[Precedents of the U.S. House of Representatives (2017 series), Volume 3, Chapters 7 - 9]
[From the U.S. Government Publishing Office, www.gpo.gov]
115th Congress, 1st Session - - - - - - - - - - - - - - - - - - - House Document No. 115-62
PRECEDENTS
OF THE
United States
House of Representatives
By
CHARLES W. JOHNSON, III, J.D.
Parliamentarian of the House, 1994-2004
JOHN V. SULLIVAN, J.D.
Parliamentarian of the House,
2004-2012
THOMAS J. WICKHAM, Jr., J.D.
Parliamentarian of the House, 2012-2020
JASON A. SMITH, J.D.
Parliamentarian of the House,
2020-
VOLUME 3
COVERING PRECEDENTS THROUGH THE
END OF THE FIRST SESSION OF THE
117TH CONGRESS AND EMPLOYING
CITATIONS TO THE RULES AND TO THE
HOUSE RULES AND MANUAL OF THAT CONGRESS
ACKNOWLEDGEMENTS
Acknowledgements
Acknowledgment is made with appreciation to current and former
staff of the Office of Compilation of Precedents, including Allison
Torres-Cherry, Timothy Abel, Andrew Neal, Catherine Moran, and
Parliamentarians Emeriti Charles W. Johnson and Thomas J. Wickham,
Jr.--and all the staff at the Office of the Parliamentarian--Anne
Gooch, Julia Cook, Benjamin Osheroff, Christina Reid, Norma Volkmer,
Lloyd Jenkins, Kristen Donahue, and Matthew Kowalewski for their
diligent annotation and documentation of the precedents, and their
editorial contributions to this volume. Significant assistance to this
work was provided by Denise Altland, detail from the Government
Publishing Office, and by interns Victoria Murphy, Brigid Harrington,
Alexander Lopez-Hernandez, Freddy Castillo, Elizabeth McCarthy, and
Matthew Novack.
We would also like to regretfully acknowledge the passing within
the last year of two colleagues who contributed significantly to this
publication and to the House of Representatives as an institution--
former Parliamentarian John V. Sullivan and former staff member of the
Office of Compilation of Precedents Bryan Feldblum. John was a
wonderful Parliamentarian whose imprint on the precedents of the House
is clear throughout this and other volumes in this series. Bryan's
innovative approach to technological change spearheaded advancements in
the process for annotating and documenting the precedents. They will be
greatly missed by their colleagues.
Jason A. Smith
Max A. Spitzer
December 2022
iii
Citation Notes for Precedents of the United States House of
Representatives
For Precedents of the United States House of Representatives, cite
to Parliamentarian last name, chapter, section number:
Precedents (Wickham) Ch. 1 Sec. 1.1; Precedents (Smith) Ch. 8
Sec. 7.1
(Note: references to future volumes of this series will be denoted
with underscores (e.g., Precedents (____) Ch. 35.))
For Hinds' and Cannon's Precedents, cite to volume, series, section
number:
1 Hinds' Precedents Sec. 101; 7 Cannon's Precedents Sec. 3900
For Deschler's Precedents, Deschler-Brown Precedents, Deschler-
Brown-Johnson Precedents, and Deschler-Brown-Johnson-Sullivan
Precedents, cite to Deschler's Precedents, chapter, section number:
Deschler's Precedents Ch. 11 Sec. 1.1
V
TABLE OF ABBREVIATIONS AND TERMS
A. (or A.2d) Atlantic Reporter
ad hoc For a particular purpose or end
A.L.R. American Law Reports Annotated
Am Jur American Jurisprudence
amend. Amendment to the Constitution
Annals of Cong. Annals of Congress (1789�091824)
App. D.C. Appeal Cases, District of Columbia
App. Div. Appellate Division
art. Article of the Constitution
C.A. Court of Appeals
Cert. Certiorari
cf. Compare with
CFR Code of Federal Regulations
Ch. Chapter
Cir. Circuit Court of Appeals (federal)
Cir. Ct. App. Circuit Court of Appeals (state)
cl. clause
Comm. Committee
Cong. Congress
Cong. Deb. Congressional Debates (1824�091837)
Cong. Globe Congressional Globe (1833�091873)
Cong. Rec. Congressional Record
contra Contradictory authority
Crim. App. Court of Criminal Appeals
Ct. Cl. Court of Claims
D. District Court (federal)
daily ed. Daily edition of Record
e.g. For example
et al. Omission of party in case name
et seq. And the following
ex rel. On the relation of. . .
Exec. Comm. Executive Communication
F (or F2d) Federal Reporter
FCA Federal Code Annotated
Fed. Reg. Federal Register
FRD Federal Rules Decisions
F Supp Federal Supplement
H. Con. Res. House Concurrent Resolution
H. Doc. House Document
H.J. Res. House Joint Resolution
H. Jour. House Journal
H.R. House Bill
H. Rept. House Report
H. Res. House Resolution
vii
Id. Citation to same authority as in immedi-
ately preceding citation
i.e. That is
In re In the matter of . . .
infra Subsequent section or chapter
inter alia Among others
L.Ed (or L.Ed2d) Lawyers' Edition, U.S. Supreme Court
Reports
L.J. Law Journal
L. Rev. Law Review
Mem. Disposition of case without opinion
N.E. (or N.E.2d) North Eastern Reporter
N.W. (or N.W.2d) North Western Reporter
Op. Att'y Gen. Attorney General's Opinions
P. (or P.2d) Pacific Reporter
Per Curiam Disposition of case with short opinion
Priv. L. Private Law
Pub. L. Uncodified Statute or Session Law
S. Senate Bill
S. Con. Res. Senate Concurrent Resolution
S. Ct. Supreme Court Reporter
S. Doc. Senate Document
S.E. (or S.E.2d) South Eastern Reporter
Sess. Session
Sic Mistake in original of quoted material
S.J. Res. Senate Joint Resolution
S. Jour. Senate Journal
S. Rept. Senate Report
S. Res. Senate Resolution
So. (or So.2d) Southern Reporter
Stat. Statutes at large
Sup. Ct. Supreme Court
supra Prior section or chapter
S.W. (or S.W.2d) South Western Reporter
U.S. United States Supreme Court Reports
USC (or USCA) United States Code (or United States
Code Annotated)
U.S. Code Cong. & Ad. United States Code Congressional and
News Administrative News
U.S. Const. United States Constitution
U.S.L.W. United States Law Week
viii
Contents
Chapter 7. The Members
A. Membership of the House
Sec. 1. In General; Scope of Chapter
Sec. 2. Delegates and Resident Commissioners
B. Qualifications and Disqualifications
Sec. 3. Qualifications
Sec. 4. Incompatible Offices
C. Salary and Benefits
Sec. 5. Salary and Benefits; Compensation
Sec. 6. Other Benefits; Office and Staff
D. Immunities
Sec. 7. Immunities of Members Generally; Service of Process
Sec. 8. Speech or Debate Immunity
Sec. 9. Immunity from Arrest
Chapter 8. Elections and Election Campaigns
A. Apportionment; Voting Districts
Sec. 1. Constitutional and Statutory Requirements
Sec. 2. Districting and Redistricting
B. Time, Place, and Regulation of Elections
Sec. 3. State and Federal Jurisdiction over House Elections
Sec. 4. Vacancies; Continuity of Operations
C. Campaign Practices
Sec. 5. Election Campaigns and Campaign Financing Regulation
Sec. 6. The Federal Election Commission
Sec. 7. House Ethics Rules
Chapter 9. Election Contests
A. Jurisdiction and Authority
Sec. 1. Constitutional Provisions; Historical Background
Sec. 2. Statutory Provisions; Former Statutory Provisions
Sec. 3. State and Local Election Procedures
Sec. 4. Jurisdiction: House, Committees, and Courts
B. Grounds and Defenses
Sec. 5. Grounds for Initiating a Contest
Sec. 6. Defenses to a Contest
C. Procedure
Sec. 7. Standing; Parties
Sec. 8. Notice of Contest
Sec. 9. Other Pleadings
Sec. 10. Taking Testimony; Depositions
D. Committee and House Consideration
Sec. 11. Burden of Proof; Presumptions
Sec. 12. Ballot Issues; Recounts
Sec. 13. Disposition of Contests
E. Summaries of Election Contests, 1973-2020
Sec. 14. Ninety-third Congress, 1973-1974
Sec. 15. Ninety-fourth Congress, 1975-1976
Sec. 16. Ninety-fifth Congress, 1977-1978
Sec. 17. Ninety-sixth Congress, 1979-1980
Sec. 18. Ninety-seventh Congress, 1981-1982
Sec. 19. Ninety-eighth Congress, 1983-1984
Sec. 20. Ninety-ninth Congress, 1985-1986
Sec. 21. One Hundredth Congress, 1987-1988
Sec. 22. One Hundred First Congress, 1989-1990
Sec. 23. One Hundred Second Congress, 1991-1992
Sec. 24. One Hundred Third Congress, 1993-1994
Sec. 25. One Hundred Fourth Congress, 1995-1996
Sec. 26. One Hundred Fifth Congress, 1997-1998
Sec. 27. One Hundred Sixth Congress, 1999-2000
Sec. 28. One Hundred Seventh Congress, 2001-2002
Sec. 29. One Hundred Eighth Congress, 2003-2004
Sec. 30. One Hundred Ninth Congress, 2005-2006
Sec. 31. One Hundred Tenth Congress, 2007-2008
Sec. 32. One Hundred Eleventh Congress, 2009-2010
Sec. 33. One Hundred Twelfth Congress, 2011-2012
Sec. 34. One Hundred Thirteenth Congress, 2013-2014
Sec. 35. One Hundred Fourteenth Congress, 2015-2016
Sec. 36. One Hundred Fifteenth Congress, 2017-2018
Sec. 37. One Hundred Sixteenth Congress, 2019-2020
Sec. 38. One Hundred Seventeenth Congress, 2021-2022
CHAPTER 7
The Members
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Commentary and editing by Max Spitzer, J.D., LL.M.
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A. Membership of the House
Sec. 1. In General; Scope of Chapter
Sec. 2. Delegates and Resident Commissioners
B. Qualifications and Disqualifications
Sec. 3. Qualifications
Sec. 4. Incompatible Offices
C. Salary and Benefits
Sec. 5. Salary and Benefits; Compensation
Sec. 6. Other Benefits; Office and Staff
D. Immunities
Sec. 7. Immunities of Members Generally; Service of
Process
Sec. 8. Speech or Debate Immunity
Sec. 9. Immunity from Arrest
A. Membership of the House
Sec. 1. In General; Scope of Chapter
Membership in the House of Representatives affords certain rights
and privileges not conferred on ordinary citizens and other non-
Members. Many of these privileges derive from constitutional
provisions. Others can be found in statute, while still others have
evolved from the standing rules, precedents, and customs of the House.
This chapter explores the concept of membership in the House and its
attendant privileges and prerogatives. Other chapters may contain
related material, as described below.
As early as the 18th century, the House recognized the status of
certain nonvoting representatives from United States territory that had
not been admitted to statehood. These individuals, styled ``Delegates''
or ``Resident Commissioners,'' while not Members of the House, do enjoy
many of the same rights and privileges as Members. The differences
between Delegates, Resident Commissioners, and Members are discussed in
Section 2 of this chapter.
Before becoming a Member of the House, an individual must first
campaign for the office and win election in their district. The conduct
of election campaigns, including legal and ethical requirements, state
and Federal jurisdiction over elections, and the filling of vacancies
by special election, are discussed in Chapter 8 of this
series.(1) This chapter examines the qualifications
necessary to become a Member, and the conditions that may exist for an
individual to be disqualified from holding a seat in the
House.(2) It also explores the concept of other offices that
are constitutionally incompatible with service in the
House.(3) Unsuccessful candidates for seats in the House may
choose to challenge the election, on the basis that the election was
invalid due to mistake, fraud, or other irregularities. Such election
contests are discussed in Chapter 9 of this series.(4)
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1. Chapter 8 also explores the constitutional and statutory
requirements for creating congressional districts and adjusting
those districts following the decennial census.
2. See Sec. 3, infra.
3. See Sec. 4, infra.
4. Chapter 9 contains descriptions of election contests initiated
between the 93d and 117th Congresses. For election contests in
earlier Congresses, see Deschler's Precedents Ch. 9 (and the
appendix thereto); 6 Cannon's Precedents Sec. Sec. 90-189; 1
Hinds' Precedents Sec. Sec. 634-844; and 2 Hinds' Precedents
Sec. Sec. 845-1135.
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An individual does not assume all of the privileges and
prerogatives of membership until they take the oath of office, as
required by the Constitution. Oath-taking procedures, including the
composition of the Clerk's roll of Members-elect and the process for
challenging the right to be sworn, are discussed in Chapter 2 of this
series.
In addition to constitutional privileges (such as Speech or Debate
immunity(5) and Immunity from Arrest),(6) this
chapter also reviews statutory privileges such as the franking
privilege.(7) It further examines how Members supervise and
direct their congressional offices,(8) and how they are
compensated for their public service.(9) The House's
disciplinary procedures and ethics requirements sometimes intersect
with those topics. For example, allegations of misuse of official
resources may give rise to an investigation conducted by the Committee
on Ethics.(10)
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5. See Sec. 8, infra.
6. See Sec. 9, infra.
7. See Sec. 6, infra.
8. Id.
9. See Sec. 5, infra.
10. Violations of campaign practices may also be investigated by the
Committee on Ethics. For more on the House's disciplinary
procedures generally, see Deschler's Precedents Ch. 12; and
Precedents (____) Ch. 12.
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The privileges and prerogatives of Members (and the House itself)
are defended via formal House action, which usually takes the form of a
simple resolution. Such resolutions may be considered under special
procedures pursuant to rule IX,(11) which relate to all
questions of the privileges of the House.(12) Resolutions
raised as questions of privilege may be used to defend individual
Member privileges (e.g., permitting a particular Member to respond to
judicial process)(13) or privileges of the House more
generally (e.g., the House's constitutional prerogative to originate
revenue legislation).(14)
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11. See House Rules and Manual Sec. Sec. 698-713 (2021).
12. For more on questions of privilege generally, see Deschler's
Precedents Ch. 11; and Precedents (____) Ch. 11.
13. For more on service of process on Members, see Sec. 7, infra.
14. For more on the House's institutional prerogatives, see Deschler's
Precedents Ch. 13; and Precedents (____) Ch. 13.
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Finally, the major party organizations in the House (the Democratic
Caucus and the Republican Conference) have long played a role in the
House's institutional structure.(15) Many aspects of Member
activity are thus regulated not by formal House rule but by internal
Caucus or Conference rules. The extent to which Member seniority is
taken into account is now largely a matter of internal party caucus
procedures. Such procedures may provide for particular committee
rankings on the basis of seniority in the House.(16) House
rules and precedents are largely silent on the issue of seniority,
though certain longstanding traditions continue to be observed. For
instance, the Member with the longest continuous service (called the
Dean of the House) is the Member traditionally called upon to
administer the oath of office to a newly-elected
Speaker.(17) Ceremonial committees (such as escort
committees or funereal committees) are often named in order of
seniority.(18) The most senior Member of a state's
delegation will typically make announcements to the House regarding the
status of that delegation (for example, announcing the death of a
Member from that state).
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15. For more on party organization generally, see Deschler's Precedents
Ch. 3; and Precedents (Wickham) Ch. 3.
16. See, e.g., Rules Committee Print 115-37, Democratic Caucus, 115th
Cong., Rule 19(F). See also Precedents (Wickham) Ch. 3
Sec. 8.3.
17. See Precedents (Wickham) Ch. 1 Sec. 4. See also Deschler's
Precedents Ch. 1 Sec. Sec. 6, 6.4; and Deschler's Precedents
Ch. 7 Sec. 2.20. For earlier precedents noting inconsistencies
in prior practice, see 6 Cannon's Precedents Sec. Sec. 6, 7;
and 1 Hinds' Precedents Sec. Sec. 81, 131-133.
18. See, e.g., Deschler's Precedents Ch. 7 Sec. 2; and Deschler's
Precedents Ch. 38 Sec. 8.
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Sec. 2. Delegates and Resident Commissioners
Although only duly-sworn Members of the House enjoy the full
spectrum of privileges and prerogatives of membership, Congress has
chosen to invest others with the ability to participate in House
proceedings as nonvoting representatives.(1) Such
individuals have been styled ``Delegates'' or ``Resident
Commissioners''(2) and represent nonstate areas of the
United States, such as territories, commonwealths, or the Federal
district.(3) The positions of nonvoting Delegate or Resident
Commissioner are not constitutional offices, but have instead been
created by statute.(4) This section discusses the history of
these officers, the authorities they exercise, and limitations or
restrictions on those authorities.
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1. Parliamentarian's Note: Although nonvoting Delegates have a long
history in the House, the Senate has never accepted
participation in its proceedings by nonvoting representatives.
For an instance where an amendment to add a nonvoting
representative to the Senate was held germane to a bill
creating a similar position in the House, see 119 Cong. Rec.
33656-57, 93d Cong. 1st Sess. (Oct. 10, 1973).
2. Parliamentarian's Note: The law establishing the Office of Delegate
for the Northern Mariana Islands uses the term ``Resident
Representative'' (as well as the term ``Delegate'') in its
statutory language describing the position, but the term
``Resident Representative'' is not used in the House. See 48
U.S.C. Sec. Sec. 1751, 1757.
3. United States territory that has not been admitted as a state may
be classified in a variety of different ways. Throughout the
19th century, the U.S. established ``territories'' to
administer Federal land that had not been admitted to
statehood. If Congress passed an organic act to structure how
the territory would be governed, the territory would be
considered ``organized.'' Territories that had no organic act
were termed ``unorganized.'' Following the Spanish-American War
in 1898, former Spanish territory acquired by the United States
obtained the legal status of ``unincorporated'' territory. The
categories of ``organized/unorganized'' and ``incorporated/
unincorporated'' continue to be used to define the nonstate
areas over which the United States exercises sovereignty.
4. The qualifications for office have been provided in statute and
mirror the qualifications for Members of the House. See 2
U.S.C. Sec. 25a; and 48 U.S.C. Sec. Sec. 892, 1713, 1733, and
1753. Such statutes may impose qualifications not applicable to
Members, such as the requirement that the Resident Commissioner
from Puerto Rico be able to ``read and write the English
language'' (48 U.S.C. Sec. 892) and that the Delegate from the
District of Columbia shall hold ``no other paid public office''
(2 U.S.C. Sec. 25a). For more on qualifications of Members, see
Sec. 3, infra.
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History
The Constitution does not mention Delegates to Congress, but the
concept of a nonvoting representative from territories of the United
States in fact predates the ratification of the Constitution. The act
of the Continental Congress establishing the Northwest Territory in
1787 further provided for a nonvoting Delegate to that
Congress.(5) Over the course of the history of the United
States, many states passed from territorial status to statehood,
sometimes with representation in the House in the form of a nonvoting
Delegate during the former period.(6)
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5. See 1 Hinds' Precedents Sec. 421.
6. Parliamentarian's Note: In 1794, a Delegate arrived with
credentials from the Ohio Territory, and the House had first
occasion to pass on the question of the rights and privileges
of such Delegates. The matter was referred to a select
committee, which recommended that he be seated in the House
with the right to debate but not to vote. A proposal to have
the oath administered to the Delegate was not carried. See 1
Hinds' Precedents Sec. 400. For an 1862 statute declaring that
``[e]very Territory shall have the right to send a Delegate to
the House of Representatives of the United States,'' see 2
Hinds' Precedents Sec. 1290.
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Delegates were initially thought of as special representatives
concerned solely with parochial issues; namely, the issues directly
affecting the territory represented by each Delegate.(7)
Thus, committee and floor prerogatives were more limited than they
would become in the 20th century. Over time, Delegates accrued greater
rights to participate in House business, including floor privileges,
the right to debate, the right to vote in committee, and ultimately the
right to vote on the floor of the House when the House is operating as
the Committee of the Whole.
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7. For example, a 1904 House rule automatically assigned the Resident
Commissioner for Puerto Rico to a single committee: the
Committee on Insular Affairs. 2 Hinds' Precedents Sec. 1306.
For an earlier rule assigning Delegates to specified
committees, see 2 Hinds' Precedents Sec. 1297.
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The Spanish-American War of 1898 concluded with the United States
exercising sovereignty over areas that had formerly been Spanish
territory. Such territory included the Philippine Islands and the
island of Puerto Rico. By statute, the Philippines was granted
authority to send first two ``resident commissioners'' to the House,
and later, one.(8) These Resident Commissioners were treated
by the House the same as the nonvoting Delegates.(9) In
1900, the position of Resident Commissioner from Puerto Rico was
created by statute.(10) By House rule (first adopted in
1904), the Resident Commissioner was given the same status as Delegates
to the House, and permitted to serve on the Committee on Insular
Affairs.(11) A subsequent statute, enacted in 1917, changed
the Resident Commissioner's term from a two-year term to a four-year
term, and provided the Resident Commissioner with certain House
benefits, such as access to stationery and mileage accounts and the
franking privilege.(12)
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8. 39 Stat. 552. Amendments made by the Tydings-McDuffie Act of 1934
reduced the number of Resident Commissioners from two to one.
See P.L. 73-127, 48 Stat. 456. This statutory authority to send
a Resident Commissioner became obsolete when the Philippines
gained independence in 1946. See Deschler's Precedents Ch. 7
Sec. 3.3.
9. Parliamentarian's Note: As ``unincorporated'' territory of the
United States, the Philippines and Puerto Rico were regarded by
some as unlikely candidates for eventual statehood. As such, it
was considered more proper for such territories to be
represented by a Commissioner rather than a Delegate. See 33
Cong. Rec. 3632, 56th Cong. 1st Sess. (Apr. 2, 1900) (Sen.
Spooner's remarks indicating that, ``No Congress gives a
Delegate to a people except upon the theory that the time is to
come when they shall be admitted to statehood and entitled to
participate as one of the States of the Union . . . I will not
vote to give Puerto Rico at this time a Delegate in Congress. I
willingly vote for the proposition in this bill to give them,
at the expense of the United States, a commissioner, whose
status shall enable him to represent their necessities and
their wants to the Congress.'').
10. 31 Stat. 86.
11. See 2 Hinds' Precedents Sec. 1306.
12. 39 Stat. 963.
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In 1959, Alaska and Hawaii were admitted as states and the Delegate
positions that had been created under their former territorial status
were eliminated.(13) Between 1959 and 1970, no Delegates
were sent to the House, and the only nonvoting representative was the
Resident Commissioner from Puerto Rico. In the early 1970s, laws
creating the offices of Delegate from the District of
Columbia,(14) Guam,(15) and the U.S. Virgin
Islands(16) were enacted. Amendments to House rules brought
the Delegates and the Resident Commissioner further under the
jurisdiction of House authority (for example, by specifying that they
are subject to the Code of Official Conduct).(17) Additional
Delegate positions were created in 1978 for American
Samoa,(18) and in 2008 for the Northern Mariana
Islands.(19) Thus, since 2008, there are six nonvoting
Delegates and Resident Commissioners in the House of Representatives.
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13. See Deschler's Precedents Ch. 7 Sec. Sec. 3.4, 3.5.
14. See 2 U.S.C. Sec. 25a. See also Deschler's Precedents Ch. 7
Sec. 3.1.
15. See 48 U.S.C. Sec. Sec. 1711-1715. See also Deschler's Precedents
Ch. 7 Sec. 3.2
16. Id.
17. See Deschler's Precedents Ch. 7 Sec. Sec. 3.8-3.10.
18. See 48 U.S.C. Sec. Sec. 1731-1735.
19. See 48 U.S.C. Sec. Sec. 1751-1757.
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All current Delegates are elected for the same term as Members: one
(two-year) Congress, commencing on January 3 of an odd-numbered
year.(20) The Resident Commissioner from Puerto Rico is
elected for a four-year term, beginning on January 3 following the
general election.(21) Delegates and the Resident
Commissioner may resign their offices,(22) and vacancies are
typically filled by special election.(23) The statute
establishing the Resident Commissioner from Puerto Rico contains
special procedures by which the Governor of Puerto Rico (with the
consent of the Senate of Puerto Rico) may appoint an individual to fill
a vacancy in the office.(24) Delegates and Resident
Commissioners are administered the oath of office upon their
election(25) or appointment.(26)
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20. 48 U.S.C. Sec. Sec. 1712, 1732, and 1752. The statute regarding the
Delegate from the District of Columbia simply states that the
Delegate ``shall be elected to serve during each Congress.'' 2
U.S.C. Sec. 25a. For an earlier discussion of terms of office
for Delegates, see 1 Hinds' Precedents Sec. 403.
21. 48 U.S.C. Sec. 891.
22. Parliamentarian's Note: Members of Congress typically address their
letters of resignation to the appropriate official of the state
from which the Member was elected, a copy of which is forwarded
to the Speaker and laid before the House for the information of
Members. Delegates and Resident Commissioners, however, have
addressed their resignation letters directly to the Speaker.
See 2 Hinds' Precedents Sec. 1304; and Deschler's Precedents
Ch. 37 Sec. 3.8. For resignations generally, see Deschler's
Precedents Ch. 37; and Precedents (____) Ch. 37.
23. The statutes establishing the Delegate for Guam, the U.S. Virgin
Islands, American Samoa, and the Northern Mariana Islands all
provide that vacancies in the position be filled by special
election. See 48 U.S.C. Sec. Sec. 1712, 1732, and 1752.
Election procedures for the Delegate from the District of
Columbia follow the District of Columbia Elections Act. See 2
U.S.C. Sec. 25a.
24. See 48 U.S.C. Sec. 892. See also Deschler's Precedents Ch. 37
Sec. 3.8.
25. Parliamentarian's Note: On opening day of a new Congress, Members-
elect, Delegates-elect, and the Resident Commissioner-elect are
sworn in en masse. Under early practice, Delegates were not
always administered the oath. For a 1794 instance where a
proposal to administer the oath of office to a Delegate was
rejected by the House, see 1 Hinds' Precedents Sec. 400. But
see 1 Hinds' Precedents Sec. 401 (1801 instance of the oath
being administered to a Delegate at organization of a new
Congress).
26. Parliamentarian's Note: When, pursuant to statute, the Governor of
Puerto Rico appoints an individual to fill a vacancy in the
Office of Resident Commissioner, such individual is
administered the oath of office. See Deschler's Precedents Ch.
37 Sec. 3.8.
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With regard to the administrative functions of the House, House
rules do not typically distinguish between Members, Delegates, and
Resident Commissioners. Rules changes in the 92d and 93d Congresses
extended to Delegates and Resident Commissioners the same privileges as
Members with respect to services of the Clerk and Sergeant-at-Arms of
the House.(27) Such changes also brought Delegates and
Resident Commissioners under the jurisdiction of the Code of Official
Conduct (now rule XXIII).(28) Salary and benefits for
Delegates and Resident Commissioners are regulated by
statute.(29)
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27. See Deschler's Precedents Ch. 7 Sec. 3.8.
28. Id. See also House Rules and Manual Sec. 1095 (2021).
29. See, e.g., 48 U.S.C. Sec. Sec. 893, 894, 1715, 1735, and 1755.
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Authorities and Limitations
The primary prerogative enjoyed by Delegates and Resident
Commissioners to the House is the ability to be recognized by the
presiding officer to debate. The original language from the 1787 act
establishing the Northwest Territory specified that Delegates enjoyed
``the right of debating, but not of voting''(30) and such
language was carried forward in statutes throughout the 19th century.
Thus, the parliamentary rights of Delegates and Resident Commissioners
have always encompassed the right to debate.(31) Pursuant to
clause 2(a)(1) of rule IV, Delegates, Delegates-elect, the Resident
Commissioner, and the Resident Commissioner-elect are granted the
privileges of the floor.(32)
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30. See 2 Hinds' Precedents Sec. 1290.
31. Parliamentarian's Note: Under original House practice regarding the
Resident Commissioners from the Philippines, the House would
typically adopt a simple resolution each Congress extending
floor privileges to the Commissioners and specifically
authorizing their participation in debate. See 6 Cannon's
Precedents Sec. Sec. 244, 245. The practice fell into disuse
after 1911, and the House thereafter did not question the
inherent authority of Resident Commissioners to debate. See 6
Cannon's Precedents Sec. 246.
32. House Rules and Manual Sec. 678 (2021). The rule on floor
privileges was amended in the 116th Congress to specify that
Delegates-elect and the Resident Commissioner-elect are
entitled to the floor. For an 1854 instance where the House
declined to permit the Delegate from New Mexico to bring a
translator onto the floor of the House, see 2 Hinds' Precedents
Sec. 1296.
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The normal rules regarding parliamentary speech apply to Delegates
and Resident Commissioners in the same manner as they apply to Members
of the House. Thus, Delegates and Resident Commissioners who transgress
the standards for proper debate in the House may be called to
order.(33) Delegates and Resident Commissioners may likewise
demand that others recognized in debate abide by the rules of
decorum.(34)
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33. For an example of a Delegate being censured by the House for
unparliamentary language, see 2 Hinds' Precedents Sec. 1305.
For decorum issues generally, see Deschler's Precedents Ch. 29
Sec. Sec. 40-66; and Precedents (____) Ch. 29.
34. See 2 Hinds' Precedents Sec. 1295.
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Delegates and Resident Commissioners enjoy many of the same
parliamentary prerogatives as Members. With respect to the regular
parliamentary motions recognized by the House (the motion to lay on the
table, the motion for the previous question, etc.), Delegates and
Resident Commissioners may make any such motions as Members
would.(35) The one exception is the motion to reconsider,
which requires the individual making the motion to have voted on the
prevailing side of the question on which reconsideration is
moved.(36) As Delegates and Resident Commissioners are not
eligible to vote in the full House, they are consequently unable to
meet this prerequisite condition. For this same reason, Delegates and
Resident Commissioners are unable to vote on motions that they
themselves propose.(37) A Delegate has offered the motion to
refer with respect to the resolution establishing the rules of the
House at the beginning of a Congress.(38)
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35. See 2 Hinds' Precedents Sec. Sec. 1291, 1292; and 6 Cannon's
Precedents Sec. 240. For motions generally, see Deschler's
Precedents Ch. 23; and Precedents (____) Ch. 23.
36. See 2 Hinds' Precedents Sec. 1292. For more on the motion to
reconsider, see Deschler's Precedents Ch. 23 Sec. Sec. 33-41;
and Precedents (____) Ch. 23.
37. See, e.g., Sec. 2.1, infra.
38. Parliamentarian's Note: The new majority in the 112th Congress had
offered a rules package that eliminated the ability of
Delegates and Resident Commissioners to vote in the Committee
of the Whole. The Delegate from the District of Columbia moved
to refer the resolution to a select committee to consider
reinstating that provision. See Sec. 2.2, infra.
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The House recognizes a variety of points of order that may be
raised with regard to the offering of propositions, the content of
those proposals, or other aspects of House business.(39)
Delegates and Resident Commissioners are empowered under the rules and
precedents of the House to raise any such points of order in the same
manner as Members.(40) Many items of business in the House
are transacted pursuant to a unanimous-consent request offered by a
Member.(41) Under the precedents of the
House,(42) Delegates and Resident Commissioners may offer
such requests, and are likewise permitted to object to such
requests.(43)
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39. For points of order generally, see Deschler's Precedents Ch. 31
Sec. Sec. 1-13; and Precedents (____) Ch. 31.
40. See 6 Cannon's Precedents Sec. 240.
41. For more on unanimous-consent requests generally, see Deschler's
Precedents Ch. 23 Sec. Sec. 42-48; and Precedents (____) Ch.
23.
42. Parliamentarian's Note: Early precedents did not recognize the
ability of Delegates and Resident Commissioners to object to
unanimous-consent requests. See 2 Hinds' Precedents
Sec. Sec. 1293, 1294. However, these precedents were
essentially overturned by a 1930 ruling permitting the Delegate
from Alaska to object to the consideration of a bill under
procedures for the Consent Calendar. See 6 Cannon's Precedents
Sec. 240. For a similar instance involving Delegates and
Private Calendar procedures, see Deschler's Precedents Ch. 7
Sec. 3.7.
43. See Sec. 2.4, infra.
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The most consequential restriction on the ability of Delegates and
Resident Commissioners to participate in House proceedings is the
inability to vote in the House.(44) This principle has been
consistently applied throughout the House's history, and the District
of Columbia Circuit Court has held that casting a vote in the full
House constitutes an exercise of legislative power reserved to Members
only.(45) Delegates and Resident Commissioners are
ineligible to vote in the election for Speaker of the
House.(46)
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44. Statutes creating the different Delegate and Resident Commissioner
positions may specify that the individual does not have voting
rights. See, e.g., 2 U.S.C. Sec. 25a (the District of Columbia
Delegate shall have ``the right of debate, but not of
voting''). However, a statutory prohibition on voting, as an
extension of the House's constitutional rulemaking authority,
could be modified by subsequent House rules. See Precedents
(Wickham) Ch. 5 Sec. 7. The prohibition on voting in the House
instead derives from the Constitution, which permits only
Members to vote in the House. See Michel v. Anderson, 14 F.3d
623, 630 (D.C. Cir. 1994). Although Delegates and Resident
Commissioners have never been allowed to vote in the House, a
Delegate has been appointed as a teller when the House used
that method of voting. 2 Hinds' Precedents Sec. 1302.
45. Michel v. Anderson, 14 F.3d 623, 630 (D.C. Cir. 1994) (``[I]t would
be unconstitutional to permit anyone but members of the House
to vote in the full House under any circumstances.'').
46. See Sec. 2.5, infra.
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Although Delegates and Resident Commissioners may offer resolutions
of impeachment,(47) Delegates and Resident Commissioners may
not vote on impeachment articles. In the 105th Congress, a resolution
proposing to grant the Delegate from the District of Columbia the right
to vote on articles of impeachment against the President or Vice
President was determined not to constitute a question of the privileges
of the House.(48)
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47. See, e.g., 2 Hinds' Precedents Sec. 1303 (1808 instance where the
Delegate from Mississippi moved to impeach a Federal judge and
was subsequently appointed chair of the investigatory
committee).
48. See Sec. 2.6, infra.
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It has been held that ``a majority of the total membership of the
House'' in clause 2(b) of rule XV (the discharge rule) means 218
Members, and therefore a discharge petition may only be signed by
Members of the House.(49) A Delegate or Resident
Commissioner may not sign a discharge petition, even by unanimous
consent.(50)
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49. See Deschler's Precedents Ch. 18 Sec. 1.2.
50. See Sec. 2.7, infra.
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Committees
In recent decades, Delegates and Resident Commissioners have joined
one of the two major party caucuses in the House: the Democratic Caucus
or the Republican Conference.(51) Committee assignments for
Delegates and Resident Commissioners therefore follow the same
procedure as that for Members: nomination by a party caucus and the
adoption of a simple House resolution electing the Delegate or Resident
Commissioner to the committee.(52) Seniority and rank on a
committee are matters within the purview of the party
caucuses.(53)
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51. For party organization generally, see Deschler's Precedents Ch. 3;
and Precedents (Wickham) Ch. 3.
52. Changes to House rules in the 92d and 93d Congresses specifically
provided that the Delegates and Resident Commissioners be
elected to serve on committees ``in the same manner as
Members.'' Rule XII, clauses 1 and 2; House Rules and Manual
Sec. 740 (1973). Prior to this time, committee assignments for
Delegates and Resident Commissioners were provided in the rule
itself. The current rule on committee assignments may be found
at Rule III, clause 3(a); House Rules and Manual Sec. 675
(2021).
53. For an announcement regarding Democratic Caucus seniority as
applied to Delegates and Resident Commissioners, see Deschler's
Precedents Ch. 7 Sec. 3.11. For a resolution adjusting the rank
of a Delegate on a committee, see Sec. 2.8, infra.
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Committee participation by Delegates was originally limited to
committees whose jurisdiction covered U.S. territories and the Federal
district.(54) Gradually, the rule was expanded to permit one
Delegate to be assigned to each of several committees specified by
rule.(55) Ultimately, Delegates and Resident Commissioners
attained their committee assignments in the same manner as Members
following the rules changes of 1910: election via the individual party
caucuses.(56) Rules changes in the 93d, 96th, 103d, and
116th Congresses expanded the Speaker's appointment authority to permit
the appointment of Delegates and Resident Commissioners to select,
joint, and conference committees.(57) Prior to these
changes, such appointments could only be made by unanimous
consent.(58)
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54. See 2 Hinds' Precedents Sec. 1297.
55. See 2 Hinds' Precedents Sec. 1297; and 6 Cannon's Precedents
Sec. 242. Occasionally, the House would acquiesce to a Delegate
being placed on a committee not mentioned in the rule. See,
e.g., 2 Hinds' Precedents Sec. 1298.
56. See Deschler's Precedents Ch. 7 Sec. 3.9. See also Precedents
(Wickham) Ch. 3 Sec. 8.
57. Rule III, clause 3(b); House Rules and Manual Sec. 676 (2021). When
the House recodified its rules in the 106th Congress,
corresponding amendments were made to clause 11 of rule I
(House Rules and Manual Sec. 637 (2021)) delineating the
Speaker's appointment authority. See 145 Cong. Rec. 87, 106th
Cong. 1st Sess. (Jan. 6, 1999). For a historical instance of a
Delegate being appointed to a select committee (as chair) in
1811, see 2 Hinds' Precedents Sec. 1299. See also 2 Hinds'
Precedents Sec. 1303 (Delegate appointed chair of a special
impeachment investigation committee).
58. See, e.g., Sec. 2.10, infra. For an instance of the Speaker
inadvertently appointing a Delegate to a conference committee
(and the House subsequently vacating that action by unanimous
consent), see Sec. 2.9, infra. See also 119 Cong. Rec. 25201,
93d Cong. 1st Sess. (July 20, 1973) (remarks in debate
expressing ``surprise and dismay'' that the Resident
Commissioner could not be appointed to a conference committee).
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Although early House practice was not consistent with respect to
the ability of Delegates and Resident Commissioners to vote in
committee,(59) it has now been well established that
Delegates and Resident Commissioners have voting rights in committees
of the House. In the 92d and 93d Congresses, clause 1 of rule XII (now
clause 3(a) of rule III) was substantially revised to specifically
provide that Delegates and Resident Commissioners elected to committees
of the House ``shall possess in such committees the same powers and
privileges as the other members of the committee.''(60)
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59. Parliamentarian's Note: A report from 1841 suggested that Delegates
had been voting in the standing committees of the House for
some time (2 Hinds' Precedents Sec. 1301) and an 1884 instance
indicated that the issue was being studied by the Committee on
Rules (2 Hinds' Precedents Sec. 1300). However, as late as
1932, a committee reported to the House its finding that
Delegates were not competent to vote in committees of the
House. See 6 Cannon's Precedents Sec. 243.
60. House Rules and Manual Sec. 675 (2021). See also Deschler's
Precedents Ch. 7 Sec. 3.10. Statutory authority creating the
different Delegate and Resident Commissioner positions may also
reference voting rights in committee. See, e.g., 48 U.S.C.
Sec. 1715 (``. . . the right to vote in committee shall be as
provided by the Rules of the House of Representatives.''). It
should be noted that the House's ability to provide for
Delegate and Resident Commissioner voting in committees or in
the Committee of the Whole does not depend on statutory
authority, but is instead part of the House's inherent
constitutional authority to make its own rules of proceeding.
For more on the interaction between statutory rulemaking and
the House's standing rules, see Precedents (Wickham) Ch. 5
Sec. 7.
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Committee of the Whole
In the 103d Congress, the House adopted rules that for the first
time permitted Delegates and Resident Commissioners to vote on the
floor of the House when the House is operating as the Committee of the
Whole.(61) The Committee of the Whole is a very old
parliamentary device derived from British practice, with special
procedures for the consideration of legislative
measures.(62) Certain constitutional provisions do not apply
in the Committee of the Whole.(63) A key feature of the
Committee of the Whole is that it cannot take final action on a
measure, but merely recommends action to the House.(64) The
Committee of the Whole may be thought of as similar to any of the
committees of the House: a separate forum for preliminary action on a
measure, with the ability to report its recommendations to the House
for final disposition. As Delegates and Resident Commissioners had been
granted the privilege of voting in the committees of the House, it was
thought appropriate to extend that privilege to the Committee of the
Whole.(65)
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61. See Deschler's Precedents Ch. 30 Sec. 59.1.
62. For more on the Committee of the Whole generally, see Deschler's
Precedents Ch. 19; and Precedents (____) Ch. 19.
63. For example, quorum requirements in the Committee of the Whole are
lower than those in the full House, and Members may not demand
the constitutional yeas and nays in the Committee of the Whole.
See Deschler's Precedents Ch. 19 Sec. 1.
64. Parliamentarian's Note: Committees of the House do not take final
action on any measure, and it has been said that the Committee
of the Whole is ``but a committee of the House, though a large
one.'' 4 Hinds' Precedents Sec. 4706.
65. ``The Delegates and the Resident Commissioners represent 4.6
million Americans who now have no voting representation in the
House other than in the standing committees . . . [t]his
amendment would allow these Americans to be represented in the
preliminary decisions of the House through votes in the
Committee of the Whole.'' (remarks of Rep. Louise Slaughter of
New York). See 139 Cong. Rec. 54, 103d Cong. 1st Sess. (Jan. 5,
1993).
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An additional feature of the Delegate voting rule provided for an
automatic revote in the full House should the votes of the Delegates
and Resident Commissioners prove decisive in the Committee of the
Whole.(66) In other words, but for the votes of the
Delegates and Resident Commissioners, the vote in the Committee of the
Whole would have been reversed. In such circumstances, the rule
provided that the Committee of the Whole rise, and that the same vote
be taken again in the full House (where Delegates and Resident
Commissioners are ineligible to vote).(67)
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66. See Deschler's Precedents Ch. 30 Sec. 59.1.
67. For an example of such a revote being taken in the House, see
Sec. Sec. 2.12, 2.13, infra. For parliamentary inquiries
regarding the operation of the rule, see Sec. Sec. 2.14, 2.15,
infra.
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This feature of the rule was raised in subsequent litigation
commenced by the minority party in an attempt to have the rule declared
unconstitutional.(68) The District Court for the District of
Columbia held that because of the revote provision, the votes of the
Delegates and Resident Commissioners could not affect the ultimate
result, and thus could not be an exercise of legislative power in
violation of the Constitution.(69) On appeal, the District
of Columbia Circuit Court was less concerned with the revote provision,
but ultimately agreed that the rule provided authority that was
``largely symbolic''(70) and thus free of constitutional
defects.(71)
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68. See Michel v. Anderson, 817 F. Supp. 126 (D.D.C. 1993) and Michel
v. Anderson, 14 F.3d 623 (D.C. Cir. 1994). See also Deschler's
Precedents Ch. 30 Sec. 59.2.
69. See Michel v. Anderson, 817 F. Supp. 126, 147-48 (D.D.C. 1993),
(``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.'').
70. Michel v. Anderson, 14 F.3d 623, 632 (D.C. Cir. 1994).
71. Id. (``[W]e do not think this minor addition to the office of
delegates has constitutional significance.'').
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Between the 103d Congress and the 116th Congress, the Delegate
voting rule would be repealed and reinstated multiple
times.(72) The Delegate voting rule has been accompanied by
a related provision permitting Delegates and Resident Commissioners to
serve as chair of the Committee of the Whole.(73) This
provision was likewise revoked and reinstated in subsequent Congresses,
and was most recently reinstated in the 115th Congress.(74)
In the 116th Congress, clause 6(a) of rule XVIII(75) was
amended to clarify that the Delegates and the Resident Commissioner
count for purposes of establishing a quorum in the Committee of the
Whole.
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72. The Delegate voting rule was first introduced by the Democratic
Caucus when the Democratic Party was in the majority in 1993.
When the Republican Party became the majority party in the
following Congress, the rule was repealed. See Deschler's
Precedents Ch. 30 Sec. 59.3. The rule was reinstated in the
110th Congress, repealed in the 112th Congress, and reinstated
again in the 116th Congress. See House Rules and Manual
Sec. 675 (2021).
73. Rule XVIII, clause 1; House Rules and Manual Sec. 970 (2021). For
the inaugural instance of a Delegate presiding over the
Committee of the Whole, see Sec. 2.16, infra.
74. House Rules and Manual Sec. 970 (2021).
75. House Rules and Manual Sec. 982 (2021). Amendments to clause 6(e)
of rule XVIII also clarified that Delegates and the Resident
Commissioner may be counted to support a request for a recorded
vote in the Committee of the Whole. See House Rules and Manual
Sec. 983a (2021).
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Sec. 2.1 Delegates and the Resident Commissioner may make any of the
ordinary motions(76) in the House (such as a motion to
adjourn), but may not vote on such motions.
---------------------------------------------------------------------------
76. Parliamentarian's Note: The one exception to this principle is that
Delegates and the Resident Commissioner may not move
reconsideration, as they are unable to meet the requirement
that the individual offering the motion to reconsider must have
voted on the prevailing side of the question. See 2 Hinds'
Precedents Sec. 1292.
---------------------------------------------------------------------------
On January 9, 1981,(77) the Delegate from American Samoa
offered the motion to adjourn, as follows:
---------------------------------------------------------------------------
77. 127 Cong. Rec. 248, 97th Cong. 1st Sess. See also Deschler's
Precedents Ch. 29 Sec. 23.65.
---------------------------------------------------------------------------
ADJOURNMENT
Mr. [Fofo] SUNIA [of American Samoa]. Mr. Speaker, I move that
the House do now adjourn.
The motion was agreed to; accordingly (at 12 o'clock and 25
minutes p.m.), under its previous order, the House adjourned until
Tuesday, January 13, 1981, at 12 o'clock noon.
Sec. 2.2 Delegates and the Resident Commissioner may make any of the
ordinary motions(78) in the House (such as the motion to
refer), but may not vote on such motions.
---------------------------------------------------------------------------
78. Parliamentarian's Note: The one exception to this principle is that
Delegates and the Resident Commissioner may not move
reconsideration, as they are unable to meet the requirement
that the individual offering the motion to reconsider must have
voted on the prevailing side of the question. See 2 Hinds'
Precedents Sec. 1292.
---------------------------------------------------------------------------
On January 5, 2011,(79) the Delegate from the District
of Columbia offered a motion to refer the resolution adopting the rules
of the House to a select committee:
---------------------------------------------------------------------------
79. 157 Cong. Rec. 83-84, 112th Cong. 1st Sess.
---------------------------------------------------------------------------
motion to refer
Ms. [Eleanor] NORTON [of District of Columbia]. Mr. Speaker, I
rise to offer a motion that is at the desk.
The SPEAKER pro tempore.(80) The Clerk will report
the motion.
---------------------------------------------------------------------------
80. Steven LaTourette (OH).
---------------------------------------------------------------------------
The Clerk read as follows:
Ms. Norton 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 the provision that would be
eliminated from the Rules that granted voting rights in the Committee of
the Whole to the Delegates from the District of Columbia, American Samoa,
Guam, the Virgin Islands and the Northern Mariana Islands and the Resident
Commissioner from Puerto Rico, including the decision of the United States
Court of Appeals for the District of Columbia in Michel v. Anderson (14
F.3d 623 (D.C. Cir. 1994)), which upheld the constitutionality of these
voting rights.
motion to table
Mr. [Eric] CANTOR [of Virginia]. Mr. Speaker, I offer a motion.
The SPEAKER pro tempore. The Clerk will report the motion.
The Clerk read as follows:
Mr. Cantor moves to lay on the table the motion to refer.
The SPEAKER pro tempore. The question is on the motion to
table.
The question was taken; and the Speaker pro tempore announced
that the ayes appeared to have it.
Ms. NORTON. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
223, nays 188, not voting 20, as follows:
[Roll No. 3] . . .
Messrs. LEVIN, BRADY of Pennsylvania, HINOJOSA, ALTMIRE,
CARDOZA, and Mrs. MALONEY changed their vote from ``yea'' to
``nay.''
Mr. JONES, Mrs. MYRICK, Mrs. BACHMANN, and Ms. HAYWORTH changed
their vote from ``nay'' to ``yea.''
So the motion was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Sec. 2.3 Delegates and the Resident Commissioner may make any of the
ordinary motions in the House (such as the motion to
recommit),(81) but may not vote on such motions.
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81. Parliamentarian's Note: Delegates and the Resident Commissioner may
make any motion not contingent on the right to vote. Motions to
recommit a measure back to committee are not contingent on the
right to vote. Rather, the requisite qualification for offering
such motion is an averment that the offeror is opposed to the
underlying measure. See rule XIX, clause 2(a); House Rules and
Manual Sec. 1001 (2021).
---------------------------------------------------------------------------
On October 27, 2015,(82) the Delegate from the District
of Columbia offered a motion to recommit a bill to the committee of
jurisdiction:
---------------------------------------------------------------------------
82. 161 Cong. Rec. 16588-89, 114th Cong. 1st Sess.
---------------------------------------------------------------------------
The SPEAKER pro tempore.(83) All time for debate has
expired.
---------------------------------------------------------------------------
83. Rodney Davis (IL).
---------------------------------------------------------------------------
Pursuant to House Resolution 450, the previous question is
ordered on the bill, as amended.
The question is on the engrossment and third reading of the
bill.
The bill was ordered to be engrossed and read a third time, and
was read the third time.
motion to recommit
Ms. [Eleanor] NORTON [of District of Columbia]. Mr. Speaker, I
have a motion to recommit at the desk.
The SPEAKER pro tempore. Is the gentlewoman opposed to the
bill?
Ms. NORTON. I am.
Mr. [Jeb] HENSARLING [of Texas]. Mr. Speaker, I reserve a point
of order.
