[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
  
  
---------------------------------------------------------------------------
    Commentary and editing by Peter D. Robinson, J.D.

---------------------------------------------------------------------------

[[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.
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
 7. For the sequence of organizational business, while the Speaker is 
        presiding at organization, see Ch. 1, Sec. 7, supra.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------


 
                               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)
---------------------------------------------------------------------------
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]).

---------------------------------------------------------------------------

[[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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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]).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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'').
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
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.                          -------------------
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------
19. 77 Cong. Rec. 283, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.                          -------------------
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

                                 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)
---------------------------------------------------------------------------
13. 107 Cong. Rec. 24, 87th Cong. 1st Sess., Jan. 3, 1961.

---------------------------------------------------------------------------

[[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)
---------------------------------------------------------------------------
14. 105 Cong. Rec. 14, 86th Cong. 1st Sess., Jan. 7, 1959.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
15. 107 Cong. Rec. 24, 87th Cong. 1st Sess., Jan. 3, 
        1961.                          -------------------
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------
16. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
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.

---------------------------------------------------------------------------

[[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:
---------------------------------------------------------------------------
18. 113 Cong. Rec 14, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------
 2. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
 3. William B. Bankhead (Ala.).
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
 4. 111 Cong. Rec. 18, 19, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------
 5. 111 Cong. Rec. 18, 19, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

        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:
---------------------------------------------------------------------------
 6. 78 Cong. Rec. 11, 12, 73d Cong. 2d Sess.
---------------------------------------------------------------------------

        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:
---------------------------------------------------------------------------
 7. 113 Cong. Rec. 24-26, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
 8. 113 Cong. Rec. 11298, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
 9. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
10. John W. McCormack (Mass.).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
11. 93 Cong. Rec. 109, 80th Cong. 1st Sess.
