[Deschler-Brown Precedents, Volume 15, Chapter 31]
[Chapter 31. Points of Order; Parliamentary Inquiries]
[A. Points of Order]
[Â§ 13. Appeals]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 12388-12410]
 
                               CHAPTER 31
 
                Points of Order; Parliamentary Inquiries
 
                           A. POINTS OF ORDER
 
Sec. 13. Appeals

    The right of appeal from decisions of the Speaker on questions

[[Page 12389]]

of order is provided for by the House rules. In Rule I clause 4, it is 
provided:

        He [the Speaker] shall . . . decide all questions of order, 
    subject to an appeal by any Member, on which appeal no Member shall 
    speak more than once, unless by permission of the House.

    Although amended in 1811, the portion of the rule pertaining to 
appeals of points of order dates from 1789.(18)
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18. Rule I clause 4, House Rules and Manual Sec. 624 (1997).
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    Although appeals from rulings of the Chair on points of order are 
permissible, such appeals have been infrequent. The only issue 
presented by an appeal is the propriety of the Chair's ruling under the 
rules and precedents, and not the merits of the proposition to which 
the ruling applies.(19) Certain determinations by the Chair 
are not subject to appeal, such as his discretion in exercising the 
power of recognition,(20) his count to determine whether a 
quorum is present,(1) or his count on whether a sufficient 
number of Members have risen to order the yeas and nays.(2) 
Members are not recognized to appeal from the Chair's response to a 
parliamentary inquiry.(3)
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19. See Sec. Sec. 13.1, 13.2, infra.
20. See Sec. 13.11, infra.
 1. See Sec. 3.12, infra.
 2. See Sec. Sec. 13.13, 13.14, infra.
 3. See Sec. 14.4, infra.
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    Decisions of the Chair on points of order raised in the Committee 
of the Whole may be appealed, although such are also rare. In such 
cases the decision of the Chairman is appealed to the 
Committee.(4) In the House an appeal is not voted on 
directly if the House agrees to a motion to table the 
appeal,(5) but the motion to table is not available in the 
Committee of the Whole.
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 4. See Sec. Sec. 13.3, 13.6-13.9, infra.
 5. See Sec. Sec. 13.15, 13.16, 
        infra.                          -------------------
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In General

Sec. 13.1 The Chair suggested, in response to a parliamentary inquiry, 
    that the question of the constitutionality of a provision in a 
    pending bill was a matter for the House to determine by its vote on 
    the merits of that language, rather than by voting on a possible 
    appeal from the Chair's decision declining to rule upon that 
    constitutional issue.

    May 10, 1973,(6) in the Committee of the Whole, Chairman 
Jack Brooks, of Texas, declined to

[[Page 12390]]

rule upon the constitutionality of certain language that Mr. Sidney R. 
Yates, of Illinois, found objectionable.
---------------------------------------------------------------------------
 6. 119 Cong. Rec. 15290, 15291, 93d Cong. 1st Sess. Under 
        consideration was H.R. 7447, supplemental appropriations for 
        fiscal 1973.
---------------------------------------------------------------------------

        Mr. Yates: Mr. Chairman, I have a point of order against the 
    language beginning at page 6, line 10 through line 12.
        The Chairman: The gentleman will state his point of order.
        Mr. Yates: Mr. Chairman, I make a point of order against the 
    language set forth in lines 10, 11, and 12, on page 6.
        Article I, section 8, of the Constitution of the United States 
    says:

            The Congress shall have the power to declare war. . . .

        Congress has not declared war against Cambodia or Laos or 
    against any other country in Southeast Asia for that matter. 
    Congress has not given the President any authority to use the 
    American Armed Forces in Cambodia and Laos. Nevertheless, on order 
    of President Nixon, American military planes are bombing in both 
    those countries. The appropriation contained in the transfer 
    authority includes funds to continue the bombing of Cambodia and 
    Laos. . . .
        Mr. Chairman, under that rule it is not enough that there be 
    ordinary legislative authority which is required for other 
    appropriations. It is not enough that there be ordinary legislative 
    authority upon which to base an appropriation for American Armed 
    Forces to engage in war.
        There must be constitutional authority for that appropriation 
    as well, namely, there must be congressional approval for American 
    forces to engage in a war. Both authorizations are essential for 
    that kind of appropriation. . . .
        I am asking the Chair for its ruling on two points. One, I ask 
    the Chair to rule with respect to military appropriations which 
    provide funds for American Armed Forces to engage in war under rule 
    XXI, section 2, of the Rules of Procedure of the House of 
    Representatives, which states there must be, as well as any other 
    legislation authorizing such action, compliance with article I, 
    section 8, of the U.S. Constitution, which requires the approval of 
    the Congress for American Armed Forces to engage in that war; and, 
    secondly, I am asking the Chair to rule that the requirements in 
    article XI, section 8, cannot be waived by any rule of the 
    Committee on Rules. . . .
        The Chairman: . . . The Chair is not in a position, nor is it 
    proper for the Chair to rule on the constitutionality of the 
    language, or on the constitutionality or other effect of the action 
    of the House in adopting the resolution of the Committee on Rules. 
    In the headnotes in the precedents of the House it very clearly 
    states that it is not the duty of a chairman to construe the 
    Constitution as it may affect proposed legislation, or to interpret 
    the legality or effect of language; and the Chair therefore 
    overrules the point of order raised by the gentleman from Illinois 
    (Mr. Yates).
        Mr. Yates: Mr. Chairman, I want to make some comments on the 
    ruling of the Chair with the thought that I may appeal from the 
    ruling of the Chair.
        The Chairman: The Chair has ruled. The gentleman is perfectly 
    within his right to move to strike the last word, and he may 
    proceed.

[[Page 12391]]

        Mr. Yates: The point I make, Mr. Chairman, is that in the 
    ruling that the Chair made on precedents, as I recall that ruling, 
    it also says that while the Chair does not interpret the 
    constitutionality of the provision, it leaves that for the House to 
    decide. Is my memory correct on that?
        The Chairman: The Chair believes that is correct in that the 
    committee may later vote on the provision.
        Mr. Yates: Mr. Chairman, while I believe the ruling to be not 
    on the points I made I accept the ruling of the Chair. Let the 
    House vote on the amendment which will be offered.

Purpose of Appeal; Validity of Chair's Ruling

Sec. 13.2 An appeal from a ruling of the Chair goes only to the 
    propriety of the Chair's ruling--whether he has correctly applied 
    the precedents and rules in making the decision--and the vote 
    thereon should not be interpreted as reflecting the sentiments of 
    the Members as to the merits of the underlying issue.

