[Deschler-Brown Precedents, Volume 14, Chapter 30]
[Chapter 30. Voting]
[A. Generally]
[§ 5. Tie Votes; Supermajority Votes]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 11478-11490]
CHAPTER 30
Voting
A. GENERALLY
Sec. 5. Tie Votes; Supermajority Votes
Under a rule in effect since the First Congress, a question which
results in a tie vote is lost.(9) The Speaker, who
ordinarily does not vote on all legislative propositions before the
House, has the prerogative of voting; and in Rule I clause 6, he is
``required to vote . . . where his vote would be decisive.'' In the
days preceding the advent of electronic voting, when the yeas and nays
were taken by a call of the roll, the Speaker's name was not on the
roll and was not called unless the Speaker directed that it be called.
However, the Speaker can count himself on a division vote, can submit
his card where a vote is taken by tellers with clerks, and can exercise
his responsibility to be the decisive vote on a vote taken by
electronic device.(10)
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9. Rule I clause 6: He shall not be required to vote in ordinary
legislative proceedings, except where his vote would be
decisive, or where the House is engaged in voting by ballot;
and in cases of a tie vote the question shall be lost. House
Rules and Manual Sec. 632 (1995).
10. See Sec. 5.1, infra.
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The majority required to pass an amendment to the Constitution, to
override a veto, or to adopt a motion to suspend the rules is two-
thirds of the Members voting, a quorum being present.(11)
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11. See Sec. 5.2, infra. -------------------
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Sec. 5.1 Before announcing the result of a vote taken by electronic
device, the Speaker may cast a decisive vote by advising the tally
clerk of his vote to break a tie and verifying that vote for the
record by submitting an appropriate ballot card.
On Oct. 17, 1990,(12) Speaker Thomas S. Foley, of
Washington, cast the decisive vote on an amendment reported from the
Committee of the Whole. The proceedings were as follows:
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12. 136 Cong. Rec. 30229, 30230, 101st Cong. 2d Sess.
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The Speaker Pro Tempore: Under the rule, the previous question
is ordered.
[[Page 11479]]
Is a separate vote demanded on any amendment?
Mr. [Henry J.] Hyde [of Illinois]: Mr. Speaker, I demand a
separate vote on the so-called Solarz amendment, as amended.
The Speaker Pro Tempore: Is a separate vote demanded on any
other amendment?
If not, the Chair will put them en gros.
The amendments were agreed to.
The Speaker Pro Tempore: The Clerk will report the amendment on
which a separate vote has been demanded.
The Clerk read as follows:
Amendment: Page 25, after line 18, add the following:
title vi--incentives for peace in angola . . .
The Speaker Pro Tempore: The question is on the amendment.
The question was taken; and the Speaker Pro Tempore announced
that the noes appeared to have it.
Mr. [Harold L.] Volkmer [of Missouri]: Mr. Speaker, on that I
demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
207, nays 206, not voting 21, as follows: . . .
The Speaker: On this vote the yeas are 206, and the nays are
206.
The Chair votes ``aye.''
The yeas are 207.
So the amendment was agreed to.
The Speaker: The question is on the engrossment and third
reading of the bill.
Two-thirds Votes
Sec. 5.2 The majority required in the House to pass an amendment to the
United States Constitution is, like the majority required to pass a
bill over the President's veto (13) and to adopt a
motion to suspend the rules,(14) two-thirds of those
Members voting either in the affirmative or negative, a quorum
being present, and Members who only indicate that they are
``present'' are not counted in the computation.
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13. See 7 Cannon's Precedents Sec. 1111.
14. See Speaker Thomas P. O'Neill's Dec. 16, 1981, ruling at 127 Cong.
Rec. 31856, 97th Cong. 1st Sess.
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On Nov. 15, 1983,(15) Mr. Robert H. Michel, of Illinois,
propounded a parliamentary inquiry pertaining to the vote required on
an amendment to the Constitution, to which Speaker Pro Tempore James C.
