[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 2.  Enrolling Members; Administering the Oath]
[Â§ 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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[[Page 88]]

    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)

[[Page 89]]

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

[[Page 90]]

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

[[Page 92]]

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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