[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 1.  Assembly of Congress]
[B. Procedure]
[Â§ 12. Action on Bills]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 72-80]
 
                               CHAPTER 1
 
                          Assembly of Congress
 
                              B. PROCEDURE
 
Sec. 12. Action on Bills and Resolutions During Organization

    As a general principle, resolutions may be offered and acted upon 
in both Houses of Congress during the entire period of organization, 
from the first call to order to the President's message on the state of 
the Union. In addition, a 
                         
[[Page 73]]

major bill may on a rare occasion be considered and passed in both Houses 
before organization is completed by the adoption of rules,(17) 
although a bill will not be considered in the House before the 
administration of the oath to Members-elect.(18) Major bills are 
not usually considered by the House as a body before rules have been 
adopted and before the President has delivered his message to 
Congress.(19) In prevailing practice, numerous ``opening day 
bills'' are introduced by House Members at the beginning of a new 
Congress, although they may not actually be referred to committee until 
a later time.(20) However, in the Senate the introduction of 
bills at the opening of a new Congress, or even at the opening of a new 
session, is not generally permitted until after the Presidential 
message.(1)
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17. See Sec. 12.8, infra.
18. 2 USC Sec. 25 requires that the oath be administered to the 
        Speaker, to Members, and to the Clerk before the House enters 
        into general business. If the right of individual Members to be 
        sworn is challenged, however, the House may proceed to business 
        before resolving the challenges (see Ch. 2, infra). On 
        occasion, the House has transacted business, including the 
        adoption of rules, before the election of a Clerk (see 1 Hinds' 
        Precedents Sec. Sec. 93, 198-203, 240, 242, 244, 245).
19. See Sec. 11, supra, for the time of taking up of legislative 
        business.
20. See, e.g., Sec. Sec. 12.1, 12.2, infra.
 1. See Sec. 12.10, infra (first session); Sec. 11.4, supra (subsequent 
        session).
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    In order to complete organizational business, it is of course 
necessary to offer various House resolutions before the adoption of 
rules; many of those resolutions, which are customarily drafted to 
complete organizational business, are discussed in the preceding 
sections of this chapter, and will not be discussed here.(2) 
This section will deal with the general principles that govern the 
consideration and passage of bills and resolutions offered before the 
adoption of rules.
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 2. Examples of such standardized resolutions, whose adoption by the 
        House is usually perfunctory, are the resolution to proceed to 
        the election of a Speaker (see Sec. 6, supra), the resolution 
        to elect officers of the House (see Sec. 7, supra), and the 
        resolutions to notify the Senate and the President of the 
        assembly of the House (see Sec. 7, supra).
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    Primarily, any resolution affecting the organization of the House 
is privileged and takes precedence over other matters before the 
adoption of standing rules.(3) Under general parliamentary 
law, one hour of debate is in order on a resolution, the time to be con
                         
[[Page 74]]

trolled by the proponent thereof;(4) a resolution offered 
before rules are adopted may be withdrawn at any time before action is 
taken thereon, without obtaining the consent of the 
House.(5) A pending resolution is not subject to amendment 
unless the Member in control yields for that purpose,(6) or 
unless the previous question is moved and rejected.(7) Any 
amendment offered to a resolution during organization is subject to the 
requirement that it must be germane.(8) For example, when an 
amendment proposing punishment was offered to a resolution authorizing 
the Speaker to administer the oath of office to a Member-elect, the 
amendment was ruled not germane, prior to the adoption of standing 
rules.(9)
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 3. See 6 Cannon's Precedents Sec. 3.
 4. See 5 Hinds' Precedents Sec. 6759; Sec. 12.3, infra.
 5. See Sec. 12.4, infra.
 6. See Sec. 12.5, infra.
 7. See Sec. 12.6, infra. For the treatment of the motion to amend and 
        the motion for the previous question, prior to the adoption of 
        rules. see Sec. Sec. 8, 9, supra.
 8. See 5 Hinds' Precedents Sec. 6760; Sec. 12.6, infra (resolution 
        open to germane amendment when previous question rejected).
 9. See Sec. 12.7, infra.
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    When bills and resolutions are offered on the floor before the 
House is organized, they cannot be offered by committee, as committees 
have not yet been formally constituted. Most of the organizational 
resolutions are offered by ranking party leaders.(10) The 
House does, however, maintain informal committee jurisdiction over some 
of the opening functions which require resolutions, such as the 
adoption of rules and the fixing of the hour of daily 
meeting.(11) (A bill or resolution on the floor during 
organization may be recommitted to a special committee to be appointed 
by the Speaker.)(12)
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10. See, e.g., opening day of the 92d Congress, 117 Cong. Rec 13-16, 
        Jan. 21, 1971. Olin E. Teague, Chairman, Democratic Caucus, 
        offered the resolution to elect officers; Wilbur Mills, former 
        Chairman, Committee on Ways and Means of the 92d Congress, 
        offered the resolution to notify the Senate of the organization 
        of the House; Hale Boggs, Majority Leader, offered resolutions 
        to notify the President of the assembly of Congress and to set 
        a joint session for the Presidential message; George Mahon, 
        former Chairman, Committee on Appropriations of the 92d 
        Congress, offered a resolution to notify the President of the 
        election of the Speaker and of the Clerk.
11. The resolution to adopt rules and the resolution to fix the hour of 
        daily meeting were offered at the beginning of the 92d Congress 
        by William Colmer, former Chairman of the Committee on Rules of 
        the 92d Congress. 117 Cong. Rec. 14, 15, Jan. 21, 1971.
12. For the motion to recommit and its effect before adoption of rules, 
        see Sec. 9, supra.
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[[Page 75]]