Wright, Jr., of Texas, responded. The proceedings were as follows:
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15. 129 Cong. Rec. 32667, 32668, 98th Cong. 1st Sess.
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Mr. Michel: In the short time available to us, Mr. Speaker, I
have reviewed the precedents on the subject of the consideration by
this House of a proposed amendment to the Constitution under a
motion to suspend the rules.
Mr. Speaker, precedents are rare on this question, although I
believe it to be of profound significance to the deliberations we
are about to embark upon.
[[Page 11480]]
The question which I would like the Chair to address is the
question as to whether those Members voting present on any proposed
constitutional amendment are included in determining whether two-
thirds have voted in the affirmative. With the indulgence of the
Chair, I would like to review the applicable provision under which
this question is raised.
Mr. Speaker, there are no precedents, at least none available
to this Member, under the provisions of rule XXVII of the rules of
the House--the so-called suspension of the rules provisions--which
address the question of counting those Members voting present on
the passage of a constitutional amendment.
There are no precedents under the provisions of article V of
the Constitution, the article which delineates the manner and mode
of proposing and ratifying amendments to the Constitution.
There is only one precedent which is available on this
question, Mr. Speaker, and that precedent occurred on August 13,
1912. I refer specifically to section 1111 of volume 7, Cannon's
Precedents of the House of Representatives, which states:
The two-thirds vote required to pass a bill notwithstanding
the objections of the President is two-thirds of the Members
voting and not two-thirds of those present.
That precedent addressed the question of whether those
answering ``present'' should be taken into consideration or
excluded in determining whether two-thirds have voted for passing a
bill over the President's veto. That question should be considered
separate and distinct from the one we have before us today.
If the Chair were to examine that one precedent to which I
refer, he will find that it is based wholly on the language of
article I, section 7 of the Constitution, which states in part:
If after such Reconsideration two thirds of that House
shall agree to pass the Bill, it shall be sent, together with
the Objections, to the other House, by which it shall likewise
be reconsidered, and if approved by two thirds of that House,
it shall become a Law. But in all such Cases the Votes of both
Houses shall be determined by Yeas and Nays, and the Names of
the Persons voting for and against the Bill shall be entered on
the Journal of each House respectively.
Matters of law are measured and judged on every word, comma,
and period of our great Constitution.
The provisions providing for the passage of a vetoed bill and
only those voting for and against being entered upon the Journal of
the House are substantially different from the provisions of
article V dealing with those instances ``whenever two thirds of
both Houses shall deem it necessary'' to propose amendments to our
Constitution.
I think this question requires the closest examination, as do
all matters involving our Constitution.
I will state my inquiry one more time, if I might, Mr. Speaker.
On the question of the House of Representatives proposing an
amendment to the Constitution, should those answering ``present''
be taken into consideration in determining whether two-thirds shall
have deemed it necessary to propose such an amendment?
And the most important language upon which our only precedent
is based is that which states:
[[Page 11481]]
But in all such Cases the Votes of the Houses shall be
determined by Yeas and Nays, and the Names of the Persons
voting for and against the Bill shall be entered on the Journal
. . .
That is a profound distinction from the procedure required
under the provision of article V dealing with constitutional
amendments. The one precedent is founded on the requirement of a
yea and nay vote, and that only those votes be entered on the
Journal. Article I, section 7, does not contemplate ``present''
votes, but article V is silent on this question, and because we
have no precedent, at least that this Member could find, we need a
ruling that would apply to the situation we are facing today.
That is why, Mr. Speaker, I have propounded this parliamentary
inquiry.
The Speaker Pro Tempore: The distinguished gentleman from
Illinois, the minority leader, has requested the Chair to interpret
the requirement of article V of the U.S. Constitution that a two-
thirds vote of the House is necessary to propose an amendment to
the Constitution.
