[Deschler-Brown Precedents, Volume 14, Chapter 30]
[Chapter 30. Voting]
[F. Delegate Voting]
[§ 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)
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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.
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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.
---------------------------------------------------------------------------
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).]
---------------------------------------------------------------------------
* * * * *
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:
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
20. House Rules and Manual Sec. 740 (1993).
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
1. House Rules and Manual Sec. 864b (1993).
[[Page 11911]]