    A decision of the Chair in response to a point of order may impact 
on an emotional or politically volatile issue, and may determine 
whether the issue can be debated or voted upon. Some Members have 
suggested, even attempted, to generate an appeal as a way of putting 
Members on record. One such occurrence almost surfaced during 
consideration of the Labor-HHS appropriation bill, fiscal 1992, on June 
26, 1991.(7)
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 7. 137 Cong. Rec. 16436, 102d Cong. 1st Sess.
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                           parliamentary inquiry

        Mr. [William E.] Dannemeyer [of California]: Mr. Chairman, I 
    have a parliamentary inquiry.
        The Chairman Pro Tempore: (8) The gentleman will 
    state his parliamentary inquiry.
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 8. Alan Wheat (Mo.).
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        Mr. Dannemeyer: Mr. Chairman, if a point of order is raised 
    against the Weber language on parental notification in this bill, 
    and if the Chairman would sustain the point of order, would I be in 
    order at that time to ask for a rollcall vote on that sustaining of 
    that point of order, making parental notification not in order of 
    this bill?
        The Chairman Pro Tempore: Any such ruling of the Chair is 
    subject to an appeal, as the gentleman is aware.
        Mr. Dannemeyer: The only way to get the rollcall vote is to 
    appeal the ruling of the Chair?
        The Chairman Pro Tempore: That might depend on the effect of 
    the Chair's ruling.
        Mr. Dannemeyer: A further parliamentary inquiry: Is the appeal 
    of a ruling of a Chair interpreted by some in this body as a 
    procedural matter, as distinguished from a substantive matter?
        The Chairman Pro Tempore: An appeal of the Chair's ruling goes 
    only to the propriety of the Chair's ruling under the rules.
        Mr. Dannemeyer: Mr. Chairman, I interpret the Chair's remarks 
    to mean

[[Page 12392]]

    it is procedural in nature rather than substantive.
        The Chairman Pro Tempore: It should not be interpreted as a 
    vote on the merits of the issue at hand.

Sec. 13.3 In response to a parliamentary inquiry, the Chair stated that 
    an appeal was a proper mechanism to contest the Chair's decision on 
    a point of order.

    On May 16, 1979,(9) an appeal was taken in the Committee 
of the Whole from a decision on the germaneness of an amendment made by 
Chairman E de la Garza, of Texas.
---------------------------------------------------------------------------
 9. 125 Cong. Rec. 11470-72, 96th Cong. 1st Sess.
---------------------------------------------------------------------------

                     amendment offered by mr. kindness

        Mr. [Thomas N.] Kindness [of Ohio]: Mr. Chairman, I offer an 
    amendment and ask unanimous consent for its immediate 
    consideration.
        The Clerk read as follows:

            On page 2, following line 2, add the following new sections 
        to the bill:
            ``Sec. 2. Subsection (c) of section 207 of title 18, United 
        States Code, is hereby repealed.
            ``Sec. 3. Section 207 of title 18, United States Code is 
        further amended--
            (1) in subsection (d) by striking out ``(c)'' and inserting 
        in lieu thereof ``(b)(ii)'';
            (2) in subsection (e) by striking out ``(c)'' and inserting 
        in lieu thereof ``(b)(ii)'';
            (3) in subsection (f) by striking out ``(a), (b), and (c)'' 
        and inserting in lieu thereof ``(a) and (b)'';
            (4) in subsection (i) by striking out ``(c)'' and inserting 
        in lieu thereof ``(b)(ii)'';
            (5) in subsection (j) by striking out ``(a), (b), or (c)'' 
        and by inserting in lieu thereof ``(a) or (b)''; and
            (6) by redesignating subsection (d) through (j) as 
        subsections (c) through (i), respectively. . . .

        Mr. [George E.] Danielson [of California]: I make a point of 
    order, Mr. Chairman.
        The Chairman: The gentleman from California makes a point of 
    order?
        Mr. Danielson: Yes, I do.
        The Chairman: Will the gentleman state his point of order. . . 
    .
        The Chairman: The Chair will hear the gentleman from California 
    on his point of order.
        Mr. Danielson: Mr. Chairman, the gentleman's amendment would 
    repeal subsection (c) of title 207 of the United States Code. I 
    respectfully submit that it is not germane inasmuch as the bill 
    pending before the committee at this time refers only to subsection 
    (b) of section 207 of the United States Code. It has nothing to do 
    with subsection (c). Therefore, it is beyond the scope of the bill 
    and is not germane.
        Mr. Kindness: Mr. Chairman.
        The Chairman: The gentleman from Ohio.
        Mr. Kindness: Mr. Chairman, I wish to be heard on the point of 
    order.
        The Chairman: The gentleman is recognized for that purpose.
        Mr. Kindness: This railroad is running pretty fast. The 
    chairman of the subcommittee has just shown a lack of confidence in 
    this bill. So much so that all we can consider under a very 
    narrowly drawn committee amendment is just a little bit of the 
    section that is in

[[Page 12393]]

    volved. The real controversy lies outside of subsection (b). . . .
        The previous ruling of the Chair related to the establishment 
    of some other section of law; but this is right in the same section 
    and it is inappropriate to limit the application of this bill to 
    just a portion of the section which is, indeed, a sentence. To 
    limit it to only subsection (b) would not be to even consider the 
    complete sentence.
        Mr. [Carlos J.] Moorhead of California: Mr. Chairman, I wanted 
    to speak to that point of order. The title of this bill is an act 
    to amend section 207 of title 18, United States Code. That is 
    exactly what this amendment does. It amends section 207 of title 18 
    of the United States Code. It should be relevant.
        Mr. Kindness: Mr. Chairman, on that point, in connection with 
    the point raised by the gentleman from California (Mr. Moorhead), 
    we must relate the ruling of the Chair on the point of order that 
    has been raised to section 501 of title 18 of the United States 
    Code. There can be no way to relate the ruling to section 501 of 
    title 18 without it being in order and germane to consider 
    everything within that section 501.
        The Chairman: Is there any other Member who wishes to be heard 
    on the point of order?
        The gentleman from Texas (Mr. Eckhardt) is recognized.

        Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, I speak in 
    opposition to the point of order. As has been said before, both the 
    matter before the House and the amendment relate to section 207. 
    Both address the same question, the precise question, that was 
    addressed by the original bill. This amendment is both germane to 
    the original bill and germane to the committee amendment. . . .
        The Chairman: Does the gentleman from Missouri (Mr. Volkmer) 
    wish to be heard on the point of order?
        Mr. [Harold L.] Volkmer [of Missouri]: Briefly, Mr. Chairman, 
    in support of the point of order.
        I would just like to note that even though the title itself 
    refers to the full section, the body of the bill relates only to 
    subsection (b) and subsection (d) as originally passed by the 
    Senate and sent over to this body. It does not relate in any way to 
    subsection (c), which is the subject of the amendment and, 
    therefore, I believe the germaneness rule, which I will acknowledge 
    is a narrow interpretation, should be followed here, and that only 
    amendments to those two parts of section 207 would be in order.
        Mr. Kindness: Mr. Chairman, will the gentleman yield on the 
    point of order?
        The Chairman: The Chair will recognize the gentleman from Ohio 
    (Mr. Kindness).
        Mr. Kindness: Mr. Chairman, will the gentleman tell me where 
    the sentence ends?
        In fact, subsections (a), (b), and (c) are not subsections; 
    they are part of one sentence.
        The Chairman: The Chair is ready to rule.
        The Chair can only rule with respect to the legislation which 
    appears before the Committee of the Whole in its present form, and 
    that is S. 869.
        By a previous amendment adopted in the committee, the reference 
    to sub

[[Page 12394]]

    section (d)(3) has been stricken from the bill. The only other 
    subsection that remains in the bill is subsection (b) of section 
    207 of title 18 addressing one category of employees. Any mention 
    made of the title to the bill is not considered as a substantive 
    part of the legislation and does not determine the germaneness of 
    an amendment to the test.
        Therefore, under the precedents as studied by the Chair, the 
    Chair will sustain the point of order.