It is a well-settled rule, as indicated by the precedents cited
in section 192 of the Constitution and House Rules and Manual, that
the vote required on a joint resolution proposing a constitutional
amendment is two-thirds of those voting, a quorum being present,
and not two-thirds of the entire membership.
The Supreme Court of the United States has addressed the same
issue and concluded in 1920, in the National Prohibition cases,
volume 253 of the U.S. Reports, page 386, that--
The two-thirds vote in each House which is required in
proposing an amendment is a vote of two-thirds of the members
present--assuming the presence of a quorum--and not a vote of
two-thirds of the entire membership, present and absent.
Now, as to the status of Members who vote present on a rollcall
vote on a proposition which requires a two-thirds majority for
passage, the Chair has no doubt that under the rules and under the
practices and precedents of the House, and under parliamentary law
in general, Members who indicate their presence only and do not
vote either yea or nay on a question of this type are not to be
counted, as they are not counted on any other question, in
determining whether the proposition has been approved by the
appropriate or required majority.
Speaker Champ Clark delivered an extensive ruling in 1912, in
the 62d Congress, on that precise issue. It involved the passage of
a bill over Presidential veto. Although the passage of a bill over
Presidential veto requires a vote by the yeas and nays, the two-
thirds majority which is required for that action, under article
II, section 7, clause 2 of the Constitution is the same, identical
two-thirds majority required to propose a constitutional amendment.
In 1912 the issue before the Chair was stated as follows:
On a roll call on passing a bill over the President's veto,
in determining whether two-thirds have voted for it, should
those answering ``present'' be taken into consideration or
excluded therefrom?
Speaker Clark ruled as follows, and I quote from his ruling:
The Constitution does not provide for a Member voting
``present,'' but
[[Page 11482]]
the rules of the House in order to eke out a quorum, have
provided that they can vote ``present.'' They have to answer
``aye'' or ``nay'' on the roll call in order to be counted on
passing a bill over the President's veto. That is a requirement
of the Constitution, and if the contention were on a
proposition which required only a majority it would be the same
way. In fact, that is one unvarying rule of procedure whenever
the roll is called on any proposition. The Chair announces:
``so many ayes, so many nays, so many present; the ayes-or
nays, as the case may be--have it.'' Those voting ``present''
are disregarded except for the sole purpose of making a quorum.
Speaker Clark went on to say:
These gentlemen were here simply for the purpose of making
a quorum. It is clear that to count them on this vote would be
to count them in the negative, and the Chair does not believe
that any such contention as that is tenable.
Now, the distinguished gentleman from Illinois has emphasized
the requirement of article I, section 7, that the names of the
persons voting for and against a bill over Presidential veto be
entered on the Journal, in order to distinguish the status of
Members only recording their presence on a veto override as opposed
to Members only recording their presence on passage of a
constitutional amendment.
It appears to the Chair that the requirement of the Journal
entry on veto override merely emphasizes that the vote in that
circumstance must be taken by the yeas and nays, with the names of
the Members recorded. If the yeas and nays are ordered by one-fifth
of the Members present on any other question, article I, section 5,
clause 3 requires that the yeas and nays of the Members be entered
on the Journal, and makes no mention of Members who are present for
the vote but do not cast their votes on one side or the other. The
fact that the House has determined to authorize Members to be
present and record that fact without taking a position affords no
constitutional status to such a decision except to be counted for a
quorum.
The Chair would also point out that the present Speaker, Mr.
O'Neill, has ruled on the status of Members who vote ``present'' on
a motion to suspend the rules. On December 16, 1981, Speaker
O'Neill ruled, in response to a parliamentary inquiry, following a
rollcall vote on a motion to suspend the rules and pass H.R. 5274,
that a motion to suspend the rules may be agreed to by two-thirds
of the Members voting yea or nay, a quorum being present, and
Members voting ``present'' are only counted to establish a quorum
and not to determine a two-thirds majority.
