[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 2. Enrolling Members; Administering the Oath]
[§ 2. Status of Members- and Delegates-elect]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 87-95]
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 2. Status of Members- and Delegates-elect
The issue has often arisen, both in Congress and in the courts,
whether the scope of privileges and prerogatives enjoyed by Members of
Congress fully extends to those persons elected to Congress but not yet
sworn.(11)
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11. In early times, Thomas Jefferson considered the status of Members-
elect and concluded that a Member elected ``is to every extent
a Member except that he cannot vote until he is sworn''
(Jefferson's Manual, House Rules and Manual Sec. 300 [1973]),
and as recently as 1933 Speaker Henry T. Rainey (Ill.) opined
that Members-elect do not enjoy all the rights and privileges
of Members until sworn (see Sec. 2.1, infra). For a lengthy and
general discussion whether a Member-elect is as much an officer
of the government before being sworn as after, see 1 Hinds'
Precedents Sec. 185.
Although the Supreme Court has not specifically ruled on
the status of Members-elect, various lower courts have
considered the question (see, e.g., U.S. v Dietrich, 126 F 676
[C.C. Neb. 1904]). Several quasi-judicial opinions on the
subject may be found in the Opinions of the Attorney General
(see 14 Op. Att'y Gen. 133 [1872]; 14 Op. Att'y Gen. 406
[1874]; 16 Op. Att'y Gen. 271 [1879]).
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Some of the statutory and constitutional provisions relating to the
incidents of House membership, primarily those of qualifications and
disqualifications, have produced lengthy House debate on whether they
apply only to sworn Members or also to Members-elect before the
assembly of Congress or before the administration of the
oath.(12) However, most such provisions distinguish between
Members-elect and Members either explicitly or by
implication.(13) This chapter will not attempt to discuss
all, or even most, of the rights, privileges, immunities, and
qualifications of membership in the House of
Representatives.(14)
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Only those aspects of membership which enable Representatives-elect to
function in an official capacity after their election but before they
have been sworn in will be discussed here.
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12. The Senate has determined that Senators-elect must be at the time
of election residents of the representative state but need not
meet the age and citizen requirements until appearing to be
sworn. See S. Rept. No. 904, 74th Cong. 1st Sess. reprinted at
79 Cong. Rec. 9651-53 [1935]. For a full discussion, see Ch. 7,
infra. As to the holding of incompatible offices, the House has
decided a Member-elect may retain such office until appearing
to be sworn (for a summary list of related precedents and
rulings, see House Rules and Manual Sec. Sec. 95-98 [comment to
U.S. Const. art. I, Sec. 6, clause 2] [1973]; for detailed
analysis, see Ch. 7, infra).
13. For example, 39 USC Sec. 3210 (franking privilege) and 2 USC
Sec. 34 (compensation) specifically refer to Representatives-
elect. Although no constitutional provision uses the term
``Member-elect'' or ``Representative-elect'', the Constitution
impliedly empowers Members-elect to vote for a Speaker (under
art. I, Sec. 2, clause 5, the House chooses a Speaker before
the House is sworn), and to demand the yeas and nays (art. I,
Sec. 5, clause 3), and uses the term ``Representatives'' when
referring to Members not yet sworn (see art. I, Sec. 6, clause
2 and art. VI, clause 3). Some sections of the United States
Code similarly use the term ``Members'' when obviously
referring to Member-elect. See 2 USC Sec. 25 (administration to
Speaker of oath by ``Member''); 2 USC Sec. 27 (changing the
place of meeting before Congress convenes, to protect the
health of ``Members''). See also 2 USC Sec. 21 (administration
of oath to ``Senators'').
14. For Members immunities, qualifications and disqualifications, see
Ch. 7, infra. For personal privileges of House membership, see
Ch. 11, infra.
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The status of a Member-elect may be described first by the right to
participate in proceedings after the convening of Congress but before
the taking of the oath, and second by the constitutional and statutory
privileges which become effective by force of election.
