[Deschler-Brown Precedents, Volume 14,  Chapter 30]
[Chapter 30. Voting]
[F. Delegate Voting]
[Â§ 59. Delegate Voting in the Committee of the Whole]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 11868-11909]
 
                               CHAPTER 30
 
                                 Voting
 
                           F. DELEGATE VOTING
 
Sec. 59. Delegate Voting in the Committee of the Whole


    The office of Delegate has its origins in an ordinance adopted by 
the Continental Congress, and the office was confirmed by law in 
August, 1789.(1) Delegates were permitted the right to 
debate, under the theory that a Congress could hear in debate anyone it 
chose. In the earliest Congresses, however, Delegates were not 
permitted to vote; but as the business of the House was increasingly 
considered in committees, Delegates were often named to committees and 
could participate in deliberations there. In 1841, a report relating to 
the qualifications of a Delegate from Florida, a gratuitous statement 
appears in the report: ``With the single exception of voting, the 
Delegate enjoys every other privilege and exercises every other right 
of a Representative. He can act as a member of a standing or special 
committee and vote on the business before such committees, and he may 
thus exercise an important influence on those initiatory proceedings by 
which business is prepared for the action of the House.'' 
(2)
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 1. 1 Hinds' Precedents Sec. 400.
 2. 2 Hinds' Precedents Sec. 1301.
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    In some later Congresses, the right to participate in committee 
deliberations and vote therein was curtailed.(3)
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 3. 2 Hinds' Precedents Sec. 1300.
            For a general discussion of the role of Delegates and their 
        level of participation, see 2 Hinds' Precedents, 
        Sec. Sec. 1290-1306; 6 Cannon's Precedents Sec. Sec. 240-246; 
        Ch. 7 Sec. 3.10, supra.
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    In the modern House, the right to membership and the privilege of 
voting in those committees to which named was affirmed by the 1970 
Reorganization Act.(4)
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 4. See Ch. 7 Sec. 3.10, supra.

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[[Page 11869]]

    Extending the right of the Delegates and the Resident Commissioner 
to vote in the Committee of the Whole House on the State of the Union 
was a new concept, first included in the rules of the 103d Congress. 
The discussions which surrounded the adoption of this new rule, the 
challenges to its constitutionality and its demise in the 104th 
Congress are discussed in this 
section.                          -------------------

Voting by Delegates and the Resident Commissioner

Sec. 59.1 When the House adopted its rules for the 103d Congress, the 
    rules of the House were amended to permit Delegates and the 
    Resident Commissioner to vote on questions arising in the Committee 
    of the Whole House on the State of the Union.

    Rule XII of the rules of the House had, since the Legislative 
Reorganization Act of 1970, permitted the Delegate from the District of 
Columbia and the Resident Commissioner from Puerto Rico the privilege 
and right of voting in the standing committees of the House. In the 
103d Congress, the scope of their participation was significantly 
broadened by including in the rules two new provisions as follows:

        Rule XII clause 2: (5)
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 5. House Rules and Manual, Sec. 740 (1993).
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        2. In a Committee of the Whole House on the state of the Union, 
    the Resident Commissioner to the United States from Puerto Rico and 
    each Delegate to the House shall possess the same powers and 
    privileges as Members of the House.

    Rule XXIII clause 2(d): (6)
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 6. House Rules and Manual, Sec. 864b (1993).
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        (d) Whenever a recorded vote on any question has been decided 
    by a margin within which the votes cast by the Delegates and the 
    Resident Commissioner have been decisive, the Committee of the 
    Whole shall automatically rise and the Speaker shall put that 
    question de novo without intervening debate or other business. Upon 
    the announcement of the vote on that question, the Committee of the 
    Whole shall resume its sitting without intervening motion.

    Arguments were raised in the House that this enlargement of voting 
rights for ``non-Members'' was in fact unconstitutional.(7) 
Before beginning debate on House Resolution 5, the resolution adopting 
rules for the 103d Congress, a preferential motion to refer the 
resolution was offered by the ranking minority member of the Committee 
on Rules, Gerald B. H. Solomon, of New York. The reso

[[Page 11870]]

lution was laid on the table.(8) The new Delegate rules also 
withstood other attacks on their constitutionality, both in the House 
and in the courts,(9) but they remained in effect through 
the 103d Congress. The first instance where the Delegates and the 
Resident Commissioner cast their votes on a recorded vote in Committee 
of the Whole House on the state of the Union is recorded in the 
proceedings of Feb. 3, 1993, during the consideration of H.R. 1, the 
Family and Medical Leave Act of 1993.(10)
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 7. See debate on H. Res. 5, adopting rules for the 103d Congress, 139 
        Cong. Rec. 51 et seq., 103d Cong. 1st Sess., Jan. 5, 1993.
 8. The motion to refer provided as follows:
            ``Mr. Solomon moves to refer the resolution to a select 
        committee of five members, to be appointed by the Speaker, not 
        more than three of whom shall be from the same political party, 
        with instructions not to report back the same until it has 
        conducted a full and complete study of, and made a 
        determination on, the constitutionality of those provisions 
        which would grant voting rights in the Committee of the Whole 
        to the Resident Commissioner from Puerto Rico and the Delegates 
        from American Samoa, the District of Columbia, Guam and the 
        Virgin Islands.''
            The motion was laid on the table by a vote of 224-176, not 
        voting 31. 139 Cong. Rec. 52, 53, 103d Cong. 1st Sess., Jan. 5, 
        1993.
 9. See proceedings surrounding the attempt to offer, as a question of 
        the privileges of the House, a resolution delaying the 
        implementation of the rules pending a determination as to their 
        constitutionality. 139 Cong. Rec. p.______, 103d Cong. 1st 
        Sess., Feb. 3, 1993. The resolution was determined not to be a 
        proper question of privilege under Rule IX since a delay in the 
        implementation of a rule of the House in effect is a change in 
        that rule, and a change in a rule of the House cannot be 
        effected by a question of privilege. See also Sec. 59.2, infra, 
        for court decisions on constitutionality.
10. 139 Cong. Rec. p.______, 103d Cong. 1st Sess.
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    Votes of the Delegates and the Resident Commissioner were decisive, 
and subject to review by the House, on three occasions in the 103d 
Congress.(11) In determining whether the votes were in fact 
decisive, the Chair followed a ``but for'' test: would the result of 
the vote have been different if the Delegates and the Commissioner had 
not voted. On May 19, 1993,(12) during consideration in 
Committee of the Whole of H.R. 820, the National Competitiveness

[[Page 11871]]

Act of 1993, a vote was taken on an amendment and the ayes were 208, 
the noes 213. Four votes in the negative were cast by Delegates. Had 
they not voted, the result would have been 208-209, still a vote 
rejecting the amendment. A series of inquiries, as follows, were 
addressed to the Chairman Pro Tempore, Mr. Esteban Edward Torres, of 
California, about how the ``but for'' test should be 
applied.(13)
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11. 140 Cong. Rec. p. ______, 103d Cong. 2d Sess., Mar. 17, 1994; 140 
        Cong. Rec. p. ______, 103d Cong. 2d Sess., June 23, 1994; 140 
        Cong. Rec. p. ______, 103d Cong. 2d Sess., June 24, 1994. Only 
        in the second of these three instances was the result of the 
        vote in the Committee of the Whole, where the Delegates 
        participated, reversed in the House, where they did not.
12. 139 Cong. Rec. 10408, 10409, 103d Cong. 1st Sess.
13. Id.
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        The Chairman Pro Tempore: The question is on the amendment 
    offered by the gentleman from Tennessee [Mr. Duncan].
        The question was taken; and the Chairman pro tempore announced 
    that the noes appeared to have it.

                               recorded vote

        Mr. [John J.] Duncan [Jr., of Tennessee]: Mr. Chairman, I 
    demand a recorded vote.
        A recorded vote was ordered.
        The vote was taken by electronic device, and there were--ayes 
    208, noes 213, not voting 16. . . .
        So the amendment was rejected.
        The result of the vote was announced as above recorded.

                          parliamentary inquiries

        Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, I have 
    a parliamentary inquiry.
        The Chairman Pro Tempore: The gentleman may state his 
    parliamentary inquiry.
        Mr. Walker: Mr. Chairman, the delegates have made a difference 
    in the vote here. Does that result in an automatic revote of the 
    issue?
        The Chairman Pro Tempore: Four delegates (14) voted 
    no. It was not a decisive vote. Those votes would not have changed 
    the result of the vote.
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14. The four Delegates voting were: Carlos A. Romero-Barcelo (PR), Eni 
        F. H. Faleomavaega (AS), Ron de Lugo (VI), and Robert A. 
        Underwood (GU).
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        Mr. Walker: Wait a minute.
        The Chairman Pro Tempore: The Chair would advise that if the 
    delegates had not voted, the vote would have been 208 to 209. The 
    result would be the same. The amendment would be rejected. The 
    amendment is rejected.
        Mr. [Cliff] Stearns [of Florida]: Mr. Chairman, I have a 
    parliamentary inquiry.
        The Chairman Pro Tempore: The gentleman may state his 
    parliamentary inquiry.
        Mr. Stearns: Under the rule that was passed, Mr. Chairman, it 
    has to be closer before we revote, is that it? Because some of 
    these people might have voted a little differently if the vote was 
    just one or two, so I do not think we can speculate. That is why I 
    think we should have another vote.
        The Chairman Pro Tempore: The Chair can only base his ruling on 
    the votes cast, and the Delegates' vote was not decisive.
        Mr. Stearns: Decisive is what, a difference of how much?
        The Chairman Pro Tempore: But for the votes of the Delegates, 
    the outcome would have been different.
        Mr. Stearns: So if we take the difference of the four, it is a 
    separation of the two votes.

[[Page 11872]]

        The Chairman Pro Tempore: Vote 208 to 209.
        Mr. Stearns: One vote, a separation of one vote is not worth 
    another vote? It seems to me that is significant.
        The Chairman Pro Tempore: The result would not have been 
    different.
        Mr. Stearns: Well, it might have been different if everyone saw 
    there was just one vote, and if their vote was the key vote----
        The Chairman Pro Tempore: The Chair cannot speculate on that 
    possibility.
        Mr. Stearns: Will the Chair allow me a further indulgence?
        The Chairman Pro Tempore: The Chair will recognize the 
    gentleman.
        Mr. Stearns: Mr. Speaker, if there is a difference of one vote 
    on the House floor, we have seen many times it go up and down 
    because Members feel a stronger compunction or a stronger 
    conscience on an issue.
        The Chairman Pro Tempore: The Chair again cannot speculate on 
    that possibility.
        Mr. Stearns: Well, would the Chairman consider a revote on this 
    matter, since there was just a difference of one vote?
        The Chairman Pro Tempore: The vote cannot be reconsidered in 
    the Committee of the Whole.
        Mr. Stearns: I thank the Chairman for his indulgence. . . .
        Mr. Walker: Mr. Chairman, a further parliamentary inquiry.
        The Chairman Pro Tempore: The gentleman may state his 
    parliamentary inquiry.
        Mr. Walker: Has the Chair just ruled that we can get a separate 
    vote on this matter in the whole House?
        The Chairman Pro Tempore: The amendment was not adopted. The 
    amendment will not be reported to the House. It was not adopted.
        Mr. Stearns: Mr. Chairman, may I propound a further 
    parliamentary inquiry?
        The Chairman Pro Tempore: The gentleman may state his 
    parliamentary inquiry.
        Mr. Stearns: Mr. Chairman, can we move to rise to the full 
    House and vote on this? Is it appropriate for me to move that we 
    rise?
        The Chairman Pro Tempore: The motion to rise is in order, but 
    it does not provoke another vote in the House.
        Mr. Stearns: Well, I mean, with the consideration that we vote 
    in the full House on this particular issue, because I think as it 
    stands now there is only one vote that separates us.
        The Chairman Pro Tempore: The Chair would state that would not 
    be resolved in the House.
        Mr. [Newt] Gingrich [of Georgia]: Mr. Chairman, I have a 
    parliamentary inquiry.
        The Chairman Pro Tempore: The gentleman may state his 
    parliamentary inquiry.
        Mr. Gingrich: Mr. Chairman, if the gentleman from Tennessee 
    were to offer exactly the same amendment, but with 9 percent 
    instead of 10, that would be in order at this point, would it not, 
    so that Members knowing how close it is would have an opportunity 
    on a slightly smaller number actually to reconsider, is that not 
    true?
        The Chairman Pro Tempore: The Chair would rule that a different 
    amendment could be offered.
        Mr. Gingrich: And those Members who now know how close it was 
    would

[[Page 11873]]

    have an opportunity to look at voting on this much closer and a 
    slightly smaller amendment?
        The Chairman Pro Tempore: The Chair would state to the minority 
    whip that that is not a parliamentary inquiry.
        Mr. Gingrich: I would simply ask the Chair to keep that section 
    of the bill open for one additional moment.
        The Chairman Pro Tempore: Are there any other amendments to 
    title V?
        Mr. Stearns did offer another amendment, with a slightly 
    smaller monetary deduction (9% instead of 10%). The amendment was 
    rejected by a larger majority than the original Duncan amendment.
        A further series of inquiries about this ``test'' occurred on 
    Apr. 20, 1994,(15) where, had the Delegates not 
    participated, the result of a vote would have been a tie.
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15. 140 Cong. Rec. p. ______, 103d Cong. 2d Sess.
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        The Chairman: (16) All time has expired. The 
    question is on the amendment offered by the gentleman from Florida 
    [Mr. McCollum].
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16. Robert G. Torricelli (N.J.).
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        The question was taken; and the Chairman announced that the 
    noes appeared to have it.

                               recorded vote

        Mr. [Bill] McCollum [of Florida]: Mr. Chairman, on that I 
    demand a recorded vote.
        A recorded vote was ordered.
        The vote was taken by electronic device, and there were--ayes 
    212, noes 217, not voting 9. . . .

                          parliamentary inquiries

        Mr. [Tom] DeLay [of Texas]: Mr. Chairman, I have a 
    parliamentary inquiry.
        The Chairman: The gentleman will state his parliamentary 
    inquiry.
        Mr. DeLay: Mr. Chairman, I think I know the answer to this 
    inquiry, but for the record, Mr. Chairman, the delegates No. 5.
        Is it true that the delegates voting, if we voted again, would 
    cause a tie, and the amendment would fail because of a tie?
        The Chairman: The gentleman correctly states that the votes 
    cast by delegates were not decisive.
        Had the Delegates not voted, it would have been a tie. On a tie 
    vote, the amendment fails.
        Mr. DeLay: So actually one could say it is a tie, so each vote 
    to the negative on the amendment is a very crucial vote?
        The Chairman: That is not a parliamentary inquiry. The Chair 
    answered the inquiry as it was stated.
        Mr. [Newt] Gingrich [of Georgia]: Mr. Chairman, I have a 
    parliamentary inquiry.
        The Chairman: The gentleman from Georgia will state his 
    parliamentary inquiry.