Thus, as stated in chapter 21, section 9.21 of Deschler's
Precedents of the House of Representatives, a motion to suspend the
rules is an appropriate parliamentary method for consideration of a
constitutional amendment and has previously been utilized for that
purpose.
Mr. Michel: Mr. Speaker, I thank the Chair for responding to my
parliamentary inquiry and I am sure that will clarify much more
clearly and demonstrate a precedent for the future.
I thank the Chair.
Sec. 5.3 Debate on issues surrounding constitutionality of
supermajority votes.
[[Page 11483]]
In the 104th Congress, the House adopted a new provision in Rule
XXI which required a three-fifths vote of the Members voting to pass
any bill, joint resolution, amendment, or conference report carrying a
tax rate increase.(16) Under the provisions of House
Resolution 5, 104th Congress, providing for the consideration of House
Resolution 6, establishing the rules for that Congress, section 106 of
the rules package, which contained the new requirement for the
supermajority vote of three-fifths, was subject to separate debate and
a separate vote.(17) When this provision was reached during
the consideration of House Resolution 6, questions regarding the
constitutionality of the provision were raised in the debate. The
proceedings related to this constitutional issue were as follows:
(18)
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16. Rule XXI clause 5(c), House Rules and Manual Sec. 846c (1995).
17. 141 Cong. Rec. p. ____, 104th Cong. 1st Sess., Jan. 4, 1995.
18. Id. at p. ____.
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The Speaker Pro Tempore: (19) Section 106 of the
resolution is now debatable for 20 minutes. The gentleman from
Pennsylvania [Mr. Fox] will be recognized for 10 minutes, and the
gentleman from Georgia [Mr. Lewis] will be recognized for 10
minutes.
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19. Jim Kolbe (Ariz.).
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Ms. [Maxine] Waters [of California]: Mr. Speaker, I have an
amendment at the desk.
The Speaker Pro Tempore: The Chair does not recognize the
gentlewoman at this time for an amendment. The gentleman from
Pennsylvania [Mr. Fox] is recognized for 10 minutes.
parliamentary inquiry
Ms. Waters: Parliamentary inquiry, Mr. Speaker.
The Speaker Pro Tempore: The gentlewoman will state her
inquiry.
Ms. Waters: Mr. Speaker, I have an amendment at the desk in
this section. This is a section that increases the vote requirement
for raising taxes from a simple majority to a three-fifths
majority. I wish to protect Social Security from being cut by a
simple majority. Why can I not add this amendment at this time?
The Speaker Pro Tempore: The gentlewoman should be advised that
under the rule that amendment is not in order at this time. . . .
Mr. [Jon D.] Fox [of Pennsylvania]: . . . Mr. Speaker, I yield
2 minutes to the gentleman from New Jersey [Mr. Saxton].
Mr. [Jim] Saxton [of New Jersey]: Mr. Speaker, I commend the
gentleman for bringing this amendment to our attention.
As you know, this amendment to the House Rules provides for a
three-fifths or 60 percent vote as a necessity to pass any income
tax increase. I first introduced this concept in the form of a rule
change on Tax Freedom Day, May 8, 1991. I recognized then, as I do
now, that our choices in methods used to balance the budget involve
two very difficult types of decisions. First, do we raise taxes, or
second, do we hold down spending to bring the budget into balance.
[[Page 11484]]
History shows quite clearly that when faced with those two
difficult options, this House has historically opted to increase
taxes. Why? Simply because it has always been the easier of the
two. . . .
Some have indicated a concern regarding the constitutionality
of this measure. Let me put those concerns to rest. I would like to
quote from an article that appeared in the Washington Times on
December 20, 1994 by Bruce Fein.
Supermajority voting rules are constitutional and
legislative commonplaces.