Three of the powers authorizing participation in proceedings arise
from constitutional provisions: being called for the
quorum,(15) voting for Speaker,(16~) and
demanding the yeas and nays.(17~) All of those steps may
occur in the House before Members are sworn, and before their rights to
seats are determined.(18) As to the initial quorum call at
the opening of a Congress, the right of a Member-elect to be included
on the Clerk's roll and to be called for the quorum is qualified by the
statute which directs the preparing of the Clerk's roll. Only if the
individual Member's-elect certificate of election, in due form, is on
file with the Clerk is his right to be included on the Clerk's roll
absolute.(19) And only those Members whose names appear on
the Clerk's roll are entitled to vote for a new Speaker at the
beginning of a Congress or to otherwise participate in organizational
proceedings prior to the administration of the oath.(20)
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15. U.S. Const. art. I, Sec. 5, clause 1.
16. U.S. Const. art. I, Sec. 2, clause 5
17. U.S. Const. art. I, Sec. 5, clause 3
18. For quorum calls and demands for the yeas and nays during
organization see Ch. 1, Sec. 9, supra. For the procedure of
electing a Speaker, see Ch. 1, Sec. 6, supra.
19. See Page v U.S., 127 U.S. 67 (1888), for the proposition that it is
a mandatory step for the Clerk to place on the Clerk's roll the
name of a duly certified Member-elect, pursuant to 2 USC
Sec. 26. For the degree of discretion exercised by the Clerk in
enrolling Members-elect, see Sec. 4, infra.
20. While the Clerk is presiding, he refuses to recognize claimants to
seats whose names do not appear on the Clerk's roll. 1 Hinds'
Precedents Sec. 86. When the time comes for oath
administration, a claimant not on the roll may be admitted to
membership (see Sec. 5, infra) and may be permitted to
participate in debate on his right to a seat (see 1 Hinds'
Precedents 657-672 and Rule XXXII, clause 1, House Rules and
Manual Sec. 919 [1973]).
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The House, in its initial stages, could not complete organizational
business if unsworn Members were not entitled to debate propositions,
to propose motions, to
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offer resolutions, and to raise points of order. Therefore, all
Members-elect whose regular credentials are on file with the House may
exercise such rights(1) and may also be named to, and serve
on, House committees.(2~) In addition, a Member-elect may
challenge the right of another Member-elect to be sworn,(3)
and a Member-elect may be permitted to debate a proposition related to
his own right to a seat.(4) (Contestants to the seats of
Members-elect may also be granted the privilege of the floor and the
right of debate by the House membership.)(5)
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1. See, generally, Ch. 1, supra, for the rules of proceeding during
organization. Although there are no explict rulings on the
rights of Member-elect to generally participate in proceedings,
those rights are unquestioned, since the body of those persons
assembled is a ``House'' before organization is completed (see
1 Hinds' Precedents Sec. 82). Members-elect have by rule (Rule
XXXII clause 1, House Rules and Manual Sec. 919 [1973], not
technically in effect before the adoption of rules) the
privilege of admission to the floor.
2. A Member-elect may be named to a committee before he is sworn (see
4 Hinds' Precedents Sec. Sec. 4477, 4483, 4484) and the fact
that his seat is being contested is not necessarily taken into
account in assigning him to committees (8 Cannon's Precedents
Sec. 2194). Rank on committees is fixed by the order in which
Members were elected and a Member-elect may be restored to
original rank after resolution of a contest for his seat (see 8
Cannon's Precedents Sec. 2196). Jefferson's Manual states that
``before a return be made a Member elected may be named of a
committee, and is to every extent a Member except that he
cannot vote until he is sworn.'' House Rules and Manual
Sec. 300 (1973).
3. See Sec. 6.1, infra.
4. See Sec. 2.5, infra.
5. Contestants in election cases have the privilege of the floor under
Rule XXXII clause 1, House Rules and Manual Sec. 919 (1973).
For the right of contestants to participate in proceedings, see
Ch. 9, infra.