        Gingrich: Mr. Chairman, I just want to clarify, because I do 
    not think, given the way the House currently counts votes, that a 
    normal citizen would realize that the real vote among the elected 
    Members was 212 to 212.
        The Chairman: The gentleman must state a parliamentary inquiry.
        Mr. Gingrich: In the record, among Members, not counting 
    Delegates, is it

[[Page 11874]]

    correct, first, that the vote was 212 to 212?
        The Chairman: If the gentleman's inquiry is whether or not the 
    delegates were decisive in the outcome, they were not. Had they not 
    voted, it would have been a tie vote, and the amendment would have 
    failed. If that is the gentleman's inquiry, the Chair has answered 
    it.
        Mr. Gingrich: And therefore, each of the 212 was the decisive 
    vote?
        The Chairman: The gentleman is not stating a parliamentary 
    inquiry.
        Mr. McCollum: Mr. Chairman, I have a parliamentary inquiry.
        The Chairman: The gentleman will state his parliamentary 
    inquiry.
        Mr. McCollum: Do not the rules state that when a vote is 
    decided by five or fewer votes and the Delegates have voted, the 
    five Delegates, that a revote is in order regardless of what the 
    outcome might or might not be, hypothetically?
        The Chairman: That is not correct. The rule operates where they 
    are decisive, which means where there would have been a different 
    outcome, had they not voted.
        Mr. McCollum: But since there were, in fact, nine Members, the 
    inquiry is this, Mr. Chairman: Where there were Members not voting, 
    in this case there were nine Members not voting, would not the 
    possibility of a revote be that five or fewer votes could change 
    the outcome in a situation like we have before us today on this 
    previous vote?
        The Chairman: A motion to reconsider is not in order in the 
    Committee of the Whole.

Delegate Voting Upheld as Constitutional

Sec. 59.2 The constitutionality of the rule permitting Delegates and 
    the Resident Commissioner to vote in Committee of the Whole, 
    subject to review in the House if their votes were decisive, was 
    affirmed in the U.S. District Court. On appeal, the Court of 
    Appeals concurred.

    The amendments to Rule XII and Rule XXIII which permitted the 
Delegates and the Resident Commissioner to cast votes in Committee of 
the Whole were adopted on Jan. 5, 1993.(17) The Minority 
Leader of the House, Robert H. Michel, of Illinois, 12 other sitting 
Members of the House and three private citizens filed suit in the 
United States District Court for the District of Columbia against the 
Clerk of the House, the Delegates and the Commissioner, seeking an 
injunction to prevent the implementation of the rule. They also sought 
a ruling to the effect that the provisions allowing the Delegates and 
Commissioner to vote in Committee of the Whole was unlawful. On Mar. 6, 
1993, the court issued an order denying the preliminary

[[Page 11875]]

in-junction and in the accompanying opinion found that the amendment to 
Rule XII, permitting a ``re-vote'' of amendments where the votes by 
non-Members was decisive, negated any unconstitutional power which 
would have been bestowed by the amendment to Rule XII, standing alone. 
Excerpts from the opinion in Michel v Anderson (18) follow:
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17. H. Res. 5, 139 Cong. Rec. 49 et seq., 103d Cong. 1st Sess.
18. Civil Action 93-0039; 817 F Supp. 126.
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                   Robert H. Michel, et al.,  Plaintiffs,

                                     v

                  Donnald K. Anderson, et al., Defendants.

            United States District Court, District of Columbia.

                               March 8, 1993.

                     Harold H. Greene, District Judge.

                                 i. Opinion

                                 Background

        In this case, thirteen Republican Members of the House of 
    Representatives,(19) led by Minority Leader Robert 
    Michel (R-Ill.),(20) seek to enjoin enforcement 
    (1) of House Rule XII which was amended on January 5, 
    1993 to authorize Delegates from the District of Columbia, Guam, 
    American Samoa, and the Virgin Islands, as well as the Resident 
    Commissioner from Puerto Rico to vote in the House's Committee of 
    the Whole. The Committee of the Whole is comprised of all Members 
    of the House, and it is where a substantial portion of the 
    chamber's business is conducted. The House also amended House Rule 
    XXIII to require a de novo vote on the House floor on any question 
    decided by the Committee of the Whole where the vote of the 
    Delegates (2) was decisive. The Delegates

[[Page 11876]]

     are prohibited from participating in this second vote.
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19. The following Members of the House of Representatives are 
        plaintiffs in this suit in their capacity as Members of 
        Congress and as voters: Robert Michel (R-Ill.), Newt Gingrich 
        (R-Ga.), Gerald Solomon (R-NY), Don Young (R-Alaska), Craig 
        Thomas (R-Wy.), Christopher Cox (R-Cal.), Henry Hyde (R-Ill.), 
        Michael Castle (R-Del.), Jay Kim (R-Cal.), Deborah Pryce (R-
        Ohio), Henry Bonilla (R-Tex.), Thomas Bliley (R-Va.), and 
        Edward Royce (R-Cal.). Additionally, three individual voters 
        from some of the congressional districts represented by the 
        plaintiff Members are also participating as plaintiffs.
20. Twenty-eight additional Members have joined these plaintiffs by 
        means of an amicus curiae brief. See p. 478, note 4, infra.
 1. Plaintiffs have also asked for a declaratory ruling that non-Member 
        voting in the Committee of the Whole is unlawful.
 2. Throughout this Opinion, the Court's references to ``Delegates'' 
        includes the Resident Commissioner from Puerto Rico. There is 
        no practical distinction between the rights, privileges and 
        entitlements of the Delegates and the Resident Commissioner. 
        [See Deschler's Precedents Ch. 7, Sec. 3, at 38, supra.] The 
        historic origins of these two different titles relate to 
        whether a territory was prepared to apply for statehood, in 
        which case their representative in Congress was called a 
        Delegate. [Id. at 37.] Additionally, where the Court uses the 
        term ``territorial Delegate'' it includes the Delegate from the 
        District of Columbia.
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        The plaintiffs moved for a preliminary injunction on the ground 
    that these rules unconstitutionally vest the Delegates with 
    legislative power, and that they dilute the legislative power of 
    Members of the House. Alternatively, the plaintiffs claim that, by 
    unilaterally modifying the Delegates' role, the House has violated 
    the constitutional requirements of bicameralism and presentment of 
    legislation to the President.
        The defendants, who are the Clerk of the House and the five 
    House Delegates,(3) argue that the Court should refrain 
    from deciding this case under various jurisdictional and prudential 
    doctrines. Further, the defendants contend that, if the merits were 
    to be reached, the Court should hold that the rule change does not 
    vest the Delegates with legislative power and that the rule is not 
    otherwise constitutionally defective.(4)
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 3. Donnald K. Anderson, the Clerk of the House of Representatives, is 
        responsible for tallying and reporting the votes of the 
        Committee of the Whole. The five other defendants are the 
        Delegates who were given a vote in the Committee of the Whole 
        through this rule change: Eleanor Holmes Norton (District of 
        Columbia), Carlos Romero-Barcelo (Resident Commissioner from 
        Puerto Rico), Robert Underwood (Guam), Ron De Lugo (Virgin 
        Islands), and Eni Faleomavaega (American Samoa).
 4. A number of parties have filed amicus curiae briefs on this novel 
        constitutional issue. Twenty-eight other Republican Members of 
        the House of Representatives have filed a brief in support of 
        the request for preliminary injunction. Other briefs advocating 
        the unconstitutionality of the rule changes have been filed by 
        Citizens United, the Conservative Caucus, Inc., and the Abraham 
        Lincoln Foundation for Public Policy Research, Inc.
            An amicus curiae brief supporting the constitutionality of 
        the House rules was filed by a broad spectrum of organizations 
        located in the District of Columbia, including the Federation 
        of Civic Organizations, the League of Women Voters, the AFL-
        CIO, several bar associations, and fourteen past presidents of 
        the D.C. Bar.
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        Both parties have joined in requesting that the Court 
    consolidate the plaintiffs' application for a preliminary 
    injunction with final consideration of this issue on the merits 
    pursuant to Federal Rules of Civil Procedure 65(a)(2). The Court 
    grants this request, and the decision herein constitutes a final 
    judgment.
        After discussing the history of the Committee of the Whole, the 
    role it plays in the operations of the House, and the history of 
    the position of territorial Delegate, the Court addresses the 
    threshold issue of whether a judicial remedy with respect to this 
    largely

[[Page 11877]]

    internal congressional dispute is appropriate. The Court then 
    considers whether the changes in the House rules, as currently 
    configured, run afoul of the Constitution.

                         II. Committee of the Whole

        In order to appreciate the constitutional issues implicated in 
    this lawsuit and to evaluate the defenses raised, it is necessary 
    to review the origins of the Committee of the Whole, the function 
    it serves in the legislative process, and the traditional role of 
    Delegates in the House of Representatives.
        The Committee of the Whole is comprised of all of the Members 
    of the House of Representatives,(5) and it convenes on 
    the floor of the House with Members serving as the chair on a 
    rotating basis. It is in this procedural forum that the House 
    considers, debates, and votes on amendments to most of the 
    legislation reported out of the standing or select committees. Only 
    after consideration of amendments in the Committee of the Whole is 
    legislation reported to the floor of the House for final, usually 
    perfunctory, consideration.
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 5. There are, in fact, two types of Committees of the Whole. The 
        Committee of the Whole House on the state of the Union 
        considers all public bills affecting taxes and spending. That 
        is the Committee of the Whole at issue in this litigation. The 
        second Committee of the Whole considers private bills relating 
        to claims against the government, special immigration cases, 
        and other private relief bills. The changes in the House Rules 
        challenged here gave the Delegates the vote in the Committee of 
        the Whole House on the state of the Union. [See House Rule XII 
        and 139 Cong. Rec. at H28 (daily ed.) (``Wolfensberger 
        Memorandum'') (Jan. 5, 1993).]
            The Wolfensberger Memorandum which was incorporated into 
        the January 5, 1993 Congressional Record, is entitled 
        ``Committees of the Whole: Their Evolution and Functions.'' It 
        was prepared by Don Wolfensberger, Minority Chief of Staff of 
        the House Rules Committee.
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                           A. History in England

        The Committee of the Whole has its origins in seventeenth 
    century England during the reign of King James I where it was 
    referred to as the grand committee. Demonstrating that neither 
    ``gridlock'' nor disputes regarding taxes are contemporary 
    phenomena, the concept of convening the legislature in a Committee 
    of the Whole developed in response to antagonism, and sometimes 
    deadlock, between Parliament and the monarchy, particularly on the 
    issue of taxation.

        As the King and the legislature clashed over that issue, 
    members of Parliament feared that the King's spies in the House of 
    Commons, including the Speaker, would report ``disloyal'' votes to 
    the crown. Such acts of betrayal could result in incarceration in 
    jail or other sanctions against the particular member. [See 139 
    Cong. Rec. H27, H28 (daily ed.), 103d Cong. 1st Sess., Jan. 5, 1993 
    (hereinafter, ``Wolfensberger Memorandum'').]
        In order to avoid the perils of recorded voting, members of 
    Parliament met in informal sessions, on a clandestine basis, to 
    debate legislation. The proceedings of these sessions were not

[[Page 11878]]

    recorded, and the King could not learn who had proposed amendments 
    which exhibited disloyalty to or defiance of the monarchy. The 
    Committee reported only its ultimate recommendation to the official 
    House of Commons for confirmation or rejection. Through such a 
    process the members of Parliament could avoid the iron hand of the 
    monarchy. [Id.]
        Other historians have noted that the Committee of the Whole was 
    also used to circumvent the power of the standing committees which 
    were often coopted by special interests or agents of the Crown. 
    [See Kenneth Bradshaw and David Pring, Parliament and Congress, at 
    209 (1981).]

                         B. Early American Practice

        The members of the colonial legislatures, no more trusting of 
    the monarchy than their British ancestors, continued the practice 
    of convening in informal Committees of the Whole to shield their 
    deliberations and actions from the agents of King George III. [See 
    4 Hinds' Precedents Sec. 4705.]
        The same practice also continued in the Continental Congress, 
    the Congress of the Confederation, and the Federal Convention in 
    Philadelphia where the Framers convened to draft the Constitution. 
    [Wolfensberger Memorandum at H28]. In fact, one of the first 
    decisions made by the Framers was to resolve ``into a Committee of 
    the Whole House to consider the state of the American Union.'' 
    Hinds', supra, at 987. It was in this Committee of the Whole that 
    the Constitution was debated and approved. [1 Records of the 
    Federal Convention of 1787, rev. ed. Farrand. 29-322 (1966).]
        With little fanfare or debate, the First Congress, comprised of 
    many individuals from the Federal Convention and earlier American 
    legislatures made provisions for the Committee of the Whole. In one 
    of the first meetings of the United States House of Representatives 
    on April 7, 1789, one of the first four fundamental rules initially 
    adopted prescribed procedures for the conduct of Committees of the 
    Whole. [George Galloway, History of the United States House of 
    Representatives 10 (1965).] It was in this forum that bills were to 
    be ``twice read, twice debated by clauses, and subjected to 
    amendment. . . . Conspicuous reliance was placed by the House, then 
    as now, on the Committee of the Whole.'' [Id.]
        Similarly, the first important pieces of legislation passed by 
    the early Congresses were debated and significantly modified in the 
    Committee of the Whole. For example, James Madison's bill calling 
    for the establishment of executive departments passed through the 
    Committee of the Whole which excised the President's removal power. 
    [See Myers v United States, 272 U.S. 52, 112-114 (1926), (citing, 1 
    Annals of Cong. 585 (1789)).] The Bill of Rights was likewise 
    debated in the Committee of the Whole before it was referred to the 
    full House for ultimate passage. [See Lee v Weisman, 505 U.S. 577 
    (1992) (Souter, J., concurring) (citing, 1 Annals of Cong. 731 
    (1789)).]
        Over the years the House has deployed, at times, more than one 
    Committee of the Whole to perform additional functions in the 
    legislative process. [See 4 Hinds' Precedents Sec. 4705 and see 
    note 5, p. 479, supra.] In any event, by the late 1800s the central 
    role of the Committee of the Whole on

[[Page 11879]]

    the state of the Union was firmly established in the operations of 
    the House. Beginning in that era and continuing until the present, 
    all significant legislation, particularly revenue and expenditure 
    bills, are referred to the Committee of the Whole for debate and 
    the consideration of amendments prior to being reported to the 
    House floor.(6) [See Wolfensberger Memorandum at H30 and 
    Plaintiffs' Motion for Preliminary Injunction, Exhibit 3 (Affidavit 
    of Representative Robert Michel) (here-inafter ``Michel 
    Affidavit'').] (7)
---------------------------------------------------------------------------
 6. The two other House calendars were a calendar for public bills that 
        did not touch on money matters, and a calendar for the 
        ``other'' Committee of the Whole for private bills.
 7. The defendants submitted no affidavits or other evidence.
---------------------------------------------------------------------------

