[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 2. Enrolling Members; Administering the Oath]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 81-83]
CHAPTER 2
Enrolling Members; Administering the Oath
[[Page 81]]
Sec. 1. In General
Sec. 2. Status of Members- and Delegates-elect
Sec. 3. Presentation of Credentials
Sec. 4. The Clerk's Roll
Sec. 5. Administering the Oath
Sec. 6. Challenging the Right to be Sworn
INDEX TO PRECEDENTS
Administration of oath
absentees, Sec. Sec. 5.8-5.12
by deputies, Sec. Sec. 5.9, 5.12
challenge to, form and procedure, Sec. Sec. 6.1, 6.2
delayed Members-elect, after opening day, Sec. 5.14
delayed Members-elect, opening day, Sec. 15.13
Member-elect once excluded, Sec. Sec. 6.8, 6.9
Members-elect to fill unexpired terms, Sec. 3.7
privileged matter, Sec. Sec. 5.17, 5.19
record evidence of, Sec. Sec. 5.20-5.22
record evidence of, form, Sec. 5.21
related to right to vote, Sec. Sec. 2.2, 2.3
related to rights and privileges, Sec. 2.1
Resident Commissioner-elect filling vacancy, Sec. 3.9
resolution authorizing, to entire state delegation, Sec. 6.5
resolutions authorizing, Sec. Sec. 5.5-5.7
Senate procedure, Sec. Sec. 5.23, 5.24
Administration of oath, absent credential by unanimous consent,
Sec. 3.5
governor's communication basis for, Sec. 3.4
secretary of state's telegram as basis for, Sec. 3.3
state attorney general's telegram as basis for, Sec. 3.1
to Member-elect, Sec. 3.4
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Commentary and editing by Peter D. Robinson, J.D.
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[[Page 82]]
Challenges to oath administration
debate on, Sec. 6.3
debate on, by challengee, Sec. 2.5
exclusion of Member-elect pending investigation, Sec. Sec. 6.6, 6.7
form of, Sec. 6.2
House action on, Sec. Sec. 6.6, 6.7
Member-elect once excluded, Sec. Sec. 6.8, 6.9
procedure, Sec. 6.1
state delegation, Sec. Sec. 6.4, 6.5
Clerk
adds new states to roll, Sec. 4.5
corrects roll, deaths, Sec. Sec. 4.6-4.9
corrects roll, resignations, Sec. 4.10
directs call of roll, convening of new Congress, Sec. 4.1
enrolls Member-elect, Sec. Sec. 3.4, 4.3
informs House, credentials of Delegates and Resident Commissioners-
elect, Sec. Sec. 3.8, 3.9
informs House, credentials of Member-elect to fill unexpired term,
Sec. 3.6
prepares roll, Sec. 4.1
vacancy in office, effect of, Sec. 4.2
Committees
resolution authorizing, to investigate right to seats,
Sec. Sec. 6.6, 6.7
Compensation
Senator-elect waived until taking oath, Sec. 2.6
Credentials
delayed, administration of oath by unanimous consent, Sec. 3.5
Delegates- and Resident Commissioners-elect, Sec. Sec. 3.8-3.10
state communications in place of, for administration of oath,
Sec. Sec. 3.1-3.4
state court restraining issuance, effect of, Sec. 4.3
Delegates-elect
credentials laid before House but not enrolled, Sec. 3.8
Demand for yeas and nays
before organization, Sec. 2.4
Members-elect
administered oath by deputies, Sec. Sec. 5.9, 5.10
administration of oath to, delayed, Sec. Sec. 5.13-5.16
challenging right of another to be sworn, Sec. Sec. 6.1, 6.2
debate on right to seat, Sec. 2.5
deceased, correcting roll for, Sec. Sec. 4.6, 4.8
excluded pending investigation of final right to be sworn,
Sec. Sec. 6.6, 6.7
filling unexpired terms, House informed of credentials,
Sec. Sec. 3.6, 3.7
presumed death of, Sec. Sec. 4.8, 4.9
right to demand yeas and nays, Sec. 2.4
right to vote, Sec. Sec. 2.2, 2.3
rights and privileges of, Sec. 2.1
Oath of office
absentees, Sec. 5.8-5.12
administering officer, Sec. Sec. 5.1-5.3
copies of, House permission required for release of, Sec. 5.22
Delegate-elect took, absent credentials, Sec. 3.2
form and record of, Sec. 5.21
time of administration, Sec. Sec. 5.1, 5.3
Privilege
oath administration, after previous question ordered, Sec. 5.17
oath administration, interrupting debate, Sec. 5.18
Resident Commissioner-elect
credentials laid before House but not enrolled, Sec. 3.8
filling unexpired term, 3.9
length of term, Sec. 5.4
President informed House of appointment of, Sec. 3.10
Resolutions accepting oath administration to absentees
when offered, Sec. Sec. 5.8, 5.12
[[Page 83]]
who offers, Sec. 5.10
Resolutions authorizing oath administration
amendment of and debate on, Sec. 5.5
amendment to must be germane, Sec. 5.6
Roll of the House
adding new states to, Sec. 4.5
call of, Sec. Sec. 4.1, 4.2
convening of consecutive session, Sec. Sec. 4.10, 4.11
convening of new Congress, Sec. 4.1
corrections in for. deaths, House informed Sec. 4.6
corrections in, presumed deaths, Sec. Sec. 4.8, 4.9
Senate
administration of oath, absentees, Sec. 5.24
administration of oath, procedure, Sec. 5.23
challenges to oath administration, Sec. 6.10
Speaker
administers oath, Sec. Sec. 5.1, 5.3
administers oath to absentee, informs House, Sec. 5.8
appoints deputy to administer oath, Sec. Sec. 5.9-5.12
election of, convening of second session, Sec. 4.10, 4.11
State executive
communications of, in place of credentials, Sec. Sec. 3.1-3.4
presumption of death, evidence transmitted to House by,
Sec. Sec. 4.8, 94.
vacancy declaration by, Sec. 4.8
[[Page 85]]
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 1. In General
Before a newly convened body of Representatives-elect can begin
exercising all its constitutional functions as a legislative assembly,
Members-elect must become full legal Members of the House, having
satisfied all qualifications and having sworn to uphold the
Constitution and to faithfully perform their duties.(1) The
process through which Members-elect become Members consists of four
steps: first, the presentation of individual credentials; second, the
preparation of the Clerk's roll; third, the administration of the oath
to duly qualified and elected Members; fourth, the resolution of
challenges to the qualifications and elections of individual Members.
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1. ``[T]he legal existence of a legislative body is dependent upon
compliance with the constitutional requirements regarding
membership.'' Sutherland, Statutory Construction Sec. 404 (3d
ed. 1943). That general statement of legislative law must be
qualified in its applicability to the House of Representatives,
since the House has sole jurisdiction over elections and
qualifications of Members-elect (U.S. Const. art. I, Sec. 5,
clause 1). If the House seats a Member, the courts will not
question the validity of legislative action in which the Member
participates, even lacking satisfaction of election and
qualification requirements. See Lyons v Woods, 153 U.S. 649
(1894).
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This chapter covers the administration of those four steps of
proceeding during the organization of a newly convened House of
Representatives. The scope of the chapter is limited, however, to the
basic procedure governing those orders of business; the reader is
referred elsewhere for a discussion of the substantive issues related
to credentials, election contests, and elections and election
campaigns.(2) This chapter likewise does not concern itself
with those general aspects of procedure and orders of business
connected with organization.(3)
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2. See Ch. 8, infra, for the form, validity, and grounds for
challenges of credentials. See Ch. 8, infra, for elections and
election campaigns, and Ch. 9, infra, for election contests.
3. See Ch. 1, supra, for the orders of business at organization, and
for the procedure that is followed.
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Some discussion of substantive law is necessarily included in this
chapter, such as the rights and duties accruing to those persons
elected to Congress but not yet
[[Page 86]]
seated and sworn by the House, since the status of those Members-elect
is specifically related to the presentation of credentials, the
preparation of the Clerk's roll, and the administration of the oath.
Some mention is also made of the substantive state law which the Clerk
must review in determining whether to enroll Members-elect.
The preparation, transmission to the House, and custody of the
credentials of Members-elect are discussed in this chapter, as are
their use in preparing the Clerk's roll. The form of the Clerk's roll
and its relationship to the regular roll of the House and to the
administration of the oath receives analysis.
The chapter covers the history and form of the oath of office, the
procedure of its administration, the types of resolutions relating to
the right to be sworn, and the related subject of challenges, including
form, procedure, and preliminary House action.
There are several points of substantive procedure which should be
kept in mind in any discussion of the enrolling of Members and the
administration of the oath. The first is that the enrolling and the
swearing in of Members-elect are authorized and regulated by provisions
of the U.S. Constitution and the United States Code.(4~)
Therefore, the House and its officers follow an established procedure
when undertaking those orders of business.
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4. The principal provisions are: U.S. Const. art. VI, clause 3
(requirement of oath administration); U.S. Const. art. I,
Sec. 5, clause 1 (House sole judge of elections and
qualifications); 2 USC Sec. 25 (procedure of oath
administration and record evidence thereof); 2 USC Sec. 26
(preparation of Clerk's roll and regularity of credentials).
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Second, the House is governed, as stated above,(5) by
general parliamentary law during the period of organization and before
the adoption of rules. Since the rules are not adopted until after the
administration of the oath, en masse, to the membership-
elect,(6) most of the activities covered in this chapter
take place while general parliamentary law, and not the body of
standing rules, is in effect.
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5. See, generally, Ch. 1, supra.
6. For the priority of oath administration over the adoption of rules,
based on 2 USC Sec. 25, see Ch. 1, 7, supra.
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Third, the order in which activities take place during the
organization of the House is governed both by tradition and by
statute.(7) The oath is administered to Mem
[[Page 87]]
bers directly after the Speaker has been elected and has been sworn,
and before the completion of other organizational business or before
the consideration of general legislative business.
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7. For the sequence of organizational business, while the Speaker is
presiding at organization, see Ch. 1, Sec. 7, supra.
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The fourth aspect of procedure related to this chapter is the
functions of officers. The receipt of credentials by the House, and the
preparation and calling of the Clerk's roll, are functions exercised by
the Clerk of the preceding House.(8) The administration of
the oath to Members and floor action taken on challenges are presided
over by a newly-elected Speaker, whose scope of authority during the
organizational period should be reviewed for a comprehensive
understanding of how those orders of business are completed by the
House.(9)
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8. See 2 USC Sec. 26. For the authority and functions of the Clerk of
the preceding House at the organization of Congress, see Ch. 1,
Sec. 5, supra.
9. For the Speaker's functions and authority after he has been elected
at the convening of a new Congress, see Ch. 1, Sec. 7, supra.
For his entertainment of motions during the organizational
period, see Ch. 1, Sec. 9, supra; for his rulings on action on
resolutions, including those relating to oath administration,
during organization, see Ch. 1, Sec. 12, supra.
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The final area of substantive procedure relating to the enrollment
of Members and to the administration of the oath is the delineation of
authority between state and federal government. Since the House depends
on the individual states for the administration of elections and the
preparation of credentials, issues may be suggested in this chapter as
to those powers reserved for the states and those granted to the House
of Representatives under the U.S. Constitution. The reader is referred
to other portions of this work for discussion of such
issues.(10)
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10. See Ch. 8, infra, on elections and election campaigns, and Ch. 9,
infra, on election contests, which discuss the respective roles
of the state and federal governments.
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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)
[[Page 91]]
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
[[Page 94]]
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.
---------------------------------------------------------------------------
20. 115 Cong. Rec. 12-15, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
2. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
[[Page 95]]
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.
---------------------------------------------------------------------------
5. 113 Cong. Rec. 15, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 3. Presentation of Credentials
The device through which the House satisfies itself that it is
composed at its first meeting of duly-elected Representatives is the
presentation of credentials.(9) Although the credentials
themselves may give rise to substantive questions as to form, validity,
and grounds for challenge,(10) the presentation and use of
the credentials is largely an administrative matter. Although there are
still differences among the states in the preparation of credentials,
and in their trans
[[Page 96]]
mittal to the House, the process has become more standardized than in
former years. Credentials certified by the Member-elect
himself,(11) or certified by military or de facto
governors(12) or prepared without regard to state
law,(13) have not been received by the House in contemporary
practice. In addition, the office of the Clerk requires strict
compliance with state law, pursuant to federal statute, before
enrolling a Member-elect;(14) disputes have seldom arisen as
to the Clerk's action in accepting credentials.(15)
---------------------------------------------------------------------------
9. For a discussion of the function of credentials in legislative
organization, in general, see 1 Hinds' Precedents Sec. 631.
10. See Ch. 8, infra, for the substantive aspects of credentials as
related to elections and election campaigns.
11. See 1 Hinds' Precedents Sec. 427 (Senate credentials).
12. See 1 Hinds' Precedents Sec. Sec. 383, 388.
13. See 1 Hinds' Precedents Sec. 605 (credentials showed on face they
were not issued according to law); 1 Hinds' Precedents Sec. 376
(credentials signed by mere claimant to governorship); 1 Hinds'
Precedents Sec. 374 (credentials from suspended state
government).