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Members-elect are entitled to those privileges and immunities which
stem from article I, section 6, of the Constitution and from various
statutory provisions.(6) Clause 1 of that section authorizes
Members to receive compensation for their services; although the
provision does not specifically include Members-elect, Congress has
provided by statute for the compensation of Representatives and
Delegates-elect, with credentials in due form, from the beginning of
the term of Congress.(7)
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Additionally, Representatives, Delegates, and Resident Commissioners
elected to fill unexpired terms are salaried from the date of their
election.(8) A former provision, forestalling compensation
for a Member-elect whose seat was to be contested, has been
repealed.(9)
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6. For a detailed analysis of immunities, qualifications, and
disqualifications of Members, and for the time at which they
become effective, see Ch. 7, infra.
7. 2 USC Sec. 34, providing for compensation from the beginning of the
term to the beginning of the session; 2 USC Sec. 35 operates
after the taking of the oath. If a Member-elect takes the oath
and his seat after the commencement of a Congress, he
nevertheless receives his salary retroactive to the beginning
of the term (see 2 Hinds' Precedents Sec. 1206), but
disbursement by the Sergeant at Arms on a monthly basis is not
made until the Member takes the oath.
The possibility of double compensation may arise, if a
Memberelect retains an incompatible office beyond the beginning
of the term of Congress and before he appears to be sworn. On a
recent occasion, a Senator-elect who retained an incompatible
office six days after the convening of Congress waived his
congressional salary for that period (see Sec. 2.6, infra).
Although an early Attorney General's Opinion (14 Op. Att'y Gen.
406 [1874]) proposed that a Member-elect was entitled to
receive pay for both an incompatible office and his
congressional seat until appearing to be sworn, a House report
cited at 1 Hinds' Precedents Sec. 184 stated (dicta) that the
precedents of the House neither allowed or disallowed such
double compensation.
8. 2 USC Sec. 37. This provision differs from the section relating to
Senators who are elected to fill unexpired terms; they receive
compensation only from the date they ``qualify.'' 2 USC
Sec. 36. The Senate has determined that a Seriator-elect to
fill a vacancy does not ``qualify'' for compensation until he
has taken the oath See Senate resolution of Apr. 29, 1957, 103
Cong. Rec. 6060, 85th Cong. 1st Sess.
9. The provision, contained in the Act of Mar. 3, 1873, Ch. 226,
Sec. 1, 17 Stat. 488, and repealed by the Act of Mar. 3, 1875,
Ch. 130, Sec. 1, 18 Stat 389, empowered the Clerk to omit from
the roll, for purposes of compensation, the name of a Member-
elect, until the determination of his right to the seat, upon
notice that his seat would be contested. Currently, the
returned Member-elect is entitled to the compensation, and if a
contestant is subsequently chosen to fill the seat, the
contestant is entitled to congressional salary only from the
time the compensation of his ``predecessor'' has ceased. Page v
U.S., 127 U.S. 67 (1888).
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The other privileges allowed Members of Congress by clause 1 (and
which are discussed in detail elsewhere in this work)(10)
are the privilege from arrest, applicable to Members-elect traveling to
Washington for the assembly of Congress,(11) and the
immunity
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against being questioned for any speech or debate in the House, which
would seem to apply to Members-elect as well as to qualified
Members.(12)
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10. See Ch. 7, infra, for immunities, and Ch. 11, infra, for the
personal privilege of a Member.
11. Privilege from arrest ``takes force by place of the election.''
Jefferson's Manual, House Rules and Manual Sec. 300 (1973).
See also 1 Hinds' Precedents Sec. 499 (on a related subject),
stating that the privilege is ``granted by the Constitution to
Representatives before a meeting of the House,'' in accordance
with the common law of Parliament. For an early lower court
decision holding that the privilege from arrest extended to the
return to his home state of a challenged Member-elect, delayed
by want of funds, against whom a contest was decided by the
House, see Dunton and Co. v Halstead, 2 Clark (Pa. Law Journal
Reports) 236 (D.C. Phil. 1840). In that case, however, the
claimant to the privilege had journeyed to Washington with the
Governor's official commission to represent Pennsylvania. Since
the House requires regular credentials as proof of election (2
USC Sec. 26), presumably only a Member-elect who is entitled to
have his name placed on the Clerk's roll would come under the
penumbra of the privilege.