                           Parliamentary Inquiry

        Mr. Kindness: Mr. Chairman, I have a parliamentary inquiry.
        The Chairman: The gentleman from Ohio (Mr. Kindness) will state 
    his parliamentary inquiry.
        Mr. Kindness: Mr. Chairman, in order to appeal the ruling of 
    the Chair to the Committee of the Whole, is it in order at this 
    point to move that the question be presented by way of a direct 
    appeal of the ruling of the Chair?
        The Chairman: The gentleman has the right to appeal.
        Mr. Kindness: Mr. Chairman, I appeal the ruling of the Chair.
        The Chairman: The question is, Shall the decision of the Chair 
    be sustained?
        The question was taken; and the Chairman being in doubt, the 
    Committee divided, and there were, ayes 15, noes 6.
        Mr. Kindness: Mr. Chairman, I demand a recorded vote, and 
    pending that, I make the point of order that quorum is not present.
        The Chairman: Evidently a quorum is not present.
        The Chair announces that pursuant to clause 2, rule XXIII, he 
    will vacate proceedings under the call when a quorum of the 
    Committee appears.
        Members will record their presence by electronic device. . . .
        The Chairman: Three hundred and forty-nine Members have 
    answered to their name, a quorum is present, and the Committee will 
    resume its business.
        Does the gentleman from Ohio (Mr. Kindness) insist upon his 
    request for a recorded vote?
        Mr. Kindness: Mr. Chairman, I ask unanimous consent to withdraw 
    the request for a recorded vote on appealing the ruling of the 
    Chair.
        The Chairman: The gentleman can withdraw his request without 
    unanimous consent.

The Chair Does Not Rule on Questions of Constitutionality

Sec. 13.4 The Chair does not rule on the constitutionality of the rules 
    adopted by the House of Representatives.

    Rule XV clause 6(e), which prohibits the Speaker from entertaining 
a point of no quorum unless the pending motion or proposition has been 
put to a vote, was included as part of H. Res. 5, which was considered 
and adopted on Jan. 4, 1977.(10) On several occasions during 
the first session of the 95th Congress, Members sought to challenge 
that new rule by various parliamentary means.

[[Page 12395]]

Two such challenges are shown in this and the following section. The 
first example is from the proceedings of Sept. 8, 1977.(11)
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10. 123 Cong. Rec. 53-70, 95th Cong. 1st Sess.
11. 123 Cong. Rec. 28114, 28122-24, 95th Cong. 1st Sess.
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        The Speaker Pro Tempore: (12) The gentleman from 
    Texas (Mr. Mahon) is recognized for 30 minutes, and the gentleman 
    from Alabama (Mr. Edwards) is recognized for 30 minutes. . . .
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12. George E. Brown, Jr. (Calif.).
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        The Clerk will report the next amendment in disagreement.
        The Clerk read as follows:

            Senate amendment No. 41: Page 25, line 12, strike out 
        ``$7,417,705,-000'' and insert ``$6,111,600,000''.

        Mr. [George H.] Mahon [of Texas]: Mr. Speaker, I offer a 
    motion.
        The Clerk read as follows:

            Mr. Mahon moves that the House recede from its disagreement 
        to the amendment of the Senate numbered 41 and concur therein 
        with an amendment, as follows: In lieu of the sum proposed by 
        said amendment insert: ``$7,693,400,000''. . . .

        Mr. [Jack] Edwards of Alabama: Mr. Speaker, I yield myself such 
    time as I may consume.
        Mr. [John J.] Flynt [Jr., of Georgia]: Mr. Speaker, I make the 
    point of order a quorum is not present.
        The Speaker Pro Tempore: That point of order is not in order in 
    the House at this time.
        The gentleman from Alabama is recognized.
        Mr. [Robert E.] Bauman [of Maryland]: Mr. Speaker, a point of 
    order.
        The Speaker Pro Tempore: The gentleman will state it.
        Mr. Bauman: Mr. Speaker, the Constitution of the United States 
    requires that a quorum be present at all times to conduct business 
    in the House of Representatives. We are sitting in the House and at 
    this time there is a pending motion on an appropriations conference 
    report being debated, and I can count. Obviously there are not 218 
    Members present. We have no quorum. I make a point of order that 
    under the Constitution, article I, section 5, the House cannot 
    continue to conduct its business in this way without a quorum and I 
    move a call of the House.
        The Speaker Pro Tempore: The Chair has discretion to entertain 
    a motion for a call of the House but he cannot entertain a point of 
    order at this time.
        Mr. Bauman: A parliamentary inquiry. Under what authority does 
    the Chair not entertain a point of no quorum when a quorum is not 
    present?
        Mr. [John] Brademas [of Indiana]: Mr. Chairman, I move a call 
    of the House.
        The Speaker Pro Tempore: The gentleman from Indiana moves a 
    call of the House.
        Under rule XV clause 6(e) the Chair cannot entertain a point of 
    no quorum at this time.
        Mr. Bauman: A parliamentary inquiry. Does rule XV allow 
    discretion in the Chair whether or not a point of no quorum will be 
    permitted? There is not a quorum present.
        The Speaker Pro Tempore: The only discretion the Chair would 
    have under clause 6(e)(2) of rule XV is whether to entertain a 
    motion for a

[[Page 12396]]

    call of the House. The Chair has entertained such a motion.
        Without objection, a call of the House is ordered.
        There was no objection.
        The call was taken by electronic device, and the following 
    Members failed to respond: . . .
        The Speaker Pro Tempore: On this rollcall 353 Members have 
    recorded their presence by electronic device, a quorum.
        By unanimous consent, further proceedings under the call were 
    dispensed with.
        The Chair wishes to clarify the point which was raised by the 
    gentleman from Maryland (Mr. Bauman) prior to the quorum call, and 
    since the gentleman is perhaps much more familiar with the rules 
    than is the Chair, the Chair wishes to quote clause 6 of rule XV 
    which deals with quorum calls in the House. The provision of the 
    rules which the Chair wishes to cite is specifically clause 
    6(e)(1), which reads as follows:

            Except as provided by subparagraph (2), it shall not be in 
        order to make or entertain a point of order that a quorum is 
        not present unless the Speaker has put the pending motion or 
        proposition to a vote.

        In this instance the Speaker pro tempore had not put the 
    pending motion or proposition to a vote to make it possible for a 
    quorum call to qualify under the rules. It is, of course, 
    imperative that the Chair follow the rules in a matter of this 
    sort.
        This point has been further stressed by Speaker O'Neill when 
    the matter has been brought up on previous occasions.
        Mr. Bauman: Mr. Speaker, I have a parliamentary inquiry.
        The Speaker Pro Tempore: The gentleman will state his 
    parliamentary inquiry.
        Mr. Bauman: Mr. Speaker, not that I wish to belabor the point, 
    but the Constitution of the United States, article I, section 5, 
    requires that at all times a majority of the House be present for 
    the conduct of business. The point that I made prior to the quorum 
    call was that there was not a majority of the House present, and in 
    the absence of a majority, any business that would be conducted 
    would not be legally or constitutionally conducted, the rules of 
    the House notwithstanding.
        The Speaker Pro Tempore: The gentleman from Maryland (Mr. 
    Bauman) is perhaps more familiar with the Constitution than is the 
    Chair, who is not in a position to rule upon the constitutionality 
    of the rule, but the new rule does not anticipate, according to the 
    understanding of the Chair, that the mere conduct of debate would 
    constitute business in the sense as contemplated by the 
    Constitution, and the rule does provide that a point of order is in 
    order if a question has been put to a vote.