The SPEAKER pro tempore. A point of order is reserved.
The Clerk will report the motion to recommit.
The Clerk read as follows:
Ms. Norton moves to recommit the bill H.R. 597 to the Committee
on Financial Services.
The SPEAKER pro tempore. The gentlewoman from the District of
Columbia is recognized for 5 minutes.
Ms. NORTON. I yield back the balance of my time.
Mr. HENSARLING. Mr. Speaker, I withdraw my reservation of a
point of order.
The SPEAKER pro tempore. The reservation of the point of order
is withdrawn.
Mr. [Frank] LUCAS [of Oklahoma]. Mr. Speaker, I wish to claim
time in opposition to the motion to recommit.
The SPEAKER pro tempore. Does the gentleman from Texas seek
recognition?
Mr. HENSARLING. Yes, I wish to seek time in opposition.
point of order
Mr. LUCAS. Mr. Speaker, I make a point of order.
The SPEAKER pro tempore. The gentleman from Oklahoma will state
his point of order.
Mr. LUCAS. Mr. Speaker, in order to seek time in opposition,
wouldn't the gentleman or gentlewoman have to be opposed to the
motion to recommit?
The SPEAKER pro tempore. Time in opposition is reserved for an
opponent.
Mr. LUCAS. So, Mr. Speaker, would it be in order to reaffirm
that whoever ultimately claims the time is, indeed, in opposition
to the motion to recommit?
The SPEAKER pro tempore. The Chair would ascertain that before
granting recognition.
Does the gentleman from Texas seek recognition in opposition to
the motion to recommit?
Mr. HENSARLING. Yes, I have sought time in opposition to the
motion to recommit.
The SPEAKER pro tempore. The gentleman from Texas is recognized
for 5 minutes.
Mr. HENSARLING. Mr. Speaker, if the gentleman from Oklahoma,
another valuable member of the House Financial Services Committee,
who I know we are on opposite sides of this issue, if the gentleman
would like time to speak, I would be happy to yield to the
gentleman.
Mr. LUCAS. Will the gentleman yield for a brief response?
Mr. HENSARLING. I yield to the gentleman from Oklahoma.
Mr. LUCAS. Mr. Chairman, I very much appreciate the opportunity
to respond. I think that probably it is better that you finish the
discussion.
Mr. HENSARLING. Okay. The gentleman declines.
The SPEAKER pro tempore. Does the gentleman wish to yield back?
parliamentary inquiries
Mr. [Mick] MULVANEY [of South Carolina]. Parliamentary inquiry,
Mr. Speaker.
The SPEAKER pro tempore. Does the gentleman from Texas yield to
the gentleman from South Carolina?
Mr. HENSARLING. Yes, I yield to the gentleman from South
Carolina for his parliamentary inquiry.
Mr. MULVANEY. If this is not dilatory, what is the effect of
passing this motion to recommit?
I so often hear the preface, ``This doesn't send it back to
committee; it doesn't kill the bill.''
The SPEAKER pro tempore. If adopted, the motion would recommit
the bill back to committee.
Mr. MULVANEY. So passing this motion to recommit would send
this bill back to committee?
The SPEAKER pro tempore. That is correct.
Mr. MULVANEY. For how long?
The SPEAKER pro tempore. The motion does not put a time limit
on the committee to consider the bill.
Mr. MULVANEY. Fair enough.
Further parliamentary inquiry.
The SPEAKER pro tempore. The gentleman will state his
parliamentary inquiry.
Mr. MULVANEY. Does the person offering this motion represent to
this body that they are in favor of this motion in order to
qualify?
The SPEAKER pro tempore. The gentlewoman qualified by stating
her opposition to the bill.
Mr. MULVANEY. Fair enough.
Thank you, Mr. Speaker.
The SPEAKER pro tempore. The gentleman from Texas may continue.
Mr. HENSARLING. Again, Mr. Speaker, I would say we are having a
debate on the underlying bill that has been vigorously debated on
both sides.
The motion to recommit, if people are genuinely interested in
looking for an opportunity for an amendment process that was denied
as the discharge petition came to the floor.
I have served under many committee chairmen on the Financial
Services Committee. I have never known one to bring a bill through
committee that was not supported by a majority of their members,
and I did not bring this bill because it was not supported by a
majority of Republican members.
I understand the ability to use this discharge petition; and if
people are looking for opportunities to amend, I wish it would have
been done in the discharge petition.
But if it is the will of the House to send this to committee,
the committee has had three different hearings on the Ex-Im Bank
already--a couple of them in conjunction with the Oversight and
Government Reform Committee--and I would be happy to have even more
hearings on the subject and listen to the new points that have been
brought about by this debate.
I yield to the gentleman from South Carolina (Mr. Mulvaney).
parliamentary inquiry
Mr. MULVANEY. Mr. Speaker, I rise for the purpose of making
another parliamentary inquiry.
The SPEAKER pro tempore. The gentleman will state his
parliamentary inquiry.
Mr. MULVANEY. The reason I am confused is, I do so often hear
that introduction, the MTRs won't kill; it won't send it to
committee; it will proceed immediately forthwith to the House for a
vote.
So here is my question on a parliamentary inquiry basis. If the
MTR is passed, I understand from your previous ruling that the bill
goes back to committee. Is it amendable in committee? Or does it
immediately return forthwith to the House for a vote?
The SPEAKER pro tempore. The bill would return to the committee
for its consideration.
Mr. MULVANEY. And the committee has full control over that
piece of legislation?
The SPEAKER pro tempore. The committee would have the bill
before it again.
Mr. HENSARLING. Mr. Speaker, again, I appreciate the gentleman
from South Carolina making his parliamentary inquiries. I think it
has helped clarify the matter.
At this point, if it is the will of the House to send this back
to committee, I look forward to the vote and would be very happy to
reconsider this in committee.
I yield back the balance of my time.
parliamentary inquiry
Ms. MAXINE WATERS of California. Mr. Speaker, parliamentary
inquiry.
I wish the Chair would clarify that there will be a vote taken
on the motion to recommit and that, should that fail, this will not
go back to the committee under any circumstances. Is that correct?
The SPEAKER pro tempore. If the motion is not adopted, the bill
will not return to committee.
Ms. MAXINE WATERS of California. Well, if I may, you just said
what I said in reverse. And I just wanted it to be clear.
As the chairman of the committee tried to state that he would
be willing to hold hearings and do what he has not done as we have
tried to consider this, that if, in fact, this body does not
support it going back to committee, he has no opportunity to try to
do what he has not done in the process. Is that correct?
The SPEAKER pro tempore. If the motion is not adopted, the
Chair plans to proceed. The next step would be the question of
passage of the bill.
Ms. MAXINE WATERS of California. Thank you, Mr. Speaker.
The SPEAKER pro tempore. Without objection, the previous
question is on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to
recommit.
The question was taken; and the Speaker pro tempore announced
that the noes appeared to have it.
Mr. HENSARLING. Mr. Speaker, on that I demand the yeas and
nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and
the order of the House of today, further proceedings on this
question will be postponed.
vacating demand for yeas and nays on motion to recommit
Mr. HENSARLING. Mr. Speaker, I ask unanimous consent to
withdraw my request for the yeas and nays on the motion to recommit
to the end that the motion stand disposed of by the voice vote
thereon.
The SPEAKER pro tempore. Without objection, the ordering of the
yeas and nays is vacated, and pursuant to the earlier vote by
voice, the motion is not adopted.
There was no objection.
The SPEAKER pro tempore. The question is on the passage of the
bill.
The question was taken; and the Speaker pro tempore announced
that the noes appeared to have it.
Ms. MAXINE WATERS of California. Mr. Speaker, on that I demand
the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX,
further proceedings on this question will be postponed.
parliamentary inquiry
Mr. HENSARLING. Mr. Speaker, parliamentary inquiry.
The SPEAKER pro tempore. The gentleman will state his
parliamentary inquiry.
Mr. HENSARLING. Since I withdrew the request for the yeas and
nays on the motion to recommit, then would it be possible for the
ranking member, the gentlewoman from California, to withdraw her
request for the yeas and nays on the underlying bill, should she so
choose?
Ms. MAXINE WATERS of California. Mr. Speaker, that is wishful
thinking on the part of the chairman. I will not.
Sec. 2.4 In response to a parliamentary inquiry, the Speaker confirmed
that Delegates and the Resident Commissioner have the right to
object to unanimous-consent requests.
On June 29, 1984,(84) the Resident Commissioner from
Puerto Rico objected to a unanimous-consent request (an action which
was the subject of subsequent parliamentary inquiries):
---------------------------------------------------------------------------
84. 130 Cong. Rec. 20259-67, 98th Cong. 2d Sess. See also 6 Cannon's
Precedents Sec. 241.
---------------------------------------------------------------------------
CORRECTING TECHNICAL ERRORS IN THE ENROLLMENT OF H.R. 4170, TAX
REFORM ACT OF 1983
Mr. [Sam] GIBBONS [of Florida]. Mr. Speaker, I ask unanimous
consent to take from the Speaker's table the concurrent resolution
(H. Con. Res. 328) entitled ``Concurrent resolution to correct
technical errors in the enrollment of the bill H.R. 4170,'' with a
Senate amendment thereto, and concur in the Senate amendment.
The Clerk read the title of the concurrent resolution. . . .
The SPEAKER.(85) Is there objection to the initial
request of the gentleman from Florida?
---------------------------------------------------------------------------
85. Thomas O'Neill (MA).
---------------------------------------------------------------------------
Mr. [Baltasar] CORRADA [of Puerto Rico]. Mr. Speaker, reserving
the right to object, I would like to know if in this technical
amendment a clarification was made to reflect the true intent of
the conferees that the $75 million provided through December 31,
1984, under the redistillation program for Puerto Rico, rebates of
excise taxes, would also allow the cane neutral spirits program to
be included under those provisions?
Mr. GIBBONS. Mr. Speaker, if the gentleman will yield, no
changes were made by the Senate to accomplish that end.
Mr. CORRADA. Then, Mr. Speaker, I object.
The SPEAKER. Objection is heard.
Mr. GIBBONS. Mr. Speaker, I ask unanimous consent to speak for
1 minute.
The SPEAKER. Is there objection to the request of the gentleman
from Florida?
There was no objection.
parliamentary inquiry
Mr. [William] FRENZEL [of Minnesota]. Mr. Speaker, I have a
parliamentary inquiry.
The SPEAKER. The gentleman will state it.
Mr. FRENZEL. Mr. Speaker, does the Delegate have the right to
object?
The SPEAKER. A Delegate does have the right to object to a
unanimous-consent request.
Sec. 2.5 In response to parliamentary inquiries, the Clerk (as
presiding officer on opening day of a new Congress) confirmed that
Delegates-elect and the Resident Commissioner-elect are ineligible
to vote in the election of the Speaker of the House.
On January 6, 1999,(86) in response to parliamentary
inquiries, the Clerk confirmed that only Members-elect may vote in the
election of the Speaker:
---------------------------------------------------------------------------
86. 145 Cong. Rec. 43, 106th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk.(87) The Honorable J. Dennis Hastert, a
Representative-elect from the State of Illinois, and the Honorable
Richard A. Gephardt, a Representative-elect from the State of
Missouri, have been placed in nomination.
---------------------------------------------------------------------------
87. Jeffrey J. Trandahl.
---------------------------------------------------------------------------
Are there further nominations?
There being no further nominations, the Clerk will appoint
tellers.
The Clerk appoints the gentleman from California (Mr. Thomas),
the gentleman from Connecticut (Mr. Gejdenson), the gentlewoman
from New Jersey (Mrs. Roukema), and the gentlewoman from Ohio (Ms.
Kaptur).
The tellers will come forward and take their seats at the desk
in front of the Speaker's rostrum.
The roll will now be called, and those responding to their
names will indicate by surname the nominee of their choice.
The reading clerk will now call the roll.
The tellers having taken their places, the House proceeded to
vote for the Speaker.
parliamentary inquiry
Mr. [Carlos] ROMERO-BARCELO [of Puerto Rico] (during the vote).
Have we been eliminated already? Have we been eliminated from the
voting procedure?
The Clerk. Delegates and the Resident Commissioners are not
qualified to vote.
Mr. ROMERO-BARCELO. We have always been qualified to vote.
The Clerk. That is not the case.
Mr. ROMERO-BARCELO. What is that?
The Clerk. That is not the case.
Mr. ROMERO-BARCELO. Yes. We voted the last time.(88)
---------------------------------------------------------------------------
88. Parliamentarian's Note: Contrary to the assertion made here,
Delegates-elect and the Resident Commissioner-elect did not
vote in the election of Speaker in the 105th Congress. See 143
Cong. Rec. 117, 105th Cong. 1st Sess. (Jan. 7, 1997).
---------------------------------------------------------------------------
parliamentary inquiry
Mr. [Patrick] KENNEDY of Rhode Island. Mr. Clerk, would the
Clerk respond to a parliamentary inquiry?
The Clerk. The gentleman will state his inquiry.
Mr. KENNEDY of Rhode Island. The parliamentary inquiry for the
Clerk is for the delegates who represent American citizens. Where
does that vote come today? Will they not be allowed to vote for
Speaker of this House? The Member from Puerto Rico represents 4
million American citizens.
The Clerk. Representatives-elect are the only individuals
qualified to vote in the election of the Speaker.
Sec. 2.6 A resolution proposing to permit the Delegate from the
District of Columbia to cast votes in the full House on articles of
impeachment directed at the President was held to constitute a
change in House rules, and thus did not qualify as a question of
the privileges of the House.
On December 18, 1998,(89) the Delegate from the District
of Columbia offered House Resolution 613, which was determined by the
Speaker pro tempore not to constitute a valid question of privilege:
---------------------------------------------------------------------------
89. 144 Cong. Rec. 27825-27, 105th Cong. 2d Sess.
---------------------------------------------------------------------------
PRIVILEGES OF THE HOUSE--PROVIDING VOTE FOR THE DELEGATE TO
CONGRESS FROM THE DISTRICT OF COLUMBIA IN CONSIDERATION OF
PRESIDENTIAL IMPEACHMENT RESOLUTIONS
Ms. [Eleanor] NORTON [of District of Columbia]. Mr. Speaker, I
rise to offer a privileged resolution that is at the desk.
The Clerk read the resolution, as follows:
H. Res. 613
Whereas rule IX of the Rules of the House of Representatives provides
that questions of privilege shall arise whenever the rights of the House
collectively or the Members individually in their representative capacity
are affected;
Whereas under the precedents, customs, and traditions of the House
pursuant to rule IX, a question of privilege has arisen in cases involving
the constitutional prerogatives of the House and of Members of the House;
and
Whereas the House is prepared to consider a resolution impeaching the
President, and the Delegate to the Congress from the District of Columbia
seeks to assert the constitutional prerogative to cast a vote in the
consideration of the resolution: Now, therefore, be it
Resolved,
SECTION 1. PROVIDING VOTE FOR DELEGATE FROM THE DISTRICT OF COLUMBIA IN
CONSIDERATION OF PRESIDENTIAL IMPEACHMENT RESOLUTIONS.
Pursuant to section 2 of article I of the Constitution and the twenty-
third article of amendment thereto granting the people of the District of
Columbia the right to vote in presidential elections, the Delegate to the
Congress from the District of Columbia shall be permitted to cast a vote in
the House of Representatives in the same manner as a member of the House in
the consideration by the House of any resolution impeaching the President
or Vice President of the United States.
SEC. 2. EFFECTIVE DATE.
Section 1 shall apply with respect to any resolution impeaching the
President or Vice President of the United States that is considered by the
House of Representatives after the adoption of this resolution.
The SPEAKER pro tempore.(90) Does any Member wish to
be heard on whether the resolution constitutes a question of the
privileges of the House?
---------------------------------------------------------------------------
90. Ray LaHood (IL).
---------------------------------------------------------------------------
Ms. NORTON. I ask to be heard, Mr. Speaker.
The SPEAKER pro tempore. The gentlewoman from the District of
Columbia is recognized.
Ms. NORTON. Mr. Speaker, most Americans do not know and most
people in the world are unaware that the residents of the Nation's
Capitol do not have any representation in the Senate and cannot
vote on this floor.
But the Constitution of the United States, in its 23rd
amendment, does give to the residents of the District the right to
vote for President and Vice President of the United States. The
same Constitution that gives the District the right to vote for
President must recognize the right of District residents to
representation for a vote on removal of the President.
I have submitted a narrowly-tailored resolution, along with a
legal memorandum, for a narrowly-tailored right. I am not here
asking for the delegate vote in the Committee of the Whole at this
time. I am not asking for a House vote. I am asking to vote only on
impeachment, in order to perfect the rights of District residents
under the 23rd amendment. The House has abundant authority to grant
me this right at this time.
Clause 2 of the 23rd amendment gives the House the power to
enforce the amendment through legislation. My resolution is that
legislation. The District clause, as this body so often reminds us,
gives Members full authority over the District of Columbia, and the
impeachment clause gives Members unilateral authority, or the sole
power of impeachment.
The 23rd amendment explicitly treats the District as a State
for purposes of electing the President and the Vice President.
I ask for this right in the name of half a million people, the
only Americans who pay Federal income taxes who do not have full
representation in the Congress. They are a third per capita in
Federal income taxes. Their one right that is explicitly mentioned
in the Constitution is the right to vote for President and Vice
President.
The decision to expel a President from office is as important
as the decision to elect the President to office. Indeed, the
decision to expel him is more momentous. There are no partial
rights in the Constitution. It is unconstitutional and irrational
to interpret the 23rd amendment to afford a vote for President, but
no vote on whether to impeach a President.
Let this process begin on a high note of fairness. In the name
of the half million American citizens who happen to live in the
Nation's Capital, I ask for the vote in these impeachment
proceedings, Mr. Speaker.
Mr. Speaker, today I introduce a resolution affording the
District of Columbia Delegate a vote in impeachment proceedings.
The House is fully empowered to enact my resolution under Article
I, Sec. 2, clause 5 of the Constitution (stating that the ``House
of Representatives . . . shall have the sole Power of
Impeachment''); the Twenty-Third Amendment affording the people of
the District of Columbia the right to vote for President of the
United States; and Article I, Sec. 8, clause 17 of the Constitution
affording Congress plenary power over the District of Columbia.
I am seeking to protect the constitutional right of District
residents to vote for President by securing a vote in the
impeachment proceedings only. My resolution is narrowly tailored
and would not be a grant of voting privileges to the Delegate in
other proceedings of the House.
American citizens living in the District of Columbia
participated in the last two presidential elections by choosing as
their electors three citizens pledged to President Clinton. Unless
Congress acts to remedy the situation under the Twenty-Third
Amendment, the District population will be the only community of
American citizens who participated in the Presidential elections of
1992 and 1996 who will have no vote at all on impeachment or
conviction.
This constitutional asymmetry not only violates the rights of
more than half a million voters; it is unnecessary. Congress has
sufficient authority under the District Clause and under the
enforcement clause of the Twenty-Third Amendment to grant the
District of Columbia Delegate to the House of Representatives a
vote in the House impeachment process on the House floor. The
Supreme Court has liberally construed enforcement clauses in all of
the suffrage amendments to vindicate the broad and central
constitutional purpose of securing equal voting and participation
rights for all Americans.
The Twenty-Third Amendment put the District of Columbia
essentially on the same level as the states for purposes of
presidential elections.
The purpose of Twenty-Third Amendment was to give Congress the
power to provide the residents of the District an equal role in
selecting the President and the Vice President. The Amendment
allows District residents to participate in presidential elections
on an equal footing with the states.
Today, this right can be fully vindicated only by reading the
Twenty-Third Amendment to permit Congress to grant the District of
Columbia Delegate a vote on the Resolution Impeaching William
Jefferson Clinton, President of the United States. Otherwise, the
political will and sovereignty of residents of the District of
Columbia in the selection of the president will be lost in
violation of the Twenty-Third Amendment.
The legislative history of the Twenty-Third Amendment does not
contradict this conclusion. Apparently because impeachment has been
so rare, there was no discussion of this problem at the time. This
is the first occasion that articles of presidential impeachment
will go to the floor of the House since the Twenty-Third Amendment
was added to the Constitution in 1961. This is a case of first
impression.
The Twenty-Third Amendment is part of our Constitution's
progressive inclusion of all ``the governed'' in the processes of
government. The Fifteenth Amendment secured the right of African-
Americans to vote. The Nineteenth Amendment extended the right to
vote to women. The Twenty-Fourth Amendment abolished the poll tax.
The Twenty-Sixth Amendment gave the right to vote to 18-year olds.
All of these suffrage amendments have been interpreted liberally to
secure the inclusion of once disenfrachised Americans. As the
Supreme Court stated in Reynolds v. Sims in 1964: ``history has
seen a continuing expansion of the scope of the right of suffrage
in this country. The right to vote freely for the candidate of
one's choice is of the essence of a democratic society, and any
restrictions on that right strike at the heart of representative
government.'' 337 U.S. 533 (1964).
This reasoning applies equally to the Twenty-Third Amendment
and American citizens who happen to live in the nation's capital.
The case for the Delegate's vote on impeachment would be harder
put if such participation had to be self-executing. But section 2
provides that, ``the Congress shall have power to enforce this
article by appropriate legislation.'' Since Congress is given the
instrumental role in activating and enforcing the Twenty-Third
Amendment, it may interpret that amendment to give the Delegate the
right to cast her vote along with the representatives of all the
other states that participated in the presidential electoral
college.
The Supreme Court has clearly treated impeachment as a
political question solely within legislative competence and
control. In Nixon v. United States, 506 U.S. 224 (1993), the Court
rejected an impeached judge's attack on Senate Impeachment Rule XI,
under which the presiding officer appoints a committee of Senators
to ``receive evidence and take testimony.'' The Court found that
this process of delegating to a committee was wholly within the
Senate's powers because the Senate has ``the sole power to try all
Impeachments.'' Article I, Section 3, Clause 6. The Court found
that the ``common sense meaning of the word `sole' is that the
Senate alone shall have authority to determine whether an
individual should be acquitted or convicted. . . . If the courts
may review actions of the Senate in order to determine whether that
body `tried' an impeached official, it is difficult to see how the
Senate would be `functioning . . . independently and without
assistance or interference.'''
Just as the Senate has the ``sole power'' to shape and control
the trial process, the House of Representatives has the ``sole
power of Impeachment'' in the first instance. Article I, Section 2,
Clause 5. As the Nixon Court itself pointed out in discussing the
nonreviewability of the Senate trail, ``the word `sole' appears
only one other time in the Constitution--with respect to the House
of Representatives' sole Power of Impeachment.'' Thus, like the
Senate, the House of Representatives is free to structure the
impeachment proceeding consistent with its own judgment of
constitutional requirements.
The Delegate's participation on the impeachment articles can
thus be accomplished by way of a House rule. Article 1, Section 5
of the Constitution generally makes ``Each House'' both ``the Judge
of the Elections, Returns and Qualifications of its own Members''
and the sole body to ``determine the Rules of its proceedings.'' As
precedent, the House unilaterally granted the Delegate from the
District of Columbia and other Delegates full power to vote in
Committee of the Whole deliberations, a decision upheld against
constitutional attack in Michel v. Anderson. This case, too,
presents little constitutional difficulty because the House is not
acting in its bicameral legislative capacity but rather in its
unilateral capacity to ``have the sole power of Impeachment'' under
Article 1, Section 2. Thus, the House must be able to design and
enforce its own rules for conducting the impeachment process.
The Supreme Court has recognized an extremely broad degree of
interpretive powers under congressional enforcement clauses found
in the Constitution's suffrage amendments. In Katzenbach versus
Morgan it upheld the power of Congress, under Section 5 of the
Fourteenth Amendment, to override a New York law and grant the
right to vote to all persons who had completed the sixth grade in
Puerto Rican schools regardless of their inability to read or write
English. The Court rejected the argument that Congress' powers
under the enforcement clause were limited only to what the
Fourteenth Amendment itself required, stating rather that: ``It is
the power of Congress which has been enlarged. Congress is
authorized to enforce the prohibitions by appropriate legislation.
Some legislation is contemplated to make the amendments fully
effective.''
The Court emphasized that Congress was acting to protect voting
rights and expressed reluctance to interfere with congressional
judgement in this field. The Court said: ``It was well within
congressional authority to say that this need of the Puerto Rican
minority for the vote warranted federal intrusion upon any state
interests served by the English literacy requirement. It was for
Congress, as the branch that made this judgement, to assess and
weigh the various conflicting considerations . . .''
The Court concluded that any legislation enacted under the
enforcement clause of the Fourteenth Amendment was permissible so
long as the enactment ```is plainly adapted to [the] end''' of
enforcing Equal Protection and ``is not prohibited by but is
consistent with `the letter and spirit of the Constitution,'''
regardless of whether Equal Protection itself dictates such a
result.
Elsewhere, the Court has also found that enforcement clauses
give the Congress the power to act to vindicate voting interests
even where a particular statutory result is not constitutionally
required. In South Carolina versus Katzenbach, the Court upheld
Congress' power under Section 2 of the Fifteenth Amendment to enact
the Voting Rights Act of 1965, which included a ban on literacy
tests, the requirement that new voting rules must be precleared,
and the use of federal voting examiners. The Court stated that
``Congress has full remedial powers to effectuate the
constitutional prohibition against racial discrimination in
voting.'' These powers are defined in these terms: ``Whatever
legislation is appropriate, that is, adapted to carry out the
objects the [Reconstruction] amendments have in view, whatever
tends to enforce submission to the prohibitions they contain, and
to secure to all persons the enjoyment of perfect equality of civil
rights and the equal protection of the laws against State denial or
invasion, if not prohibited, is brought within the domain of
congressional power.''
In Oregon versus Mitchell, the Court unanimously upheld the
Voting Rights Act Amendments of 1970, which banned literacy tests
for five years. Using a mere rationality test, the court found that
Congress could rationally have found that these measures were
needed to attack the perpetuation of racial discrimination. In City
of Rome versus United States, the Court upheld Congress' Section 2
power to ban electoral changes that are discriminatory in effect
intentional discrimination in voting. Thus, the Court found that
Congress' enforcement authority under Section 2 went beyond the
strict requirements of Section 1. The Court stated that it ``is
clear . . . that under Section 2 of the Fifteenth Amendment
Congress may prohibit practices that in and of themselves do not
violate Section 1 of the Amendment, so long as the prohibitions
attacking racial discrimination in voting are `appropriate.'''
Because the Twenty-Third Amendment is an attempt to bring
voting rights to a historically disenfranchised population, its
enforcement clause should be read in a very broad way consistent
with the Court's deference to congressional enforcement of suffrage
rights. It is also relevant that the District Clause, contained in
Article 1, Section 8, Clause 17 of the Constitution, provides that
Congress shall exercise ``exclusive Legislation in all cases
whatsoever over ``the District.'' This ``plenary power'' has been
interpreted by the Supreme Court to give Congress complete
authority over the District. There is thus ample constitutional
basis for Congress having the final authority to define the meaning
of the Twenty-third amendment, given that this is a ``case''
involving the District. The courts, at any rate, would, in all
likelihood, treat this matter as a political question solely within
the legislative competence, as impeachment is clearly a political
question, as determined by the Supreme Court in Nixon versus United
States, 506 U.S. 224 (1993).
The SPEAKER pro tempore. Are there other Members who wish to be
heard?
The Chair is prepared to rule. The resolution offered by the
gentlewoman from the District of Columbia seeks to provide the
Delegate from the District of Columbia the right to vote in the
House on a resolution of impeachment.
Pursuant to Title II, section 25(a) of the United States Code,
the Delegate to the House of Representatives from the District of
Columbia is accorded a seat in the House, with the right of debate
but not of voting.
Under rule XII of the rules of the House, the right of a
Delegate to vote is confined to committee. The Chair will state a
basic principle on proper questions of privilege as recorded on
page 366 of the House Rules and Manual.
A question of the privileges of the House may not be invoked to
affect a change in the rules or standing orders of the House.
Altering the right to vote of a delegate is tantamount to a change
in the rules of the House and is not a proper question of
privilege.
Sec. 2.7 In response to parliamentary inquiries, the Speaker confirmed
that, under the precedents of the House,(91) Delegates
and the Resident Commissioner are ineligible to sign discharge
petitions, and the Chair declines to entertain a unanimous-consent
request to that effect.
---------------------------------------------------------------------------
91. Parliamentarian's Note: On April 15, 1936, Speaker Joseph Byrns of
Tennessee held that the discharge rule required ``the exact
number of 218 Members . . . irrespective of temporary vacancies
dues to death, resignation, or other causes.'' (emphasis
added). Deschler's Precedents Ch. 18 Sec. 1.2. As Delegates and
Resident Commissioners are not counted as part of the ``total
membership of the House'' under the rule (Rule XV, clause 2(b);
House Rules and Manual Sec. 892 (2021)), they are unable to
sign discharge petitions.
---------------------------------------------------------------------------
On October 1, 2003,(92) the Chair entertained
parliamentary inquiries regarding the inability of Delegates and the
Resident Commissioner to sign discharge petitions:
---------------------------------------------------------------------------
92. 149 Cong. Rec. 23853, 108th Cong. 1st Sess.
---------------------------------------------------------------------------
CONCURRENT RECEIPT
The SPEAKER pro tempore (Mrs. [Candice] Miller of Michigan).
Under a previous order of the House, the gentlewoman from Guam (Ms.
Bordallo) is recognized for 5 minutes.
Ms. [Madeleine] BORDALLO [of Guam]. . . .
Madam Speaker, the people of Guam are shy people. It takes a
lot of courage for them to stand up in public and to speak out
their mind. So when Victor spoke to me about concurrent receipt, I
listened. He served our country with duty and honor and pride, and
now it is time for us to step up and do the same. If just one of my
colleagues will sign that discharge petition today, they will have
the deepest thanks from the people of Guam and a very grateful
Delegate who cannot sign the petition.
Mr. [Bob] FILNER [of California]. Madam Speaker, will the
gentlewoman yield?
Ms. BORDALLO. I yield to the gentleman from California.
parliamentary inquiry
Mr. FILNER. Madam Speaker, would it be in order to ask
unanimous consent to request to allow the gentlewoman to sign the
discharge petition?
The SPEAKER pro tempore. No, the Chair will not entertain that
request.
Mr. FILNER. Why is that?
The SPEAKER pro tempore. The respective rights and privileges
of the Members and Delegates are established by rules and by law;
so that unanimous consent request will not be entertained.
Mr. FILNER. Madam Speaker, I thank the gentlewoman for bringing
this up because this is an insult to her constituents, it is an
insult to her. I will say if the Democrats get control of the
House, the right to vote and sign discharge petitions, we hope,
will get back to the delegates.
Ms. BORDALLO. Madam Speaker, I thank the gentleman for his
interest and concern.
Sec. 2.8 The rank of a Delegate or Resident Commissioner on a committee
of the House may be adjusted by privileged resolution in the same
manner that the rank of a Member may be so adjusted.
On August 11, 1992,(93) the following privileged
resolution was offered to adjust the ranks of the Delegate from
American Samoa and the Resident Commissioner from Puerto Rico on the
Committee on Foreign Affairs:
---------------------------------------------------------------------------
93. 138 Cong. Rec. 23030, 102d Cong. 2d Sess.
---------------------------------------------------------------------------
ESTABLISHING RANK OF MEMBERSHIP ON COMMITTEE ON FOREIGN AFFAIRS
Mr. [Steny] HOYER [of Maryland]. Mr. Speaker, I offer a
privileged resolution (H. Res. 550) and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 550
Resolved, That Antonio J. Colorado, of Puerto Rico, elected to the
Committee on Foreign Affairs on March 17, 1992, pursuant to H. Res. 400,
shall rank after Eni F.H. Faleomavaega, of American Samoa, thereon.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 2.9 Under former practice,(94) Delegates and Resident
Commissioners were not eligible to be appointed to conference
committees, and where a Delegate was inadvertently appointed, the
House vacated the appointment by unanimous consent.
---------------------------------------------------------------------------
94. Parliamentarian's Note: At the time of this precedent, the Speaker
had no authority to appoint Delegates or Resident Commissioners
to conference committees. In the 96th Congress, the Speaker was
given authority to appoint Delegates and the Resident
Commissioner to conferences where such individuals served on
the relevant committees of jurisdiction. In the 103d Congress,
this authority was expanded to encompass any conference. See
House Rules and Manual Sec. 676 (2021).
---------------------------------------------------------------------------
On September 18, 1973,(95) the Speaker made the
following conferee appointments:
---------------------------------------------------------------------------
95. 119 Cong. Rec. 30144, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
APPOINTMENT OF CONFEREES ON S. 1141, TO PROVIDE NEW COINAGE
DESIGN FOR BECENTENNIAL OF THE AMERICAN REVOLUTION
Mr. [John] PATMAN [of Texas]. Mr. Speaker, I ask unanimous
consent to take from the Speaker's table the bill (S. 1141) an act
to provide a new coinage design and date emblematic of the
Bicentennial of the American Revolution for dollars, half dollars,
and quarter dollars, to authorize the issuance of special gold and
silver coins commemorating the Bicentennial of the American
Revolution, and for other purposes, and agree to the conference
asked by the Senate.
The SPEAKER.(96) Is there objection to the request
of the gentleman from Texas?
---------------------------------------------------------------------------
96. Carl Albert (OK).
---------------------------------------------------------------------------
Mr. [John] ROUSSELOT [of California]. Mr. Speaker, reserving
the right to object, is this just permission to go to conference?
Mr. PATMAN. Mr. Speaker, it is.
Mr. ROUSSELOT. Mr. Speaker, I withdraw my reservation of
objection.
The SPEAKER. Is there objection to the request of the gentleman
from Texas? The Chair hears none, and appoints the following
conferees: Mr. Patman, Mrs. Sullivan, Messrs. Fauntroy, Mitchell of
Maryland, Barrett, Gonzalez, Young of Georgia, Stark, Moakley,
Widnall, Wylie, Mrs. Heckler of Massachusetts, Messrs. McKinney,
Rinaldo, and Roncallo of New York.
Later that day,(97) a Member asked unanimous consent to
authorize the Speaker to appoint a Member in lieu of the Delegate from
the District of Columbia (who was ineligible to serve as a conferee
under the rules of the House at that time):
---------------------------------------------------------------------------
97. 119 Cong. Rec. 30144, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
WITHDRAWAL OF APPOINTMENT AS CONFEREE AND APPOINTMENT AS
CONFEREE ON S. 1141 TO PROVIDE NEW COINAGE DESIGN AND DATE
COMMEMORATING BICENTENNIAL OF AMERICAN REVOLUTON
Mr. PATMAN. Mr Speaker, prior to the Speaker's appointment of
conferees on the bill S. 1141 today I had inadvertently recommended
that the Delegate from the District of Columbia (Mr. Fauntroy) be
named as a conferee.
I therefore ask unanimous consent that the Speaker designate a
Member as a conferee in lieu of the Delegate from the District of
Columbia.
The SPEAKER. Is there objection to the request of the gentleman
from Texas? The Chair hears none and appoints the gentleman from
New York (Mr. Koch) as a conferee.
Sec. 2.10 Under former practice, Delegates and Resident Commissioners
were not eligible to be appointed to select committees, and
unanimous consent was required to permit the Speaker to make such
an appointment.
Although the standing rules of the House have allowed the Speaker
to appoint Delegates and Resident Commissioners to select committees
since the 96th Congress, prior to this time unanimous consent was
required to authorize the Speaker to make such appointments (as was
done on September 21, 1976):(98)
---------------------------------------------------------------------------
98. 122 Cong. Rec. 31673, 94th Cong. 2d Sess. For a similar instance
involving the Resident Commissioner form Puerto Rico, see 123
Cong. Rec. 33763-64, 95th Cong. 1st Sess. (Oct. 14, 1977).
---------------------------------------------------------------------------
AUTHORIZING THE SPEAKER TO APPOINT THE DELEGATE FROM THE
DISTRICT OF COLUMBIA AS ONE OF THE MEMBERS OF THE SELECT
COMMITTEE AUTHORIZED BY HOUSE RESOLUTION 1540
Mr. [Richard] BOLLING [of Missouri]. Mr. Speaker. I ask
unanimous consent that the Speaker be authorized to appoint the
delegate from the District of Columbia as one of the members of the
select committee authorized by House Resolution 1540.
The SPEAKER.(99) Is there objection to the request
of the gentleman from Missouri?
---------------------------------------------------------------------------
99. Carl Albert (OK).
---------------------------------------------------------------------------
There was no objection.
Sec. 2.11 Inaugural instance of Delegates and the Resident Commissioner
voting in the Committee of the Whole pursuant to clause 2 of rule
XII (now clause 3(a) of rule III).(100)
---------------------------------------------------------------------------
100. House Rules and Manual Sec. 675 (2021).
---------------------------------------------------------------------------
On February 3, 1993,(101) Delegates and the Resident
Commissioner voted on an amendment in the Committee of the Whole:
---------------------------------------------------------------------------
101. 139 Cong. Rec. 2035-36, 2038, 2041, 103d Cong. 1st Sess.
---------------------------------------------------------------------------
The vote was taken by electronic device, and there were--ayes
187, noes 244, not voting 4, as follows:
[Roll No. 15]
AYES--187
Allard Goodling Neal (NC)
Archer Goss Nussle
Armey Grams Orton
Bachus (AL) Grandy Oxley
Baker (CA) Greenwood Packard
Baker (LA) Gunderson Paxon
Ballenger Hall (TX) Payne (VA)
Barcia Hamilton Penny
Barrett (NE) Hancock Peterson (MN)
Bartlett Hansen Petri
Barton Hastert Pickett
Bateman Hayes Pickle
Bentley Hefley Pombo
Bereuter Herger Porter
Bilirakis Hobson Pryce (OH)
Bliley Hoekstra Quillen
Blute Hoke Quinn
Boehner Horn Ramstad
Bonilla Houghton Regula
Brewster Huffington Ridge
Bunning Hunter Roberts
Burton Hutchinson Rogers
Buyer Hyde Rohrabacher
Callahan Inglis Roth
Calvert Inhofe Rowland
Camp Istook Royce
Canady Johnson (CT) Santorum
Carr Johnson, Sam Schaefer
Castle Kasich Schiff
Clinger Kim Sensenbrenner
Coble King Shaw
Collins (GA) Kingston Shuster
Combest Knollenberg Sisisky
Condit Kolbe Skeen
Cox Kopetski Slattery
Crane Kyl Smith (MI)
Crapo Lancaster Smith (OR)
Cunningham Lazio Smith (TX)
de la Garza Leach Solomon
Deal Levy Spence
DeLay Lewis (CA) Stearns
Dickey Lewis (FL) Stenholm
Doolittle Lightfoot Stump
Dornan Linder Sundquist
Dreier Livingston Talent
Duncan Lloyd Tauzin
Dunn Manzullo Taylor (MS)
Edwards (TX) McCandless Taylor (NC)
Emerson McCollum Thomas (CA)
Everett McCrery Thomas (WY)
Ewing McDade Torkildsen
Fawell McHugh Upton
Fields (TX) McInnis Valentine
Fowler McKeon Vucanovich
Franks (CT) McMillan Walker
Gallegly Meyers Walsh
Gallo Mica Weldon
Gekas Michel Whitten
Geren Miller (FL) Wolf
Gilchrest Molinari Young (FL)
Gillmor Montgomery Zeliff
Gingrich Moorhead
Goodlatte Myers
NOES--244
Abercrombie Gonzalez Owens
Ackerman Gordon Pallone
Andrews (ME) Green Parker
Andrews (NJ) Gutierrez Pastor
Andrews (TX) Hall (OH) Payne (NJ)
Applegate Hamburg Pelosi
Bacchus (FL) Harman Peterson (FL)
Baesler Hastings Pomeroy
Barlow Hefner Poshard
Barrett (WI) Hilliard Price (NC)
Becerra Hinchey Rahall
Beilenson Hoagland Rangel
Berman Hochbrueckner Ravenel
Bevill Holden Reed
Bilbray Hoyer Reynolds
Bishop Hughes Richardson
Blackwell Hutto Roemer
Boehlert Inslee Romero-Barcelo (PR)
Bonior Jacobs Ros-Lehtinen
Borski Jefferson Rose
Boucher Johnson (GA) Rostenkowski
Brooks Johnson (SD) Roukema
Browder Johnson, E. B. Roybal-Allard
Brown (CA) Johnston Rush
Brown (FL) Kanjorski Sabo
Brown (OH) Kaptur Sanders
Bryant Kennedy Sangmeister
Byrne Kennelly Sarpalius
Cantwell Kildee Sawyer
Cardin Kleczka Saxton
Chapman Klein Schenk
Clay Klink Schroeder
Clayton Klug Schumer
Clement Kreidler Scott
Clyburn LaFalce Serrano
Coleman Lambert Sharp
Collins (IL) Lantos Shays
Collins (MI) LaRocco Shepherd
Conyers Laughlin Skaggs
Cooper Lehman Skelton
Coppersmith Levin Slaughter
Costello Lewis (GA) Smith (IA)
Coyne Lipinski Smith (NJ)
Cramer Long Snowe
Danner Lowey Spratt
Darden Machtley Stark
de Lugo (VI) Maloney Stokes
DeFazio Mann Strickland
DeLauro Manton Studds
Dellums Margolies-Mezvinsky Stupak
Derrick Markey Swett
Deutsch Martinez Swift
Diaz-Balart Matsui Synar
Dicks Mazzoli Tanner
Dingell McCloskey Tejeda
Dixon McCurdy Thornton
Dooley McDermott Thurman
Durbin McHale Torres
Edwards (CA) McKinney Torricelli
Engel McNulty Towns
English (AZ) Meehan Traficant
English (OK) Meek Tucker
Eshoo Menendez Underwood (GU)
Evans Mfume Unsoeld
Faleomavaega (AS) Miller (CA) Velazquez
Fazio Mineta Vento
Fields (LA) Minge Visclosky
Filner Mink Volkmer
Fingerhut Moakley Waters
Fish Mollohan Watt
Flake Moran Waxman
Foglietta Morella Wheat
Ford (MI) Murphy Williams
Frank (MA) Murtha Wilson
Franks (NJ) Nadler Wise
Frost Natcher Woolsey
Furse Neal (MA) Wyden
Gejdenson Norton (DC) Wynn
Gephardt Oberstar Yates
Gibbons Obey Zimmer
Gilman Olver
Glickman Ortiz
NOT VOTING--4
Ford (TN) Washington
Henry Young (AK)
parliamentary inquiry
Mr. [Newt] GINGRICH [of Georgia]. Madam Chairman, it is 8:10. I
simply want to clarify, on a parliamentary inquiry, whether or not
on the last vote, if we count only the States which have been
admitted to the Union, the vote was 187 to 239, and that in fact
the additional 5 votes include four Delegates whose territories do
not pay taxes to the U.S. Treasury and one Delegate, so that all
five are Delegates, not currently States, but the vote among the
States, those Representatives representing the State, was actually
187 to 239. I simply want to clarify for the Record that that was
the vote among Representatives.
The CHAIRMAN.(102) The gentleman's statement which
is not a parliamentary inquiry will appear in the Record.
---------------------------------------------------------------------------
102. Barbara Kennelly (CT).
---------------------------------------------------------------------------
Under the rule, it is now in order for the gentleman from
Pennsylvania [Mr. Goodling] to offer his second amendment.
amendment offered by mr. goodling
Mr. [William] GOODLING [of Pennsylvania]. Madam Chairman, I
offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment offered by Mr. Goodling: Amend section 101(2)(B) to add a new
clause as follows:
(iii) any employee of an employer whose absence during leave would
clearly result in substantial and grievous economic injury to the
operations of the employer or substantial endangerment to the health and
safety of other employees of the employer or the public. . . .
Mr. GINGRICH. Madam Chairman, I want to make certain that at
this point the Record would show that among those Representatives--
--
The CHAIRMAN. May the Chair ask: Is the gentleman making a
parliamentary inquiry?
parliamentary inquiry
Mr. GINGRICH. Madam Chairman, I have a parliamentary inquiry.
The CHAIRMAN. The gentleman will state it.
Mr. GINGRICH. Madam Chairman, I inquire whether it would be
accurate to state that on the last vote among those Representatives
representing States, the vote was 184 to 233 against, and among
those delegates not representing States, the vote was 0 in favor
and 5 against.
The CHAIRMAN. The vote in the Record will indicate that, and
the Chair feels that this is not a parliamentary inquiry but rather
a statement of fact.
Mr. GINGRICH. Madam Chairman, I was just inquiring of the Chair
if that is how it would show in the Record.
The CHAIRMAN. The vote will appear in the Record, sir.
Mr. GINGRICH. I thank the chairman. . . .
So the amendment was agreed to.
The result of the vote was announced as above recorded.
The CHAIRMAN. The question is on the amendment in the nature of
a substitute, as modified, as amended.
parliamentary inquiry
Mr. GINGRICH. Madam Chairman, I was going to make a
parliamentary inquiry. I am not sure what the Chair is doing, and I
think we need order before we rush through whatever the next phase
is.
The CHAIRMAN. The gentleman was on his feet, and the gentleman
will state his parliamentary inquiry.
Mr. GINGRICH. Madam Chairman, my parliamentary inquiry was,
were there any votes cast on that amendment which were in violation
of article I, section 2 of the Constitution?
The CHAIRMAN. That is not a parliamentary inquiry.
Mr. GINGRICH. I would ask the Chair, it is not a legitimate
inquiry to ask the nature of the votes which were just cast? At
what point is it appropriate to ask the nature of the votes which
were just cast, I would ask the Chair?
The CHAIRMAN. The Chair replies that the votes were cast in
accordance with the rules as adopted by this House.
Mr. GINGRICH. That was not my question, Madam Chairman. I would
ask the Chair, all I am seeking, article I, section 2, simply
mentions Representatives of the States.
I would make my inquiry differently, Madam Chairman. I would
inquire of the Chair, were there any votes cast on the last
amendment which were cast by people not Representatives of the
States?
The CHAIRMAN. The Chair responded when the question was asked
in another manner previously. The vote was announced. The vote will
appear in the Record as was taken and was announced.
Mr. GINGRICH. I misunderstood the Chair. The Chair, I thought,
reassured me on the two previous occasions that in the Record it
would show both the votes by State Representatives and the votes by
delegates as clearly separate. Maybe I did not hear in the
confusion, but did the Chair announce the votes? I must have
misunderstood.
The CHAIRMAN. The Chair announced that the votes would appear
in the Record tomorrow as cast under the rules.
Mr. GINGRICH. I would ask the Chair, meaning lumped together,
so that the Representatives and delegates would be lumped together
in one vote?
The CHAIRMAN. It would be alphabetical; the ayes and then the
noes.
Mr. GINGRICH. I thank the Chair for allowing me to ask that.
Sec. 2.12 When a vote is taken in the Committee of the Whole, and the
votes of the Delegates and the Resident Commissioner are found to
be determinative of the outcome,(103) the Committee of
the Whole rises automatically, the vote is recapitulated in the
House (where the Delegates and the Resident Commissioner are
ineligible to vote), and the decision of the Committee of the Whole
may be reversed.
---------------------------------------------------------------------------
103. Parliamentarian's Note: The House essentially utilizes a ``but
for'' test to determine whether the votes of the Delegates and
the Resident Commissioner were decisive (i.e., but for the
votes of the Delegates and the Resident Commissioner, the
outcome of the vote would have been different).
---------------------------------------------------------------------------
On March 17, 1994,(104) an amendment in the nature of a
substitute was considered in the Committee of the Whole and rejected.
Pursuant to clause 2(d) of rule XXIII (now clause 6(h) of rule
XVIII),(105) the Committee rose automatically and the chair
of the Committee of the Whole reported to the House that the votes of
the Delegates and the Resident Commissioner had been decisive in
rejecting the amendment. Thus, pursuant to the rule, the vote was taken
again in the House, and the amendment in the nature of a substitute was
adopted:
---------------------------------------------------------------------------
104. 140 Cong Rec. 5341, 5351-52, 103d Cong. 2d Sess. For a similar
instance later in the same Congress, see 140 Cong. Rec. 14382-
84, 103d Cong. 2d Sess. (June 24, 1994).
105. House Rules and Manual Sec. 985 (2021).
---------------------------------------------------------------------------
amendment in the nature of a substitute offered by mr. barton
of texas
Mr. [Joe] BARTON of Texas. Mr. Chairman, I offer an amendment
in the nature of a substitute.
The CHAIRMAN.(106) The Clerk will report the
amendment in the nature of a substitute.
---------------------------------------------------------------------------
106. David Skaggs (CO).
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment in the nature of a substitute offered by Mr. Barton of Texas:
Strike all after the resolving clause and insert the following:
That the following article is proposed as an amendment to the Constitution
of the United States, which shall be valid to all intents and purposes as
part of the Constitution if ratified by the legislatures of three-fourths
of the several States within seven years after its submission to the States
for ratification:
``Article--
``Section 1. Prior to each fiscal year, Congress shall adopt a statement
of receipts and outlays for such fiscal year in which total outlays are not
greater than total receipts . . .
recorded vote
Mr. BARTON of Texas. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes
213, noes 215, not voting 10, as follows:
[Roll No. 62] . . .
So the amendment in the nature of a substitute was rejected.
The result of the vote was announced as above recorded.
The CHAIRMAN. Pursuant to clause 2(d) of rule XXIII the
Committee rises.
Pursuant to clause 2(d) of rule XXIII the Committee rose; and
the Speaker pro tempore [Mr. Bonior] having assumed the chair, Mr.
