to the presiding officer 
during most of the relevant exchange, are you not?
    Mr. Sullivan. I would say I am about at the mace.
    Mr. Davis. Do you have any recollection of Mr. Hoyer coming 
up there and having any conversation with Mr. McNulty?
    Mr. Sullivan. No.
    Mr. Davis. Were you able to hear Mr. Hoyer saying close the 
vote that night?
    Mr. Sullivan. I think I heard, I think I heard him yelling 
in the well early. I don't know what word he used. But it was 
clear to me he wanted the vote closed.
    Mr. Davis. Did Mr. McNulty close the vote when Mr. Hoyer 
said whatever you just referred to?
    Mr. Sullivan. No. And I am not sure he was yelling to Mr. 
McNulty. I think Mr. Hoyer basically sees us as the ones who 
are the drag on the--and this happens not just when there is 
political anxiety over the result of a vote, but anxiety over 
what time planes are leaving on a Thursday. And we, our 
penchant for asking the Chair to take another Member's vote 
when it's apparent to us he wants to vote, sometimes come at 
some displeasure to the Members.
    Mr. Davis. Mr. McNulty testified here earlier today that he 
does not remember even hearing or perceiving that Mr. Hoyer was 
instructing him to close out the vote. Are you in any position 
to contradict Mr. McNulty's testimony?
    Mr. Sullivan. No.
    Mr. Davis. In fact is it possible there was so much noise 
that night that Mr. McNulty could not have heard the exchange 
that you just described from Mr. Hoyer?
    Mr. Sullivan. Yes.
    Mr. Davis. Is it possible there was so much confusion that 
night and so many people yelling that Mr. McNulty could not 
have necessarily perceived an instruction from Mr. Hoyer?
    Mr. Sullivan. Yes.
    Mr. Davis. Mr. Lauer, you were asked by Mr. Pence whether 
or not there was pressure that night from Mr. Hoyer and whether 
that might have influenced Mr. McNulty's decision to call the 
vote. Mr. McNulty testified earlier that the pressure that he 
felt was that he feared a controversy over rule 2(a). Are you 
aware that was his testimony earlier?
    Mr. Lauer. Yes, I heard that part of his testimony.
    Mr. Davis. Are you in any position to get in Mr. McNulty's 
mind and to say that that is not accurate, are you in a better 
position than he is to know what he was thinking? Presumably 
not.
    Mr. Lauer. No.
    Mr. Davis. Do you believe Mr. McNulty to be someone who is 
truthful?
    Mr. Lauer. Yes, as far as I know him.
    Mr. Davis. And if you had to guess based on his reputation 
as a Member and what you know of him, if you had to take a bet 
as to whether he would testify truthfully or untruthfully 
before this Committee, which would you think is the much more 
likely possibility?
    Mr. Lauer. I don't know him that well.
    Mr. Davis. Well, that is fair enough. Mr. Sullivan, do you 
know Mr. McNulty well enough to answer that question?
    Mr. Sullivan. Yes.
    Mr. Davis. So I will put the question to you. Based on what 
you know of Mr. McNulty's reputation and your assessment as you 
saw him sitting here today, if you had to venture a guess of 
whether you think he is much more likely to have testified 
truthfully or untruthfully, which would you venture?
    Mr. Sullivan. Much more likely to be truthful.
    Mr. Davis. I have no further questions.
    The Chairman. Before I yield to the ranking member I want 
to pursue what I think is the point that Steve LaTourette has 
raised with you. John, you seem to take the responsibility for 
not having a full exchange with Mr. McNulty that evening. I 
think that was what I heard in response to one of Steve 
LaTourette's questions. If you had known, or if he had 
explained to you--I am going to ask you a hypothetical 
question. If he had explained to you that his concern was the 
possible violation of clause 2(a) of Rule XX, and that mentally 
he had processed and reached a conclusion that upon the 
submission by Mario Diaz-Balart of a well card, that he would 
then have closed the vote, if you had been made aware of that 
information, if you had that kind of exchange with him, what 
would your advice have been under those circumstances?
    Mr. Sullivan. I would have said that waiting for a slip is 
not holding the vote open.
    The Chairman. And with that, I yield.
    Mr. Pence. Thank you, Mr. Chairman. And I just have two 
quick series of questions, and I will yield the balance to Mr. 
LaTourette. On the subject of pressure, Mr. Sullivan, pressure 
that may or may not have existed at the rostrum, Mr. Lauer has 
testified that he believed that there was a palpable sense of 
pressure to close the vote at the rostrum. He was standing just 
a few feet away from the Chair. I think you are aware because 
you were in the room, when I asked the Majority Leader here and 
in his interview whether it was possible that his demeanor and 
actions that night may have, quote, unintentionally created an 
environment of more pressure on Mr. McNulty to close the vote, 
he testified before and reaffirmed today that that was 
certainly possible.