The U.S. Supreme Court blessed the constitutionality of
supermajority restraints on the tax and spending propensities
of government in Gordon vs. Lance (1971). At issue were
provisions of West Virginia laws that prevented political
subdivisions from incurring bonded indebtedness or increasing
tax rates beyond limits fixed in the West Virginia Constitution
without the approval of 60 percent of the voters in a
referendum election. Writing for the majority, Chief Justice
Warren Burger stressed the political incentive for prodigality
when the cost can be saddled on future generations without any
political voice: ``It must be remembered that in voting to
issue bonds voters are committing, in part, the credit of
infants and of generations yet unborn, and some restriction on
such commitment is not an unreasonable demand.'' . . .
Mr. [John] Lewis of Georgia: Mr. Speaker, for the purposes of
debate only, I yield 21/2 minutes to the gentleman from Colorado
[Mr. Skaggs].
Mr. [David E.] Skaggs [of Colorado]: Mr. Speaker, civilization
depends upon civility, and civility rests upon an implicit trust
that we each abide by a shared sense of bounds, of what is within
the rules. Each of us must be able to expect of the others that we
will play by the rules, and not play with the rules.
The proposed rule does violence to this essential aspect of a
civil society. It is a proposal to go beyond the bounds, to play
with the rules, instead of by them. And in a most uncivil way, it
would abuse the discretion given this House by the Constitution to
determine the rules of its proceedings, by using the rules of the
House to subvert part of the Constitution: the principle of
majority rule that is central to the operation of the legislative
branch. . . .
The Constitution is the most fundamental statement of American
values, the very charter of our democracy. The oath of office we
took this afternoon was to support and defend the Constitution and
to bear true faith and allegiance to it. The first responsibility
of our job in Congress is to honor that charter and remain true to
its basic principles.
The gentleman from New York, the new chairman of the Rules
Committee, has written that the Constitution says the House may
write its own rules. Yes. And the gentleman has quoted an 1892
Supreme Court decision, United States versus Ballin, which says
this rulemaking power ``is absolute and beyond the challenge of any
other body or tribunal'' so long as it does ``not ignore
constitutional constraints or violate fundamental rights.''
But there's the rub. The rulemaking power of the House does not
give us a license to steal other substantive provisions of the
Constitution, especially not
[[Page 11485]]
one so central as the principle of majority rule.
The gentleman from New York conveniently failed to point out
that a unanimous Supreme Court in that very same case determined
that one constitutional constraint that limits the rulemaking power
is the requirement that a simple majority is sufficient to pass
regular legislation in Congress. To quote the Court:
The general rule of all parliamentary bodies is that, when
a quorum is present, the act of a majority of the quorum is the
act of the body. This has been the rule for all time, except so
far as in any given case the terms of the organic act under
which the body is assembled have prescribed specific
limitations. *** No such limitation is found in the Federal
Constitution, and therefore the general law of such bodies
obtains.
The Court expressed the same understanding as recently as
1983, when, in Immigration and Naturalization Service v.
Chadha, it stated:
*** Art. II, sect. 2, requires that two-thirds of the
Senators present concur in the Senate's consent to a treaty,
rather than the simple majority required for passage of
legislation.
This principle, while not written into the text of the
Constitution, was explicitly adopted by the Constitutional
Convention. It was explicitly defended in The Federalist, the
major contemporary explanation of the Framer's intent. It was
followed by the first Congress on its first day, and by every
Congress for every day since then. And, as I've already
indicated, this principle has been explicitly found by the
Supreme Court to be part of our constitutional framework.
The Framers were very much aware of the difference between a
supermajority and a simple majority. They met in Philadelphia
against the historical backdrop of the Articles of Confederation,
which required a supermajority in Congress for many actions,
including the raising and spending of money. It was the paralysis
of national government caused by the supermajority requirement,
more than any other single cause, that led to the convening of the
Constitutional Convention.
In that Philadelphia Convention, the delegates repeatedly
considered, and rejected, proposals to require a supermajority for
action by Congress, either on all subjects or on certain subjects.