14. 2 USC Sec. 26 requires credentials which show the Representatives-
elect ``were regularly elected in accordance with the laws of
their states respectively, or the laws of the United States.
15. The most recent debate over the Clerk's action in enrolling a
Member-elect occurred on Mar. 9, 1933 (see Sec. 3.4, infra).
See the remarks of Mr. Bertrand H. Snell (N.Y.), on that
occasion, opposing the administration of the oath to a Member-
elect without credentials, and objecting, post facto, to the
Clerk's action in enrolling the Member-elect. 73 Cong. Rec. 71,
72, 73d Cong. 1st Sess. Mr. Snell argued that state law, as
interpreted by the state supreme court, required the official
certificate before the taking of the oath of office. Mr. Snell
stated that the Clerks of the House had ``always been very
particular to see that the certificate which the Clerk accepted
before he put the name on the roll was in strict compliance
with the law of the state itself'' and averred that the Clerk
had not exceeded his authority in such a manner for 50 years.
---------------------------------------------------------------------------
The term ``credentials'' actually refers to a very specific
document, the certificate of election, certified by the state executive
and attesting to the due election of the respective Member-
elect.(16) Certificates are transmitted, usually by
certified mail, to the Clerk of the House,(17) and may
arrive anytime up to the date of the convening of Congress; their
failure to arrive before that date will result in the individual's name
not appearing on the Clerk's roll.(18) The Clerk
[[Page 97]]
has in the past enrolled a Member-elect whose certificate of election
was not yet prepared, when the Governor notified the House that a
certificate would be forthcoming.(19)
---------------------------------------------------------------------------
16. See Ch. 8, infra, for the elements and form of the certificate, and
the issuance thereof by the proper state official.
17. When a paper was received by the House during the call of the roll,
addressed to the Speaker, the Clerk presiding declined to open
it, although it was supposed to contain a missing credential. 1
Hinds' Precedents Sec. 47.
18. Generally, although the House may authorize the taking of seats by
Members-elect whose credentials have not yet arrived, the Clerk
may not enroll such Members-elect. See Sec. 3.7, infra.
19. See Sec. 3.4, infra. The objection to the Clerk's action by a
Member of the House indicated that the Clerk had acted contrary
to the prevailing practice. See 73 Cong. Rec. 71, 72, 73d Cong.
1st Sess., Mar. 9, 1933.
---------------------------------------------------------------------------
The Clerk is empowered by statute to inquire into the regularity
under state law of the credentials when they are
delivered.(1) On occasion, the Clerk has enrolled a Member
with due credentials on file, although notified of an adverse judicial
decision in the state of representation.(2)
---------------------------------------------------------------------------
1. The phrasing of 2 USC Sec. 26, requiring credentials showing
regular election under state law, contemplates some discretion
in reviewing state law. For the Clerk's functions in that
respect, see Sec. 4, infra. In early Congresses, a committee
examined the credentials of every Member-elect before
authorizing the taking of seats. See 1 Hinds' Precedents
Sec. Sec. 386-387.
2. See Sec. 4.3, infra.
---------------------------------------------------------------------------
Only one original certificate is transmitted to the Clerk's office
(although the Member himself may receive a ``ceremonial'' copy); the
original is retained in the custody of the Clerk's office during and
after the period of organization.(3) The set of credentials
for one Congress is delivered by the Clerk, after a period of four
years, to the National Archives, where they are kept as a public
record.(4) (The credentials are filed in the same order in
which Members are enrolled, alphabetically by state.)
---------------------------------------------------------------------------
3. Since credentials are transmitted directly from the state executive
to the Clerk of the House, it is a misnomer to describe
Members-elect as ``bearing'' or ``presenting'' their
credentials (see, for example, 1 Hinds' Precedents Sec. 30--
Member-elect as ``bearer''). The Clerk's office will accept,
however, credentials which are hand-delivered by the Member-
elect because of the immediacy of the convening date of
Congress.
4. Since the credentials of the Resident Commissioner from Puerto
Rico, unlike the certificates of Members and Delegates, extend
for four years (see Sec. 5.4, infra), the entire set of
credentials for one Congress is retained by the Clerk's office
until the end of the succeeding Congress.
---------------------------------------------------------------------------
Although the Clerk will not as a general rule enroll Members-elect
who appear without certificates of election, the House itself may
authorize the administration of oath to Members-elect who appear with
``substitute'' credentials, where the original certificate is
delayed.(5)
[[Page 98]]
For example, Members-elect have been sworn on the basis of letters and
telegrams from the executive department of the state of representation,
attesting as to the due election of the Member-elect and stating that
regular credentials would be forthcoming.(6) Such state
executive declarations may state, as a basis for authorizing the
administration of the oath, the result of official election returns and
may request that such communications constitute official notice of
election.(7) (On many occasions, the House authorizes the
administration of the oath where credentials have not yet arrived,
pursuant to a statement by another Member-elect that the election in
issue is neither contested nor questioned.)(8)
---------------------------------------------------------------------------
5. For early instances of such action, see 1 Hinds' Precedents
Sec. Sec. 162-168. On some occasions, the House has enrolled
claimants where the state executive refused to issue any
credentials. See 1 Hinds' Precedents Sec. Sec. 553-564.
6. See Sec. Sec. 3.1-3.4, infra.
7. See, for example, Sec. 3.2, infra.
8. Swearing in Members-elect who do not have credentials but whose
elections are unquestioned is authorized by unanimous consent.
See Sec. 3.5, infra.
---------------------------------------------------------------------------
The Clerk may receive during the term of a Congress late
credentials and credentials of Members-elect to fill unexpired terms;
those certificates are laid before the House and then filed by the
Clerk with the other certificates for that Congress.(9)
Until the certificate is laid before the House, the respective
Representative-elect is not entered on the regular roll of the
House.(10)
---------------------------------------------------------------------------
9. See Sec. 3.6, infra.
10. See Sec. 3.7, infra. If Members-elect to fill vacancies appear to
take the oath following the intervening death of the Speaker,
their credentials are not laid before the House and they are
not sworn or enrolled until after a new Speaker's election, in
which they are not entitled to participate. See Sec. 5.3,
infra.
---------------------------------------------------------------------------
The credentials of Delegates-elect and Resident Commissioners are
similarly transmitted to the Clerk and filed with the other documents
for the same Congress. The main distinction is that the credentials of
those officials do not entitle them to be included on the Clerk's roll;
the other distinction is that the credentials for the Resident
Commissioner extend for four years as opposed to two.(11)
---------------------------------------------------------------------------
11. See Sec. 3.8, infra.
---------------------------------------------------------------------------
Evidence of Certificate; Telegrams
Sec. 3.1 Not having received their certificates of election, the House
authorized the administration of the oath to certain Members-elect
pursuant to the receipt of a telegram
[[Page 99]]
from the state Attorney General and Chairman of the state Board of
Canvassers.
On Nov. 15, 1937,(12) the Clerk of the House submitted
to the House a telegram from the Honorable John J. Bennett, Jr.,
Attorney General of New York and Chairman of the state Board of
Canvassers, indicating the election of three Representatives to fill
vacancies. The telegram indicated that certificates of election issued
by the state Board of Canvassers would be forwarded shortly. The House
authorized Speaker William B. Bankhead, of Alabama, to administer the
oath to the three Representatives-elect.
---------------------------------------------------------------------------
12. 82 Cong. Rec. 9, 75th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 3.2 The oath was administered, by unanimous consent, to a
Delegate-elect whose certificate of election had not arrived,
pursuant to a communication from the territorial governor attesting
to the election results and requesting that the communication
constitute official notice of election.
On Aug. 4, 1954,(13~) the House authorized the
Speaker(14) to administer the oath of office to Mrs.
Elizabeth P. Farrington, Delegate-elect of Hawaii, whose certificate of
election had not yet arrived. She was administered the oath pursuant to
a letter from the Governor of Hawaii stating the election results and
requesting that the communication be accepted as notice of her election
pending arrival of the official certificate, due to the desirability of
having Hawaii represented in the House during the closing days of the
session.
---------------------------------------------------------------------------
13. 100 Cong. Rec. 13282, 83d Cong. 2d Sess.
14. Joseph W. Martin, Jr. (Mass.).
---------------------------------------------------------------------------
Sec. 3.3 The House authorized, by unanimous consent, the administration
of the oath to a Member-elect, whose certificate of election had
not arrived, pursuant to a telegram from the Secretary of State
stating that the Member-elect was duly elected according to
unofficial returns.
On Oct. 30, 1963,(15) the House authorized the
administration of the oath to Mr. Mark Andrews, of North Dakota,
pursuant to a telegram from Ben Meier, Secretary of State of North
Dakota, stating that according to unofficial returns Mr. Andrews had
been elected to complete an unexpired term.
---------------------------------------------------------------------------
15. 109 Cong. Rec. 20612, 88th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 3.4 A Member-elect appearing without credentials has
[[Page 100]]
been enrolled and sworn where the state executive notified the
House that although the Member-elect had been duly elected, the
preparation of the certificate was delayed by the technicalities of
state law.
On Mar. 9, 1933,(16) the Clerk placed on the roll and
the House authorized to be sworn in the Member-elect from Maine, Mr.
John G. Utterback, who had appeared without a certificate of election.
The Governor of Maine had informed the House that Mr. Utterback was
duly elected but that a certificate of election would not be
forthcoming until the assembly of the executive council, which was
required by state law to act with the Governor in the preparation of
the certificate.(17)
---------------------------------------------------------------------------
16. 73 Cong. Rec. 71, 72, 73d Cong. 1st Sess.
17. See the remarks, in opposing the authorization of the
administration of the oath to Mr. Utterback, of Mr. Bertrand H.
Snell (N.Y.), who argued that the action of the House set a
dangerous precedent and violated both state and federal law. 73
Cong. Rec. 71, 72, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Oath Administration Absent Credentials
Sec. 3.5 Where certificates of election have not been received, the
House may by unanimous consent authorize the Speaker to administer
the oath to Members-elect whose elections are not contested.
On Nov. 15, 1937,(18) the House authorized Speaker
William B. Bankhead, of Alabama, by unanimous consent, to administer
the oath to three Representatives-elect for whom certificates of
election had not yet been received, and whose elections were not
contested.
---------------------------------------------------------------------------
18. 82 Cong. Rec. 9, 75th Cong. 2d Sess.
---------------------------------------------------------------------------
Similarly, on Oct. 3, 1940,(~19) the House authorized,
by unanimous consent, Speaker Sam Rayburn, of Texas, to administer the
oath of office to Member-elect Florence R. Gibbs, of Georgia,
notwithstanding the fact that the certificate of election had not yet
been received in the Clerk's office.
---------------------------------------------------------------------------
19. 86 Cong. Rec. 13117, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Also, on June 20, 1941,(20) the oath was administered by
unanimous consent to Mr. John H. Foulder, of North Carolina, whose
certificate of election had not yet been received.(1)
---------------------------------------------------------------------------
20. 87 Cong. Rec. 5398, 77th Cong. 1st Sess.
1. Similar House action has been taken on numerous occasions. See, for
example, 109 Cong. Rec. 11233 (June 20, 1963), 14242 (Aug. 6,
1963), 20612 (Oct. 30, 1963), 88th Cong. 1st Sess.; 111 Cong.
Rec. 13774 (June 16, 1965), 27171 (Oct. 18, 1965), 89th Cong.
1st Sess.
---------------------------------------------------------------------------
[[Page 101]]
Credentials to Fill Vacancies
Sec. 3.6 The Clerk of the House informs the House of the receipt of a
certificate of election of a Member-elect, elected to fill an
unexpired term, whereupon the new Member is sworn in.
On May 21, 1934,(2) Speaker Henry T. Rainey, of
Illinois, laid before the House the following communication:
---------------------------------------------------------------------------
2. 78 Cong. Rec. 9151, 73d Cong. 2d Sess.
---------------------------------------------------------------------------
Honorable Henry T. Rainey,
Speaker of the House of Representatives, Washington, D.C.
Dear Sir: The certificate of election of Honorable J.Y.
Sanders, Jr., has been received, to fill the unexpired term of
Honorable Bolivar E. Kemp, of the sixth district of the State
of Louisiana.
Very respectfully,
South Trimble,
Clerk of the House of Representatives.
Mr. Sanders was then presented to the House and administered the
oath of office by the Speaker.
Sec. 3.7 Members-elect, elected to fill vacancies occurring in the
first session, are not included on the roll call to ascertain the
presence of a quorum when the second session convenes; their names
are included on the roll only after their certificates of election
have been laid before the House and after the oath has been
administered to them.
On Jan. 10, 1966, the opening day of the second
session,(3) after the call of the roll to ascertain the
presence of a quorum, the certificates of election of Mr. Clarence J.