    Now, is it possible in your mind that Mr. Hoyer may even 
have created an environment where Mr. McNulty felt pressure?
    Mr. Sullivan. I can't speak for Mr. McNulty, but like 
Ethan, I felt pressure. I think the way I felt it was, ``are we 
overstepping our bounds, are we acting like we are, you know, 
too big for our britches here by the way we are operating the 
Parliamentarian's Office.'' I questioned myself because of what 
Mr. Hoyer was saying. So you know I certainly felt the 
atmosphere that Ethan is talking about. Whether Mr. McNulty 
even noticed it, I have no way of knowing.
    Mr. Pence. Now, you--and Mr. LaTourette has even asked a 
better question of you than I did of you, and I just want to 
make sure I understand. I asked you earlier if you thought it 
was possible for the Majority, and you corrected me and said 
the Chair, to close a vote without the assent of the Clerk of 
the House conducting a record vote. Mr. LaTourette said do you 
believe the Chair can announce a vote that differs with the 
Clerk? Your answer to that seemed to me was an emphatic no.
    Mr. Sullivan. Right. And substituting the word assent for 
the word data, I am with you 100 percent. The Chair has to ask 
the Tally Clerk, ``how did it come out?''
    Mr. Pence. Well, and you may recall I posed the question to 
the Majority Leader if a vote can be counted without the assent 
of the Clerk who counts the vote. Your expectation is the Clerk 
counts the vote under our system in the House of 
Representatives.
    Mr. Sullivan. Right.
    Mr. Pence. Thank you. Mr. Lauer, just a specific 
clarification. There has been much talk about tally slips and 
whether there ever was a tally slip or a vote ever closed 
without a tally slip. Thank you for clarifying your previous 
testimony earlier. I would note in your testimony of February 
14, 2008, on page 25, you first were asked the question, and I 
think we have covered this before, but you personally have 
never seen a vote closed without a tally sheet, is that right? 
Your answer was, ``I believe that is accurate to say, I have 
never been assisting a Chair when a vote was called without 
having a slip in hand, I believe that to be the case.''
    On page 49 you answered another similar question by saying, 
``I would verify that that is the first time, referring to 
August 2nd, that that is the first time I have seen the Chair 
not wait for the formality of a slip.'' And but to your point 
of your testimony today, you pointed out that later in your 
testimony you were asked, ``and you haven't seen any other vote 
called without a tally slip, right?'' Your answer, ``yeah, I 
said that and then I had this and I don't know if I can say 
that, there may have been one, there may have been one other, 
and nothing happened, I mean there was no controversy 
surrounding it, there was no change.''
    Is that the element of your testimony you were referring to 
in my questions earlier?
    Mr. Lauer. Yes.
    Mr. Pence. I think you used the phrase that you had a vague 
recollection that it may have occurred. Your testimony here 
does use the word ``may.'' Since both Mr. Sullivan and his 
predecessor have testified that there were no instance in many 
decades where a vote was closed without the production of a 
tally slip, do you have any more specific recollection of that 
instance that may have occurred?
    Mr. Lauer. I am afraid I don't. Obviously, we don't, each 
of us in the office does not see every vote through to 
conclusion. It is often one, as few as one member of the 
office.
    Mr. Pence. Since Mr. Sullivan has testified that a tally 
slip is, I think his words were the most important quality 
control measure in the conduct of a vote, did you, do you 
recall reporting the incident of a vote closing without a tally 
slip to Mr. Sullivan or whoever might have been your superior 
at that time?
    Mr. Lauer. I don't think so because he would have 
remembered.
    Mr. Pence. I am sorry.
    Mr. Lauer. I said I don't think so because he would have 
remembered if I told him. So I think I did not tell anybody.
    Mr. Pence. But again I want to, this is, you know whether 
it happened once in the last 60 years or once and one maybe in 
the last 60 years, you can't offer this Committee any specific 
testimony about when that may have occurred, what the vote was, 
that we could look into it further?
    Mr. Lauer. I am sorry, I can't document that it happened. I 
just had a brief flash that it may have occurred in a case 
where the slip did not make it to the Chair, and the Chair 
perhaps impatiently just announced the outcome.
    Mr. Pence. In your recollection, was that an instance where 
a slip was never produced or does part of this vague memory 
involve a slip simply didn't reach the Chair before they called 
the vote?
    Mr. Lauer. Right. Definitely the slip did not make it to 
the Chair. I am not sure whether the Clerk----
    Mr. Pence. Before the vote?
    Mr. Lauer. Before the announcement, that's correct.