Skaggs, Chairman of the Committee of the Whole House on the State
of the Union, reported that that Committee, having had under
consideration the joint resolution (House Joint Resolution 103)
proposing an amendment to the Constitution to provide for a
balanced budget for the Government and for greater accountability
in the enactment of tax legislation, directs him to report that on
a recorded vote on an amendment the votes of the delegates and of
the Resident Commissioner from Puerto Rico were decisive.
The SPEAKER pro tempore.(107) The Clerk will report
the amendment.
---------------------------------------------------------------------------
107. David Bonior (MI).
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment in the nature of a substitute offered by Mr. Barton of Texas:
Strike all after the resolving clause and insert the following:
That the following article is proposed as an amendment to the
Constitution of the United States, which shall be valid to all intents and
purposes as part of the Constitution if ratified by the legislatures of
three-fourths of the several States within seven years after its submission
to the States for ratification:
``Article--
``Section 1. Prior to each fiscal year, Congress shall adopt a statement
of receipts and outlays for such fiscal year in which total outlays are not
greater than total receipts. . . .
Mr. [Robert] WALKER [of Pennsylvania] (during the reading). Mr.
Speaker, I ask unanimous consent that the amendment be considered
as read and printed in the Record.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Pennsylvania?
There was no objection.
The SPEAKER pro tempore. Pursuant to clause 2 of rule XXIII,
the Chair will now put the question de novo on the amendment in the
nature of a substitute offered by the gentleman from Texas [Mr.
Barton].
The question was taken; and the Speaker pro tempore announced
that the ayes appeared to have it.
recorded vote
Mr. [David] PRICE of North Carolina. Mr. Speaker, I demand a
recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes
211, noes 204, not voting 18, as follows:
[Roll No. 63] . . .
So the amendment in the nature of a substitute was agreed to.
Sec. 2.13 When a vote is taken in the Committee of the Whole, and the
votes of the Delegates and the Resident Commissioner are found to
be determinative of the outcome,(108) the Committee of
the Whole rises automatically, the vote is recapitulated in the
full House (where the Delegates and the Resident Commissioner are
ineligible to vote), and the decision of the Committee of the Whole
may be affirmed.
---------------------------------------------------------------------------
108. Parliamentarian's Note: The House essentially utilizes a ``but
for'' test to determine whether the votes of the Delegates and
Resident Commissioners were decisive (i.e., but for the votes
of the Delegates and the Resident Commissioner, the outcome of
the vote would have been reversed).
---------------------------------------------------------------------------
On June 18, 2009,(109) an amendment was considered in
the Committee of the Whole and rejected. Pursuant to clause 6(h) of
rule XVIII,(110) the Committee rose automatically and the
chair of the Committee of the Whole reported to the House that the
votes of the Delegates and the Resident Commissioner had been decisive
in rejecting the amendment. Thus, pursuant to the rule, the vote was
taken in the full House, and the amendment was again rejected:
---------------------------------------------------------------------------
109. 155 Cong. Rec. 15624-26, 111th Cong. 1st Sess.
110. House Rules and Manual Sec. 985 (2021).
---------------------------------------------------------------------------
amendment no. 118 offered by mr. lewis of california
The CHAIR.(111) The unfinished business is the
demand for a recorded vote on the amendment offered by the
gentleman from California (Mr. Lewis) on which further proceedings
were postponed and on which the noes prevailed by voice vote.
---------------------------------------------------------------------------
111. Jason Altmire (PA).
---------------------------------------------------------------------------
The Clerk will redesignate the amendment.
The text of the amendment is as follows:
Amendment No. 118 offered by Mr. Lewis of California:
At the end of the bill (before the short title), insert the following:
``Sec. None of the funds made available in this Act may be used to
implement Executive Order 13492, issued January 22, 2009, titled ``Review
and Disposition of Individuals Detained at the Guantanamo Bay Naval Base
and Closure of Detention Facilities''.''
recorded vote
The CHAIR. A recorded vote has been demanded.
A recorded vote was ordered.
The CHAIR. This is a 5-minute vote.
The vote was taken by electronic device, and there were--ayes
212, noes 216, not voting 11, as follows:
[Roll No. 360] . . .
announcement by the chair
The CHAIR (during the vote). There are 2 minutes remaining in
the vote.
Ms. WASSERMAN SCHULTZ changed her vote from ``aye'' to ``no.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
The CHAIR. Pursuant to clause 6(h) of rule XVIII, the Committee
rises.
Accordingly, the Committee rose; and the Speaker pro tempore
(Mr. Holden) having assumed the chair, Mr. Altmire, Chair of the
Committee of the Whole House on the State of the Union, reported to
the House that during consideration of the bill (H.R. 2847) making
appropriations for the Departments of Commerce and Justice, and
Science, and Related Agencies for the fiscal year ending September
30, 2010, and for other purposes, pursuant to Resolution 552, the
votes cast by the Delegates and the Resident Commissioner were
decisive on a recorded vote on the amendment offered by the
gentleman from California (Mr. Lewis).
parliamentary inquiry
Mr. [Tom] PRICE of Georgia. Parliamentary inquiry, Mr. Speaker.
The SPEAKER pro tempore.(112) The gentleman will
state his inquiry.
---------------------------------------------------------------------------
112. Thomas Holden (PA).
---------------------------------------------------------------------------
Mr. PRICE of Georgia. Mr. Speaker, my understanding is that
because the vote in the Committee of the Whole was within the
margin of the number of Delegates that there are in the House, the
Committee has now risen and we're in the Whole House and the vote
that we are about to have will be the same amendment; is that
correct?
The SPEAKER pro tempore. The gentleman is correct.
Mr. PRICE of Georgia. I thank the Speaker.
The SPEAKER pro tempore. The Clerk will designate the
amendment.
The Clerk designated the amendment.
The SPEAKER pro tempore. Pursuant to clause 6(h) of rule XVIII,
the Chair will put the question to the House de novo.
The question is on the amendment.
The question was taken; and the Speaker pro tempore announced
that the noes appeared to have it.
Mr. PRICE of Georgia. Mr. Speaker, on that I demand the yeas
and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
212, nays 213, not voting 9, as follows:
[Roll No. 361] . . .
So the amendment was rejected.
The result of the vote was an announced as above recorded.
The SPEAKER pro tempore. Pursuant to clause 6(h) of rule XVIII,
the Committee will resume its sitting.
in the committee of the whole
Accordingly, the House resolved itself into the Committee of
the Whole House on the State of the Union for the further
consideration of the bill (H.R. 2847) making appropriations for the
Departments of Commerce and Justice, and Science, and Related
Agencies for the fiscal year ending September 30, 2010, and for
other purposes, with Mr. Altmire in the chair.
The Clerk read the title of the bill.
The CHAIR. When the Committee of the Whole rose earlier today,
the amendment offered by the gentleman from California (Mr. Lewis)
had been rejected on a recorded vote on which the votes cast by the
Delegates and the Resident Commissioner were decisive.
That result has since been affirmed by the House.
Sec. 2.14 In response to parliamentary inquiries, the chair of the
Committee of the Whole confirmed that the votes of the Delegates
and the Resident Commissioner were not decisive of the outcome, and
thus no revote in the House was required under the rule.
On April 20, 1994,(113) the House rejected an amendment
in the Committee of the Whole by a vote of 212 ayes to 217 noes (with
nine Members not voting). In response to parliamentary inquiries, the
chair of the Committee of the Whole confirmed that the votes of the
Delegates and the Resident Commissioner (all voting in the negative)
were not decisive of the outcome as, absent their votes, the amendment
would still have been rejected on a tie vote:
---------------------------------------------------------------------------
113. 140 Cong. Rec. 7936-37, 103d Cong. 2d Sess. For a similar instance
where, in response to parliamentary inquiries, the Chair
confirmed that the votes of the Delegates and Resident
Commissioners were not decisive of the outcome, see 139 Cong.
Rec. 10408-409, 103d Cong. 1st Sess. (May 19, 1993).
---------------------------------------------------------------------------
The CHAIRMAN.(114) All time has expired. The
question is on the amendment offered by the gentleman from Florida
[Mr. McCollum].
---------------------------------------------------------------------------
114. Robert Torricelli (NJ).
---------------------------------------------------------------------------
The question was taken; and the Chairman announced that the
noes appeared to have it.
recorded vote
Mr. [Ira] 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, as follows:
[Roll No. 131] . . .
parliamentary inquiries
Mr. [Thomas] 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 number 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.
Mr. 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 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.
Mr. [Barney] FRANK of Massachusetts. Mr. Chairman, I have a
parliamentary inquiry.
The CHAIRMAN. The gentleman will state his parliamentary
inquiry.
Mr. FRANK of Massachusetts. Is there some procedure by which
you can explain the rules to them elsewhere so we can get on with
the business?
The CHAIRMAN. That is also not a parliamentary inquiry.
Sec. 2.15 In response to parliamentary inquiries, the Speaker pro
tempore affirmed that, because of the votes of the Delegates and
the Resident Commissioner, the number of total possible votes
permitted in the Committee of the Whole differs from the total
number of possible votes permitted in the House.
On May 2, 2007,(115) the Speaker pro tempore answered
parliamentary inquiries regarding the Delegate voting rule as follows:
---------------------------------------------------------------------------
115. 153 Cong. Rec. 11081, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
Accordingly, the Committee rose; and the Speaker pro tempore
(Mr. Weiner) having assumed the chair, Mr. Kind, Acting Chairman of
the Committee of the Whole House on the state of the Union,
reported that that Committee, having had under consideration the
bill (H.R. 1429) to reauthorize the Head Start Act, to improve
program quality, to expand access, and for other purposes, pursuant
to House Resolution 348, he reported the bill back to the House
with an amendment adopted by the Committee of the Whole.
The SPEAKER pro tempore.(116) Under the rule, the
previous question is ordered.
---------------------------------------------------------------------------
116. Anthony Weiner (NY).
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Is a separate vote demanded on any amendment to the amendment
reported from the Committee of the Whole?
parliamentary inquiry
Mr. [Tom] PRICE of Georgia. Mr. Speaker, I have a parliamentary
inquiry.
The SPEAKER pro tempore. The gentleman will state his
parliamentary inquiry.
Mr. PRICE of Georgia. Mr. Speaker, isn't it true that under the
rules adopted by this House, the number of votes allowed in the
Committee of the Whole is different than the number of votes
allowed when the House sits?
The SPEAKER pro tempore. The gentleman is correct.
Mr. PRICE of Georgia. Mr. Speaker, further parliamentary
inquiry.
The SPEAKER pro tempore. The gentleman will state his inquiry.
Mr. PRICE of Georgia. Isn't it further true, Mr. Speaker, that
because of the rules, any re-vote in the House on an amendment that
passed in the Committee of the Whole with full participation, the
total votes cast would be different?
The SPEAKER pro tempore. That is correct.
Mr. PRICE of Georgia. I thank the Speaker.
The SPEAKER pro tempore. If not, the question is on the
amendment.
The amendment was agreed to.
Sec. 2.16 Inaugural instance of the Speaker appointing a Delegate to
serve as chair of the Committee of the Whole.(117)
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117. Parliamentarian's Note: The rule permitting Delegates and the
Resident Commissioner to preside over the Committee of the
Whole was adopted for the first time in the 103d Congress. This
rule was repealed in the 104th Congress, reinstated in the
110th Congress, repealed in the 112th Congress, and reinstated
in the 115th Congress. See House Rules and Manual Sec. 970
(2021).
---------------------------------------------------------------------------
On October 6, 1994,(118) the Delegate from the U.S.
Virgin Islands served as chair pro tempore of the Committee of the
Whole:
---------------------------------------------------------------------------
118. 140 Cong. Rec. 28529, 28533, 103d Cong. 2d Sess.
---------------------------------------------------------------------------
in the committee of the whole
Accordingly, the House resolved itself into the Committee of
the Whole House on the State of the Union for the further
consideration of the joint resolution (H.J. Res. 416) providing
limited authorization for the participation of United States Armed
Forces in the multinational force in Haiti and providing for the
prompt withdrawal of United States Armed Forces from Haiti, with
Mr. Derrick, Chairman pro tempore, in the chair.
The Clerk read the title of the joint resolution. . . .
Mr. [Benjamin] GILMAN [of New York]. Mr. Chairman, I am pleased
to yield 3 minutes to the gentlewoman from New York [Ms. Molinari].
The Chairman pro tempore (Mr. [Ron] de Lugo [of Virgin
Islands]) took the chair.
Ms. [Guy] MOLINARI [of New York]. Mr. Chairman, I thank the
gentleman for yielding.
Sec. 2.17 The House adopted a resolution amending the standing rules of
the House to reinstate the Delegate voting rule following its
repeal in a prior Congress.(119)
---------------------------------------------------------------------------
119. Parliamentarian's Note: The Delegate voting rule was initially
adopted by the House in the 103d Congress. It was repealed in
the following Congress after a switch in party majorities. The
rule was reinstated in the 110th Congress, as described in the
proceedings below. The rule would be subsequently repealed
again in the 112th Congress, but reinstated in the 116th
Congress. See House Rules and Manual Sec. 675 (2021).
---------------------------------------------------------------------------
On January 24, 2007,(120) the House considered House
Resolution 86 (proposing to reinstate the Delegate voting rule) on
which the question of consideration was demanded. The question of
consideration was decided in the affirmative, and the House (following
debate) adopted the resolution as follows:
---------------------------------------------------------------------------
120. 153 Cong. Rec. 2140-41, 2150-51, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
PERMITTING DELEGATES AND THE RESIDENT COMMISSIONER TO CAST
VOTES IN THE COMMITTEE OF THE WHOLE
Mr. [Alcee] HASTINGS of Florida. Madam Speaker, pursuant to
House Resolution 86, I call up the resolution (H. Res. 78) amending
the Rules of the House of Representatives to permit Delegates and
the Resident Commissioner to the Congress to cast votes in the
Committee of the Whole House on the state of the Union, and ask for
its immediate consideration.
The Clerk read the title of the resolution.
Mr. [Patrick] McHENRY [of North Carolina]. Madam Speaker, I
demand the question of consideration.
The SPEAKER pro tempore (Mrs. [Ellen] Tauscher [of
California]). The gentleman from North Carolina demands the
question of consideration. The question is: Will the House consider
the resolution?
The question was taken; and the Speaker pro tempore announced
that the ayes appeared to have it.
recorded vote
Mr. McHENRY. Madam Speaker, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes
224, noes 186, not voting 24, as follows:
[Roll No. 56] . . .
So the question of consideration was decided in the
affirmative.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table. . . .
The SPEAKER pro tempore. The Clerk will re-report the title.
The Clerk read the title of the resolution.
The SPEAKER pro tempore. Pursuant to House Resolution 86, the
resolution is considered read.
The text of the resolution is as follows:
H. Res. 78
Resolved,
SECTION 1. VOTING BY DELEGATES AND RESIDENT COMMISSIONER IN COMMITTEE OF
THE WHOLE.
(a) Permitting Votes To Be Cast.--Clause 3(a) of rule III of the Rules of
the House of Representatives is amended to read as follows:
``3. (a) In a Committee of the Whole House on the state of the Union,
each Delegate and the Resident Commissioner shall possess the same powers
and privileges as Members of the House. Each Delegate and the Resident
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 of the committee.''.
(b) Appointment of Chair.--The first sentence of clause 1 of rule XVIII
of the Rules of the House of Representatives is amended by striking ``a
Chairman'' and inserting ``a Member, Delegate, or the Resident Commissioner
as Chairman''.
(c) Repeating of Certain Votes.--Clause 6 of rule XVIII of the Rules of
the House of Representatives is amended by adding at the end the following
new paragraph:
``(h) 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 rise and
the Speaker shall put such question de novo without intervening motion.
Upon the announcement of the vote on that question, the Committee of the
Whole shall resume its sitting without intervening motion.''. . . .
Mr. HASTINGS of Florida. Madam Speaker, I yield back the
balance of my time.
The SPEAKER pro tempore. Pursuant to House Resolution 86, the
previous question is ordered on the resolution.
The question is on the resolution.
The question was taken; and the Speaker pro tempore announced
that the noes appeared to have it.
Mr. HASTINGS of Florida. Madam 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. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas
226, nays 191, not voting 18, as follows:
[Roll No. 57] . . .
Mr. CLEAVER changed his vote from ``nay'' to ``yea.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Sec. 2.18 The daily prayer has been delivered by a guest chaplain
sponsored by a Delegate.
On June 26, 1991,(121) the daily prayer was offered by a
guest chaplain(122) (the Reverend Kirk D. Monroe) who had
been sponsored by the Delegate from the District of Columbia:
---------------------------------------------------------------------------
121. 137 Cong. Rec. 16359, 102d Cong. 1st Sess.
122. For more on guest chaplains, see Precedents (Wickham) Ch. 6
Sec. 16.
---------------------------------------------------------------------------
The House met at 10 a.m.
The Reverend Kirk D. Monroe, Sr., pastor, Mount Zion United
Methodist Church, Washington, DC, offered the following prayer:
Good morning God; we come to You seeking harmony and peace. We
ask for Your sovereign protection over the limits and boundaries of
our Nation. As You have called us to mark the paths of history we
ask for Your wisdom and Your goodness to intern us toward mercy.
We pray for America, for all of her children. Please help us to
let justice roll down like waters and righteousness like an
everflowing stream. Please guide us and kindle us for fine heroic
living; please humble us when the ordinary is transformed into some
mountaintop experience for Your people.
So as the rose tells its secret in its perfume, so as the Sun
tells its secret in light and heat, may we who serve America tell
of its secret in our benevolence and our compassion.
Hear our prayer O God.
Amen. -------------------
THE JOURNAL
The SPEAKER.(123) The Chair has examined the Journal
of the last day's proceedings and announces to the House his
approval thereof.
---------------------------------------------------------------------------
123. Tom Foley (WA).
---------------------------------------------------------------------------
Pursuant to clause 1, rule I, the Journal stands approved. . .
. -------------------
THE REVEREND KIRK MONROE
(Ms. NORTON asked and was given permission to address the House
for 1 minute, and to revise and extend her remarks.)
Ms. [Eleanor] NORTON [of District of Columbia]. Mr. Speaker, it
is a personal pleasure to welcome Rev. Kirk Monroe, pastor of Mount
Zion United Methodist Church, at 175 years old this year, the
oldest black congregation in Washington. Located in Georgetown,
Mount Zion United Methodist Church is among a treasure of historic
churches located in the Nation's Capital.
It is only fitting that one of our most distinguished and
historic churches would have as its minister a distinguished and
able young man, a graduate of Howard University Divinity School,
who has been cited in the Afro-American newspaper as one of the
District's top 25 preachers.
Mr. Speaker, we in the District are grateful for Mount Zion's
spiritual and civic influence and for the energetic and excellent
contributions of Rev. Kirk Monroe.
B. Qualifications and Disqualifications
Sec. 3. Qualifications
The Constitution imposes certain qualifications on individuals
seeking to become a Member of the House of
Representatives.(1) The first such qualification is age: an
individual must be at least 25 years of age in order to become a
Member.(2) The second qualification is citizenship: an
individual must have been a citizen of the United States for seven
years.(3) The third qualification is inhabitancy: an
individual must have been an inhabitant of the state in which they were
elected at the time of the election.(4)
---------------------------------------------------------------------------
1. U.S. Const. art. I, Sec. 2, cl. 2 (``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.''). See also House
Rules and Manual Sec. Sec. 9-13 (2021).
2. U.S. Const. art. I, Sec. 2, cl. 2.
3. U.S. Const. art. I, Sec. 2, cl. 2. The Constitution further defines
citizenship as follows: ``All persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they
reside.'' U.S. Const. amend. XIV, Sec. 1.
4. U.S. Const. art. I, Sec. 2, cl. 2.
---------------------------------------------------------------------------
With respect to the first two qualifications, the Constitution does
not specify the point at which the requirements must be met. However,
it has been the practice of both Houses of Congress to admit
individuals who meet those qualifications at the time at which the oath
of office is administered and they formally assume all the rights and
privileges of Members of Congress. Thus, where a Member-elect had not
yet reached the required age at the opening of the Congress to which he
was elected, the administration of the oath was delayed until the
constitutional requirement had been met.(5) Similarly, where
a Member-elect was a U.S. citizen, but not for the required seven
years, the administration of the oath was delayed until the full seven-
year period had elapsed.(6) With respect to the third
qualification (inhabitancy), the Constitution does specify that the
qualification must be met at the time of election.(7)
---------------------------------------------------------------------------
5. See 1 Hinds' Precedents Sec. 418. For a similar case in the Senate,
see Deschler's Precedents Ch. 7 Sec. 10.2.
6. See Deschler's Precedents Ch. 7 Sec. Sec. 9.2, 10.1.
7. U.S. Const. art. I, Sec. 2, cl. 2 (Representatives must inhabit the
state ``when elected.'').
---------------------------------------------------------------------------
It has been held that the constitutional qualifications are
``exclusive of others.''(8) In other words, neither the
states (which administer the election of Members), nor the House (which
determines who is entitled to seats in the House) has the authority,
under the Constitution, to impose additional qualifications on those
seeking to become Members. With respect to states, early precedents
demonstrate a clear reluctance on the part of the House to refuse to
seat individuals who had not met state-mandated requirements for
eligibility.(9) With respect to the House itself, in 1967,
the House voted to exclude a Member-elect (Adam Clayton Powell of New
York) based on alleged corrupt activities occurring in the prior
Congress.(10) This action was challenged in Federal
court,(11) and eventually led to a Supreme Court ruling in
Powell's favor.(12) The Court held that, ``Congress is
limited to the standing qualifications prescribed in the Constitution .
. . since Adam Clayton Powell, Jr., was duly elected by the voters of
the 18th Congressional District of New York and was not ineligible to
serve under any provision of the Constitution, the House was without
power to exclude him from its membership.''(13) Similar
questions regarding the Senate's ability to exclude qualified
individuals from the Senate for campaign violations were raised in the
1940s, though without definitive conclusions.(14)
---------------------------------------------------------------------------
8. 1 Hinds' Precedents Sec. 414.
9. See, e.g., 1 Hinds' Precedents Sec. Sec. 414-417. It should be
noted that, with respect to vacancies that occur in the Senate,
the Constitution provides that ``any State may empower the
executive thereof to make temporary appointments until the
people fill the vacancies by election as the legislature may
direct.'' U.S. Const. amend. XVII. This authorization would
seem to allow state legislatures to impose additional
qualifications on those appointed to the Senate to fill a
vacancy. See Deschler's Precedents Ch. 7 Sec. 9.7 (fn. 17)
(``[a] state legislature may empower the state executive to
make temporary appointments to the Senate in the event of a
vacancy, with the legislature setting qualifications for
appointees.'').
10. See Deschler's Precedents Ch. 7 Sec. Sec. 9.1, 11.1. The issue of
the final right to the seat in question was investigated by a
committee, which recommended seating Powell but subjecting him
to fines and other disciplinary actions. This proposition was
rejected by the House. Deschler's Precedents Ch. 7 Sec. 9.3.
11. See Deschler's Precedents Ch. 7 Sec. 9.4.
12. Powell v. McCormack, 395 U.S. 486, 489 (``. . . petitioner Powell
is entitled to a declaratory judgment that he was unlawfully
excluded from the 90th Congress.'').
13. Id. at 550. For the Court's analysis of constitutional provisions
beyond age, habitancy, and citizenship that may be regarded as
qualifications of the office, see id. at 520 (fn. 41).
14. Parliamentarian's Note: In 1941, Senator William Langer of North
Dakota was accused of ``campaign fraud and conduct involving
moral turpitude.'' Deschler's Precedents Ch. 7 Sec. 9.5. As
Sen. Langer had already been sworn in at the time of the
challenge, the Senate considered the matter as an expulsion
rather than an exclusion, and the expulsion vote failed to
achieve the necessary two-thirds majority. Deschler's
Precedents Ch. 7 Sec. 11.3. In 1947, Senator Theodore Bilbo of
Mississippi was accused of ``fraudulent campaign practices''
and conspiracy ``to prevent the exercise of voting rights of
certain citizens.'' Deschler's Precedents Ch. 7 Sec. 9.6. The
issue was postponed due to Sen. Bilbo's ill health, and he died
prior to any decision by the Senate. Deschler's Precedents Ch.
7 Sec. 11.2.
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The House (and Senate) have debated the extent to which loyalty to
the United States should be considered as a relevant factor in
determining whether an individual is qualified to serve in Congress.
During the Civil War, Congress enacted the so-called ``test oath'' (or
``ironclad oath'') for civil servants and other government
employees.(15) The oath required takers to affirm that they
had never ``voluntarily borne arms against the United
States''(16) --which had the intended effect of barring most
ex-Confederates from government service. Congress eventually applied
the ``test oath'' to its own Members, and used it to exclude from
membership those who could not or would not take the
oath.(17) The 14th Amendment to the Constitution, ratified
in 1868, provided that anyone who had ``engaged in insurrection or
rebellion'' or who had ``given aid or comfort to the enemies'' of the
United States, was barred from membership in the House or
Senate.(18) Congress, by a two-thirds vote of each House,
could ``remove such disability.''(19)
---------------------------------------------------------------------------
15. 20 Stat. 502.
16. Id.
17. See 1 Hinds' Precedents Sec. Sec. 442-453.
18. U.S. Const. amend. XIV, Sec. 3. For election cases involving this
provision, see 1 Hinds' Precedents Sec. Sec. 454-463.
19. U.S. Const. amend. XIV, Sec. 3. Statutes enacted in 1872 (17 Stat.
142) and 1898 (30 Stat. 432) removed such disability for
certain groups.
---------------------------------------------------------------------------
In the aftermath of World War I, another loyalty case came to the
House with the election of Victor L. Berger, who had been convicted by
a Federal court under a wartime espionage act for distributing antiwar
materials.(20) There was no question that Berger had been
validly elected, but the House nevertheless chose to exclude Berger on
the basis of disloyalty under the 14th Amendment. In the special
election to fill the vacancy caused by Berger's exclusion, Berger was
again elected, and the House again adopted a resolution to exclude him
from membership.(21)
---------------------------------------------------------------------------
20. For descriptions of the Berger cases in the 66th Congress, see 6
Cannon's Precedents Sec. Sec. 56-59.
21. See 6 Cannon's Precedents Sec. 59. In the 68th Congress, Victor
Berger was again elected, and the House chose to seat him
without challenge. Berger also served in the 69th and 70th
Congresses.
---------------------------------------------------------------------------
The House has, on occasion, investigated the citizenship status of
a Member-elect in order to determine whether the individual has
properly met the constitutional requirement.(22) The very
first election contest to reach the House in the First Congress
involved questions as to the citizenship of the Member-
elect.(23) Naturalized citizens meet the constitutional
requirement, and there have been historical instances of the House
investigating the date of naturalization in order to confirm
eligibility.(24) In a 20th century case, the citizenship
status of a Member-elect was challenged, and the House resolved the
question by seating the Member-elect and referring the issue of the
final right to the seat to a committee.(25)
---------------------------------------------------------------------------
22. See, e.g., 1 Hinds' Precedents Sec. Sec. 424-427. For similar
citizenship qualification issues in the Senate, see 1 Hinds'
Precedents Sec. Sec. 428-430.
23. See 1 Hinds' Precedents Sec. 420.
24. See 1 Hinds' Precedents Sec. Sec. 424, 425.
25. See Deschler's Precedents Ch. 7 Sec. 10.3. No further action was
taken in the case and the Member served his full term. See
Deschler's Precedents Ch. 7 Sec. 11.4.
---------------------------------------------------------------------------
The constitutional requirement of inhabitancy has also been the
basis for challenges of, and investigations into, the qualifications of
individuals elected to the House.(26) Typically, such cases
involve individuals who maintain two residences, and the dispute is
centered on which should be considered their primary place of
habitation.(27) A distinction has been made between
``actual'' and ``legal'' residence for purposes of interpreting this
constitutional mandate.(28) The House has generally declined
to accept challenges where the individual was engaged in government
service at some location (e.g., a foreign country, or the District of
Columbia) that was not their primary residence.(29) A
contestant in an election contest has been found to be ineligible to
pursue his claim due to lack of inhabitancy in the relevant
jurisdiction.(30)
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26. For Senate cases involving the question of inhabitancy, see 1
Hinds' Precedents Sec. Sec. 437-440.
27. See, e.g., 1 Hinds' Precedents Sec. 432.
28. See 6 Cannon's Precedents Sec. 55 (newspaper correspondent living
in D.C. nevertheless maintained his legal residence in Indiana,
where he paid taxes and voted).
29. See, e.g., 1 Hinds' Precedents Sec. Sec. 433, 435. But see 1 Hinds'
Precedents Sec. 434 (State Department clerk disqualified due to
lengthy habitation in D.C. and the abandonment of any true
residence in his home state).
30. See 1 Hinds' Precedents Sec. 436.
---------------------------------------------------------------------------
The positions of Delegate and Resident Commissioner are not
constitutional offices, and therefore the qualifications for Members do
not apply.(31) Instead, the qualifications for such
positions are laid out in the statutes that create those
offices.(32) Nevertheless, these qualifications typically
mirror the constitutional qualifications for Members, including the
three attributes of age, citizenship, and inhabitancy.(33)
---------------------------------------------------------------------------
31. For more on Delegates and Resident Commissioners generally, see
Deschler's Precedents Ch. 7 Sec. 3; and Sec. 2, supra.
32. See 2 U.S.C. Sec. 25a; and 48 U.S.C. Sec. Sec. 892, 1713, 1733, and
1753. In the 27th Congress, the House investigated the
qualifications of a Delegate from the Florida Territory, and a
committee concluded: ``While not strictly or technically a
Representative, yet, considering the dignity and importance of
the office, the strongest reasons of public policy would
require that he should possess qualifications similar to those
required by a Representative.'' 1 Hinds' Precedents Sec. 423.
33. For an earlier statute requiring Delegates from certain territories
to be citizens of the United States, see 1 Hinds' Precedents
Sec. 431.
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Procedure; Distinguishing Other Requirements
A challenge to the seating of a Member-elect on the basis of
qualifications is typically made on opening day of a new
Congress.(34) If a Member-elect believes that another
Member-elect lacks the requisite qualifications, an objection may be
raised to administering the oath of office to the challenged Member-
elect. The House may then resolve the issue by: not seating the
challenged Member-elect; seating the Member-elect despite the
challenge; or seating the challenged Member-elect, but referring the
issue of the final right to the seat to a committee.(35) If
the House determines that a Member-elect does not meet the
constitutional qualifications, the oath of office is not administered,
and the Member-elect is termed ``excluded'' from the
House.(36)
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34. Parliamentarian's Note: If an individual were to be elected to a
seat in the House via special election (to fill a vacancy), a
qualifications challenge would be made when the Member-elect
arrives to take the oath.
35. For more on challenges to seating Members-elect at the organization
of a new Congress, see Precedents (Wickham) Ch. 2 Sec. 4.
36. For an earlier treatment of exclusion from the House, see
Deschler's Precedents Ch. 12 Sec. 14.
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An exclusion from the House should be distinguished from an
expulsion from the House.(37) In an expulsion proceeding,
the individual is already a sworn Member and there is no question as to
the individual's right to the seat. Therefore, the constitutional
requirement of a two-thirds vote in favor of expulsion
applies.(38) By contrast, a proposition to exclude a Member-
elect from the House may be adopted by a simple majority vote. This is
the case even where the individual has been sworn, but the question as
to the final right to the seat is still pending before the
House.(39)
---------------------------------------------------------------------------
37. For expulsion generally, see Deschler's Precedents Ch. 12 Sec. 13;
and Precedents (____) Ch. 12.
38. U.S. Const. art. I, Sec. 5, cl. 2.
39. Deschler's Precedents Ch. 12 Sec. 14 (``[A]lthough a two-thirds
vote is required to expel a Member, only a majority is required
to exclude a Member who has been permitted to take the oath of
office pending a final determination by the House of his right
to the seat.'').
---------------------------------------------------------------------------
An exclusion from the House should also be distinguished from
proceedings in the nature of an election contest.(40)
Election contests occur when there is a dispute as to whether the
individual in question was properly elected--not whether the individual
meets the constitutional requirements for membership. However, the
procedure is effectively the same: an individual determined by the
House not to have been properly elected will be barred from taking a
seat (i.e., the administration of the oath of office will not be
authorized). In cases where the contestant in an election contest bases
their challenge on the claim that the contestee is ineligible to serve
for lack of qualification, the House may treat the issue as one of
exclusion rather than a contested election.(41) If a Member-
elect is excluded from the House for failing to meet the constitutional
requirements for eligibility, the candidate receiving the next highest
number of votes cast is not entitled to the seat.(42)
---------------------------------------------------------------------------
40. For election contests generally, see Deschler's Precedents Ch. 9;
and Precedents (Smith) Ch. 9.
41. For examples of the House addressing issues of qualification in the
context of an election contest, see, e.g., Precedents (Smith)
Ch. 9 Sec. Sec. 15.4, 29.2, 30.1, and 31.5.
42. Parliamentarian's Note: Under early British practice, the opposite
rule prevailed: where a candidate for a seat in the House of
Commons was determined to be ineligible to serve, the candidate
receiving the next highest number of votes would be entitled to
the seat. However, in the United States, both Houses of
Congress have declared that the determination that an
individual elected to Congress is ineligible to serve results
in the nullification of the election and a vacancy in the seat
in question. See, e.g., 1 Hinds' Precedents Sec. Sec. 323, 326,
417, 424, 435, 450, 463, and 469; 6 Cannon's Precedents
Sec. Sec. 58, 59; and Deschler's Precedents Ch. 7 Sec. 9.
---------------------------------------------------------------------------
Finally, the Constitution mandates other requirements (apart from
qualifications) that individuals must meet in order to be admitted to
membership in the House. For example, the individual must agree to take
the oath of office, as required by article VI of the
Constitution.(43) Further, the individual must not hold an
``incompatible office''(44) at the time the oath of office
is taken.(45) Lastly, if an individual is impeached by the
House and convicted by the Senate, they may be subject to
``disqualification'' from ``any Office of honor, Trust or Profit under
the United States . . .''(46) Thus, such individuals may be
precluded from membership in the House as a consequence of their prior
impeachment and conviction.
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43. ``The Senators and Representatives . . . shall be bound by Oath or
Affirmation, to support this Constitution . . .'' U.S. Const.
art. VI, cl. 3. The form of the oath is provided by statute.
See 5 U.S.C. Sec. 3331. As the oath requires individuals to
swear or affirm that they will support and defend the
Constitution, and ``bear true faith and allegiance to the
same,'' the taking of the oath necessarily involves issues of
loyalty to the United States. However, the ``House has not
reached the question whether an express disavowal of the oath''
could serve as a bar to membership. Deschler's Precedents Ch. 7
Sec. 12. For earlier precedents regarding the relationship
between the oath and qualifications, see 1 Hinds' Precedents
Sec. Sec. 441-463. The Senate (though not the House) has
debated the question of whether competency to take the oath
(i.e., whether the individual is mentally capable of taking a
meaningful oath) should be used as a factor in determining
qualifications. See 1 Hinds' Precedents Sec. 441.
44. ``No Senator or Representative shall, during the Time for which he
was elected, be appointed to any Civil Office under the
Authority of the United States, which shall have been created,
or the Emoluments whereof shall have been encreased during such
time; and no Person holding any Office under the United States
shall be a Member of either House during his Continuance in
Office.'' U.S. Const. art. I, Sec. 6, cl. 2.
45. For more on incompatible offices generally, see Sec. 4, infra. See
also Deschler's Precedents Ch. 7 Sec. Sec. 13, 14.
46. U.S. Const. art. I, Sec. 3, cl. 7.
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Sec. 4. Incompatible Offices
The separation of powers principle inherent in the structure of the
Federal government is manifested in a variety of constitutional
provisions. One such provision is found in section 6 of article
I,(1) and delineates restrictions on Members of Congress
serving simultaneously in other government positions: ``No Senator or
Representative shall, during the Time for which he was elected, be
appointed to any Civil Office under the Authority of the United States,
which shall have been created, or the Emoluments whereof shall have
been encreased during such time; and no Person holding any Office under
the United States shall be a Member of either House during his
Continuance in Office.'' This provision ensures that powers delegated
to the different branches of government are not commingled by being
exercised by the same person.(2)
---------------------------------------------------------------------------
1. U.S. Const. art. I, Sec. 6, cl. 2; and House Rules and Manual
Sec. Sec. 96, 97 (2021).
2. In referring to this constitutional provision, an 1864 committee
report evinced the view that ``[t]he House has ever been awake
to this constitutional guaranty of its independence.'' 1 Hinds'
Precedents Sec. 492. Even earlier, in 1816, Rep. John Randolph
of Virginia ``urged that the House should be very jealous of
any invasion of these guaranties of the Constitution.'' 1
Hinds' Precedents Sec. 506.
---------------------------------------------------------------------------
The prohibition described in this constitutional provision is two-
fold. First, a Member of the House may not simultaneously serve in an
``office'' under the United States, such concurrent service being
considered incompatible with service as a Member. Second, a Member may
not be appointed to any office that was either created during the time
the Member was serving in Congress, or whose compensation was increased
during such time. This section discusses both prohibitions.
Definitions; Application
The Constitution does not precisely define an ``office'' for
purposes of determining whether service in Congress is incompatible.
Subsequent practice by the House (as well as case law laid down by the
courts) has established certain guidelines for determining whether or
not a Member may accept an additional office during their term. There
has been broad consensus that the primary offices within other branches
of the Federal government are incompatible with congressional
service.(3) So, for example, Members of Congress may not be
appointed to Cabinet positions in the executive,(4) or to
open seats in the judicial branch,(5) and may not be seated
in the Senate,(6) without first resigning their House seats.
---------------------------------------------------------------------------
3. Similarly, simultaneous service in both Houses of Congress is
impermissible. See fn. 6, infra.
4. For examples of Members of the House resigning to take positions
within the executive branch, see Deschler's Precedents Ch. 37
Sec. 4.2.
5. For examples of Members of the House resigning to assume judicial
positions, see Deschler's Precedents Ch. 37 Sec. Sec. 4.8, 4.9.
6. For examples of Members resigning their House seats in order to
serve in the Senate, see Deschler's Precedents Ch. 37
Sec. Sec. 4.3, 4.4. See also 1 Hinds' Precedents Sec. 502
(where a Member had accepted a seat in the Senate, the House
adopted a resolution declaring his House seat vacant).
---------------------------------------------------------------------------
An 1867 Supreme Court case(7) articulated certain
principles regarding what constitutes a ``public office.''
Specifically, the Court held that: ``An office is a public station, or
employment, conferred by the appointment of government. The term
embraces the ideas of tenure, duration, emolument, and
duties.''(8) In 1899, the Committee on the Judiciary
reported to the House the results of its investigation into whether
certain Members had accepted incompatible offices.(9) The
committee report relied heavily on the Hartwell analysis, including the
four elements of tenure, duration, compensation (emoluments), and
duties.(10) Additionally, the committee report cited other
authorities for the proposition that the office must confer upon the
individual ``legislative, executive, or judicial
powers''(11) or ``some of the sovereign functions of
government, to be exercised . . . for the benefit of the
public.''(12)
---------------------------------------------------------------------------
7. United States v. Hartwell, 73 U.S. 385 (1867).
8. Id. at 393.
9. See 1 Hinds' Precedents Sec. 493.
10. Id.
11. Id.
12. Id.
---------------------------------------------------------------------------
The issues of tenure and duration may be reframed as an inquiry
into the temporal nature of the position at issue. Where the position
is merely ``transient, occasional, or incidental''(13) the
office may be deemed to be compatible with service as a Member of the
House. For example, early practice showed that Members of Congress
would occasionally be appointed by the executive to undertake certain
temporary offices--inspector of post roads, examiner of land offices,
treaty negotiator, etc.--and a House committee concluded that such
temporary service (even if compensated) did not violate the
Constitution.(14) By contrast, an examination into
concurrent service in Congress and the National Guard led one House
committee to report that, ``it is apparent that a commissioned officer
in the National Guard clearly meets the definition in United States v.
Hartwell of an officer of the United States; that is, that his office
embraces the idea of tenure, duration, emoluments, and duties, and that
his duties are continuing and permanent, not occasional and
temporary.''(15)
---------------------------------------------------------------------------
13. Id.
14. See 1 Hinds' Precedents Sec. 495. In 1806, the House considered a
resolution declaring ``That a contractor under the Government
of the United States is an office within the purview and
meaning of the Constitution, and, as such, is incapable of
holding a seat in this House.'' However, the House rejected
this resolution. See 1 Hinds' Precedents Sec. 496.
15. See 6 Cannon's Precedents Sec. 60.
---------------------------------------------------------------------------
The issue of compensation (or emoluments) has been raised on
several occasions in the context of determining whether the office
under consideration is incompatible with congressional service. As
early as 1816, the House debated whether providing compensation to the
delegation negotiating the Treaty of Ghent violated the constitutional
prohibition.(16) Another war commission (the World War
Foreign Debt Commission) was the subject of similar deliberation in the
Senate in 1922.(17) There, the majority opinion of a
committee report concluded that the offices were incompatible, but
minority views, as well as the opinion of the Attorney General,
concluded otherwise, and the Senate voted to confirm the
appointments.(18) Under the Attorney General's reasoning,
the positions were compatible because ``[t]he commissioners receive no
compensation.''(19) In 1945, Congress passed a law providing
for U.S. participation in the United Nations. An amendment offered in
the House provided that no compensation would be paid to the U.S.
representative to the U.N. should such person be a Member of
Congress.(20) The legislative history of this amendment
reveals that Members believed this provision was necessary to cure
possible incompatibility under the Constitution.(21)
---------------------------------------------------------------------------
16. See 1 Hinds' Precedents Sec. 506.
17. See 6 Cannon's Precedents Sec. 64.
18. Id.
19. Id. See also 6 Cannon's Precedents Sec. 63 (service on the board of
a soldier's home was compatible as ``the members of the Board
of Managers receive no compensation.'').
20. See Deschler's Precedents Ch. 7 Sec. 13.2.
21. Id.
---------------------------------------------------------------------------
With respect to duties, it has been held that some offices require
affirmative duties that are inherently in conflict with service in
Congress. Although the office of Governor of a state is, by definition,
not an office ``under the United States,'' House precedents state that
there is ``an absolute inconsistency in the functions of the two
offices, Member of Congress and governor.''(22) But where an
office has no duties to perform, acceptance of the office by a Member
may be permitted. In one instance, a Member retained an office (Federal
tax assessor) beyond the beginning of his congressional term, but the
House concluded that the assessments had already occurred and that
therefore ``no official duty remained to be performed'' by the
Member.(23)
---------------------------------------------------------------------------
22. See 6 Cannon's Precedents Sec. 65. For an example of a Member
resigning her seat in the House in order to accept the office
of state Governor, see Sec. 4.4, infra. For an example of the
House adopting a privileged resolution to authorize the
administration of the oath to a Member-elect following
completion of his service as Governor, see Sec. 4.2, infra. For
a 1792 example of a Member assuming that acceptance of a state
judicial position rendered him ineligible for further service
in the House, see 1 Hinds' Precedents Sec. 501. For proceedings
involving concurrent service as a Member and as an elected
municipal officer (city council), see Sec. 4.3, infra. It
should be noted that any action by the House in response to a
Member or Member-elect holding a state or local office must be
carefully considered in light of the Supreme Court's holding in
Powell v. McCormack, 395 U.S. 486 (1969). See Sec. 3, supra.
23. 1 Hinds' Precedents Sec. 497.
---------------------------------------------------------------------------
Military Service
The issue of military service has long been a concern of Congress
with regard to the constitutional prohibition on incompatible offices.
The earliest precedents indicate that the House considered acceptance
of a military commission as being fundamentally incompatible with
congressional service.(24) In 1803, a Member of the House
was appointed by President Thomas Jefferson to a position in the
militia of the District of Columbia.(25) The House
subsequently voted unanimously for a resolution declaring the Member as
having forfeited his seat by this action.(26) Similar cases
in the pre-Civil War period stand for the general principle that
acceptance of a military commission automatically creates a vacancy in
the seat held by the accepting Member.(27)
---------------------------------------------------------------------------
24. Parliamentarian's Note: In an 1862 case, the Committee on Elections
had occasion to discuss the distinction between service in the
Army of the United States and service in a state militia. For
purposes of determining constitutional incompatibility, the
committee found such distinction ``of little importance. If
[the Member] was actually mustered into service of the United
States, he was, by that act, placed in an office totally
incompatible with that of Representative in Congress.'' 1
Hinds' Precedents Sec. 490.
25. See 1 Hinds' Precedents Sec. 486.
26. Id. Rep. John Randolph of Virginia ``asked the House, in the
important precedent which it was about to establish, to vote
unanimously to exclude even the shadow of executive
influence.''
27. See 1 Hinds' Precedents Sec. Sec. 487-489.
---------------------------------------------------------------------------
The issue of concurrent military and congressional service again
came before the House in the late 19th century, during both the Civil
War(28) and the Spanish-American War.(29) In the
context of the latter, the Committee on the Judiciary reported
(consistent with earlier cases) that ``the office of Member of Congress
and an officer in the Army of the United States are incompatible and
can not be held at the same time.''(30)
---------------------------------------------------------------------------
28. See, e.g., 1 Hinds' Precedents Sec. Sec. 490-492.
29. See, e.g., 1 Hinds' Precedents Sec. Sec. 493, 494.
30. 1 Hinds' Precedents Sec. 494.
---------------------------------------------------------------------------
During World War I, several Members of the House took leaves of
absence in order to attend military training exercises for possible
mobilization. In 1916, the Committee on the Judiciary was tasked with
investigating whether service in the National Guard was compatible with
congressional service. Relying on the Hartwell decision,(31)
it concluded once again that ``the seats of those Members of the House
of Representatives who shall accept commissions in the National Guard .
. . will at once become vacant.''(32) Subsequently, the
House did adopt a resolution providing for salary and clerk allowances
for such Members during their leaves of absence, subtracting any
compensation received for their Army service.(33)
---------------------------------------------------------------------------
31. United States v. Hartwell, 73 U.S. 385 (1867).
32. 6 Cannon's Precedents Sec. 60.
33. See 6 Cannon's Precedents Sec. 61.
---------------------------------------------------------------------------
During World War II, the executive played a greater role policing
the appropriate boundary between congressional service and military
service. As with previous military conflicts, Members began requesting
leaves of absence so that they could attend military training
exercises.(34) In response, the Secretary of War and the
Secretary of the Navy informed the Speaker that activation of Members
with reserve commissions would be discouraged, and that new
applications for enlistment by Members would not be
approved.(35) The President subsequently recalled Members
who had been in active military service back to
Congress.(36) Faced with the choice of serving either in the
House or in the military, some Members chose to resign their House
seats.(37) Others chose to delay their taking of the oath of
office in order to complete military service before assuming their
seats in the House.(38) Unlike in World War I, Members who
took leaves of absence for military service during World War II were
not provided congressional salary during that period.(39)
---------------------------------------------------------------------------
34. See Deschler's Precedents Ch. 7 Sec. 14.4.
35. See Deschler's Precedents Ch. 7 Sec. 14.3.
36. Id.
37. See Deschler's Precedents Ch. 7 Sec. 14.6.
38. See Deschler's Precedents Ch. 7 Sec. 14.5.
39. See Deschler's Precedents Ch. 7 Sec. 14.7.
---------------------------------------------------------------------------
An 1899 report noted that ``it is settled law that persons on the
retired list of the Army do not hold office under the United States in
the constitutional sense.''(40) However, in 1921, a Member
who was commissioned in the Army reserves requested a leave of absence
to attend military training--a request that drew objection on grounds
of possible incompatibility.(41) A statute originally
enacted in 1956 specifically provides that: ``A Reserve of the armed
forces who is not on active duty or who is on active duty for training
is deemed not an employee or an individual holding an office of trust
or profit or discharging an official function under or in connection
with the United States because of his appointment, oath, or status, or
any duties or functions performed or pay or allowances received in that
capacity.''(42) In 2003, a Member requested an indefinite
leave of absence in the expectation that he would be called up from the
Army reserves to active duty.(43)
---------------------------------------------------------------------------
40. 1 Hinds' Precedents Sec. 494.
41. See 6 Cannon's Precedents Sec. 62.
42. 5 U.S.C. Sec. 2105(d).
43. See Sec. 4.1, infra. Although the request was granted without
objection, the Member was never called up to active service.
---------------------------------------------------------------------------
Procedure; Timing
Under modern practice, issues involving incompatible offices are
typically resolved before the potential for conflict arises--either via
the resignation of the Member from the House prior to the assumption of
the other office,(44) or the resignation of a Member-elect
from a potentially incompatible position prior to taking a seat in the
House. Thus, the House often takes no cognizance of the potential
conflict beyond acknowledging the vacancy created by a Member's
resignation. In the 19th century, Members would sometimes inform the
House that they were accepting an incompatible office (with or without
explicitly resigning their House seats), and the House would pass a
resolution declaring the affected seat vacant.(45) In one
instance, the issue arose whether the adoption of such a resolution
constituted, in effect, an expulsion from the House, and would
therefore require the constitutionally-mandated two-thirds
vote.(46) However, the House sustained the Speaker's ruling
that the resolution merely declaring the vacancy should not be
construed as an expulsion from the House.(47)
---------------------------------------------------------------------------
44. See, e.g., Sec. 4.4, infra.
45. See, e.g., 1 Hinds' Precedents Sec. 487. Some older proceedings
suggested that the acceptance of an incompatible office
automatically creates a vacancy in the affected seat, without
further action by either the Member or the House. For example,
a committee report in 1898 stated that when Members accept Army
commissions, their seats ``are vacant, and have been since they
accepted their commission in the Army. The only action
necessary to so declare by resolution, as a matter of
convenience and to aid the Speaker and others in discharging
their public duties. No act or resolution of Congress can
change the legal effect of their acts.'' 1 Hinds' Precedents
Sec. 494. A 1909 committee report likewise stated that ``[W]hen
a person, while occupying one position accepts another
incompatible with the first he, ipso facto, absolutely vacates
the office and his title thereto is terminated without any
further act or proceeding.'' 6 Cannon's Precedents Sec. 65.