Brown, Jr., of Ohio, and Mr. Thomas M. Rees, of California, both
elected to fill vacancies, were laid before the House. The oath was
then administered to them by Speaker pro tempore Carl Albert, of
Oklahoma, and their names were then included on subsequent roll calls.
---------------------------------------------------------------------------
3. 112 Cong. Rec. 6, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Credentials of Delegates and Resident Commissioners
Sec. 3.8 At the opening of a Congress, the Clerk informs the House of
the receipt of the credentials of Delegates and of the Resident
Commissioner from Puerto Rico, whose names are not placed on the
Clerk's roll.
On Jan. 3, 1973,(4) immediately after the call of the
Clerk's roll to
[[Page 102]]
establish a quorum, the Clerk announced to the House the receipt of the
credentials of: Delegate-elect Walter E. Fauntroy, of the District of
Columbia, Delegate-elect Antonio Borja Won Pat, of Guam, Delegate-elect
Ron De Lugo, of the Virgin Islands, and Resident Commissioner-elect
Jamie Benitez, of Puerto Rico. As the names of Delegates and Resident
Commissioners are not called to establish a quorum or to vote for
Speaker, their names were not included on the Clerk's roll.
---------------------------------------------------------------------------
4. 119 Cong. Rec. 12, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: The credentials of Delegates expire with
the term of the House, but the Resident Commissioner's credentials
extend for a four-year term.
Sec. 3.9 The Clerk informs the House of the receipt of the credentials
of the new Resident Commissioner of Puerto Rico to fill a vacancy,
whereupon the Commissioner is sworn.
On Jan. 3, 1940,(5) the Clerk of the House, South
Trimble, informed the the House of the receipt of a certificate signed
by the Governor of Puerto Rico, showing the appointment of Mr. Bolivar
Pagan as Resident Commissioner of Puerto Rico, to fill a vacancy.
---------------------------------------------------------------------------
5. 86 Cong. Rec. 6, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Mr. Pagan was then administered the oath of office.
Sec. 3.10 On one occasion the House was informed of the appointment of
the Resident Commissioner of the Philippines by the President of
the United States.
On Aug. 18, 1944,(6) Speaker Sam Rayburn, of Texas, laid
before the House a communication from the President of the United
States, the Honorable Franklin D. Roosevelt, transmitting a
communication from the President of the Philippines advising the
President of the appointment of Colonel Carlos P. Romulo, as Resident
Commissioner of the Philippines.
---------------------------------------------------------------------------
6. 90 Cong. Rec. 7102, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: The Philippine Government was sitting in
Washington due to Japanese occupation of the Islands.
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 4. The Clerk's Roll
The Clerk's roll is the list of Members-elect, arranged
alphabetically by states, which the Clerk prepares in advance of the
convening of a new Congress based on the certificates of election
received by his office.(7) That
[[Page 103]]
particular roll is called only once, directly after the Congress
convenes, in order to establish a quorum of Representatives-elect to
proceed to the organization of the House.(8) The roll does
have a further purpose, in that it constitutes the first official
declaration as to which persons claiming seats in the House are
entitled to participate in the proceedings prior to election of the
Speaker, and in the election itself.(9)
---------------------------------------------------------------------------
7. See 2 USC Sec. 26, directing the preparation of the Clerk's roll.
As to the form of credentials and their transmission to the
Clerk's office, see Sec. 3, supra.
8. See, generally, Ch. 1, Sec. 5, supra, for the procedure at
organization when the Clerk is presiding. The roll to elect the
Speaker is called alphabetically on a roll call vote, with each
Member casting his vote by declaring the name of the nominee of
his choice. (See Ch. 1, Sec. 6, supra.) For the relationship
between the Clerk's roll and regular rolls of the House, see
Sec. 4.1, infra.
9. As the roll to elect a Speaker is based exclusively upon the
Clerk's roll, a claimant to a seat who is not enrolled will not
be called on the roll call vote (see Sec. 2, supra, for the
right to participate of Members-elect). For the proposition
that claimants not enrolled may not participate in organization
until the House takes some action on their claims, see 1 Hinds'
Precedents Sec. Sec. 83-86. On the other hand, Members-elect
enrolled may participate before the House decides that they
were enrolled on insufficient evidence (see 1 Hinds' Precedents
Sec. 366).
---------------------------------------------------------------------------
As indicated above,(10) every Member-elect with regular
credentials on file with the Clerk has a right to be included on the
Clerk's roll;(11) whether or not a specific set of
credentials shows the person named therein to be regularly elected is a
matter solely for the decision of the Clerk,(12) who is the
only official authorized to prepare the Clerk's roll (unless his office
is vacant, in which case the Sergeant at Arms, or in his absence, the
Doorkeeper, performs the Clerk's functions).(13)
---------------------------------------------------------------------------
10. Sec. 3, supra.
11. In Page v U.S., 127 U.S. 67(1888), the Supreme Court held, inter
alia, that a Representative-elect whose credentials showed he
was regularly elected must have been placed on the Clerk's roll
under Sec. 31 of the Revised Statutes (now, 2 USC Sec. 26).
12. See the provisions of 2 USC Sec. 26, which do not specify the
required form of credentials, or the factors for determining
whether they show the Member-elect was ``regularly elected.''
In early times, a committee examined the credentials with the
object of ensuring the regularity (see 1 Hinds' Precedents
Sec. Sec. 386, 387). Mere enrollment does not entitle a Member-
elect to a seat, however, as the House determines both the
prima facie and final entitlement to that right (see Sec. 6,
infra); the House may review the action of the Clerk in
enrolling Members-elect (see, generally, 1 Hinds' Precedents
Sec. Sec. 589-610).
13. See 2 USC Sec. 26. For a recent occasion where the Doorkeeper
assumed the Clerk's functions, see Sec. 4.2, infra.
---------------------------------------------------------------------------
Whether or not the Clerk may go behind the document of creden
[[Page 104]]
tials itself to determine whether to enroll a particular Member-elect
depends on the specific circumstances of the case. In past Congresses,
Members-elect have been enrolled where there was no certificate but
there were communicated official statements from state authorities
showing election return,(14) or where the credentials were
irregular but state law forbade rejection of credentials for mere
informalities.(15) On at least one occasion, the Clerk has
inquired into the age qualification of a Member-elect who was not yet
25 years old when his credentials were presented, but who reached the
age limit after Congress had convened.(16) In contemporary
practice, the Clerk will not enroll a Member-elect unless credentials
regular in form and in strict compliance with state law have been
received.(17)
---------------------------------------------------------------------------
14. See 6 Cannon's Precedents Sec. 597. For a recent instance of such
action, see Sec. 4.4, infra.
15. See 6 Cannon's Precedents Sec. 557.
16. See 1 Hinds' Precedents Sec. 418. For a full discussion of the
meeting of qualifications before appearing to take the oath,
but after the election or even after the convening of Congress,
see Ch. 7, infra. A line of precedents in both the Senate and
House suggest that a Member-elect lacking the age and
citizenship requirements of U.S. Const. art. I, Sec. 2, clause
2, at the time of election may forestall presenting his
credentials and taking the oath until he satisfies those
qualifications, after the convening of Congress.
17. Strenuous opposition was voiced in the House on the last occasion
when the Clerk enrolled a claimant to a seat whose credentials
had not yet been received (see Sec. 4.4, infra). The Clerk has
enrolled a Member-elect despite an order of the state supreme
court restraining the issuance of the certificate of election
(see Sec. 4.3, infra). For similar past instances where
credentials already delivered to the Clerk took precedence over
adverse decisions by the highest court of the representative
state, see 1 Hinds' Precedents Sec. Sec. 56, 57.
---------------------------------------------------------------------------
The Clerk's roll is directed to be read at the opening of a
Congress by the Clerk, or by the officer who assumes his functions. The
roll is called in the same manner in which it is prepared,
alphabetically by state.(18)
---------------------------------------------------------------------------
18. See Sec. 4.1, infra.
---------------------------------------------------------------------------
Occasionally it is necessary to correct the roll, due to technical
errors or due to changes in the membership. The roll has been corrected
on the floor of the House by reference to credentials, when the roll
contained a typographical error;(19) where there are alleged
errors in substance, the Clerk's roll will not be corrected until the
[[Page 105]]
time for the administration of the oath to Member.(~20~)
Before the House meets, the Clerk may strike from the roll names of
Members-elect whose certificates of election are on file, but who have
resigned or who have died before the convening of a
Congress.(1) However, such corrections are only made by the
Clerk pursuant to official declarations by the executive of the state
of representation. For example, in the 93d Congress, the name of a
Member-elect whose seat the Governor had declared vacant pursuant to a
presumptive death verdict was stricken from the Clerk's
roll.(2) But the name of a companion Member-elect, who had
disappeared under the same circumstances as the former, was not
stricken from the roll, since the state of representation had not
declared his seat vacant nor recognized the possibility of presumed
death.(3)
---------------------------------------------------------------------------
19. See 1 Hinds' Precedents Sec. 25 (name of state Governor, instead of
Member-elect, called by error).
20. The Clerk may not entertain motions to ``correct'' the roll by
substituting the name of a claimant for the name of a Member-
elect (see 1 Hinds' Precedents Sec. Sec. 22-24). Challenges,
which attempt to add the name of one person to the roll and to
strike the name of another, are not made until the Speaker
indicates that the administration of the oath is in order (see
Sec. 6, infra).
1. See Sec. Sec. 4.6, 4.8, infra. For an exception to that procedure,
see Sec. 4.7, infra (where a Member-elect died moments before
Congress convened, his name was not stricken from the roll
until the House was informed of the death). The Clerk's power
to strike the names of dead and resigned Members-elect is
traditional (see 1 Hinds' Precedents Sec. Sec. 26-28).
2. See Sec. 4.8, infra.
3. See Sec. 4.9, infra. Subsequently, the House itself declared the
seat vacant, pursuant to presumptive death evidence, and the
Member's-elect name was then stricken from further roll calls.
---------------------------------------------------------------------------
The composition of the Clerk's roll is determinative of those
persons entitled to be counted for the initial quorum of the House, and
those persons entitled to vote for Speaker at the opening of a new
Congress.(4) In that respect, the regular roll differs
substantially from the roll to establish a quorum or to elect a new
Speaker at the beginning of a second session.
---------------------------------------------------------------------------
4. See Sec. 2, supra.
---------------------------------------------------------------------------
When the Speaker died between sessions of the 87th Congress, and
several Members-elect appeared to fill vacancies at the beginning of
the second session, those Members-elect were not called to establish a
quorum or to elect a new Speaker, although their certificates of
election were on file with the Clerk. They could not be sworn until
after the Speaker was elected, and the regular roll of the House
includes only those Mem
[[Page 106]]
bers who have qualified for membership by taking the
oath.(5) Therefore, although the Clerk's roll furnishes the
preliminary basis for the regular roll of the House, the latter
reflects changes in membership occurring after Congress convenes, such
as adverse determination of election contests, resignations of Members-
elect who decline to take the oath in favor of another office, and
deaths.(6)
---------------------------------------------------------------------------
5. See Sec. 4.11, infra. On the same occasion, resignations of Members
received during adjournment were not laid down prior to the
vote for Speaker, although their names had been stricken from
the roll of the House (see Sec. 4.10, infra). That practice is
to be distinguished from the procedure at the convening of a
new Congress, where the Clerk announces before the election of
the Speaker the names of those resigned Members-elect whose
names have been stricken from the roll. See, e.g., announcement
of the Clerk as to a vacancy in the 92d Congress, 117 Cong.
Rec. 10, Jan. 21, 1971.
6. After organization, the roll of the House consists of those Members
chosen, sworn, and living whose membership has not been
terminated by resignation or by the action of the House. See 4
Hinds' Precedents Sec. Sec. 2889 2890; 6 Cannon's Precedents
Sec. 638.
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Form and Call of the Roll
Sec. 4.1 Unlike regular roll calls of the House, the Clerk's roll to
establish a quorum of Representatives-elect at the convening of a
new Congress is prepared and called alphabetically by states.
The Clerk's roll at the beginning of the 92d Congress was both
prepared and called by state delegations, listed
alphabetically.(7) The roll to establish a quorum has taken
that form at the beginning of every Congress.(8) However,
unless the roll is taken by electronic device (see Chs. 20, 30, infra)
regular roll calls of the House are required to be called
alphabetically by surname under House Rule XV.(9) (After a
quorum is established at the opening of a new Congress, the roll to
elect a Speaker is called alphabetically, to which the Member responds
by calling the surname of the nominee of his choice.)(10)
---------------------------------------------------------------------------
7. 117 Cong. Rec. 9, 10, 92d Cong. 1st Sess., Jan. 21, 1971.
8. In former Congresses, the roll to establish a quorum at the
beginning of a new session during the term of a Congress was
also called by states (see 1 Hinds' Precedents Sec. 83).
9. Rule XV clause 1, House Rules and Manual Sec. 765 (1973).
10. See, e.g., 117 Cong. Rec. 10, 11, 92d Cong. 1st Sess., Jan. 21,
1971. See also 1 Hinds' Precedents Sec. Sec. 204-222.
---------------------------------------------------------------------------
Sec. 4.2 Where the Clerk has died between Congresses, and in
[[Page 107]]
the absence of the Sergeant at Arms, the Doorkeeper of the House
directs the call of the roll of Representatives-elect, prepared
under his auspices.