    Mr. Pence. Since the testimony had really uncontroverted 
facts of this case here that the tally slip was never produced 
in connection with Roll Call 814, do you have any recollection 
of a vote being closed where a tally slip was never created at 
any point?
    Mr. Lauer. Just this one instance where I am----
    Mr. Pence. But your memory there was simply the tally slip 
did not precede the calling of the vote, but you are not really 
sure whether or not there was never one created? Do you 
understand what I am getting at? I am really not trying to pile 
on here. I am just trying to bear down on what your 
recollection might be, vague as it is.
    Mr. Lauer. Yes, it is just that one instance that, you 
know, I think happened, and I can't reproduce any more of it.
    Mr. Pence. Thank you. Helpful clarification.
    Mr. LaTourette.
    Mr. LaTourette. Thank you very much. Mr. Lauer, I just 
wanted to do one housekeeping matter. The Majority Leader when 
we interviewed him indicated that part of what got his blood 
pressure up is that he perceived that when Mr. McNulty called 
the vote the first time at 214-214 you stepped in and stopped 
Mr. McNulty. And he has been forthright today in indicating 
that was his perception and is willing to accept that that is 
not right if that didn't happen. And the question to you, just 
so the record is clear, when Mr. McNulty attempted to call the 
vote the first time did you stop him or try to stop him?
    Mr. Lauer. I believe I failed to do that.
    Mr. LaTourette. I am asking, but failed, did you try to and 
he didn't listen to you, or you just didn't do anything?
    Mr. Lauer. I did not do anything.
    Mr. LaTourette. Okay. That is what I am getting at. Then 
you just recently were re-interviewed by the staff and on page 
13 of your second observation you were asked a question by the 
very gifted counsel for the Majority, Mr. Spulak. And the 
question is, is there anything in and of itself wrong about 
closing a vote at an opportunistic moment; that is, when a 
Majority has prevailed? Your answer is, I would say yes. He 
then says that it is wrong to close a vote at an opportunistic 
moment? Your answer is, well, it is wrong to try and preclude 
input on an opportunistic basis. Question, in your opinion is 
that what happened on 814? Answer, well, I don't want to speak 
for motive but that is certainly possible. Well, you mentioned 
you didn't want to speculate that the tie vote was the result 
the Chair wanted. Is there any doubt in your mind that the tie 
vote was the result that Mr. Hoyer wanted? And you answered no. 
Do you remember giving that testimony just a couple of days 
ago?
    Mr. Lauer. Yes.
    Mr. LaTourette. Mr. Sullivan, do you agree with Mr. Lauer's 
observations that I just read?
    Mr. Sullivan. Yes.
    Mr. LaTourette. You agree with him? Okay. And then Mr. 
Lauer, on page 19 of your second set of observations, I will 
get there real fast, again, there was some discussion about the 
fact whether or not we have talked about a tally sheet. And Mr. 
Sullivan has testified to us that what he wrote out for Mr. 
McNulty was his functional equivalent, he was trying to create 
a functional equivalent of a tally sheet, and you were talked 
to about that. And I understood your testimony to be that that 
could not be a valid tally sheet either. But because by the 
time Mr. Sullivan was making those notes to be read by the 
Speaker pro tem you became aware that Mr. Boehner had submitted 
a well card and that that well card would not be reflected in 
the statement that Mr. Sullivan was reading, was preparing for 
the Speaker to read. And so in fact if we were to really have a 
vote that everybody could stand behind based upon either the 46 
voting stations and the well cards that were entered that 
night, this vote, Roll Call 814, would be 211 to 217, is that 
right?
    Mr. Lauer. Yes.
    Mr. LaTourette. Mr. Spitzer, I just want to say hello to 
you because I read your statement and I feel very bad for you. 
And just so that there is human interest stories in everything, 
if you read Mr. Spitzer's interview, he was getting married 2 
days after August 2nd, as I understood it, made the misfortune 
of coming onto the floor to say good-bye to people and as a 
result got stuck in this Donnybrook.
    But the question I did have is that you prepared a series 
of notes. You were seated, we will put the picture back up, but 
you were seated at what I call the Parliamentarian's desk. And 
so you were seated at that empty chair basically, either you 
took the chair of the woman who is there or you were seated, is 
that right?
    Mr. Spitzer. That's correct.
    Mr. LaTourette. And you made some notes because Mr. Lauer 
asked you to make some notes so that everybody's memory was 
fresh. And Mr. Lauer added to those notes and we have blown up 
those notes. And I just want to talk about number 6, number 5 
and 6 of the notes that you have prepared on that evening. And, 
one, do you remember preparing these notes?
    Mr. Spitzer. When were they prepared? Shortly after.
    Mr. LaTourette. Do you remember doing it?
    Mr. Spitzer. Yes.
    Mr. LaTourette. And does that look like a blown-up version?