However, it should be noted that this theory is not in
consonance with modern practice, and issues involving possible
disqualification from service in the House should be viewed in
light of the Supreme Court's holding in Powell v. McCormack,
395 U.S. 486 (1969).
46. U.S. Const. art. I, Sec. 5, cl. 2 (``Each House may . . . punish
its Members for disorderly Behaviour, and, with the Concurrence
of two thirds, expel a Member.'').
47. 1 Hinds' Precedents Sec. Sec. 490, 504.
---------------------------------------------------------------------------
Because the constitutional prohibition on incompatible offices
applies only to simultaneous service, a relevant factor is timing,
i.e., whether the individual actually held both offices at the same
time. An individual elected to the House does not become a Member until
the term of office begins and the oath of office is
taken.(48) Thus, during the period between the certification
of the election results and the beginning of the new Congress (when the
individual is merely a ``Member-elect''), simultaneous service in an
otherwise incompatible office is permissible. A Member-elect holding an
incompatible office has until the beginning of the Congress to decide
whether to accept the House seat and resign the incompatible office, or
retain the incompatible office and decline the seat in the
House.(49) There have been numerous instances of Members of
the House(50) (and Senators)(51) retaining their
additional office beyond the start of the new Congress, and delaying
the administration of the oath of office until they had resigned the
other office.
---------------------------------------------------------------------------
48. For more on the oath of office, see Precedents (Wickham) Ch. 2.
49. ``The House has manifestly leaned to the idea that a contestant
holding an incompatible office need not make his election until
the House has declared him entitled to the seat.'' 1 Hinds'
Precedents Sec. 505. See also 1 Hinds' Precedents
Sec. Sec. 492, 498, and 499 (examples of Members resigning
incompatible offices prior to the beginning of a new Congress);
1 Hinds' Precedents Sec. 500 (example of an Army officer
elected to Congress but declining to take his seat); and
Deschler's Precedents Ch. 7 Sec. 14.6 (examples of Members
resigning their House seats to serve in the military in World
War II).
50. See Deschler's Precedents Ch. 7 Sec. 14.5. See also Sec. 4.2,
infra.
51. See 1 Hinds' Precedents Sec. 503; and Deschler's Precedents Ch. 7
Sec. 13.1.
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Creating Offices; Increasing Emoluments
The other prohibition contained in section 6 of article I of the
Constitution prevents the appointment of Members of Congress to civil
offices of the United States whose ``emoluments'' were increased by law
during the time that the individual served in Congress. The rationale
for this constitutional provision is to prohibit Members of Congress
from voting to increase the compensation of positions to which said
Members may then later be appointed.(52) The same clause of
the Constitution prohibits the appointment of Members to newly-created
positions as well, for the same concerns over possible conflicts of
interest.
---------------------------------------------------------------------------
52. Parliamentarian's Note: Although the presumed purpose of the clause
is to prevent Members of Congress from participating in the
design of government positions that they may later fill
themselves, the language of the clause speaks only to the
temporal issue: the position cannot have been created (or the
emoluments thereof increased) ``during the Time for which [the
Member of Congress] was elected.'' U.S. Const. art. I, Sec. 6,
cl. 2. Thus, some sources have argued that the resignation of a
Member of Congress does not cure the ineligibility, so long as
the relevant law was passed at some point during the term to
which such Member elected. See, e.g., 17 Op. Att'y Gen. 365
(1882). Indeed, in the very first controversy over a possible
violation of this constitutional provision, President George
Washington withdrew his appointment of a Senator to the Supreme
Court so that it could be resubmitted following the expiration
of the Senator's term (notwithstanding the fact that the
Senator had previously resigned his Senate seat). See The
Emoluments Clause: History, Law, and Precedents, CRS Report
R40124 (Jan. 7, 2009).
---------------------------------------------------------------------------
It has been held that where an increase in compensation is merely
speculative, and not a certainty, the constitutional proscription does
not apply.(53) For example, where a Member was nominated to
become Secretary of Defense, the Attorney General opined that the
procedures under the newly-enacted Federal Salary Act for increasing
the compensation of Cabinet officials did not provide a guarantee that
such an increase would actually occur.(54) Similarly, in
1937, the Senate confirmed a Senator to the Supreme Court, overriding
concerns that the new justice might eventually receive retirement
benefits that had been increased during his term in the
Senate.(55)
---------------------------------------------------------------------------
53. See Deschler's Precedents Ch. 7 Sec. 13.6.
54. Id.
55. See Deschler's Precedents Ch. 7 Sec. 13.4.
---------------------------------------------------------------------------
In order to avoid any possible controversy under this
constitutional provision, Members of Congress may choose to resign
their seats to assume the new office before the increase in
compensation becomes effective.(56) Alternatively, Congress
has on occasion passed legislation to specifically reduce or roll back
the salary of the public office at issue, so that an otherwise
ineligible Member of Congress may be appointed to that office. This
method of achieving constitutional compliance has been called the
``Saxbe fix,''(57) after Senator William Saxbe of Ohio, who
was nominated by President Richard Nixon to become Attorney General.
Congress passed a law to roll back the salary of the Attorney General
to what it had been prior to Senator Saxbe's term.(58) In
subsequent decades, the ``Saxbe fix'' would be utilized on several
occasions to reduce the compensation of executive officers in
expectation that a Member of Congress would be chosen to fill a
vacancy.(59)
---------------------------------------------------------------------------
56. See Deschler's Precedents Ch. 7 Sec. 13.5. See also Deschler's
Precedents Ch. 37 Sec. 4.8.
57. Parliamentarian's Note: Although the term ``Saxbe fix'' is often
used to describe this legislative maneuver, the method did not
originate at that time. In 1909, President William Taft
nominated Senator Philander Knox of Pennsylvania to become
Secretary of State. Because Congress had increased the
compensation for the Secretary of State during Knox's
congressional term, he was thought to be ineligible under the
Constitution. In response, Congress enacted legislation to
revert the salary back to its prior level. See The Emoluments
Clause: History, Law, and Precedents, CRS Report R40124 (Jan.
7, 2009).
58. See Deschler's Precedents Ch. 7 Sec. 13.7. See also P.L. 93-178, 87
Stat. 697.
59. Parliamentarian's Note: Since the Saxbe case in 1973, the following
additional cases have arisen: Robert Casey (a Member of the
House) was appointed to the Federal Maritime Commission, and
the salary of the commissioner position reduced by P.L. 94-195,
89 Stat. 1108; Edmund Muskie (a Senator) was appointed as
Secretary of State, and the office's salary reduced by P.L. 96-
241, 94 Stat. 343; Lloyd Bentsen (a Senator) was appointed as
Secretary of the Treasury, and the office's salary reduced by
P.L. 103-2, 107 Stat. 4; Hillary Clinton (a Senator) was
appointed as Secretary of State, and the office's salary
reduced by P.L. 110-455, 122 Stat. 5036; and Ken Salazar (a
Senator) was appointed as Secretary of the Interior, and the
office's salary reduced by P.L. 111-1, 123 Stat. 3.
---------------------------------------------------------------------------
Sec. 4.1 A Member has requested an indefinite leave of absence after
informing the Speaker that he expected to be called up from the
Army reserves to active duty.(60)
---------------------------------------------------------------------------
60. Parliamentarian's Note: Although Rep. Steve Buyer's leave of
absence was granted, he was never in fact called up to active
military service.
---------------------------------------------------------------------------
On March 20, 2003,(61) the Speaker made the following
remarks, after which Rep. Steve Buyer of Indiana's request for an
indefinite leave of absence was granted:
---------------------------------------------------------------------------
61. 149 Cong. Rec. 6958, 108th Cong. 1st Sess.
---------------------------------------------------------------------------
HOPES AND PRAYERS FOR STEVE BUYER, MEMBER OF CONGRESS, AND HIS
FAMILY AS HE DEPARTS FOR MILITARY DUTY
(Mr. HASTERT asked and was given permission to address the
House for 1 minute.)
Mr. [Dennis] HASTERT [of Illinois]. Mr. Speaker, I would like
to read into the Record a letter that I received today.
``Dear Mr. Speaker: I have been called to active duty in the
United States Army. Pending further orders, I request immediate
indefinite leave of the United States House of Representatives to
accommodate my military duties.
``Respectfully, Steve Buyer, Member of Congress''
Mr. Speaker and my colleagues, the resolution we are
considering affects one of our own today and may affect others in
the near future. Our hopes and prayers are with Steve and his
family as he prepares to depart for
Iraq. -------------------
OUR DUTY TO PROTECT AMERICA
Mr. HASTERT. Mr. Speaker, I ask unanimous consent to address
the House for 1 minute.
The SPEAKER pro tempore (Mr. [Michael] Simpson [of Idaho]).
Without objection, the gentleman from Illinois is recognized?
There was no objection.
Mr. HASTERT. Mr. Speaker, we will be considering a very
important resolution before us this evening. I rise in strong
support of that resolution, and I expect that all of my colleagues
would vote for it.
Our men and women in uniform are now engaged in an important
conflict in the country of Iraq. We are engaged with 30-some other
nations, and it involves certainly a tyrant who has defined himself
over the last 20 years.
Like my colleagues, I remember the day of September 11, 2001. I
remember standing in the front of my office waiting to get a call
from the Vice President and looking and watching an unfamiliar
phenomenon, a roll of black smoke going across the mall that I can
look down from my window and see. And I asked one of my staff, I
said, find out; that black smoke is not supposed to be there. A
minute and a half later they came in and said, well, the third
plane had gone into the Pentagon.
Little beknownst to me and the rest of us at that time, there
was a fourth plane involved, and 9 or 10 or 11 brave young men and
women brought that plane down into an empty field in southern
Pennsylvania. We know now that if it had not been for the actions
of those people, that plane would have been in the west front of
the Capitol.
That being said, many of us visited right after the World Trade
Center. We had walked the halls of the Pentagon and visited those
folks who helped pull their comrades out, some to safety, some
beyond help. We talked to the families who lost their folks in the
Pentagon, the World Trade Towers; we passed some extraordinary
legislation.
But this country suffered a huge loss that day. I think I speak
for all of us when I say that that is something that we do not want
to see visited upon this Nation again. We know that in Iraq Saddam
Hussein has weapons of mass destruction. We know that he has a
nexus to al Qaeda, and we know that that training has been going on
over an extended period of time. I believe that it is our duty,
this Nation's duty, to protect our Nation and to make sure that
that is not visited upon this Nation ever again.
The men and women whom we are about to salute and wish well
tonight and send our best thoughts and prayers to are doing a job
that nobody wants to do. Nobody wishes this to have to happen. But
in the tradition of this Nation, in the tradition of keeping this
country free, and in the tradition of trying to stabilize the
Middle East, we are doing this job. We are doing it with 30 other
nations who have decided this is the right thing to do.
Mr. Speaker, as we go through this very sober debate tonight, I
would ask for your positive consideration and positive
vote. -------------------
COMMUNICATION FROM THE HONORABLE STEVE BUYER, MEMBER OF
CONGRESS
The SPEAKER laid before the House the following communication
from the Honorable Steve Buyer, Member of Congress:
house of Representatives,
March 20, 2003.
Hon. Dennis Hastert,
Speaker, House of Representatives, H-232, The Capitol,
Washington, DC.
Dear Mr. Speaker: I have been called to active duty in the
United States Army. Pending further orders, I request immediate
indefinite leave of the House of Representatives to accommodate my
military duties.
Respectfully,
Steve Buyer,
Member of Congress -------------------
LEAVE OF ABSENCE(62)
---------------------------------------------------------------------------
62. Parliamentarian's Note: Rep. Buyer's leave of absence request was
inadvertently omitted from the Congressional Record of March
20, 2003. A note on the omission, and the request itself (as
excerpted here) was printed in a subsequent edition of the
Congressional Record. See 149 Cong. Rec. 7307, 108th Cong. 1st
Sess. (Mar. 24, 2003).
---------------------------------------------------------------------------
By unanimous consent, leave of absence was granted to:
Mr. Buyer (at the request of Mr. Hastert) for an indefinite
period of time on account of military service.
Sec. 4.2 The House has adopted a privileged resolution authorizing the
administration of the oath to a Member-elect serving as a state
Governor on a specified date following the expiration of their
state office term.
On January 6, 1987,(63) the House adopted the following
privileged resolution:
---------------------------------------------------------------------------
63. 133 Cong. Rec. 19, 100th Cong. 1st Sess. For a similar case where
the administration of the oath of office was delayed to
accommodate continued service in an incompatible office, see
Precedents (Wickham) Ch. 2 Sec. 1.7.
---------------------------------------------------------------------------
AUTHORIZING THE SPEAKER OR HIS DEPUTY TO ADMINISTER OATH OF
OFFICE TO THE HONORABLE JOSEPH E. BRENNAN AT PORTLAND, ME
Mr. [Thomas] FOLEY [of Washington]. Mr. Speaker, I offer a
resolution (H. Res. 8) and I ask unanimous consent for its
immediate consideration.
The SPEAKER pro tempore.(64) Is there objection to
the request of the gentleman from Washington.
---------------------------------------------------------------------------
64. Richard Gephardt (MO).
---------------------------------------------------------------------------
There was no objection.
The Clerk read the resolution, as follows:
H. Res. 8
Whereas Joseph E. Brennan, a Representative-elect from the State of
Maine, from the First District thereof, has been unable to appear in person
to be sworn as a Member of the House, and there being no contest or
question as to his election: Therefore be it
Resolved, That the Speaker, or deputy named by him, be. and he is hereby,
authorized to administer the oath of office to the Honorable Joseph E.
Brennan at Portland, Maine, on or after January 9, 1987, and that the said
oath be accepted and received by the House as the oath of office of the
said Joseph E. Brennan.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 4.3 The House has adopted a resolution authorizing the
administration of the oath to a Member-elect, notwithstanding her
continued service as an elected municipal official.
On November 29, 2018,(65) the House adopted the
following privileged resolution:
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65. 164 Cong. Rec. H9700 [Daily Ed.], 115th Cong. 2d Sess.
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DIRECTING THE SPEAKER TO ADMINISTER THE OATH OF OFFICE TO THE
REPRESENTATIVE-ELECT FROM THE 13TH CONGRESSIONAL DISTRICT OF
MICHIGAN
Mr. [Sander] LEVIN [of Michigan]. Mr. Speaker, I offer a
privileged resolution (H. Res. 1161) and ask for its immediate
consideration in the House.
The Clerk read the resolution, as follows:
H. Res. 1161
Resolved, That the Speaker is hereby authorized and directed to
administer the oath of office to Ms. Brenda Jones, a representative-elect
from the 13th Congressional District of Michigan.
The resolution was agreed to.
A motion to reconsider was laid on the
table. -------------------
SWEARING IN OF THE HONORABLE BRENDA JONES, OF MICHIGAN, AS A
MEMBER OF THE HOUSE
The SPEAKER.(66) Will the Representative-elect and
the members of the Michigan delegation present themselves in the
well.
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66. Paul Ryan (WI).
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All Members will rise and the Representative-elect will please
raise her right hand.
Ms. JONES of Michigan appeared at the bar of the House and took
the oath of office, as follows:
Do you solemnly swear that you will support and defend the Constitution
of the United States against all enemies, foreign and domestic; that you
will bear true faith and allegiance to the same; that you take this
obligation freely, without any mental reservation or purpose of evasion;
and that you will well and faithfully discharge the duties of the office on
which you are about to enter, so help you God.
The SPEAKER. Congratulations, you are now a Member of the 115th
Congress.
On December 6, 2018,(67) the Speaker inserted the
following extension of remarks into the Congressional Record:
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67. 164 Cong. Rec. E1601 [Daily Ed.], 115th Cong. 2d Sess. The
Speaker's clarification that a question of constitutional
incompatibility was not presented by these circumstances is
consistent with the statement recorded in Deschler's Precedents
Ch. 7 Sec. 13 that while, ``high state office is incompatible
with congressional membership,'' the ``Constitution does not
prohibit Members of Congress from holding state elective or
appointive offices.'' As noted (see fn. 22, supra), any action
taken by the House in response to a Member or Member-elect
holding state or municipal office should be carefully
considered in light of the Supreme Court's holding in Powell v.
McCormack, 395 U.S. 486 (1969). See also Sec. 3, supra.
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H. RES. 1161, RELATING TO THE ADMINISTRATION OF THE OATH TO THE
MEMBER ELECT FROM THE 13TH DISTRICT OF MICHIGAN
HON. PAUL D. RYAN
of wisconsin
IN THE HOUSE OF REPRESENTATIVES
Thursday, December 6, 2018
Mr. RYAN of Wisconsin. Mr. Speaker, on November 29, 2018, the
House by unanimous consent adopted House Resolution 1161 in advance
of the administration of the oath of office to Representative
Brenda Jones of Michigan. Representative Jones was elected on
November 6, 2018 to fill a vacancy in the 13th Congressional
District of Michigan for the remainder of the 115th Congress. Her
certificate of election was received by the House on November 29,
2018. Representative Jones also currently serves as the President
of the Detroit City Council. Representative Jones has indicated
that she will abide by guidance from the House Committee on Ethics
to minimize the conflicts that may exist with her duties as
President of the City Council during this short tenure in the
House.
The Speaker, with the concurrence of the Democratic Leader,
finds that this resolution (1) represents a narrow exception to the
restriction established by the House on January 20, 1909, that the
duties of a Member of the House and the Governor of a State are
``absolutely inconsistent'' and may not be ``simultaneously
discharged'' by the same Member and (2) does not address the
Constitutional qualifications of a Member.
Sec. 4.4 A Member submitted her resignation effective immediately prior
to taking the oath as Governor of a state.
On December 27, 2018,(68) the Chair laid before the
House the following communication from Rep. Lujan Grisham of New
Mexico:
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68. 164 Cong. Rec. H10597 [Daily Ed.], 115th Cong. 2d Sess.
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RESIGNATION FROM THE HOUSE OF REPRESENTATIVES
The SPEAKER pro tempore laid before the House the following
resignation from the House of Representatives:
House of Representatives,
Washington, DC, December 21, 2018.
Speaker Paul Ryan,
The Capitol,
Washington, DC.
Dear Speaker Paul Ryan, Serving as the Congresswoman from New
Mexico's First Congressional District has been one of the greatest
honors of my life. However, I will be sworn into office as the
Governor of New Mexico on January 1, 2019 at 12:01 a.m.
Therefore, I am resigning my Congressional seat effective
December 31, 2018 at 11:59 p.m.
Sincerely,
Michelle Lujan Grisham,
Member of Congress.
House of Representatives,
Washington, DC, December 21, 2018.
Governor Susana Martinez,
Office of the Governor,
Sante Fe, NM.
Dear Governor Martinez, Serving as the Congresswoman from New
Mexico's First Congressional District has been one of the greatest
honors of my life. However, I will be sworn into office as the
Governor of New Mexico on January 1, 2019 at 12:01 a.m.
Therefore, I am resigning my Congressional seat effective
December 31, 2018 at 11:59 p.m.
Sincerely,
Michelle Lujan Grisham,
Member of Congress.
C. Salary and Benefits
Sec. 5. Salary and Benefits; Compensation
Pursuant to article I, section 6 of the Constitution, ``Senators
and Representatives shall receive a Compensation for their Services, to
be ascertained by Law, and paid out of the Treasury of the United
States.''(1) Although virtually all funding for legislative
branch operations is provided in the annual Legislative Branch
Appropriations bill, the salaries of Members of Congress (including
Delegates and Resident Commissioners) are funded through a permanent
appropriation in law.(2) Under the 27th Amendment, no law
``varying the compensation'' of Members of Congress may take effect
until after an election of Representatives has
intervened.(3) This amendment ensures that Members cannot
vote to increase (or decrease) their own salaries directly, but only
the salaries of those elected to a subsequent Congress.(4)
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1. U.S. Const. art. I, Sec. 6, cl. 1. See also House Rules and Manual
Sec. 85 (2021).
2. 2 U.S.C. Sec. 4501. For more on the distinction between annual
``discretionary'' spending, and permanent ``mandatory'' or
``direct'' spending, see Deschler's Precedents Ch. 25;
Deschler's Precedents Ch. 41; Precedents (____) Ch. 25; and
Precedents (____) Ch. 41. Although Members' salaries are not
funded through the annual appropriations process, such bills
(most often the Legislative Branch Appropriations bill) have
often been used as vehicles for amendments dealing indirectly
with Members' compensation. See, e.g., Salaries of Members of
Congress: Recent Actions and Historical Tables, CRS Report 97-
1011 (Aug. 8, 2022).
3. U.S. Const. amend. XXVII. For House consideration of a concurrent
resolution acknowledging the successful ratification of the
27th Amendment, see Deschler's Precedents Ch. 34 Sec. 12.4.
4. For litigation involving the interaction between automatic cost-of-
living pay increases and the 27th Amendment, see Boehner v.
Anderson, 809 F. Supp. 138 (D.D.C. 1992), aff'd, 30 F.3d 156
(D.C. Cir. 1994); and Schaffer v. Clinton, 54 F. Supp. 2d 1014
(D. Colo. 1999).
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Pursuant to law, Members' salaries are paid on a monthly
basis.(5) Following their election, Members-elect who have
filed the appropriate credentials with the Clerk of the House are
entitled to compensation from the constitutionally-defined beginning of
their term (January 3) until the House formally assembles for its first
session.(6) After the first session begins, Members-elect
must take the oath of office and be sworn in before receiving their
salary.(7) If a Member-elect holds an incompatible office at
the time the House assembles, such individual may defer taking the oath
of office (in order to complete service in the other office), and is
entitled to salary back to the beginning of the term.(8) In
cases where the right to a seat is contested,(9) the House
may provide that both the contestant and the contestee receive salary
during the pendency of the contest (without regard to whether either
was permitted to take the oath).(10) In one instance, where
a Member-elect fell into a coma and was unable to take the oath of
office on opening day, the House adopted a resolution providing for
compensation in lieu of salary.(11)
---------------------------------------------------------------------------
5. 2 U.S.C. Sec. Sec. 5301, 5302.
6. Id.
7. Parliamentarian's Note: Although the statute contemplates separate
time periods that define who is entitled to compensation (e.g.,
the period between January 3 and the formal assembly of the new
Congress, the period between assembly and the swearing-in of
Members-elect, etc.), in practice these periods typically occur
in rapid sequence. For example, the opening of the 117th
Congress occurred on January 3 itself and Members were
administered the oath on that date. However, in some cases the
House has not assembled until several weeks after the beginning
of the term of office on January 3. See House Rules and Manual
Sec. 243 (2021). Similarly, while most Members-elect are sworn
in on the date that the House first assembles, there have been
innumerable instances of Members-elect failing to appear and
instead taking the oath of office at a later date. For a rare
instance of an individual elected to one Congress (but never
sworn) becoming eligible for salary upon his swearing-in at the
beginning of the next Congress, see Sec. 5.1, infra. For the
administration of the oath of office generally, see Deschler's
Precedents Ch. 2; and Precedents (Wickham) Ch. 2.
8. For more on incompatible offices, see Sec. 4, supra.
9. For election contests generally, see Deschler's Precedents Ch. 9;
and Precedents (Smith) Ch. 9.
10. See, e.g., Deschler's Precedents Ch. 7 Sec. 4.5; and Precedents
(Smith) Ch. 9 Sec. 20.1. See also 2 Hinds' Precedents Sec. 1148
(``When a Member is unseated in a contest he retains the
compensation already received and is paid his salary to the day
on which his case is decided.'').
11. See Precedents (Wickham) Ch. 2 Sec. 1.6.
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If an individual is elected to the House via a special election to
fill a vacancy, such person is entitled to salary as of the date of the
election.(12) When Members resign their seats in the House,
they are no longer entitled to salary as of the effective date of their
resignation.(13) A Member-elect excluded from the House
(i.e., not permitted to take a seat despite valid
credentials)(14) does not become a Member of the House at
that time, and is thus not entitled to salary. However, the House may
choose to authorize the payment of salary to an excluded Member-elect
pending a determination as to the final right to the
seat.(15) When a Member of the House dies, statutory
provisions describe the potential beneficiaries who would be entitled
to the deceased Members' unpaid balance of salary.(16) By
tradition, the spouse (or other close relative) of a deceased Member
typically receives a gratuity from the House equal to one year's salary
of a Member.(17)
---------------------------------------------------------------------------
12. 2 U.S.C. Sec. 5304. See also 6 Cannon's Precedents Sec. 202. Under
earlier statutes, an individual elected to the House via
special election would receive salary commencing at the point
at which the previous occupant of that seat ceased receiving
salary. See, e.g., 2 Hinds' Precedents Sec. Sec. 1148, 1155.
13. It was formerly the case that Members who resigned prior to the
adjournment of the Congress forfeited any mileage allowance for
their return to their districts. See 2 Hinds' Precedents
Sec. 1149. For resignations generally, see Deschler's
Precedents Ch. 37; and Precedents (____) Ch. 37.
14. For more on exclusion generally, see Deschler's Precedents Ch. 7
Sec. 12; and Deschler's Precedents Ch. 12 Sec. 14.
15. See Deschler's Precedents Ch. 7 Sec. 4.3. For an example of the
House authorizing salary payments to both claimants in
contested election case pending a resolution to the contest,
see Precedents (Smith) Ch. 9 Sec. 20.1.
16. 2 U.S.C. Sec. 5305.
17. See Sec. 5.2, infra. See also P.L. 117-31, 135 Stat. 309;
Deschler's Precedents Ch. 7 Sec. 4; Deschler's Precedents Ch.
38 Sec. 3.4; and 6 Cannon's Precedents Sec. 204. By law, such
payments are considered gifts only. 2 U.S.C. Sec. 4506.
---------------------------------------------------------------------------
Some Members holding leadership offices are entitled to higher
salary as compared to other Members. For example, the Speaker of the
House, the Majority Leader, and the Minority Leader, are all
compensated at a higher rate, pursuant to statute.(18)
---------------------------------------------------------------------------
18. 2 U.S.C. Sec. 4501. See also Executive Order 13866. For a bill
addressing civil service annuity benefits for Members in
leadership positions, see Precedents (Wickham) Ch. 3 Sec. 5.4;
and Precedents (Wickham) Ch. 6 Sec. 29.2. For leadership
positions generally, see Precedents (Wickham) Ch. 3
Sec. Sec. 5-7; and Precedents (Wickham) Ch. 6 Sec. 1.
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The House officer with the responsibility to disburse salaries to
Members is the Chief Administrative Officer (CAO).(19) The
CAO assumed this duty when the office was created in the 104th
Congress.(20) Previously, the Sergeant-at-Arms handled
salary disbursement to Members.(21) The Clerk and the
Speaker both have administrative roles in certifying payroll documents,
including salary and mileage accounts.(22) Although Members
may not waive their salaries, any salary received by a Member may be
donated as a gift.(23)
---------------------------------------------------------------------------
19. 2 U.S.C. Sec. 5309.
20. For more on the role of the CAO, see Precedents (Wickham) Ch. 6
Sec. 17.
21. See Deschler's Precedents Ch. 6 Sec. 19; and Deschler's Precedents
Ch. 7 Sec. 4. See also 2 Hinds' Precedents Sec. 1148.
22. 2 U.S.C. Sec. Sec. 5301, 5307, 5308, and 5310.
23. See 31 U.S.C. Sec. 3113 and GAO Decision B-206396.2 (Nov. 15,
1988). See also Deschler's Precedents Ch. 7 Sec. Sec. 4.8, 4.9,
and 6 Cannon's Precedents Sec. 203.
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Members of the House are required to pay both Federal and state
taxes on the income they receive from Congress. Such taxes are
typically withheld from the monthly disbursement of salary (similar to
tax withholding practices in the private sector).(24)
Members are eligible for a variety of additional benefits (such as
health insurance and retirement benefits), and payroll deductions are
often used to finance those programs.(25)
---------------------------------------------------------------------------
24. For the origins of state income tax withholding practices, see
Sec. 5.3, infra.
25. See Sec. 6, infra.
---------------------------------------------------------------------------
Although Members' salaries are not funded through the regular
annual appropriations process, Members nevertheless have often used
such bills to address Members' compensation in various
ways.(26) For example, automatic cost-of-living increases in
Members' salaries have often been declined by Congress via language in
an appropriation bill or continuing resolution.(27) In
recent years, there have been legislative proposals to tie Members'
salaries to certain legislative actions. For instance, the ``No Budget,
No Pay Act'' (enacted in the 113th Congress)(28) provided
that the salaries of Members of Congress would be held in escrow and
not paid to Members until Congress adopted a concurrent resolution on
the budget (or at the end of the Congress if no budget resolution were
adopted).(29)
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26. See Salaries of Members of Congress: Recent Actions and Historical
Tables, CRS Report 97-1011 (Aug. 8, 2022). For examples of
germaneness rulings on amendments addressing Members' salaries,
see Deschler's Precedents Ch. 28 Sec. Sec. 13.9, 15.32, 15.33,
and 35.66.
27. See Salaries of Members of Congress: Recent Actions and Historical
Tables, CRS Report 97-1011 (Aug. 8, 2022).
28. P.L. 113-3, 127 Stat. 51. See Sec. 5.4, infra.
29. Parliamentarian's Note: The rationale for holding Members' salaries
in escrow concerned the operation of the 27th Amendment, which
delays the effect of laws ``varying'' the compensation of
Members of Congress until an election has intervened (i.e.,
until the following Congress). Thus, the salaries of Members of
Congress in the 113th Congress could not be permanently
withheld, but, as the statute prescribed, could be temporarily
held in escrow and disbursed before the end of the Congress. It
should also be noted that these budgetary provisions applied
only to the 113th Congress.
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Travel
Travel reimbursements for Members has long been part of House
practice, dating back to 1789. During the First Congress, the first
statute on Members' compensation specifically provided that part of the
compensation would take the form of reimbursements for travel expenses
associated with travelling to and from Members'
districts.(30) Mileage expenses were a common feature of
Members' compensation throughout the 19th and 20th
centuries.(31)
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30. See 2 Hinds' Precedents Sec. 1148 (fn. 2).
31. For older precedents on 19th century practice with regard to
mileage expenses, see 2 Hinds' Precedents Sec. Sec. 1156-1158.
For mileage expenses related to special sessions of Congress,
see 2 Hinds' Precedents Sec. Sec. 1159, 1160.
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In the 92d Congress in 1971, the Committee on House Administration
was given authority to make adjustments in various allowance accounts
for Members, including travel and mileage accounts.(32) But
under modern practice, Members are allocated a single allowance (known
as the Member's Representational Allowance) and such allowance may be
used for travel expenses.
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32. See Deschler's Precedents Ch. 7 Sec. Sec. 6.1-6.3.
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Members often travel on official business, either domestically or
internationally. The House may reimburse such official travel expenses
either with funds allocated to committees or other applicable accounts
of the House.(33) For overseas official travel (known as
``CODELs'' or ``Congressional Delegations'') reimbursements may be made
by the House itself, or through the use of ``counterpart'' funds (i.e.,
foreign currency funds credited to the United States which can only be
spent in the foreign country).(34) By statute, Members are
reimbursed from House accounts for travel expenses associated with
attending the funeral of a deceased Member.(35)
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33. See Deschler's Precedents Ch. 7 Sec. 6.
34. 22 U.S.C. Sec. 1754.
35. 2 U.S.C. Sec. 5606. For more on funeral committees established by
the House, see Deschler's Precedents Ch. 38 Sec. 8.
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Travel expenses reimbursed by others raises the issue of potential
conflicts of interest or corruption, and House rules regulate such
travel reimbursements in the same manner as other gifts to Members.
Clause 5(a)(2)(A) of rule XXV provides the definition of a ``gift''
under the House's ethics rules, and that definition includes ``gifts of
services, training, transportation, lodging, and
meals.''(36)
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36. House Rules and Manual Sec. 1100 (2021). Clauses 5(b)-(d) of rule
XXV provide further limitations on what types of travel
reimbursements are permissible, exceptions for certain types of
charitable or educational events, and additional disclosure
requirements. For more on ethics rules relating to travel, see
Deschler's Precedents Ch. 12; and Precedents (____) Ch. 12.
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Deductions; Absences
Under certain circumstances, amounts may be deducted from Members'
salaries as monetary fines, under the House's constitutional authority
to ``punish its Members.''(37) In the 91st Congress in 1969,
the House by resolution authorized the administration of the oath of
office to a challenged Member-elect,(38) but also provided
that the Member-elect be required to pay a fine (deducted from his
salary) for past improper conduct.(39) Beginning in the
115th Congress, the Sergeant-at-Arms was authorized to levy fines on
Members for the improper use of electronic devices for photography or
audio-visual broadcasting on the floor of the House. Such fines would
be deducted from Member's salaries by the CAO.(40) In the
117th Congress, Members were required to wear masks or other face-
coverings during the pendency of a designated pandemic emergency and
failure to abide by this requirement would result in fines to be
deducted from the Members' salaries.(41) Also in the 117th
Congress, the House adopted a rule requiring security screening to
enter the House Chamber, and imposing fines on Members who do not
undergo such screening.(42) Members who have had fines
deducted pursuant to the provisions above may avail themselves of an
appeals process overseen by the Committee on Ethics.(43)
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37. U.S. Const. art. I, Sec. 5, cl. 2. See also House Rules and Manual
Sec. Sec. 62-67 (2021). For the House's use of fines as a
disciplinary measure, see Precedents (____) Ch. 12.
38. For challenges to the seating of Members-elect, see Precedents
(Wickham) Ch. 2 Sec. 4.
39. See Deschler's Precedents Ch. 7 Sec. 4.4.
40. H. Res. 5, 163 Cong. Rec. 36, 115th Cong. 1st Sess. (Jan. 3, 2017).
41. H. Res. 38, 167 Cong. Rec. H126 [Daily Ed.], 117th Cong. 1st Sess.
(Jan. 12, 2021).
42. See H. Res. 73, 167 Cong. Rec. H274-H275 [Daily Ed.], 117th Cong.
1st Sess. (Feb. 2, 2021). A Capitol Police regulation dating
back to the 1960s had already prohibited the carrying of
firearms into the House Chamber. Violations of such policy did
not, however, result in fines deducted from Members' salaries.
43. For examples of notifications from the Committee on Ethics that
certain Members had filed appeals regarding rule violations
that had resulted in salary deductions, see 167 Cong. Rec.
H1715 [Daily Ed.], 117th Cong. 1st Sess. (Apr. 8, 2021)
(security screening); and 167 Cong. Rec. H3164 [Daily Ed.],
117th Cong. 1st Sess. (June 28, 2021) (masks).
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Pursuant to law,(44) certain absences from the House may
also result in deductions from Members' salaries, though this provision
has no applicability in modern practice. Pursuant to clause 1 of rule
III,(45) Members ``shall be present within the Hall of the
House during its sittings, unless excused or necessarily prevented.'' A
statute authorizes the CAO to deduct the amount of salary for each day
that the Member is absent from the House, unless the Member is absent
due to sickness (or sickness within the Member's
family).(46) This provision of law has a long history and
can be traced back to a statute first enacted in 1856.(47)
However, for virtually its entire history, this provision of law has
not been enforced in the House. In 1894, the Committee on the Judiciary
undertook an inquiry into whether or not the statute had been repealed
(indicating that the House had not enforced the provision in many
years).(48) A similar instance occurred in 1914, when the
House agreed to a resolution revoking all leaves of absence, and
requiring the Sergeant-at-Arms (the officer who at that time made
salary disbursements) to enforce the law mandating
deductions.(49) However, this resolution was repealed by the
House less than two months later.(50) The 1914 proceedings
appear to be the last time that the statute was enforced in the
House.(51)
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44. 2 U.S.C. Sec. 5306.
45. House Rules and Manual Sec. 671 (2021).
46. 2 U.S.C. Sec. 5306. A separate statute authorizes the forfeiture of
mileage expenses should a Member resign from the House prior to
the adjournment of the Congress. 2 U.S.C. Sec. 4522.
47. See 2 Hinds' Precedents Sec. 1154. For an 1872 version of the law,
see 2 Hinds' Precedents Sec. 1150.
48. See 2 Hinds' Precedents Sec. 1153. For a resolution regarding this
issue raised as a question of privilege (but ruled invalid),
see 3 Hinds' Precedents Sec. 2690.
49. See 6 Cannon's Precedents Sec. 198.
50. Id.
51. See Deschler's Precedents Ch. 7 Sec. 5 (``Not since 1914, however,
have those provisions been enforced. Due to the number of
Members, and to the proliferation of their official duties in
Congress, committee field work, and in their home states,
enforcement is no longer feasible.''). See also 2 Hinds'
Precedents Sec. 1148 (In 1907 ``[t]he statutes also provide for
deductions from the pay of Member who are absent . . . but this
penalty is rarely enforced.'').
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Despite the fact that no Members have had salary involuntarily
deducted for an absence in more than a century, requests for leaves of
absence remain a routine part of House business. Such requests are made
via written requests submitted to the party cloakrooms, and are
transacted by unanimous consent typically at the end of each
legislative day.(52) Although penalties for failing to
attend House sessions have not been imposed since the early 20th
century, Members have traditionally used requests for leaves of absence
to inform the House of the reasons for the absence,(53) and
have sometimes accompanied such requests with statements regarding how
the Member would have voted on questions put before the House during
the absence. Although requests for leaves of absence may be refused by
the House, this has not occurred in many decades.(54) A
Member-elect who has not yet been sworn need not submit a request for a
leave of absence for any absences occurring before the oath of office
is administered.(55)
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52. Parliamentarian's Note: Requests for leaves of absence were once
considered privileged business in the House (2 Hinds'
Precedents Sec. 1146), but today they no longer enjoy any
special status under the rules. Although under modern practice
requests for leaves of absence are transacted by unanimous
consent, a motion to that effect may also be made. See 2 Hinds'
Precedents Sec. 1142. In order to expedite the processing of
these requests, the Speaker has requested that Members submit
their leaves of absence requests in writing through the
cloakrooms rather than orally on the floor. See 6 Cannon's
Precedents Sec. 199. But see Sec. 5.5, infra. Leaves of absence
requests should be made by the individual requesting leave and
not by others. 6 Cannon's Precedents Sec. 200. For a rare
instance of an en bloc leave of absence request (for a group of
Members to travel on official business), see Sec. 5.7, infra.
53. The reasons stated may be as simple as ``on account of illness'' or
``official business'' though Members may provide more details
if they choose. See, e.g., Deschler's Precedents Ch. 7 Sec. 5.
54. See Deschler's Precedents Ch. 7 Sec. 5.5 (``The good faith of a
Member in requesting a leave of absence is not customarily
questioned by other Members of the House.''). For historical
examples of requests for leaves of absence being challenged or
rejected, see 2 Hinds' Precedents Sec. Sec. 1143-1145.
55. See 2 Hinds' Precedents Sec. 1154. For a modern example of a leave
of absence request submitted by Members on behalf of a Member-
elect (and therefore unnecessary, as the statute only applies
to sworn Members), see 159 Cong. Rec. 47, 113th Cong. 1st Sess.
(Jan. 3, 2013).
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In the 116th and 117th Congresses, the House instituted a method of
proxy voting for Members necessarily absent due to pandemic disease.
Members who attested that they were unable to physically attend a
session of the House due to the ongoing pandemic could designate other
Members to cast votes on their behalf during the pendency of such
pandemic (specifying the type of vote to be cast on each
question).(56)
---------------------------------------------------------------------------
56. See H. Res. 965, 166 Cong. Rec. H2019, H2021 [Daily Ed.], 116th
Cong. 2d Sess. (May 15, 2020); and H. Res. 8, 167 Cong. Rec.
H17 [Daily Ed.], 117th Cong. 1st Sess. (Jan. 4, 2021).
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Ethics Rules, conflicts of interest, and Other Sources of Income
The issue of Members' compensation has long been the subject of
congressional ethics rules and statutory provisions aimed at preventing
bribery, conflicts of interest, and other corrupt practices. Federal
law makes it a crime to bribe or attempt to bribe Members of
Congress.(57) The same statute addresses possible conflicts
of interest, barring Members of Congress from receiving compensation
for representing others before government agencies in which the United
States has a substantial interest.(58) The Federal
government routinely contracts with private entities to undertake
diverse projects, and Federal law prohibits Members of Congress from
having interests in said contracts.(59)
---------------------------------------------------------------------------
57. 18 U.S.C. Sec. 201.
58. 18 U.S.C. Sec. 203.
59. See 18 U.S.C. Sec. 431; and 41 U.S.C. Sec. 6306. See also 2 Hinds'
Precedents Sec. Sec. 1164-1166; and 6 Cannon's Precedents
Sec. 225.
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A House rule dating back to the First Congress in 1789 states that
``Every Member shall . . . vote on each question put, unless having a
direct personal or pecuniary interest in the event of such
question.''(60) This rule is not enforced by the presiding
officer, or even the House itself, but rather it is considered the
responsibility of each Member to judge whether the circumstances of the
vote require withdrawal.(61) Under the precedents, the
disqualifying interest must be one that involves the Members directly
and not merely one that affects a class to which the Member
belongs.(62)
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60. Rule III, clause 1; House Rules and Manual Sec. Sec. 671, 673
(2021). The form of the rule as originally adopted was as
follows: ``No Member shall vote on any question, in the event
of which he is immediately and particularly interested.'' 1
Annals of Cong. 104, 1st Cong. 1st Sess. (Apr. 7, 1789). Thomas
Jefferson, in his Manual of Parliamentary Practice, states
that, ``Where the private interests of a Member are concerned
in a bill or question he is to withdraw . . . it is for the
honor of the House that this rule of immemorial observance
should be strictly adhered to.'' House Rules and Manual
Sec. 376 (2021). See also 5 Hinds' Precedents Sec. 5949.
61. See Deschler's Precedents Ch. 30 Sec. Sec. 3.1, 3.2, and 3.4-3.8.
See also 5 Hinds' Precedents Sec. Sec. 5941, 5949-5951, 5956-
5958, and 5960-5962; and 8 Cannon's Precedents Sec. Sec. 3071,
3072.
62. See Deschler's Precedents Ch. 30 Sec. 3.9. See also 5 Hinds'
Precedents Sec. Sec. 5952-5955; and 8 Cannon's Precedents
Sec. Sec. 3071, 3072.
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In the 18th and 19th centuries, Congress did not generally meet
continuously through the year, and it was expected that Members might
retain other sources of income in addition to their congressional
salaries.(63) By the 20th century, as the workload of
Congress increased and sessions became longer, the work of a Member
became more and more a full-time occupation. Thus, scrutiny was
increasingly applied to outside income earned by Members and the
potential conflicts with legislative duties such remuneration may
present. Towards the end of the 20th century, statutory enactments and
House ethics rules were used both to enhance transparency with respect
to Members' financial holdings and to create limits on what outside
earned income could be accepted by Members.(64)
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63. See Congressional Careers: Service Tenure and Patterns of Member
Service, 1789-2021, CRS Report R41545 (Jan. 5, 2021) (``Many
lawmakers in the 18th and 19th centuries might be characterized
as ``citizen legislators,'' holding full-time nonpolitical
employment and serving in Congress on a part-time basis for a
short number of years. During the 20th century, congressional
careers lengthened as turnover decreased and Congress became
more professionalized.'').
64. Parliamentarian's Note: This chapter addresses the subject of
Members' financial disclosures and limits on outside income in
the context of Members' compensation generally. For a more
detailed analysis of specific ethics rules and their evolution,
see Deschler's Precedents Ch. 12; and Precedents (____) Ch. 12.
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In the 95th Congress in 1977, the House amended its rules to
provide the first limit on the amount of outside income that could be
earned by Members (as well as officers and employees of the
House).(65) The precise limit has been adjusted several
times, and is currently defined as a yearly amount of no more than ``15
percent of the annual rate of basic pay for level II of the Executive
Schedule under section 5313 of title 5, United States Code, as of
January 1 of that calendar year.''(66) In the 110th
Congress, the House adopted rule XXVII,(67) which prohibits
Members from directly negotiating for future employment opportunities
unless they first file a statement with the Committee on Ethics
detailing the nature of the negotiations.
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65. House Rules and Manual Sec. 1099 (2021).
66. Rule XXV, clause 1(a)(1); House Rules and Manual Sec. 1099 (2021).
67. House Rules and Manual Sec. 1100 (2021).
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Members of Congress are often invited to give speeches, make
appearances, or write articles for private organizations. For such
activities, Members have often been encouraged by such organizations to
accept compensation, known as ``honoraria,'' from the organization. In
the 95th Congress in 1977, the House put in place the first
restrictions on honoraria, limiting Members to $750 per
honorarium.(68) These limits and restrictions were adjusted
several times over the next decade,(69) until the enactment
of the Ethics Reform Act of 1989. That act imposed an outright ban on
honoraria, with certain limited exceptions for charitable donations.
The current House rule addressing outside income, honoraria, and
copyright royalties is rule XXV (clauses 1-4).(70)
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68. House Rules and Manual Sec. 1099 (2021).
69. For an example of the Committee on Standards of Official Conduct
(now the Committee on Ethics) submitting an interpretation of
the House's honoraria rule in 1979, see Sec. 5.8, infra. For
examples of the House adjusting the amount of outside earned
income and honoraria that could be accepted by Members, see
Sec. Sec. 5.11-5.13, infra.
70. House Rules and Manual Sec. 1099 (2021).
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The House's ``gift rule'' is another mechanism designed to reduce
improper influence in the legislative process. In the 90th Congress in
1968, the House adopted its first prohibition on the acceptance of
gifts by Members from persons with a direct interest in
legislation.(71) The modern form of the rule was adopted in
the 104th Congress in 1995, and operates as a ban on most gifts from
any source, subject to limited exceptions.(72) Subsequent
amendments to the rule have modified the exceptions and increased
disclosure requirements.(73) The House's gift rule is
supplemented by statutory prohibitions against receiving gifts in
exchange for official acts.(74) The Constitution also
prohibits Members from receiving any type of gifts or ``emoluments''
from foreign entities.(75)
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71. House Rules and Manual Sec. 1095 (2021).
72. House Rules and Manual Sec. 1100 (2021). See also House Ethics
Manual, 110th Cong. 2d Sess. (2008 ed.), pp. 23-86.
73. Id.
74. 5 U.S.C. Sec. 7353. This statutory rule was put in place as part of
the Ethics Reform Act of 1989 and applies to Members of
Congress as well as executive branch and judicial branch
officials.
75. U.S. Const. art. I, Sec. 9, cl. 8 (``[N]o Person holding any Office
of Profit or Trust under them, shall, without the Consent of
the Congress, accept of any present, Emolument, Office, or
Title, of any kind whatever, from any King, Prince, or foreign
State.'').
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Finally, Members are subject to financial disclosure requirements
contained both in statute and in House rules. The earliest financial
disclosure rules were adopted as House rules, as part of the ethics
reforms that occurred in the late 1960s.(76) The categories
of required disclosures were revised and refined over the course of the
1970s through subsequent changes to House rules.(77) In the
95th Congress, the Ethics in Government Act of 1978 was
enacted,(78) and title I of that act was formally
incorporated into the House rules.(79) That act further
defined the types of financial information required to be reported, and
the House rule requires all such financial reports to be filed with the
Clerk of the House (who then submits the reports to the Committee on
Ethics). The Stop Trading on Congressional Knowledge Act of 2012
requires the Clerk to make these financial disclosure reports available
to the public in electronic form.(80)
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76. See H. Res. 1099, 114 Cong. Rec. 8803, 90th Cong. 2d Sess. (Apr. 3,
1968).
77. See House Rules and Manual Sec. 1103 (2021). For campaign financial
reporting requirements, see Deschler's Precedents Ch. 8;
Deschler's Precedents Ch. 12; Precedents (Smith) Ch. 8; and
Precedents (____) Ch. 12.
78. P.L. 95-521, 92 Stat. 1824.
79. House Rules and Manual Sec. 1103 (2021). Because title I of the
Ethics in Government Act of 1978 is formally incorporated into
the standing rules of the House, statutory amendments to that
title necessarily result in changes to House rules. For
example, the Lobbying Disclosure Act of 1995 amended the
financial disclosure reporting requirements of the Ethics in
Government Act of 1978, thus resulting in a change in House
rules. See P.L. 104-65, 109 Stat. 691.
80. P.L. 113-7, 127 Stat. 438.
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Rate of Compensation: History and Practice
A statute enacted in the First Congress in 1789 provided that
Members of the House would be compensated for their service at a rate
of $6 for every day that the House was in session, plus mileage
expenses associated with travelling to and from Washington,
D.C.(81) In the mid-19th century, daily allowances were
replaced with fixed salaries that covered the entire Congress (or
sessions thereof).(82) For most of the 20th century, salary
increases would periodically be effectuated by statute (either stand-
alone legislation or incorporated into a larger reform effort, such as
the Legislative Reorganization Act of 1946).
---------------------------------------------------------------------------
81. See Deschler's Precedents Ch. 7 Sec. 4 (fn. 6).
82. An 1856 statute set the rate of pay for Members of the House at
$6,000 per Congress, minus deductions for absences. An 1866
statute revised this compensation scheme to provide $5,000 per
session of Congress (each Congress typically consisting of two
sessions). An increase to this amount was enacted in 1873, but
repealed the following year. See 1 Hinds' Precedents Sec. 1148.