On Jan. 3, 1947,(11) the opening of the 80th Congress,
the Doorkeeper of the House, Ralph R. Roberts, directed the call of the
roll to establish a quorum and to elect a Speaker. The Doorkeeper
assumed the functions of the Clerk of the House, in preparing the roll
and directing the call thereof, pursuant to title 2, United States
Code, section 26, appointing the Doorkeeper to perform those duties in
the absence of both the Clerk and the Sergeant at Arms.
---------------------------------------------------------------------------
11. 93 Cong. Rec. 33, 34, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Clerk's Review of State Law
Sec. 4.3 A certificate of election in due form having been filed, the
Clerk placed the name of the Member-elect on the roll, although he
was subsequently advised that the state supreme court had issued a
writ restraining the Secretary of State from issuing such
certificate.
On Jan. 3, 1949,(12) Clerk John Andrews, of
Massachusetts, made the following announcement:
---------------------------------------------------------------------------
12. 9.5 Cong. Rec. 8. 81st Cong. 1st Sess.
---------------------------------------------------------------------------
A certificate of election is on file in the Clerk's office,
showing the election of John C. Davies as a Representative-elect to
the Eighty-first Congress from the Thirty-fifth Congressional
District of the State of New York.
Several communications have been received from the executive
deputy secretary of state for the State of New York informing the
Clerk that a case is pending before the supreme court, Albany
County, N.Y., and that the said secretary of state is restrained
from certifying the election of a Representative from this
congressional district. However, in view of the fact that a
certificate of election in due form has been filed with the Clerk
by John C. Davies, the Clerk has therefore placed his name on the
roll. (13)
---------------------------------------------------------------------------
13. Under New York law, although Congress is the final judge of the
qualifications of its own Members, until the certificate of
election has been transmitted to and acted upon by Congress,
New York state courts are open to a candidate who alleges that
the certificate is being issued in violation of the law. People
ex rel. Brown v Board of Suprs. of Suffolk County, 216 N.Y.
732, 110 N.E. 776 (1915) (mem.).
---------------------------------------------------------------------------
Sec. 4.4 The House may authorize the Speaker to administer the oath of
office to a Member-elect who appears with
[[Page 108]]
out credentials but whose name has been placed upon the roll of
Members-elect by the Clerk, pursuant to a communication from the
state Governor.
On Mar. 9, 1933,(14) the House adopted a resolution
authorizing the administration of the oath of office to Mr. John G.
Utterback, of Maine, who reported on opening day without a signed
certificate of election from the Governor of the State of Maine. The
Clerk had placed the name of Mr. Utterback upon the Clerk's roll
pursuant to a letter from the Governor of Maine stating that although
the Member-elect apparently received a majority of the votes cast in
the district the Governor was without authority to issue credentials
due to the terms of a state law which required the concurrent action of
the Governor and executive counsel before an election certificate could
be issued.(l5)
---------------------------------------------------------------------------
14. 73 Cong. Rec. 71, 72, 73d Cong. 1st Sess.
15. See the remarks, in opposing the enrolling of and the
administration of the oath to the Member-elect without
credentials, of Mr. Bertrand Snell (N.Y.), arguing that the
action of the House and of the Clerk set a dangerous precedent.
73 Cong. Rec. 71, 72, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Adding New States to Roll
Sec. 4.5 The Clerk announced receipt of the proclamation of statehood
for a new state during the call of the Clerk's roll, and directed
that the new state be called.
On Jan. 7, 1959,(16) after the commencement of the call
of the Clerk's roll on opening day, and after the call of the names of
Members-elect from Alabama, the Clerk made the following announcement:
---------------------------------------------------------------------------
16. 105 Cong. Rec. 11, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
A certified copy of the Presidential proclamation indicating
that the Territory of Alaska has qualified as a State pursuant to
provisions of law has been received.
The clerk will proceed.
The Representative-elect from Alaska was then called.
Correcting the Roll for Deaths
Sec. 4.6 At the opening of a Congress the Clerk informs the House of
vacancies in the Clerk's roll, occasioned by the death of Members-
elect.
On Jan. 3, 1973,(17) the opening day of the 93d
Congress, the Clerk announced after the call of the Clerk's roll, which
did not include the name of Member-elect George W. Collins, that the
death of that Member-elect created a va
[[Page 109]]
cancy in the state delegation of Illinois.
---------------------------------------------------------------------------
17. 119 Cong. Rec. 12, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 4.7 On an exceptional occasion, where a Representative-elect whose
certificate of election was on file with the Clerk died moments
before the House convened, his name was included on the Clerk's
roll until the House was informed of his death after assembly.
On Jan. 10, 1967,(18) the opening day of the 90th
Congress, the name of Member-elect John E. Fogarty, of Rhode Island,
was included on the Clerk's roll to establish a quorum, although Mr.
Fogarty had died in his office shortly before the House was to convene.
His name was not stricken from the roll of the House until the Clerk
informed the House of his death, shortly after the call of the roll.
---------------------------------------------------------------------------
18. 113 Cong. Rec. 11, 12, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 4.8 The Clerk of the House omitted from the roll at the beginning
of the 93d Congress the name of a Representative-elect, pursuant to
the receipt of judicial certification of presumptive death, and of
the state executive's declaration of vacancy.
On Jan. 3, 1973,(19) the opening day of the 93d
Congress, the Clerk of the preceding House, W. Pat Jennings, directed
the call of the Clerk's roll to establish a quorum. The reading clerk
announced that the delegation of the State of Alaska was vacant. The
name of Mr. Nick Begich, Representative-elect at large from that state,
had been omitted from the Clerk's roll pursuant to the receipt by the
Clerk of a certified copy of the certificate of presumptive death of
Mr. Begich. The Clerk also informed the House, after the election of
the Speaker, that the Governor of Alaska had declared the seat of Mr.
Begich vacant.
---------------------------------------------------------------------------
19. 119 Cong. Rec. 11 et seq., 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 4.9 Where the state of representation did not certify, either
through its judiciary or through its executive, the presumptive
death of a Representative-elect, his name was placed on the Clerk's
roll and not stricken from the roll of the House until the House
determined the seat to be vacant.
On Jan. 3, 1973,(20) the opening day of the 93d
Congress, Clerk of
[[Page 110]]
the House W. Pat Jennings informed the House that he had placed upon
the roll of Representatives-elect the name of Mr. Hale Boggs, of
Louisiana, pursuant to the receipt of his certificate of election. The
Clerk had, however, omitted from the roll the name of Mr. Nick Begich,
of Alaska, who had been missing since Oct. 16, 1972, the date of the
disappearance of an airplane on which Mr. Boggs had also been a
passenger. Mr. Begich's name had been omitted from the roll pursuant to
the receipt by the Clerk of a presumptive death certificate from the
State of Alaska and pursuant to a telegram from the Governor of that
state notifying the House that he had declared Mr. Begich's seat
vacant. In Mr. Boggs' case, however, the Clerk had received
certification from the State of Louisiana stating that no state court
actions had been instituted to change Mr. Boggs' status or to affect
the validity of his certificate of election, and stating that the
Governor himself had taken no action to affect Mr. Boggs' status as a
Representative-elect. Therefore Mr. Boggs' name had been placed on the
roll and called to establish a quorum.
---------------------------------------------------------------------------
20. 119 Cong. Rec. 15, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The House subsequently adopted a resolution determining Mr. Boggs'
seat to be vacant, based on documentary evidence and on the official
certification by the State of Alaska of Mr. Begich's presumptive death.
The name of Mr. Boggs was stricken from subsequent roll calls.
The resolution adopted by the House read as follows:
H. Res. 1
Whereas a certificate of election has been received by the
Clerk of this House showing the election of Hale Boggs as a
Representative in the Ninety-third Congress from the Second
Congressional District in the State of Louisiana; and
Whereas Representative-elect Hale Boggs has not appeared to
take the oath of office as a Member of this House; and
Whereas the Clerk of the House of Representatives, acting at
the direction of the Speaker of this House for the Ninety-second
Congress, has ascertained that Representatives Nick Begich and Hale
Boggs, Members of the Ninety-second Congress, together with Russell
L. Brown and Don E. Jonz of the State of Alaska, all of whom
departed together by plane from Anchorage, Alaska, on October 16,
1972, on a flight bound for Juneau, Alaska, have been missing since
that date and despite repeated and thorough searches have not been
located; and
Whereas the District Court for the State of Alaska, Third
Judicial District, after hearing witnesses and studying all
available evidence relative to the disappearance of Representative
Begich, Russell L. Brown and Don E.
[[Page 111]]
Jonz, has determined that these three men cannot be found alive
after such a lapse of time and are presumed dead; and
Whereas as a result of the findings of the jury in the
aforementioned judicial proceeding the judge of the said court has
signed certificates of presumptive death with respect to
Representative Begich, Russell L. Brown and Don E. Jonz; and
Whereas no evidence has been presented to this House or is
known to it which distinguishes the missing status of
Representative-elect Hale Boggs from that of the three men for whom
the aforementioned certificates of presumptive death have been
issued; Therefore be it
Resolved, That based on information provided by its Clerk, this
House of Representatives hereby determines that there is a vacancy
in the Ninety-third Congress in the representation from the Second
Congressional District in the State of Louisiana because of the
absence of Representative-elect Hale Boggs.
Resolved, That the Speaker of the House is hereby directed to
notify the Governor of the State of Louisiana of the existence of
this vacancy so that appropriate measures to fill this vacancy may
be undertaken by the Governor pursuant to Article I, Section 2 of
the Constitution of the United States.
Resolved, That the Speaker be authorized to appoint a
delegation of Members of this House, together with such Members of
the Senate as may be joined, to attend memorial services to be held
for the former Majority Leader in New Orleans, Louisiana, on
January 4, 1973.
Resolved, That the Sergeant at Arms of the House be authorized
and directed to take such steps as may be necessary to carry out
the provisions of these resolutions and that the necessary expenses
in connection therewith, as well as any incurred by the Clerk at
the Speaker's request, be paid out of the contingent fund of the
House.
Resolved, That the Clerk communicate these resolutions to the
Senate, to the Governor of the State of Louisiana, and transmit a
copy to the family of the missing Representative-elect Hale Boggs.
Roll to Begin Session
Sec. 4.10 Election of a new Speaker being the first order of business,
resignations of Members received during the sine die adjournment
after the first session were not laid down prior to the vote, but
their names had been stricken from the roll and were not called to
establish a quorum or to elect a Speaker at the opening of the
second session.(1)
---------------------------------------------------------------------------
1. This practice is distinguished from the procedure at the opening of
a new Congress, where the Clerk announces vacancies immediately
after the call of the Clerk's roll (which does not include the
names of resigned Members) but before the election of a
Speaker. See, e.g., announcement of the Clerk as to a vacancy
in the 92d Congress, 117 Cong. Rec. 10, January 21, 1971.
---------------------------------------------------------------------------
[[Page 112]]
On Jan. 10, 1962,(2) the opening day of the second
session, following the death of Speaker Sam Rayburn, of Texas, during
the sine die adjournment, Clerk of the House Ralph R. Roberts called
the roll to establish a quorum and proceeded immediately to the
election of a Speaker. The names of Mr. Frank Ikard, of Texas, and Mr.
Lester Holtzman, of New York, who had submitted their resignations
during the sine die adjournment, were not included on the roll to
establish the quorum or to elect a Speaker. Their resignations were not
announced until after the election.
---------------------------------------------------------------------------
2. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 4.11 Where the Speaker had died between sessions of the 87th
Congress and a new Speaker was elected immediately after the second
session had convened, Members-elect to fill vacancies with
credentials on file were not called to establish the quorum or to
elect a Speaker.(3)
---------------------------------------------------------------------------
3. The procedure followed in this instance 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 detailed discussion at Sec. 4, supra).
---------------------------------------------------------------------------
On Jan. 10, 1962,(4) 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, were not sworn in until after the election of
Speaker John W. McCormack, of Massachusetts. Their names were not
placed on the roll to establish a quorum or to elect a Speaker.
---------------------------------------------------------------------------
4. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 5. Administering the Oath
The Constitution requires, at article 6, clause 3, that every
Senator and every Representative swear or affirm to uphold the
Constitution of the United States. Since neither the form, nor the
procedure of administration, nor the time of administration of the oath
of office are specified by constitutional provisions, they are all
regulated by statute. The form of the oath taken by Members-elect (the
same oath taken by the Speaker and officers of the House)(5)
has undergone revision
[[Page 113]]
since the first Congress,(6) and now reads as followings:
---------------------------------------------------------------------------
5. 2 USC Sec. 26 requires the oath of the Speaker and Clerk as well as
of Members. The form of the oath prescribed for an individual
elected or appointed to an office in the civil service or
uniformed service appears at 5 USC Sec. 3331. If a new Speaker
is elected after the organization of the House, and after he
has taken the oath of office as a Member, he nevertheless must
be administered the oath again as Speaker. See 1 Hinds'
Precedents Sec. 225.