    Mr. Spitzer. Can I go over?
    Mr. LaTourette. Yeah, sure. It could be a forgery.
    Mr. Spitzer. Yes, it is.
    Mr. LaTourette. And just my last question, on number 5 and 
number 6. Number 5 says the vote changes after cards are 
processed and new Members. Number 6 says, the vote again 
reaches 214-214, Hoyer tells the Chair to call it and the Chair 
calls it without any paper and without the computer refreshing. 
Are those the notes you made and is that consistent with your 
observations on the night of August the 2nd?
    Mr. Spitzer. Yes.
    Mr. LaTourette. Thank you so much. Thank you, Mr. Chair.
    The Chairman. I would make a unanimous consent request that 
since the Minority exceeded its time by some 3 minutes, that I 
would extend to the Majority 3 minutes. I would simply have one 
or two questions to ask of Mr. Sullivan, then I will yield the 
balance of the time to Mr. Davis.
    There has been a lot of talk about pressure. And I think it 
is difficult to define it. In many respects it is in the eye of 
the beholder or the eye of the recipient if you will. For some 
they wouldn't think of, they wouldn't perceive--people would 
perceive pressure in a different way. I just thought it 
interesting as I read the transcript of your interview last 
night, that on page 11 you made this statement, John. He, 
referring to McNulty, was having a lot of advice on both sides. 
He was hearing people hold the sentiment of Mr. Hoyer that 
wished to have the vote closed. Your words are, close the vote, 
close the vote. And he was hearing arguments on the other side 
that the vote was being held open to change the result.
    Is that your memory of what was occurring around the time 
that Mr. McNulty was in the throes of calling these votes?
    Mr. Sullivan. That and more. I mean there were people who 
just wanted to go home. And there were people who were still 
angry that Mr. McNulty would not entertain a unanimous consent 
request to make the first vote in the series 5 minutes. It was 
just an angry late night situation. And so there was--it was 
probably as loud as the Chamber gets.
    The Chairman. In your experience, have you heard the 
Chamber louder on occasion?
    Mr. Sullivan. An ovation during a State of the Union 
Address.
    The Chairman. Well, this certainly didn't arise to that 
level. But I think it is fair to say, because we have all 
witnessed the video, that it was very loud, that there was a 
lot of yelling going on, and it wasn't simply the Majority 
Leader, it was people, individuals, Members on both sides, who 
for a variety of reasons they were tired, they wanted to go 
home, and others, as you indicated in your testimony, were 
arguing that the vote was being held open to change the result, 
as well as those who contemporaneously wanted to close the 
vote, close the vote because they wanted to either prevail or 
they wanted to just go home. Am I representing your memory 
accurately?
    Mr. Sullivan. Yes.
    The Chairman. Thank you, John. With that I will yield to 
Mr. Davis.
    Mr. Davis. Just two points, Mr. Sullivan. Mr. Hoyer said 
that night that we control, not the Parliamentarians. Do you 
take issue with that statement in any way?
    Mr. Sullivan. No.
    Mr. Davis. And one thing that continues to jump out at me, 
it is the last observation I will leave us with today, for all 
of the talk about the settled necessity of having a tally 
sheet, for all the talk about the well-established custom of 
having a tally sheet, when Mr. McNulty attempts to call the 
vote the first time at 214-214 but doesn't say the magic words, 
he didn't have a tally sheet then either, correct?
    Mr. Sullivan. Right.
    Mr. Davis. Mr. Lauer, did you walk up to Mr. McNulty at 
that point and say you need a tally sheet before you call a 
vote?
    Mr. Lauer. No.
    Mr. Davis. Mr. Sullivan, did you walk up to Mr. McNulty at 
that point and say remember, you have got to have a tally sheet 
before you call a vote?
    Mr. Sullivan. No.
    Mr. Davis. No further questions.
    The Chairman. I thank the gentlemen. I thank our witnesses 
again. Your service is highly regarded and you have made a 
significant contribution to the Committee, and we all thank you 
for your presence here today and the service that you give to 
this institution. And with that we will stand in recess.
    Mr. LaTourette. Well, could I--I don't need the witnesses, 
but I just have a quickie to see. I would ask unanimous consent 
that the exhibits that we have up here on poster size board, 
that the staff on the Minority side be permitted to reduce them 
to 8\1/2\ by 11 sheets, and that they be submitted and included 
in the record of this proceeding.
    The Chairman. Without objection, so ordered.
    [The information may be found in the Appendix:]
    The Chairman. And gentlemen, you are excused. And we will 
reconvene here tomorrow at 9:30 a.m.
    Mr. Pence. Thank you, Mr. Chairman.
    The Chairman. And I thank my friend the ranking member.
    [Whereupon, at 5:25 p.m., the Committee was adjourned.]
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