A statute of 1907 increased Members' salaries to $7,500 per
session, and similar increases were made by statute prior to
1968. See Salaries of Members of Congress: Recent Actions and
Historical Tables, CRS Report 97-1011 (Aug. 8, 2022). For a
catalog of laws establishing the salaries of Members from 1789
to 1977, see Deschler's Precedents Ch. 7 Sec. 4 (fn. 6).
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In 1967, Congress created the Commission on Executive, Legislative,
and Judicial Salaries as an alternate mechanism for adjusting the
salaries of Members of Congress.(83) The Commission was
authorized to make recommendations with respect to the compensation of
various Federal officeholders. The President would then submit such
recommendations to Congress, and Congress would have a set period of
time in which to formally disapprove of such
recommendations.(84) If no disapproval resolution were
enacted, the recommended salary adjustments would take effect. Between
1969 and 1989, Congress accepted three salary increases via this
method, and rejected three.(85)
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83. Parliamentarian's Note: The rate of Members' compensation has often
been a fraught political question, due to public perceptions of
Members voting to increase their own salaries. Thus, Congress
has experimented with different mechanisms to provide
adjustments in Members' salaries that require fewer votes in
Congress--methods such as recommendations by independent
commissions, or automatic adjustments pursuant to statutory
formulas. The adoption of the 27th Amendment to the
Constitution (requiring an election to intervene before any law
``varying the compensation'' of Members can take effect)
partially mitigated the concerns about Members' salaries, but
the issue remains salient to this day. For an example of a
special order of business resolution specifically prohibiting
the issue of Members' salaries being addressed by amendment,
see Sec. 5.9, infra.
84. Parliamentarian's Note: This process for formally disapproving
salary adjustment recommendations by the commission was
challenged in court by a Member of the House (Rep. Larry
Pressler of South Dakota). Although the U.S. District Court for
the District of Columbia found that the Member did have
standing, it further held that the procedure for adjusting
Members' salaries contained in the Federal Salary Act of 1967
and the Executive Salary Cost-of-Living Adjustment Act of 1975
did not violate the Constitution. See Pressler v. Simon, 428 F.
Supp. 302 (D.D.C. 1976), aff'd mem. sub nom. Pressler v.
Blumenthal, 434 U.S. 1028 (1978). For a notice from the
Sergeant-at-Arms that he had been served in the litigation
described above, see Sec. 5.10, infra.
85. See Salaries of Members of Congress: Recent Actions and Historical
Tables, CRS Report 97-1011 (Aug. 8, 2022).
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In 1975, Congress enacted another statute(86) that
provided for automatic annual ``cost of living'' adjustments to the
salaries of certain public officials, including Members of Congress.
Such adjustments would be formally submitted to Congress by the
President for approval or disapproval. Between 1975 and 1989, Congress
used this system to accept several increases to Members' salaries, and
reject several others.(87)
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86. P.L. 94-82, 89 Stat. 419. Title II of this law is known as the
Executive Salary Cost-of-Living Adjustment Act.
87. During this period, there were five increases in Members' salaries
that were accepted by Congress, and ten that were declined. See
Salaries of Members of Congress: Recent Actions and Historical
Tables, CRS Report 97-1011 (Aug. 8, 2022).
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In 1983, the Supreme Court invalidated the practice of
``congressional vetoes'' (simple or concurrent resolutions to ratify
(or not) executive branch decisions) of the type employed in the
statutes described above.(88) In response, Congress amended
the Federal Salary Act in 1989 to provide that the salary adjustment
recommendations would not go into effect unless Congress passed a bill
or joint resolution approving the adjustment.(89)
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88. Immigration and Naturalization Service v. Chadha, 462 U.S. 919
(1983). See also Consumer Energy Council of America v. FERC,
673 F.2d 425 (D.C. Cir. 1982), aff'd 463 U.S. 1216 (1983).
89. See P.L. 101-194, 103 Stat. 1716. For an example of a joint
resolution considered by the House (and later enacted into law)
to disapprove of an increase under the Federal Salary Act, see
H. J. Res. 129, 135 Cong. Rec. 1708-26, 101st Cong. 1st Sess.
(Feb. 7, 1989).
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The Ethics Reform Act of 1989(90) significantly altered
both the Federal Salary Act of 1967 and the annual automatic adjustment
process created in 1975. With respect to the former, the Ethics Reform
Act redesignated the Commission on Executive, Legislative and Judicial
Salaries as the Citizens' Commission on Public Service and
Compensation. Legislation to address the proposed salary
recommendations was made ``a matter of highest privilege in each
House''(91) in order to facilitate its consideration.
However, the quadrennial review of salaries contemplated by the statute
was not adhered to, and since 1993 no such review has taken
place.(92) Although the Commission and the procedures to
effectuate its recommendations remain in law,(93) Congress
has not used this method of adjusting the salaries of Members in almost
three decades.
---------------------------------------------------------------------------
90. P.L. 101-194, 103 Stat. 1716.
91. 2 U.S.C. Sec. 359.
92. See House Rules and Manual Sec. 1130(12) (2021).
93. Authority for the commission is codified at 2 U.S.C. Sec. Sec. 351-
360.
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With respect to the statutory method for automatically increasing
Members' salaries, the Ethics Reform Act of 1989 tied these annual
adjustments to private sector wage data, as measured by the Employment
Cost Index.(94) Thus, the salaries of Members would increase
annually pursuant to a statutory formula linked to private sector wage
growth, unless Congress affirmatively rejected or modified such
increases.(95) Since the advent of this method for adjusting
Members' salaries, Congress has allowed increases to take effect in
approximately 50% of cases.(96) The last adjustment that was
not declined occurred in 2009 and increased Members' salaries to
$174,000 per year.
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94. The Employment Cost Index is compiled by the U.S. Bureau of Labor
Statistics on a quarterly basis, and tracks private sector
wages across numerous industries and occupational categories.
95. Parliamentarian's Note: In 1992, Members of the House challenged
these provisions in court as a violation of the 27th Amendment.
However, the U.S. District Court for the District of Columbia
held that the ``methodology for automatic annual adjustments to
Congressional salaries meets both the language and the spirit
of the 27th amendment.'' See Boehner v. Anderson, 809 F. Supp.
138 (D.D.C. 1992), aff'd, 30 F.3d 156 (D.C. Cir. 1994). For a
similar case (also unsuccessful) brought in 1999, see Schaffer
v. Clinton, 54 F. Supp. 2d 1014 (D. Colo. 1999).
96. Between 1991 and 2021, Congress accepted 13 adjustments in salary
and declined 18 adjustments. See Salaries of Members of
Congress: Recent Actions and Historical Tables, CRS Report 97-
1011 (Aug. 8, 2022).
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Sec. 5.1 Where an individual is elected to the House for the next
Congress, but also (pursuant to state law) to fill a vacancy in the
current Congress, such individual is entitled to salary for service
in the current Congress when sworn.(97)
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97. Parliamentarian's Note: Under Kansas law, an election to a seat in
the House for the next Congress is deemed an election to the
same seat in the current Congress should said seat become
vacant. Mr. Jim Ryun was elected to a seat in the 105th
Congress on November 5, 1996. The occupant of that seat in the
104th Congress (Rep. Sam Brownback) resigned on November 27,
1996, in order to take a seat in the Senate. Thus, under Kansas
law, Mr. Ryun was considered elected to fill the vacancy caused
by Rep. Brownback's resignation. Although Mr. Ryun would be
entitled to salary for his service in the 104th Congress at the
time of his swearing-in, he did not come to Washington, D.C.,
to be administered the oath of office until the commencement of
the new Congress. Therefore, Rep. Ryun was entitled to his
salary for service in the 104th Congress when the oath was
administered on January 7, 1997.
---------------------------------------------------------------------------
On January 7, 1997,(98) the following letters were laid
before the House:
---------------------------------------------------------------------------
98. 143 Cong. Rec. 188, 105th Cong. 1st Sess. For similar examples, see
156 Cong. Rec. 17626-27, 111th Cong. 2d Sess. (Nov. 16, 2010)
(Rep. Marlin Stutzman of Indiana); 164 Cong. Rec. H9498-H9499
[Daily Ed.], 115th Cong. 2d Sess. (Nov. 13, 2018) (Rep. Kevin
Hern of Oklahoma); and Precedents (Wickham) Ch. 2 Sec. 3.9
(Rep. Steve Largent of Oklahoma).
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RESIGNATION FROM THE HOUSE OF REPRESENTATIVES AFTER SINE DIE
ADJOURNMENT
Mr. BROWNBACK submitted the following resignation from the
House of Representatives:
Congress of the United States,
House of Representatives,
Washington, DC, November 26, 1996.
Hon. Newt Gingrich,
Speaker of the
House of Representatives,
The Capitol, Washington, DC.
Dear Newt: Attached please find a copy of the letter I have
sent to Kansas Governor Bill Graves informing him that I am
resigning from the House of Representatives effective at 12:00 p.m.
central time on Wednesday, November 27, 1996.
It has been an honor and a privilege to serve with you in the
House of Representatives. We enacted reforms during the 104th
Congress that has moved this country in the right direction. I look
forward to continuing to work with you to balance the federal
budget, reduce the size, scope, and intrusiveness of the federal
government, and restore the American Dream.
Sincerely,
Sam Brownback,
Member of Congress.
Congress of the United States,
House of Representatives,
Washington, DC, November 25, 1996.
Gov. Bill Graves,
State Capitol, Topeka, KS.
Dear Governor Graves: For the past two years, it has been my
privilege to serve the people of Kansas' Second District as their
elected Representative in the U.S. Congress. It has been an
eventful tenure.
These are remarkable times, and public servants have a
tremendous opportunity and responsibility for making America a
better place.
There is much work to be done, and the people rightly expect
that we will begin it in earnest. Toward that end, I am scheduled
to be sworn in as a U.S. Senator for Kansas at 2:00 p.m. central
time, Wednesday, November 27, 1996. Accordingly, I am resigning my
seat in the U.S. House of Representatives effective at 12:00 p.m.
central time, Wednesday, November 27, 1996.
The work of renewing America is unfinished. I see cause for
great hope as I believe we are now clearly focused on those very
problems which most confound us. There has never been a challenge
which the American nation recognized clearly and approached
resolutely which we did not overcome. We have cause for great
Thanksgiving.
Sincerely,
Sam Brownback. -------------------
COMMUNICATION FROM THE CLERK OF THE HOUSE AFTER SINE DIE
ADJOURNMENT
Offic of the Clerk,
U.S. House of Representatives,
Washington, DC, December 2, 1996.
Hon. Newt Gingrich,
The Speaker,
U.S. House of Representatives,
Washington, DC.
Dear Mr. Speaker: I have the honor to transmit herewith a copy
of the original Certificate of Election received from the Honorable
Ron Thornburgh, Secretary of State, State of Kansas. indicating
that, according to the results of the General Election held on
November 5, 1996, and pursuant to K.S.A. 25-3503(d), which states,
``In the event that any vacancy occurs . . . on or after the date
of any general election of state officers and before the term of
office in which the vacancy has occurred expires, votes cast for
the office of congressman in the district in which such vacancy
occurs shall be deemed to have been cast to fill such vacancy for
the unexpired term, as well as for election for the next regular
term,'' the Honorable Jim Ryun was elected to the office of
Representative in Congress, from the Second Congressional District,
State of Kansas.
With warm regards,
Robin H. Carle.
Sec. 5.2 By tradition, when a Member of the House dies in office, the
surviving spouse (or other close relative) is typically provided a
gratuity in an amount equal to the annual compensation for a
Member.
On January 6, 1973,(99) the House adopted the following
resolution providing a gratuity to the widow of a deceased Member-
elect:
---------------------------------------------------------------------------
99. 119 Cong. Rec. 379, 93d Cong. 1st Sess. For similar examples, see
Deschler's Precedents Ch. 38 Sec. 3.4; and 6 Cannon's
Precedents Sec. 204.
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Mr. [Thomas] O'NEILL [of Massachusetts]. Mr. Speaker, I offer a
resolution (H. Res. 93) and ask unanimous consent for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 93
Resolved, That there shall be paid out of the contingent fund of the
House a sum equal to the annual compensation of a Representative In
Congress as a gratuity to Cardiss R. Collins, widow of George W. Collins,
late a Representative-elect from the State of Illinois.
Resolved, That there shall be paid from the contingent fund of the House,
until otherwise provided by law, such sums as may be necessary to
compensate the clerical assistants designated by former Representative
George W. Collins in the 92d Congress and borne upon the clerk hire pay
rolls of the House of Representatives at the close of the 92d Congress at
the rates of compensation then payable to said clerical assistants, until a
successor is elected to fill the vacancy in the 7th Congressional District
of the State of Illinois caused by the death of the late George W. Collins:
Provided, That the Clerk is authorized to make, from time to time, such
salary adjustments as he deems advisable with respect to the aforementioned
employees.
The SPEAKER.(100) Is there objection to the request
of the gentleman from Massachusetts?
---------------------------------------------------------------------------
100. Carl Albert (OK).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
On July 29, 2021,(101) the House suspended the rules and
concurred in a Senate amendment to an emergency supplemental
appropriation bill that contained the following provision regarding
widow gratuities:
---------------------------------------------------------------------------
101. 167 Cong. Rec. H4265 [Daily Ed.], 117th Cong. 1st Sess.
---------------------------------------------------------------------------
EMERGENCY SECURITY SUPPLEMENTAL APPROPRIATIONS ACT, 2021
Ms. [Rosa] DeLAURO [of Connecticut]. Mr. Speaker, I move to
suspend the rules and concur in the Senate amendment to the bill
(H.R. 3237) making emergency supplemental appropriations for the
fiscal year ending September 30, 2021, and for other purposes.
The Clerk read the title of the bill.
The text of the Senate amendment is as follows:
Senate amendment:
Strike all after the enacting clause and insert the following:
The following sums are hereby appropriated, out of any money in the
Treasury not otherwise appropriated, for the fiscal year ending September
30, 2021, and for other purposes, namely: . . .
HOUSE OF REPRESENTATIVES
Payments to Widows and Heirs of Deceased Members of Congress
For payment to Susan M. Wright, widow of Ronald Wright, late a
Representative from the State of Texas, $174,000.
For payment to the heirs at law of Alcee Hastings, late a Representative
from the State of Florida, $174,000.
Sec. 5.3 The House has adopted a resolution (subsequently made
permanent law)(102) authorizing the salary disbursement
officers of the House to enter into agreements with state
governments to provide for the voluntary withholding of state
income taxes from the salary of Members.
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102. Later in the 94th Congress, this resolution was enacted into
permanent law by P.L. 94-440, 90 Stat. 1439, now codified at 2
U.S.C. Sec. 4555.
---------------------------------------------------------------------------
On November 4, 1975,(103) the House adopted the
following resolution, authorizing the Sergeant-at-Arms and the
Clerk(104) to enter into agreements with state authorities
to withhold state income tax from the salary of Members:
---------------------------------------------------------------------------
103. 121 Cong. Rec. 34915, 34939-40, 94th Cong. 1st Sess.
104. Parliamentarian's Note: At the time of this proceeding, the Clerk
and Sergeant-at-Arms were responsible for different aspects of
salary disbursement to Members. These functions were taken over
by the CAO when that position was created in the 104th
Congress. The underlying statute was also amended to reflect
this change in House administration. See P.L. 104-186, 110
Stat. 1718. For more on the role of the CAO, see Precedents
(Wickham) Ch. 6 Sec. 17.
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Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, I move to
suspend the rules and agree to the resolution (H. Res. 732) to
authorize voluntary withholding of State income taxes in the case
of Members and congressional employees, as amended.
The Clerk read as follows:
H. Res. 732
Resolved, That (a) until otherwise provided by law, the Clerk of the
House of Representatives (hereinafter in this resolution referred to as the
``Clerk'') and the Sergeant at Arms of the House of Representatives
(hereafter in this resolution referred to as the ``Sergeant at Arms'')
shall, in accordance with the provisions of subsections (b), (c), and (d)
enter into an agreement with any State, at the request for agreement from
the proper State official. The agreement shall provide that--
(1) the Clerk, in the case of employees whose compensation is disbursed
by the Clerk; and
(2) the Sergeant at Arms, in the case of Members of the House of
Representatives; shall withhold State income tax in the case of each Member
and employee who is subject to such income tax and who voluntarily requests
such withholding.
(b) Any agreement entered into under subsection (a) shall not require the
Clerk or the Sergeant at Arms to remit sums withheld pursuant to any such
agreement more often than once each calendar quarter.
(c)(1) The Clerk and the Sergeant at Arms shall, before entering into any
agreement under subsection (a), transmit a statement with respect to the
proposed agreement to the Committee on House Administration of the House of
Representatives (hereinafter in this resolution referred to as the
``committee''). Such statement shall set forth a detailed description of
the proposed agreement, together with any other information which the
committee may require.
(2) If the committee does not disapprove, through appropriate action, any
proposed agreement transmitted to the committee under paragraph (1) no
later than ten legislative days after receiving such proposed agreement,
then the Clerk or the Sergeant at Arms, as the case may be, may enter into
such proposed agreement. The Clerk or the Sergeant at Arms, as the case may
be, may not enter into any proposed agreement if such proposed agreement is
disapproved by the committee under this paragraph.
(d)(1) A Member or employee may have in effect at any time only one
request for withholding under subsection (a), and such Member or employee
may not have more than two such requests in effect with respect to
different States during any one calendar year. The request for withholding
is effective on the first day of the month in which the request is
processed by the Clerk or the Sergeant at Arms, but in no event later than
on the first day of the first month beginning after the day on which such
request is received by the Clerk or the Sergeant at Arms, except that--
(A) when the Clerk or the Sergeant at Arms first enters into an agreement
with a State under subsection (a), a request for withholding shall be
effective on such date as the Clerk or the Sergeant at Arms may determine;
(B) when an individual first receives an appointment as an employee, the
request shall be effective on the day of appointment, if the individual
makes the request at the time of appointment; and
(C) when an individual first becomes a Member, the request shall be
effective on the day such individual takes the oath of office as a Member,
if the individual makes the request at such time.
(2) A Member or employee may change the State designated by such Member
or employee for purposes of having withholdings made, and may request that
the withholdings be remitted in accordance with such change. A Member or
employee also may revoke any request of such Member or employee for
withholding. Any change in the State designated or revocation is effective
on the first day of the month in which the request or the revocation is
processed by the Clerk or the Sergeant at Arms, but in no event later than
on the first day of the first month beginning after the day on which such
request or revocation is received by the Clerk or the Sergeant at Arms.
(e) This resolution imposes no duty, burden, or requirement upon the
United States, the House of Representatives, or any officer or employee of
the United States, except as specifically provided in this resolution.
Nothing in this resolution shall be deemed to consent to the application of
any provision of law which has the effect of subjecting the United States,
the House of Representatives, or any officer or employee of the United
States to any penalty or liability by reason of the provisions of this
resolution. Any paper, form, document, or any other item filed with, or
submitted to, the Clerk or the Sergeant at Arms under this resolution is
considered to be a paper of the House of Representatives within the
provisions of the Rules of the House of Representatives.
Sec. 2. For purposes of this resolution--
(1) the terms ``State'' means any of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, or any other territory or
possession of the United States;
(2) the term ``Member'' means a Member of the House of Representatives,
the Delegates from the District of Columbia, Guam, and the Virgin Islands,
and the Resident Commissioner from Puerto Rico; and
(3) the term ``legislative days'' does not include any calendar day on
which the House of Representatives is not in session. . . .
AUTHORIZING VOLUNTARY WITHHOLDING OF STATE INCOME TAXES IN THE
CASE OF MEMBERS AND CONGRESSIONAL EMPLOYEES
The SPEAKER.(105) The unfinished business is the
question of suspending the rules and agreeing to the resolution (H.
Res. 732), as amended.
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105. Carl Albert (OK).
---------------------------------------------------------------------------
The Clerk read the title of the resolution.
The SPEAKER. The question is on the motion offered by the
gentleman from New Jersey (Mr. Thompson) that the House suspend the
rules and agree to the resolution, House Resolution 732, as
amended, on which the yeas and nays are ordered.
The question was taken.
Mr. [John] 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. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were-yeas
394, nays 7, not voting 32, as follows:
[Roll No. 663] . . .
Mr. FORSYTHE and Mr. McDONALD of Georgia changed their vote
from ``nay'' to ``yea.''
So (two-thirds having voted in favor thereof), the rules were
suspended and the resolution, as amended, was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Sec. 5.4 The House has considered a bill (subsequently enacted into
law) that, inter alia, made the timely receipt of salary by Members
of Congress contingent upon the adoption of a concurrent resolution
on the budget.
On January 23, 2013,(106) the House considered the
following bill:
---------------------------------------------------------------------------
106. 159 Cong. Rec. 485-86, 492-93, 498-99, 113th Cong. 1st Sess. For
the special order governing consideration of this measure, see
159 Cong. Rec. 475-83, 113th Cong. 1st Sess. (Jan. 23, 2013).
For remarks in the Senate concerning the severability of the
salary provision from the remainder of the bill, see 159 Cong.
Rec. 826, 113th Cong. 1st Sess. (Jan. 31, 2013). It should also
be noted that these budgetary provisions applied only to the
113th Congress.
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NO BUDGET, NO PAY ACT OF 2013
Mr. [David] CAMP [of Michigan]. Mr. Speaker, pursuant to House
Resolution 39, I call up the bill (H.R. 325) to ensure the complete
and timely payment of the obligations of the United States
Government until May 19, 2013, and for other purposes, and ask for
its immediate consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore.(107) Pursuant to House
Resolution 39, the amendment printed in House Report 113-2 is
considered adopted, and the bill, as amended, is considered read.
---------------------------------------------------------------------------
107. Raymond Terry (NE).
---------------------------------------------------------------------------
The text of the bill, as amended, is as follows:
H.R. 325
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``No Budget, No Pay Act of 2013''.
SEC. 2. TEMPORARY SUSPENSION OF DEBT CEILING.
(a) Suspension.--Section 3101(b) of title 31, United States Code, shall
not apply for the period beginning on the date of the enactment of this Act
and ending on May 18, 2013.
(b) Special Rule Relating to Obligations Issued During Suspension
Period.--Effective May 19, 2013, the limitation in section 3101(b) of title
31, United States Code, as increased by section 3101A of such title, is
increased to the extent that--
(1) the face amount of obligations issued under chapter 31 of such title
and the face amount of obligations whose principal and interest are
guaranteed by the United States Government (except guaranteed obligations
held by the Secretary of the Treasury) outstanding on May 19, 2013, exceeds
(2) the face amount of such obligations outstanding on the date of the
enactment of this Act.
An obligation shall not be taken into account under paragraph (1) unless
the issuance of such obligation was necessary to fund a commitment incurred
by the Federal Government that required payment before May 19, 2013.
SEC. 3. HOLDING SALARIES OF MEMBERS OF CONGRESS IN ESCROW UPON FAILURE TO
AGREE TO BUDGET RESOLUTION.
(a) Holding Salaries in Escrow.--
(1) In general.--If by April 15, 2013, a House of Congress has not agreed
to a concurrent resolution on the budget for fiscal year 2014 pursuant to
section 301 of the Congressional Budget Act of 1974, during the period
described in paragraph (2) the payroll administrator of that House of
Congress shall deposit in an escrow account all payments otherwise required
to be made during such period for the compensation of Members of Congress
who serve in that House of Congress, and shall release such payments to
such Members only upon the expiration of such period.
(2) Period described.--With respect to a House of Congress, the period
described in this paragraph is the period which begins on April 16, 2013,
and ends on the earlier of--
(A) the day on which the House of Congress agrees to a concurrent
resolution on the budget for fiscal year 2014 pursuant to section 301 of
the Congressional Budget Act of 1974; or
(B) the last day of the One Hundred Thirteenth Congress.
(3) Withholding and remittance of amounts from payments held in escrow.--
The payroll administrator shall provide for the same withholding and
remittance with respect to a payment deposited in an escrow account under
paragraph (1) that would apply to the payment if the payment were not
subject to paragraph (1).
(4) Release of amounts at end of the congress.--In order to ensure that
this section is carried out in a manner that shall not vary the
compensation of Senators or Representatives in violation of the twenty-
seventh article of amendment to the Constitution of the United States, the
payroll administrator of a House of Congress shall release for payments to
Members of that House of Congress any amounts remaining in any escrow
account under this section on the last day of the One Hundred Thirteenth
Congress.
(5) Role of secretary of the treasury.--The Secretary of the Treasury
shall provide the payroll administrators of the Houses of Congress with
such assistance as may be necessary to enable the payroll administrators to
carry out this section.
(b) Treatment of Delegates as Members.--In this section, the term
``Member'' includes a Delegate or Resident Commissioner to the Congress.
(c) Payroll Administrator Defined.--In this section, the ``payroll
administrator'' of a House of Congress means--
(1) in the case of the House of Representatives, the Chief Administrative
Officer of the House of Representatives, or an employee of the Office of
the Chief Administrative Officer who is designated by the Chief
Administrative Officer to carry out this section; and
(2) in the case of the Senate, the Secretary of the Senate, or an
employee of the Office of the Secretary of the Senate who is designated by
the Secretary to carry out this section.
The SPEAKER pro tempore. Debate shall not exceed 1 hour with 40
minutes equally divided and controlled by the chair and ranking
minority member of the Committee on Ways and Means and 20 minutes
equally divided and controlled by the chair and ranking minority
member of the Committee on House Administration.
The gentleman from Michigan (Mr. Camp) and the gentleman from
Michigan (Mr. Levin) each will control 20 minutes. The gentlewoman
from Michigan (Mrs. Miller) and the gentleman from Pennsylvania
(Mr. Brady) each will control 10 minutes.
The Chair recognizes the gentleman from Michigan (Mr. Camp).
general leave
Mr. CAMP. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days in which to revise and extend their remarks
and to include extraneous material on H.R. 325.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Michigan?
There was no objection.
Mr. CAMP. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise today in strong support of H.R. 325, the No
Budget, No Pay Act of 2013. This legislation directs Members of the
House and Senate to adopt a budget resolution by April 15, 2013. If
either body does not adopt a budget resolution by April 15, 2013,
Members of that body will have their pay withheld until they pass a
budget. It's simple: no budget, no pay. The American people
understand that they don't get paid if they don't do their job, and
neither should Members of Congress.
In addition, to ensure the complete and timely payment of the
obligations of the U.S. Government, this legislation allows
Treasury to issue debt between the date of enactment and May 18,
2013. However, Treasury may only issue enough debt necessary to pay
bills coming due before May 18. I want to be perfectly clear on
this point: this bill does not allow Treasury to run up an
unlimited amount of debt between now and May 18.
The debt authorized under this bill must be tied to bills
coming due during that timeframe. Further, on May 19, a new debt
limit is automatically established.
So that's what this bill does. The larger question is, why are
we even talking about the debt and debt limit? Our Nation's debt is
not just some abstract number. It has a direct impact on American
families. During the President's fiscal commission, the Simpson-
Bowles Commission, we heard nonpartisan testimony that when the
debt is this large in comparison to the economy, it costs the
country the equivalent of about 1 million jobs. Think about that.
If Washington got its debt and spending under control, then 1
million more Americans would be working today.
And if that wasn't sobering enough, Fitch Ratings recently
warned that the failure to come up with a plan for reducing our
debt would likely still result in a downgrade of the U.S. credit
rating. A lower credit rating is sure to mean higher interest
rates. That means higher credit card payments, higher car payments,
higher student loans, and certainly higher mortgage payments.
Despite these nonpartisan warnings, the Democrat-controlled
Senate has not produced a budget in more than 1,300 days. That's 4
years without a budget. How can we begin to get our debt under
control when Democrats won't even produce a budget? This bill is
the first step in forcing Democrats to put forward a budget so we
can start holding Washington accountable for its out-of-control
spending.
Every day, American families have to make decisions about their
household finances. They have to adjust their spending to cover a
whole host of things: groceries, student loan payments, braces for
children, and a replacement for that aging refrigerator. Of course,
they can't buy everything they want. Every day, they have to make
tough choices.
It's time for Congress--the House and the Senate--to make some
tough choices. To be honest, Mr. Speaker, this isn't a tough choice
where I come from. Where I grew up, if you didn't do your job, you
didn't get paid. It's time for Congress to start living with the
same facts of life everyone else in America has to live with. I
support the No Budget, No Pay Act because it brings back a bit of
accountability and common sense to Washington. I urge my colleagues
to join me in passing this bill.
Mr. Speaker, I reserve the balance of my time.
Mr. [Sander] LEVIN [of Michigan]. Mr. Speaker, I yield myself
such time as I shall consume.
This Republican bill is not a change in policy. It's a change
in tactics. House Republicans continue to play with economic fire.
They're playing political games with the debt ceiling, and that
undermines certainty.
Yesterday, economist Simon Johnson of MIT testified before our
committee saying that a short-term increase would only extend
uncertainty. He said:
You will continue to undermine the private sector. You will continue to
delay investment and to reduce employment relative to what it would be
otherwise.
Let's, for a second, remember history, the last time the House
Republicans played political games with the debt ceiling. In August
2011, our economy produced the lowest job growth in 3 years. During
that 2-month period, the Dow Jones plummeted 2,000 points,
including one of its worst single-day drops in history--635 points
on August 8. S&P downgraded the U.S. credit rating for the first
time in history.
Leading Republicans in June, 2011, criticized the notion of a
short-term debt ceiling increase as providing a lack of certainty.
The majority leader said:
We feel very strongly that one of the reasons why we continue to see an
ailing economy is that people have very little confidence, have very little
certainty in terms of where we are headed.
Our Ways and Means chairman echoed that feeling only days later
saying about the prospect of a short-term debt ceiling increase, It
does not give you certainty.
This bill does not give certainty, but uncertainty.
The action we took New Year's Day to avoid the fiscal cliff
brought our total deficit reduction over the past 2 years to $2.5
trillion. What's more, it set the stage for future further balanced
agreements that include both spending cuts and new revenue. We
should proceed with that effort, not plunge into further
uncertainty.
I reserve the balance of my time. . . .
Mrs. [Candice] MILLER of Michigan. Madam Speaker, I yield
myself such time as I may consume.
I rise today in strong support of H.R. 325, the No Budget, No
Pay Act.
The Budget Act of 1974 requires each House of Congress to pass
a budget each year by April 15. This is important, of course,
because the budget that we pass is our blueprint, literally, for
how we're going to spend the hard-earned tax dollars that the
American people send here to Washington to run our Nation.
Today, we are in a situation where the United States Senate has
not passed a budget in nearly 4 full years, leaving the American
people with no idea of how the Senate intends to deal with the
fiscal crisis that is facing our Federal Government. In the time
since the Senate last passed a budget, the Federal Government has
experienced deficits of over $1 trillion each and every year, and
we have added more than $5 trillion to our national debt.
Obviously, this is a very serious fiscal crisis, and the American
people are demanding answers.
This legislation will allow us room to begin working on a
solution that will put our Nation on a much more sound financial
footing. This bill will extend our Nation's borrowing authority for
90 days to give each House of Congress, the House and the Senate,
the needed time to do what they are legally required to do, which
is to pass a budget to show the American people how we intend to
deal with the many challenges that we face. But while giving
Congress time to do its work, it also has a very important caveat
associated with it that says, if we don't do what we are required
to do by law, that we will not be paid. Simply put: no budget, no
pay.
This idea actually came, Madam Speaker, from previous
bipartisan efforts to bring fiscal responsibility to Washington.
And now the President has indicated that if it reaches his desk, he
will sign it, that he does not oppose it.
As well, there have been very promising indications coming out
of the United States Senate from many Democratic Members that they
will also step up, after 4 long years of inaction, and put forward
a budget.
I believe that this can be the impetus today for us to begin
working together to make the difficult decisions to finally address
our fiscal challenges. Today, we can send that very strong message
to the American people with a bipartisan vote to show that we are
willing to put our paychecks on the line to meet these challenges.
Now, some are concerned about whether or not this legislation
is constitutional because of the 27th Amendment's restriction that
the pay of Members of Congress cannot be varied--that is really the
operative phrase of that amendment, ``varied''--that it can neither
be raised nor reduced until another election has taken place. This
bill, Madam Speaker, was carefully crafted to comply with the
requirements of the 27th Amendment.
So this is how it will work:
If either the House or the Senate does not pass a budget by
April 15, the deadline, then beginning on April 16, the pay for
Members of that Chamber will be placed into an escrow account and
will only be paid when that Chamber--either the House or the
Senate--has passed a budget or when we reach the end of the 113th
Congress. The amount that Members are paid will not be reduced nor
will it be raised, so we stay in strict compliance with the terms
of the 27th Amendment.
There is no requirement in the 27th Amendment which states that
Members have to be paid weekly, biweekly, monthly, or bimonthly or
what have you, only that the pay that they receive will not vary.
Now, some have suggested that the escrow account into which the
Member pay would be deposited should bear interest so that that
could then, as well, be paid to the Members. This cannot happen
because that would actually cause Member pay to increase, of
course. It would then vary their pay, which would not be in
compliance with the strict terms of the 27th Amendment.
So I am extremely hopeful, Madam Speaker, that we will
successfully conclude our work in a timely basis here in the House,
and I hope that this additional provision, as well, encourages the
Senate to also complete our important work and pass a budget.
What we are suggesting certainly is not unreasonable. I'll tell
you, I come from southeast Michigan, and one thing I can tell you
that is true about the people that I am honored to serve is that
they get up every single day, every morning and work hard all day,
every day. They simply do not understand how Congress can fail to
do our job for almost 4 years--no budget out of the Senate for
almost 4 years--and yet suffer no consequences.
The American people are demanding that their Members of
Congress deal effectively with the challenges we face. Our problems
are real, and it's time for real solutions or real consequences.
The concept, again, very simple: no budget, no pay. When times
are tight, you balance your checkbook. When you run out of money,
you stop spending. When your credit card is maxed out, you cut it
up or get a plan together to pay it off. And if you don't do your
job, you don't get paid. These are the principles, Madam Speaker,
that Americans live by, and we certainly should be no exception.
So I would urge my colleagues to join me in supporting this
bill.
I reserve the balance of my time.
Mr. [Robert] BRADY of Pennsylvania. Madam Speaker, I yield
myself such time as I may consume.
This bill is not a serious or viable attempt to address the
debt ceiling issue and is merely another way to avoid dealing with
the difficult choices we need to make.
We have been here before. We know what happens when we govern
with this kick-the-can-down-the-road mentality. The most troubling
effect, again, is the constitutionality of this bill is also
dangerously unclear.
I was not on the floor last week when my colleagues read the
Constitution. Maybe they didn't reach the 27th Amendment. I am not
a constitutional attorney. I am not an attorney in any way, and I
make no apologies for that. But it's real easy:
No law, varying the compensation for the services of the Senators or
Representatives, shall take effect, until an election of the
Representatives shall have intervened.
``Varying'' is the, again, as my friend did say, operative
word. If you aren't getting a paycheck in a month and you're going
to wait for 18 months, that's varying. So it could be--and, in my
opinion, it is--a constitutional problem.
But be that as it may, I do commend the majority for
recognizing that Congress must pay its bills, that raising the debt
ceiling isn't about spending more money, it's about paying for
bills we already incurred.
There is widespread, bipartisan acknowledgement of how
difficult and serious the fiscal challenges before us have become.
However, this proposal is just another attempt to yet again put the
discussion off for another day.
Madam Speaker, I came here and I saw the sign, ``No Budget, No
Pay.'' It probably should say, ``No Budget, Delayed Pay,'' but it
sounds better when you say ``No Budget, No Pay.'' That means we may
not be getting paid, but we're going to get paid; it will be
delayed, but we're going to get paid.
Every year in this house we do pass a budget; although, it's a
budget that I can't vote for. It's a budget that hurts the middle
class, the working class, the want-to-be-working class, and it also
hurts the American people's safety net. We know again this year we
will pass that budget. So our friends on the other side of the
aisle are putting up a No Budget, No Pay quite well knowing that
they will probably pass their budget and we probably will get paid.
On another thought, as my good friend, Mr. Doyle, from
Pittsburgh has said to me, why not no gun control, no pay? Why not
no immigration reform, no pay? Why not no DISCLOSE Act, no pay?
So, Madam Speaker, in my opinion--and I think in a lot of my
colleagues' opinion--it's a gimmick bill. No Budget, No Pay has no
teeth.
With that, I reserve the balance of my time.
Mrs. MILLER of Michigan. Madam Speaker, before I yield time to
my good colleague here, a couple of comments in regards to what my
ranking member has said from the committee, why not no gun control,
no pay, or using some other examples. I would just point out that
none of those are required by law, as passing a budget is required
by law.
Also, there was some comment again about the significance of
the 27th Amendment. I would just add quickly a statement from David
Rivkin, Jr., and Lee Casey. These are two constitutional attorneys
that served in former administrations who say the bill passes
muster. Their comment:
It does not vary Members' compensation instead holding it in escrow until
such time that a budget is passed or, at the latest, this Congress comes to
an end. It is attentive to the text and structure of the Constitution.
And just one other quote. This is from another constitutional
attorney, a Greg Watson--actually, a gentleman who rallied the
support to pass the 27th Amendment. I will proudly point out, in
1992 it was my State of Michigan that put it over the three-fourths
threshold. But at any rate, he said:
Nowhere in such a proposal do I see any violation of the terms and
provisions of the 27th Amendment. Such a proposal does not vary the dollar
amount of compensation to Members of Congress. The proposal merely delays
the disbursement of that dollar amount.
Statement of David B. Rivkin, Jr., and Lee A. Casey
Members of Congress are accountable not just to serve their constituents
but also to support and defend the Constitution of the United States. The
House of Representatives' debt ceiling extension furthers both. The
American people expect that their elected representatives in Congress will
work together to enact a budget resolution, and the House bill's approach
holds them personally accountable for doing so. It honors both Article I
and the Twenty-Seventh Amendment to the U.S. Constitution because it does
not vary Members' compensation, instead holding it in escrow until such
time that a budget is passed or, at the latest, this Congress comes to an
end. This mechanism is a model for the way that Congress ought to work: it
is creative, it is fiscally responsible, and it is attentive to the text
and structure of the Constitution.
Madam Speaker, at this time I am very honored and privileged to
yield 2 minutes to the gentleman from Mississippi (Mr. Harper), who
is a distinguished member of the Committee on House Administration.
Mr. [Gregg] HARPER [of Mississippi]. Madam Speaker, the No
Budget, No Pay portion of this bill was written specifically to
ensure that it complies with the 27th Amendment to the
Constitution. The bill does not vary the amount of compensation and
is, therefore, constitutional. It only changes when Representatives
and Senators are paid if they fail to adopt a budget resolution, as
required by law.
Currently, Representatives are paid monthly and Senators are
paid twice a month. This bill simply says, if the House does not
adopt a budget resolution, the Members of that House, instead, get
paid at the end of that term of Congress.
In 1789, James Madison, when he introduced the 27th Amendment,
spoke of preventing changes in compensation from being for the
benefit of those determining them. The clear purpose of the
amendment--which, as we know, was not ratified until 1992--was to
prevent Members from drawing higher salaries from the public
treasury without giving voters an opportunity to speak on that
decision. This bill does not benefit Members at the expense of
taxpayers, and it is consistent with the provisions of the 27th
Amendment. . . .
The SPEAKER pro tempore.(108) The question is on the
passage of the bill.
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108. Virginia Foxx (NC)
---------------------------------------------------------------------------
The question was taken; and the Speaker pro tempore announced
that the ayes appeared to have it.
recorded vote
Mr. BRADY of Pennsylvania. Madam Speaker, I demand a recorded
vote.
A recorded vote was ordered.
The SPEAKER pro tempore. This is a 5-minute vote.
The vote was taken by electronic device, and there were--ayes
285, noes 144, not voting 3, as follows:
[Roll No. 30] . . .
Messrs. BROOKS of Alabama, DUNCAN of Tennessee and GUTIERREZ
changed their vote from ``aye'' to ``no.''
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Stated for:
Mr. GENE GREEN of Texas. Madam Speaker, on rollcall No. 30, had
I been present, I would have voted ``aye.''
Leaves of Absence
Sec. 5.5 Although leaves of absence are typically submitted to the
respective party cloakrooms and granted by unanimous consent at the
end of each legislative day, a Member may personally submit the
leave of absence request (which must be in writing) to the Chair.
On March 7, 2001,(109) a Member made a personal request
for a leave of absence from the floor as follows:
---------------------------------------------------------------------------
109. 147 Cong. Rec. 3023-24, 107th Cong. 1st Sess.
---------------------------------------------------------------------------
PERMISSION FOR LEAVE OF ABSENCE
Mr. [Isaac] SKELTON [of Missouri]. Mr. Speaker, I have at the
desk a personal request.
The SPEAKER pro tempore.(110) The Clerk will report
the leave of absence request.
---------------------------------------------------------------------------
110. Henry Bonilla (TX).
---------------------------------------------------------------------------
The Clerk read as follows: Leave of absence requested for Mr.
Skelton of Missouri for tomorrow.
The SPEAKER pro tempore. Without objection, the gentleman's
written request will be granted.
There was no objection.
Sec. 5.6 Members may request that their salary be reduced on account of
absences from the House, pursuant to statutory
authority(111) permitting such deductions.
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111. Parliamentarian's Note: This statutory authority is now codified
at 2 U.S.C. Sec. 5306.
---------------------------------------------------------------------------
On October 24, 1979,(112) a Member made the following
request:
---------------------------------------------------------------------------
112. 125 Cong. Rec. 29379, 96th Cong. 1st Sess.
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REPRESENTATIVE MARTIN REQUESTS REDUCTION IN PAY
(Mr. MARTIN asked and was given permission to address the House
for 1 minute and to revise and extend his remarks.)
Mr. [James] MARTIN [of North Carolina]. Mr. Speaker, I know not
what course Exxon may take, but as for me, in accordance with title
2, United States Code, section 39, I make a unanimous-consent
request that my pay be reduced for the 3 days during which I was
not in attendance at sessions of the House on October 9, 11, and
12.
The SPEAKER.(113) Is there objection to the request
of the gentleman from North Carolina?
---------------------------------------------------------------------------
113. Thomas O'Neill (MA).
---------------------------------------------------------------------------
There was no objection.
Sec. 5.7 The House has granted a leave-of-absence request by a Member
on behalf of a group of Members travelling internationally on
official business.
On September 14, 1988,(114) the following en bloc
request for leaves of absence was made:
---------------------------------------------------------------------------
114. 134 Cong. Rec. 23820, 23852, 100th Cong. 2d Sess.
---------------------------------------------------------------------------
ANNOUNCEMENT OF ATTENDANCE BY MEMBERS AT INTERPARLIAMENTARY
UNION MEETING
Mr. [Claude] PEPPER [of Florida]. Mr. Speaker, tomorrow
afternoon I, as chairman of the United States delegation of the
Interparliamentary Union meeting in Sofia, Bulgaria, leave for that
conference.
The Speaker has appointed me as chairman of the delegation, and
the gentleman from California [Mr. Brown], the gentleman from New
York [Mr. Scheuer], the gentleman from New York [Mr. Wortley], and
the gentleman from Guam [Mr. Blaz] as delegates from the House of
Representatives to attend this conference.
This is an organization of 108 nations embracing all the
nations that are our closest friends in the world.
Mr. Speaker, I ask that the gentleman appointed by the Speaker
to attend this conference be granted a leave of absence during the
time they are attending this conference by the House of
Representatives.
The SPEAKER pro tempore (Mr. [James] Clarke [of North
Carolina]). Is there objection to the request of the gentleman from
Florida?
There was no objection. . .
. -------------------
LEAVE OF ABSENCE
By unanimous consent, leave of absence was granted to:
Mr. Brown of California (at the request of Mr. Pepper), for
September 15-24, 1988, on account of official business.
Mr. Scheuer (at the request of Mr. Pepper), for September 15-
24, 1988, on account of official business.
Mr. Blaz (at the request of Mr. Pepper), for September 15-24,
1988, on account of official business.
Mr. Wortley (at the request of Mr. Michel), for today through
September 28, 1988, on account of official business.
Mr. Barnard (at the request of Mr. Foley), for today and the
balance of the week, on account of illness.
Sec. 5.8 The chair of the Committee on Standards of Official Conduct
(now the Committee on Ethics)(115) inserted into the
Congressional Record the committee's interpretation of the House's
former rule regarding honoraria.(116)
---------------------------------------------------------------------------
115. The Committee on Standards of Official Conduct was redesignated as
the Committee on Ethics at the beginning of the 112th Congress.
House Rules and Manual Sec. 721b (2021).
116. Parliamentarian's Note: The guidance provided by the committee
here relates to the form of the rule as it existed in the 96th
Congress. For more recent interpretations of the House's ethics
rules (included rules regarding honoraria) by the Committee on
Ethics, see the House Ethics Manual, 110th Cong. 2d Sess. (2008
Ed.), pp. 189-196.
---------------------------------------------------------------------------
On October 19, 1979,(117) the chair of the Committee on
Standards of Official Conduct made the following statement regarding
the House's rule on Members receiving honoraria:
---------------------------------------------------------------------------
117. 125 Cong. Rec. 28917, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
EARNED INCOME LIMITATION
(Mr. BENNETT asked and was given permission to address the
House for 1 minute and to revise and extend his remarks.)
Mr. [Robert] BENNETT [of Utah]. Mr. Speaker, the Committee on
Standards of Official Conduct has received several inquiries
concerning the effect of the cost-of-living salary increase on the
earned income limit in House rule XLVII, as well as the application
of that rule to the assignment of income to charity. The following
response to these questions is provided for the information of my
colleagues.
House rule XLVII limits a Member's outside earned income in a
calendar year to 15 percent of the aggregate salary paid to the
Member during such calendar year. The cost-of-living adjustment
effective October 1 will increase the aggregate salary paid to a
Member in 1979 to $58,290.62. Thus, the limit on outside earned
income for personal services rendered is $8,743.60, for calendar
year 1979. The limit in 1980, based on a salary level of $60,662.50
will be $9,099.38.
Rule XLVII also limits to $1,000 the amount a Member may accept
as an honorarium for an single speech or article. Honoraria
assigned to a tax-exempt charity is not treated as earned income
subject to the limitations in the rule. If a Member chooses to have
an honorarium donated to a specific tax-exempt charity selected by
the Member, he should direct the paying organization to make the
payment directly to the charity. In addition, any honorarium
returned by the Member to the payor before the close of the
calendar year will not be counted against the earned income
limitation.
Any honoraria assigned to a charitable organization should be
reported in the Member's annual financial disclosure statement
required by the Ethics in Government Act of 1978, with the notation
that the income was assigned to charity. It should also be noted
that honoraria assigned to charity must be reported by the Member
as gross income for tax purposes, and may be deducted as a
charitable contribution (see Revenue ruling 79-121).
Sec. 5.9 The House has adopted a special order of business resolution
providing for the consideration of a legislative branch
appropriation bill and restricting the offering of amendments to a
section addressing salary adjustments for Members of
Congress.(118)
---------------------------------------------------------------------------
118. Parliamentarian's Note: The special order of business prohibited
amendments (including those contained in a motion to recommit)
to section 305 of the bill concerning adjustments to Members'
salaries. The special order did permit a single amendment to
reduce the amount of the adjustment from 7% to 5.5%. The House
rejected the motion for the previous question and subsequently
amended the special order to provide for consideration of a
substitute amendment striking the adjustment altogether. 125
Cong. Rec. 14650-51, 96th Cong. 1st Sess. (June 13, 1979). That
substitute was rejected and the original amendment merely
reducing the adjustment was adopted. 125 Cong. Rec., 14663,
96th Cong. 1st Sess. (June 13, 1979). However, on final
passage, the House ultimately rejected the bill containing the
salary adjustment. 125 Cong. Rec. 14674, 96th Cong. 1st Sess.
(June 13, 1979). For the House's rejection of a similar bill
later in the same Congress (a continuing resolution also
providing for an increase in Members' salaries), see 125 Cong.
Rec. 25345-54, 96th Cong. 1st Sess. (Sept. 13, 1979).
---------------------------------------------------------------------------
On June 13, 1979,(119) the House considered the
following special order of business resolution:
---------------------------------------------------------------------------
119. 125 Cong. Rec. 14642-45, 14650-51, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
MAKING IN ORDER CONSIDERATION OF H.R. 4390, LEGISLATIVE
APPROPRIATIONS, 1980
Mr. [John] MOAKLEY [of Massachusetts]. Mr. Speaker, by
direction of the Committee on Rules, I call up House Resolution 312
and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 312
Resolved, That during the consideration of the bill (H.R. 4390) making
appropriations for the legislative branch for the fiscal year ending
September 30, 1980, and for other purposes, all points of order against
sections 303 and 305 of said bill for failure to comply with the provisions
of clause 2, rule XXI are hereby waived. No amendment to section 305 of
said bill shall be in order except an amendment in the following form: ``On
page 30, strike out `7 percent' and insert `5.5 percent''', and said
amendment shall not be subject to amendment but shall be debatable by the
offering of pro forma amendments. No other amendments to and no motion to
recommit said bill having the effect of changing or modifying section 305
of said bill shall be in order.
The SPEAKER.(120) The gentleman from Massachusetts
(Mr. Moakley) is recognized for 1 hour.
---------------------------------------------------------------------------
120. Thomas O'Neill (MA).
---------------------------------------------------------------------------
Mr. MOAKLEY. Mr. Speaker, I yield the customary 30 minutes to
the gentleman from Ohio (Mr. Latta). Pending that, I yield myself
such time as I may consume.
Mr. Speaker, the resolution provides certain procedures during
the consideration of the legislative branch appropriation --H.R.
4390.