12. As the House is technically in session during organization and
before swearing-in ceremonies (1 Hinds' Precedents
Sec. Sec. 82, 87, 88), and as enrolled Members-elect engage in
debate before taking the oath (i.e., debate before Speaker's
election, Ch. 1, supra, and debate on the taking of the oath
itself, Sec. 6, infra), it may be assumed that Members-elect
enjoy the privilege (see 2 Hinds' Precedents Sec. 1655 and 3
Hinds' Precedents Sec. 2675 for the proposition that the
immunity applies to ``things done in a session of the House by
one of its Members in relation to the business before it'').
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There are, in addition, a number of miscellaneous privileges
necessary to the official functioning of Members and Members-elect.
Members-elect as well as Members are expected to comply with House
traditions as to decorum, and conduct.(13) The franking
privilege is specifically extended to Members-elect, although the scope
of the privilege is more restricted for Members-elect than for
qualified Members.(14) In addition, Members-elect are
entitled by statute and by practice to draw rooms in the House office
buildings before they are sworn.(15)
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13. For example, by custom of the House, Members-elect may not approach
the desk during the call of the roll for the election of a
Speaker. 1 Hinds' Precedents Sec. 623.
14. Members-elect have the right to send under their frank
correspondence on official business, under 32 USC Sec. 3210.
They do not have the franking privilege for public documents
(32 USC Sec. 3211), for the Congressional Record (32 USC
Sec. 3212), or for agriculture reports (32 USC Sec. 3213).
15. See 40 USC Sec. Sec. 177-184 and House Rules and Manual Sec. 985
(1973).
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The rights and privileges of Delegates-elect and Resident
Commissioners-elect are similar to those for Members-elect. By stat
[[Page 93]]
ute or by House practice, many of the rights, privileges, and powers of
Members-elect are extended to those officials.(16) The
important distinction is that Delegates and Resident Commissioners,
although they are sworn,(17) are not included on the Clerk's
roll to establish a quorum(18) and are not entitled to vote
either for the Speaker or on other propositions in the House.
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16. For example, Pub. L. 91-405, Sec. 294(a), Sept. 22, 1970, extended
to the D.C. Delegate, among other provisions, the laws as to
taking the oath and receiving compensation. For the rights and
privileges of Delegates and Resident Commissioners in general,
see Rule XII, House Rules and Manual Sec. 740, and comment
thereto, 741 (1973).
17. See Sec. 5, infra.
18. See Sec. 4, infra. -------------------
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Rights and Privileges Generally
Sec. 2.1 Members-elect are required by law to take an oath of office
and until they so subscribe do not enjoy all the rights and
prerogatives of a Member of Congress.
On Mar. 13, 1933,(19) Speaker Henry T. Rainey, of
Illinois, responded as follows to a parliamentary inquiry by Mr.
Bertrand H. Snell, of New York:
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19. 77 Cong. Rec. 283, 73d Cong. 1st Sess.
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Mr. Snell: In what way does it change the status of a Member-
elect to have the oath administered to him?
The Speaker: He then becomes a full-fledged Member of the House
of Representatives, without question.
Mr. Snell: Is he not enjoying all the rights and privileges
even at the present time?
The Speaker: The Chair thinks he enjoys many of the privileges,
but in order to become a Member he must take the oath prescribed by
law.
Mr. Snell: It bestows on him actual membership.
The Speaker: He then has actually become Member
Right to Vote
Sec. 2.2 Members-elect not responding to the roll call on opening day
and not appearing to take the oath en masse with the membership of
the House are not included on further roll calls or entitled to
vote until they have been sworn.