                            C. Current Functions

        The critical function played by the Committee of the Whole is 
    evident from House Rule XIII which provides that ``all bills 
    raising revenue, general appropriation bills, and bills of a public 
    character directly or indirectly appropriating money or property'' 
    are to be referred to the calendar of the Committee of the Whole. 
    [See also House Rule XIII clause 3.] (8) Even though the 
    historic secrecy justifications for convening in the Committee of 
    the Whole are, of course, no longer present, the Committee 
    continues to be the focus of legislative activity in the House. The 
    Committee of the Whole is still heavily relied upon because it is 
    less subject to parliamentary delaying tactics than the House 
    itself, such as motions to table bills, proposals to adjourn, 
    motions to reconsider votes cast, and other such procedures. [See 4 
    Hinds' Precedents Sec. Sec. 4716-4724.]
---------------------------------------------------------------------------
 8. [House Rule XXIII clause 3] provides: All motions or propositions 
        involving a tax or charge upon the people, all proceedings 
        touching appropriations of money, or bills making 
        appropriations of money, or property, or requiring such 
        appropriation to be made, or authorizing payments out of 
        appropriations already made, or releasing any liability to the 
        United States for money or property, or referring any claim to 
        the Court of Claims, shall be first considered in a Committee 
        of the Whole, and a point of order under this rule shall be 
        good at any time before the consideration of a bill has 
        commenced.
---------------------------------------------------------------------------

        Moreover, in the Committee of the Whole a Member is limited to 
    five minutes of debate per amendment as opposed to the one hour of 
    debate time accorded each Representative on the floor of the House. 
    [See Wolfensberger Memorandum H30.] Lastly, the quorum requirement 
    in the Committee is only 100 as compared to the constitutionally 
    required quorum of 218 for the full House.(9) In short, 
    it is simply more convenient and expedient for the House to 
    continue to convene in the Committee of the Whole.
---------------------------------------------------------------------------
 9. The Constitution states that ``. . . a majority of each [House] 
        shall constitute a Quorum to do Business;'' U.S. Const. art. I, 
        Sec. 5, cl. 1. Now that the House has 435 full Members, a 
        quorum, under this clause, is comprised of 218 Members.
---------------------------------------------------------------------------

        Under the House Rules in effect prior to the January 5, 1993, 
    amendments that were rejected in the Com

[[Page 11880]]

    mittee of the Whole could not be considered again on the House 
    floor. The only exception to this general restriction was the 
    ``rarely successful'' procedure by which a defeated coalition could 
    make one motion to recommit. [See Michel Affidavit at 7.] This 
    procedure basically involves an initiation of the legislative 
    process all over again by a reference of the pertinent bill back to 
    a standing committee. [See Wolfensberger Memorandum H30.] 
    (10)
---------------------------------------------------------------------------
10. Contrary to the defendants' claim, the availability of this 
        cumbersome procedure does not mean that amendments defeated in 
        the Committee of the Whole can effectively be reviewed by the 
        full House. Defeat of an amendment in the Committee of the 
        Whole is realistically the final consideration of that issue by 
        the House of Representatives.
---------------------------------------------------------------------------

        After the Committee of the Whole completes its work on a piece 
    of legislation it ``rises,'' and the bill is sent to the floor of 
    the House for final approval.(11) Once the bill is so 
    reported to the floor, no other amendments may be offered on that 
    legislation. In fact, once a bill arrives on the House floor from 
    the Committee of the Whole, the House usually conducts a straight 
    ``up or down'' vote on the legislation as a whole [see Michel 
    Affidavit at 7], and the bill considered by the full House is the 
    legislation as it was amended during the deliberations of the 
    Committee of the Whole.
---------------------------------------------------------------------------
11. A majority of the Committee of the Whole must approve a motion to 
        rise.
---------------------------------------------------------------------------

        Upon a motion from the floor, each amendment to the bill 
    approved by the Committee of the Whole can be subjected to a 
    separate vote on the House floor. [See Michel Affidavit at 7.] 
    However, as noted supra, an amendment that was defeated in the 
    Committee of the Whole could not be resurrected in the House, at 
    least not prior to the January 5, 1993 rules change. This was also 
    true of amendments barred from consideration by rulings of the 
    chair or effectively rejected through substitute or second degree 
    amendments. [Michel Affidavit at 5-6; Affidavit of Representative 
    Gerald Solomon at 4-11.]
        As is evident, the most significant portion of the House of 
    Representatives' business is done in the Committee of the Whole. 
    The ``work of the Committee of the Whole is seldom reversed or 
    recommitted by the House for the simple reason that the work was 
    done by the same House under a different name and using different 
    procedures.'' [See Wolfensberger Memorandum H30; see also, Charles 
    Tiefer, Congressional Practice and Procedure 340, 386 (1989) (the 
    Committee of the Whole is the ``dominant phase in the chamber's 
    consideration of a bill'' and is ``the heart of the chamber's 
    operations'').]

                          III. Status of Delegates

        Before discussing the manner in which the recent changes in the 
    House rules affect the legislative process just described, it is 
    useful to provide a brief history of the office of ``Delegate'' and 
    a review of the present status of that position. As indicated, 
    there are currently five non-voting participants in the House of 
    Representatives, representing the District of Columbia, Puerto 
    Rico, the Virgin Islands, Guam, and American Samoa.

[[Page 11881]]

        Article I of the United States Constitution vests ``[a]ll 
    legislative Powers . . . in a Congress of the United States.'' 
    [art. I, Sec. 1.] Article I goes on to require that ``[t]he House 
    of Representatives shall be composed of Members chosen . . . by the 
    People of the several States . . . .'' [art. I, Sec. 8, cl. 1.]
        Obviously the five Delegates do not represent ``States'' nor 
    are they chosen by ``People of the several States.'' These 
    Delegates are also not subject to the age, citizenship, and 
    residency qualifications for membership set forth in the 
    Constitution for all Members of the House of 
    Representatives.(12) For example, unlike Members of 
    Congress who, by Article I of the Constitution, are required to be 
    American citizens, the Delegate from American Samoa is only 
    required to ``owe allegiance to the United States.'' [See 48 USC 
    Sec. 1733 (1988).] (13) Moreover, American Samoa, the 
    Virgin Islands, Guam, and Puerto Rico are generally self-funded, 
    retaining their own tax collections. [See 26 USC Sec. Sec. 876(a), 
    931, 932(c)(4), 933, 7654 (1988).] (14)
---------------------------------------------------------------------------
12. The Constitution states that: No Person shall be a Representative 
        who shall not have attained to the Age of twenty five Years, 
        and been seven Years a Citizen of the United States, and who 
        shall not, when elected, be an Inhabitant of that State in 
        which he shall be chosen. [art. I, Sec. 2, cl. 2.]
13. Under various statutes, the other Delegates must be American 
        citizens.
14. Plaintiffs point to the anomaly of such Delegates passing upon 
        taxation and appropriations for the United States as part of 
        the Committee of the Whole.
---------------------------------------------------------------------------

        Beyond that, these five individuals represent areas and 
    constituents with vastly different political, cultural, geographic, 
    and economic ties to the rest of the United States. The populations 
    of these areas range from 47,000 in American Samoa to 3.6 million 
    in Puerto Rico. By comparison, the average population of the 
    congressional districts represented by the thirteen Member 
    plaintiffs here is approximately 569,864.(15)
---------------------------------------------------------------------------
15. Indeed, under Wesberry v Sanders [376 U.S. 1, 8-9 (1964)], the 
        number of inhabitants in the various congressional districts of 
        this nation must, ``as nearly as practicable,'' contain an 
        equal number of people.
---------------------------------------------------------------------------

        Each of these five non-voting Delegate positions was created 
    through a different statute. The common theme in all these statutes 
    is that the particular Delegate is given a seat in Congress with 
    the ``right of debate, but not of voting.'' [See, e.g., 2 USC 
    Sec. 25a(a) (1988) (statute creating D.C. Delegate).] 
    (16)
---------------------------------------------------------------------------
16. Legislation authorizing the other Delegates to sit in the House 
        similarly states that each is to be a ``nonvoting delegate.'' 
        [See 48 USC Sec. 1711 (1988) (Guam and the Virgin Islands), 48 
        USC Sec. 1731 (1988) (American Samoa), and 48 USC Sec. 891 
        (1988) (Puerto Rico).]
            The office of Resident Commissioner from Puerto Rico was 
        established by Congress in 1900 [31 Stat. 86]; in 1972 Congress 
        authorized the election of a Delegate from Guam and from the 
        Virgin Islands [48 USC Sec. 1711 (1988)]; in 1978 a Delegate 
        was authorized for American Samoa [48 USC Sec. 1731 (1988)]; 
        and the office of Delegate for the District of Columbia was 
        established in 1970 [84 Stat. 848].

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

[[Page 11882]]

        The concept of permitting non-voting Delegates to serve in the 
    House of Representatives is well-rooted in the history of the 
    American Congress. The Constitution vests Congress with plenary 
    power to regulate and manage the political representation of the 
    territories.(17) A similar vesting of power is conferred 
    on Congress to govern the District of Columbia.(18) The 
    Supreme Court has consistently affirmed the broad authority of 
    Congress to take action with respect to the territories and the 
    District of Columbia pursuant to these clauses. [See Sere & Laralde 
    v Pitot, 10 U.S. 332, 336-37 (1810) (``we find Congress possessing 
    and exercising absolute and undisputed power of governing and 
    legislating for the territories''); Binns v United States, 194 U.S. 
    486, 491 (1904) (``Congress, in the government of the territories 
    as well as the District of Columbia, has plenary power, save as 
    controlled by the provisions of the Constitution'').] On the 
    specific question of Congress' power to prescribe the political 
    rights of the territories, the Supreme Court has stated that ``in 
    ordaining government for the Territories, and the people who 
    inhabit them, all the discretion which belongs to legislative power 
    is vested in Congress.'' [Murphy v Ramsey, 114 U.S. 15, 44 (1885).]
---------------------------------------------------------------------------
17. The Constitution states with regard to the territories, ``Congress 
        shall have the power to make all needful rules and regulations 
        respecting'' these entities. [art. IV, Sec. 3.]
18. The Constitution states that ``Congress shall have Power . . . to 
        exercise exclusive Legislation in all Cases whatsoever'' over 
        the District of Columbia. [art. I, Sec. 8.]
---------------------------------------------------------------------------

        Although the territorial and other Delegates have never before 
    been granted authority to vote in the Committee of the Whole, they 
    have, intermittently over the past two centuries and consistently 
    over the past two decades, been given significant authority in 
    standing and select committees of the House.
        For example, the Northwest Ordinance of 1787 created the post 
    of territorial Delegate who was given a ``seat'' in Congress with 
    the right to debate, but not the right to vote. [1 Stat. 50, 52 
    (1789).] The second Delegate from the Northwest Territories was a 
    future President, William Henry Harrison. During his service as a 
    Delegate in Congress, at a time when numerous Framers of the 
    Constitution served in the national legislature, Harrison was 
    allowed to chair an important public lands committee and play a 
    significant role in the passage of legislation. [See Dorothy Burne 
    Goebel, William Henry Harrison 44 (1926); 6 Annals of Cong. 209-10, 
    Dec. 24, 1799; 6 Annals of Cong. 529, Feb. 19, 1800.] 
    (19) Other Delegates followed Harrison's example and 
    served on various standing committees of the House. [See 2 Hinds' 
    Precedents Sec. Sec. 1297-1301.]
---------------------------------------------------------------------------
19. Harrison was also appointed to serve on a House committee 
        established to address the urgent problem of the political 
        division of the territories. [Goebel, William Henry Harrison at 
        49; 6 Annals of Cong. 198, Dec. 10, 1799.]
---------------------------------------------------------------------------

        The frequency of this practice in the early Congress was noted 
    by an 1840

[[Page 11883]]

    House Committee report which observed that:

            With the single exception of voting, the Delegate enjoys 
        every other privilege and exercises every other right of a 
        Representative. He can act as a member of a standing or special 
        committee and vote on the business before said committees, and 
        he may thus exercise an important influence on those initiatory 
        proceedings by which business is prepared for the action of the 
        House.
    [2 Hinds' Precedents Sec. 1301 (quoting, H. Rept. No. 10, 27th 
    Cong., 1st Sess. 4-5 (1841)). See also, Ch. 7, Sec. 3, infra (``in 
    early Congresses, Delegates and Resident Commissioners were 
    entitled to vote in the committees to which they were assigned'') 
    (citations omitted).]

        The practice of allowing Delegates to vote in standing 
    committees apparently continued until the middle of the nineteenth 
    century at which time the Delegates relinquished this power in 
    exchange for other concessions. [See Cong. Globe 42d Cong., 2d 
    Sess. 117-118, Feb. 13, 1871.] (20)
---------------------------------------------------------------------------
20. According to the defendants, the Delegates were persuaded to give 
        up their seats in exchange for ``guaranteed memberships with 
        substantial rights on the key committees of greatest importance 
        to them--the Committee of the District of Columbia, and the 
        Committee of the Territories.'' [See Defendants' Motion to 
        Dismiss at 22.]
---------------------------------------------------------------------------

        For the next century, until 1970, Delegates no longer possessed 
    the right to vote in standing committees. That year, as part of the 
    1970 Legislative Reorganization Act, Congress expanded the powers 
    of the Resident Commissioner from Puerto Rico to include the right 
    to vote in standing committees. And over the next three years, the 
    House periodically amended its rules, so that by 1973 all Delegates 
    had once again the power to vote in standing committees. There were 
    no further modifications of the Delegates' powers until the changes 
    that were made in January, 1993.

                              IV. Rules Change

        The genesis of this lawsuit was a decision by the House of 
    Representatives, on Jan. 5, 1993, to amend House Rule XII to give 
    the five non-voting Delegates in the House of Representatives a 
    vote in the Committee of the Whole, as follows:

            In a Committee of the Whole House on the state of the 
        Union, the Resident Commissioner to the United States from 
        Puerto Rico and each Delegate to the House shall possess the 
        same powers and privileges as Members of the House.
    [Rule XII clause 2.]

        This rule change, made pursuant to the House's broad 
    constitutional power to adopt its internal rules,(1) was 
    opposed by all the Republican Members of the House and by 23 
    Democrats. [139 Cong. Rec. H53, H54 (daily ed.), 103d Cong. 1st 
    Sess., Jan. 5, 1993.] (2)
---------------------------------------------------------------------------
 1. The Constitution provides that each chamber of Congress ``may 
        determine the Rules of its Proceedings.'' [art. I, Sec. 5, cl. 
        2.]
 2. Concern was expressed by the opponents that the Democrats in 
        Congress were seeking by this means to increase their House 
        majority by five, all five Delegates being Democrats.