The rule waives points of order against section 303, relating
to terms of service for pages, and section 305, which places a
limit on the pay raises which would otherwise go to Congressmen,
Senators, judges, and other high level Federal employees. Both
sections would otherwise be subject to points of order as
legislation in an appropriations bill.
The rule would also permit an amendment to further reduce the
limitation on pay raises which would otherwise be granted to
persons covered by section 305. . . .
Mr. [Robert] BAUMAN [of Maryland]. The motion to recommit is
also restricted. That motion is permitted, but it is restricted in
the sense that no motion to recommit can amend the section dealing
with the pay raise; so that there is no opportunity under this rule
to strike out the pay raise or to do anything but vote on an
amendment reducing it from 7 percent to 5.5 percent. No other
amendment and no other motion to recommit is permitted. . . .
Mr. [Adam] BENJAMIN [of Indiana]. Speaker, House Resolution
312, the rule proposed for the legislative branch appropriations
bill, fiscal year 1980, appears to be considerably more provocative
than that which was formally requested by the Committee on
Appropriations.
Section 305, providing a 7-percent restriction, was added to
H.R. 4390 by the committee to limit an automatic salary adjustment
for Members of Congress, Federal judges, and other top Government
officials which could have amounted to 11.3 percent or more. The
Rules Committee, in its wisdom, invoked an alternate limitation of
a maximum of 5.5 percent, presumably that which will be proposed by
the President under the Federal Pay Comparability Act of 1970.
Mr. Speaker, I support the rule. I take this time to explain
the dilemma invoked by using the legislative branch appropriations
bill to vent disagreement with the salary structure.
In 1975, the Congress adopted the Executive Salary Adjustment
Act which provided that top Government officials, including Members
of Congress, would automatically receive the same Governmentwide
percentage pay increase granted to Civil Service workers under the
Federal Pay Comparability Act of 1970. Under this law, adjustments
are recommended to keep Federal employee pay scales comparable to
the private sector. The President must issue an Executive order
putting the recommendation or an alternate proposal, subject to
one-House congressional veto, into effect by October 1.
Under the Executive Salary Adjustment Act, Members of Congress
and other top Government officials did receive an adjustment in
1975. However, in 1976, the legislative branch appropriations bill
was used to deny payment of the adjustment in fiscal year 1977.
In 1977, the increase recommended under the Federal Salary Act
of 1967 took effect. In the same year, Public Law 95-66 was adopted
providing that the salaries of Members of Congress and other top
Government officials that were increased by the Quadrennial
Commission would not be increased again in the same year by the
comparability pay adjustment. This effectively denied a 7-percent
increase.
In 1978, and again this year, the legislative branch
appropriations bill, is being used to deny payment of adjustments
under the Executive Salary Adjustment Act--not to deny increases as
Public Law 95-66 did in 1977.
Please distinguish this carefully. The use of the legislative
branch appropriations bills in 1976, 1978, and 1979 are not erasing
adjustments which occur automatically as entitlements pursuant to
the Executive Salary Adjustment Act--you are merely abating payment
while the adjustments continue to increase the salaries.
If it is the intent of the Congress to deny payment pursuant to
or separate itself from the provisions of the Executive Salary
Adjustment Act, then the proper approach is that found in Public
Law 95-66 and the proper committee of jurisdiction is the House
Post Office and Civil Service Committee.
I urge my colleagues to familiarize themselves with the General
Accounting Office report of May 17, 1979, which urged that annual
adjustments under the Executive Salary Adjustment Act be allowed to
take effect and that Congress unlink itself to executive level II
salaries because of its political propensity to abate payments
thereby compressing the schedule.
Quite frankly, our collective zeal to castigate ourselves has
developed a precarious situation which could lead to an increase
that the opponents of this rule assert that they do not want.
I urge the adoption of the rule and a vote on the preferred
adjustment. Then, I urge passage of the bill which has great merit
beyond the question of salaries. Finally, I urge that the matter of
comparability pay be addressed to the proper committee and that
future legislative branch appropriations bills not be used for the
annual salary fight.
I include the following explanation of section 305:
Explanation of Section 305 of H.R. 4390
This amendment provides for a 7 percent increase for those individuals in
the legislative, executive, and judicial branches or in the government of
the District of Columbia, whose rate of pay was either directly or
indirectly increased as a result of the March 1977 pay increases which went
into effect under the Quadrennial Commission mechanism and whose pay, as a
result of various legislative actions, has been frozen since that time.
The first sentence of the amendment provides that the rate of pay may not
be increased by more than 7 percent of the rate in effect on September 30,
1978, which is the last day before the 1978 comparability adjustment would
have taken effect. It also defines in clauses (1) and (2) the individuals
who are subject to the limitation. Under clause (1) any individual whose
rate of pay is $47,500 or more (that is equal to or greater than level V of
the Executive Schedule) is covered. This covers those individuals whose
rate of pay was directly affected by the 1977 Quadrennial increase (such as
Members, Senators, judges, heads and assistant heads of cabinet
departments), as well as individuals whose rate of pay is administratively
set at rates above $47,500 (such as certain high level positions in the
Postal Service).
Clause (2) covers those individuals whose rates of pay were not directly
affected by the 1977 Quadrennial increase, but whose rates of pay
nevertheless increased because the Quadrennial increase raised the
statutory (or other) salary ceiling on their rates of pay.
For example, the published rate for a GS-18 is $61,449, but pay payable
is only $47,500 because of the statutory level V ceiling (5 U.S.C.
Sec. 5308) which has been frozen since March 1977. Under the amendment the
$47,500 ceiling is increased by 7 percent to $50,825. The amendment also
makes comparable adjustments for ceilings on rates of pay for committee
staffs, other officers and employees of the House and Senate, and for
administrative assistants whose maximum rate of pay is limited by
congressional resolution.
The amendment applies to individuals in all three branches, and thus
includes individuals in the Postal Service, and the military service. The
Office of Personnel Management has informally estimated that the amendment
will affect 15,046 individuals broken down as follows:
Executive Branch:
Currently at level V or above.............................. 742
Additional affected by frozen ceiling...................... 12,807
Legislative Branch........................................... 584
Judicial Branch.............................................. 913
Most of these individuals have had no adjustment since March 1977. The
1978 adjustment was denied pursuant to a limitation on the use of funds
contained in the FY1979 Legislative Branch Appropriations Act (P.L. 95-
391). The 1977 comparability adjustment for these individuals was
eliminated by Public Law 95-66. During the period when comparability
adjustments have been denied (March 1977 through April 1979) the Consumer
Price Index has increased by 18.8 percent.
Under the amendment the 7 percent limitation will be in effect only for
FY1980. If a limitation is to continue beyond Fiscal Year 1980, it will be
necessary for Congress to enact a similar limitation on funds again next
year.
If no limitation is enacted this year, and assuming that the President
submits an alternative plan to limit the October 1979 comparability
adjustment to 5.5 percent, the pay of individuals covered by this amendment
would increase by approximately 11.3 percent since both the FY1979
adjustment (5.5 percent) and the FY1980 adjustment (assumed to be 5.5
percent) would go into effect simultaneously (See Attachment).
Subsection (b) of the amendment provides a special rule to cover
positions created after September 30, 1978, and requires the appropriate
officials in each branch to promulgate regulations to ensure that the pay
for such positions will be set at a rate equivalent to that for comparable
positions which were in existence on September 30, 1978.
This provision ensures that individuals in positions which are
transferred to the new Senior Executive Service (SES), which was created by
the Civil Service Reform Act, will not receive pay increases of more than 7
percent during FY1980. Although the maximum rate of pay for the SES is set
at level IV of the Executive Schedule, those positions transferred into the
SES which on September 30, 1978, were subject to the level V ceiling will
continue to be subject to the adjusted level V ceiling. The amendment,
however, pertains only to increases in basic pay. Performance awards and
other lump-sum payments which are in addition to basic pay are not limited
by the amendment.
Subsection (c) provides that the salary or pay actually paid to an
employee, as a result of the application of the amendment, will serve as
the basis for computing life insurance, retirement, and other benefits,
rather than the higher statutory rate.
----------------------------------------------------------------------------------------------------------------
March Oct.
1977\1\ 1977\2\ Oct. 1, 1978\3\ Oct. 1, 1979\4\
----------------------------------------------------------------------------------------------------------------
Speaker, Vice President, Chief Justice................ 75,000 75,000 75,000 (79,100) 80,250 (83,500)
Cabinet heads (Executive Level I)..................... 66,000 66,000 66,000 (69,600) 70,620 (73,400)
Members, circuit court justices (Executive Level II).. 57,500 57,500 57,500 (60,700) 61,525 (64,000)
Executive Level III................................... 52,500 52,500 52,500 (55,400) 56,175 (58,400)
Executive Level IV (SES maximum)...................... 50,000 50,000 50,000 (52,800) 53,500 (55,700)
Executive Level V (GS maximum)........................ 47,500 47,500 47,500 (50,100) 50,825 (52,900)
----------------------------------------------------------------------------------------------------------------
\1\Rate established pursuant to Quadrennial Commission recommendations.
\2\Comparability adjustment denied pursuant to Public Law 95-66.
\3\Limitation on use of funds (Public Law 95-391) limits rates payable to those in effect on Sept. 30, 1978.
Legal rates, reflecting the 5.5-percent increase, are shown in parentheses.
\4\Rates payable if 7-percent limitation is adopted. Legal rates are shown in parentheses (assumes President
limits this year's comparability adjustment to 5.5 percent).
. . .
The SPEAKER. The question is on ordering the previous question.
The question was taken; and the Speaker announced that the ayes
appear to have it.
Mr. BAUMAN. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The question was taken; and there were_yeas 126, nays 292, not
voting 16, as follows:
[Roll No. 223] . . .
The Clerk announced the following pairs:
On this vote:
Mr. Conyers for, with Mrs. Schroeder against.
Until further notice:
Mr. Biaggi with Mr. Brown of Ohio.
Mr. Flood with Mr. Dixon.
Mr. Derrick with Mr. Kemp.
Mr. Smith of Iowa with Mr. Forsythe.
Mr. Treen with Mr. Walgren.
Mr. John L. Burton with Mr. Bob Wilson.
Messrs. BONKER, TRAXLER, LENT, GUDGER, MADIGAN, GUARINI, DICKS,
IRELAND, PURSELL, VANDER JAGT, and ROBERTS changed their vote from
``yea'' to ``nay.''
So the previous question was not ordered.
The result of the vote was announced as above recorded.
AMENDMENT IN THE NATURE OF A SUBSTITUTE OFFERED BY MR. LATTA
Mr. LATTA. Mr. Speaker, I offer an amendment in the nature of a
substitute.
The Clerk read as follows:
Amendment in the nature of a substitute offered by Mr. Latta: Strike all
after the resolving clause and insert in lieu thereof the following:
``That during the consideration of the bill (H.R. 4390) making
appropriations for the legislative branch for the fiscal year ending
September 30, 1980, and for other purposes, all points of order against
sections 303 and 305 of said bill for failure to comply with the provisions
of clause 2, rule XXI are hereby waived. No amendment to section 305 of
said bill shall be in order except amendments in the following form: (1)
``on page 30, strike out `7 percent' and insert `5.5 percent''', and (2) a
substitute amendment for said amendment striking out the words `by more
than 7 percent', and said amendments shall not be subject to further
amendment but shall be debatable by the offering of pro forma amendments.
No other amendment to and no motion to recommit said bill having the effect
of changing or modifying section 305 shall be in order.''
The SPEAKER. The gentleman from Ohio (Mr. Latta) is recognized
for 1 hour.
Mr. LATTA. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, this is exactly the amendment I referred to
earlier in the well of the House. I have been informed by the
Parliamentarian that the vote, should this be adopted, would occur
first on the substitute for the 5.5-percent amendment. By adopting
the substitute for the 5.5-percent amendment, you would strike out
the words ``by more than 7 percent,'' which would mean there would
be no_and I emphasize the word ``no''_cost-of-living increase for
Members of Congress and the other Federal employees I mentioned
earlier. There are a total of 13,500 employees involved. I shall
vote for the substitute and ``no'' on the cost-of-living increases
as I am not voting_and have not ever voted_for any increase in
salary or other benefits for myself and do not intend to do so now.
Mr. MOAKLEY. Mr. Speaker, will the gentleman yield?
Mr. LATTA. Mr. Speaker, I yield to the gentleman from
Massachusetts (Mr. Moakley) for the purposes of debate only.
Mr. MOAKLEY. I thank the gentleman for yielding.
Mr. Speaker, I think the position of the House in this matter
has been made clear and I see no reason to extend debate any
further.
The amendment in the nature of a substitute proposed by the
gentleman from Ohio (Mr. Latta) is fair and reasonable. It gives us
a clear and structured procedure for accomplishing the will of the
House in this matter.
For the majority on the committee, we have no objection to the
amendment and I urge its adoption.
Mr. LATTA. Mr. Speaker, I move the previous question on the
amendment and on the resolution.
The previous question was ordered.
The SPEAKER. The question is on the amendment in the nature of
a substitute offered by the gentleman from Ohio (Mr. Latta).
The amendment in the nature of a substitute was agreed to.
The SPEAKER. The question is on the resolution, as amended.
The question was taken; and the Speaker announced that the ayes
appeared to have it.
Mr. CHARLES H. WILSON of California. Mr. Speaker, on that I
demand the yeas and nays.
The yeas and nays were refused.
So the resolution, as amended, was agreed to.
A motion to reconsider was laid on the table.
Sec. 5.10 The Sergeant-at-Arms of the House, having been served in
litigation concerning the process for adjusting Members' salaries
under the Federal Salary Act, notified the House of such service of
process, and the communications (including the subpoena and the
underlying complaint) were printed in the Congressional
Record.(121)
---------------------------------------------------------------------------
121. Parliamentarian's Note: When officers of the House receive
subpoenas or summons as part of a judicial process, such
documents are not typically printed in full in the
Congressional Record (so as to not give undue publicity to the
plaintiff's claims). However, in this instance, because the
litigation was initiated by a Member of the House, and because
the underlying issue involve Members' salaries, the full text
of the documents was included for the information of Members.
For more on service of process issues regarding officers of the
House (including current rule VIII procedures), see Precedents
(Wickham) Ch. 6 Sec. Sec. 26, 27.
---------------------------------------------------------------------------
On May 20, 1976,(122) the following communications were
printed in the Congressional Record for the information of Members:
---------------------------------------------------------------------------
122. 122 Cong. Rec. 14926-28, 94th Cong. 2d Sess. For a privileged
resolution reported by the Committee on House Administration
authorizing the Sergeant-at-Arms to retain counsel in this
case, see H. Res. 1497, 122 Cong. Rec. 28937, 94th Cong. 2d
Sess. (Sept. 2, 1976). The U.S. District Court for the District
of Columbia ultimately held that the provisions of the Federal
Salary Act of 1967 and the Executive Salary Cost-of-Living
Adjustment Act of 1975 did not violate the Constitution. See
Pressler v. Simon, 428 F. Supp. 302 (D.D.C. 1976), aff'd mem.
sub nom. Pressler v. Blumenthal, 434 U.S. 1028 (1978).
---------------------------------------------------------------------------
COMMUNICATION FROM THE SERGEANT AT ARMS--SUBPOENA SERVED ON
SERGEANT AT ARMS KENNETH R. HARDING IN CASE OF PRESSLER AGAINST
SIMON, VALEO, AND HARDING
The SPEAKER laid before the House the following communication
from the Sergeant at Arms:
Office of the Sergeant at Arms,
U.S. House of Representatives,
Washington, DC, May 20, 1976.
Hon Carl Albert,
Speaker, U.S. House of Representatives,
Washington, DC.
Dear Mr. Speaker: I have in my official capacity as Sergeant at
Arms of the House of Representatives been served in a civil action
in the United States District Court for the District of Columbia
(Civil Action File No. 76-0782). Having in mind that the privileges
of the House of Representatives may be involved, I am bringing this
matter to your attention.
Today I addressed a letter to the Honorable Earl J. Silbert,
United States Attorney for the District of Columbia, requesting
assignment of counsel to represent the Sergeant at Arms, as
provided for in 2 United States Code 118. A copy of that letter is
attached hereto.
Sincerely,
Kenneth R. Harding,
Sergeant at Arms.
[United States District Court for the District of Columbia]
Summons
Larry Pressler, Plaintiff v. William E. Simon, Secretary of the
Treasury; Francis R. Valeo, Secretary of the U.S. Senate; Kenneth
R. Harding, Sergeant at Arms of the U.S. House of Representatives,
Defendant.
To the above named Defendant: Kenneth R. Harding.
You are hereby summoned and required to serve upon Larry
Pressler, bringing suit pro se, whose address is 1238 Longworth
House Office Building, U.S. House of Representatives, Washington,
DC 20515, an answer to the complaint which is herewith served upon
you, within 60 days after service of this summons upon you,
exclusive of the day of service. If you fail to do so, judgment by
default will be taken against you for the relief demanded in the
complaint.
James F. Davey,
Clerk of Court.
May 7, 1976.
Office of the Sergeant at Arms,
U.S. House of Representatives,
Washington, DC, May 20, 1976.
Hon. Earl J. Silbert,
U.S. Attorney for the District of Columbia, U.S. Courthouse,
Washington, DC.
Dear Mr. Silbert: I respectfully request that you assign
counsel to represent the Sergeant at Arms of the House of
Representatives, Kenneth R. Harding, in a civil action in the
United States District Court for the District of Columbia (Civil
Action File Number 76-0782), pursuant to 2 United States Code 118.
I was served in my official capacity on May 7, 1976, with
instructions to answer the complaint within sixty days after
service.
I am enclosing herewith a copy of the summons and complaint
which was served on me. I may add that I will be available at any
time to confer with any counsel that you may assign to this case.
Very truly yours,
Kenneth R. Harding,
Sergeant at Arms.
Office of the Sergeant at Arms,
U.S. House of Representatives,
Washington, DC, May 7, 1976.
Hon. Edward H. Levi,
Attorney General of the United States, Department of
Justice, Washington, DC.
Dear Mr. Levi: I am sending you a copy of summons and
complaint, which I received by mail from the Department of Justice
on May 6, 1976, in Civil Action No. 76-0782 in the United States
District Court for the District of Columbia, filed against me in my
official capacity as Sergeant at Arms of the House of
Representatives.
In accordance with the provisions of 2 U.S.C. Sec. 118, I have
sent a copy of the summons and complaint in this action to the
United States Attorney for the District of Columbia, requesting
that he take appropriate action under the supervision and direction
of the Attorney General. A copy of my letter to the United States
Attorney for the District of Columbia is enclosed.
With kind regards, I am
Sincerely yours,
Kenneth R. Harding.
Sergeant at Arms.
The SPEAKER. The Clerk will read the subpena.
The Clerk read as follows:
[In the U.S. District Court for the District of Columbia, Civil
Action]
Memorandum of Points and Authorities in Support of Application
for Three-Judge Court
Larry Pressler, U.S. House of Representatives, Washington, DC, Plaintiff,
v. William E. Simon, Secretary of the Treasury, Department of the Treasury,
Washington, DC; Francis R. Valeo, Secretary of The U.S. Senate, United
States Senate, Washington, DC; Kenneth R. Harding, Sergeant at Arms of the
U.S. House of Representatives, U.S. House of Representatives, Washington,
DC, Defendants.
This Memorandum is submitted in support of plaintiff's Application for
Three-Judge Court pursuant to 28 U.S.C. Sec. 2282. Section 2282 provides
that
``[a]n interlocutory or permanent injunction restraining the enforcement,
operation or execution of any Act of Congress for repugnance to the
Constitution of the United States shall not be granted by any district
court or judge thereof unless the application therefor is heard and
determined by a district court of three judges under Section 2284 of this
title.''
Provided that a substantial constitutional question has been presented, a
three-judge court must be empaneled for hearing and determining the
question of the constitutionality of the statute which is attacked by the
complaint. California Water Service Co. v. City of Redding, 304 U.S. 252
(1938); Telephone News System, Inc. v. Ill. Bell. Tel. Co., 210 F. Supp.
471 (D.C. Ill. 1962), aff'd 376 U.S. 782.
The instant case falls squarely within the ambit of the foregoing rule.
Plaintiff seeks to enjoin the enforcement, operation and execution of
provisions of the Federal Salary Act of 1967 (2 U.S.C. Sec. Sec. 351-361)
and of the Executive Salary Cost-of-Living Adjustment Act (2 U.S.C.
Sec. 31, as amended) on the ground of their repugnance to Article I,
Section 1 and Article I, Section 6, Clause 1 of the Constitution of the
United States. That the constitutional questions presented by the complaint
are substantial is most convincingly established by the fact that a three-
judge court which did not reach the merits of the case was convened
pursuant to 28 U.S.C. Sec. 2282 in 1970 to determine the very question
presented by Count I of the instant complaint. Richardson v. Kennedy, 313
F.Supp. 1282 (W.D. Pa. 1970). aff'd, 401 U.S. 901 (1971).
The substantiality of the constitutional questions presented by the
instant complaint is further demonstrated when those questions are tested
against traditional standards for determining when a substantial
constitutional question has not been presented. Such standards were laid
down by the Supreme Court in California Water Service Co. v. City of
Redding, supra:
``The lack of substantiality in a federal question may appear either
because it is obviously without merit or because its unsoundness so clearly
results from the previous decisions of this court as to foreclose the
subject.'' 304 U.S. at 255.
See also, e.g., Jasper v. Sawyer, 100 F. Supp. 421 (D.C.D.C. 1951); Acret
v. Harwood, 41 F. Supp. 492 (D.C. Cal. 1942).
The constitutional questions presented by the instant complaint are
neither ``obviously without merit'' nor have they been foreclosed by
frequent decisions of the Supreme Court of the United States with respect
to them. Indeed, the questions presented by the instant complaint have
never been determined by any court, much less the Supreme Court of the
United States. It is noteworthy in this regard that the challenged statutes
are not of long standing, having been enacted in December, 1967 and August,
1975, respectively. Accordingly, they do not have a long history of
construction by the courts.
For the foregoing reasons it is respectfully submitted that a three-judge
court must be empaneled pursuant to 28 U.S.C. Sec. 2282 to hear and
determine the constitutional questions presented by the instant complaint.
Larry Pressler, Pro se.
Dated: May 7, 1976.
U.S. District Court
for the District of Columbia,
Washington, DC, May 14, 1976.
Kenneth R. Harding,
Sergeant at Arms of the U.S. House of Representatives, U.S.
House of Representatives, Washington, DC.
Larry Pressler vs. William E. Simon, et al
Dear Mr. Harding: Attached hereto is a copy of the designation
of judges to serve on a three-judge panel in the above-entitled
case.
Kindly furnish this office with two copies of all papers filed
by you to date and three copies of all papers filed in the future.
Very truly yours,
James F. Davey,
Clerk.
By Ethel B. Johnson,
Deputy Clerk.
[U.S. Court of Appeals for the District of Columbia Circuit,
Civil Action No. 76-782]
Designation of Judges to Serve on Three-Judge District Court
Larry Pressler, Plaintiff v. William E. Simon, et al., Defendants.
The Honorable Gerhard A. Gesell, United States District Judge, having
notified me that a complaint has been filed in the United States District
Court for the District of Columbia seeking to enjoin the enforcement,
operation and execution of provisions of the Federal Salary Act of 1967 (2
U.S.C. Sec. Sec. 351-361) and of the Executive Salary Cost-of-Living
Adjustment Act (2 U.S.C. Sec. 31, as amended) on the ground of their
repugnance to Article I, Section 1 and Article I, Section 6, Clause 1 of
the Constitution of the United States, it is
Ordered pursuant to Section 2284 of Title 28, United States Code, that
The Honorable Carl McGowan, United States Circuit Judge, and The Honorable
William B. Jones, Chief Judge, United States District Court, are hereby
designated to serve with The Honorable Gerhard A. Gesell, United States
District Judge, as members of the Court to hear and determine this action.
David L. Bazelon,
Chief Judge for the
District of Columbia Circuit.
Dated: May 13, 1976.
[In the U.S. District Court for the District of Columbia, Civil
Action No. 76-0782]
Complaint for Declaratory and Injunctive Relief
Larry Pressler, United States House of Representatives, Washington, DC,
Plaintiff, v. William E. Simon, Secretary of the Treasury, Department of
the Treasury, Washington, DC; Francis R. Valeo, Secretary of the United
States Senate, United States Senate, Washington, DC; Kenneth R. Harding,
Sergeant at Arms of the United States House of Representatives, United
States House of Representatives, Washington, DC, Defendants.
jurisdiction
1. This action seeks a declaratory judgment that provisions of the
Federal Salary Act of 1967 and of the Executive Salary Cost-of-Living
Adjustment Act which set forth procedures to establish new rates of
compensation for Members of Congress are void in that they are violative of
Article I, Section 1, and Article I, Section 6, Clause 1 of the
Constitution of the United States. This action also seeks a permanent
injunction to prohibit defendants, who are Secretary of the Treasury,
Secretary of the United States Senate and Sergeant at Arms of the United
States House of Representatives, from requisitioning, authorizing payment
of or disbursing increases in congressional salaries effected pursuant to
the Federal Salary Act of 1967 or the Executive Salary Cost-of-Living
Adjustment Act.
2. This action arises under Article I, Section 1, and Article I, Section
6, Clause 1 of the Constitution of the United States, under Section
225(f)(A) of the Federal Salary Act of 1967, 2 U.S.C. Sec. 356(A) (Pub. L.
90-206, Title II; 81 Stat. 642) and under Section 204(a) of the Executive
Salary Cost-of-Living Adjustment Act, 2 U.S.C. Sec. 31, as amended (Pub. L.
94-82, Title II; 89 Stat. 419), as hereinafter more fully appears.
Jurisdiction is conferred on this court by 28 U.S.C. Sec. 1331, 28 U.S.C.
Sec. Sec. 2201-2202. Venue is properly laid in this Court pursuant to 28
U.S.C. Sec. 1391(e). There exists between the parties an actual
controversy, justiciable in character, in respect of which plaintiff
requests a declaration of his rights by this Court. The matter in
controversy exceeds, exclusive of interest and costs, the sum of ten
thousand dollars ($10,000).
parties
3. Plaintiff Larry Pressler is a citizen of the United States and a
taxpayer of the United States. Plaintiff is also a Member of the House of
Representatives from the First Congressional District of the State of South
Dakota.
4. Defendant William E. Simon is an officer of the United States. He is
sued in his official capacity as Secretary of the Treasury of the United
States, with official residence in Washington, DC. It is his duty, pursuant
to 31 U.S.C. Sec. 1002, to issue warrants authorizing the payment of monies
out of the Treasury of the United States.
5. Defendant Francis R. Valeo is an officer or employee of the United
States. He is sued in his official capacity as Secretary of the United
States Senate, with official residence in Washington, DC. It is his duty,
pursuant to 2 U.S.C. Sec. 64, to requisition monies for the payment of
congressional salaries and to disburse such salaries to the Members of the
United States Senate.
6. Defendant Kenneth R. Harding is an officer or employee of the United
States. He is sued in his official capacity as Sergeant at Arms of the
United States House of Representatives, with official residence in
Washington, DC. It is his duty, pursuant to 2 U.S.C. Sec. Sec. 78 and 80,
to requisition monies for the payment of congressional salaries and to
disburse such salaries to the Members of the United States House of
Representatives.
three-judge court
7. As appears more fully in the Application for Three-Judge Court and the
supporting Memorandum of Points and Authorities submitted herewith pursuant
to Local Rule 1-11, this is a proper case for determination by a three-
judge court pursuant to 28 U.S.C. Sec. 2282 inasmuch as plaintiff seeks an
injunction to restrain the enforcement, operation and execution of 2 U.S.C.
Sec. 356(A) and 2 U.S.C. Sec. 31, as amended, on the ground that such
statutory provisions are violative of Article I, Section 1 and Article I,
Section 6, Clause 1 of the Constitution of the United States.
count i
8. Plaintiff repeats and realleges each of the allegations contained in
paragraph 1 through 7 above.
9. The Federal Salary Act of 1967 became law December 16, 1967 (the
``1967 Act''). Pub. L. 90-206, Title II; 2 U.S.C. Sec. Sec. 351-361. The
1967 Act established a Commission on Executive, Legislative and Judicial
Salaries (the ``Commission''). The Commission is required to make
recommendations to the President, at four-year intervals, on the rates of
pay for Senators, Representatives, Federal judges, cabinet officers and
other agency heads, and certain other officials in the executive,
legislative and judicial branches. The law requires that the President, in
the budget next submitted by him after receipt of a report of the
Commission, set forth his recommendations with respect to the exact rates
of pay he deems advisable for those offices and positions covered by the
1967 Act. The President's recommendations become effective 30 days
following transmittal of the budget, unless in the meantime other rates
have been enacted by law or at least one House of Congress has enacted
legislation which specifically disapproves of all or part of the
recommendations. A copy of the 1967 Act is attached hereto as Exhibit A.
10. The first Commission was appointed in July, 1968 and made its
recommendations to the President in December, 1968. The President's pay
recommendations took effect in March, 1969, and congressional salaries were
increased from $30,000 to $42,500 per annum. The United States, through the
Secretary of the Treasury, the Secretary of the United States Senate, and
the Sergeant at Arms of the House of Representatives authorized the payment
of increases in congressional compensation and disbursed said increases to
Members of Congress.
11. The second Commission was appointed in December 1972, too late to
report to the President by January 1, 1973. As a result, the President's
pay recommendations based on the second Commission's report were submitted
to Congress on February 4, 1974. The Committee on Post Office and Civil
Service reported a resolution (S. Res. 293) on February 28, 1974, which
would have permitted all provisions of the President's proposal to take
effect, except those providing adjustments in the pay of Members of
Congress. The Senate, however, amended the Resolution to disapprove all of
the President's recommendations and rejected the entire proposal on March
6, 1974.
12. According to the statutory scheme, the next Commission is scheduled
to be appointed in 1976 and to report its recommendations to the President
no later than January 1, 1977.
13. Insofar as they provide a mechanism for adjusting salaries of Members
of Congress, the foregoing procedures authorized by the 1967 Act are
repugnant to Article I, Section 1 and Article I, Section 6, Clause 1 of the
Constitution of the United States. Article I, Section 1 provides that
``[a]ll Legislative Powers herein granted shall be vested in a Congress of
the United States.'' Article I, Section 6, Clause 1 provides that ``[t]he
Senators and Representatives shall receive a Compensation for their
Services, to be ascertained by Law, and paid out of the Treasury of the
United States.'' Properly interpreted in light of the intentions of the
draftsmen of the Constitution, those constitutional provisions require that
congressional salaries be determined by the legislative branch by specific
enactment in each instance. Under the 1967 Act, however, congressional
salaries are ascertained by Presidential recommendation.
14. The acts of defendants in disbursing the increased salary to Members
of Congress have injured and will continue to injure the plaintiff as a
United States citizen in that they deprive him of his right as a citizen to
have Members of Congress accountable for increases authorized in their
compensation.
15. The acts of the defendants have injured and will continue to injure
the plaintiff as a United States taxpayer in that they deprive him of his
right as a taxpayer to have tax monies received by the Federal Government
expended pursuant to laws enacted in accordance with the Constitution of
the United States.
16. The acts of the defendants have injured and will continue to injure
the plaintiff as a Member of the United States House of Representatives by
interfering with the performance of his constitutional responsibilities and
congressional duties and by depriving him of his constitutional right to
vote on each adjustment proposed in congressional salaries.
17. Unless defendants are enjoined by this Court from requisitioning,
authorizing the payment of increases, and disbursing the increases in
congressional salaries, defendants will disburse increased congressional
salaries adjusted in contravention of constitutional requirements,
violating the rights of plaintiff described herein and working upon
plaintiff an unusual hardship or an irreparable injury and damage for which
there exists no adequate remedy at law.
count ii
18. Plaintiff repeats and realleges each of the allegations contained in
paragraphs 1 through 7 above.
19. The Executive Salary-Cost-of-Living Adjustment Act became law August
9, 1975 (the ``1975 Act''). Pub. L. 94-82. The 1975 Act provides for an
automatic annual cost-of-living adjustment in the salaries of certain
executive, legislative and judicial officers and employees of the United
States, including Members of Congress. Section 204(a) of the 1975 Act
amended 2 U.S.C. Sec. 31, the statutory provision relating to compensation
for Members of Congress, to provide that the annual rate of pay for Members
of Congress would be the rate established pursuant to Presidential
recommendation under the 1967 Act, as annually and automatically increased
by a cost-of-living adjustment. Such automatic annual cost-of-living
adjustment in all of the salaries covered by the 1975 Act, including the
salaries of Members of Congress, is equal in amount to the overall
percentage of increase made in the rates of pay of federal employees
covered by the General Schedule, which increase is made pursuant to
Presidential recommendation authorized by 5 U.S.C. Sec. 5305. The
adjustment in salaries covered by the 1975 Act becomes effective at the
beginning of the first pay period starting on or after the first day of the
month in which the adjustment in General Schedule salaries under 5 U.S.C.
Sec. 5305 takes place. A copy of the 1975 Act is attached hereto as Exhibit
B.
20. On October 6, 1975, Executive Order No. 11883, 40 F.R. 47091, ordered
that the General Schedule salaries be adjusted and that the salaries
covered by the 1975 Act be adjusted accordingly. As a result, salaries of
Members of Congress were increased from $42,500 to $44,600 per annum. A
copy of Executive Order No. 11883 is attached hereto as Exhibit C.
21. Pursuant to the provisions of said Executive Order, the United
States, through the Secretary of the Treasury, the Secretary of the United
States Senate, and the Sergeant at Arms of the House of Representatives
authorized the payment of increases in the congressional compensation and
disbursed said increases to the Members of Congress.
22. Insofar as they provide a mechanism for adjusting the salaries of
Members of Congress, the foregoing procedures authorized by the 1975 Act
repugnant to Article I, Section 1 and Article I, Section 6, Clause 1 of the
Constitution of the United States. Article I, Section 1 provides that
``[a]ll legislative Powers herein granted shall be vested in a Congress of
the United States.'' Article I, Section 6, Clause 1 provides that ``[t]he
Senators and Representatives shall receive a Compensation for their
Services, to be ascertained by Law, and paid out of the Treasury of the
United States.'' Properly interpreted in light of the intentions of the
draftsmen of the Constitution, those constitutional provisions require that
congressional salaries be determined by the legislative branch by specific
enactment in each instance. Under the 1975 Act, however, Congressional
salaries are automatically increased in an amount based upon Presidential
recommendations with respect to General Schedule salaries.
23. The acts of defendants in disbursing the increased salary to Members
of Congress have injured and will continue to injure plaintiff as a United
States citizen in that they deprive him of his right as a citizen to have
Members of Congress accountable for increases authorized in their
compensation.
24. The acts of the defendants have injured and will continue to injure
the plaintiff as a United States taxpayer in that they deprive him of his
right as a taxpayer to have tax monies received by the Federal Government
expended pursuant to laws enacted in accordance with the Constitution of
the United States.
25. The acts of the defendants have injured and will continue to injure
the plaintiff as a Member of the United States House of Representatives by
interfering with the performance of his constitutional responsibilities and
congressional duties and by depriving him of his constitutional right to
vote on each adjustment proposed in congressional salaries.
26. Unless defendants are enjoined by this Court from requisitioning,
authorizing the payment of increases, and disbursing the increases in
congressional salaries, defendants will disburse increased congressional
salaries adjusted in contravention of constitutional requirements,
violating the rights of plaintiff described herein and working upon
plaintiff an unusual hardship or an irreparable injury and damage for which
there exists no adequate remedy at law.
Wherefore, plaintiff prays:
1. That plaintiff have a judgment and decree of this Court declaring his
rights and status, and more particularly adjudicating:
(a) That the 1967 Act is void and unconstitutional insofar as it
establishes procedures for adjusting congressional rates of pay and
salaries; and
(b) That the 1975 Act is void and unconstitutional insofar as it
establishes procedures for adjusting congressional rates of pay and
salaries.
2. That this Court issue a permanent injunction restraining defendants,
and each of them and their agents, servants, employees and attorneys, and
all persons in active concert or participation with them, from
requisitioning, authorizing the payment of, or disbursing any future
increases in congressional salaries effected pursuant to the 1967 Act or
the 1975 Act.
3. That this Court accord de facto validity to the past acts of
defendants, their agents, servants, employees and attorneys, and all
persons in active concert or participation with them, in requisitioning,
authorizing the payment of, and disbursing past increases in congressional
salaries effected pursuant to the 1967 Act and the 1975 Act.
4. That this Court stay, for such period as the Court believes reasonably
adequate for Congress, if it so desires, to further ascertain congressional
salaries ``by Law'', the Court's judgment insofar as it affects the
authority of defendants to requisition, authorize the payment of, and
disburse congressional salaries at the current rate of pay, in order to
afford Congress an opportunity to ascertain congressional salaries ``by
Law'', in accord with the requirements of the Constitution of the United
States.
5. That this Court grant plaintiff such other and further relief as may
be just and proper.
Larry Pressler, Pro se.
Dated: May 7, 1976.
Sec. 5.11 The House by resolution amended its standing rules to adjust
the amount of outside earned income and honoraria that Members may
receive under the House's ethics rules (following the rejection of
a similar resolution earlier in the Congress).(123)
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123. Parliamentarian's Note: The modern form of the House's rule on
outside income, honoraria, and copyright royalties is Rule XXV
(clauses 1-4). See House Rules and Manual Sec. 1099 (2021). The
proceedings here reflect the form of the rule prior to
revisions made by the Ethics in Government Act of 1989. See
P.L. 101-194, 103 Stat. 1716.
---------------------------------------------------------------------------
On October 28, 1981,(124) the House had considered (and
ultimately rejected) a resolution amending the House rules to revise
the limits on outside earned income and honoraria that Members could
receive:
---------------------------------------------------------------------------
124. 127 Cong. Rec. 25670, 25686, 25688-89, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Richard] BOLLING [of Missouri]. Mr. Speaker, by direction
of the Committee on Rules, I call up House Resolution 258 and ask
for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 258
Resolved, That upon the adoption of this resolution it shall be in order
to move that the House resolve itself into the Committee of the Whole House
on the State of the Union for the consideration of the resolution (H. Res.
251) amending the Rules of the House of Representatives to increase the
amount of outside earned income which a Member may have in 1981, 1982, and
1983, and to increase the amount of the maximum honorarium which a Member
may accept. After general debate, which shall be confined to the resolution
and shall continue not to exceed two hours, to be equally divided and
controlled by the chairman and ranking minority member of the Committee on
Rules, the resolution shall be read for amendment under the five-minute
rule. At the conclusion of the consideration of the resolution for
amendment, the Committee shall rise and report the resolution to the House
with such amendments as may have been adopted, and the previous question
shall be considered as ordered on the resolution and amendments thereto to
final adoption without intervening motion except one motion to recommit.
The SPEAKER.(125) The gentleman from Missouri (Mr.
Bolling) is recognized for 1 hour. . . .
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125. Thomas O'Neill (MA).
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Mr. [Trent] LOTT [of Mississippi]. Mr. Speaker, I yield myself
such time as I may consume.
Mr. Speaker, I rise in support of this rule. It is a completely
open and straightforward means of allowing the House to work its
will on the question of outside earned income limitations.
This rule will make in order House Resolution 251, which was
reported yesterday from the Committee on Rules as a matter of
original jurisdiction. The resolution would amend the rules of the
House to raise the outside earned income limit for Members from 15
to 40 percent of their salaries during the calendar years 1981-83.
In addition, the proposed resolution raises the limit on a single
honorarium from $1,000 to $2,000. . . .
The CHAIRMAN.(126) All time has expired.
---------------------------------------------------------------------------
126. William Natcher (KY).
---------------------------------------------------------------------------
The Clerk will read.
The Clerk read as follows:
H. Res. 251
Resolved, That clause 1 of rule XLVII of the Rules of the House of
Representatives is amended--
(1) by striking out ``Except as provided by paragraph (b)'' in paragraph
(a) and inserting in lieu thereof ``Except as provided by paragraphs (b)
and (c)'';
(2) by striking out ``In the case of any individual'' in paragraph (b)
and inserting in lieu thereof ``Except as provided by paragraph (c), in the
case of any individual''; and
(3) by adding at the end thereof the following new paragraph:
``(c) With respect to any calendar year beginning on or after January 1,
1981, and ending on or before December 31, 1983, the term `15 per centum'
in paragraphs (a) and (b) shall be deemed to read `40 per centum'.''.
Sec. 2. Clause 2 of rule XLVII of the Rules of the House of
Representatives is amended by striking out ``$1,000'' and inserting in lieu
thereof ``$2,000''.
Sec. 3. The amendments made by this resolution shall take effect on the
date of its adoption. . . .
The SPEAKER. Without objection, the previous question is
ordered on the resolution.
There was no objection.
The SPEAKER. The question is on the resolution.
recorded vote
Mr. [David] OBEY [of Wisconsin]. Mr. Speaker, I demand a
recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes
147, noes 271, not voting 15, as follows:
[Roll No. 282] . . .
So the resolution was rejected.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
However, on December 15, 1981,(127) the House adopted a
similar resolution by unanimous consent:
---------------------------------------------------------------------------
127. 127 Cong. Rec. 31529, 31546, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
AMENDING RULES OF THE HOUSE OF REPRESENTATIVES TO INCREASE
OUTSIDE EARNED INCOME
Mr. [John] MURTHA [of Pennsylvania]. Mr. Speaker, I have at the
desk a resolution and I ask for its immediate consideration.
The SPEAKER.(128) The Clerk will report the
resolution.
---------------------------------------------------------------------------
128. Thomas O'Neill (MA).
---------------------------------------------------------------------------
The Clerk read the resolution, as follows:
H. Res. 305
Resolved, That clause 1 of Rule XLVII of the Rules of the House of
Representatives is amended by striking out ``15'' both times it appears
therein and by inserting in lieu thereof ``30''.
Sec. 2. Clause 2 of Rule XLVII of the Rules of the House of
Representatives is amended to read as follows:
``2. For purposes of clause 1, honoraria shall be attributable to the
calendar year in which payment is received.''.
Sec. 3. The amendments made by this resolution shall take effect on
January 1, 1981.
Mr. MURTHA (during the reading). Mr. Speaker, I ask unanimous
consent that the resolution be considered as read and printed in
the Record.
The SPEAKER. Is there objection to the request of the gentleman
from Pennsylvania?
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table. . .
. -------------------
REQUEST TO VACATE PROCEEDINGS WHEREBY HOUSE RESOLUTION 305 WAS
AGREED TO
Mr. [Robert] WALKER [of Pennsylvania]. Mr. Speaker, I ask
unanimous consent to vacate proceedings whereby House Resolution
305 was agreed to.
The SPEAKER. Is there objection to the request of the gentleman
from Pennsylvania?
Mr. [John] ROUSSELOT [of California]. Mr. Speaker, I object.
The SPEAKER. Objection is heard.
Sec. 5.12 Following the House's adoption (by unanimous consent) of a
resolution revising the limitation on outside earned income that
Members may receive, the House subsequently considered another
resolution vacating the adoption of the earlier resolution, and
thus returning the rules on outside earned income to their prior
form.
On April 22, 1986,(129) the House by unanimous consent
adopted the following resolution regarding outside earned income by
Members:
---------------------------------------------------------------------------
129. 132 Cong. Rec. 8328, 99th Cong. 2d Sess.
---------------------------------------------------------------------------
AMENDING THE RULES OF THE HOUSE TO INCREASE AMOUNT OF OUTSIDE
EARNED INCOME WHICH A MEMBER MAY ACCEPT
Mr. [John] MURTHA [of Pennsylvania]. Mr. Speaker, I offer a
resolution (H. Res. 427) amending the Rules of the House of
Representatives to increase the amount of outside earned income
which a Member may accept, and I ask unanimous consent for its
immediate consideration.
The SPEAKER.(130) The Clerk will report the
resolution.
---------------------------------------------------------------------------
130. Thomas O'Neill (MA).
---------------------------------------------------------------------------
The Clerk read the resolution, as follows:
H. Res. 427
Resolved, That clause 1 of rule XLVII of the Rules of the House of
Representatives is amended by striking out ``which is in excess'' and all
that follows in both paragraph (a) and paragraph (b) and inserting in lieu
thereof in each instance ``in excess of the percentage of the aggregate
salary as a Member, paid to the Member during such calendar year, to which
such outside earned income is limited by law.''.
Sec. 2. The amendments made by the first section of this resolution shall
take effect on January 1, 1986.
The SPEAKER. Is there objection to the request of the gentleman
from Pennsylvania?
Mr. [Patrick] HILER [of Indiana]. Mr. Speaker, reserving the
right to object, could we be enlightened as to what the gentleman's
resolution is about?
Mr. MURTHA. Mr. Speaker, will the gentleman yield?
Mr. HILER. I yield to the gentleman from Pennsylvania.
Mr. MURTHA. Mr. Speaker, this has been cleared by the
leadership on both sides. It just changes the rules to bring them
into closer compliance with the Senate rules.
The intent of this amendment to the House rule is to change the
current 30-percent limitation to 40 percent.
Mr. HILER. Mr. Speaker, I withdraw my reservation of objection.
The SPEAKER. Is there objection to the request of the gentleman
from Pennsylvania?
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
On April 23, 1986,(131) a Member asked unanimous consent
to consider a resolution that would have restored the rule to its prior
form, effectively nullifying the resolution of the day before, but that
request drew objection:
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131. 132 Cong. Rec. 8443, 99th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Richard] DURBIN [of Illinois]. Mr. Speaker, I offer a
resolution (H. Res. 431) amending clause 1, rule XLVII of the Rules
of the House, and ask unanimous consent for its immediate
consideration.
The SPEAKER.(132) The Clerk will report the
resolution.
---------------------------------------------------------------------------
132. Thomas O'Neill (MA).
---------------------------------------------------------------------------
The Clerk read the resolution, as follows:
H. Res. 431
Resolved, That clause 1 of rule XLVII of the Rules of the House of
Representatives be amended to read as follows:
1. (a) Except as provided by paragraph (b), no Member may, in any
calendar year beginning after December 31, 1978, have outside earned income
attributable to such calendar year which is in excess of 30 per centum of
the aggregate salary as a Member paid to the Member during such calendar
year.
(b) In the case of any individual who becomes a Member during any
calendar year beginning after December 31, 1978, such Member may not have
outside earned income attributable to the portion of that calendar year
which occurs after such individual becomes a Member which is in excess of
30 per centum of the aggregate salary as a Member paid to the Member during
such calendar year.
The SPEAKER. Is there objection to the request of the gentleman
from Illinois?
Mr. [Robert] WALKER [of Pennsylvania]. Mr. Speaker, I object.
Mr. [Trent] LOTT [of Mississippi]. Mr. Speaker, I object.
The SPEAKER. Will the gentleman who offered the objection
stand?
Mr. LOTT. Mr. Speaker, I object.
The SPEAKER. The gentleman objects. Objection is heard.
parliamentary inquiry
Mr. DURBIN. Mr. Speaker, I have a parliamentary inquiry.
The SPEAKER. The gentleman will state it.
Mr. DURBIN. Mr. Speaker, is there any procedure presently
available before the House to consider this resolution which would
restore the language of rule XLVII to exactly the same language as
it was?
The SPEAKER. The matter may be referred to the Rules Committee,
and if there is a report, a two-thirds vote will bring it to the
floor today, and if there is approval on the minority side we will
bring the matter to the floor this afternoon.
Mr. DURBIN. Mr. Speaker, will it be brought to the floor this
afternoon?
The SPEAKER. It is the intention to refer the matter to the
Rules Committee. The Chair cannot dictate what the Rules Committee
is going to do, but it will recommend to the Rules Committee.
Mr. DURBIN. I thank the Speaker.
Later on April 23, 1986,(133) the House considered a
resolution reported by the Committee on Rules(134) vacating
the adoption of the original resolution and laying said resolution on
the table:
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133. 132 Cong. Rec. 8474-75, 99th Cong. 2d Sess
134. Parliamentarian's Note: Resolutions reported by the Committee on
Rules may not be considered by the House on the same
legislative day on which they are reported, unless the House,
by a two-thirds vote on the question of consideration, waives
that requirement. Rule XIII, clause 6(a); House Rules and
Manual Sec. 857 (2021). In this case, the vote on the question
of consideration achieved the required two-thirds vote.
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VACATING THE PROCEEDINGS BY WHICH HOUSE RESOLUTION 427 WAS
ADOPTED BY THE HOUSE ON APRIL 22, 1986 AND PROVIDING THAT SAID
RESOLUTION SHALL BE CONSIDERED TO HAVE BEEN LAID ON THE TABLE
Mr. PEPPER, from the Committee on Rules, reported the following
privileged resolution (H. Res. 432, Rept. 99-553) which was
referred to the House Calendar and ordered to be printed:
H. Res. 432
Resolved, That the proceedings by which H. Res. 427 was adopted by the
House on April 22, 1986 are hereby vacated, and said resolution shall be
considered to have been laid on the table.
Mr. [Claude] PEPPER [of Florida]. Mr. Speaker, by direction of
the Committee on Rules, I call up House Resolution 432 and ask for
its immediate consideration.
The SPEAKER.(135) The Clerk will report the
resolution.
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135. Thomas O'Neill (MA).
---------------------------------------------------------------------------
The Clerk read the resolution.
The SPEAKER. The question is, Will the House now consider House
resolution 432?
The question was taken.
Mr. [John] MURTHA [of Pennsylvania]. 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. Evidently a quorum is not present. The resolution
requires a two-thirds vote for passage.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas
333, nays 68, not voting 32, as follows: . . .