6. The first oath of office was worded, by the Act of June 1, 1789,
Ch. 1, 1 Stat. 23, as follows: ``I, A. B., do solemnly swear or
affirm (as the case may be) that I will support the
Constitution of the United States.'' National sentiment in the
wake of the Civil War lead to a new oath, under the Act of July
2, 1862, Ch. 128, 12 Stat. 502, which disqualified for a
congressional seat any person with a past record of disloyalty
to the United States (disloyalty was exhaustively defined
within the wording of that oath). Pursuant to the ratification
of the Fourteenth Amendment (whose clause 3 disqualified, among
others, past supporters of the Confederate cause, with a
provision for removal of such disqualification), Congress
provided in the Act of July 11, 1868, Ch. 129, 15 Stat. 85, for
a specific oath to be taken by those who ``participated in the
late rebellion'' but whose disability for membership in
Congress had been removed by an act of Congress. The 1868 act
contained the form of the oath that is used today. Finally, the
Act of May 13, 1884, Ch. 46, 23 Stat. 22, repealed all of the
lengthy and disqualifying 1862 oath and provided for the 1868
oath to be thenceforth applicable to all officers of the United
States government save the President. Further minor revisions,
now incorporated in 5 USC Sec. 3331, were added by the Act of
Sept. 6, 1966, Pub. L. 89-554, 80 Stat. 424.
---------------------------------------------------------------------------
I, AB, do solemnly swear (or affirm) that I will support and
defend the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and allegiance to
the same; that I take this obligation freely, without any mental
reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am about
to enter. So help me God.
Since appearing to be sworn is a mandatory step to bestow full
membership on persons elected to Congress, there has been some debate
on whether the requirement can be construed as a ``qualification'' for
membership, with Congress determining whether that qualification has
been met.(7) But
[[Page 114]]
no precedents grant to the taking of the oath the status of a
constitutional qualification whereby the House becomes the judge of the
willingness and sincerity of the Member taking it. The United States
Code (2 USC) Sec. 25) provides that the oath be administered to the
Speaker, and by him to the Members and Delegates present and to the
Clerk, ``previous to entering on any other business. . . .'' Although
that statute has been considered directory and not mandatory as to the
general sequence of events at organization,(8) the oath is
always administered first to the Speaker (immediately after his
election) and then to the Members-elect.(9)
---------------------------------------------------------------------------
7. See Ch. 7, infra, wherein is discussed the limits on the power of
the House to exclude a Member-elect for disloyalty.
For a recent general statement on the oath as bestowing
membership, see Sec. 2.1, supra. As to the responsibility of
governmental officials who have omitted to take the required
oath, one federal court stated that where such an official has
been elected or appointed and has discharged his duties, he
would be estopped to deny his right to the office if prosecuted
for an offense committed in the discharge of duties. ``[I]t is
not probable that a failure to take the oath would affect the
acts of one who is by the [United States] Senate actually
admitted to a seat therein, and who actually exercises the
functions of that office, or that it would constitute any
defense to a prosecution for a criminal offense . . . committed
during his incumbency of the office.'' U.S. v Dietrich, 126 F
676, 681, 682 (C.C. Neb. 1904) (dicta). In some Congresses,
Members have taken seats and discharged their functions without
taking the oath for months afterwards; see, for example, 1
Hinds' Precedents Sec. 185. In current practice, Members-elect
take the oath as soon as they appear. See Sec. Sec. 5.13-5.16,
infra.
8. See Ch. 1, Sec. 7, supra, for the traditional sequence of events
based on the statutory language.
9. See Ch. 1, Sec. 7.1, supra.
---------------------------------------------------------------------------
In contemporary practice, the Members are sworn in all at one time,
after the Speaker directs them to rise for that purpose.(10)
If a challenge is to be made to the right of a Member-elect to be
sworn, it is made after the Speaker directs the Members (and the
Delegates and the Resident Commissioner)(11) to rise to take
the oath.(12) Where Members-elect are absent on opening day,
the House may authorize the Speaker himself or a deputy to be appointed
by him to administer the oath to such absentees away from the
House.(13) After the Speaker, or the deputy appointed by
him,(14)
[[Page 115]]
informs the House that the oath has been administered in
absentia,(15) the House adopts a resolution accepting the
administration of the oath to the missing Member-elect.(16)
On occasion, the Speaker pro tempore may be authorized by the House to
administer the oath when the Speaker is absent,(17) but this
procedure is rarely followed because of the explicit statutory
directive to the Speaker.(18) Where the Speaker's office
becomes vacant during a Congress, the oath cannot be administered to
Members-elect until after a new Speaker is elected.(19)
---------------------------------------------------------------------------
10. See Sec. 5.1, infra, for the modern practice and for a discussion
of the former method of administering the oath by states.
11. Since the Resident Commissioner is elected for a four-year term, as
opposed to Members and Delegates, he rises to take the oath
only at the beginning of that term, and not at the convening of
the second Congress for which elected. See Sec. 5.4, infra.
12. See Sec. 6.1, infra.
13. See Sec. Sec. 5.8, 5.9, 5.11, infra. Although the statute directing
the administration of the oath to Members-elect only designates
the Speaker as the proper official, the House has decided that
it has constitutional power to authorize a ``Deputy'' to
administer the oath as well as to perform other functions of
the Speaker. See 1 Hinds' Precedents Sec. 170.
14. While the Speaker has discretion to select a deputy, by custom a
Member of the House is appointed, unless inexpedient, in which
case an official authorized to administer oaths is appointed. 1
Hinds' Precedents Sec. Sec. 14-16. See Sec. 5.11, infra (state
supreme court justice appointed).
15. See Sec. Sec. 5.8, 5.10, 5.12, infra.
16. See Sec. Sec. 5.8, 5.10, 5.12, infra.
17. See Sec. 5.2, infra.
18. Only on rare occasions has the oath been administered to Members-
elect, in the Speaker's absence, by a Speaker pro tempore (see
Sec. 5.2, infra and 6 Cannon's Precedents Sec. 20).
19. See Sec. 5.3, infra.
---------------------------------------------------------------------------
On occasion, it is necessary to administer the oath individually to
Members who are not present for the en masse swearing in ceremony; by
statute, such Members-elect may not take their seats until they are
sworn.(20) The administration of the oath to individual
Members is a privileged matter, and takes precedence over other
business.(1) Administering the oath is in order after the
previous question is ordered on a pending question,(2)
during debate on a resolution, (3~) and on a day when no
other business is permitted.(4)
---------------------------------------------------------------------------
20. 2 USC Sec. 25. For the procedure of administering the oath to
detained Members-elect, see Sec. Sec. 5.13, 5.14, infra.
1. See House Rules and Manual Sec. 233 (comment) (1973). The right of
Members-elect to seats and questions incidental thereto,
including oath administration, are raised under the privilege
of the House itself and not as a matter of personal privilege.
See Cannon's Procedure in the House of Representatives, H. Doc.
No. 122, p. 284, 86th Cong. 1st Sess. (1959).
The administration of the oath takes precedence over even
the privileged motion to adjourn (see 1 Hinds' Precedents
Sec. 622).
2. See Sec. 5.17, infra.
3. See Sec. 5.18, infra.
4. See Sec. 5.19, infra (adjournment out of respect to deceased
Member).
---------------------------------------------------------------------------
In some instances, the House authorizes the administration of the
oath by resolution, as where the right to be sworn has been challenged
or where no credentials have been received for the Member-elect. Some
such resolutions have included provisions collateral to the actual
administration of the oath, such as condi
[[Page 116]]
tions of punishment(5) or conditions that the final right to
the seat be referred to committee.(6)
---------------------------------------------------------------------------
5. See Sec. 5.7, infra.
6. For resolutions relating to challenges and the right to seats, see
Sec. 6, infra.
---------------------------------------------------------------------------
In former times, there existed no documentary evidence of the fact
that the oath had been administered to an individual Member-elect. A
Member-elect might state that he had taken the oath, and his
declaration would be the sole evidence thereof.(7) To remedy
that situation, Congress has by law provided for official copies of the
oath of office taken by a Member-elect, to be accorded conclusive
evidentiary weight, and required that a record of all those subscribing
to the oath be printed in both the Journal and in the Congressional
Record.(8) The single aim of the enactment was to ``provide
a way by which any Member of the House could establish by record
evidence the fact that he took the oath of office and so became a
Member.(9)
---------------------------------------------------------------------------
7. See, for example, the confusing situation created at the beginning
of the 79th Congress, when several Members who were absent for
the calling of the Clerk's roll were present for the swearing
in ceremonies (Sec. 5.20, infra). An early oath provision, the
Act of July 2, 1862, Ch. 128, 12 Stat. 502, required a signed
oath to be preserved in the House files, but the practice was
seldom followed (see 1 Hinds' Precedents Sec. 128). Currently,
5 USC Sec. 2906, enacted in 1966, specifically requires such
preservation by the House.
8. For the form in which the oath administration is recorded in the
Journal and in the Record, see Sec. 5.21, infra. The
authorizing provision which Congress enacted in 1948 (Act of
Feh. 18, 1948, Ch. 53, 62 Stat. 20) appears as the second
paragraph of 2 USC Sec. 25.
9. 2 U.S. Code Cong. Serv. p. 1048 (1948).
---------------------------------------------------------------------------
The only persons entitled to be administered the oath on opening
day are those whose names appear on the Clerk's roll, with the
exclusion of those whose right to take the oath is
challenged;(10) as stated above, the House may add the names
of those Members whose credentials have not appeared but about whose
election there is no contest or question.(11) Members-elect
entitled to take the oath may, however, decline or refuse to do so, by
resigning before taking a seat in the House,(12) since
membership in (Congress
[[Page 117]]
cannot be imposed on one without his consent.(13) A Member-
elect may be permitted to defer his taking of the oath, without
declining his seat, until such time that he meets qualifications not
theretofore met.(14) However, the House may determine a
Member's seat vacant if he is not qualified at the time of
convening.(15)
---------------------------------------------------------------------------
10. The oath is administered to ``Members and Delegates present''
previous to their taking their seats. 2 USC Sec. 25. U.S.
Const. art. VI, clause 3 requires the taking of the oath by
``Representatives before mentioned.''
11. See Sec. 3.5, infra.
12. See 1 Hinds' Precedents Sec. Sec. 1230-35 for past instances of
declination to take the oath by resignation.
13. See U.S. v Dietrich, 126 F 676, 681 (C. C. Neb. 1904), holding,
inter alia, that a person elected a U.S. Senator is not a
``Member of Congress'' until he has been accepted by the Senate
as a Member and until he has voluntarily assumed the duties of
his office, including the taking of the oath.
14. See Sec. 2.5, supra.
15. See 1 Hinds' Precedents Sec. 500.
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A few notable distinctions may be drawn between the administration
of the oath of office in the House and in the Senate. Under Senate
practice, Senators-elect are sworn in four at a time, in alphabetical
order and not by state.(16) And the Senate rarely authorizes
the administration of the oath to an absent Senator-elect away from the
Chamber.(17) In addition, there is no provision according
evidentiary weight to certified copies of the oath of office taken by
Senators-elect, nor is there any statutory provision directing the
sequence of the administration of the oath in relation to other
business. The United States Code merely provides that the oath of
office shall be administered by the President of the Senate to each
Senator-elect, previous to his taking his seat.(18)
---------------------------------------------------------------------------
16. See Sec. 5.23, infra.
17. See Sec. 5.24, infra, for instances wherein the Secretary of the
Senate was authorized to administer the oath to a Senator-elect
in his home state.
18. 2 USC Sec. 21. -------------------
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Administering Officer; Time of Administration
Sec. 5.1 In contemporary practice, immediately following the election
of the Speaker of a new Congress, he swears in Members-elect all at
one time.
On Jan. 5, 1937, the opening day of the 75th
Congress,(1) after the election of Speaker William B.
Bankhead, of Alabama, he made the following announcement:
---------------------------------------------------------------------------
1. 81 Cong. Rec. 12, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Some years ago a precedent which had theretofore existed of
having the oath administered to Members by States was discontinued
and a precedent set whereby all Members took the oath of office at
one and the same time. In order to avoid confusion the Chair thinks
it best to follow the latter precedent, and the Chair asks each
Member of the House and each Delegate to rise in his place while
the Chair administers the oath of office.
[[Page 118]]
The practice preferred by Speaker Bankhead has been followed from
the 71st Congress to the present.(2)
---------------------------------------------------------------------------
2. House Rules and Manual Sec. 230 (comment to U.S. Const. art. VI,
clause 3) (1973) The ``latter precedent'' referred to,
beginning the prevailing practice of swearing in Members and
Delegates all at one time, occurred on Apr. 15, 1929, as an
innovation by Speaker Nicholas Longworth (Ohio). 71 Cong. Rec.