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

[[Page 11884]]

        As discussed above, this rule change marks the first time in 
    the history of the House of Representatives that territorial 
    Delegates, or any other non- Members, were given a vote in the 
    Committee of the Whole.(3) The House also amended its 
    rules to allow these Delegates to serve periodically as chair of 
    the Committee of the Whole.(4)
---------------------------------------------------------------------------
 3. The mere fact that this change in the House rules is unprecedented 
        is not, in and of itself, sufficient grounds for striking it 
        down. In considering an alteration of the means by which the 
        House determined whether a quorum was present, the Supreme 
        Court stated that ``it is no objection to the validity of a 
        rule that a different one has been prescribed and in force for 
        a length of time.'' [United States v Ballin, 114 U.S. 1, 5 
        (1892).]
 4. House Rule XXIII clause 1(a) now states that ``In all cases, in 
        forming a Committee of the Whole House, the Speaker shall leave 
        his chair after appointing a Member, Resident Commissioner, or 
        Delegate as Chairman to preside. . . .''
---------------------------------------------------------------------------

        As the House gave the Delegates these unprecedented powers, it 
    also adopted a rule [Rule XXIII clause 2(d)] that is generally 
    described as a ``savings clause'' which, as elaborated on in Part 
    VII, infra, calls for an automatic de novo vote in the House itself 
    whenever the votes of the Delegates are decisive in the Committee 
    of the Whole. As will be seen, the interplay between the House's 
    decision by Rule XII to authorize Delegate voting in the Committee 
    of the Whole and the ``savings clause'' in Rule XXIII is critical 
    to the outcome of this lawsuit.

              V. Jurisdictional and Prudential Considerations

        The Court cannot reach the merits unless it is able first to 
    cross several jurisdictional and prudential barriers: the doctrines 
    of standing, textual commitment, and remedial discretion. Because 
    in this case several Members of Congress request the Judiciary to 
    invalidate the action of the House of Representatives, separation 
    of powers concerns require the Court to tread cautiously and to 
    weigh the impact of these doctrines at the outset.

                                A. Standing

        The Court turns first to the question of standing. Article III 
    of the Constitution limits judicial action to ``cases or 
    controversies.'' [art. III, Sec. 2.] The doctrine of standing 
    ensures that courts remain within the boundaries of their 
    constitutional power by requiring that the plaintiffs have a 
    personal stake in the outcome of the controversy, at least by 
    allegation. [Baker v Carr, 369 U.S. 186, 204 (1962).]
        The four-part test to determine whether a party has standing 
    (5) is well-established: (1) there must be an injury in 
    fact; (2) to an interest arguably within the zone of interests 
    protected by the constitutional guarantee at issue, here the [art. 
    I, Sec. 1 and Sec. 2]; (3) resulting from the putatively illegal 
    conduct and; (4) which could be redressed by a favorable decision 
    of the court. [Simon v Eastern Kentucky Welfare Rights 
    Organization, 426 U.S. 26, 38 (1976).]
---------------------------------------------------------------------------
 5. For purposes of determining standing, the Court accepts plaintiffs' 
        pleaded facts as valid. [See Warth v Seldin, 422 U.S. 490, 501 
        (1975).]
---------------------------------------------------------------------------

        In the instant matter, the standing debate revolves primarily 
    around the

[[Page 11885]]

    issue whether there is a judicially-cognizable injury. [Vander Jagt 
    v O'Neill, 699 F2d 1166, 1168 (D.C. Cir. 1983).] Where separation 
    of powers concerns are present, the Court will not lightly exercise 
    its authority to decide litigation, and absent a compelling and 
    specific injury, the Court must decline to involve itself in an 
    action against a coordinate branch of government. Mere generalized 
    or speculative injury cannot create standing in such actions.
        For example, a claim that the alleged unconstitutional action 
    merely diminishes a legislator's effectiveness, as perceived by 
    that legislator, is too amorphous an injury to confer standing. 
    [See Harrington v Bush, 553 F2d 190, 205-206 (D.C. Cir. 1977) 
    (Representative did not have standing because claim that illegal 
    activities of CIA diminished his effectiveness as legislator was 
    not concrete injury).] By contrast, the loss of a vote or 
    deprivation of a particular opportunity to vote is a sufficiently 
    particularized injury to warrant judicial involvement in 
    congressional affairs. [Moore v United States House of 
    Representatives, 733 F2d 946, 952-53 (D.C. Cir. 1984); Coleman v 
    Miller, 307 U.S. 433, 438 (1939); Dellums v Bush, 752 F Supp 1141, 
    1147 (D.D.C. 1990).]
        In the instant action, the required showing of particularized 
    injury is clearly met. The Constitution guarantees the right to 
    proportional representation in the House of 
    Representatives.(6) Among the plaintiffs' claimed 
    injuries is an abridgement of that right. Article I, section 2, 
    provides in pertinent part: ``Representatives . . . shall be 
    apportioned among the several States which may be included within 
    this Union, according to their respective Numbers. . . .'' [art. I, 
    Sec. 2, cl. 3.] The alleged dilution of that representational 
    voting power set forth in the Constitution satisfies the 
    requirement of injury in fact. Although the House majority's action 
    does not entirely strip Members of that body of their right to 
    vote, it is claimed to take from them precisely what the 
    Constitution guarantees--votes carrying weight proportional to 
    their States' population.
---------------------------------------------------------------------------
 6. Each State is of course entitled to two Senators regardless of 
        population.
---------------------------------------------------------------------------

        In Vander Jagt [supra, 699 F2d at 1170], the Court of Appeals 
    found sufficient injury when ``the essence of the lawsuit is that 
    the Democratic House leadership has successfully diluted the 
    political power of Republican representation on congressional 
    committees.'' Similarly, in holding unconstitutional an action by a 
    State executive branch overriding the votes of state senators, the 
    Supreme Court has stated that ``these senators have a plain, direct 
    and adequate interest in maintaining the effectiveness of their 
    votes. . . . They have set up and claimed a right and privilege 
    under the Constitution to have their votes given effect.'' [Coleman 
    v Miller, supra, 307 U.S. 438.] So, too, here. [See also, Montana v 
    United States Department of Commerce, 775 F Supp 1358 (D. Mont. 
    1991) (three-judge court), reversed on other grounds, 503 U.S. 442 
    (1992).]
        The remaining requirements of standing are also satisfied. The 
    alleged harm falls squarely within the zone of interests protected 
    by Article I of the Constitution. The political system created by 
    the Framers vests legislative power in the House of Representatives

[[Page 11886]]

    and the United States Senate. [art. I, Sec. 1.] Members of the 
    House are chosen in proportion to the number of citizens in their 
    respective States, and they are each given a vote as the tool with 
    which to craft legislation. As the pool of possible votes expands, 
    the effectiveness of each individual vote shrinks. The action of 
    the House majority, if there is merit to the allegations--an issue 
    discussed below--impairs the role of House Members in the 
    constitutional scheme of lawmaking and thus directly impairs the 
    effectiveness of each Representative's individual vote. [See 
    Dellums v Bush, supra.]
        Turning to the third requirement, the Court is able to trace 
    the injury to the House majority's challenged action. Plaintiffs 
    need only make a reasonable showing that but for defendants' 
    actions, the alleged injury would not have occurred. The plaintiffs 
    here sufficiently established this connection.
        Unlike other cases in which a variety of forces could possibly 
    be responsible for a plaintiff's injury, here the nexus connecting 
    act and injury is direct and clear. [See, e.g., Community Nutrition 
    Institute v Block, 698 F2d 1239 (D.C. Cir. 1983), reversed on other 
    grounds, 467 U.S. 340 (1984).] Absent the passage of House Rule 
    XII, permitting the five Delegates to vote in the Committee of the 
    Whole, the alleged dilution of the other Members' votes would not 
    have occurred. Accordingly, the Court finds that the plaintiffs 
    have alleged the requisite causal link.
        Finally, the alleged injury is capable of redress by the 
    Judiciary. Plaintiffs seek only a ruling that House Rule XII is 
    unconstitutional. Passage of that House rule allegedly caused the 
    injury complained of here, and a judicial decision finding that 
    rule constitutionally infirm and enjoining the House from enforcing 
    it would certainly cure any harm.
        Inasmuch as the plaintiffs meet the requirements of all four 
    prongs under Simon, supra, the Court concludes that they have 
    standing to proceed.

                           B. Textual Commitment

        A controversy is non-justiciable where there is ``a textually 
    demonstrable constitutional commitment of the issue to a coordinate 
    political department.'' [Baker v Carr, supra, 369 U.S. 217; Nixon v 
    United States, 61 U.S.L.W. 4069, Jan. 13, 1993.] However, while the 
    Constitution confers on the House the power ``to determine the 
    Rules of its Proceedings,'' [art. I, Sec. 5, cl. 2], the Judiciary, 
    too, has a role to play. It rests with the courts to evaluate the 
    validity of House rules in relation to the Constitution. [See 
    Marbury v Madison, 5 U.S. 137 (1803).] As the Supreme Court has 
    stated, ``the Constitution empowers each house to determine its 
    rules of proceedings. It may not by its rules ignore constitutional 
    restraints or violate fundamental rights.'' [United States v 
    Ballin, 144 U.S. 1, 5 (1892).]

        Thus, while the prudential concerns continue to have great 
    vitality, ``it is nonetheless critical that we do not deny our 
    jurisdiction over the claims in the case. As it is conceivable that 
    the committee system could be manipulated beyond reason, we should 
    not abandon our constitutional obligation--our duty and not simply 
    our province--`to say what the law is.' '' [Vander Jagt, supra, 699 
    F2d 1170 (quoting Marbury v Madison, supra).]

[[Page 11887]]

        Again, separation of powers concerns require caution in 
    reviewing House rules, but it has never been held that this textual 
    commitment renders disputes regarding such rules ipso facto 
    nonjusticiable. [Vander Jagt, supra, 699 F2d 1173.] Thus, although 
    a court may not order the House to adopt any particular rule, 
    ``Article I does not alter our judicial responsibility to say what 
    rules Congress may not adopt because of constitutional infirmity.'' 
    [Id.] On this basis, while the subject of House rules is textually 
    committed to the House, the courts are not thereby ousted of 
    jurisdiction to consider the consistency of a particular rule with 
    the Constitution.(7)
---------------------------------------------------------------------------
 7. This line of reasoning also disposes of the related political 
        question doctrine of justiciability. [See United States 
        Department of Commerce v Montana, 503 U.S. 442 (1992); Powell v 
        McCormack, 395 U.S. 486 (1969).]
---------------------------------------------------------------------------

                           C. Remedial Discretion

        Separation of powers concerns are also incorporated into 
    principled decision making which holds that, in certain 
    circumstances, a federal court may, in its discretion, grant or 
    withhold injunctive or declaratory relief with respect to 
    intramural disputes in Congress. Under this ``remedial discretion'' 
    doctrine,(8) the Court will consider a number of factors 
    in determining whether the dispute calls for judicial intervention 
    or is best left to congressional resolution. Among these are the 
    possibility of an alternate remedy through congressional action or 
    a private suit, the egregiousness of the constitutional violation, 
    and the extent of the intrusion of the Judiciary into legislative 
    action if the court entertains the suit. [See, e.g., Humphrey, 
    supra, 848 F2d 214 note 4; Moore, supra, 733 F2d 954-56; Vander 
    Jagt, supra, 699 F2d 1174-75; Riegle, supra, 656 F2d 881; contra 
    Melcher v Federal Open Market Committee, 836 F2d 561, 564-65 (D.C. 
    Cir. 1987).]
---------------------------------------------------------------------------
 8. The doctrine of remedial discretion is recognized and applied in 
        this Circuit. [Humphrey v Baker, 848 F2d 211, 213 (D.C. Cir. 
        1988); Melcher v Federal Open Market Committee, 836 F2d 561 
        (D.C. Cir. 1987).] It has not been addressed by the Supreme 
        Court. [Humphrey, supra.]
---------------------------------------------------------------------------

        Defendants contend that, because plaintiffs' dispute and 
    potential remedy is with their colleagues, the remedial discretion 
    doctrine ipso facto compels the Court to dismiss the action. Under 
    this interpretation of the doctrine, if there is any hope, however 
    remote, that the House's new rule will be remedied by Congress, the 
    Court must decline to grant relief. That is clearly 
    incorrect.(9)
---------------------------------------------------------------------------
 9. If defendants' argument were correct, there would be no discretion 
        and indeed no doctrine of remedial discretion because in view 
        of the nature of intramural congressional disputes, one could 
        always hypothesize that a congressional remedy may exist. 
        Certainly, for example, if a House majority decided to deprive 
        blacks or Republicans of their votes, the courts would remedy 
        the situation notwithstanding the theoretical possibility that 
        the majority could, somehow, be persuaded to change its mind.
---------------------------------------------------------------------------

        The court's remedial discretion is not inflexibly applied, and 
    in considering

[[Page 11888]]

    whether a remedy is appropriately given, the court weighs a variety 
    of factors. Although the case law is equivocal, a suit in which 
    there are also non-congressional, private plaintiffs may be able to 
    resist dismissal. [Moore, supra, 733 F2d 956; Vander Jagt, supra, 
    699 F2d 1175 note 24; Riegle, supra, 656 F2d 881; contra Melcher, 
    836 F2d 564-65.] In those instances in which a suit was essentially 
    an intramural dispute and could have been brought by private 
    plaintiffs but was not, the Court dismissed the action. For 
    example, in Riegle, supra, the court exercised its discretion in 
    refusing to invalidate the allegedly unconstitutional Federal 
    Reserve Act [12 USC Sec. 221 et seq. (1976)], passed by a majority 
    of Senator Riegle's colleagues, or to enjoin five members of the 
    Federal Reserve Bank from voting pursuant to the Act. Several 
    factors were cited in the opinion, but its principal basis was 
    that, because there were private plaintiffs who had the ability to 
    challenge the statute, judicial review could be obtained without 
    creating separation of powers problems. [656 F2d 882; contra 
    Melcher, supra, 836 F2d 564-65.] (10) There the court 
    indicated that had private plaintiffs been joined, the court 
    ``would be obliged to reach the merits of the claim.'' [Moore, 656 
    F2d 881.]
        In the instant case, the Republican House Members sued not only 
    in their congressional capacity but also in their capacity as 
    voters. Moreover, other, non-congressional private citizens have 
    also joined in the suit as plaintiffs.(11) [See Gregg v 
    Barrett, 771 F2d 539, 546 (D.C. Cir. 1985).] The House's rules 
    change, by allegedly granting legislative power to territorial 
    Delegates, at least one of whom represents as few as one-tenth of 
    the number of citizens represented by each Member of the House 
    pursuant to constitutionally-required reapportionment [art. I, 
    Sec. 2, cl. 3], dilutes the vote of these citizens. [See Franklin v 
    Massachusetts, 505 U.S. 788 (1992) (O'Connor, J., plurality 
    opinion); Montana v U.S. Department of Commerce, supra.] It follows 
    that the private plaintiffs are legitimately in the suit, and their 
    presence presents a more compelling claim for judicial involvement. 
    [Moore, supra, 733 F2d 956; Vander Jagt, supra, 699 F2d 1175 note 
    24; Riegle, supra, 656 F2d 881; contra Melcher, 836 F2d 564-65.]
---------------------------------------------------------------------------
10. The court also did note that Senator Riegle could obtain 
        substantial relief from the action of his fellow legislators by 
        convincing them to enact, amend, or repeal the offending 
        statute.
11. Gregory T. Chambers, Becky M. Costantino, and Lois Stetzler.
---------------------------------------------------------------------------