So (two-thirds having voted in favor thereof) the House agreed
to consider House Resolution 432.
The result of the vote was announced as above recorded.
The SPEAKER. Does the gentleman from Florida (Mr. Pepper)
desire time?
Mr. PEPPER. Mr. Speaker, House Resolution 432 vacates the
proceedings by which House Resolution 427 was adopted yesterday and
lays the resolution on the table. As my colleagues are aware,
yesterday a resolution passed this House that had the effect of
lifting the limitation on outside earned income for Members. The
resolution now before the Members would restore the limitations
that were in place before yesterday's action. In other words, House
Resolution 432 would reimpose the 30-percent limitation on outside
earned income for Members by vitiating the action taken by the
House.
Mr. Speaker, it is clear that Members are concerned about the
absence of full legislative scrutiny of the amendment to the rules
of the House adopted yesterday. There is a general consensus that
the sensitive issues of Members' compensation and outside income
should be addressed through careful study and deliberation.
The committee wishes to make the legislative intent in this
matter clear. The committee's action in reporting this resolution
should not be viewed as an endorsement of the previous rule setting
a ceiling on outside income of 30 percent of a Members' pay. Nor
should it be viewed as a rejection of the 40-percent limit adopted
by the House yesterday, or of any other higher or lower limit which
might be proposed in any subsequent legislation, subject to the
normal procedure. The resolution presented today simply responds to
the concerns I have discussed, by restoring the status quo. The
committee views it as important to do so promptly, to avoid
arousing passions about matters which should be reviewed with care
and sensitivity.
The controversy surrounding the previous resolution, and the
pending matter, make it clear that the current limit on outside
income, and the disparate practices of the two Houses, are issues
of some importance, which deserve to be addressed through
subsequent hearings and study in appropriate legislative fora.
The Committee on Rules, and other committees of appropriate
jurisdiction, will continue their legislative and oversight reviews
of the issues of Members' pay and allowances, limitations and
standards governing honoraria and other outside income, and
comparability of these matters between the two Chambers.
The SPEAKER. The question is on the resolution.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 5.13 In the 104th Congress, the House adopted a resolution
amending its rules regarding limits on outside earned income and
copyright royalties.
On December 22, 1995,(136) the House adopted the
following resolution:
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136. 141 Cong. Rec. 38488, 38493, 104th Cong. 1st Sess.
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Mr. [Gerald] SOLOMON [of New York]. Mr. Speaker, pursuant to
House Resolution 322, I call up House Resolution 299 and ask for
its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 299
Resolved,
SECTION 1. AMENDMENT TO HOUSE RULES.
(a) Clause 3(e) of rule XLVII of the Rules of the House of
Representatives is amended to read as follows:
``(e) The term `outside earned income' means, with respect to a Member,
officer, or employee, wages, salaries, fees, and copyright royalties earned
while a Member, officer or employee of the House, and other amounts
received or to be received as compensation for personal services actually
rendered but does not include--
``(1) the salary of such individual as a Member, officer, or employee;
``(2) any compensation derived by such individual for personal services
actually rendered prior to the effective date of this rule or becoming such
a Member, officer, or employee, whichever occurs later;
``(3) any amount paid by, or on behalf of, a Member, officer, or
employee, to a tax-qualified pension, profit-sharing, or stock bonus plan
and received by such individual from such a plan;
``(4) in the case of a Member, officer, or employee engaged in a trade or
business in which the individual or his family holds a controlling interest
and in which both personal services and capital are income-producing
factors, any amount received by such individual so long as the personal
services actually rendered by the individual in the trade or business do
not generate a significant amount of income; and
``(5) copyright royalties for works published before becoming a Member,
officer, or employee of the House.''.
(b) Clause 3 of rule XLVII of the Rules of the House of Representatives
is further amended by adding at the end the following new paragraphs:
``(g) A Member, officer, or employee of the House may not--
``(1) receive any copyright royalties pursuant to a contract entered into
after becoming a Member, officer, or employee--
``(A) unless the royalty is received from an established publisher
pursuant to usual and customary contractual terms; and
``(B) without the prior approval of the contract by the Committee on
Standards of Official Conduct; or
``(2) receive any advance payment for any such work. However, the rule
does not prohibit literary agents, research staff, and other persons
working on behalf of the Member, officer, or employee, from receiving
advance payments directly from the publisher.
``(h) The Committee on Standards of Official Conduct, subject to such
exceptions as it deems appropriate, shall not approve any contract which
permits the deferral of royalty payments beyond the year in which
earned.''.
SEC. 2. EFFECTIVE DATE.
The amendments made by this resolution shall apply to copyright royalties
earned by a Member, officer, or employee of the House of Representatives
after December 31, 1995.
amendment in the nature of a substitute offered by mr. solomon
Mr. SOLOMON. Mr. Speaker, I offer an amendment in the nature of
a substitute.
The Clerk read as follows:
Amendment in the Nature of a Substitute offered by Mr. Solomon:
SECTION 1. AMENDMENT TO HOUSE RULE XLVII (LIMITATIONS ON OUTSIDE EMPLOYMENT
AND EARNED INCOME).
Rule XLVII of the rules of the House of Representatives is amended by
redesignating clause 3 as clause 4 and by inserting after clause 2 the
following new clause:
``3. A Member, officer, or employee of the House may not--
``(1) receive any advance payment on copyright royalties, but this
paragraph does not prohibit any literary agent, researcher, or other
individual (other than an individual employed by the House or a relative of
that Member, officer, or employee) working on behalf of that Member,
officer, or employee with respect to a publication from receiving an
advance payment of a copyright royalty directly from a publisher and solely
for the benefit of that literary agent, researcher, or other individual; or
``(2) receive any copyright royalties pursuant to a contract entered into
on or after January 1, 1996, unless that contract is first approved by the
Committee on Standards of Official Conduct as complying with the
requirement of clause 4(e)(5) (that royalties are received from an
established publisher pursuant to usual and customary contractual
terms).''.
SEC. 2. EFFECTIVE DATE.
The amendment made by section 1 shall take effect on January 1, 1996. . .
The SPEAKER pro tempore.(137) Pursuant to House
Resolution 322, the gentleman from New York [Mr. Solomon] and the
gentleman from Massachusetts [Mr. Moakley] will each be recognized
for 15 minutes.
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137. Douglas Bereuter (NE).
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The Chair recognizes the gentleman from New York [Mr. Solomon].
Mr. [John] MOAKLEY [of Massachusetts]. Mr. Speaker, I ask
unanimous consent that my 15 minutes of general debate be
controlled by the gentleman from Washington [Mr. McDermott].
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Massachusetts?
There was no objection.
Mr. SOLOMON. Mr. Speaker, I yield myself such time as I may
consume. . . .
The SPEAKER pro tempore (Mr. Bereuter). Pursuant to the House
Resolution 322, the previous question is ordered on the amendment
and on the resolution.
The question is on the amendment in the nature of a substitute
offered by the gentleman from New York [Mr. Solomon].
The question was taken; and the Speaker pro tempore announced
that the noes appeared to have it.
Mr. SOLOMON. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were yeas
219, nays 174, answered ``present'' 2, not voting 38, as follows:
[Roll No. 882] . . .
Mr. MFUME changed his vote from ``nay'' to ``yea.''
So the amendment in the nature of a substitute was agreed to.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore (Mr. Bereuter). The question is on the
resolution, as amended.
The question was taken; and the Speaker pro tempore announced
that the ayes appeared to have it
recorded vote
Mr. [James] McDERMOTT [of Washington]. Mr. Speaker, I demand a
recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes
259, noes 128, answered ``present'' 2, not voting 44, as follows:
[Roll No. 883] . . .
Sec. 6. Other Benefits; Office and Staff
Members of the House have the responsibility to administer their
congressional offices, both in Washington, D.C., and in their home
districts. On Capitol Hill, Members are provided with office space in
one of the three House office buildings named after former Speakers
Cannon, Longworth, and Rayburn.(1) Pursuant to
statute,(2) Members reelected to a subsequent Congress are
generally permitted to keep the same office in the new
Congress.(3) For freshman Members, a lottery system overseen
by the Chief Administrative Officer (CAO) and Architect of the Capitol
determines which Members receive which offices.(4) Members
typically maintain an office (or multiple offices) in their home
districts to facilitate constituent communications and
services.(5)
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1. The House has additional office space in the O'Neill and Ford
office buildings, used mostly for committee staff and other
House support offices. For more on the Capitol complex
generally, including House office buildings, see Deschler's
Precedents Ch. 4 and Precedents (Wickham) Ch. 4.
2. 2 U.S.C. Sec. 2004.
3. Statutory provisions also regulate the exchange of office space
between Members, the Architect of the Capitol's authority to
assign unused office space, and other matters relating to the
use of House facilities. See 2 U.S.C. Sec. Sec. 2001-2013.
4. Parliamentarian's Note: For much of the House's early history,
Members did not have individual offices but instead kept their
files and papers at their desks on the House floor. In 1845,
the House adopted its first lottery system for desk
assignments. In 1913, the individual desks in the Chamber were
replaced by benches, and Members were forced to relinquish
their desks and move their papers to their offices in the
newly-completed House office building (now known as the Cannon
House Office Building). For earlier descriptions of the process
for assigning office space to Members, see Deschler's
Precedents Ch. 4 Sec. 6; and 8 Cannon's Precedents
Sec. Sec. 3648-3655. For 19th century proposals to remove
individual Member desks, see 5 Hinds' Precedents Sec. 7282.
5. It was formerly the case that Members could be allocated office
space in Federal buildings located in their district. See
Deschler's Precedents Ch. 7 Sec. 8.6. However, this statutory
authority was repealed in the 95th Congress. See P.L. 95-391,
92 Stat. 763. Under modern practice, Members are responsible
for arranging their own office space, with rent and utilities
to be paid for out of the Members' Representational Allowance
(MRA).
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Members are also tasked with hiring staff to assist them in their
legislative duties. In modern practice, Members often retain large
staffs who fill a variety of positions within the office. Legislative
assistants and correspondents (overseen by a legislative director) are
most directly involved in advancing Members' legislative priorities.
Press secretaries and communications directors oversee Members' public
communications and announcements, while schedulers manage Members' time
commitments (i.e., floor votes, committee work, constituent services,
etc.) Additional staff are typically employed to assist with
constituent services and district work, information technology support,
and other administrative tasks. All of these positions are supervised
by a chief of staff, often assisted by a deputy chief of staff.
Although Members enjoy a great deal of freedom in making hiring
decisions, the House is subject to a variety of workplace rights, anti-
discrimination, and other employment laws.(6) The primary
statutory source for such rules is the Congressional Accountability Act
(CAA),(7) originally enacted in the 104th Congress in
1995.(8) The CAA applied a variety of Federal labor and
civil rights laws (such as the Fair Labor Standards Act and the Family
and Medical Leave Act) to the legislative branch.(9) It also
created the Office of Congressional Workplace Rights (originally titled
the Office of Compliance),(10) which is tasked with ensuring
that Members' offices comply with the terms of the CAA (through
education, dispute resolution, and other enforcement mechanisms). In
the 115th Congress, the House created an Office of Employee Advocacy to
provide legal advice and representation to congressional employees,
including Members' staff.(11) In the 116th Congress, the
House created the Office of Diversity and Inclusion to assist Members
in recruiting and retaining a diverse staff.(12)
Additionally, the House has required Members' offices to adopt anti-
discrimination and anti-harassment policies and to display a statement
of workplace rights at each office location.(13) Finally,
House rule XXIII (the Official Code of Conduct)(14) contains
provisions prohibiting Members from: engaging in discriminatory hiring
practices (clause 9); employing individuals who do not perform duties
``commensurate with the compensation'' such individuals receive (clause
8); and engaging in sexual activity with employees under the
supervision of the Member (clause 18). In several instances, Members
have been reprimanded or censured for improper hiring
practices.(15)
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6. For a discussion of employment practices of the House generally,
see Precedents (Wickham) Ch. 6 Sec. 28.
7. 2 U.S.C. Sec. Sec. 1301 et seq. See also Precedents (Wickham) Ch. 6
Sec. 28.3.
8. Parliamentarian's Note: Several earlier attempts by the House to
apply private-sector employment laws to House hiring practices
were ultimately overtaken by the CAA. For example, in the 100th
Congress in 1988, the House adopted the Fair Employment
Practices Resolution (focused on nondiscrimination in hiring
practices and dispute resolution), which was incorporated into
the standing rules in the following Congress. See Precedents
(Wickham) Ch. 6 Sec. 28.1. In the 103d Congress in 1994, the
so-called ``Application of Certain Laws'' Resolution applied a
variety of Federal workplace laws to the House in a similar
manner as the CAA. See Precedents (Wickham) Ch. 6 Sec. 28.2.
These House rules were rendered moot by the passage of the CAA
in the 104th Congress in 1995. See Precedents (Wickham) Ch. 6
Sec. 28.3.
9. 2 U.S.C. Sec. 1302.
10. In the 115th Congress, the Office of Compliance was redesignated as
the Office of Congressional Workplace Rights. See P.L. 115-397,
132 Stat. 5297.
11. The Office of Employee Advocacy was initially created by simple
House resolution. See H. Res. 724, 164 Cong. Rec. H813-H814
[Daily Ed.], 115th Cong. 2d Sess. (Feb. 6, 2018).
12. The Office of Diversity and Inclusion was created by a separate
order contained in the resolution adopting the rules for the
116th Congress. See H. Res. 6, 165 Cong. Rec. H22 [Daily Ed.],
116th Cong. 1st Sess. (Jan. 3, 2019). It was made part of the
standing rules (clause 9 of rule II) in the 117th Congress. See
H. Res. 8, 167 Cong. Rec. H13-H14 [Daily Ed.], 117th Cong. 1st
Sess. (Jan. 4, 2021). See also House Rules and Manual Sec. 670c
(2021).
13. This requirement was originally contained in House Resolution 724
of the 115th Congress. See 164 Cong. Rec. H813-H814 [Daily
Ed.], 115th Cong. 2d Sess. (Feb. 6, 2018). It was reiterated
via separate order in the resolution adopting rules for the
116th Congress (see H. Res. 6, 165 Cong. Rec. H21 [Daily Ed.],
116th Cong. 1st Sess. (Jan. 3, 2019)), and by the same method
in the 117th Congress (see H. Res. 8, 167 Cong. Rec. H15-H16
[Daily Ed.], 117th Cong. 1st Sess. (Jan. 4, 2021)).
14. House Rules and Manual Sec. 1095 (2021).
15. See, e.g., Sec. 6.10, infra.
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If a Member ceases to become a Member (by death, resignation, or
expulsion), the Clerk is required pursuant to clause 2(i) of rule
II(16) to ``supervise the staff and manage the office'' of
the Member who is no longer in office. Staff members continue to
receive salary and are overseen by the Clerk, who may terminate
existing employees or (with the approval of the Committee on House
Administration) appoint new employees.(17) These authorities
continue until a new Member is elected.(18) If a seat in the
House is vacant due to a state not issuing a certificate of election to
any individual for that seat, the Clerk will likewise supervise that
office until a special election can be held to fill the
vacancy.(19) In one instance, where a Member-elect had
fallen into a coma and was determined not to be able to take a seat in
the House, the House declared the seat vacant and provided authority
for the Clerk to administer the office until the vacancy had been
filled.(20) In another instance, the House adopted a
resolution on opening day seating neither claimant to a contested seat
and instructing the Clerk to administer the vacant office until the
election contest had been resolved.(21)
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16. House Rules and Manual Sec. 653 (2021).
17. Id.
18. For more on the management of Member offices following the death of
the Member, see Deschler's Precedents Ch. 38 Sec. 4. For older
practice regarding clerk-hires following the death of a Member,
see 6 Cannon's Precedents Sec. Sec. 208, 209. It was formerly
the case that, pursuant to law, former Speakers were provided
with staff assistance ``in connection with the administration,
settlement, and conclusion'' of matters relating to their
service as Speaker. 2 U.S.C. Sec. 5128 (now repealed). Under
former clause 2(i)(2) of rule II, the Clerk would supervise
such staff for 60 days following the death of a former Speaker.
House Rules and Manual Sec. 653 (2021). However, this provision
of law was repealed in the 115th Congress (P.L. 115-244, 132
Stat. 2897) and the House rule eliminated at the outset of the
117th Congress (H. Res. 8, 167 Cong. Rec. H13 [Daily Ed.],
117th Cong. 1st Sess. (Jan. 4, 2021)).
19. Parliamentarian's Note: At the beginning of the 116th Congress, no
certificate of election from the Ninth District of North
Carolina had been received by the Clerk, and the Clerk
supervised the office until the seat was filled via special
election. See House Rules and Manual Sec. 653 (2021).
20. See Sec. 6.8, infra. See also Precedents (Wickham) Ch. 2 Sec. 1.6.
21. See Precedents (Smith) Ch. 9 Sec. 20.1. See also Precedents
(Wickham) Ch. 2 Sec. 4.1.
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Pursuant to law,(22) Members are provided with an
allowance to fund all aspects of their congressional office. This lump-
sum amount is known as the Members' Representational Allowance (MRA),
``which shall be available to support the conduct of the official and
representational duties of a Member of the House of
Representatives.''(23) Members use this allowance to fund:
the salaries of staff; office and administrative expenses; official
mail and communications; rent and utilities (for district office
space); and travel.(24) The use of MRAs is regulated by
several different entities. Under House rule, the Committee on House
Administration retains jurisdiction over Members' ``allowance and
expenses''(25) and under statute, the committee has the
authority to prescribe regulations on the use of the
MRA.(26) The House Communications Standards
Commission(27) issues regulations regarding the proper use
of the franking privilege (a privilege now funded through the
MRA).(28) Finally, the House Committee on Ethics may issue
advisory opinions or otherwise provide information to Members regarding
permissible and impermissible uses of the MRA.(29) There are
strict prohibitions in place against using the MRA for personal
expenses, or for campaign purposes.(30) Disbursements from
each Members' MRA account are published by the CAO.(31)
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22. 2 U.S.C. Sec. Sec. 5341 et seq.
23. 2 U.S.C. Sec. 5341(a).
24. The MRA is formally divided into three categories of spending:
personnel, office expenses, and official mail (franking). The
amount for office expenses varies from Member to Member based
on the characteristics of the district, but personnel amounts
are the same for every Member. Approximately 70% of the MRA is
allocated for personnel expenses. See Members' Representational
Allowance: History and Usage, CRS Report R40962 (Mar. 24,
2022).
25. Rule X, clause 1(k)(1); House Rules and Manual Sec. 724 (2021).
26. 2 U.S.C. Sec. 5341(d).
27. The House Commission on Congressional Mailing Standards was
redesignated as the House Communications Standards Commission
in the 116th Congress. See P.L. 116-260, 134 Stat. 1182.
28. 2 U.S.C. Sec. 501. The Official Mail Allowance was merged into the
MRA in the 104th Congress. 2 U.S.C. Sec. 5341(b).
29. See House Ethics Manual (2008 Edition), Committee on Standards of
Official Conduct, 110th Cong. 2d Sess., pp. 323-333.
30. Members' Congressional Handbook, Committee on House Administration,
117th Cong. 2d Sess. (Apr. 5, 2022), p. 2.
31. These statements of disbursements have been required by statute
since 1964. See P.L. 88-454, 79 Stat. 535. These provisions of
law have been codified at 2 U.S.C. Sec. 4108.
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Office and Staff--Historical Practices
For much of the House's early history, Members generally did not
hire large staffs to assist them with their congressional duties as
under modern practice. The House Page program began in the 19th
century,(32) and pages would attend to Members on the House
floor, but there was no system to provide individual Members with
clerks, secretaries, or other assistants. It was only in 1893 that the
House first instituted a clerk-hire program, whereby Members would
certify the hiring of personal clerks whose salaries would then be
reimbursed by the House.(33) In 1907, Members were given a
lump sum amount to hire any clerks they wished,(34) subject
to certain limitations regarding the number of clerks and the total
compensation any one clerk could receive.(35) Subsequent
statutory enactments(36) in 1923, 1939, 1955, and 1956, made
further adjustments to these limitations (generally increasing both the
maximum number of permitted clerks and their compensation).
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32. For more on the House Page program, see Precedents (Wickham) Ch. 6
Sec. 24.
33. See 2 Hinds' Precedents Sec. Sec. 1151, 1152.
34. See 2 Hinds' Precedents Sec. 1151; and 6 Cannon's Precedents
Sec. 206.
35. See 6 Cannon's Precedents Sec. Sec. 206, 207. Older precedents also
describe opinions of the Comptroller General regarding the
status of clerks upon the death of a Member (6 Cannon's
Precedents Sec. Sec. 208, 209), the hiring of clerks by
multiple Members (6 Cannon's Precedents Sec. 210), and the
timing of clerks' compensation (6 Cannon's Precedents
Sec. Sec. 211, 212). Special rules also regulated the hiring of
clerks by committees. See 2 Hinds' Precedents Sec. 1152.
36. See 42 Stat. 1217; 53 Stat. 1080; 69 Stat. 509; and 70 Stat. 990.
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Beginning in the 92d Congress in 1971, the House empowered the
Committee on House Administration to make adjustments to a variety of
House administrative accounts, including Members' clerk-hire
accounts.(37) Such adjustments would take place via orders
issued by the committee and typically published in the Congressional
Record. The clerk-hire account was increased on several occasions
during the period in which the Committee on House Administration
retained this authority.(38)
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37. See Deschler's Precedents Ch. 7 Sec. 8.
38. See Deschler's Precedents Ch. 7 Sec. Sec. 8.1, 8.2, and 8.4.
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A similar evolution occurred with respect to other aspects of
Members' office operations. Beginning in the late 19th century, the
Clerk was tasked with maintaining a stationery room, and Members were
given a lump sum amount to purchase stationery from the
Clerk.(39) In 1920, Congress enacted statutory
authority(40) for Members to purchase stationery from the
Public Printer.(41) These stationery accounts were
transferred to the jurisdiction of the Committee on House
Administration in the 92d Congress, when the committee was authorized
to make unilateral adjustments in all such office
accounts.(42) Allowances for postage stamps, electronic
equipment, telephone service, and other office furnishings were all
subject to periodic adjustments by the Committee on House
Administration, funded through the contingent fund for House
operations. The committee would typically provide notice to Members of
such adjustments via publication in the Congressional
Record.(43)
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39. See 2 Hinds' Precedents Sec. Sec. 1161, 1162. A statute from 1923
prohibited using the stationery allowance to purchase
nonstationery items. See 6 Cannon's Precedents Sec. 213.
40. See 6 Cannon's Precedents Sec. 214.
41. Parliamentarian's Note: The position of Public Printer of the
United States was formally established in 1876 to be head of
the Government Printing Office. In 2014, the office was
redesignated as the Government Publishing Office (GPO), and the
title of Public Printer was changed to Director of GPO. See
P.L. 113-235, 128 Stat. 2130. At the time of this writing, the
Director of GPO is Mr. Hugh Halpern (a former staff director
for the House Committee on Rules).
42. See Deschler's Precedents Ch. 7 Sec. 8.3. The original authority
was provided by House Resolution 457 of the 92d Congress, made
permanent law by P.L. 92-184, 85 Stat. 627. For an example of a
periodic adjustment to one of these accounts, see Sec. 6.1,
infra. See also 120 Cong. Rec. 40960, 93d Cong. 2d Sess. (Dec.
18, 1974); 121 Cong. Rec. 5556, 94th Cong. 1st Sess. (Mar. 6,
1975); 121 Cong. Rec. 15483, 94th Cong. 1st Sess. (May 20,
1975); 122 Cong. Rec. 21623-24, 94th Cong. 2d Sess. (June 30,
1976); and Deschler's Precedents Ch. 7 Sec. Sec. 8.4-8.7. For
an example of a modification to an existing committee order
under this former authority, see Sec. 6.2, infra.
43. For parliamentary inquiries regarding this practice, see Sec. 6.3,
infra.
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In the 95th Congress in 1976, the authority to make overall
adjustments to these accounts was significantly
restricted,(44) though separate accounts were still
maintained for different aspects of Members' staffing and office
needs.(45) Between 1976 and 1995, these individual accounts
were gradually consolidated until the House ultimately established a
single account to address all aspects of Members' representational and
legislative duties.(46) This single account is known as the
Members' Representational Allowance (MRA).
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44. See Sec. 6.4, infra. The restrictions on authority were made
permanent by P.L. 94-440, 90 Stat. 1443.
45. For examples of adjustments made within a single account, see
Sec. Sec. 6.5, 6.6, infra.
46. See Sec. 6.7, infra. See also 2 U.S.C. Sec. Sec. 5341 et seq.
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Other Benefits
Members of the House receive additional benefits similar to those
routinely provided in the private sector and the other branches of
government. The two most significant benefits are health insurance and
retirement benefits.
With respect to health insurance, the Affordable Care Act (ACA),
enacted in 2010, requires all Members with government health insurance
to obtain it through the District of Columbia Health Benefit Exchange
Authority.(47) Members make contributions to their health
insurance payments via salary deductions, and the Federal government
acts as Members' ``employer'' for purposes of employer
contributions.(48)
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47. This provision is found in section 1312 of the ACA. See P.L. 111-
148, 124 Stat. 119; and D.C. Code Sec. 31-3171.
48. See Health Benefits for Members of Congress and Designated
Congressional Staff: In Brief, CRS Report R43194 (Jan. 13,
2017).
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Prior to the advent of the ACA, Members could obtain health
insurance through the Federal Employees Health Benefits Program
(FEHBP).(49) This program, originally created in
1959,(50) offers health insurance to all Federal employees,
including those in the executive and judicial branches, and certain
legislative branch employees.(51)
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49. See Federal Employees Health Benefits (FEHB) Program: An Overview,
CRS Report R43922 (Feb. 3, 2016).
50. P.L. 86-382, 73 Stat. 708.
51. The ACA requires Members and certain designated staff to obtain
health insurance through the District of Columbia. However,
many congressional staff remain within the FEHB system.
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Additionally, Members are eligible for certain Federal health
programs that provide other kinds of medical coverage. These include
the Federal Flexible Spending Account Program (FSAFEDS) (which allows
Members to contribute pre-tax dollars to health savings accounts), and
the Federal Employees Dental and Vision Insurance Program (FEDVIP)
(which provides supplementary vision and dental
insurance).(52) Members are also eligible to participate in
the Federal Long Term Care Insurance Program (FLTCIP).(53)
Members pay a tax on their wages to fund the Medicare (Part A) program,
and Members over 65 years of age are eligible to take Medicare
benefits.(54)
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52. See Health Benefits for Members of Congress and Designated
Congressional Staff: In Brief, CRS Report R43194 (Jan. 13,
2017).
53. Id.
54. Id.
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The House first provided Members with retirement benefits in
1946(55) (following the advent of the Social Security system
in the 1930s). Members were initially placed in the Civil Service
Retirement System that had been created in 1920 for Federal
employees.(56) In the 1980s, Federal employees were brought
into the Social Security system, and a new Federal retirement program
(called the Federal Employees Retirement System (FERS)) was created to
integrate contributions and benefits and avoid
duplication.(57) For a time, Members could choose from among
several different retirement programs, until the older Civil Service
Retirement System was gradually phased out. In the 108th Congress in
2003, Members began to be automatically enrolled in the FERS system, in
addition to Social Security.(58) FERS and Social Security
contributions are deducted from Members' salaries. The FERS system
allows Members to take an annuity (pension) based on years of service,
and also provides a voluntary contribution system (with employer
matching) to a separate retirement account.(59)
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55. These benefits were provided as part of the Legislative
Reorganization Act of 1946. See P.L. 79-601, 60 Stat. 812.
56. See P.L. 66-215, 41 Stat. 614.
57. See Retirement Benefits for Members of Congress, CRS Report RL30631
(Aug. 8, 2019).
58. P.L. 108-83, 117 Stat. 1007.
59. See Retirement Benefits for Members of Congress, CRS Report RL30631
(Aug. 8, 2019).
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Members are entitled to receive certain government documents as
part of their congressional service, including copies of the
Congressional Record,(60) the House Journal,(61)
and the United States Code.(62) The House Rules and Manual
is published each Congress pursuant to House resolution,(63)
and distributed to Members by the House Parliamentarian. Similarly,
volumes of House precedents are published pursuant to
law,(64) and ``printed in sufficient quantity to be
available to every Member''(65) of the House.
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60. 44 U.S.C. Sec. 906.
61. Rule II, clause 2(c)(3); House Rules and Manual Sec. 647 (2021).
62. 2 U.S.C. Sec. 5345. The statute specifies that Members must request
the U.S. Code from the Clerk, and that it shall be paid for out
of the MRA.
63. See Precedents (Wickham) Ch. 5 Sec. 2.1.
64. 2 U.S.C. Sec. 28.
65. 2 U.S.C. Sec. 28a. A similar provision of law authorizes the
printing and distribution to Members of a condensed and up-to-
date version of the House's parliamentary precedents (known as
House Practice: A Guide to the Rules, Precedents, and
Procedures of the House). See 2 U.S.C. Sec. 29.
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The Franking Privilege
The ``franking privilege'' refers to the ability of Members of
Congress to use the U.S. postal system free of charge to communicate
with their constituents.(66) While other Member privileges
are constitutional in origin, the franking privilege is a statutory
privilege only--albeit one with a longstanding history in American
legislative practice.(67) Although the advent of electronic
communication has provided Members with many efficient methods of
communicating with their constituents, the franking privilege remains
an important part of modern House practice.
---------------------------------------------------------------------------
66. Parliamentarian's Note: Although the franking privilege is
exercised primarily by Members of Congress, others (such as
executive branch officials and military personnel) have
exercised similar prerogatives with respect to the postal
system. For more information, see Franking Privilege:
Historical Development and Options for Change, CRS Report
RL34274 (May 3, 2016).
67. Parliamentarian's Note: The franking privilege in fact predates the
Constitution. Derived from British practice in the House of
Commons, this privilege was exercised by officials in the
colonial period, and the First Continental Congress enacted
legislation to extend this privilege to its members. A variety
of government officials under the Articles of Confederation
were afforded the same privilege to use the postal system
without charge, including members of its Congress, heads of
departments, and certain military officers. See Franking
Privilege: Historical Development and Options for Change, CRS
Report RL34274 (May 3, 2016).
---------------------------------------------------------------------------
Members' use of franked mail has evolved considerably since the
first franking statute was enacted in 1789.(68) Initially,
there were few restrictions on what Members could send under their
frank, and early practice allowed constituents to send material to
Members free of charge as well.(69) Perceived abuse of this
system led to numerous accounting reforms in the 19th century, aimed at
controlling costs and reducing burdens on the postal system. The
franking privilege was even temporarily abolished in 1873 but fully
restored in 1895. Its restoration was accompanied by various new
regulations involving weight limits and restrictions on when franked
mail could be sent.(70) Government documents of various
kinds (including excerpts of the Congressional Record)(71)
could be sent under the frank, as well as agricultural seeds provided
by the Department of Agriculture.(72) However, the inclusion
of unfrankable matter (such as personal communications) destroyed the
privilege.(73) Former Members were also allowed to exercise
the franking privilege, until December 1 following the expiration of
their term (a privilege eliminated in 1975).(74)
---------------------------------------------------------------------------
68. 1 Stat. 70.
69. The privilege of receiving franked mail from constituents was
eliminated in 1895. For a 1930 opinion of an Assistant
Postmaster General indicating that no provision of law
permitted using the frank for return reply, see 6 Cannon's
Precedents Sec. 219.
70. For a description of franking practices in the early 20th century,
see 2 Hinds' Precedents Sec. 1163.
71. See, e.g., Deschler's Precedents Ch. 7 Sec. 7.4.
72. For a description of special packing boxes provided to Members for
franked mail (including the transmission of seeds and plants),
see 6 Cannon's Precedents Sec. 215. For a description of the
use of the frank to send telegrams or cablegrams, see 6
Cannon's Precedents Sec. Sec. 217, 220.
73. See, e.g., 6 Cannon's Precedents Sec. 221.
74. See 6 Cannon's Precedents Sec. 217. This provision was later
changed to move the expiration of the privilege back to April
1. See P.L. 93-191, 87 Stat. 737. See also Deschler's
Precedents Ch. 7 Sec. 7. The privilege for former Members was
eliminated in the 94th Congress. See P.L. 94-177, 89 Stat.
1032. Nothing may be mailed under the frank of a deceased
Member. See 6 Cannon's Precedents Sec. 224.
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The mid-20th century saw increased scrutiny of the practice of
franking, and for the first time Congress began to reimburse the Post
Office for the cost of franked mail.(75) Lawsuits
challenging the constitutionality of the franking privilege were also
initiated during this time.(76) Consequently, the 1970s saw
a number of substantial reforms to the franking privilege, including a
comprehensive new franking statute enacted in the 93d Congress in
1973.(77) This statute created the House Commission on
Congressional Mailing Standards (now the House Communications Standards
Commission) to regulate the use of the frank by House
Members.(78) Membership on the commission is determined by
the Speaker of the House, who (pursuant to statute) must appoint three
Members each from the majority and minority parties in the House, and
designate as chair a Member who serves on the Committee on House
Administration.(79) The Commission issues advisory opinions
and regulations to enforce statutory provisions regarding proper use of
the frank. The Commission may also undertake investigations of alleged
violations, which may be subject to judicial review or a referral to
the House Committee on Ethics.(80) The rules and practices
of the Commission have been published in the Congressional Record for
the information of Members.(81)
---------------------------------------------------------------------------
75. See Franking Privilege: Historical Development and Options for
Change, CRS Report RL34274 (May 3, 2016).
76. See Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982). The
advocacy group Common Cause had argued that the franking
privilege violated the First and Fifth amendments to the
Constitution by providing an indirect, government-funded
subsidy for incumbent Members of Congress (i.e., that free use
of the mail gave incumbents an unfair advantage in their
reelection campaigns). The United States District Court for the
District of Columbia upheld the constitutionality of the
franking privilege, stating that, while the potential for abuse
did exist, the statute was designed to restrict the frank to
legitimate, official government communications (rather than
campaign communications), and that any impact on electoral
processes was speculative. For resolutions authorizing
compliance with subpoenas issued in this case, and subsequently
authorizing the House Commission on Congressional Mailing
Standards (now the House Communications Standards Commission)
to intervene, see Sec. Sec. 6.15, 6.16, infra. In 1992, a
similar case was brought, challenging the constitutionality of
a provision that allowed franked mail to be sent to persons not
in the Member's district, but who may become part of the
district due to decennial redistricting. There, the D.C.
Circuit Court did find a direct connection between the mailings
and electoral processes, applied a ``heightened scrutiny''
analysis to the provision, and found it to be constitutionally
impermissible. See Coalition to End the Permanent Congress v.
Martin T. Runyon et al., 979 F.2d 219 (D.C. Cir. 1992). The
provision was formally repealed in the 102d Congress. See P.L.
102-392, 106 Stat. 1703.
77. P.L. 93-191, 87 Stat. 737.
78. In the Senate, use of the frank by Senators is regulated by the
Senate Select Committee on Ethics. Senate Select Committee on
Ethics: A Brief History of Its Evolution and Jurisdiction, CRS
Report RL30650 (Mar. 22, 2021).
79. 2 U.S.C. Sec. 501. The statute refers to the Committee on Post
Office and Civil Service, but that committee was eliminated in
the 104th Congress and its jurisdiction over the franking
privilege transferred to the Committee on House Oversight. The
Committee on House Oversight was redesignated as the Committee
on House Administration in the 106th Congress. House Rules and
Manual Sec. 724 (2021).
80. 2 U.S.C. Sec. 501. The Committee on Standards of Official Conduct
was redesignated as the Committee on Ethics at the beginning of
the 112th Congress. House Rules and Manual Sec. 721b (2021).
81. See Sec. 6.12, infra.
---------------------------------------------------------------------------
In 1977, further changes were made to the franking privilege in the
House via amendments to the House rules. As part of a larger package of
ethics reforms, the House amended its rules to provide further
limitations on the use of the frank, including restrictions on the
number of mass mailings per year and an expansion of the time period
prior to an election in which mass mailings are
prohibited.(82) Many of these provisions were codified in
statute in the 97th Congress.(83)
---------------------------------------------------------------------------
82. See H. Res. 287, 123 Cong. Rec. 5933-53, 95th Cong. 1st Sess. (Mar.
2, 1977).
83. See P.L. 97-69, 95 Stat. 1041.
---------------------------------------------------------------------------
Subsequent reforms to the practice of franking generally addressed
issues of cost and transparency. In the 101st Congress in 1990, the
House established a separate official mail allowance for House Members,
subject to regulations issued by the Committee on House
Administration.(84) Thus, for the first time, Members were
subject to an overall limit on franked mail expenditures, with monthly
updates from the Postmaster General as to the rate of expenditure. In
the 104th Congress in 1995, the separate official mail allowance was
eliminated when all remaining Member allowances were consolidated into
the MRA, although it remained one of the three subcategories of
permissible expenses.(85) In the 105th Congress in 1996,
official mail expenses of Members were required to be included in the
Statement of Disbursements published by the CAO.(86) In the
110th Congress in 2008, the Committee on House Administration required
Members to disclose the cost of mass communications on a quarterly
basis.(87) In the 116th Congress, new statutory provisions
were enacted that redesignated the House Commission on Congressional
Mailing Standards as the House Communications Standards Commission, and
expanded the commission's jurisdiction to cover any official mass
communications (including digital communications).(88)
---------------------------------------------------------------------------
84. P.L. 101-520, 104 Stat. 2254.
85. See fn. 24, supra.
86. P.L. 104-197, 110 Stat. 2394. This law also required all franked
mail to include a notice stating that ``This mailing was
prepared, published, and mailed at taxpayer expense.''
87. See Franking Privilege: Historical Development and Options for
Change, CRS Report RL34274 (May 3, 2016).
88. P.L. 116-260, 134 Stat. 1182.
---------------------------------------------------------------------------
Although an allegation that a Member has misused the franking
privilege may be raised as a question of privilege as an ethics
matter,(89) a resolution that constitutes a change in House
rules regarding the franking privilege does not qualify as a question
of privilege under rule IX.(90) A resolution disapproving of
the actions of certain members of the House Commission on Congressional
Mailing Standards (now the House Communications Standards Commission)
constitutes a valid question of the privileges of the
House.(91)
---------------------------------------------------------------------------
89. See Deschler's Precedents Ch. 12 Sec. 5. For an example of a Member
rising to a point of personal privilege in response to an
accusation that he had misused the franking privilege, see
Deschler's Precedents Ch. 7 Sec. 7.5.
90. See Sec. 6.13, infra. For more on questions of privilege generally,
see Deschler's Precedents Ch. 11; and Precedents (____) Ch. 11.
91. See Sec. 6.14, infra.
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Former Practice: Committee on House Administration Orders
Sec. 6.1 During the 92d through 94th Congresses,(92) the
Committee on House Administration was authorized to issue committee
orders making adjustments to a variety of House accounts used by
Members for staffing and office management.
---------------------------------------------------------------------------
92. Parliamentarian's Note: This authority was significantly restricted
in the 94th Congress. See Sec. 6.4, infra. The committee
retained the ability to make adjustments within individual
accounts even after the authority to adjust overall levels was
restricted. See Sec. Sec. 6.5, 6.6, infra. Under current
practice, the committee retains the authority to make
adjustments in the single remaining account: the MRA. 2 U.S.C.
Sec. 4313.
---------------------------------------------------------------------------
Prior to the advent of the MRA, Members' staffing and office
expenses were funded through a variety of separate accounts, each of
which could be adjusted by the Committee on House Administration via
the issuance of committee orders. The following order of August 20,
1974,(93) was published in the Congressional Record for the
information of Members:
---------------------------------------------------------------------------
93. 120 Cong. Rec. 29407, 93d Cong. 2d Sess. For examples of similar
committee orders published in the Congressional Record, see 120
Cong. Rec. 40960, 93d Cong. 2d Sess. (Dec. 18, 1974); 121 Cong.
Rec. 5556, 94th Cong. 1st Sess. (Mar. 6, 1975); 121 Cong. Rec.
15483, 94th Cong. 1st Sess. (May 20, 1975); and 122 Cong. Rec.
21623-24, 94th Cong. 2d Sess. (June 30, 1976). See also
Deschler's Precedents Ch. 7 Sec. 8.4.
---------------------------------------------------------------------------
CHANGES IN ALLOWANCES FOR MEMBERS
The SPEAKER pro tempore.(94) Under a previous order
of the House, the gentleman from New Jersey (Mr. Thompson) is
recognized for 5 minutes.
---------------------------------------------------------------------------
94. John McFall (CA).
---------------------------------------------------------------------------
Mr. [Frank] THOMPSON of New Jersey. Mr. Speaker, House
Resolution 457, 92d Congress, provided the Committee on House
Administration the authority to fix and adjust from time to time
various allowances of Members of the House of Representatives.
Pursuant to this authority the committee has issued order Nos. 13
and 14 as follows:
committee order no. 13
Resolved, That in addition to postage stamps authorized to be furnished
under any other provision of law, until otherwise provided by order of the
Committee on House Administration, the Clerk of the House of
Representatives shall for each regular session of Congress procure and
furnish United States postage stamps to each Representative, the Resident
Commissioner of Puerto Rico, and the Delegates from the District of
Columbia, Guam, and the Virgin Islands in an amount not exceeding $230, and
to each standing committee of the House of Representatives upon request of
the chairman thereof, in an amount not exceeding $140. In addition to
postage stamps authorized under any other provision of law, until otherwise
provided by order of the Committee on House Administration, the Speaker,
the majority and minority leaders, and the majority and minority whips of
the House of Representatives shall each be allowed United States postage
stamps in an amount not exceeding $205.
committee order no. 14
Resolved, that until otherwise provided by order of the Committee on
House Administration; the allowance for Stationery for each Member of the
House of Representatives, Delegate, and Resident Commissioner, shall be
$6,500 per regular session. Such payment shall be made to each Member,
Delegate, and the Resident Commissioner serving as such on or after the
date of adoption of this resolution.
Sec. 6.2 During the 92d through 94th Congresses, the Committee on House
Administration's authority to issue committee orders adjusting the
level of Members' office accounts encompassed the authority to
modify an existing committee order.
On October 30, 1975,(95) the Committee on House
Administration issued a committee order making a modification to a
prior order adjusting the amount available for leasing office
equipment:
---------------------------------------------------------------------------
95. 121 Cong. Rec. 34463, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
HOUSE ADMINISTRATION COMMITTEE ORDER NO. 24
The SPEAKER pro tempore.(96) Under a previous order
of the House, the gentleman from Ohio (Mr. Hays) is recognized for
5 minutes.
---------------------------------------------------------------------------
96. John McFall (CA).
---------------------------------------------------------------------------
Mr. [Wayne] HAYS of Ohio. Mr. Speaker, House Resolution 457,
92d Congress, enacted by Public Law 92-184 into permanent law on
December 15, 1971, provides the Committee on House Administration
the authority to fix and adjust from time to time various
allowances of members, the Resident Commissioner from Puerto Rico
or a delegate to the House of Representatives. Pursuant to this
authority the committee has issued order No. 24 which is effective
October 1, 1975.
Committee Order No. 24 incorporates and supersedes committee
order No. 18, and increases from $650 to $750 the amount authorized
to lease equipment utilized in connection with official duties as
prescribed by the regulations of the Committee on House
Administration. This increase is merely to cover the rise in the
monthly rental rates that have occurred since the leasing program
was instituted.
The order follows:
committee order no. 24
Resolved, That effective October 1, 1975, until otherwise provided by
order of the Committee on House Administration, each Member, the Resident
Commissioner from Puerto Rico or a Delegate to the House of Representatives
is authorized a $750 per month allowance to lease office equipment, and
upon written request to the Committee on House Administration, a Member,
the Resident Commissioner from Puerto Rico or a Delegate to the House of
Representatives may allocate an amount not to exceed $250 a month of any
unused portion of his or her clerk hire allowance for the leasing of
equipment necessary for the conduct of his or her office in connection with
his or her official duties. The said monthly allowances are not cumulative.
Sec. 6.3 In response to a parliamentary inquiry, the Speaker affirmed
that committee orders issued by the Committee on House
Administration regarding adjustments to Members' office accounts
took effect upon final action by the committee, and not at the time
such orders were published in the Congressional
Record.(97)
---------------------------------------------------------------------------
97. Parliamentarian's Note: Under former practice described here, the
Committee on House Administration could effectuate adjustments
in various individual accounts used by Members to manage their
offices. Under current practice, Members receive a single
account (the MRA). The committee retains the authority to make
adjustments to the MRA via committee order, and although such
orders are typically published in the Congressional Record,
such publication is not required.
---------------------------------------------------------------------------
On June 29, 1976,(98) the Speaker addressed the
following parliamentary inquiries regarding committee orders issued by
the Committee on House Administration:
---------------------------------------------------------------------------
98. 122 Cong. Rec. 21146, 21150, and 21168, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
REQUEST TO INSERT MATERIAL IN RECORD
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, I ask
unanimous consent that I may be permitted to insert some statements
at this point in the Record.
The SPEAKER.(99) Is there objection to the request
of the gentleman from New Jersey?
---------------------------------------------------------------------------
99. Carl Albert (OK).
---------------------------------------------------------------------------
Mr. [Robert] BAUMAN [of Maryland]. Reserving the right to
object, Mr. Speaker, will the gentleman from New Jersey tell us
whether these are the orders of the Committee on House
Administration that were adopted Monday?
Mr. THOMPSON. If the gentleman will yield, they are.
Mr. BAUMAN. Mr. Speaker, I object.
The SPEAKER. Objection is heard. . . .
parliamentary inquiry
Mr. BAUMAN. Mr. Speaker, I have a parliamentary inquiry.
The SPEAKER. The gentleman will state his parliamentary
inquiry.
Mr. BAUMAN. Mr. Speaker, is it not a fact that under the terms
of House Resolution 475, adopted in 1971, if the gentleman enters
these statements into the Record, then they have the force and
effect of law and the allowances are effective without letting the
full House work its will? That is what I object to strongly.
The SPEAKER. The Chair will state that the Chair is not aware
of that requirement for printing in the Record. . .
. -------------------
EXPLANATION OF REQUEST TO INSERT IN RECORD ORDERS OF COMMITTEE
ON HOUSE ADMINISTRATION
(Mr. BOLLING asked and was given permission to address the
House for 1 minute and to revise and extend his remarks.)
Mr. [Richard] BOLLING [of Missouri]. Mr. Speaker, I asked for
this time in order to clarify some facts, but not to engage in
controversy, with respect to the content of the orders that the
Committee on House Administration has issued, which will be worked
out in detail, I am sure, by the various members of the committee,
minority and majority.
However, Mr. Speaker, I think it is important for the Members
not to have the misconception that in order for those orders to
have the force of law, they must be published in the Record.
Mr. Speaker, I would like to read from the law simply so that
all Members will understand the facts. I read as follows:
Until otherwise provided by law, the Committee on House
Administration, may, as the Committee considers appropriate, fix
and adjust from time to time, by order of the Committee, the
amounts of allowances (including the terms, conditions, and other
provisions pertaining to those allowances) within the following
categories . . .
Then, Mr. Speaker, it goes on at length.
The matter of the unanimous-consent request was merely an
attempt to comply, as I understand it, with the spirit of the
debate which took place on July 21, 1971, when that law was passed
by the House. In effect, it said that the committee would take care
to assure the Members of the content of any action. Therefore, the
unanimous-consent request to put the orders in the Record would not
have any effect on their having the force of law; and it was merely
an attempt to comply with the spirit of the debate when the law was
enacted.
Mr. Speaker, I started out by saying that I have no intention
of getting involved in the controversy over the content of the
orders, and I do not. . .
. -------------------
REQUEST FOR EXTENSION OF REMARKS
Mr. [Philip] SHARP [of Indiana]. Mr. Speaker, I ask unanimous
consent that the following Members be permitted to extend their
remarks and to include additional matter in that section of the
Record entitled ``Extensions of Remarks'':
Mr. Gonzalez in three instances. . . .
Mr. Brademas in three instances.
Mr. Thompson in three instances.
Mr. BAUMAN. Mr. Speaker, I reserve the right to object to the
request regarding the gentleman from New Jersey (Mr. Thompson).
The SPEAKER. The gentleman from Maryland reserves the right to
object to the inclusion of the name of the gentleman from New
Jersey (Mr. Thompson). . . .
The SPEAKER. The gentleman will state his parliamentary
inquiry.
Mr. BAUMAN. Mr. Speaker, my parliamentary inquiry is this: Is
the opinion expressed by the distinguished gentleman from Missouri
(Mr. Bolling), earlier today that these orders take effect upon the
date the committee finally acts upon them, rather than upon any
printing in the Record at a subsequent time, correct?
The SPEAKER. The Chair will state that the statement the
gentleman from Missouri (Mr. Bolling) made was accurate.
Mr. BAUMAN. So that no objection to a request to insert them in
the Record from any Member would prevent them from taking effect?
The SPEAKER. They would take effect immediately upon the final
action of the Committee on House Administration. If thereafter
either placed in the Record or sent out by other means such as a
Dear Colleague letter, that is simply for the convenience of the
Members.
Mr. BAUMAN. Further inquiring of the Chair, may I also
understand that such committee orders take effect at a time when
the Committee on House Administration finally acts on language that
all Members understand to be the form agreed upon.
The SPEAKER. The Chair is of the opinion that when they take
effect should be reflected by the minutes of the committee, which
should show exactly what they did and when.
Mr. BAUMAN. I thank the Chair for his indulgence, and I
withdraw my reservation of objection. . . .