    As to consideration of bills and resolutions before the adoption of 
rules, the House proceeds not only under general parliamentary law but 
also under the precedents and the rules of prior Congresses. When the 
House considered an emergency bill at the beginning of the 73d 
Congress, the provision was considered, by unanimous consent, as if 
under a rule of the previous Congress restricting debate and 
amendments.(13) But a statute requiring that 
proposed resolutions and reports be made available to Members within a 
certain time before their consideration on the floor has no effect 
prior to the adoption of the rules. Such a statute has been determined 
an exercise of the rule making power of the preceding Congress and 
therefore not binding on the House before the adoption of current 
rules.(14)
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13. See Sec. 12.8, infra.
14. 117 Cong. Rec. 132, 92d Cong. 1st Sess., Jan. 22, 1971, cited at 
        Sec. 12.9, infra. The statutory provisions referred to above 
        were part of the Legislative Reorganization Act of 1970, Pub. 
        L. No. 91-510, 84 Stat. 1140 [Sec. Sec. 108(b)(4) and 107(b)]. 
        The ruling of the Chair (Speaker Carl Albert) was based in part 
        on the language of the statute itself, at Sec. 101, 
        characterizing its own provisions ``as an exercise of the rule-
        making power of the House, subject to and with full recognition 
        of the power of the House to enact or change any rule of the 
        House at any time in its exercise of its constitutional right 
        to determine the rules of its proceedings.''
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    As stated above, the Senate postpones action on bills at the 
beginning of a second or third session until after the Presidential 
message. The Senate has also refrained from legislative business during 
those protracted periods when the House was unable to elect a 
Speaker.(15) Although there is no occasion where the House 
has resumed business before the organization of the Senate at the 
beginning of a new Congress, the House has proceeded with general 
legislative business at the beginning of a second session before a 
quorum had appeared in the Senate.(16)
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15. See 1 Hinds' Precedents Sec. Sec. 122-25.
16. See 1 Hinds' Precedents Sec. 126.
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Introduction of ``Opening Day Bills''

Sec. 12.1 Where a large number of bills are introduced on the opening 
    day of the Congress, the Speaker may announce that those bills that 
    cannot be referred on that day may be included in the next day's 
    Record and printed with the date of the opening day.

[[Page 76]]

    On Jan. 3, 1957,(17) Speaker Sam Rayburn, of Texas, made 
the following announcement:
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17. 103 Cong. Rec. 50, 85th Cong. 1st Sess.
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        As Members are aware, they have the privilege today of 
    introducing bills. Heretofore on the opening day of a new Congress 
    several thousand bills have been introduced. It will be readily 
    apparent to all Members that it may be a physical impossibility for 
    the Speaker to examine each bill for reference today. The Chair 
    will do his best to refer as many bills as possible, but he will ask 
    the indulgence of Members if he is unable to refer all the bills 
    that may be introduced. Those bills which are not referred and do not 
    appear in the Record as of today will be included in the next day's 
    Record and printed with a date as of today.

Sec. 12.2 The Speaker stated that prior to the adoption of rules, bills 
    could not be introduced and immediately referred to committee, in 
    the absence of procedure to govern them.

    On Jan. 21, 1971,(18) Speaker Carl Albert, of Oklahoma, 
made a statement concerning the introduction and reference of bills 
during the organization of the House. He alluded to the practice of 
Members of introducing several thousand bills on the opening day of 
Congress and to the announcements of past Speakers in relation to the 
impossibility of referring them all to committee on opening day. He 
then stated:
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18. 117 Cong. Rec. 16, 93d Cong. 1st Sess.
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        Since the rules of the 93d Congress have not yet been adopted, 
    the right of Members to introduce bills, and the authority of the 
    Speaker to refer them, is technically delayed. The Chair will state 
    that bills dropped in the hopper will be held until the adoption of 
    the rules, at which time they will be referred as expeditiously as 
    possible to the appropriate committee. At that time, the bills 
    which are not referred and do not appear in the Record as of that 
    day will be included in the next day's Record and printed with a 
    date as of the time the rules were adopted.