        In Moore, too, the court relied on the possibilities of 
    congressional repeal and citizen suit to dismiss a challenge to the 
    constitutionality of a statute (Tax Equity and Fiscal 
    Responsibility Act of 1982). [733 F2d 955-56.] As in Riegle, supra, 
    private plaintiff had standing to bring the suit but were not 
    plaintiffs. [Id.]
        Some of the pertinent cases were decided on other grounds in 
    the general remedial discretion framework. In Humphrey, supra, 
    while the court concluded that a legislative remedy was available 
    to correct the plaintiffs' grievance, it nevertheless considered 
    the merits, and found the law to be constitutional. [848 F2d 213.] 
    In Vander

[[Page 11889]]

    Jagt, for example, the Republican plaintiffs contended that the 
    majority Democrats had provided them with fewer seats on House 
    committees and subcommittees than they were proportionally owed. In 
    rejecting the invitation to have the dispute decided by the courts, 
    the Court of Appeals explained that the prospect of fashioning a 
    remedy, while not impossible, was ``a startling unattractive 
    idea.'' [699 F2d 1176.] (12) A remedy would have 
    required the court to dictate to the Speaker ``how many Democrats, 
    and perhaps even which Democrats, he is to appoint to the standing 
    committees.'' [Id.] Rather than to inject itself so deeply into the 
    legislative process, the Court of Appeals declined to approve 
    equitable and declaratory relief.
---------------------------------------------------------------------------
12. The Republican plaintiffs complained about underrepresentation on 
        the Budget Committee, the Appropriations Committee, the Ways 
        and Means Committee, and the Rules Committee. [699 F2d 1167.]
---------------------------------------------------------------------------

        In the instant case, by contrast, the remedy would be 
    uncomplicated and unintrusive. The Court is not called upon to 
    devise rules for the operation of the House but only to pass on the 
    legality of a rule already enacted. In the view of this Court, it 
    is not precluded by prudential considerations from performing this 
    single, relatively simple act, if it turned out, on the merits, 
    that Rule XII and XXIII, taken together, improperly granted votes 
    to the Delegates in violation of Article I of the Constitution and 
    to the detriment of the Members from the several States. Once that 
    matter is decided, judicial involvement will be at an end.
        There is yet another reason for not abstaining in the exercise 
    of the Court's discretion. The precedents (e.g., Riegle and Moore) 
    involved situations where, even without judicial intervention, the 
    controversies would not have a long-lasting impact because they 
    involved only a single statute. By contrast, the instant case 
    revolves around the legislative process itself. Therefore, if House 
    Rule XII is constitutionally infirm, and the courts do not resolve 
    the matter, Delegates will improperly vote in the Committee of the 
    Whole for the indefinite future, and a shadow of 
    unconstitutionality will be cast on much future House action. The 
    argument for judicial decisionmaking in the face of such 
    potentially broad and long-lasting effects is compelling.
        The Court concludes that it does not lack jurisdiction and that 
    there is no prudential reason for judicial abstention. The 
    defendants' request for a dismissal of the action on grounds short 
    of the merits is therefore denied.

          VI. Vesting of Legislative Power in Individuals Who Are Not 
                              Members of Congress

        Now as to the merits. The plaintiffs challenge the 
    constitutionality of the changes in the House rules on two grounds. 
    First, they argue that, by allowing them to vote in the Committee 
    of the Whole, the House has unconstitutionally invested the 
    territorial Delegates with legislative power. Second, they claim 
    that the House of Representatives has violated the principles of 
    bicameralism and presentment by unilaterally increasing the power 
    of the Delegates. These contentions are discussed below in turn.
        One principle is basic and beyond dispute. Since the Delegates 
    do not represent States but only various terri

[[Page 11890]]

    torial entities, they may not, consistently with the Constitution, 
    exercise legislative power (in tandem with the United States 
    Senate), for such power is constitutionally limited to ``Members 
    chosen . . . by the People of the several States.'' [art. I, 
    Sec. 8, cl. 1.]
        It is not necessary here to consider an exhaustive list of the 
    actions that might constitute the exercise of legislative power; 
    what is clear is that the casting of votes on the floor of the 
    House of Representatives does constitute such an exercise. Thus, 
    unless the areas they represent were to be granted statehood, the 
    Delegates could not, consistently with the Constitution, be given 
    the authority to vote in the full House.
        On the other hand, not all votes cast as part of the 
    congressional process constitute exercises of legislative power. 
    For example, as discussed in Part III, supra, representatives of 
    the territorial entities have at various times in United States 
    history been given the authority to sit on and vote in standing and 
    select committees of the House of Representatives, and they 
    exercise that authority now.(13)
---------------------------------------------------------------------------
13. There has been no litigation concerning this authority, and thus no 
        judicial decision one way or the other on the authority of the 
        Delegates to participate in standing and select committee 
        deliberations and votes. However, the plaintiffs in this case 
        have affirmatively stated that they are not here questioning 
        that authority, although they note in passing that the practice 
        ``may well be constitutionally infirm.'' [Plaintiffs' 
        Memorandum of Points and Authorities in Support of Preliminary 
        Injunction at 20 note 4.] One of the amici does assert that the 
        Delegates should not be allowed to participate in any House 
        committee deliberations and votes. [See Amicus Curiae Brief 
        filed on behalf of Republican Members of Congress at 8-18.]
---------------------------------------------------------------------------

        The question here, of course, is whether, consistently with the 
    constitutional mandate that only representatives of States who meet 
    the required qualifications may exercise legislative power, 
    Delegates may cast votes in the Committee of the Whole. This body 
    has broader responsibilities than the standing and select 
    committees of the House, but it is obviously not the House of 
    Representatives itself.
        In the opinion of this Court, defendants' claims to the 
    contrary notwithstanding, voting in the Committee of the Whole 
    constitutes an exercise of legislative power. Today, the Committee 
    of the Whole performs much the same functions that it did in the 
    past. According to the uncontradicted evidence produced by 
    Congressman Michel, one of the plaintiffs herein, the Committee of 
    the Whole is a committee only in name. It is convened on the floor 
    of the House and is chaired from the Speaker's rostrum. The bulk of 
    the chamber's time is occupied by the molding of legislation 
    through debate and amendment in the Committee of the Whole. Indeed, 
    the Committee of the Whole occupies a central role on taxes, 
    appropriations, and all other matters touching upon money. [Michel 
    Affidavit at 3-6.]
        Beyond that, consideration of a bill in the Committee of the 
    Whole normally represents the sole mechanism by which 
    Representatives who are not

[[Page 11891]]

    Members of the proposing standing committee may help to shape 
    legislation in the House. [Solomon Affidavit at 5.]

        Amendments that are defeated or precluded from consideration as 
    a result of parliamentary decisions in the Committee of the Whole 
    may not be heard again by the House. [Michel Affidavit at 6.] 
    Again, according to the Michel and Solomon affidavits, a bill, as 
    amended by the Committee of the Whole, is in most circumstances, 
    passed by the full House: no further debate is permitted; no new 
    amendments may be offered, and no previously rejected amendments 
    may be reintroduced. [See Michel Affidavit, at 7; and Solomon 
    Affidavit, at 5-6.]
        It is true that in no instance does a vote in the Committee of 
    the Whole end the House's consideration of a bill. A bill is 
    officially passed by the House of Representatives on the floor of 
    the House, and all the work of the Committee of the Whole must 
    ultimately be approved by the full House before it becomes 
    official. However, for the reasons stated, House action is 
    frequently formal and ceremonial rather than substantive. For 
    practical purposes, most decisions are final insofar as the House 
    of Representatives is concerned when they are made by the Committee 
    of the Whole.
        Indeed, formal legislative action and legislative power are not 
    interchangeable terms. The Supreme Court has defined legislative 
    power as action which has ``the purpose and effect of altering 
    legal rights, duties and relations of persons . . . outside the 
    legislative branch.'' [Immigration and Naturalization Service v 
    Chadha, 462 U.S. 919, 952 (1986).] Action taken by the Committee of 
    the Whole does, in many instances, have precisely that 
    effect.(14)
---------------------------------------------------------------------------
14. The Delegate for the District of Columbia was not far off the mark 
        when she stated, upon passage of the new rules in January 1993 
        that on ``99 percent of the business of the House, the District 
        will have a vote . . . .'' [``Jenkins, D.C. Wins Vote on House 
        Floor,'' Washington Post, Jan. 6, 1993 A1.]
---------------------------------------------------------------------------

        In short, the Committee of the Whole is the House of 
    Representatives for most practical purposes. For these reasons, the 
    Court concludes that, to allow Delegates to cast votes in the 
    Committee of the Whole, without qualification or condition, would 
    be to invest them with legislative power in violation of Article I 
    of the Constitution.(15)
---------------------------------------------------------------------------
15. However, the Court concludes that allowing the Delegates to serve 
        as the chair of the Committee of the Whole does not violate 
        Article I. The chair of the Committee makes the initial 
        determination of whether an amendment may properly be 
        considered by the Committee of the Whole (e.g., whether it is 
        germane to the underlying bill). However, the chair's ruling is 
        subject to appeal to the Committee of the Whole. Therefore, the 
        mere vesting of the Delegates with the authority to chair the 
        committee is not equivalent to allowing these Delegates to 
        exercise legislative power.
            As to the other duties of the chair, such as recognizing 
        speakers, only through gross abuses of this power could this 
        responsibility be used to exert ``legislative power.'' 
        Theoretically, a chair could refuse to recognize any members of 
        the minority and thus influence the debate, but such a scenario 
        is wholly implausible. In sum, in the normal duties of the 
        chair there is no opportunity to exercise legislative power.

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

[[Page 11892]]

                            VII. Savings Clause

        This conclusion does not end the Court's inquiry into the issue 
    raised by the current litigation. For the House of Representatives 
    did not simply amend its rules to allow the Delegates to vote in 
    the Committee of the Whole. Instead the House also adopted what has 
    been termed a ``savings clause,'' which reads as follows:

            Whenever a recorded vote on any question has been decided 
        by a margin within which the votes cast by the Delegates and 
        the Resident Commissioner have been decisive, the Committee of 
        the Whole shall automatically rise and the Speaker shall put 
        that question de novo without intervening debate or other 
        business. Upon the announcement of the vote on that question, 
        the Committee of the Whole shall resume its sitting without 
        intervening motion.
    [House Rule XXIII clause 2(d).]

        What this rule means is that when a recorded vote in the 
    Committee of the Whole is decided by a margin within which the 
    Delegates' votes were decisive--e.g., a five-vote margin or less if 
    all the Delegates vote on an issue--that issue is automatically 
    (16) referred out of the Committee of the Whole to the 
    full House for a de novo vote without any intervening 
    debate.(17) And the territorial Delegates are prohibited 
    from participating in this de novo vote. Once that second vote is 
    cast and the results are announced, the Committee of the Whole 
    resumes its deliberations on that piece of legislation.
---------------------------------------------------------------------------
16. During the floor debates over these rule changes House Majority 
        Leader Richard Gephardt (D-Mo.) engaged in an exchange with 
        Rep. Robert Walker (R-Pa.) over the procedure for initiating 
        this de novo vote. The two Members agreed that the rule is to 
        be given its plain meaning, that a de novo vote is automatic, 
        and that no Member needs to move for such a re- vote. [139 
        Cong. Rec. H46 (daily ed.), Jan. 5, 1993. See also, Transcript 
        of Feb. 9, 1993. Preliminary Injunction Hearing 31-32 
        (hereinafter, ``Transcript'').]
17. Neither the defendants nor anyone else was able to forecast 
        precisely what would happen under the ``sav-ings clause'' with 
        respect to the differing quorum requirements in the Committee 
        of the Whole and the full House. [See Transcript at 36-37.] It 
        is unclear, for example, what will occur, procedurally, when 
        the Committee of the Whole is convened with more than the 100 
        Members required for a quorum, but less than the 218 Members 
        needed for a quorum on the House floor. The Committee of the 
        Whole could not automatically rise for a de novo vote under 
        those circumstances; presumably the business of the House would 
        be delayed while additional members were located and summoned 
        to the floor of the House.
---------------------------------------------------------------------------

        In other words, when the votes of the Delegates do not affect 
    the result in the Committee of the Whole, they are counted as part 
    of the Committee's, and hence the House's, final decision; but when 
    their votes make a difference

[[Page 11893]]

    in the result in the Committee of the Whole, their votes are not 
    cast or counted in the second, decisive vote in the House 
    itself.(18)
---------------------------------------------------------------------------
18. As Congressman Walker (R-Pa.) phrased it, Congress has told the 
        Delegates: ``when your vote counts, it doesn't count, but when 
        it doesn't count, it counts.'' [139 Cong. Rec. H70 (daily ed.), 
        103d Cong. 1st Sess., Jan. 5, 1993.]
---------------------------------------------------------------------------

        Thus, the central question facing the Court is whether this 
    ``savings clause'' preserves the constitutionality of the rule 
    change adopted by the House. On that issue, the defendants argue 
    that the ``savings clause'' is just that: it protects the 
    constitutionality of the provision allowing Delegates to vote in 
    the Committee of the Whole if there otherwise were any doubt about 
    constitutionality. The plaintiffs, on the other hand, contend that 
    the ``savings clause'' does not save the legality of the basic rule 
    change.
        Plaintiffs offer four specific arguments to support their claim 
    that the ``savings clause'' does not adequately void the effects of 
    the Delegates' votes in the Committee of the Whole, and that the 
    principal rule change is therefore unconstitutional despite the 
    presence of that clause. The Court now considers each of these four 
    arguments in turn.

                            A. Unrecorded Votes

        By its very terms, the ``savings clause'' applies only to 
    ``recorded'' votes; under [House Rule XXIII clause 2(d)], only such 
    votes are required to be repeated in the House itself. The 
    plaintiffs argue strenuously that this limitation represents a 
    significant loophole because approximately half of the Committee of 
    the Whole votes in the 102d Congress were unrecorded.
        In the view of the Court, this factor does not drain the 
    ``savings clause'' of its force.
        Under the House rules, a vote in the Committee of the Whole 
    must be recorded ``on request supported by at least twenty-five 
    Members.'' [Rule XXIII clause 2(b).] Thus, the standard for forcing 
    a recorded vote in the Committee of the Whole is so minimal that 
    restricting the ``savings clause'' to recorded votes only is not 
    significant. It may even be that the new importance attached to the 
    act of recording a Committee of the Whole vote under current House 
    procedures (i.e., triggering the ``savings clause'') would sharply 
    increase the number of recorded votes. In any event, because of the 
    very minor effort required to produce a recorded vote, the Court is 
    not persuaded that a substantial number, if any, of Committee of 
    the Whole votes under the new rules will go unrecorded where there 
    is any doubt as to whether the Delegates' votes will be decisive.