Appeal Does Not Lie

Sec. 13.5 The Speaker's refusal to entertain a point of order of no 
    quorum when there is no pending question being put to a vote is not 
    subject to an appeal, since Rule XV clause 6(e) states an absolute 
    prohi

[[Page 12397]]

    bition against the Chair's entertaining such a point of order and 
    to allow an appeal would permit a direct change in that rule.

    The Speaker Pro Tempore, Ms. Barbara Jordan, of Texas, refused to 
entertain an appeal in this case since the rule involved leaves no 
discretionary interpretation to the Chair. The proceedings of Sept. 16, 
1977,(13) are shown below.
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13. 123 Cong. Rec.  29594, 95th Cong. 1st Sess.
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        Mr. [J. William] Stanton [of Ohio]: Madam Speaker, I yield 2 
    minutes to the gentleman from Ohio (Mr. Wylie), a very 
    distinguished and important member of our committee.
        Mr. [John M.] Ashbrook [of Ohio]: Madam Speaker, I make the 
    point of order that a quorum is not present.
        The Speaker Pro Tempore: The Chair will inform the gentleman 
    from Ohio (Mr. Ashbrook) that the point of order is not in order at 
    this time under rule XV, clause 6(e).
        Mr. Ashbrook: Madam Speaker, I appeal the ruling of the Chair.
        The Speaker Pro Tempore: The Chair will inform the gentleman 
    that is not an appealable ruling. The rule contains an absolute 
    prohibition against a Member making or the Chair entertaining such 
    a point of order at this time, leaving no interpretive authority in 
    the Chair and no authority to recognize for such a point of order. 
    The rule itself, and not the ruling of the Chair, governs in this 
    situation. To permit an appeal would be tantamount to permitting a 
    direct change in the rule itself.

Appeal in Committee of the Whole--Chair Sustained

Sec. 13.6 The Chair's ruling on a point of order in the Committee of 
    the Whole was sustained on appeal by division vote of the 
    Committee.

    On Mar. 31, 1937,(14) arguing that a point of order 
against his amendment had been raised too late, Mr. Ross A. Collins, of 
Mississippi, appealed a ruling of Chairman Scott W. Lucas, of Illinois. 
To Mr. Collins' proposed amendment, Mr. Lindsay C. Warren, of North 
Carolina, had raised a point of order that it was legislation in an 
appropriation bill and, hence, out of order. To this Mr. Collins 
responded that it was too late because he had already been recognized 
in debate, although it was disputed as whether he had actually said 
anything or not. Chairman Lucas ruled that Mr. Warren could raise his 
point of order because he had shown due diligence in seeking 
recognition. Further, the Chairman upheld the point of order against

[[Page 12398]]

the amendment. Thereupon, Mr. Collins made the following unsuccessful 
appeal of the Chairman's ruling:
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14. 81 Cong. Rec. 2980, 2981, 75th Cong. 1st Sess. Under consideration 
        was H.R. 5966, an appropriation bill for the legislative branch 
        for fiscal 1938.
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        The Chairman: The Chair is ready to rule on the point of order 
    made by the gentleman from North Carolina. In the opinion of the 
    Chair, there is no authorization under the law for the additional 
    clerks as is proposed by the amendment offered by the gentleman 
    from Mississippi [Mr. Collins]. Obviously, it is an attempt to pass 
    legislation upon an appropriation bill. The Chair sustains the 
    point of order made by the gentleman from North Carolina [Mr. 
    Warren].
        Mr. Collins: Mr. Chairman, I appeal from the ruling of the 
    Chair.
        The Chairman: The question is, Shall the decision of the Chair 
    stand as the judgment of the Committee?

        The question was taken; and on a division (demanded by Mr. 
    Snell) there were ayes 72 and noes 23.
        So the decision of the Chair stood as the judgment of the 
    Committee.

Sec. 13.7 On appeal, the Chair's ruling on a question of germaneness 
    was upheld on a voice vote.

    During consideration of the Justice System Improvement Act, 1979, 
an appeal was taken by Mr. John M. Ashbrook, of Ohio, from a decision 
by the Chair that Mr. Ashbrook's second degree amendment was not 
germane. The proceedings of Oct. 12, 1979,(15) were as 
follows:
---------------------------------------------------------------------------
15. 125 Cong. Rec. 28123, 28124, 96th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Harold L.] Volkmer [of Missouri]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Volkmer: Page 164, lines 24 and 
        25, amend the bill by adding the following after the word 
        ``project,'' ``including photographic equipment, and 
        fingerprint equipment, for law enforcement purposes.''.

        Mr. Ashbrook: Mr. Chairman, I offer an amendment to the 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Ashbrook to the amendment offered 
        by Mr. Volkmer: Insert after the word ``including'' 
        ``bulletproof vests.''.

        The Chairman: (16) Does the gentleman from New York 
    insist on his point of order?
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16. Mike McCormack (Wash.).
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        Mr. [Peter A.] Peyser [of New York]: Mr. Chairman, I do.
        Mr. Chairman, I do this to my friend from Ohio because my 
    concern is exactly the same as his, which is to guarantee that we 
    do include in this bill the availability of bulletproof vests, 
    because it is a whole different subject. I raise the point that it 
    is not germane to this particular equipment that is being discussed 
    at this time. When we previously discussed this with the 
    Parliamentarian the point was made that it could not be amended on 
    the other side by having the bulletproof vest amendment amended by 
    adding cameras and other equipment. It is not a germane fact to 
    this issue and the type of equipment we are dealing with and 
    discussing, and for that reason it should be ruled out of order.

[[Page 12399]]

        I will say that it is my intention, to the gentleman from Ohio, 
    to offer this amendment as I did the other day, offer the exact 
    same amendment. I intend to offer it today as soon as this 
    discussion is finished.
        Does the gentleman from Ohio wish to be heard on the point of 
    order?
        Mr. Ashbrook: Mr. Chairman, I would merely say in response that 
    I do not believe my colleague from New York has stated adequate 
    grounds on the point of order. I think the proposition he 
    propounded, the question placed to the Parliamentarian was on the 
    Volkmer amendment when we were in an entirely different position 
    the other day and we have already opened up two categories. It 
    seems to me this comes within the general description of the type 
    of police gear, type of police paraphernalia, electronic devices 
    that could be used, and I would think the point of order should be 
    overruled.
        The Chairman: Does the gentleman from Missouri wish to speak on 
    the point of order?
        Mr. Volkmer: Yes, Mr. Chairman, I would like to speak on the 
    point of order. As to the question of germaneness, as I understand 
    it my amendment says, ``including photographic equipment, 
    fingerprint equipment,'' and then the words ``for law enforcement 
    purposes.''
        Therefore, in my opinion anything that would be in there for 
    law enforcement purposes would be germane. In other words, if 
    somebody would offer an amendment for pistols, or offer an 
    amendment for bullets, or offer an amendment for police caps or 
    cars or anything else for law enforcement purposes, it is germane. 
    This is not restricted just to a certain type of equipment. We have 
    photographic equipment and fingerprint equipment. They are not 
    related at all. Bulletproof vests are for law enforcement purposes.
        The Chairman: The Chair is prepared to rule.
        The question really comes down to how to define and segregate 
    categories of law enforcement equipment. The Chair is persuaded 
    that the term, ``photographic equipment and fingerprint equipment'' 
    is a generic category that deals with information rather than 
    protection of law enforcement officers.
        Bulletproof vests are within the different category of 
    equipment for the protection of law enforcement officers. The Chair 
    recognizes that this is a fine line, but rules that under the 
    precedents the amendment is not germane to the pending amendment 
    and the point of order is sustained.
        Mr. Ashbrook: Mr. Chairman, is the point of order upheld?
        The Chairman: Yes.
        Mr. Ashbrook: Mr. Chairman, I appeal the ruling of the Chair.
        The Chairman: The question is, Shall the Chair's ruling stand 
    as the judgment of the Committee?
        The question was taken; and the Chairman announced that the 
    ayes appeared to have it.
        Mr. Ashbrook: Mr. Chairman, I demand a recorded vote, and 
    pending that, I make the point of order that a quorum is not 
    present.
        The Chairman: Evidently a quorum is not present.
        Pursuant to the provisions of clause 2 of rule XXIII, the Chair 
    announces