Action on Resolutions Prior to Adoption of Rules

Sec. 12.3 A resolution offered in the House prior to the adoption of 
    the standing rules is debatable under the hour rule.

    On Jan. 3, 1969,(19) Speaker John W. McCormack, of 
Massachusetts, ruled, prior to the adoption of rules, that one hour of 
debate would be in order on a pending resolution, the time to be 
controlled by the proponent thereof.
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19. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
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Sec. 12.4 Prior to the adoption of the rules, a resolution may 
                             
[[Page 77]]

    be withdrawn at any time before action is taken thereon.

    On Jan. 21, 1971,(20) after immediate consideration was 
asked by Mr. William M. Colmer, of Mississippi, on a resolution, he 
stated that the wrong resolution had been submitted and requested 
unanimous consent to withdraw the resolution. Speaker Carl Al
bert, of Oklahoma, ruled, over objection, that Mr. Colmer had the right 
to withdraw the resolution without obtaining unanimous consent.
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20. 117 Cong. Rec. 13, 92d Cong. 1st Sess.
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Sec. 12.5 Prior to the adoption of the rules, a pending resolution is 
    not subject to amendment unless the Member in control yields for 
    that purpose, or unless the previous question is rejected.

    On Jan. 4, 1965,(1) Mr. James C. Cleveland, of New 
Hampshire, stated a parliamentary inquiry:
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 1. 111 Cong. Rec. 20, 89th Cong. 1st Sess.
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        Mr. Cleveland: If the resolution is adopted, will it be 
    impossible for me to offer my own resolution pertaining to the same 
    subject matter, either as an amendment or a substitute?
        The Speaker:(2) If the resolution is agreed to, it 
    will not be in order for the gentleman to offer a substitute 
    resolution or an amendment, particularly if the previous question 
    is ordered.
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 2. John W. McCormack (Mass.).
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        Mr. Cleveland: Is it now in order, Mr. Speaker?
        The Speaker: Not unless the gentleman from Oklahoma yields to 
    the gentleman for that purpose.(3)
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 3. The pending resolution was offered by Mr. Carl Albert (Okla.).
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Germaneness of Amendments Prior to Rules Adoption

Sec. 12.6 Ruling by the Speaker that prior to the adoption of the 
    rules, a pending resolution on which the motion for the previous 
    question is rejected is open to any germane amendment.

    On Jan. 10, 1967,(4) Speaker John W. McCormack, of 
Massachusetts, held that prior to the adoption of rules any germane 
amendment would be in order on a resolution for which the previous 
question was voted down.
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 4. 113 Cong. Rec. 31, 90th Cong. 1st Sess.
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Sec. 12.7 The Speaker held not germane, prior to the adoption of rules, 
    an amendment adding punishment to a resolution providing that the 
    Speaker administer the oath of office to a Member-elect.

    On Jan. 3, 1969,(5) following a point of order, Speaker 
                         
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 5. 115 Cong. Rec. 25, 91st Cong. 1st Sess.
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[[Page 78]]

John W. McCormack, of Massachusetts, held as follows on the germaneness 
of an amendment, prior to the adoption of the rules:

        The Chair will state . . . that while we are operating under 
    general parliamentary law . . . volume VIII, section 3384 of 
    Cannon's Precedents states: ``While the House is governed by 
    general parliamentary usage prior to the adoption of rules, the 
    Speakers have been inclined to give weight to the precedents of the 
    House in the interpretation of that usage.''
        The Chair anticipated that the question of germaneness would be 
    raised and has had the precedents of the House thoroughly 
    researched.
        The Chair might state there was no comparable case that the 
    Chair can ascertain as a result of research in the annals of the 
    House. However, it appears to the Chair that the punishment of Mr. 
    Powell(6) for acts committed in the 88th or 89th 
    Congresses, or declaring his seat vacant in the 91st Congress, is 
    not germane to the proposition that he be now sworn in.
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 6. Mr. Adam C. Powell (N.Y.).
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        The Chair sustains the point of order.

Consideration of Measures Before Adoption of Rules

Sec. 12.8 When the House considers a major bill before the adoption of 
    rules, the legislation is considered under general parliamentary 
    law, embracing not only the forms and precedents recognized over a 
    period of years but also the rules of prior Congresses, including 
    past rules restricting debate and amendments.