In only five instances did they specify something more than a
majority vote. These are for overriding a veto, ratifying a treaty,
removing officials from office, expelling a Representative or
Senator, and proposing amendments to the Constitution. Amendments
to the Constitution later added two others: restoring certain
rights of former rebels, and determining the existence of a
Presidential disability. . . .
Some argue that a three-fifths requirement to raise taxes would
be like a two-thirds vote requirement to suspend the rules and pass
a bill, or the 60-vote requirement to end debate in the Senate.
Wrong. Those rules address procedural steps. A bill not approved
under suspension of the rules in the House can be reconsidered and
passed by a simple majority. After debate is over in the Senate,
only a simple majority is required to pass any bill.
So this proposed rule is not like any rule adopted in the 206
years in which we have operated under our Constitution. As 13
distinguished professors of
[[Page 11486]]
constitutional law recently said in urging the House to reject this
rule:
This proposal violates the explicit intentions of the
Framers. It is inconsistent with the Constitution's language
and structure. It departs sharply from traditional
congressional practice. It may generate constitutional
litigation that will encourage Supreme Court intervention in an
area best left to responsible congressional decision. . . .
What is at stake here is the Constitution. Have respect for
this foundation document of our democracy. Don't return us to
the failed approach of the Articles of Confederation. Don't
subvert the Constitution's basic principles. And don't ask us
to break the oath of office we just took.
Mr. Speaker, I call on my colleagues to support and defend the
Constitution of the United States.
The provision was adopted on a separate vote by a majority of 279-
152.(20)
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20. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess., Jan. 4, 1995.
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Representative Skaggs and other Members filed a suit in the
U.S. District Court challenging the constitutionality of the
supermajority requirement contained in section 106 of the rules.
(See Skaggs v Carle, 898 F Supp. 1, DDC, 1995). The court concluded
that the appellants lacked standing to challenge Rule XXI clause
5(c), stating, in part:
They [the appellants] argued that the three-fifths majority
required by Rule XXI(5)(c) is repugnant to the principle of
majority rule they see embodied in the presentment clause of
Article I, Sec. 7 of the Constitution (``Every Bill which shall
have passed the House of Representatives and the Senate, shall,
before it becomes a Law, be presented to the President of the
United States''). . . .
Robin H. Carle, the Clerk of the House, moved to dismiss the
complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). The district court granted the motion, concluding that
prudence counsels against deciding the merits of a partisan
political dispute:
Whether expressed in terms of a failure of standing, or
``equitable'' or ``remedial'' discretion, the fundamental
consideration underlying those decisions is one of prudent
self-restraint: federal courts should generally refrain, as a
matter of policy, from intruding in the name of the
Constitution upon the internal affairs of Congress at the
behest of lawmakers who have failed to prevail in the political
process. . . .
The appellants call upon the court to consider the
constitutionality of two rules governing the internal workings of a
coordinate branch of the Government. . . . The Clerk responds,
among other things, that the appellants lack standing because they
have suffered no concrete injury.
A. Rule XXI(5)(c)
According to the appellants, the presentment clause establishes
that a simple majority of the Members voting in each House of the
Congress is all that is needed to pass a bill. Therefore, we are
told, by providing that legislation carrying an income tax increase
will not be considered to have passed in the House even if it
receives the support of a majority (but not of a three-fifths
majority), Rule XXI(5)(c) runs afoul of the presentment clause.
[[Page 11487]]
The Clerk contends that the appellants lack standing to raise
this challenge because they have suffered no injury by reason of
Rule XXI(5)(c) and are unlikely ever to do so. The House has never
failed to deem passed a bill that has received the support of a
simple majority and it is unclear whether the House will ever do
so. . . .