[[Page 12400]]

    that he will reduce to a minimum of 5 minutes the period of time 
    within which a vote by electronic device, if ordered, will be taken 
    on the pending question following the quorum call. Members will 
    record their presence by electronic device.
        The call was taken by electronic device.
        The Chairman: Three hundred and twelve Members have answered to 
    their names, a quorum is present, and the Committee will resume its 
    business.
        The pending business is the demand of the gentleman from Ohio 
    (Mr. Ashbrook) for a recorded vote appealing the decision of the 
    Chair.
        Does the gentleman from Ohio (Mr. Ashbrook) insist upon his 
    demand for a recorded vote?
        Mr. Ashbrook: I do not, Mr. Chairman.

Appeal in Committee of the Whole--Chair Overruled

Sec. 13.8 Where a ruling on a point of order by the Chairman of the 
    Committee of the Whole was appealed and voted upon, the Chair's 
    ruling was overturned.

    In a rare instance in which a ruling by the Chairman was appealed, 
on Feb. 1, 1938,(17) the Committee of the Whole voted to 
overrule the decision of the Chairman, William J. Driver, of Arkansas. 
The situation occurred following the offering of an amendment by Mr. 
Ross A. Collins, of Mississippi, to which Mr. Jack Nichols, of 
Oklahoma, raised a point of order after Mr. Collins had spoken only a 
few words on the amendment. Mr. Collins then made the point of order, 
which the Chair sustained, that the point of order raised by Mr. 
Nichols came too late, as Mr. Collins had already begun his remarks.
---------------------------------------------------------------------------
17. 83 Cong. Rec. 1372, 1373, 75th Cong. 3d Sess. Under consideration 
        was H.R. 9181, a District of Columbia appropriation bill for 
        1939.
---------------------------------------------------------------------------

        Mr. Collins: Mr. Chairman, the language that is incorporated in 
    the amendment--
        Mr. Nichols: Mr. Chairman, I make a point of order against the 
    amendment.
        Mr. Collins: Eliminates the language against which the 
    gentleman made the point of order.
        Mr. Chairman, I make the point of order that the gentleman's 
    point of order comes too late.

    It was disputed whether Mr. Collins had been recognized at the time 
he commenced his remarks, although the Chair maintained that he had 
been recognized. In any event, those supporting Mr. Nichols' position 
argued that he had had no opportunity to make his point of order. The 
following then took place:

        Mr. Nichols: If the Chair has made a final ruling, I would, in 
    the most re

[[Page 12401]]

    spectful manner I know, request an appeal from the decision of the 
    Chair.
        The Chairman: The gentleman from Oklahoma appeals from the 
    decision of the Chair on the ruling of the Chair on the point of 
    order, as stated.
        The question before the Committee is, Shall the ruling of the 
    Chair stand as the judgment of the Committee?
        The question was taken, and the Chair announced that the noes 
    had it.
        So the decision of the Chair does not stand as the judgment of 
    the Committee.

Form of Question When Decision Is Appealed

Sec. 13.9 Where a decision of the Chair ruling an amendment out of 
    order is appealed, the question is put: ``Shall the decision of the 
    Chair stand as the judgment of the Committee'' and if the Chair's 
    ruling is not sustained, the amendment would be debated under the 
    five-minute rule.

    On Aug. 1, 1989,(18) when an appeal was taken from a 
ruling of the Chairman of the Committee of the Whole, Mr. George E. 
Brown, Jr., of California, the Majority Leader directed several 
inquiries to the Chair to inform Members of the consequences of such an 
appeal.
---------------------------------------------------------------------------
18. 135 Cong. Rec. 17154-56, 101st Cong. 1st Sess.
---------------------------------------------------------------------------

                       amendment offered by mr. ridge

        Mr. [Thomas J.] Ridge [of Penn-sylvania]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Ridge: Page 20, after line 3, 
        insert the following:
            Sec. 604. No part of any appropriation contained in title I 
        shall knowingly be used to enumerate any undocumented alien in 
        the 1990 decennial census.

        Mr. [Neal] Smith of Iowa: Mr. Chairman, I make a point of order 
    on the amendment. . . .
        The Chairman: . . . The gentleman from Iowa (Mr. Smith) makes a 
    point of order that the amendment violates clause 2 of rule XXI by 
    legislating on a general appropriations bill. The amendment offered 
    by the gentleman from Pennsylvania (Mr. Ridge) is in the form of a 
    limitation on funds in the bill and, by its use of the modifier, 
    ``knowingly,'' refrains from requiring any affirmative 
    investigation or determination on the part of government officials.
        However, the amendment requires the exclusion from the census 
    of population persons having a certain known status who under 
    current law are not required to be excluded. Article I, section 2 
    of the Constitution and the 14th amendment require a decennial 
    census of the whole number of persons in each State, excluding 
    Indians not taxed.
        To fulfill the constitutional mandate, section 141(a) of title 
    13 of the United States Code directs the Secretary of

[[Page 12402]]

    Commerce to make a census of the population. The statute authorizes 
    the Secretary to determine the form and content of the census. 
    Although subject to judicial review, the Secretary's sole 
    discretion under the statute has been described by the court as 
    broad.
        The amendment would impinge upon the discretion of the 
    Secretary of Commerce by requiring him to exclude from the census 
    of population persons having a certain status should he know that 
    status. Under the statute, however, the Secretary's discretion is 
    not so bounded. He is not required to exclude persons having that 
    status. An amendment to a general appropriation bill that subjects 
    the discretion of a government official to a limit not contained in 
    existing law is legislation in violation of clause 2 of rule XXI.
        In volume 8 of Deschler's precedents, at section 64, the 
    following test is set forth as one of the fundamental tests of the 
    propriety of a proposed limitation; and I quote:

            Does the limitation curtail or extend, modify or alter, 
        existing powers or duties, or terminate old or confirm new 
        ones? If it does, then it must be conceded that legislation is 
        involved, for without legislation these results could not be 
        accomplished.

        It is the opinion of the Chair that the amendment in this case 
    must involve legislation, and, accordingly, the Chair sustains the 
    point of order.
        Mr. Ridge: Mr. Chairman, I respectfully appeal the ruling of 
    the Chair and ask for a recorded vote.