                      B. The ``Horse Trading'' Problem

        The plaintiffs further argue that, under these rules, the 
    Delegates will exercise legislative power in ways which cannot be 
    detected by the ``savings clause.'' Specifically, they contend that 
    the rules will allow territorial Delegates to trade their votes 
    with full Members of the House. The following example is cited to 
    illustrate this point. The Delegate from Guam might make separate 
    trades with twelve Members, securing a dozen votes against an 
    amendment limiting funding for the

[[Page 11894]]

    U.S. naval presence on the island. If, as a consequence of these 
    maneuvers, the amendment is defeated in the Committee of the Whole 
    by more than five votes, it will not be reviewable by a new vote in 
    the House. By this means, it is said, the Guam Delegate will have 
    affected the outcome of legislation by securing those twelve extra 
    votes in a manner that is not reviewable under the ``savings 
    clause.''

        The critical flaw in this theory, however, is that it assumes 
    that Members of Congress with full votes both in the Committee and 
    in the House will engage in trades with territorial Delegates when 
    the vote these Members receive in the trade is meaningless. 
    Returning to the example cited above, assume that the next vote is 
    an amendment to close an Army base in the district of one of the 
    Members. Assume further that a Member was assured of the Guam 
    Delegate's vote against this amendment in return for a vote against 
    the reduction in naval spending and activity in Guam.
        However, if the Army base amendment is defeated by one vote 
    (the Guam Delegate's), it is subject to de novo review in the 
    House. The Delegate's vote then becomes meaningless because the 
    fate of the Army base will be decided in the House itself only by 
    full Members. On the other hand, if the amendment is defeated in 
    the Committee of the Whole by over five votes, the Guam Delegate's 
    vote will similarly be meaningless. The bottom line is that a 
    Delegate's vote can never make the difference between winning and 
    losing.
        The plaintiffs have failed to provide the Court with any 
    credible basis on which it may be assumed that a Member of the 
    House of Representatives would trade with a Delegate for a vote 
    that could never be decisive.(19) The affidavits 
    submitted by the plaintiffs describe the legislative horse trading 
    process, and the Court recognizes that such practices may be a 
    daily fact of life on Capitol Hill. However, the Court will not 
    assume that Members will trade something for 
    nothing.(20)
---------------------------------------------------------------------------
19. Despite their very thorough preparation and research of these 
        issues, counsel for the plaintiffs could not provide a 
        persuasive explanation for this flaw in their ``horse trading'' 
        argument. The record is devoid of an adequate basis upon which 
        the Court could conclude that Members of the House of 
        Representatives would defy common sense and trade their votes 
        for the meaningless votes of the Delegates.
            The plaintiffs did argue that a Member might trade for a 
        Delegate's vote to buy precious time during the legislative 
        process since a Delegate's vote could force a de novo vote. 
        This time could be an ``opportunity to secure other supporters, 
        to make other trades.'' [See Transcript at 9-10.]
            Since the ``savings clause'' requires a de novo vote 
        without intervening debate or other business, presumably little 
        time will pass before the second vote. Moreover, even if the 
        delay is more substantial, vesting Delegates with the power to 
        prolong the proceedings in the Committee of the Whole is hardly 
        the equivalent of granting them legislative power.
20. By their mere presence in the Congress, Delegates are able to 
        engage in other types of trades which could potentially affect 
        the outcome of legislation. For example, the Resident 
        Commissioner from Puerto Rico could offer to make campaign 
        appearances on behalf of a Member with a large Puerto Rican 
        constituency in exchange for that Member's vote on a particular 
        bill. The non-decisive vote in the Committee of the Whole is 
        more akin to this type of bargaining chip already possessed by 
        the Delegates. In other words, the vote that the House has 
        given the Delegates only adds another arrow to the Delegates' 
        quiver. It does not empower them with a completely new and 
        potent weapon that may be equated with legislative power.

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

[[Page 11895]]

        Although the plaintiffs correctly note that votes are the 
    ``currency of the House'' (1) for trading purposes, the 
    fact is that under the January 1993 rules change the votes in the 
    wallets of the Delegates are only counterfeit bills. They can never 
    have a final effect on legislation in the House.
---------------------------------------------------------------------------
 1. See Plaintiffs' Reply Memorandum in Support of Preliminary 
        Injunction at 3.
---------------------------------------------------------------------------

                         C. Drafting of Amendments

        The plaintiffs further claim that because the Delegates are now 
    empowered to vote in the Committee of the Whole, they will exert 
    more influence over the drafting of amendments which are to be 
    considered by that Committee. This claim is based on the theory 
    that other legislators will consult with Delegates during the 
    drafting of amendments in order to enlist their support.
        This argument suffers from two difficulties. First, as with the 
    horse trading scenario, the plaintiffs necessarily assume that a 
    Member will move to amend legislation to appease a Delegate whose 
    vote could ultimately not make the difference between defeat or 
    passage of that amendment.
        Second, if this type of influence qualifies as exercising 
    legislative power, then the Delegates, by their mere presence in 
    the House, and certainly by their votes in standing committees, 
    already have legislative power. In the standing committees the 
    Delegates have a vote, and presumably they contribute to the 
    ultimate shape of the bills reported out of the committee.
        Delegates also have at their disposal several other methods of 
    influencing the text of various legislation and amendments. For 
    example, they can speak on behalf of a bill during debates, lobby 
    the Members, or offer an endorsement to a Member in exchange for 
    certain changes in a proposed amendment. But none of these has ever 
    been held to constitute the exercise of legislative power.

                        D. Precedent-Setting Effect

        Even if none of these defects existed, there is the underlying 
    problem--as plaintiffs see it--that to permit Delegates to 
    participate at all in the Committee of the Whole is a violation of 
    the constitutional scheme. According to plaintiffs, if the House 
    majority may permit Delegates--who are not Members--to participate 
    in the deliberations of the Committee of the Whole, there would 
    logically be nothing to preclude that same majority also from 
    allowing such non-Members as the Clerk of the House, Members of the 
    Canadian Parliament, or the general public,

[[Page 11896]]

    to participate. Even more, if the composition of the Committee of 
    the Whole does not matter constitutionally, as defendants are said 
    to claim, the House could presumably bar women or black legislators 
    from participating in its deliberations, provided only that they 
    retain their full votes in the House itself.
        That argument is not well taken, on several levels. First of 
    all, as it has made clear in this Opinion, the Court does not share 
    defendants' view that the Committee of the Whole is a purely 
    advisory body without the ability to exercise conclusive 
    legislative authority. Although there is always the prospect that 
    the House will reverse actions taken by the Committee of the Whole, 
    the procedures for achieving this result are cumbersome and 
    difficult to utilize. For that reason the House is not at liberty 
    to take whatever action it pleases with respect to the composition 
    or proceedings of the Committee of the Whole.
        That leaves the question whether, for example, the House could 
    decide that women or black Members will not be permitted to vote in 
    the Committee of the Whole, as long as an automatic re-vote will be 
    held when their votes might have been decisive (e.g., the number of 
    women Members exceeds the margin of victory in the Committee of the 
    Whole).

        Such unequal treatment of women or blacks, which the government 
    would be unable to claim is either ``substantially related to an 
    important government interest,'' (2) or narrowly 
    tailored to serve a compelling governmental interest,(3) 
    would clearly run afoul of the Constitution. The Supreme Court has 
    made it clear that in establishing the rules of its proceedings, 
    the House is limited by the restrictions contained in the 
    Constitution. [United States v Ballin, supra, 114 U.S. 5.] 
    Therefore, any rules adopted by the House regarding the procedures 
    in the Committee of the Whole must comply with the Constitution.
---------------------------------------------------------------------------
 2. See Craig v Boren, 429 U.S. 190, 197 (1976) (establishing the 
        standard to be applied to equal protection claims based on 
        gender discrimination).
 3. City of Cleburne v Cleburne Living Center, 473 U.S. 432, 440 (1985) 
        (standard to be applied to equal protection claims based on 
        race discrimination).
---------------------------------------------------------------------------

        That completely answers in the negative the question whether 
    the House has the authority to exclude any individuals who are 
    Members of the House from voting in the Committee of the Whole. As 
    for the House's ability to include additional individuals in the 
    Committee's proceedings, as it has done with respect to the 
    Delegates, that poses a range of questions that the Court need not 
    decide here.
        Suffice it to say that the presence of the territorial 
    Delegates in the House of Representatives is expressly provided for 
    in statutes; and these statutes were enacted pursuant to explicit 
    delegations of power contained in the Constitution authorizing 
    Congress to pass laws respecting the territories and the District 
    of Columbia.
        The federal laws creating the office of territorial Delegates 
    are the tickets of admission to the proceedings of the House of 
    Representatives. According to Hinds, a ``territory or district must 
    be organized by law before the House will admit a representative 
    Delegate.''

[[Page 11897]]

    [Deschler's Precedents Ch. 7, Sec. 3, p. 35, note 11, supra (citing 
    1 Hinds' Precedents Sec. Sec. 405-412).] In crafting the House 
    rules that are challenged here, the House is merely establishing 
    the functions these Delegates will play in the legislative process 
    short of exercising legislative power. As for others, e.g., Members 
    of the Canadian parliament or Democratic governors, they clearly 
    could not, on such a basis, or any basis, be given a vote in the 
    Committee of the Whole.
        In sum, it is the conclusion of the Court that, while the new 
    rules of the House of Representatives may have the symbolic effect 
    of granting the Delegates a higher status and greater prestige in 
    the House and in the Delegates' home districts, it has no effect, 
    or only at most an unproven, remote, and speculative effect, as far 
    as voting or the exercise of legislative power is concerned. 
    Accordingly, the rule is not unconstitutional as the delegation of 
    an improper exercise of legislative power.

                             VIII. Bicameralism

        Plaintiffs challenge the recent changes in the House rules on 
    the further basis that the Constitution explicitly confers on 
    Congress, not on the House acting alone, the authority to regulate 
    the District of Columbia and the territories.(4) They 
    rely for this challenge primarily upon the con-gressional 
    precedents. However these precedents are at best equivocal rather 
    than to provide firm support for plaintiff's position.
---------------------------------------------------------------------------
 4. The Constitution states that ``Congress shall have power . . . to 
        exercise exclusive legislation in all cases whatsoever'' over 
        the District of Columbia. [art. I, Sec. 8.]
            With regard to the territories, ``Congress shall have the 
        power to make all needful rules and regulations respecting'' 
        these entities. [art. IV, Sec. 3.]
---------------------------------------------------------------------------

        In 1884 and in 1932, efforts to allow Delegates to vote in 
    standing committees through simple changes in the House rules were 
    abandoned because of concern that the House lacked the 
    constitutional authority to take such action.(5) 
    Similarly, when the Resident Commissioner from Puerto Rico was 
    given the right to vote in standing committees, this change was 
    accomplished by a statute--an amendment

[[Page 11898]]

    to the Legislative Reorganization Act of 1970. [See 84 Stat. 1140, 
    1162 (1970).]
---------------------------------------------------------------------------
 5. In 1884 the Speaker of the House questioned the House's authority 
        to allow Delegates to vote in the committees on which they 
        served. Speaker Carlisle refused to allow consideration of this 
        proposal stating that ``[i]t is contrary to the law; and, in 
        the opinion of the Chair, the House could not, by a simple 
        resolution, change the law upon the subject.'' [Statement of 
        Speaker John G. Carlisle, 15 Cong. Rec. 1334, Feb. 23, 1884.]
            In 1932 the Subcommittee on Rules of the House Committee on 
        Indian Affairs examined the question of allowing Delegates to 
        vote in standing committees. The subcommittee concluded that 
        the House lacked the authority to make this change because 
        ``nowhere in the Constitution or in the statutes can the 
        intention be found to clothe delegates with legislative 
        power.'' [75 Cong. Rec. 2163, 2164, 72d Cong. 1st Sess., Jan. 
        18, 1932.]
---------------------------------------------------------------------------

        On the other hand, the House has on numerous occasions given 
    Delegates significant power in standing committees by simple rules 
    changes. Although the law creating the position of Delegate from 
    the Northwest Territory only provided that the Delegate have ``a 
    seat in Congress, with a right of debating, but not voting . . .'' 
    [1 Stat. 50, 52 (1789),] (6) William Henry Harrison, 
    then the Delegate in question, was given the chairmanship of a 
    House standing committee by a unilateral House resolution passed in 
    1799. [See Goebel, supra, at 44.] (7) In his compilation 
    of the history of the House, Asher C. Hinds noted that ``in earlier 
    prac- tice Delegates appear to have voted in committees.'' [2 
    Hinds' Precedents Sec. Sec. 1300-1301.] (8)
---------------------------------------------------------------------------
 6. In this respect, the 1789 statute is similar to those creating the 
        positions of other Delegates. [See, e.g., 2 USC Sec. 25a(a) 
        (1988).]
 7. It is noteworthy that many of the Framers of the Constitution were 
        Members of this early Congress.
 8. As noted above, see Part III, supra, in reaching this conclusion, 
        Hinds relied heavily on an 1841 congressional report which 
        noted that: ``With the single exception of voting the delegate 
        enjoys every other privilege and exercises every other right of 
        a Representative. He can act as a member of a standing or 
        special committee and vote on the business before said 
        committees, and he may thus exercise an important influence on 
        those initiatory proceedings by which business is prepared for 
        the action of the House.'' [H. Rept. No. 10, 27th Cong. 1st 
        Sess., 4, 5 (1841).]
---------------------------------------------------------------------------

        The more recent practice is even more illuminating. Thus, 
    while, to be sure, the measure giving the Resident Commissioner 
    from Puerto Rico the right to vote in standing committees was 
    accomplished in 1970 by statute, that same law also provided that 
    the rules changes made by the statute were effected ``with full 
    recognition of the power of the House of Representatives to enact 
    or change any rule. . . .'' [See 84 Stat. 1141 (1970).] A year 
    later, the House amended Rule XII to grant to the Delegate from the 
    District of Columbia powers in the standing committees equivalent 
    to those of the Resident Commissioner from Puerto Rico (i.e., it 
    provided the right to vote in such standing committees). [See 117 
    Cong. Rec. 132, Jan. 22, 1971.] And in 1973 the House once again 
    amended Rule XII making the language of the rule generic to all 
    Delegates, thus authorizing all territorial Delegates to vote in 
    standing committees. [See 119 Cong. Rec. 18, Jan. 3, 1973.] All of 
    these changes were accomplished through amendment of the House's 
    rules rather than through the enactment of legislation.
        The bicameralism argument is further undermined by the text of 
    some of the statutes creating the office of Delegate. The statute 
    establishing the positions of Delegates from Guam and the Virgin 
    Islands expressly provides that ``the right to vote in committee 
    shall be as provided by the rules of the House of 
    Representatives.'' [48 USC Sec. 1715 (1988).] The law which created 
    the office of Delegate from American Samoa granted that individual 
    ``whatever