In sum, the appellants claim that they face imminent injury
because a simple majority of the House of Representatives cannot
commit the House to raising income tax rates. We are unpersuaded,
however, that Rule XXI(5)(c) prevents a simple majority from doing
just that. At most the appellants have shown that Rule XXI(5)(c)
could, under conceivable circumstances, help to keep a majority
from having its way--perhaps, for example, because a simple
majority in favor of an income tax increase might not be prepared,
for its own political reasons, to override the preference of the
House leadership against suspending or waiving the Rule in a
particular instance. But that prospect appears to be, if not purely
hypothetical, neither actual nor imminent. We conclude therefore
that the appellants lack standing to challenge Rule XXI(5)(c).
Corrections Calendar; Three-fifths Vote Requirement
Sec. 5.4 The House amended its rules to create a Corrections Calendar.
Measures called up from the Corrections Calendar are considered in
the House under special procedures including a three-fifths
affirmative vote requirement for passage.
On June 20, 1995,(1) the House adopted House Resolution
168 to create an expedited procedure which, according to the chairman
of the Rules Committee,(2) ``would repeal or correct laws,
rules, and regulations that are obsolete, ludicrous, duplicative,
burdensome, or costly.''
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1. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess.
2. Gerald B. H. Solomon (New York) at Id.
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The amended Rule XIII clause 4,(3) governing the
Corrections Calendar, provides the Speaker the authority, in
consultation with the Minority Leader, to place bills already on the
House or Union Calendars on the Corrections Calendar and to call the
Corrections Calendar at his discretion on the second or fourth Tuesday
of each month. The rule provides for consideration in the House for one
hour equally divided between the chair and ranking member of the
primary committee of jurisdiction. It restricts amendments to those
recommended by the committee or offered by its chairman; provides for
one motion to recommit with or without instructions; and re
[[Page 11488]]
quires a three-fifths affirmative vote for passage.
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3. House Rules and Manual Sec. 745a (1995).
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Corrections Calendar Procedure First Used
Sec. 5.5 The Speaker ordered the call of the Corrections Calendar and
the House adopted a bill under the three-fifths affirmative vote
passage requirement.
On July 25, 1995,(4) the Speaker Pro Tempore
(5) directed the Clerk to call the Corrections Calendar and
H.R. 1943, the San Diego Coastal Corrections Act of 1995, was
considered as the first item on the calendar. The conclusion of the
proceedings on that bill follow:
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4. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess.
5. Scott McInnis (Colo.).
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The Speaker Pro Tempore: The question is on the passage of the
bill.
The question was taken; and the Speaker pro tempore announced
that the noes appeared to have it.
recorded vote
Mr. [Norman Y.] Mineta [of California]: Mr. Speaker, I demand a
recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes
269, noes 156, not voting 9, as follows: . . .
So--three-fifths having voted in favor thereof--the bill was
passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Federal Income Tax Rate Increase Requires Three-fifths Vote
Sec. 5.6 As part of its first-day proceedings, the House adopted a
requirement that any bill or joint resolution, amendment, or
conference report carrying a federal income tax rate increase shall
not be considered as passed or agreed to unless three-fifths of the
Members vote in the affirmative. During the debate over adoption of
this provision, the constitutionality of such a requirement was
contested.
On Jan. 4, 1995,(6) the House considered and adopted
House Resolution 6, section 106 of which provided for the tax rate
increase voting requirement.
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6. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess.
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The question of the requirement's constitutionality (7)
was taken to the District Court for the District of Columbia. Mr. David
E. Skaggs, of Colorado, several other Members, six of their
constituents and the League of Women Voters filed suit against Robin E.
Carle,
[[Page 11489]]
Clerk of the House, to invalidate the rule on Feb. 8,
1995.(8) The court granted a motion filed on Ms. Carle's
behalf to dismiss the suit concluding that prudence counseled against
deciding the merits of a partisan political dispute.
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7. See Sec. 5.3, supra.