                           parliamentary inquiry

        Mr. [Richard A.] Gephardt [of Missouri]: Mr. Chairman, I have a 
    parliamentary inquiry.
        The Chairman: The gentleman will state it.
        Mr. Gephardt: Would the Chair state for us the effect of the 
    appealing and ruling of the Chair?
        The Chairman: The Chair was about to state the question.
        The question is: Shall the decision of the Chair stand as the 
    judgment of the Committee? An aye vote would support the Chair's 
    ruling. A no vote would not.
        Mr. [William H.] Gray [III, of Pennsylvania]: Mr. Chairman, I 
    have a parliamentary inquiry.
        The Chairman: The gentleman will state it.
        Mr. Gray: The question that I have, Mr. Chairman, is, if the 
    Chair's ruling is not sustained, what would be the parliamentary 
    situation at that time?
        The Chairman: At that point, if the decision of the Chair is 
    not sustained, the amendment would be debatable on the merits under 
    the 5-minute rule in the normal course of procedure.

    The Chair then put the question and, on a recorded vote, the 
decision of the Chair was sustained.

Withdrawal of an Appeal

Sec. 13.10 An appeal was taken from a decision of the Speaker and then 
    withdrawn, before the question was put on a motion to lay the 
    appeal on the table.

    In recent years appeals from rulings of the Chair on points of 
order have been tabled in the House more often than they have

[[Page 12403]]

been voted upon. Thus, Nov. 28, 1967,(19) Mr. Paul C. Jones, 
of Missouri, opposed a Senate amendment to a House bill, stating:
---------------------------------------------------------------------------
19. 113 Cong. Rec. 34032, 90th Cong. 1st Sess. Under consideration was 
        H. Res. 985, providing for concurring in Senate amendments to 
        H.R. 2275, an act to provide for the relief of Dr. R. V. 
        Samala, with Senate amendments relating to congressional 
        redistricting.
---------------------------------------------------------------------------

        As the other body has done so many times in the past, they have 
    taken a bill of no great merit and of interest probably to only one 
    Member of Congress, and have attached to that bill an amendment 
    which would affect practically every Member of Congress and each 
    one of the 200 million inhabitants of the United States. They have 
    tried by subterfuge to obtain the passage of a bill in the form of 
    an amendment which they cannot pass directly.(20)
---------------------------------------------------------------------------
20. Id. at p. 34033.
---------------------------------------------------------------------------

    Mr. Jones raised a point of order against the amendment ``to 
restore comity and equality'' between the Houses:

        The Speaker Pro Tempore: (1) The Chair will 
    recognize the gentleman to make his point of order.
---------------------------------------------------------------------------
 1. Charles M. Price (Ill.).
---------------------------------------------------------------------------

        Mr. Jones of Missouri: I will make the point of order now.
        The Speaker Pro Tempore: The gentleman will state his point of 
    or- der. . . .
        Mr. Jones of Missouri: I am making the point of order on the 
    basis of the rule of equity. I am making the point of order on the 
    basis of what the distinguished Speaker of the House of 
    Representatives has said on many occasions, that these two bodies 
    are equal. I am making the point of order to restore comity and 
    equality. As everyone in the House knows, if I were a lawyer, I 
    would not be up here trying to make this point today.

    After Speaker John W. McCormack, of Massachusetts, overruled the 
point of order, Mr. Jones appealed the ruling, but when Mr. Price moved 
to table the appeal, Mr. Jones withdrew it:

        The Speaker: The Chair is prepared to rule. The Chair has given 
    serious consideration to the point of order raised by the gentleman 
    from Missouri. The Committee on Rules has reported out a special 
    rule. It is within the authority of the rules, and a reporting out 
    by the Rules Committee is consistent with the rules of the House. 
    Therefore, the Chair overrules the point of order.
        Mr. Jones of Missouri: Mr. Speaker, I know this has never been 
    done, but I am going to appeal from the rule of the Chair and ask 
    for a rollcall.
        Mr. Price of Illinois: Mr. Speaker, I move to lay on the table 
    the appeal of the gentleman.
        Mr. Jones of Missouri: Mr. Speaker, I withdraw my request, but 
    it is still within my heart.
        The Speaker: The gentleman from Missouri withdraws his request.

Where Appeal Is Not Entertained

Sec. 13.11 Under clause 2 of Rule XIV, recognition is wholly

[[Page 12404]]

    within the discretion of the Chair, who may decline to recognize a 
    Member to propound a unanimous-consent request relating to an order 
    of business, and such a decision of the Chair on recognition is not 
    subject to appeal.

    On Feb. 27, 1992,(2) Speaker Pro Tempore Michael R. 
McNulty, of New York, had recognized the chairman of the Committee on 
Rules to discuss the agenda of that committee and the floor schedule 
which might result from actions taken by the committee. Mr. James A. 
Traficant, Jr., of Ohio, attempted to propound a unanimous-consent 
request to alter the House schedule. The proceedings which followed are 
carried here.
---------------------------------------------------------------------------
 2. 138 Cong. Rec. 3655, 3656, 102d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Joe] Moakley [of Massachusetts]: I rise to notify members 
    about the Rules Committee's plans for two measures: The budget 
    resolution for fiscal year 1993 and H.R. 3732, the Budget Process 
    Reform Act of 1991. . . .
        I take this opportunity to advise Members who wish to offer an 
    amendment to either the budget resolution or to H.R. 3732, the 
    Budget Process Reform Act. . . .
        I have just been informed that the budget will be available at 
    the committee offices tomorrow.
        Mr. Traficant: Mr. Speaker, will the chairman yield to me?
        Mr. Moakley: I am glad to yield to the gentleman from Ohio.
        Mr. Traficant: Mr. Speaker, I want to rise in support of what 
    was just stated on the floor. I think that every Member of this 
    body should have at least 7 days to read thoroughly and to 
    understand the budget of our country.
        I think this. I do not know if it is in order, but I would like 
    to ask unanimous consent that there be at least 1 week's 
    availability for all Members of this House to read the budget 
    before action for amendments or pending rules be considered.
        Mr. Speaker, I put that in the form of a unanimous-consent 
    request.
        The Speaker Pro Tempore: The gentleman's request is not in 
    order. . . .

        Request That Members Be Given 1 Week To Read Budget Proposal

        The Speaker Pro Tempore: For what reason does the gentleman 
    from Ohio rise?
        Mr. Traficant: Mr. Speaker, I rise for the purpose of offering 
    a unanimous-consent request to the Congress.
        Mr. Speaker, I ask unanimous consent that all Members be given 
    1 week to read next year's budget proposal from the Budget 
    Committee and that no rule be recommended or considered until that 
    1-week reading opportunity is granted to all Members of the House.
        Mr. [James H.] Bilbray [of Nevada]: Mr. Speaker, I object.
        The Speaker Pro Tempore: The Chair has the power of recognition 
    and the Chair declines to recognize the

[[Page 12405]]

    gentleman for that purpose and the gentleman cannot challenge that 
    denial.

                               point of order

        Mr. Traficant: Mr. Speaker, a point of order.

        The Speaker Pro Tempore: The gentleman will state his point of 
    order.
        Mr. Traficant: Mr. Speaker, I would like to know under what 
    rule of the House such action by the Chair is taken.
        The Speaker Pro Tempore: Clause 2, rule XIV.

Sec. 13.12 An appeal does not lie to the Chair's count determining that 
    a quorum is present.