25, 71st Cong. 1st Sess. (paraphrased at 6 Cannon's Precedents
Sec. 8).
---------------------------------------------------------------------------
Sec. 5.2 The House has authorized, by unanimous consent, the Speaker
pro tempore to administer the oath of office to a Member-elect in
the absence of the Speaker.
On Mar. 12, 1940,(3) the House authorized Speaker pro
tempore Sam Rayburn, of Texas, who had been appointed for three
legislative days by Speaker Bankhead on Mar. 11, to administer the oath
of office to Mr. Robert K. Goodwin, of Iowa, in the absence of the
Speaker, after the receipt of a certificate of election of Mr.
Goodwin.(4)
---------------------------------------------------------------------------
3. 86 Cong. Rec. 2724, 76th Cong. 3d Sess.
4. Apparently on only one other occasion has the oath been
administered to an individual Member-elect in the absence of
the Speaker by consent of the House (see 6 Cannon's Precedents
Sec. 20).
---------------------------------------------------------------------------
Sec. 5.3 Where the Speaker dies during the term of a Congress, the oath
cannot be administered to Members-elect to fill vacancies until
after a new Speaker is elected.
On Jan. 10, 1962,(5) the House convened for the second
session after the Speaker, Sam Rayburn, of Texas, had died during the
adjournment sine die. The House immediately proceeded to the election
of Speaker John W. McCormack, of Massachusetts, who then administered
the oath of office to several Representatives-elect to fill vacancies.
The Members-elect had not been included on the roll to establish a
quorum or to elect a Speaker.(6)
---------------------------------------------------------------------------
5. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
6. Where there exists a vacancy in the Speaker's office, there is no
official authorized to administer the oath to Members-elect.
See 2 USC Sec. 25 and 1 Hinds' Precedents Sec. 170.
---------------------------------------------------------------------------
Administration to Resident Commissioner
Sec. 5.4 A Resident Commissioner elected to the House for a four year
term takes the oath of office only once, at the beginning of his
term of office.
On Jan. 21, 1971,(7) the opening day of the 92d
Congress, the Resi
[[Page 119]]
dent Commissioner from Puerto Rico, Mr. Jorge L. Cordova, did not arise
to take the oath of office en masse with the Members-elect, as he had
taken the oath at the beginning of his four-year term, with the
commencement of the 91st Congress.(8)
---------------------------------------------------------------------------
7. 117 Cong Rec. 13, 92d Cong. 1st Sess.
8. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Resolutions Authorizing Oath Administration
Sec. 5.5 When a Member offers a resolution authorizing the Speaker to
administer the oath to a challenged Member before the adoption of
the rules, no amendments are in order unless the Member in control
yields for that purpose or the previous question is rejected.
On Jan. 4, 1965,(9) Mr. Carl Albert, of Oklahoma,
offered the following resolution:
---------------------------------------------------------------------------
9. 111 Cong. Rec. 20, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Resolved, That the Speaker is hereby authorized and directed to
administer the oath of office to the gentleman from New York, Mr.
Richard L. Ottinger.
In response to two parliamentary inquiries by Mr. James C.
Cleveland, of New Hampshire, Speaker John W. McCormack, of
Massachusetts, ruled: the pending resolution was not subject to
amendment unless Mr. Albert yielded for that purpose; and unless Mr.
Albert yielded there would be no opportunity to discuss the merits of
the case prior to the vote on the resolution.
The previous question was ordered and the resolution was agreed to.
Immediately after adoption of the resolution, the challenged Member
appeared at the bar of the House and took the oath of
office.(10)
---------------------------------------------------------------------------
10. Under general parliamentary law, employed by the House before the
adoption of rules (applicable in this instance), the 40 minutes
debate permitted under Rule XXVII clause 3 [House Rules and
Manual Sec. 907 (1971)] after the ordering of the previous
question on a debatable proposition is not in order. See Ch.1
Sec. 9, supra.
---------------------------------------------------------------------------
Sec. 5.6 An amendment providing for conditions of punishment is not
germane to a resolution authorizing the administration of the oath
of office to a Member-elect.
On Jan. 3, 1969,(11) Speaker John W. McCormack, of
Massachusetts, ruled not germane, to a resolution providing that the
Speaker administer the oath of of
[[Page 120]]
fice to Mr. Adam Clayton Powell, Jr., of New York, an amendment adding
several conditions of punishment predicated on acts committed in a
prior Congress.
---------------------------------------------------------------------------
11. 115 Cong. Rec. 23-25, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 5.7 On one occasion, a Representative-elect was administered the
oath of office pursuant to a resolution authorizing the
administration of the oath, but providing for a fine to be deducted
on a monthly basis, reducing seniority to that of a new Member, and
specifying that the Representative-elect must take the oath by a
certain date or his seat would be declared vacant.
On Jan. 3, 1969, Representative-elect Adam Clayton Powell, Jr., of
New York, appeared in the well and was administered the oath of office
as a Member of the 91st Congress,(~2) subsequent to the
adoption by the House of a resolution authorizing such administration
of the oath, but including other provisions as follows:
---------------------------------------------------------------------------
12. 115 Cong. Rec. 33, 34, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
H. Res. 2
Resolved--
(1) That the Speaker administer the oath of office to the said
Adam Clayton Powell, Member-elect from the Eighteenth District of
the State of New York.
(2) That as punishment Adam Clayton Powell be and he hereby is
fined the sum of $25,000, said sum to be paid to the Clerk to be
disposed of by him according to law. The Sergeant-at-Arms of the
House is directed to deduct $1,150 per month from the salary
otherwise due the said Adam Clayton Powell, and pay the same to
said clerk until said $25,000 fine is fully paid.
(3) That as further punishment the seniority of the said Adam
Clayton Powell in the House of Representatives commence as of the
date he takes the oath as a Member of the 91st Congress.
(4) That if the said Adam Clayton Powell does not present
himself to take the oath of office on or before January 15, 1969,
the seat of the Eighteenth District of the State of New York shall
be deemed vacant and the Speaker shall notify the Governor of the
State of New York of the existing vacancy.
Administration to Absentees
Sec. 5.8 The Speaker informs the House of the fact that he has
administered the oath of office to an absent Member-elect pursuant
to an order of the House, whereupon a resolution is offered
accepting such oath.
On Mar. 13, 1933,(13) Speaker Henry T. Rainey, of
Illinois, informed the House that he had ad
[[Page 121]]
ministered the oath of office to absent Member-elect Wilburn
Cartwright, of Oklahoma, as authorized by House Resolution 36. The
House then adopted the following resolution:
---------------------------------------------------------------------------
13. 77 Cong. Rec. 283, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Whereas Wilburn Cartwright, a Representative from the State of
Oklahoma, has been unable from sickness to appear in person to be
sworn as a Member of this House, but has sworn to and subscribed
the oath of office before the Speaker, authorized by resolution of
this House to administer the oath, and the said oath of office has
been presented in his behalf to the House, and there being no
contest or question as to his election: Therefore
Resolved, That the said oath be accepted and received by the
House as the oath of office of the said Wilburn Cartwright as a
Member of this House.
Administration by Deputies
Sec. 5.9 When authorized by resolution to designate deputies to
administer the oath of office to absent Members-elect, the Speaker
usually appoints as deputies Members of the House from the home
states of the absentees.
On Jan. 8, 1937,(14) Speaker William B. Bankhead, of
Alabama, announced that pursuant to authorizing resolutions, he had
appointed Mr. Schuyler O. Bland, of Virginia, to administer the oath of
office to Mr. Andrew J. Montague, of Virginia, Mr. William J. Driver,
of Arkansas, to administer the oath of office to Mr. William B.
Cravens, of Arkansas, and Mr. Clarence F. Lea, of California, to
administer the oath of office to Mr. Henry E. Stubbs, of California.
---------------------------------------------------------------------------
14. 81 Cong. Rec. 133, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 5.10 A Member designated by the Speaker to administer the oath of
office to an absent Member-elect informs the House when he has
performed that duty and offers a resolution accepting the oath.
On Jan. 20, 1943,(15) Mr. Edward J. Hart, of New Jersey,
made the following report to the House:
---------------------------------------------------------------------------
15. 89 Cong. Rec. 245, 246, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Speaker,(16) in accordance with your designation
of me, pursuant to House Resolution 45, Seventy-eighth Congress,
adopted by the House of Representatives, to administer the oath of
office to Representative-elect Mary T. Norton, of the Thirteenth
District of New Jersey, I have the honor to report that on the 16th
day of January 1943, at Jersey City, N.J., I adminis
[[Page 122]]
tered the oath of office to Mrs. Norton, form prescribed by section
1757 of the Revised Statutes of the United States, being the form
of oath administered to Members of the House of Representatives, to
which Mrs. Norton subscribed.
---------------------------------------------------------------------------
16. Speaker Sam Rayburn (Tex.).
---------------------------------------------------------------------------
Mr. Hart then offered a resolution providing that the House accept
the oath so administered to the absent Member-elect.
Sec. 5.11 The Speaker may designate officers of the state judiciary to
administer the oath to absent Members-elect.
On Jan. 7, 1959,(17) the Clerk read the following
statement of Speaker Sam Rayburn, of Texas:
---------------------------------------------------------------------------
17. 105 Cong. Rec. 16, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Pursuant to the authority of House Resolution 11, 86th
Congress, the Chair appoints the Honorable Donald Stephen Taylor,
Justice of the Supreme Court of New York, Troy, N.Y., to administer
the oath of office to the Honorable Dean P. Taylor.
Sec. 5.12 A non-Member named by the Speaker to administer the oath of
office to an absent Member-elect informs the House when he has
performed that duty, whereupon the House adopts a resolution
receiving and accepting such oath.
On Mar. 21, 1933,(18) there was laid before the House a
communication from Judge Blanton Fortson, of the Western Judicial
Circuit, Athens, Georgia, informing the House that he had administered
the oath of office to Mr. Charles H. Brand, of Georgia, in Athens,
Georgia, pursuant to House Resolution 37 and pursuant to the
designation by Speaker Henry T. Rainey, of Illinois, of Judge Fortson
to administer the oath to the absent Member-elect. The House then
adopted the following resolution:
---------------------------------------------------------------------------
18. 77 Cong. Rec. 660, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Whereas Charles H. Brand, a Representative from the State of
Georgia, from the tenth district thereof, has been unable from
sickness to appear in person to be sworn as a Member of this House,
but has sworn to and subscribed the oath of office before Judge
Blanton Fortson, authorized by resolution of this House to
administer the oath, and the said oath of office has been presented
in his behalf to the House, and there being no contest or question
as to his election: Therefore
Resolved, That the said oath be accepted and received by the
House as the oath of office of the said Charles H. Brand as a
Member of this House.
Administration to Delayed Members
Sec. 5.13 Members arriving too late on opening day to take the oath en
masse are administered the oath as they appear at the bar of the
House for that purpose.
[[Page 123]]
On Jan. 3, 1945,(19) Speaker Sam Rayburn, of Texas, made
the following statement, on opening day, in relation to detained
Members:
---------------------------------------------------------------------------
19. 91 Cong. Rec. 14, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Members who have not taken the oath of office will present
themselves in the well of the House and all others will clear the
well of the House.
Sec. 5.14 Members-elect who appear subsequent to the day other Members-
elect are sworn in present themselves in the well of the House and
the Speaker administers the oath to them.
On Jan. 13, 1953,(20) ten days after the opening of the
83d Congress, two House Members-elect who had not yet taken the oath of
office presented themselves in the well of the House and were
administered the oath.
---------------------------------------------------------------------------
20. 99 Cong. Rec. 368, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 5.15 When a term of a Member began on Jan. 3, 1943, he did not
receive the oath of office until Sept. 14, 1943, due to illness.
On Sept. 14, 1943,(1) Speaker Sam Rayburn, of Texas,
administered the oath of office to Representative-elect Lawrence Lewis,
of Colorado, whose term of office commenced with the beginning of the
78th Congress on Jan. 3, 1943. Mr. Lewis was absent due to illness.
---------------------------------------------------------------------------
1. 89 Cong. Rec. 7549, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 5.16 A Member announced, for the information of constituents, that
an absent Member-elect would be delayed in taking the oath because
of his duties as a naval officer overseas.
On Jan. 4, 1945,(2) Mr. John Taber, of New York, made
the following announcement:
---------------------------------------------------------------------------
2. 91 Cong. Rec. 34, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Speaker,(3) Henry J. Latham was elected to
Congress from the Third District of New York last November. He is a
lieutenant in the Navy, and was at that time, and is now, on duty
in the far Pacific. He will not be able to return to this country
to be sworn in until the month of February. I feel, in justice to
his constituents, that I should make this announcement at this
time.
---------------------------------------------------------------------------
3. Speaker Sam Rayburn (Tex.).
---------------------------------------------------------------------------
Privilege of Oath Administration
Sec. 5.17 Administration of the oath of office to a Member-elect is a
matter of high privilege and is in order after the previous
question is
[[Page 124]]
ordered on a pending question.