8. Skaggs v Carle, Action No. 95-00251 (D.D.C.).
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Mr. Skaggs and his fellow complainants, appealed the decision of
the district court to the Court of Appeals for the District of Columbia
Circuit. The appellate court affirmed the lower courts decision on a 2-
1 vote finding that the appellants lacked standing.(9)
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9. Skaggs v Carle, Action No. 95-5323 (D.C. Cir.).
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The requirement for a three-fifths vote is contained in Rule XXI
clause 5(c).(10)
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10. House Rules and Manual Sec. 846c (1995).
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Sec. 5.7 The three-fifths affirmative vote requirement for federal
income tax rate increases was first applied to an amendment in the
nature of a substitute containing a provision to raise the top
corporate income tax rate.
On Mar. 24, 1995,(11) the Committee of the Whole had
under consideration H.R. 4, the Personal Responsibility Act. During
consideration of the bill, the following transpired:
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11. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess.
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amendment in the nature of a substitute offered by mrs. mink of
hawaii
Mrs. [Patsy] Mink of Hawaii: Mr. Chairman, pursuant to the
rule, I offer an amendment in the nature of a susbstitute.
The Chairman: (12) The Clerk will designate the
amendment in the nature of a substitute.
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12. John Linder (Ga.).
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The text of the amendment in the nature of a substitute is as
follows:
Amendment in the nature of a substitute offered by Mrs.
Mink of Hawaii:
Strike all after the enacting clause and insert:
section 1. short title.
This Act may be cited as the ``Family Stability and Work
Act of 1995''. . . .
sec. 501. increase in top marginal rate under section 11.
(a) In General.--The following provisions of the Internal
Revenue Code of 1986 are amended by striking ``35'' and
inserting ``36.25'': . . . .
During the debate, Mrs. Mink inserted a statement into the record,
a section of which follows:
Corporate America benefits from billions of dollar [sic] worth
of corporate welfare--subsidies, tax breaks, credits, direct
federal spending--every major corporation and business receives
some kind of benefit from the Federal gov
[[Page 11490]]
ernment. Corporations must do their share in investing in our
nation's most vulnerable in our society.
The Mink bill is financed through raising the top corporate
income rate by 1.25% to 36.25 percent. This is estimated to raise
$20.25 billion over 5 years.
After further debate, the Chair put the question, as follows:
The Chairman: All time has expired.
The question is on the amendment in the nature of a substitute
offered by the gentlewoman from Hawaii [Mrs. Mink].
The question was taken; and the Chairman announced that three-
fifths of those present not having voted in the affirmative, the
noes appeared to have it.
recorded vote
Mrs. Mink of Hawaii: Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes
96, noes 336, not voting 2, . . . .
So, three-fifths of those present not having voted in the
affirmative, the amendment in the nature of a substitute was
rejected.
The result was announced as above recorded.
Sec. 5.8 A special order reported by the Committee on Rules, adopted by
a majority vote, may waive the three-fifths requirement for passage
of a measure containing a federal income tax rate increase.
On Oct. 26, 1995,(13) the Speaker Pro
Tempore,(14) responded to a parliamentary inquiry regarding
the application of Rule XXI clause 5(c) (15) to H.R. 2491,
Seven-Year Balanced Budget Reconciliation Act of 1995, being considered
under the provisions of House Resolution 245, a special order reported
by the Committee on Rules. The inquiry and the Speaker Pro Tempore's
response follow:
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13. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess.
14. Dan Burton (Ind.).
15. House Rules and Manual Sec. 846c (1995).
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Mr. [Michael D.] Ward [of Kentucky]: My inquiry is, I have
studied the rules and rule XXI applies to bills. This is a bill,
and it is a tax increase. Why does rule XXI not apply to this bill?
The Speaker Pro Tempore: The Chair will state that the House,
by adopting House Resolution 245, has waived that requirement of
the rule. Therefore, the Chair's response at this point would be
purely hypothetical, and the Chair cannot respond further at this
point.