    Where a vote first taken by a division is objected to on the ground 
that a quorum is not present, and the Chair counts the House and 
announces that a quorum is in fact present, that count is not subject 
to challenge by appeal. A demand for the yeas and nays, if supported by 
one-fifth of those present, would produce an accurate vote and count of 
those present. The events of Aug. 3, 1977,(3) preceding and 
during consideration in the House of a conference report on the Foreign 
Relations Authorization Act of 1978, where the Chair was faced with a 
parliamentary inquiry, illustrate the point of the headnote.
---------------------------------------------------------------------------
 3. 123 Cong. Rec. 26528, 26532, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [William A.] Steiger [of Wisconsin]: Mr. Speaker, I offer a 
    preferential motion.
        The Clerk read as follows:

            Mr. Steiger moves, pursuant to section 152(d)(3) of the 
        Trade Act of 1974, to postpone indefinitely the motion that the 
        House resolve itself into the Committee of the Whole House on 
        the State of the Union for the consideration of House 
        Resolution 653.

        The Speaker Pro Tempore: (4) The question is on the 
    preferential motion offered by the gentleman from Wisconsin (Mr. 
    Steiger).
---------------------------------------------------------------------------
 4. Dan Rostenkowski (Ill.).
---------------------------------------------------------------------------

        The question was taken; and on a division (demanded by Mr. 
    Ashbrook) there were--ayes 149, noes 33.
        Mr. [John M.] Ashbrook [of Ohio]: Mr. Speaker, I object to the 
    vote on the ground that a quorum is not present and make the point 
    of order that a quorum is not present.
        The Speaker Pro Tempore: The Chair will count.
        Two hundred and twenty-four Members are present, a quorum.
        Mr. Ashbrook: Mr. Speaker, on that I demand the yeas and nays.
        The yeas and nays were refused.
        So the preferential motion was agreed to.
        A motion to reconsider was laid on the table. . . .

      Conference Report on H.R. 6689, Foreign Relations Authorization 
                           Act, Fiscal Year 1978

        Mr. [Dante B.] Fascell [of Florida]: Mr. Speaker, I call up the 
    conference

[[Page 12406]]

    report on the bill (H.R. 6689) to authorize fiscal year 1978 
    appropriations for the Department of State, the U.S. Information 
    Agency, and the Board for International Broadcasting, to make 
    certain changes in the Foreign Service personnel system, and for 
    other purposes, and ask unanimous consent that the statement of the 
    managers be read in lieu of the report.
        The Clerk read the title of the bill.
        The Speaker Pro Tempore: Is there objection to the request of 
    the gentleman from Florida?
        Mr. Ashbrook: Reserving the right to object, I believe the 224 
    Members who are present want to hear this.
        Mr. Speaker, I object.
        The Speaker Pro Tempore: Objection is heard.
        The Clerk will read the conference report.
        (The Clerk commenced reading the conference report).
        Mr. [John] Buchanan [of Alabama] (during the reading): Mr. 
    Speaker, I ask unanimous consent that further reading of the 
    conference report be dispensed with.
        The Speaker Pro Tempore: Is there objection to the request of 
    the gentleman from Alabama?
        Mr. Ashbrook: Mr. Speaker, reserving the right to object, I 
    would like to propound a parliamentary inquiry of the Chair. It is 
    my understanding under the rules there is no appealing a ruling of 
    the Chair that can be made as to those present. Am I correct?
        The Speaker Pro Tempore: The gentleman is asking about an 
    appeal to the count of the Chair?
        Mr. Ashbrook: An appeal to the count of the Chair cannot be 
    taken?
        The Speaker Pro Tempore: That is correct.
        Mr. Ashbrook: Further reserving the right, then, to object, all 
    that the Members can rely on for the count of the Chair is the 
    integrity of the Chair and the capacity of the Chair to make a 
    correct count.
        The Speaker Pro Tempore: The gentleman can ask for the yeas and 
    nays.
        Mr. Ashbrook: I would like to do that later if I could be 
    assured we probably could get that count.
        But having made that point, I withdraw my reservation of 
    objection.
        Mr. Buchanan: I thank the gentleman.

Sec. 13.13 The Speaker's count of the House to determine whether one-
    fifth of those present have seconded a demand for the yeas and nays 
    is not subject to appeal.

    On Sept. 12, 1978,(5) the Speaker Pro Tempore put the 
question on a motion to suspend the rules and pass the Miscellaneous 
Revenue Act of 1978 (H.R. 12578). On a voice vote, the Chair announced 
that two-thirds had voted in favor of the motion. The yeas and nays 
were then requested. Proceedings were as indicated.
---------------------------------------------------------------------------
 5. 124 Cong. Rec. 28949, 28950, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Speaker Pro Tempore: (6) The question is on the 
    motion offered by

[[Page 12407]]

    the gentleman from Oregon (Mr. Ullman) that the House suspend the 
    rules and pass the bill H.R. 12578, as amended.
---------------------------------------------------------------------------
 6. B. F. Sisk (Calif.).
---------------------------------------------------------------------------

        The question was taken.
        The Speaker Pro Tempore: In the opinion of the Chair, two-
    thirds have voted in the affirmative.
        Mr. [Harold L.] Volkmer [of Missouri]: Mr. Speaker, on that I 
    demand the yeas and nays.
        The Speaker Pro Tempore: The gentleman from Missouri (Mr. 
    Volkmer) demands the yeas and nays. All those in favor of taking 
    this vote by the yeas and nays will rise and remain standing until 
    counted.
        Not a sufficient number have risen.
        Mr. Volkmer: Mr. Speaker, I have a parliamentary inquiry.
        Is the requirement one-fifth of the Members present?
        The Speaker Pro Tempore: Yes. The Chair will state that the 
    requirement is that one-fifth of the Members present be standing 
    for the yeas and nays, and there is not one-fifth of the Members 
    standing.
        Mr. Volkmer: Mr. Speaker, I count four Members standing.
        The Speaker Pro Tempore: In the opinion of the Chair, an 
    insufficient number have arisen.
        The Chair will be glad to count, if the gentleman desires.
        Mr. Volkmer: Would the Chair count, please? I believe there are 
    only 25 Members here.
        The Speaker Pro Tempore: The Chair will count. Thirty Members 
    are present.
        Two-thirds having voted in the affirmative, the rules are 
    suspended and the bill, as amended, is passed, and without 
    objection, a motion to reconsider is laid on the table.
        There was no objection.
        Mr. [John F.] Seiberling [of Ohio]: Mr. Speaker, is it in order 
    to appeal the ruling of the Chair on the last vote?
        The Speaker Pro Tempore: The Chair will state to the gentleman 
    that no appeal lies on the count of the Chair.

Sec. 13.14 No appeal lies against the count of the Chair of the number 
    of Members supporting or seconding a procedural request.

    During the 95th through the 102d Congresses, standing committees of 
the House were not permitted to sit when the House was reading a bill 
under the five-minute rule unless they were granted permission to do so 
by the House. Such permission was considered granted when the 
permission was sought on the floor unless ten or more Members indicated 
objection. The Chair would state the permission sought and ask ``Is 
there objection?''. If ten or more Members then stood, permission of 
the House was denied.
    The following proceedings of Sept. 12, 1978,(7) 
demonstrate the practice.
---------------------------------------------------------------------------
 7. 124 Cong. Rec. 28983, 28984, 95th Cong. 2d Sess.

