[Deschler-Brown Precedents, Volume 14,  Chapter 30]
[Chapter 30. Voting]
[A. Generally]
[Â§ 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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
11. See Sec. 5.2, infra.                          -------------------
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------
12. 136 Cong. Rec. 30229, 30230, 101st Cong. 2d Sess.
---------------------------------------------------------------------------

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

    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:
---------------------------------------------------------------------------
15. 129 Cong. Rec. 32667, 32668, 98th Cong. 1st Sess.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
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. ____.
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
19. Jim Kolbe (Ariz.).
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
20. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess., Jan. 4, 1995.
---------------------------------------------------------------------------

        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.''
---------------------------------------------------------------------------
 1. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess.
 2. Gerald B. H. Solomon (New York) at Id.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
 3. House Rules and Manual Sec. 745a (1995).
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------
 4. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess.
 5. Scott McInnis (Colo.).
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
 6. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
 7. See Sec. 5.3, supra.
 8. Skaggs v Carle, Action No. 95-00251 (D.D.C.).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 9. Skaggs v Carle, Action No. 95-5323 (D.C. Cir.).
---------------------------------------------------------------------------

    The requirement for a three-fifths vote is contained in Rule XXI 
clause 5(c).(10)
---------------------------------------------------------------------------
10. House Rules and Manual Sec. 846c (1995).
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------
11. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess.
---------------------------------------------------------------------------

      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.
---------------------------------------------------------------------------
12. John Linder (Ga.).
---------------------------------------------------------------------------

        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:
---------------------------------------------------------------------------
13. 141 Cong. Rec. p. ________, 104th Cong. 1st Sess.
14. Dan Burton (Ind.).
15. House Rules and Manual Sec. 846c (1995).
---------------------------------------------------------------------------

        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.