On Oct. 3, 1969,(4) after the previous question had been
ordered on a bill reported from the Committee of the Whole, Mr. Carl
Albert, of Oklahoma, asked that a Member-elect be permitted to take the
oath of office at that time. The request was granted, and Speaker John
W. McCormack, of Massachusetts, administered the oath to Mr. Michael J.
Harrington, Representative-elect from Massachusetts to fill a vacancy.
Since Mr. Harrington's certificate of election had not yet arrived, the
administration of the oath was authorized by unanimous consent.
---------------------------------------------------------------------------
4. 115 Cong. Rec. 28487, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 5.18 On one occasion, debate on a resolution reported from the
Committee on Rules was interrupted to allow a new Member to take
the oath of office.
On Dec. 24, 1963,(5) debate on a privileged resolution
reported from the Committee on Rules and making in order a conference
report was interrupted to allow Mr. James J. Pickle, of Texas, to take
the oath of office.
---------------------------------------------------------------------------
5. 109 Cong. Rec. 25526, 88th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 5.19 Administration of the oath of office to a Member-elect was
the only business permitted on the day of the death of the Chairman
of the Committee on Appropriations.
On May 12, 1964,(6) the day on which Mr. Clarence A.
Cannon, of Missouri, passed away in the early morning hours, the only
item of business permitted was the administration of the oath to Mr.
William J. Green III, of Pennsylvania.
---------------------------------------------------------------------------
6. 110 Cong. Rec. 10695, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Form; Record Evidence of Administration
Sec. 5.20 Where various Members, detained on opening day, were absent
for the roll call but were present for the swearing in of Members
en masse, the Speaker stated that he would accept the statement of
any Member declaring that he was present for the swearing-in
ceremony; this was permitted prior to the 1948 amendments to 2 USC
Sec. 25, establishing record evidence of swearing-in ceremonies.
On Jan. 3, 1945, after Speaker Sam Rayburn, of Texas, had accepted
the statements of several Members that they were present
[[Page 125]]
for the swearing-in ceremony, but were absent for the roll call due to
late trains,(7) the Speaker made a statement on the subject
pursuant to a parliamentary inquiry by Mr. Harold Knutson, of
Minnesota:(8)
---------------------------------------------------------------------------
7. 91 Cong. Rec. 14, 79th Cong. lst Sess.
8. 91 Cong. Rec. 16, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Knutson: Mr. Speaker, a number of Members were not in the
city at the time the roll call was had but were here in time to be
sworn in. What is their status?
The Speaker: The Chair has sworn in quite a number of Members
since the roll was called.
Mr. Knutson: They were sworn in but the Record does not show
that they were here.
The Speaker: If any Member says he was here at the time of the
swearing in, the Chair will take his statement for it.
Sec. 5.21 The form of the oath and the record of subscription to the
oath of office, as specified by law, appear in the Congressional
Record and in the Journal of the House.
In the 91st Congress, the record of the subscription to the oath by
Members was printed in the Record of Feb. 18, 1969, as follows:
The oath of office required by the sixth article of the
Constitution of the United States, and as provided by section 2 of
the act of May 13, 1884 (23 Stat. 22), to be administered to
Members and Delegates of the House of Representatives, the text of
which is carried in section 1757 of title XIX of the Revised
Statutes of the United States and being as follows:
I, A B, do solemnly swear (or affirm) that I will support
and defend the Constitution of the United States against all
enemies, foreign and domestic; that I will bear true faith and
allegiance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion; and that
I will well and faithfully discharge the duties of the office
on which I am about to enter. So help me God.
has been subscribed to in person and filed in duplicate with the Clerk
of the House of Representatives by each of the following Members and
Resident Commissioner of the 91st Congress, pursuant to Public Law 412
of the 80th Congress entitled ``An act to amend section 30 of the
Revised Statutes of the United States'' (U.S.C., title 2, sec. 25),
approved February 18, 1948. . . .(9)
---------------------------------------------------------------------------
9. 115 Cong. Rec. 3788, 91st Cong. 1st Sess., Feb. 18, 1969; H. Jour.
269, 91st Cong. 1st Sess. (1969).
---------------------------------------------------------------------------
Sec. 5.22 Copies of the signed oath of office executed by House Members
cannot be mandated by the process of ordinary courts without the
permission of the House of Representatives.
[[Page 126]]
On Jan. 9, 1959,(10) the House was informed by the Clerk
of a subpoena from the United States District Court for the Middle
District of Pennsylvania, in the case of United States v John P.
Gilroy, Jr., et al., No. 12880, criminal, commanding the Clerk of the
House to appear before the court with certified copies of the signed
oaths of offices executed by a certain Congressman. In response, the
House adopted a resolution stating that under the privilege of the
House no evidence of a documentary character under the control and in
the possession of the House of Representatives could be mandated by
process of the ordinary courts without the permission of the House. The
resolution further stated that the House would permit the production of
certified copies of the oath of office, along with other papers,
pursuant to a determination by the court upon the materiality and the
relevancy of the papers and documents called for in the subpoena duces
tecum.
---------------------------------------------------------------------------
10. 105 Cong. Rec. 363, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Senate Procedure
Sec. 5.23 In Senate practice, the oath of office is administered to
four Senators at a time in alphabetical order; each four Senators
are accompanied to the desk by four other Senators.
On Jan. 3, 1953,(11) Vice President Alben W. Barkley, of
Kentucky, announced as follows:
---------------------------------------------------------------------------
11. 99 Cong. Rec. 7, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
The Secretary will now call, alphabetically, and in groups of
four, the names of the Senators-elect who as their names are called
will advance to the desk and the oath of office will be
administered to them.
The legislative clerk called the names of the first four Senators,
who were escorted to the desk by four other Senators.
Sec. 5.24 Although the House regularly authorizes the administration of
the oath to absent Members-elect, the Senate has done so only on
rare occasions, one occurring since 1936.
On many occasions, the House authorizes the administration of the
oath at the beginning of a new Congress to absentees, either by the
Speaker himself or through deputies.(12) The Senate,
however, has provided such authorization on only two recorded
occasions, the first on May 3, 1929,(13) and
[[Page 127]]
the second on Jan. 3, 1973, when the Secretary of the Senate was
authorized by resolution to administer the oath of office to Senator-
elect Joseph R. Biden, of Delaware, absent because of a death in his
family.(14)
---------------------------------------------------------------------------
12. See Sec. Sec. 5.8, 5.9, and 5.11, supra. See also 6 Cannon's
Precedents Sec. Sec. 14-16.
13. 71 Cong. Rec. 833, 71st Cong. 1st Sess.
14. 119 Cong. Rec. 9, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 6. Challenging the Right to be Sworn
When the Speaker directs the membership-elect of the House to arise
to take the oath of office, any Member-elect may challenge the right of
any other Member-elect to be sworn at that time.(15) In
stating his objection to the right of another to be sworn, the Member-
elect must base his challenge either on his own responsibility as a
Member-elect, or on specific grounds.(16) If neither basis
is stated to support the challenge, the House may decline to entertain
it.(17) A Member-elect may also challenge the right of an
entire state delegation to be administered the oath.(18)
Usually, such a challenge relates not to the qualifications or
elections of the individual members of the state delegation, but to the
status of the constituency.(~19)
---------------------------------------------------------------------------
15. For the procedure of challenging, see Sec. 6.1, infra. The
authority to challenge the right of a Member-elect to be sworn
is based on U.S. Const. art. I, Sec. 5, clause 1, which
constitutes the House as the sole judge of the elections,
returns, and qualifications of Members. Challenges are made
before the oath is administered because the oath is given under
art. VI, clause 3, to ``Representatives before mentioned'',
meaning those who meet the qualifications and election
requirements stated in the Constitution. The right of one
Member-elect not yet sworn to challenge the right of another
not yet sworn is unquestioned (see 1 Hinds' Precedents
Sec. 141).
House as judge of qualifications, see The Power of a House
of Congress to Judge the Qualifications of Its Members, 81
Harv. L. Rev. 673-84 (Jan. 1968).
16. See Sec. 6.2, infra.
17. 1 Hinds' Precedents Sec. 455.
18. See, for example, 1 Hinds' Precedents Sec. Sec. 457, 460-462.
19. See Parliamentarian's Note, Sec. 6.4, infra (systematic state
denial of voting rights). For occasions following the Civil War
when entire state delegations were challenged on the ground of
collective disloyalty, see 1 Hinds' Precedents Sec. Sec. 457,
460-462.
---------------------------------------------------------------------------
When a challenge is proposed, the Speaker asks the challenged
Member(s) not to rise to take the oath with the rest of the membership,
as the House and not the Speaker determines both the preliminary and
the final action to be taken on any challenges.(20)
---------------------------------------------------------------------------
20. See Sec. 6.1, infra. The statement has been made that the Speaker
may, but is not required to, direct the challenged Member-elect
to stand aside (1 Hinds' Precedents Sec. Sec. 143-146). The
Speaker has held, however, that such request is a matter of
order, for the convenience of procedure (1 Hinds' Precedents
Sec. 145). The Speaker has recently held that debate on the
right to be sworn of a challenged Member-elect is not in order
until after the remaining Members have been sworn (see
Sec. 6.3, infra).
---------------------------------------------------------------------------
[[Page 128]]
When the right to be sworn of an individual Member-elect is
challenged, he generally loses no rights thereby,(1) except
for his right to vote.(2) While his case is pending, he may
be permitted to debate his own right to the seat,(3) and may
serve on committees.(4) Challenged cases are taken up in the
order in which challenges were made.(5)
---------------------------------------------------------------------------
1. See 1 Hinds' Precedents Sec. 155. See Sec. 2, supra, for the status
of Members-elect.
2. After the membership of the House has been sworn in en masse,
Members-elect who have not taken the oath due to absence or due
to challenges are not entitled to vote until being sworn. See
Sec. 2.2, supra.
3. See Sec. 2.5, supra. Rule XXXII clause 1, House Rules and Manual
Sec. 919 (1973) grants the privilege of the floor to
contestants in election cases.
4. See 4 Hinds' Precedents Sec. 4483. This is the traditional view, as
stated by Jefferson's Manual: ``. . . 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). For a summary of the
rights and privileges of Members-elect not yet sworn, see
Sec. 2, supra.
5. See 1 Hinds' Precedents Sec. Sec. 147, 148. Where a division is
demanded on one resolution to seat several claimants, the oath
may be administered to each as soon as his case is decided (see
1 Hinds' Precedents Sec. 623).
---------------------------------------------------------------------------
The pendency of a challenge does not preclude the entertainment of
other business before the House, and all other organizational business
may be completed before a challenge is resolved.(6) By
unanimous consent, the House may also proceed to general legislative
business pending consideration of the right of a Member to be
sworn.(7)
---------------------------------------------------------------------------
6. See 1 Hinds' Precedents Sec. 474.
7. See 1 Hinds' Precedents Sec. Sec. 151, 152.
---------------------------------------------------------------------------
After the unchallenged membership of the House has been sworn, some
preliminary action is usually taken on each challenge. The House may
simply seat a Member by authorizing the administration of the oath;
such a resolution may determine his prima facie as well as final right
to the seat.(8) A com
[[Page 129]]
mon type of resolution authorizes the administration of the oath to the
challenged Member-elect based on his prima facie right to the seat, but
refers the determination of his final right to committee.(9)
The third type of resolution refers the prima facie as well as the
final right to the seat to committee, without authorizing the
administration of the oath.(10) The determination by the
House as to which kind of resolution to adopt depends on both the
sufficiency of the credentials and on the strength of the grounds for
challenge.(11)
---------------------------------------------------------------------------
8. See, for example, the resolution at Sec. 6.5, infra. The Member
proposing a resolution to seat a challenged Member-elect may,
prior to the adoption of rules, move the previous question and
cut off all debate on the subject, since House Rule XXVII
clause 3 (House Rules and Manual Sec. 907 [1973]), allowing 40
minutes debate in certain situations when the previous question
is moved, is inapplicable prior to the adoption of rules (see
Ch. 1, supra, for a full discussion; see Sec. 5.5, supra, for a
recent instance thereof). If the previous question is rejected,
or if the proposing Member yields for the purpose, amendments
may be offered, if germane, to a resolution authorizing the
administration of the oath to a Member-elect (see Ch. 1,
Sec. 12, supra, for a general discussion; see Ch. 1, Sec. 12.7,
supra, for an occasion where such an amendment was held not
germane).
9. Admission on prima facie right, without regard to final right,
usually occurs when the Member-elect comes from a recognized
constituency, vith credentials in due form and with
unquestioned qualifications (see 1 Hinds' Precedents
Sec. Sec. 528-534)
10. See Sec. Sec. 6.6, 6.7, infra.
11. For specific election contests and House action thereon, see Ch. 9,
infra.
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Except for the exclusion of Members-elect from the Clerk's roll for
irregularities in credentials, no action is taken upon the right of a
Member-elect to his seat until the time comes for his taking the oath.