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

[[Page 12408]]

      Permission for Committee on the Judiciary To Meet Tomorrow and 
                      Thursday During Five-Minute Rule

        Mr. George E.] Danielson [of California]: Mr. Speaker, I ask 
    unanimous consent that the Committee on the Judiciary may meet 
    tomorrow and Thursday, September 13 and 14, 1978, notwithstanding 
    the 5-minute rule.
        The Speaker Pro Tempore: Is there objection to the request of 
    the gentleman from California? . . .
        Mr. [John M.] Ashbrook [of Ohio]: Mr. Speaker, further 
    reserving the right to object, it is my understanding that the 
    civil service reform bill will be up tomorrow morning. That was the 
    order of the business as I understood it at about midnight last 
    night when we left here on Monday. I have the greatest admiration 
    for my hardworking friend and colleague, the gentleman from 
    Illinois (Mr. McClory), but if that bill is going to come up 
    tomorrow, I am constrained to object and I do object.
        The Speaker Pro Tempore: The Chair will state that it takes 10 
    Members to object, and the objectors will have to remain standing 
    until counted.
        An insufficient number have arisen.
        Therefore, the request is granted.
        Mr. Ashbrook: Mr. Speaker, I appeal the ruling of the Chair.
        The Speaker Pro Tempore: The Chair will state that no appeal is 
    in order in a matter of this kind.

Appeal Tabled

Sec. 13.15 An appeal was taken from the decision of the Chair and that 
    appeal, on motion, was laid on the table.

    On July 7, 1971,(8) Ms. Bella Abzug, of New York, moved 
to discharge a resolution of inquiry from the Committee on Armed 
Services. A point of order was raised against the motion on the ground 
that the resolution of inquiry called for opinions, not factual 
information, relative to the Vietnam war and was therefore not 
privileged under Rule XXII clause 5. The Speaker's ruling that the 
motion was not in order was appealed by Ms. Abzug.(9)
---------------------------------------------------------------------------
 8. 117 Cong. Rec. 23810, 23811, 92d Cong. 1st Sess. Under 
        consideration was H. Res. 491, directing the Secretaries of 
        State and Defense and the Director of the CIA to furnish a 
        report on U.S. military involvement in Southeast Asia.
 9. For further discussion of resolutions of inquiry, see Ch. 13, 
        supra.
---------------------------------------------------------------------------

        Mr. [F. Edward] HeBERT [of Louisiana]: Mr. Speaker, I make the 
    point of order that the resolution is not privileged under the 
    rules.
        The Speaker: (10) Does the gentleman insist on his 
    point of order?
---------------------------------------------------------------------------
10. Carl Albert (Okla.).
---------------------------------------------------------------------------

        Mr. Hebert: Mr. Speaker, I reserve the point of order in order 
    to give the gentlewoman from New York an opportunity to speak to 
    the point of order.
        The Speaker: The gentleman from Louisiana reserves the point of 
    order.
        Does the gentlewoman from New York desire to be heard?
        Ms. Abzug: Yes, Mr. Speaker. . . .

    After hearing arguments on the points of order in support of the

[[Page 12409]]

respective positions, Speaker Albert ruled.

        The Speaker: The Chair is prepared to rule.
        The gentlewoman from New York has moved to discharge the 
    Committee on Armed Services from further consideration of the 
    resolution, House Resolution 491. The gentlewoman has furnished the 
    Chair a copy of the resolution, and the Chair appreciates that 
    fact, since it gives an opportunity to the Chair to examine the 
    resolution prior to ruling on the point of order.
        The resolution under consideration has not been reported by the 
    committee to which it has been referred.
        Clause 5 of Rule XXII provides that:

            All resolutions of inquiry addressed to the heads of 
        executive departments shall be reported to the House within one 
        week after presentation.

        The gentleman from Louisiana makes a point of order against the 
    motion to discharge on the ground that the resolution is not 
    privileged under the rule because it calls for opinions in addition 
    to factual information.
        It has been consistently held that to retain the privilege 
    under the rule, resolutions of inquiry must call for facts rather 
    than opinions--Cannon's Precedents, volume VI page 413 and pages 
    418 to 432. Speaker Longworth, on February 11, 1926, held that a 
    resolution inquiring for such facts as would inevitably require the 
    statement of an opinion to answer such inquiry was not privileged--
    Record, page 3805.
        Among other requests, House Resolution 491 calls for the 
    furnishing of one, the ``rationale'' for U.S. involvement in South 
    Vietnam since the completion of the study; two, the nature and 
    ``capacity'' of the Government of the Republic of Vietnam, 
    including ``analyses'' of their military ``capabilities''; their 
    capacity for self-sufficiency which would include analyses of the 
    Government's political base, the scope of malfunction and 
    corruption, the depth of popular support; and three, analyses of 
    U.S. involvement in 1971 elections in South Vietnam.
        In at least these particulars, executive officials are called 
    upon--not for facts--but to furnish conclusions, which must be, 
    essentially, statements of opinion.
        The Chair therefore holds that House Resolution 491 is not a 
    privileged resolution within the meaning of clause 5, rule XXII, 
    and that the motion to discharge the Committee on Armed Services 
    from its further consideration is not in order.
        Ms. Abzug: Mr. Speaker, I appeal from the ruling of the Chair.
        Mr. [Hale] Boggs [of Louisiana]: Mr. Speaker, I move to lay 
    that appeal on the table.
        The Speaker: The question is on the motion offered by the 
    gentleman from Louisiana.

        The question was taken; and the Speaker announced that the ayes 
    had it.
        So the decision of the Chair stands.

Motion To Reconsider Tabling of Appeal

Sec. 13.16 The House has tabled a motion to reconsider the vote whereby 
    an appeal from a decision of the Chair was laid on the table.

[[Page 12410]]

    On Oct. 8, 1968, (11) the reading of the Journal was 
interrupted by numerous points of order of no quorum. A motion was made 
by Mr. Brock Adams, of Washington, and adopted by the House, that 
absent Members be sent for and thereafter detained until the 
disposition of the pending business of the day. This motion provoked 
some Members to express concern about their personal liberty and 
rights. In this context, Mr. Robert Taft, Jr., of Ohio, attempted to 
interrupt the reading of the Journal with what he contended was a 
question of privilege, but which Speaker John W. McCormack, of 
Massachusetts, determined not to properly raise a question of privilege 
of the House in the form and manner argued, and consequently not in 
order at that time. From this ruling, Mr. Taft appealed. Mr. Carl 
Albert, of Oklahoma, moved the appeal be laid on the table which motion 
was successful. Mr. Craig Hosmer, of California, then moved to 
reconsider the vote on the motion to table.
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11. 114 Cong. Rec. 30214-16, 90th Cong. 2d Sess. [Calendar Day of Oct. 
        9, 1968].
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        Mr. Hosmer: Mr. Speaker, I move to reconsider the vote on the 
    motion to lay the appeal from the Chair on the table.
        Mr. Albert: Mr. Speaker, I move that the motion be laid on the 
    table.
        The Speaker: The gentleman from California moves to reconsider 
    the vote on the motion to lay the appeal from the decision of the 
    Chair on the table, and the gentleman from Oklahoma moves that that 
    motion be laid on the table.
        Mr. Hosmer: Mr. Speaker, I make a point of order against the 
    motion of the gentleman from Oklahoma to lay my motion on the table 
    because that motion does not lie.
        The Speaker: The Chair will state that a motion to lay on the 
    table, on a motion to reconsider, is a recognized motion.
        The question is on the motion to lay on the table.
        Mr. Hosmer: Mr. Speaker, on that I demand the yeas and nays.
        The yeas and nays were ordered. . . .
        So the motion to lay on the table was agreed to.