[[Page 11899]]

    privileges and immunities that are, or hereinafter may be, granted 
    to the non-voting Delegate from . . . Guam.'' [48 USC Sec. 1735 
    (1988).] Contrary to the plaintiffs' claims, the House was acting 
    in accordance with these precedents when it unilaterally acted to 
    define the parameters of the Delegates' roles in its proceedings.
        Other factors support the conclusion that the method chosen by 
    the House for defining the role of the Delegates is not invalid.
        First, the Supreme Court held in United States v Ballin, supra 
    [144 U.S. 5], that ``the Constitution empowers each house to 
    determine its rules of proceedings. It may not by its rules ignore 
    constitutional restraints or violate fundamental rights.'' As this 
    Court discusses in sections VI and VII, supra, the rule changes 
    adopted by the House on January 5, 1993 do not vest the Delegates 
    with legislative power.
        These modifications of the Delegates' role in House proceedings 
    do not have ``the purpose and effect of altering legal rights, 
    duties and relations of persons . . . outside the legislative 
    branch.'' [See Chadha, supra 462 U.S. at 952], (emphasis added). 
    The Delegates do not have the ability to utilize their new voting 
    rights to affect the outcome of legislation. The ``savings clause'' 
    saps these votes of any real impact on the outcome of the House's 
    deliberations. It follows that the House's action was not a 
    legislative act subject to Chadha's strictures of bicameralism and 
    presentment.
        Second, although the precedents are not uniform, the history of 
    the House of Representatives supports the conclusion that the House 
    may act unilaterally to fix the role Delegates are to play in the 
    operation of this chamber. From the Congresses of the 18th century 
    to the present, the House has, without resorting to statute, 
    increased and modified the functions encompassed by the Office of 
    Delegate. There is no basis for concluding that when the House 
    decided on January 5, 1993 to increase marginally the role of the 
    Delegates, the Congress had to enact a statute to accomplish this 
    House objective.
        Plaintiffs' argument based on bicameralism and the failure of 
    the House to proceed by statute (rather than by rule) is therefore 
    rejected.

                               IX. Conclusion

        The nub of the case before the Court is this. If the only 
    action of the House of Representatives had been to grant to the 
    Delegates from the District of Columbia, Guam, Virgin Islands, and 
    American Samoa, and the Resident Commissioner from Puerto Rico the 
    authority to vote in the Committee of the Whole, its action would 
    have been plainly unconstitutional. In view of the central place 
    occupied by the Committee of the Whole in the legislative process, 
    such a grant of authority would have improperly given to these 
    territorial officials legislative power--a power which under 
    Article I of the Constitution is reserved to Members of Congress 
    elected by the people of the several States. The Delegates are 
    clearly not in that category. It also would have improperly diluted 
    the voting power of the legislative representatives of the States 
    as well as of the citizens who elected them.

        But the House also did something else. In addition to amending 
    Rule XII

[[Page 11900]]

    which grants to the Delegates the authority to vote in the 
    Committee of the Whole, it modified Rule XXIII which, in effect, 
    took away what had been given by Rule XII.(9) Under Rule 
    XXIII, whenever the votes of the Delegates are decisive to the 
    outcome of any balloting in the Committee of the Whole, there is an 
    automatic and immediate second ballot in the House itself, and in 
    that ballot the Delegates are prohibited from participating.
---------------------------------------------------------------------------
 9. Interestingly, Rule XII was initially proposed in December 1992, 
        while Rule XXIII surfaced a month later. Some Member or Members 
        must have had doubts about the validity of Rule XII, and they 
        were sufficiently astute to add Rule XXIII to the proposed rule 
        change.
---------------------------------------------------------------------------

        On the basis of this record, the Court concludes that, while 
    the action the House took on January 5, 1993 undoubtedly gave the 
    Delegates greater stature and prestige both in Congress and in 
    their home districts, it did not enhance their right to vote on 
    legislation. In a democratic system, the right to vote is genuine 
    and effective only when, under the governing rules, there is a 
    chance, large or small, that, sooner or later, the vote will affect 
    the ultimate result. The votes of the Delegates in the Committee of 
    the Whole cannot achieve that; by virtue of Rule XXIII they are 
    meaningless. It follows that the House action had no effect on 
    legislative power, and that it did not violate Article I or any 
    other provision of the Constitution.
        The Court holds that the rules adopted by the House of 
    Representatives, considered in the aggregate, are valid, and 
    judgment will accordingly be entered for the defendants.

                                   ORDER

        Upon consideration of plaintiffs' motion for a preliminary 
    injunction, defendants' motion to dismiss, the memoranda submitted 
    in support thereof and in opposition thereto, the hearing held by 
    the Court on these motions; the briefs filed by the amici curiae; 
    the request by the parties to join the application for a 
    preliminary injunction with final consideration of this action on 
    the merits; and the entire record herein; it is this 8th day of 
    March, 1993, in accordance with an Opinion issued contemporaneously 
    herewith
        Ordered that plaintiffs' motion for a preliminary injunction be 
    and it is hereby denied; and it is further
        Ordered that judgment be and it is hereby entered for 
    defendants.

    An appeal from this ruling was taken to the United States Court of 
Appeals, District of Columbia Circuit. Slightly different arguments 
were made on appeal, but on Jan. 25, 1994, the three-judge court held 
that changes in the rules did not violate the constitutional 
requirement that the House ``be composed of members'' and affirmed the 
decision of the court below. Portions of the decision (10) 
(excluding the arguments and decision on the questions of the 
jurisdiction of the court and the standing of the parties) follow:
---------------------------------------------------------------------------
10. Civil Action No. 93-5109; 14 F3d 623.

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

[[Page 11901]]

                   Robert H. Michel, et al., Appellants,

                                   v

                  Donnald K. Anderson, et al., Appellees.

       United States Court of Appeals, District of Columbia Circuit.

                           Argued Oct. 22, 1993.

                        Decided Jan. 25, 1994. . . .

        Before: Silberman and Randolph, Circuit Judges, Frank M. 
    Coffin,(11) Senior Circuit Judge, United States Court of 
    Appeals for the First Circuit.
---------------------------------------------------------------------------
11. Sitting by designation pursuant to 28 USC Sec. 294(d) (1988).
---------------------------------------------------------------------------

        Opinion for the Court filed by Circuit Judge Silberman.
        Silberman, Circuit Judge:
        A number of congressmen and individual voters appeal from the 
    judgment of the district court rejecting their challenge to a House 
    rule granting delegates from the territories and the District of 
    Columbia the right to vote in the Committee of the Whole. We hold 
    that the provision does not violate Article I of the Constitution 
    and therefore affirm.

                                     I.

        Between 1900 and 1974, Congress created the offices of five 
    delegates to the House of Representatives, representing Puerto 
    Rico, Guam, the Virgin Islands, American Samoa, and the District of 
    Columbia. The rules of the House--at least between 1900 and 1970--
    permitted the delegates to debate, but did not allow them to vote 
    in any setting. In 1970, those rules were changed, and the delegate 
    from Puerto Rico was given the additional right to vote in standing 
    committees.(12) On January 5, 1993, the House granted 
    all five delegates the right to vote in the Committee of the Whole, 
    a committee composed of all members of the House through which all 
    public bills affecting revenue and spending proceed, and which 
    shapes, to a very great extent, the final form of bills that pass 
    the House. The new [House Rule XII clause 2], provides that: . . .
---------------------------------------------------------------------------
12. By statute and practice, the privileges of the other Delegates are 
        tied to those enjoyed by the Puerto Rican Resident 
        Commissioner. See infra.
---------------------------------------------------------------------------

        Robert H. Michel, the House Minority Leader, and 11 other 
    members of the House, filed suit against the Clerk of the House and 
    the territorial delegates, seeking a declaration that the House 
    rules were unconstitutional, and an injunction preventing the 
    delegates from attempting to vote in the Committee of the Whole and 
    the Clerk from tallying such votes.(13) The complaint 
    was subsequently amended to add three private voter plaintiffs: one 
    represented by appellant Congressman Michel from Illinois, one by 
    appellant Congressman Castle from Delaware, and one by appellant 
    Congressman Thomas from Wyoming.
---------------------------------------------------------------------------
13. For the sake of convenience, we will occasionally refer to the 
        appellees as ``the House.'' This is not, however, intended to 
        imply that a suit naming the House itself as a defendant would 
        be proper.
---------------------------------------------------------------------------

        The district court denied the appellants' application for a 
    preliminary injunction and dismissed the case. After disposing of a 
    number of juris-dictional

[[Page 11902]]

    issues, the court determined that ``for most practical purposes'' 
    the ``Committee of the Whole is the House of Representatives,'' and 
    that accordingly a rule that would permit delegates to vote in that 
    committee without qualification, would ``invest them with 
    legislative power in violation of Article I of the Constitution.'' 
    [Michel v Anderson, 817 F Supp 126, 141 (D.D.C. 1993).] The court 
    concluded that the rules are constitutional, however, because the 
    ``revote'' provision left Rule XII with ``no effect, or only at 
    most an unproven, remote, and speculative effect, as far as voting 
    or the exercise of legislative power is concerned.'' [817 F Supp 
    145.] This appeal followed.(14) . . .
---------------------------------------------------------------------------
14. The parties here include a number of amici curiae in support of 
        appellee Eleanor Holmes Norton, the Delegate from the District 
        of Columbia.
---------------------------------------------------------------------------

                                    III.

        Turning to the merits, we first consider whether the rule is 
    contrary to the legislation which created the delegates. The 
    parties agree that the office of a delegate representing a 
    territory (or the District of Columbia) could not be created other 
    than through legislation, which, of course, requires the 
    concurrence of the Senate and normally the President. The offices 
    of each of the five delegates were created by statute [see 48 USC 
    Sec. 891 (1988) (Puerto Rico); 48 USC Sec. 1711 (1988) (Guam and 
    the Virgin Islands); 48 USC Sec. 1731 (1988) (American Samoa); 2 
    USC Sec. 25a (1988) (District of Columbia)], and the delegates are 
    paid, and their offices staffed, out of the public treasury. [See, 
    e.g., 48 USC Sec. Sec. 1715, 1735 (1988).] If, as appellants claim, 
    these offices were created on the condition that the delegates 
    would not be permitted to vote in the Committee of the Whole, then 
    that condition would trump any authority of the House to change its 
    rules unilaterally to grant that power. A statute, enacted into law 
    by bicameral passage and presidential approval (or upon an override 
    of a presidential veto), cannot be amended by one chamber 
    unilaterally. [INS v Chadha, 462 U.S. 919, 952 (1983).] For this 
    reason, appellees concede that if the statutes creating the 
    delegate offices specifically provided that the delegates would not 
    vote in the Committee of the Whole, the House's rule providing that 
    vote would be invalid.
        Appellants' argument that the legislation precludes the rule is 
    not insubstantial but, at bottom, it is dependent on one remark by 
    then-Congressman Foley during the debate over the extension to the 
    Resident Commissioner from Puerto Rico of the right to vote in 
    standing committees. With the exception of the statute creating the 
    office of the delegate from the District of Columbia, the acts 
    creating the other delegates all tie explicitly those delegates' 
    privileges to those of the Resident Commissioner for Puerto Rico. 
    The legislation creating the delegates from Guam and the Virgin 
    Islands specifies that they ``shall be entitled to whatever 
    privileges and immunities are, or hereinafter may be, granted to 
    the Resident Commissioner for Puerto Rico: Provided That the right 
    to vote in committee shall be as provided by the Rules of the House 
    of Representatives.'' [48 USC Sec. 1715 (1988).] The delegate from 
    American Samoa, in turn, is granted ``whatever privileges and im

[[Page 11903]]

    munities that are, or hereinafter may be, granted to the nonvoting 
    Delegate from the Territory of Guam.'' [48 USC Sec. 1735 (1988).]
        Although the statute creating the Office of the Delegate from 
    the District of Columbia in 1970 did not specifically refer to the 
    powers of the Puerto Rican delegate and provided that the delegate 
    shall have a seat ``with the right of debate, but not of voting'' 
    [see 84 Stat. 848 (1970), codified at 2 USC Sec. 25a (1988)], it is 
    not argued that the District's delegate was intended any less or 
    more authority than that granted the other delegates, so it is 
    undisputed that Congress also authorized the District delegate to 
    vote ``in committee.''
        The key question, then, is the scope of the powers to be 
    exercised in the House by the Resident Commissioner from Puerto 
    Rico. The office of Resident Commissioner was established by an Act 
    of Congress in 1900 [see 31 Stat. 86 (Apr. 12, 1900)], but the Act 
    is entirely silent as to the Commissioner's function and 
    privileges. [See 48 USC Sec. 891 (1988).] Those privileges were 
    clarified somewhat when Congress enacted the Legislative 
    Reorganization Act of 1970. That Act, passed by both Chambers and 
    signed into law by the President, adopted, inter alia, certain 
    rules for the two Houses. One such provision specified that the 
    Commissioner ``shall be elected to serve on standing committees in 
    the same manner as Members of the House and shall possess in such 
    committees the same powers and privileges as the other Members.'' 
    [84 Stat. 1161.] Thus, the rule enacted by statute provided that 
    the commissioner would vote in the standing committees. Appellants 
    argue that under the principle of inclusio unius est exclusio 
    alterius the commissioner was not authorized to vote in the 
    Committee of the Whole. The question is more complicated, however, 
    because of section 101 of the Act, which specifies:

            The following sections of this title are enacted by the 
        Congress--
            (2) insofar as applicable to the House of Representatives, 
        as an exercise of the rulemaking power of the House of 
        Representatives, subject to and with full recognition of the 
        power of the House of Representatives to enact or change any 
        rule of the House at any time in its exercise of its 
        constitutional right to determine the rules of its proceedings.
    [84 Stat. 1143 (1970).]

        While it is fair to conclude that in 1970 Congress did not 
    contemplate that the delegates would vote in the Committee of the 
    Whole, section 101 of the Act, on its face, appears to delegate to 
    the House the power to alter that situation by rule. Appellants 
    claim that could not be so, however, because the Congress, in 1970, 
    did not believe it would be constitutional for the House to 
    provide, by rule, that the delegate should vote in the Committee of 
    the Whole. They rely on legislative history. Apparently in response 
    to a prearranged question from Congressman Sisk, who, troubled by 
    the constitutionality of the provision granting the commissioner 
    (and by statutory implication now, the other delegates) the vote in 
    the standing committees, asked whether section 129 could be 
    construed to grant such a vote in the Committee of the Whole as 
    well, then-Congressman Foley responded:

            Now it is very clear . . . that a constitutional amendment 
        would be

[[Page 11904]]

        required to give the Resident Commissioner a vote in the 
        Committee of the Whole or the full House. . . . The point is 
        that the constitutional issue does not touch preliminary 
        advisory votes which is what standing committees votes are, but 
        only the votes which are cast in the Committee of the Whole or 
        the full House. These votes can be cast only by Members of 
        Congress.