Those Members-elect to the 91st Congress who did not appear on the
opening day, Jan. 3, 1969,(20) for the call of the Clerk's
roll to establish a quorum and for the swearing in of Members-elect en
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masse were not placed on the regular roll call of the House for yea and
nay votes until they appeared to be individually sworn by the Speaker.
On Jan. 6, Mr. Charles A. Mosher, of Ohio, was sworn, on Jan. 7, Mr.
Robert Taft, of Ohio, on Jan. 8, Mr. Donald E. Lukens, of Ohio, on Jan.
9, Mr. Ogden R. Reid, of New York, and on Jan. 28, Mr. Richard T.
Hanna, of California.
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20. 115 Cong. Rec. 12-15, 91st Cong. 1st Sess.
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Sec. 2.3 Members-elect to fill unexpired terms during the term of a
Congress are not entitled to be counted for a quorum or to vote for
a new Speaker at the opening of a new session.(1)
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1. This practice, which has occurred only in the instant case, differs
from the practice at the opening of a new Congress, where all
Members-elect with regular credentials are called to establish
a quorum and to vote for a Speaker (see Sec. 4, infra).
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On Jan. 10, 1962,(2) the opening day of the second
session, Mr. Henry B. Gonzalez, of Texas, Mr. Joe Waggonner, Jr., of
Louisiana, and Mr. Lucien N. Nedzi, of Michigan, all Representatives-
elect to fill vacancies, with credentials on file with the Clerk, were
not sworn in until after the election of a new Speaker (Speaker Sam
Rayburn, of Texas, had died during the sine die adjournment). Their
names were not placed on the roll to establish a quorum or to elect a
Speaker.
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2. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
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Right to Demand Yeas and Nays
Sec. 2.4 The yeas and nays may be demanded by one-fifth of the Members
before the organization of the House.
On Jan. 4, 1965,(3) Speaker John W. McCormack, of
Massachusetts, ruled, in answer to a parliamentary inquiry, that prior
to rules adoption and prior to the organization of the House, one-fifth
of the Members present could demand the yeas and nays.(4)
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3. 111 Cong. Rec. 19, 20, 89th Cong. 1st Sess.
4. For a ruling by the Clerk, presiding before the election of a
Speaker, that the yeas and nays could be demanded by Members-
elect, see 1 Hinds' Precedents Sec. 91.
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Right to Debate of Challengee
Sec. 2.5 A Member-elect, asked to stand aside when the oath is
administered to other Members-elect may, by unanimous consent, be
permitted to participate in debate on a resolution relating to his
right to be sworn.
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On Jan. 10, 1967,(5) during debate on a resolution
relating to the right to be sworn of Mr. Adam Clayton Powell, Jr., of
New York, who had been asked to stand aside when the oath was
administered to other Members, unanimous consent was asked by Mr. Carl
Albert, of Oklahoma, that Mr. Powell be permitted to participate in the
debate. The request was granted and the challenged Member-elect
delivered remarks in debate.
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5. 113 Cong. Rec. 15, 90th Cong. 1st Sess.
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Right to Compensation
Sec. 2.6 A Senator-elect who postponed the choice between his
congressional seat and an incompatible office six days beyond the
convening of Congress waived his congressional pay for that period.
Mr. Jacob Javits, Senator-elect from New York, did not take the
oath of office in the 85th Congress until Jan. 9, 1957, although the
Senate had convened on Jan.(6) Mr. Javits appeared late
because he did not resign from his position as Attorney General of New
York until the day he appeared to take the oath.(7) He
waived his congressional salary for the period during which he delayed
taking the oath.(8)
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6. 103 Cong. Rec. 340, 85th Cong. 1st Sess.
7. Biographical Directory of the American Congress 1774-1971, S. Doc.
No. 92-8, pp. 1183-84, 92d Cong. 1st Sess. (1971).
8. Senate Manual Sec. 863 (1971) (statistical section). An early
opinion of the Attorney General has proposed that until taking
the oath a Representative-elect could receive salary for both
his congressional position and his other office. 14 Op. Att'y
Gen. 408 (1874), cited at 2 USCA Sec. 25.
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