    On Mar. 9, 1933,(7) the opening day of the 73d Congress, 
the House considered a bank bill transmitted by President Franklin D. 
Roosevelt to the Majority Leader. Passage was moved on the bill before 
printed copies were available for Members, and the bill was considered 
under a unanimous-consent procedure restricting debate and amendments:
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 7. 77 Cong. Rec. 83, 73d Cong. 1st Sess.
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        Mr. Byrns:(8) Mr. Speaker, I ask unanimous consent 
    for the immediate consideration of H.R. 1491, and in its 
    consideration that there shall be 40 minutes of debate, one half of 
    such time to be controlled by the gentleman from Alabama [Mr. 
    Steagall] and the other half by the gentleman from Pennsylvania 
    [Mr. McFadden]; that at the conclusion of the debate the previous 
    question shall be considered as ordered on the bill to final 
    passage.
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 8. Mr. Joseph W. Byrns (Tenn.).
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    Before the request had been agreed to, Mr. William B. Bankhead, of 
Alabama, stated a parliamentary inquiry:

        As far as I am advised, the House has not yet adopted rules of 
    procedure for this Congress. As I understand it, 
                             
[[Page 79]]

    unless objection is raised, the ordinary proceedings governing the 
    House during the 72d Congress would prevail in the consideration of 
    this unanimous consent request?
        The Speaker:(9) The gentleman is correct. . . .
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 9. Henry T. Rainey (Ill.).
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        Mr. O'Connor:(10) Just to clear up the parliamentary 
    situation, as I understand the request of the gentleman from 
    Tennessee, it involves the consideration of this bill in the House 
    as though the rules of the 72d Congress
    had been adopted, and, as it were, under suspension of the rules; 
    and the bill will not be subject to amendment. Is this correct?
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10. Mr. John J. O'Connor (N.Y.).
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        Mr. Byrns: The bill will not be subject to amendment.

Sec. 12.9 Prior to the adoption of rules, the House operates under 
    general parliamentary law, and statutory enactments incorporated 
    into rules of prior Congresses as an exercise of the rule-making 
    power do not control proceedings of the next House until it adopts 
    rules incorporating those provisions. Accordingly, prior to the 
    adoption of rules, the requirement of the Legislative 
    Reorganization Act of 1970 that proposed resolutions must be 
    available to Members for three calendar days prior to 
    consideration(11) is not in effect.

    On Jan. 22, 1971,(12) Mr. Durwood G. Hall, of Missouri, 
made a point of order against a proposed resolution on the ground that 
consideration thereof would be ``against the law of the land'', in that 
the requirements of the Legislative Reorganization Act of 1970, 
Sec. Sec. 108(b) (4) and 107(b), as to the time of availability of 
printed reports and resolutions to Members, had not been complied with. 
Speaker Carl Albert, of Oklahoma, ruled as follows:
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11. Pub. L. No. 91-510, Sec. Sec. 108(b)(4) and 107(b), 84 Stat. 1140.
12. 117 Cong. Rec. 132, 92d Cong. 1st Sess.
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        The Chair would point out to the gentleman from Missouri [Mr. 
    Hall] that at the present time, as the gentleman from Missouri [Mr. 
    Richard W. Bolling] has just stated, the House is operating under 
    the general parliamentary law. No rules have yet been adopted. The 
    provisions of the Legislative Reorganization Act, while enacted 
    into law in the 91st Congress, cannot restrict the authority of 
    this present House, in this 92d Congress, to adopt its own rules.
        The Constitution is, of course, superior to any public statute 
    and the Constitution in article I, section 5, gives each House the 
    authority to determine the rules of its proceedings, and it has 
    been repeatedly held that the power of each new House to make its 
    own rules may not be impaired or controlled by the rules or actions 
    of a preceding House.
                         
[[Page 80]]

        These principles are, in fact, recognized and enunciated in 
    Public Law 91-510, the Legislative Reorganization Act. Section 101 
    of that act states in part that the rules changes recommended 
    therein are enacted ``as an exercise of the rule-making power of 
    the House, subject to and with full recognition of the power of the 
    House to enact or change any rule of the House at any time in its 
    exercise of its constitutional right to determine the rules of its 
    proceedings.''
        The Chair overrules the point of order.

Senate Practice as to Introduction of Bills During Organization

Sec. 12.10 At the beginning of a Congress the Senate does not 
    customarily permit the introduction of bills until after the 
    President has delivered his message on the state of the Union.

    On Jan. 5, 1955,(13) the opening day of the 84th 
Congress, Senator Lyndon B. Johnson, of Texas, made an announcement to 
the Senate:
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13. 101 Cong. Rec. 7, 84th Cong. 1st Sess.
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        As is customary, the Senate will transact no further business 
    in the way of the introduction of bills or other matters until 
    after the President has delivered his message on the state of the 
    Union.(14)
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14. For an explanation of the custom and its rationale, see Sec. 11.4, 
        supra.
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