        If it could be said that the whole House meant section 101 to 
    be limited by that constitutional restriction, appellants would 
    have a compelling argument. But we do not see how we can ascribe 
    Congressman Foley's views to the whole House. Nothing in the 
    legislation reflects that understanding. As we have recently noted, 
    we have an obligation to construe statutes to avoid serious 
    constitutional questions [see Association of Am. Physicians & 
    Surgeons, Inc. v Clinton, 997 F2d 898, 910 (D.C. Cir. 1993)], but 
    we think appellants' claimed interpretation relies too heavily on 
    the remarks of only one congressman (fated, albeit, to be the 
    Speaker) to defeat the plain language of section 101. Moreover, 
    since appellants' claimed construction of the statute depends on 
    the 1970 Congress entertaining the same view of the Constitution 
    appellants assert in this case, by relying on that proposition we 
    would come very close to endorsing that view of the Constitution--
    which undermines the purpose of the rule of statutory construction. 
    We have, therefore, no alternative but to pass on to the 
    constitutional issue.

                                    IV.

        The question before us is shaped by the parties' arguments and, 
    even more, their concessions. The appellants do not challenge the 
    constitutionality of the practice of permitting delegates to vote 
    on standing committees, although, recognizing the difficulty in 
    drawing a constitutional line between the Committee of the Whole 
    and the standing committees, they do not concede the 
    constitutionality of the prior House rule permitting delegates to 
    vote in the latter. The appellees, for their part, forthrightly 
    concede that the House could not permit persons other than the 
    traditional territorial delegates to perform the role currently 
    played by the delegates. It would, thus, not be open to the House 
    to authorize by rule, say, the mayors of the 100 largest cities to 
    serve and vote on House committees. Nor could the House, appellees 
    agree, deprive any member of the right to vote in the Committee of 
    the Whole (or in a standing committee). Finally, despite the 
    House's reliance on the revote mechanism to reduce the impact of 
    the rule permitting delegates to vote in the Committee of the 
    Whole, appellees concede that it would be unconstitutional to 
    permit anyone but members of the House to vote in the full House 
    under any circumstances. In other words, delegates could not be 
    authorized to vote in proceedings of the full House subject to a 
    revote. So the issue is narrowed to the question: May the House 
    authorize territorial delegates to vote in the House's committees, 
    particularly the Committee of the Whole?
        The district court, it will be recalled, thought the House rule 
    would have violated Article I if it had not been qualified by the 
    revote provision, because it would have ``invested the delegates 
    with legislative power.'' Appellants reiterate that proposition, 
    but claim that since the qualification is not

[[Page 11905]]

    complete--some voting power is passed to the delegates 
    notwithstanding the revote provision--Rule XII violates Article I. 
    As amici point out, however, and appellants ultimately concede, 
    Article I, Sec. 1, grants the legislative powers to the Congress, 
    which in turn consists of the Senate and House of Representatives. 
    No one congressman or senator exercises Article I ``legislative 
    power.'' Therefore, it is not meaningful to claim that the 
    delegates are improperly exercising Article I legislative 
    authority. The crucial constitutional language implicated by 
    appellants' claim (which appellants point out) is, instead, Article 
    I, Sec. 2: ``The House of Representatives shall be composed of 
    Members. . . .'' That language precludes the House from bestowing 
    the characteristics of membership on someone other than those 
    ``chosen every second Year by the People of the several States.''
        But what are the aspects of membership other than the ability 
    to contribute to a quorum of members under Article I, Sec. 5, to 
    vote in the full House, and to be recorded as one of the Yeas or 
    Nays if one-fifth of the members so desire? The Constitution, it 
    must be said, is silent on what other characteristics of membership 
    are reserved to members. Although it seems obvious that the Framers 
    contemplated the creation of legislative committees--the 
    Constitutional Convention itself [see Max Farrand, The Records of 
    the Federal Convention of 1787, Supplement, ed. James H. Hutson 
    370, 371 (1987) (index) (listing the numerous committees used by 
    convention during drafting of the Constitution)], as well as the 
    Continental Congress [see Jennings B. Sanders, Evolution of 
    Executive Departments of the Continental Congress: 1774-1789, at 4, 
    6-8, 41-43 (1935)], utilized committees frequently--the 
    Constitution does not mention such committees.
        Accordingly, appellees look to the practice of the early 
    congresses relating to territorial delegates as an interpretative 
    aid. Although the actions of the early congresses are not a perfect 
    indicator of the Framers' intent, those actions provide some 
    indication of the views held by the Framers, given the propinquity 
    of the congresses and the framing and the presence of a number of 
    Framers in those congresses. [Cf. Marsh v Chambers, 463 U.S. 783, 
    788-791 (1983).] The first territorial delegate, representing the 
    Northwest Territories, was created by statute during the first 
    Congress. [See 1 Stat. 50, 52 (1789).] William Henry Harrison, who 
    occupied that office, was granted considerable privileges in 
    Congress, including the power of making motions [see 6 Annals of 
    Cong. 197, 198 (1799)], and of serving as chairman of a committee. 
    [See 6 Annals of Cong. 527 (1800).] ``Harrison's Committee on 
    Public Lands not only procured the passage of the Land Act of 1800, 
    but also served as a clearing house for all petitions and special 
    measures relating to lands in the Northwest.'' [Dorothy Burne 
    Goebel, William Henry Harrison: A Political Biography 46 (1974).]

        The practice of permitting delegates to serve on and to chair 
    standing committees continued into the nineteenth century. [See 2 
    Hinds' Precedents Sec. 1299 (1907).] Those delegates may even have 
    been granted the right to vote in the standing committees. 
    According to a report on the qualifications of David Levy to serve 
    as Dele

[[Page 11906]]

    gate from Florida, prepared by the House Committee on Elections in 
    1841,

            [w]ith the single exception of voting, the Delegate enjoys 
        every other privilege and exercises every other right of a 
        Representative. He can act as a member of a standing or special 
        committee and vote on the business before said committees, and 
        he may thus exercise an important influence on those initiatory 
        proceedings by which business is prepared for the action of the 
        House.
    [H. Rept. No. 10, 27th Cong., 1st Sess., 5 (1841).] This report, 
    although indicative of the House's practice around 1840, admittedly 
    provides no direct documentary proof that delegates were permitted 
    to vote in the standing committees in the first congresses as well. 
    Be that as it may, the territorial delegates were certainly 
    accorded a unique status by the first congresses. At the earliest 
    times, Congress viewed the territorial delegates as occupying a 
    unique middle position between that of a full representative and 
    that of a private citizen who presumably could not serve on or 
    chair House committees.

        The territorial delegates, representing those persons in 
    geographical areas not admitted as states, then, always have been 
    perceived as would-be congressmen who could be authorized to take 
    part in the internal affairs of the House without being thought to 
    encroach on the privileges of membership.
        Appellants, not disputing the main line of appellees' 
    historical presentation, but without conceding the legitimacy of 
    the practice, assert that the rule in question is a qualitatively 
    different matter. Whatever the legitimacy of permitting delegates' 
    participation--even full participation--in the work of standing 
    committees, the Committee of the Whole is so close to the full 
    House that permitting the delegates to vote there is functionally 
    equivalent to granting them membership in the House.
        Appellants claim, for instance, that provisions removed by the 
    committee cannot be resurrected on the floor of the House, and that 
    by longstanding practice, enforced by rules of procedure attached 
    to successive bills, the House cannot amend bills that reach the 
    floor but rather must vote up or down on the bills in 
    toto.(15) As appellees point out, appellants' 
    description of the power of the committee is somewhat exaggerated, 
    but, in any event, appellants' argument, even if true, proves too 
    much. Any number of procedures sharply limit the range of options 
    among which the House can choose when bills reach the floor. The 
    House rules could give any standing committee, as it does 
    conference committees, the authority to put bills to the House 
    floor without the possibility of

[[Page 11907]]

    amendment. Indeed, under the ``fast track'' legislation [see 19 USC 
    Sec. 2903 (1988 and Supplement 1991)], a procedural device passed 
    by each House as an exercise of rulemaking power, the President may 
    submit various treaties to the two Houses for ratification on a 
    take-it-or-leave-it basis. That device surely does not make the 
    President the functional equivalent of the full House. In any 
    event, whatever authority the Committee of the Whole exercises, it 
    does so only at the sufferance of the full House which can alter 
    the Committee of the Whole's function at any time.
---------------------------------------------------------------------------
15. Appellants concede that Members may introduce in the full House a 
        motion to recommit a bill to the standing committees for 
        amendment, but understandably argue that the existence of this 
        time-consuming and cumbersome procedure does little in practice 
        to cure the influence of the Committee of the Whole's 
        proceedings on final bills. Alternatively, appellant 
        congressmen argue that they should not be compelled to surmount 
        such difficult hurdles in order to enforce their right not to 
        have their vote diluted by the Delegates' participation.
---------------------------------------------------------------------------

        Nevertheless, it would blink reality to deny the close 
    operational connection between the Committee of the Whole and the 
    full House. The House itself recognized how perilously close the 
    rule change came to granting delegates a vote in the House. That is 
    why the House sought to ameliorate the impact of the change through 
    the revote provision. That has led the parties to dispute 
    vigorously the degree to which, notwithstanding the revote 
    provision, the granting of a vote to the delegates in the Committee 
    causes a change in the dynamics of the behavior of the House. 
    Appellees are put in the awkward position of claiming that the 
    revote provision causes the grant of voting authority to the 
    delegates to be only symbolic. It is not necessary to explore and 
    analyze all the scenarios about which the parties 
    conjecture.(16)

[[Page 11908]]

    Suffice it to say that we think that insofar as the rule change 
    bestowed additional authority on the delegates, that additional 
    authority is largely symbolic and is not significantly greater than 
    that which they enjoyed serving and voting on the standing 
    committees. Since we do not believe that the ancient practice of 
    delegates serving on standing committees of the House can be 
    successfully challenged as bestowing ``membership'' on the 
    delegates, we do not think this minor addition to the office of 
    delegates has constitutional significance.
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16. Under one such scenario advanced by appellants, the five delegates 
        would each agree to trade their votes on a certain bill with 
        three members in exchange for the members' support of the 
        delegates' pet bill. That pet bill, then, might pass by a 
        margin of 15 votes--too great a number to trigger the revote 
        mechanism but nevertheless a margin that might not have existed 
        were it not for the ability of the delegates to trade their 
        newly granted votes in the Committee. The implicit underlying 
        assumption is that a member would be willing to trade his vote 
        for a delegate's at par, even though in a close vote 
        (presumably the only vote where such a trade would matter) the 
        delegate's own vote could not have a decisive effect because of 
        the revote mechanism. Of course, the membership of delegates on 
        standing committees already endowed them with considerable 
        vote-trading possibilities.
            Appellants raise as a second scenario the possibility that 
        by casting a decisive vote, a delegate could ``force'' a 
        revote, and that the ``power'' to force a second vote might 
        itself be sufficient to alter the result. Appellants point to a 
        number of instances (unrelated to delegate voting) in which two 
        successive votes were taken on a bill, with the result of the 
        second differing from that of the first. The power to force a 
        second vote is not, however, all that different from the power 
        to resubmit a bill for consideration by the House, a power that 
        the delegates historically have enjoyed.
            Finally, appellants point out that House Rule XXIII only 
        provides for a revote on recorded votes, and that the delegates 
        might cast decisive votes when such votes are unrecorded. While 
        this is theoretically true, it is unclear how often, if ever, 
        an unrecorded vote on a controversial matter would be decisive, 
        given that it takes only 25 members to force a recorded vote. 
        [See Rule XXIII clause 2(b), House Rules and Manual (1993).]
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                             *  *  *  *  *

        Accordingly, the district court's judgment is affirmed.
        So ordered.

Repeal of Delegate Voting Rights

Sec. 59.3 In the 104th Congress, when control of the House of 
    Representatives passed to a Republican majority for the first time 
    in 40 years, the rules adopted in the 103d Congress, permitting the 
    Delegates to vote in Committee of the Whole, were repealed.

    On Jan. 4, 1995, House Resolution 6 (17) was adopted 
after prolonged debate. As part of the package of amendments proposed 
by the new majority, there were amendments to Rules XII (18) 
and XXIII (19) which repealed the provisions adopted in the 
prior Congress permitting the Delegates and the Resident Commissioner 
to participate on recorded votes taken in the Committee of the Whole 
House on the state of the Union as well as the right to be appointed as 
Chairman of a Committee of the Whole. The pertinent amendments were as 
follows:
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17. 141 Cong. Rec. p. ______, 104th Cong. 1st Sess.
18. House Rules and Manual Sec. 740 (1995).
19. House Rules and Manual Sec. 861a (1995).
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    Section 212 simply repealed the two provisions adopted in the 103d 
Congress:

        Sec. 212. (a) In rule XII, strike clause 2 and the designation 
    of the remaining clause.
        (b) In clause 1 of rule XXIII, strike ``, Resident 
    Commissioner, or Delegate''.
        (c) In clause 2 of rule XXIII, strike paragraph (d).

    The changes in the rules adopted in the 103d Congress are also 
shown in the following analysis. The rules for the 103d Congress 
follow, the portions struck out by Section 212 are set aside in bold 
brackets:

                                 Rule XII.

                    resident commissioner and delegates.

        [1.] The Resident Commissioner to the United States from Puerto 
    Rico

[[Page 11909]]

    and each Delegate to the House shall be elected to serve on 
    standing committees in the same manner as Members of the House and 
    shall possess in such committees the same powers and privileges as 
    the other Members.
        [2. In a Committee of the Whole House on the state of the 
    Union, the Resident Commissioner to the United States from Puerto 
    Rico and each Delegate to the House shall possess the same powers 
    and privileges as Members of the House.] (20)
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20. House Rules and Manual Sec. 740 (1993).
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                                Rule XXIII.

                     of committees of the whole house.

        1. (a) In all cases, in forming a Committee of the Whole House, 
    the Speaker shall leave his chair after appointing a Member[, 
    Resident Commissioner, or Delegate] as Chairman to preside, who 
    shall, in case of disturbance or disorderly conduct in the 
    galleries or lobby, have power to cause the same to be cleared.
        2. (a) . . .
        [(d) Whenever a recorded vote on any question has been decided 
    by a margin within which the votes cast by the Delegates and the 
    Resident Commissioner have been decisive, the Committee of the 
    Whole shall automatically rise and the Speaker shall put that 
    question de novo without intervening debate or other business. Upon 
    the announcement of the vote on that question, the Committee of the 
    Whole shall resume its sitting without intervening motion.] 
    (1)
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 1. House Rules and Manual Sec. 864b (1993).


[[Page 11911]]