Therefore, when a Representative-elect was excluded from the 90th
Congress and was re-elected to the same Congress after a vacancy in the
seat had been declared, Speaker John W. McCormack, of Massachusetts,
ruled that no action would be taken upon his right to membership until
he appeared to take the oath and was challenged once
again.(12)
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12. See Sec. 6.8, infra, for the ruling. See Sec. 6.9, infra, for the
challenge that was made when the Representative-elect appeared
to take the oath.
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Forms
Form of resolution providing that a Member, who had been asked
to stand aside when the oath was administered to the other Members,
be permitted to take the oath of office.
Resolved, That the gentleman from Missouri, Mr. Morgan M.
Moulder, be now permitted to take the oath of
office.(13)
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13. 107 Cong. Rec. 24, 87th Cong. 1st Sess., Jan. 3, 1961.
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[[Page 130]]
Form of resolution authorizing the Speaker to administer the
oath of office to a challenged Member-elect and providing that the
question of final right to his seat be referred to the Committee on
House Administration.
Resolved, That the Speaker is hereby authorized and
directed to administer the oath of office to the gentleman from
Arkansas, Mr. Dale Alford.
Resolved, That the question of the final right of Dale
Alford to a seat in the 86th Congress be referred to the
Committee on House Administration, when elected, and said
committee shall have the power to send for persons and papers
and examine witnesses on oath in relation to the subject matter
of this resolution.(14)
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14. 105 Cong. Rec. 14, 86th Cong. 1st Sess., Jan. 7, 1959.
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Form of resolution providing that the question of the right of
either of two contestants for a seat be referred to the Committee
on House Administration, and providing that until that committee
has reported, and the House decided, neither the Member-elect nor
the contestee should take the oath of office.
Resolved, That the question of the right of J. Edward Roush
or George O. Chambers, from the Fifth Congressional District of
Indiana, to a seat in the 87th Congress be referred to the
Committee on House Administration, when elected, and said
committee shall have the power to send for persons and papers
and examine witnesses on oath in relation to the subject matter
of this resolution; and be it further.
Resolved, That until such committee shall report upon and
the House decide the question of the right of either J. Edward
Roush or George O. Chambers to a seat in the 87th Congress,
neither shall be sworn.(15)
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15. 107 Cong. Rec. 24, 87th Cong. 1st Sess., Jan. 3,
1961. -------------------
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Form and Procedures of Challenges
Sec. 6.1 A Member-elect challenges the right of another Member-elect to
take the oath prior to the swearing in of Members-select en masse,
whereupon the Speaker requests the challenged Member-elect to stand
aside.
On Jan. 5, 1937,(16) after Speaker William B. Bankhead,
of Alabama, had requested the membership of the House to rise for the
administration of the oath of office, Mr. John J. O'Connor, of New
York, arose and said:
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16. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
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Mr. Speaker, I ask that the gentleman from New Hampshire [Mr.
Jenks] stand aside.
Despite the fact that a certificate of his election has been
filed with the Speaker, it may be impeached by certain facts which
tend to show that he has not received a plurality of the votes duly
cast in that congressional district.
The Speaker: The gentleman from New Hampshire will stand aside
momentarily.(17)
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17. For examples of similar requests by the Speaker when challenges
have been made, see 111 Cong. Rec. 18, 19, 89th Cong. 1st
Sess., Jan. 4, 1965; 113 Cong. Rec. 14, 90th Cong. 1st Sess.,
Jan. 10, 1967; 115 Cong. Rec. 15, 91st Cong. 1st Sess., Jan. 3,
1969.
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[[Page 131]]
Sec. 6.2 A Member-elect challenging the right of another to be sworn
offers, as a basis for challenge, either his own responsibility as
a Member-elect, or the strength of documents, or both.
On Jan. 10, 1967,(18) Member-elect Lionel Van Deerlin,
of California, stated a challenge to the right of another Member-elect
to be sworn in the following terms:
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18. 113 Cong. Rec 14, 90th Cong. 1st Sess.
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Mr. Speaker, upon my responsibility as a Member-elect of the
90th Congress, I object to the oath being administered at this time
to the gentleman from New York [Mr. Adam C. Powell]. I base this
upon facts and and statements which I consider reliable. ...
The same language has often been used to propose
challenges,(19) although on Jan. 3, 1937,(20)
Member-elect John J. O'Connor, of New York, stated a challenge not on
the basis of his responsibility but on facts tending to show that the
challenged Member-elect had not received a plurality of votes in the
district from which elected.(1)
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19. See, e.g., statement of Mr. William F. Ryan (N.Y.), 111 Cong. Rec.
18, 89th Cong. 1st Sess., Jan. 4, 1965; statement of Mr.
Clifford Davis (Tenn.), 107 CONG. REC. 23, 87th Cong. 1st
Sess., Jan 3, 1961.
20. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
1. If a challenge does not propose either the strength of documents or
the responsibility of the challenging Member-elect, the House
will not entertain it. 1 Hinds' Precedents Sec. 455.
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Debate on Challenges
Sec. 6.3 It is not in order to debate a challenged Member's right to
take the oath of office at the beginning of a Congress until the
remaining Members-elect have been sworn in.
On Jan. 5, 1937,(2) after Mr. John J. O'Connor, of New
York, had challenged the right of a Member-elect to take the oath, Mr.
Bertrand H. Snell, of New York, arose to state certain remarks as to
the certificate held by the challenged Member-elect and as to the
principle that in standing aside, the challenged Member-elect yielded
none of his rights or privileges as a Member of the House. Mr. O'Connor
then arose to state a point of order, as follows:
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2. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
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Mr. O'Connor: Mr. Speaker, I make the point of order that at
this par
[[Page 132]]
ticular time the matter is not debatable. . . .
Mr. Snell: I think I have the right to make this statement now
and under the circumstances should be allowed to make it.
The Speaker:(3) The request made by the gentleman
from New York was that the gentleman holding the certificate of
election from the State of New Hampshire stand aside momentarily.
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3. William B. Bankhead (Ala.).
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The Chair is of the opinion that he waives no rights and just
as soon as the other Members take the oath the matter can be
settled. ...
The Chair will recognize the gentleman later if he desires to
extend his argument.
Challenge to a Delegation
Sec. 6.4 The right of an entire state delegation of Representatives-
elect to take the oath may be challenged.
On Jan. 4, 1965,(4) Mr. William F. Ryan, of New York,
challenged, on his behalf and on the behalf of a number of colleagues,
the right of the Representatives-elect from Mississippi (Mr. Abernathy,
Mr. Whitten, Mr. Williams, Mr. Walker, and Mr. Colmer) to take the oath
of office. Speaker John W. McCormack, of Massachusetts, requested the
Representatives-elect from Mississippi as well as a challenged Member-
elect from another state not to rise to take the oath with the other
Members being sworn in en masse.
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4. 111 Cong. Rec. 18, 19, 89th Cong. 1st Sess.
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Parliamentarian's Note: The challenge to the Mississippi delegation
was based on the constitutional argument that systematic denial of
Negro voting rights throughout Mississippi invalidated the election of
the entire House delegation from that state.
Sec. 6.5 The House may authorize, through one resolution, the
administration of the oath to an entire state delegation which has
been challenged.
On Jan. 4, 1965,(5) after unchallenged Members of the
House had been sworn in, the following resolution was offered, in
relation to an entire state delegation that had been challenged:
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5. 111 Cong. Rec. 18, 19, 89th Cong. 1st Sess.
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Resolved, That the Speaker is hereby authorized and directed to
administer the oath of office to the gentlemen from Mississippi,
Mr. Thomas G. Abernathy, Mr. James L. Whitten, Mr. John Bell
Williams, Mr. William M. Colmer, and Mr. Prentiss Walker.
Immediately after the adoption of the resolution, the five Members-
elect from Mississippi were sworn in all at one time.
[[Page 133]]
Preliminary House Action on Challenges
Sec. 6.6 When two persons claimed a seat in the House from the same
congressional district, one with a certificate of election signed
by the Governor of the state and the other with a certificate of
election from a citizens' election committee of the congressional
district, the House refused to permit either to take the oath of
office and referred the question of their prima facie as well as
final right to the seat to the Committee on Elections.
On Jan. 3, 1934,(6) the Clerk of the House, South
Trimble, transmitted to the House a signed certificate of the Governor
of Louisiana attesting to the election of Mrs. Bolivar E. Kemp, Sr., to
fill the vacancy caused by the death of the Honorable Bolivar E. Kemp.
He also transmitted a communication from the Citizens' Election
Committee of the Sixth Congressional District of the State of Louisiana
in the form of a certificate of election of Mr. J.Y. Sanders, Jr., to
fill the same vacancy. The House then adopted the following resolution:
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6. 78 Cong. Rec. 11, 12, 73d Cong. 2d Sess.
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Resolved, That the question of prima facie as well as the final
right of Mrs. Bolivar E. Kemp, Sr., and J.Y. Sanders, Jr.,
contestants, respectively, claiming a seat in this House from the
Sixth District of Louisiana, be referred to the Committee on
Elections No. 3; and until such committee shall have reported in
the premises and the House decided such question neither of said
contestants shall be admitted to a seat.
Sec. 6.7 The House agreed to a resolution excluding a Member-elect
pending an investigation of his right to the seat, which referred
to a select committee questions of his right to be sworn and to
take the seat, permitted him pay and allowances of the House
pending a final determination, and required the committee to report
back to the House within a prescribed time.
On Jan. 10, 1967,(7) the House agreed to a resolution
excluding Mr. Adam C. Powell, Jr., of New York, from his seat pending
the final determination of his right to be sworn:
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7. 113 Cong. Rec. 24-26, 90th Cong. 1st Sess.
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Resolved, That the question of the right of Adam Clayton Powell
to be sworn in as a Representative from the State of New York in
the Ninetieth Congress, as well as his final right to a seat
therein as such Representative, be referred to a special committee
of
[[Page 134]]
nine Members of the House to be appointed by the Speaker, four of
whom shall be Members of the minority party appointed after
consultation with the minority leader. Until such committee shall
report upon and the House shall decide such question and right, the
said Adam Clayton Powell shall not be sworn in or permitted to
occupy a seat in this House.
For the purpose of carrying out this resolution the committee,
or any subcommittee thereof authorized by the committee to hold
hearings, is authorized to sit and act during the present Congress
at such times and places within the United States, including any
Commonwealth or possession thereof, or elsewhere, whether the House
is in session, has recessed, or has adjourned, to hold such
hearings, and to require, by subpoena or otherwise, the attendance
and testimony of such witnesses and the production of such books,
records, correspondence, memorandums, papers, and documents, as it
deems necessary; except that neither the committee nor any
subcommittee thereof may sit while the House is meeting unless
special leave to sit shall have been obtained from the House.
Subpoenas may be issued under the signature of the chairman of the
committee or any member of the committee designated by him, and may
be served by any person designated by such chairman or member.
Until such question and right have been decided, the said Adam
Clayton Powell shall be entitled to all the pay, allowances, and
emoluments authorized for Members of the House.
The committee shall report to the House within five weeks after
the members of the committee are appointed the results of its
investigation and study, together with such recommendations as it
deems advisable. Any such report which is made when the House is
not in session shall be filed with the Clerk of the House.
Challenge to Member Once Excluded
Sec. 6.8 Where a Representative-elect, excluded from membership in a
particular Congress is re-elected to the same Congress, it is for
the House to determine the procedure to be followed if and when he
appears to take the oath; no action is taken until such time that
the Representative-elect appears to take the oath and is again
challenged.
On May 1, 1967,(8) Speaker John W. McCormack, of
Massachusetts, responded to a parliamentary inquiry as to the necessity
of the House to take affirmative action when a Representative-elect,
excluded from membership ``in the Ninetieth Congress'', by resolution,
was re-elected to the same Congress. The Speaker stated that when the
Member appeared, if he was challenged, it would be a matter for the
House to decide and for the
[[Page 135]]
House to express its will upon. He stated that the leadership intended
to take no action with regard to the seating of such Member until he
appeared to take the oath.
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8. 113 Cong. Rec. 11298, 90th Cong. 1st Sess.
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Sec. 6.9 The right to take the oath of a Member-elect. who had been
excluded by resolution from membership in the 90th Congress, was
challenged in the 91st Congress.
On Jan. 3, 1969,(9) the right to be sworn of Mr. Adam C.
Powell, Jr., of New York, Representative-elect to the 91st Congress,
was challenged. Mr. Powell had been excluded by the House from
membership in the 90th Congress. The Speaker(10) asked Mr.
Powell to stand aside while the oath of office was administered to the
other Members.
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9. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
10. John W. McCormack (Mass.).
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Senate Challenges
Sec. 6.10 On one occasion, a Senator-elect died while there was pending
in the Senate a question as to his right to take the oath of
office.
On Jan. 4, 1947,(11) the Senate laid on the table the
credentials of Mr. Theodore G. Bilbo, of Mississippi, whose seat was
challenged, pending the improvement of his physical condition. Mr.
Bilbo died on Aug. 21, 1947, before the matter was again brought before
the Senate.
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11. 93 Cong. Rec. 109, 80th Cong. 1st Sess.