Sec. 6.4 In the 94th Congress, the House significantly restricted the
authority for the Committee on House Administration to issue
committee orders adjusting the overall level of Members' staffing
and office accounts.(100)
---------------------------------------------------------------------------
100. Parliamentarian's Note: Following this change to the rules of the
House, the Committee on House Administration retained the
ability to make adjustments within any single account. See,
e.g., Sec. Sec. 6.5, 6.6, infra.
---------------------------------------------------------------------------
On July 1, 1976,(101) the House adopted the following
resolution significantly restricting the authority for the Committee on
House Administration to make overall adjustments to Members' office
accounts via committee order:
---------------------------------------------------------------------------
101. 122 Cong. Rec. 21815-16, 21823-25, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
The SPEAKER.(102) The Clerk will report House
Resolution 1372.
---------------------------------------------------------------------------
102. Carl Albert (OK).
---------------------------------------------------------------------------
The Clerk read as follows:
H. Res. 1372
Resolved, That, (a) until otherwise provided by law, any allowance
specified in subsection (a)(1) of the first section of H. Res. 457, Ninety-
second Congress, relating to expenditures of funds from the contingent fund
of the House of Representatives for certain allowances to Members,
officers, and standing committees of the House (2 U.S.C. 57), adopted July
21, 1971, and enacted as permanent law by the Supplemental Appropriations
Act, 1972 (Public Law 92-184; 85 Stat. 627), hereinafter in this section
referred to as ``H. Res. 457, Ninety-second Congress'', may be fixed or
adjusted only through the adoption of a resolution by the House of
Representatives, except that the Committee on House Administration may fix
or adjust such allowance in any case in which such action by such committee
is made necessary by--
(1) any change in the price of materials, services, or office space;
(2) any technological change or other improvement in electrical or
mechanical equipment; or
(3) any increase in the cost of living which results in action under the
Federal Pay Comparability Act of 1971.
(b) Upon the date of the adoption of this resolution, the authority of
the Committee . . . on House Administration under H. Res. 457, Ninety-
second Congress, shall be subject to the provisions of this resolution.
The SPEAKER. Pursuant to the rule, on this resolution the
gentleman from New Jersey (Mr. Thompson) and the gentleman from
Alabama (Mr. Dickinson) will each be recognized for 30 minutes.
The Chair recognizes the gentleman from New Jersey (Mr.
Thompson).
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, I yield
myself 10 minutes. . . .
The committee met all day on last Thursday and again on last
Friday, except during the times when because we could not get
unanimous consent, we could not sit during the 5-minute rule. One
of the results of that series of meetings--and the last meeting was
on this past Monday when the committee convened at 8 o'clock a.m.
and worked for many, many hours--was the adoption of nine items,
three of which are proposed regulations, the remainder of which are
committee orders, which under the 1971 act have the force of law.
Seven of the nine items adopted were adopted unanimously or by a
voice vote--seven of the nine. The other two were adopted by votes
of 14 to 8, in other words, along party lines. The result was the
prolongation of the orders and regulations which appeared in the
Record as referred to earlier.
House Resolution 1372 by the gentleman from Michigan (Mr.
Nedzi) was then considered. It was debated and was not reported,
because the result was an 11 to 11 tie vote. Earlier in an action
superseded by the subsequent adoption of the nine committee orders
and regulations, the committee reported House Resolution 900, the
first section of which is identical to the emasculation resolution
now before us.
The Committee on Rules under its authority took up House
Resolution 1372 offered by my distinguished friend, the gentleman
from Michigan, and reported it on yesterday with the rule which has
been adopted.
I would like to make some specific comments. I think that the
GAO matter needs only brief comment, and I think we discussed it
earlier. Having checked the law with the GAO and its lawyers as
well as consulting with the Parliamentarian and with the committee
staff lawyers, I requested formally that the GAO audit, beginning
with the Committee on House Administration, all of its vouchers and
records, and that it do so for all of the other committees which
must come before the Committee on House Administration for their
funds out of the Contingent Fund. That includes all committees
except the Committee on Appropriations and the Committee on the
Budget. That procedure will start on Tuesday next. . . .
With respect to the most controversial item, the so-called
consolidation item, it is not consolidation in the form which was
requested by the Obey committee. Rather it is in effect a lumping
together of the seven categories as they are now without even a 5-
cent increase and making it possible in the Member's individual
discretion to use those monies in the same manner in which they are
now used but with the additional requirement of reporting and
vouchering on a standard form. Also at the Member's individual
discretion he may transfer moneys from one account . . . to the
other, except from the clerk hire account.
If this resolution is adopted, the Committee on House
Administration will be emasculated of all of those powers except
its right on the basis of proofs of increased costs. to increase
the costs of living as they occur. With respect to the employees of
the House the committee would have the discretion to increase if
under the 1971 Pay Act they are granted a 4-percent increase, and
the Committee on House Administration by action of the full
committee can authorize an increase which would go to each Member.
That Member at his or her discretion may or may not grant his or
her employees a cost-of-living increase. It is entirely up to the
Member. . . .
The SPEAKER. Under the rule, the previous question is ordered.
motion to recommit offered by mr. rhodes
Mr. [John] RHODES [of Arizona]. Mr. Speaker, I offer a motion
to recommit.
The SPEAKER. Is the gentleman opposed to the resolution?
Mr. RHODES. I am, Mr. Speaker.
The SPEAKER. The Clerk will report the motion to recommit.
The Clerk read as follows:
Mr. Rhodes moves to recommit H. Res. 1372 to the Committee on House
Administration with instructions to report back the same forthwith with the
following amendments: Strike all after the resolving clause and insert in
lieu thereof the following:
``That, (a) until otherwise provided by law, any allowance specified in
subsection (a) (1) of the first section of H. Res. 457, Ninety-second
Congress, relating to expenditures of funds from the contingent fund of the
House of Representatives for certain allowances to Members, officers, and
standing committees of the House (2 U.S.C. 57), adopted July 21, 1971, and
enacted as permanent law by the Supplemental Appropriations Act, 1972
(Public Law 92-184; 85 Stat. 627), hereinafter in this section referred to
as ``H. Res. 457, Ninety-second Congress'', may be fixed or adjusted only
through the adoption of a resolution by the House of Representatives.
``(b) The authority of the Committee on House Administration under H.
Res. 457, Ninety-second Congress, shall be subject to the provisions of
this resolution effective June 23, 1976.''
The SPEAKER. Under the rule, the previous question is ordered
on the motion to recommit.
The question is on the motion to recommit.
The question was taken; and the Speaker announced that the noes
appeared to have it.
Mr. RHODES. 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. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas
165, nays 236, not voting 31, as follows:
[Roll No. 502] . . .
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
The SPEAKER. The question is on the resolution.
Mr. [William] FRENZEL [of Minnesota]. Mr. Speaker, on that I
demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were-yeas
311, nays 92, not voting 29, as follows:
[Roll No. 503] . . .
Messrs. ANDERSON of Illinois, GUYER, KEMP, SKUBITZ, REGULA,
CONLAN, and HILLIS changed their vote from ``yea'' to ``nay.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Sec. 6.5 Although the authority for the Committee on House
Administration to issue committee orders adjusting the overall
level of Members' individual office accounts was significantly
restricted in the 94th Congress, the committee retained the ability
to make adjustments within any single account.
On March 21, 1977,(103) the following committee order
from the Committee on House Administration was published in the
Congressional Record:
---------------------------------------------------------------------------
103. 123 Cong. Rec. 8227, 95th Cong. 1st Sess.
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COMMITTEE ORDER NO. 31--CLERK-HIRE ALLOWANCE
The SPEAKER.(104) Under a previous order of the
House, the gentleman from New Jersey (Mr. Thompson) is recognized
for 5 minutes.
---------------------------------------------------------------------------
104. Thomas O'Neill (MA).
---------------------------------------------------------------------------
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, the
committee on House Administration, pursuant to its authority under
Public Law 92-184 and Public Law 94-440, has issued committee order
No. 31 which is effective April 1, 1977.
Committee order No. 31 ties the maximum annual rate of
compensation which may be paid from the clerk-hire allowance to
executive schedule level V.
The order follows:
Committee Order No. 31
Resolved, That effective April 1, 1977, until otherwise provided by order
of the Committee on House Administration, each Member, Delegate or Resident
Commissioner of the House of Representatives may compensate employees from
the clerk-hire allowance at a per annum rate equivalent to, and not to
exceed, the highest per annum rate of basic pay, as in effect from time to
time, authorized for Level V of the Executive Schedule (6 U.S.C. 5316).
Sec. 6.6 Although the authority for the Committee on House
Administration to issue committee orders adjusting the overall
level of Members' individual office accounts was significantly
restricted in the 94th Congress, the committee retained the ability
to make adjustments within any single account.
On April 21, 1983,(105) the following committee order
from the Committee on House Administration was published in the
Congressional Record:
---------------------------------------------------------------------------
105. 129 Cong. Rec. 9339, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
COMMITTEE ORDER NO. 35 ADJUSTMENT OF CLERK-HIRE ALLOWANCE AND
OFFICIAL EXPENSES ALLOWANCE
(Mr. HAWKINS asked and was given permission to address the
House for 1 minute and to revise and extend his remarks and include
extraneous matter.)
Mr. [Augustus] HAWKINS [of California]. Mr. Speaker, at the
direction of the Committee on House Administration and under the
authority granted in Public Law 94-184 and Public Law 94-440, the
committee yesterday issued Committee Order No. 35, which will
become effective on May 1, 1983. I will be sending each Member a
``dear colleague'' letter within the next few days describing the
limitations and administration of this change.
I include at this point in the Record the text of Committee
Order No. 35:
Committee Order No. 35
Resolved, That effective May 1, 1983, until otherwise provided by the
Committee on House Administration, the Clerk-Hire Allowance and the
Official Expenses Allowance are adjusted as follows:
1. The base allowance for Official Expenses is increased by $15,000.
2. Each session a Member may allocate not to exceed $30,000 from the
basic Clerk-Hire Allowance which may be used to supplement the Official
Expenses Allowance, and may allocate not to exceed $30,000 from the
Official Expenses Allowance to supplement the basic Clerk-Hire Allowance,
provided however that monthly Clerk-Hire disbursements may not exceed 10
percent of the basic Clerk-Hire Allowance.
All disbursements and allocations shall be made in accordance with rules
and regulations established by the Committee on House Administration.
Sec. 6.7 In the 104th Congress, the House consolidated the remaining
individual accounts for Members' office support (clerk hire,
official expenses, and official mail) and created a new single
allowance known as the Members' Representational Allowance (MRA).
On August 4, 1995,(106) the chair of the Committee on
House Oversight (now the Committee on House
Administration)(107) submitted for printing in the
Congressional Record the following committee order consolidating
Members' office accounts and creating the new MRA:(108)
---------------------------------------------------------------------------
106. 141 Cong. Rec. 22085, 104th Cong. 1st Sess.
107. Parliamentarian's Note: During the 104th and 105th Congress, the
Committee on House Administration was redesignated as the
Committee on House Oversight. House Rules and Manual Sec. 724
(2021).
108. The MRA was made permanent law by P.L. 104-186, 110 Stat. 1718.
These provisions of law have now been codified at 2 U.S.C.
Sec. Sec. 5341 et seq.
---------------------------------------------------------------------------
SUBMISSION OF COMMITTEE ORDER FROM COMMITTEE ON HOUSE OVERSIGHT
(Mr. THOMAS asked and was given permission to address the House
for 1 minute and to revise and extend his remarks.)
Mr. [William] THOMAS [of California]. Mr. Speaker, I submit a
committee order from the Committee on House Oversight.
At the direction of the Committee on House Oversight, in
accordance with the authority granted to the committee as reflected
in 2 U.S.C. 57, the committee issued Committee Order No. 41 on
August 3, 1995, which will become effective on September 1, 1995.
Members will receive information describing this change through a
dear colleague.
I include at this point in the Record the text of Committee
Order No. 41.
Resolved, That (a) effective September 1, 1995, and subject to subsection
(b), the Clerk Hire Allowance, the Official Expenses Allowance, and the
Official Mail Allowance shall cease to exist and the functions formerly
carried out under such allowances shall be carried out under a single
allowance, to be known as the ``Members' Representational Allowance''.
(b) Under the Members' Representational Allowance, the amount that shall
be available to a Member for franked mail with respect to a session of
Congress shall be the amount allocated for that purpose by the Committee on
House Oversight under paragraphs (1)(A) and (2)(B) of subsection (e) of
section 311 of the Legislative Branch Appropriations Act, 1991, plus an
amount equal to the amount permitted to be transferred to the former
Official Mail Allowance under paragraph (3) of that subsection.
Sec. 2. The Committee on House Oversight shall have authority to
prescribe regulations to carry out this resolution.
Clerk Supervision of Vacant Offices
Sec. 6.8 Where a Member-elect was incapacitated and unable to take the
oath of office, the House adopted a resolution: (1) providing such
Member-elect with compensation in lieu of salary; and (2)
authorizing the Clerk of the House to administer the Member-elect's
office.
Member-elect Gladys Noon Spellman of Maryland fell into a coma
prior to opening day of the 97th Congress, and was thus unable to take
the oath of office. On January 27, 1981,(109) the House
adopted the following resolution authorizing payment in lieu of salary
and requiring the Clerk to administer the office until further action
by the House:
---------------------------------------------------------------------------
109. 127 Cong. Rec. 974-75, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
COMPENSATION IN LIEU OF SALARY TO THE HONORABLE GLADYS NOON
SPELLMAN
Mr. [Gillis] LONG of Louisiana. Mr. Speaker, I send to the desk
a resolution (H. Res. 41) relating to compensation in lieu of
salary to Gladys Noon Spellman, and ask unanimous consent for its
immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 41
Resolved, That, from the contingent fund of the House of Representatives,
the Clerk of the House of Representatives shall, at the end of each month
pay as compensation in lieu of salary to Gladys Noon Spellman an amount
equal to the compensation which would be payable in accordance with section
39 of the Revised Statutes (2 U.S.C. 35) but for her inability to subscribe
to the oath of office. The Clerk shall deduct from any such payment the
amounts necessary to provide for continued (1) health and life insurance
and retirement benefit coverage and (2) Federal and State income tax
withholding.
Sec. 2. (a) Until otherwise provided by law or by action of the House of
Representatives, administrative support may be provided and clerical
assistants for the office of Gladys Noon Spellman may be designated and
adjusted by the Clerk of the House of Representatives (in accordance with
any regulations prescribed under subsection (b)) and borne upon the clerk
hire payrolls of the House of Representatives. The Clerk shall take such
action as may be necessary to apply the principles of section 2 of the
joint resolution entitled ``Joint resolution relating to the continuance on
the payrolls of certain employees in cases of death or resignation of
Members of the House of Representatives, Delegates, and Resident
Commissioners.'', approved August 21, 1935 (2 U.S.C. 92c), to clerical
assistants employed pursuant to the preceding sentence.
(b) The Committee on House Administration shall have authority to
prescribe regulations for the carrying out of this section.
(c) Payments under this section shall be made on vouchers approved by the
Committee on House Administration and signed by the chairman of such
committee.
The SPEAKER pro tempore.(110) Is there objection to
the request of the gentleman from Louisiana? . . .
---------------------------------------------------------------------------
110. Thomas Foley (WA).
---------------------------------------------------------------------------
Mr. [Trent] LOTT [of Mississippi]. All right. Would this in any
way affect the proxy voting in subcommittees or committees, this
resolution?
Mr. LONG of Louisiana. I am informed that because of the fact
that the Member has not been sworn in, there would be no voting
rights in this instance.
Mr. LOTT. I thank the gentleman. . . .
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Louisiana?
There was no objection.
The resolution was agreed to.
On February 24, 1981,(111) after it was determined that
Ms. Spellman would not be able to take a seat in the House, the House
adopted the following resolution to declare the seat vacant and to
authorize the Clerk to continue supervising the vacant office until a
successor could be chosen:
---------------------------------------------------------------------------
111. 127 Cong. Rec. 2916-18, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
DECLARING VACANCY IN 97TH CONGRESS FROM FIFTH CONGRESSIONAL
DISTRICT OF MARYLAND
Mr. [James] WRIGHT [of Texas]. Mr. Speaker, I offer a
privileged resolution (H. Res. 80) and ask for its immediate
consideration.
The Clerk read the resolution as follows:
H. Res. 80
Whereas a certificate of election has been received by the Clerk of this
House showing the election of Gladys Noon Spellman as a Representative in
the Ninety-seventh Congress from the Fifth Congressional District in the
State of Maryland; and
Whereas Representative-elect Gladys Noon Spellman has not appeared to
take the oath of office as a Member of this House as required by article VI
of the Constitution of the United States; and
Whereas information has been provided to the Speaker that Representative-
elect Gladys Noon Spellman has been unable to take the oath of office due
to an incapacitating illness; and
Whereas the most recent medical information provided to the Speaker
indicates that there is no likelihood that Representative-elect Gladys Noon
Spellman will recover sufficiently to be able to take the oath of office
and serve as a Member of this House, or to expressly resign the office in
order to create a vacancy; Therefore, be it
Resolved, That this House of Representatives hereby determines that there
is a vacancy in the Ninety-seventh Congress from the Fifth Congressional
District in the State of Maryland because of the absence and continuing
incapacity of Representative-elect Gladys Noon Spellman.
Sec. 2. That the Speaker of the House is hereby directed to notify the
Governor of the State of Maryland of this action so that appropriate
measures to fill the vacancy may be undertaken by the Governor pursuant to
article I, section 2 of the Constitution of the United States.
Sec. 3. The first section of House Resolution 41 of this Congress shall
cease to be effective on the adoption of this resolution and section 2 of
House Resolution 41 shall cease to be effective when a successor is elected
to fill the vacancy.
The SPEAKER.(112) The Chair recognizes the gentleman
from Texas (Mr. Wright).
---------------------------------------------------------------------------
112. Thomas O'Neill (MA).
---------------------------------------------------------------------------
Mr. WRIGHT. Mr. Speaker, I think there is an understanding of
the intent and effect of this resolution. It would declare vacant a
seat which was held in the last Congress by the Honorable Gladys
Noon Spellman, she having been reelected to serve in this Congress.
I know that all of us share the sadness with which Dr. Freeman
Cary, the attending physician for the Congress, after consultation
with her physicians at Walter Reed, and with his personal
observations, concluded that Mrs. Spellman had no real likelihood
of being able to serve out this term of office, and that in a
trancelike state of consciousness she would not be able to take the
oath of office. . . .
Mr. WRIGHT. Mr. Speaker, I ask unanimous consent that the
letter addressed to the Honorable Thomas P. O'Neill, Jr., by the
attending physician, Dr. Freeman Cary, be printed in the Record at
this point.
The SPEAKER. Is there objection to the request of the gentleman
from Texas?
There was no objection.
The letter referred to is as follows:
The Attending Physician,
Congress of the United States,
February 20, 1981.
Hon. Thomas P. O'Neill, Jr.,
Speaker of the House of Representatives, Washington, DC.
Dear Mr. Speaker: As you know Congresswoman Gladys Spellman
suffered cardiac arrest on October 31, 1980, while at a political
rally. Despite prompt by-stander cardiopulmonary resuscitation and
rescue squad response, there appeared to be a delay in restoring
effective blood flow to the brain.
Since that time she has been hospitalized first in her district
and now at Walter Reed Army Medical Center Hospital, where
intensive rehabilitative care is being given. A trance-like state
of consciousness persists.
After consultation with her physicians at Walter Reed and with
my personal observations, there is no likelihood that she will be
able to serve out her term of office.
Yours sincerely,
Freeman H. Cary, M.D.
. . .
Mr. WRIGHT. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Floor Privileges for Members' Staff
Sec. 6.9 Pursuant to clause 2(a)(8) of rule IV,(113)
Members' personal staff may exercise floor privileges, but Members
are limited to not more than one personal staff at a time, and only
when that Member has an amendment under
consideration.(114)
---------------------------------------------------------------------------
113. House Rules and Manual Sec. 678 (2021).
114. Parliamentarian's Note: Members' staff on the floor are prohibited
from attempting to influence Members with regard to legislation
under consideration, pursuant to clause 5 of rule IV. House
Rules and Manual Sec. 681 (2021). For announcements by the
Chair regarding improper activities on the floor by Members'
personal staff, see Precedents (Wickham) Ch. 4 Sec. Sec. 5.9,
5.10.
---------------------------------------------------------------------------
On August 18, 1982,(115) the Speaker made the following
announcement regarding the presence of Members' personal staff on the
floor:
---------------------------------------------------------------------------
115. 128 Cong. Rec. 21934-35, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
ANNOUNCEMENT BY THE SPEAKER
The SPEAKER.(116) The Chair desires to make the
following announcement.
---------------------------------------------------------------------------
116. Thomas O'Neill (MA).
---------------------------------------------------------------------------
Last evening the Chair received many complaints from Members
that too many staff people were on the floor, and the Members of
the House would bring their personal staff people on the floor
although they had no prerogative to do that.
So the Chair cautions and warns the Members not to bring their
personal staff members on the floor. The rules prohibit it, and the
Chair's announced policy requires committee staff who are permitted
to be on the floor when business from their committees is under
consideration to remain by the committee tables unobtrusively.
Improper Use of Official Funds
Sec. 6.10 Misuse of official funds may be investigated by the Committee
on Ethics, and a Member has been censured and fined for, inter
alia, improper use of the clerk-hire account.
On July 19, 1979,(117) the chair of the Committee on
Standards of Official Conduct (now the Committee on
Ethics)(118) filed a privileged report recommending censure
of Rep. Charles Diggs of Michigan for improper use of the clerk-hire
account:(119)
---------------------------------------------------------------------------
117. 125 Cong. Rec. 19580, 96th Cong. 1st Sess.
118. The Committee on Standards of Official Conduct was redesignated as
the Committee on Ethics at the outset of the 112th Congress.
House Rules and Manual Sec. 721b (2021).
119. Parliamentarian's Note: In its committee report, the Committee on
Standards of Official Conduct noted that Rep. Charles Diggs of
Michigan had been convicted of mail fraud and making false
statements in a United States district court, and that the
``gravamen of the charges against Representatives Diggs was
that he inflated several of his employees' salaries in order to
enable them to pay certain of his personal and congressional
expenses.'' H. Rept. 96-351, 96th Cong. 1st Sess., p. 1. For a
similar case later in the same Congress, where a Member (Rep.
Charles H. Wilson of California) was censured for, inter alia,
retaining a clerk with knowledge that said clerk did not
perform duties commensurate with his compensation, see H. Rept.
96-930, 96th Cong. 2d Sess., p. 20. See also Precedents
(Wickham) Ch. 3 Sec. 3.1; Precedents (Wickham) Ch. 5
Sec. 20.15; and Precedents (____) Ch. 12.
---------------------------------------------------------------------------
REPORT ON RESOLUTION IN THE MATTER OF REPRESENTATIVE CHARLES C.
DIGGS, JR.
Mr. BENNETT, from the Committee on Standards of Official
Conduct, submitted a privileged report (Rept. No. 96-351), on the
resolution (H. Res. 378) in the matter of Representative Charles C.
Diggs, Jr., which was referred to the House Calendar and ordered to
be printed. -------------------
PRINTING OF HOUSE RESOLUTION 378, IN THE MATTER OF
REPRESENTATIVE CHARLES C. DIGGS, JR.
Mr. [Charles] BENNETT [of Florida]. Mr. Speaker, I ask
unanimous consent that the report on the resolution (H. Res. 378)
in the matter of Representative Charles C. Diggs, Jr., be printed
in two volumes, and that volume 2 be limited to 600 copies.
The SPEAKER pro tempore.(120) Is there objection to
the request of the gentleman from Florida?
---------------------------------------------------------------------------
120. Joseph Minish (NJ).
---------------------------------------------------------------------------
Mr. [John] ROUSSELOT [of California]. Mr. Speaker, reserving
the right to object, could the gentleman tell us why he is limiting
the second volume? Is there something special in there?
Mr. BENNETT. Mr. Speaker, if the gentleman will yield, the
reason is purely to save money. It is many hundreds of pages thick.
It is the transcript of the trial and the report refers to it, but
it is really not necessary to print thousands of copies of the
transcript of the trial, which is available to Members otherwise.
It is just purely to save money.
Mr. ROUSSELOT. Members can pick it up from the court?
Mr. BENNETT. That is correct.
Mr. ROUSSELOT. Mr. Speaker, I appreciate the gentleman's
explanation, and I withdraw my reservation of objection.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Florida?
Mr. [William] DANNEMEYER [of California]. Mr. Speaker,
reserving the right to object, did the distinguished gentleman from
Florida plan to take up this resolution today?
Mr. BENNETT. No. It would have to be scheduled by the Speaker.
Mr. DANNEMEYER. Mr. Speaker, I thank the gentleman, and I
withdraw my reservation of objection.
On July 31, 1979,(121) the House agreed to a privileged
resolution adopting the committee's report and formally censuring Rep.
Diggs:(122)
---------------------------------------------------------------------------
121. 125 Cong. Rec. 21584-85, 21591-92, 96th Cong. 1st Sess.
122. Parliamentarian's Note: Rep. Charles Diggs of Michigan resigned
later in the Congress. See 126 Cong. Rec. 13005, 96th Cong. 2d
Sess. (June 3, 1980).
---------------------------------------------------------------------------
IN THE MATTER OF REPRESENTATIVE CHARLES C. DIGGS, JR.
Mr. [Charles] BENNETT [of Florida]. Mr. Speaker, I call up a
privileged resolution (H. Res. 378) in the matter of Representative
Charles C. Diggs, Jr., and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 378
Resolved,
(1) that Representative Charles C. Diggs, Junior, be censured;
(2) that Representative Charles C. Diggs, Junior, forthwith present
himself in the well of the House for the pronouncement of censure;
(3) that Representative Charles C. Diggs, Junior, be censured with the
public reading of this resolution by the Speaker;
(4) that Representative Charles C. Diggs. Junior, is ordered to execute
and deliver to the House an interest-bearing demand promissory note for
$40,031.66, made payable to the Treasury of the United States;
(5) that Representative Charles C. Diggs, Junior, is ordered, for the
remainder of the Ninety-sixth Congress, to require his employees to certify
to the Committee on Standards of Official Conduct that the funds he or she
receives from clerk-hire funds are received in full compliance with current
House rules; and
(6) that the House of Representatives adopt the report of the Committee
on Standards of Official Conduct dated July 19, 1979, In The Matter of
Representative Charles C. Diggs, Junior.
announcement by the speaker
The SPEAKER.(123) The Chair wishes to make a
statement after which the gentleman from Florida (Mr. Bennett) will
be recognized for 1 hour.
---------------------------------------------------------------------------
123. Thomas O'Neill (MA).
---------------------------------------------------------------------------
The Chair must acknowledge the gravity of the pending
resolution insofar as the House will be called up to discipline one
of its Members. While there should of course, be an opportunity to
debate all aspects of this matter, the Chair wishes to remind
Members of the restrictions imposed by clause I, rule XIV, and by
the precedents relating to references to Members in debate. These
restrictions indicate that Members should refrain from using
language which is personally abusive. While a wide range of
discussion relating to conduct of the Member in question will be
permitted, it is the duty of the Chair to maintain proper decorum
in debate. It is the intention of the Chair to enforce the rules.
The gentleman from Florida (Mr. Bennett) is recognized for 1
hour.
general leave
Mr. BENNETT. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to extend their
remarks in the extension of remarks section of the Record, and that
this not include any revisions of remarks delivered in the House
today.
The SPEAKER. Is there objection to the request of the gentleman
from Florida?
There was no objection.
Mr. BENNETT. Mr. Speaker, for the purposes of debate only I
yield 20 minutes to the gentleman from South Carolina (Mr. Spence);
and for the purposes of debate only I yield 20 minutes to the
gentleman from Michigan (Mr. Diggs), pending which I yield myself
such time as I may consume.
Mr. Speaker, on February 1 of this year, as chairman of the
Committee on Standards of Official Conduct, I communicated to the
other members of the committee my intention, subject to their
approval, to appoint a subcommittee of two to inquire into the
conviction of Representative Diggs. At the organizational meeting
of the committee on February 7, the gentleman from Indiana (Mr.
Hamilton) and the gentleman from New Jersey (Mr. Hollenbeck) were
so appointed.
On February 2, the gentleman from Georgia, Representative
Gingrich, and 18 other Members filed a sworn complaint charging
that Representative Diggs had violated House Rule XLIII, clause 1,
Code of Official Conduct, by reason of his misuse of clerk-hire
allowances-essentially the same conduct which had led in 1978 to
his indictment and conviction in the U.S. District Court.
On March 21, a formal resolution to conduct an inquiry into the
official conduct of Representative Diggs was adopted by the
committee. These initiatives, and the investigation that ensued,
culminated in the recommendation of the committee that the House
adopt the resolution now under discussion.
During the preceding Congress, Representative Diggs was the
subject of an investigation by the Department of Justice into
alleged violations of Federal law concerning the use of his clerk-
hire allowance. On March 23, 1978, a grand jury sitting in the
District of Columbia indicted Representative Diggs on 14 counts of
violating 18 U.S.C. 1341 (mail fraud) and 21 counts of violating 18
U.S.C. 1001 (false statement). All counts were related to an
alleged scheme by Representative Diggs to defraud the Government by
either: First, inflating employees' salaries so that they could use
the increase to pay his personal and congressional expenses; or
second, adding individuals to his congressional payroll to
compensate them for providing him with personal services.
On October 7, 1978, the jury returned a verdict of guilty on
the 29 counts that were prosecuted. On November 21, 1978,
Representative Diggs was sentenced to 3 years imprisonment on each
of these counts, the sentences to run concurrently. Between the
time of the conviction and sentencing, on November 7, 1978,
Representative Diggs was reelected to Congress. Representative
Diggs has this conviction under appeal at this time; and a decision
by the Court of Appeals for the District of Columbia is anticipated
some time during the next few months.
Special counsel appointed by the committee undertook a thorough
analysis of the transcript of evidence from the trial of
Representative Diggs and interviewed various potential witnesses,
following which the committee unanimously approved and served upon
Representative Diggs a statement of alleged violations, charging
violations of clauses 1 and 8, of the Code of Official Conduct.
Clause 1 imposes an obligation on every Member ``to conduct himself
at all times in a manner which shall reflect creditably on the
House.'' Clause 8 prohibits a Member from retaining a staff
employee ``who does not perform duties commensurate with the
compensation he receives.''
The summary of the trial testimony appears in the committee
report, pages 9-16; and the statement of alleged violations appears
as part of appendix A (pages 28-37).
Appendix F to the report (pages 148-177) contains various
exhibits introduced during the trial of Representative Diggs which
record the changes in salary of various staff members and
disbursements by them to pay personal and office related expenses
of the Member.
After the statement of alleged violations was served, counsel
for Representative Diggs filed various motions, including a motion
to defer all committee action pending the outcome of the judicial
proceedings and a motion to dismiss for lack of jurisdiction.
The motion to defer was based upon the argument that any
proceedings the committee might undertake would generate publicity
that might prejudice the Member's criminal court proceedings. The
motion was denied by an 8-3 vote, the majority being of the opinion
that the possibility, that any publicity of the committee
proceedings adversely affecting the rights of Representative Diggs
in the ongoing judicial proceedings, was remote and insubstantial.
The motion to dismiss for lack of jurisdiction was based on the
argument that the power of the House to punish for misconduct was
terminated by the Member's reelection, at least where the alleged
misconduct was known to his constituency prior to his reelection.
Counsel for Representative Diggs maintained that the power to
expel, conferred by article I, section 5 of the Constitution,
conflicted with the right of his constituency under article I,
section 2 to elect, and have him serve as their representative,
even following his conviction; and that the conflict had to be
resolved in favor of the Member's constituency.
Special counsel to the committee argued that any question about
the power to expel was premature since the precedents were: That
the House has jurisdiction under article I, section 5 to inquire
into the misconduct of a Member occurring prior to his last
election; and, under appropriate circumstances, to impose at least
those disciplinary sanctions that fall short of expulsion. The
motion to dismiss for lack of jurisdiction was unanimously denied,
following which Representative Diggs filed a general denial to all
counts in the statement of alleged violations.
The committee then ordered a disciplinary hearing, but before
the date set for its commencement. Special Counsel for the
committee and counsel for the Member engaged in discussions which
led to the committee's recommended disposition of the proceedings.
The discussions between counsel culminated in an admission of
guilt by Representative Diggs with respect to certain violations of
House rules; and a further admission that he had personally
benefited from the employment of some members of his staff: and an
agreement to: First, make restitution of amounts . . . from which
he derived personal benefit; second, to apologize to the House for
his wrongdoing; and third, to accept censure therefor. This was
formally presented to the committee in open session by
Representative Diggs' counsel; and Representative Diggs signed the
letter and orally before the committee acknowledged it to be his--
which letter appears at page 16 of the report.
On recommendation of the committee's Special Counsel,
Representatives Diggs' letter of admissions was accepted and the
committee recommended that Representative Diggs be found guilty of
violating rule XLII, clauses 1 and 8, an the basis of his
admissions; and that Representative Diggs be censured and required
to make restitution by execution of an interest--bearing demand
promissory note for the full amount of his personal benefit from
the use of clerk-hire funds as disclosed in the evidence.
Representative Hamilton moved the resolution, the full text of
which appears in the report (pages 17-19). Representative
Hamilton's resolution was unanimously adopted.
The committee did not proceed to conduct the evidentiary
hearing originally contemplated because Representative Diggs'
letter of admission of guilt, plus the evidence taken from the
criminal proceedings, constituted a more than adequate record on
which to judge the case. An evidentiary hearing--which would have
been largely repetitious of trial proceeding--would not have
resulted in a different committee recommendation regarding
punishment.
As to the punishment recommended, the committee concluded,
after research of precedents, that expulsion, the most extreme
penalty possible under the Constitution, would be inappropriate.
More serious offenses have in the past not received this penalty;
and in fact on only three occasions in the history of our country
has this penalty been imposed. They were in the Civil War period
when elected Members joined the Confederacy, which was an action
viewed by some as treason. Further, Representative Diggs as all
Congressmen--is answerable also in the criminal and civil courts,
in addition to proceedings in the House; and he may eventually lose
his freedom if he loses his appeal in the criminal proceedings.
Some feel that in that event he should be expelled; but the present
proceedings do not address that question, which is at this time
premature, since it is not now a certainty that he will not succeed
in his appeal of the judicial proceedings.
The committee rejected recommending expulsion in this case as
too severe and inappropriate for the offenses involved, serious as
they are. We considered, among other things, the admission by this
Member of violations of House rules and his apology therefor; and
the respect owed his constituency which reelected him following his
conviction. In sum, we believe that censure, together with the
other obligations imposed on the Member by the resolution before
you represents a just conclusion of these proceedings. This was the
unanimous recommendation of the committee, following the unanimous
recommendation of its subcommittee.
I reserve the balance of my time. . . .
Mr. BENNETT. Mr. Speaker, I yield back the balance of my time,
and I move the previous question on the resolution.
The previous question was ordered.
The SPEAKER. The question is on the resolution.
The question was taken; and the Speaker announced that the ayes
appeared to have it.
Mr. SPENCE. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
414, nays 0, answered ``present'' 4, not voting 16, as follows:
[Roll No. 404] . . .
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the
table. -------------------
CENSURE OF REPRESENTATIVE CHARLES C. DIGGS, JR.
The SPEAKER. Will the gentleman from Michigan (Mr. Diggs)
kindly appear in the well?
Mr. DIGGS presented himself at the bar of the House.
The Speaker read House Resolution 378, as follows:
H. Res. 378
Resolved,
(1) that Representative Charles C. Diggs, Junior, be censured;
(2) that Representative Charles C. Diggs, Junior, forthwith present
himself in the well of the House for the pronouncement of censure;
(3) that Representative Charles C. Diggs, Junior, be censured with the
public reading of this resolution by the Speaker;
(4) that Representative Charles C. Diggs, Junior, is ordered to execute
and deliver to the House an interest-bearing demand promissory note for
$40,031.68, made payable to the Treasury of the United States;
(5) that Representative Charles C. Diggs, Junior, is ordered, for the
remainder of the Ninety-sixth Congress, to require his employees to certify
to the Committee on Standards of Official Conduct that the funds he or she
receives from clerk-hire funds are received in full compliance with current
House rules; and
(6) that the House of Representatives adopt the report of the Committee
on Standards of Official Conduct dated July 19, 1979, In The Matter of
Representative Charles C. Diggs, Junior.
The SPEAKER. The matter is closed.
Sec. 6.11 When a Member of the House is expelled, a vacancy is created
in that congressional seat, and, under former
practice,(124) the House could provide authorization for
staff of the former Member to continue in their employment under
the supervision of the Clerk until the vacancy could be filled
(authorization that is now provided under clause 2(i) of rule
II).(125)
---------------------------------------------------------------------------
124. Parliamentarian's Note: At the time of this precedent, the Clerk
did not have standing authority to supervise the office of a
Member who had died, resigned, or been expelled. Such authority
was added to the standing rules at the outset of the 98th
Congress in 1983, and is currently provided by clause 2(i) of
rule II. See House Rules and Manual Sec. 653 (2021).
125. House Rules and Manual Sec. 653 (2021).
---------------------------------------------------------------------------
On October 2, 1980,(126) following the expulsion of Rep.
Michael Myers of Pennsylvania, the House adopted the following
resolution concerning the former Member's staff:
---------------------------------------------------------------------------
126. 126 Cong. Rec. 28978, 96th Cong. 2d Sess. For more information on
the expulsion case of Rep. Michael Myers of Pennsylvania, see
Precedents (____) Ch. 12.
---------------------------------------------------------------------------
PROVIDING FOR LIMITED CONTINUATION OF PAY OF CLERICAL
ASSISTANCE TO MEMBERS IN CERTAIN CASES OF TERMINATION OF
SERVICE
Mr. [Lucien] NEDZI [of Michigan]. Mr. Speaker, I offer a
resolution (H. Res. 804), and I ask unanimous consent for its
immediate consideration.
The SPEAKER.(127) The Clerk will report the
resolution.
---------------------------------------------------------------------------
127. Thomas O'Neill (MA).
---------------------------------------------------------------------------
The Clerk read the resolution, as follows:
H. Res. 804
Resolved, That (a) until otherwise provided by law, for purposes of the
joint resolution entitled ``Joint resolution relating to the continuance on
the payrolls of certain employees in cases of death or resignation of
Members of the House of Representatives, Delegates, and Resident
Commissioners.'', approved August 21, 1935 (2 U.S.C. 92b, 92c, and 92d),
any termination of service during a term of office of a Member of the House
that is not described in the first section of such joint resolution shall
be treated as if such termination were described in such section.
(b) The Clerk of the House shall take such action as nay be necessary to
apply the principles of section 2 of the joint resolution referred to in
subsection (a) (2 U.S.C. 92c) in the carrying out of this resolution.
Sec. 2. The Committee on House Administration shall have authority to
prescribe regulations for the carrying out of this resolution.
Sec. 3. Payments under this resolution shall be made on vouchers approved
by the Committee on House Administration and signed by the chairman of such
committee.
The SPEAKER. Is there objection to the request of the gentleman
from Michigan? . . .
Mr. [William] FRENZEL [of Minnesota]. Mr. Speaker, I withdraw
my reservation of objection.
Mr. NEDZI. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
The Franking Privilege
Sec. 6.12 Shortly after the creation of the House Commission on
Congressional Mailing Standards (now the House Communications
Standards Commission), the rules and practices of the commission
were inserted into Congressional Record for the information of
Members.
On February 19, 1974,(128) the following insertion was
made to the Congressional Record:
---------------------------------------------------------------------------
128. 120 Cong. Rec. 3298, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
PROCEEDINGS BEFORE THE HOUSE COMMISSION ON CONGRESSIONAL
MAILING STANDARDS
(Mr. UDALL asked and was given permission to extend his remarks
at this point in the Record.)
Mr. [Morris] UDALL [of Arizona]. Mr. Speaker, I submit for
printing in the Record at this point the Rules of Practice in
Proceedings before the House Commission on Congressional Mailing
Standards.
Mr. Speaker, notice is hereby given that, pursuant to section 5
of the act of December 18, 1973 (87 Stat. 742; Public Law 93-191),
the Rules of Practice in Proceedings before the House Commission on
Congressional Mailing Standards, as hereinafter set forth, have
been prescribed and established by the House Commission on
Congressional Mailing Standards at its organizational meeting held
on February 4, 1974.
Subsection (e) of section 5 provides in part that the
Commission ``shall prescribe regulations for the holding of
investigations and hearings, the conduct of proceedings, and the
rendering of decisions under this subsection providing for
equitable procedures and the protection of individual, public, and
Government interests. The regulations shall, insofar as
practicable, contain the substance of the administrative procedure
provisions of sections 551-559, and 701-706, of title 5, United
States Code. These regulations shall govern matters under this
subsection subject to judicial review thereof.''
In view of the fact that a commission of the legislative branch
is not authorized to publish documents, such as these rules of
practice, in the Federal Register (44 U.S.C. 1501), the commission
has determined to provide public notice thereof by printing them in
the Congressional Record. In addition to the notice hereby given,
copies of the rules will be made available to any person upon
request to the commission.
Due to the fact that the only remedy now available to persons
who may wish to commence a proceeding on a violation of the
franking privilege as it relates to the House of Representatives,
is the filing of a complaint and proceedings before the commission
under section 5 of the act of December 18, 1973 (87 Stat. 742;
Public Law 93-191), the commission has determined that these rules
shall take effect immediately.
Although the commission does not anticipate any specific future
changes in these regulations, the commission would appreciate, and
therefore invites comments or suggestions which might assist in
future revision of the rules. Comments should be submitted with at
least 10 copies and may be mailed to the commission at 207 Cannon
House Office Building, Washington, DC 20515.
In consideration of the foregoing, the Rules of Practice in
Proceedings before the House Commission on Congressional Mailing
Standards as hereinafter set forth are made effective immediately.
The rules, issued in Washington, DC, on February 19, 1974, are
as follows: . . .
Sec. 6.13 A resolution directing the Committee on House Administration
to prohibit certain payments for Members' official mailing
expenses, and further providing that the provisions of a bill that
had not been considered by the House be implemented immediately,
constitutes a change to House rules and as such does not qualify as
a question of the privileges of the House under rule
IX.(129)
---------------------------------------------------------------------------
129. House Rules and Manual Sec. Sec. 698, 699 (2021).
---------------------------------------------------------------------------
On July 30, 1992,(130) the following resolution was
determined by the Chair not to qualify as a valid question of the
privileges of the House, as it constituted a change in House rules:
---------------------------------------------------------------------------
130. 138 Cong. Rec. 20339, 102d Cong. 2d Sess.
---------------------------------------------------------------------------
PRIVILEGES OF THE HOUSE--RESOLUTION REQUIRING IMMEDIATE
IMPLEMENTATION OF H.R. 4104 AND DIRECTING COMMITTEE ON HOUSE
ADMINISTRATION TO PROHIBIT PAYMENT FOR THE PURPOSE OF CERTAIN
MASS MAILINGS
Mr. [William] THOMAS of California. Mr. Speaker, I rise to a
question of privileges of the House, and I offer a privileged
resolution (H. Res. 533).
The SPEAKER pro tempore (Mr. [Kweisi] Mfume [of Maryland]). The
Clerk will report the resolution.
The Clerk read as follows:
H. Res. 533
Whereas, the House of Representatives acted on April 8, 1992, and passed
by a vote of 408-8 a motion to recommit the conference report on the bill
S. 3 instructing conferees to include the provisions of the bill H.R. 4104
and;
Whereas, the House voted on June 24, 1992, by a margin of 417-2 to
include H.R. 4104 in the Legislative Branch appropriations for FY1993 and;
Whereas the U.S. Court of Appeals has on July 30, 1992, declared section
3210(d)(1)(B) of Title 39 of the U.S. Code unconstitutional under the First
and Fifth Amendments thereby removing the authority of members of Congress
to frank mass mailings to areas outside the district from which the member
was elected, and;
Whereas, members of the House have engaged in activities now declared by
the courts as unconstitutional and;
Whereas such activities impugn the integrity of the proceedings of the
House now therefore be it resolved:
Resolved, That the House of Representatives directs the Committee on
House Administration to prohibit payment from any account for the purpose
of mass mailings franked outside the district from which the member was
elected and further that the provisions of H.R. 4104 be implemented
immediately.
parliamentary inquiry
Mr. [Harold] VOLKMER [of Missouri]. Mr. Speaker, I have a
parliamentary inquiry.
The SPEAKER pro tempore. The gentleman will state his
parliamentary inquiry.
Mr. VOLKMER. Mr. Speaker, listening to the resolution, as I
understand, the gentleman is offering this as a privileged
resolution.
The SPEAKER pro tempore. That is correct. The Chair is
examining the resolution.
Mr. VOLKMER. As a privileged resolution?
The SPEAKER pro tempore. The gentleman will suspend while the
resolution is examined. The gentleman's parliamentary inquiry will
be addressed.
Mr. VOLKMER. Because I raise a question whether it is a
privileged resolution of a Member of the House; not appropriate.
The SPEAKER pro tempore. The Chair will rule. The Chair's
understanding is that the resolution essentially directs a rules
change by immediate implementation of an introduced bill which then
is not a question of privilege. The resolution does not constitute
a question of privilege.
The gentleman may proceed.
Sec. 6.14 A resolution alleging improper conduct by Members appointed
to the House Commission on Congressional Mailing Standards (now the
House Communications Standards Commission), and expressing the
disapproval of the House as to that conduct, constitutes a valid
question of the privileges of the House under rule
IX.(131)
---------------------------------------------------------------------------
131. House Rules and Manual Sec. Sec. 698, 699 (2021).
---------------------------------------------------------------------------
On July 29, 2009,(132) the following resolution was
raised as a question of the privileges of the House, and subsequently
laid on the table:
---------------------------------------------------------------------------
132. 155 Cong. Rec. 19687-89, 111th Cong. 1st Sess.
---------------------------------------------------------------------------
RAISING A QUESTION OF THE PRIVILEGES OF THE HOUSE
Mr. [John] BOEHNER [of Ohio]. Mr. Speaker, I have a privileged
resolution at the desk.
The SPEAKER pro tempore.(133) The Clerk will report
the resolution.
---------------------------------------------------------------------------
133. Jason Altmire (PA).
---------------------------------------------------------------------------
The Clerk read as follows:
H. Res. 690
Whereas page 5 of the ``Regulations on the Use of the CONGRESSIONAL FRANK
By Members of the House of Representatives'' states, ``It is the policy of
the Congress that the privilege of sending mail as franked mail shall be
established under this section in order to assist and expedite the conduct
of the official business, activities and duties of the Congress of the
United States. It is the intent of the Congress that such official
business, activities and duties cover all matters which directly or
indirectly pertain to the legislative process or to any congressional
representative functions generally, or to the functioning, working, or
operating of the Congress and the performance of official duties in
connection therewith, and shall include, but not be limited to, the
conveying of information to the public, the requesting of the views of the
public, or the views and information of other authority of government, as a
guide or a means of assistance in the performance of those functions.'';
Whereas clause 5 of rule XXIV of the Rules of the House of
Representatives provides, ``Before making a mass mailing, a Member,
Delegate, or Resident Commissioner shall submit a sample or description of
the mail matter involved to the House Commission on Congressional Mailing
Standards for an advisory opinion as to whether the proposed mailing is in
compliance with applicable provisions of law, rule, or regulation.'';
Whereas the House Commission on Congressional Mailing Standards,
authorized in Public Law 91-191, is commonly referred to as the ``Franking
Commission'';
Whereas the Democratic staff director and Republican staff director of
the Franking Commission have served in their respective positions for more
than a decade and report to the Democratic and Republican members of the
Franking Commission, respectively;
Whereas during the 111th Congress the members of the Franking Commission
are Representatives Susan Davis (D-CA), chairwoman; Rep. Dan Lungren (R-
CA), ranking Republican member; Rep. Donna Edwards (D-MD), Rep. Kevin
McCarthy (R-CA), Rep. Brad Sherman (D-CA) and Rep. Tom Price (R-GA);
Whereas the aforementioned Franking Commission advisory opinions required
for Members seeking approval to send mass mailings, or their electronic
equivalents, are routinely signed on behalf of the Commission by its
Democratic and Republican staff directors or their designees;
Whereas no Member may receive Franking Commission approval without
signatures from both majority and minority staff;
Whereas the Commission's Democratic staff director has been permitted by
the Commission's Democratic Members to abuse her position during the
current Congress by willfully and knowingly applying different standards to
material submitted for Franking Commission approval by Republican Members
than she applies to material submitted by Democratic Members;
Whereas on July 27, 2009, the Commission's Democratic staff director
refused to approve a mailing proposed by Representative Joe Barton of Texas
which included the words ``Democrat majority'', but indicated she would
approve the mailing if Representative Barton instead substituted the words
``congressional majority'', yet on August 3, 2006, the same Democratic
staff director signed a Franking Commission approval document for a mailing
issued by then-Minority Leader Nancy Pelosi that included the following
sentence, ``But too many here and across our nation are paying the price
for the Republican Congressional majority's special interest agenda . . .''
Whereas the Democratic staff director has refused to grant permission to
Republican Members wishing to provide their constituents with copies of a
chart intended to illustrate in graphic form many of the provisions of the
Democrats' proposed health care legislation;
Whereas charts similar in form and general purpose have for many years
been approved routinely by the Commission's Democratic staff director in
mailings produced by Members on both sides of the aisle;
Whereas on December 12, 1993, the Franking Commission granted approval to
Rep. David Levy of New York to disseminate a similar chart, intended to
illustrate graphically the provisions of comprehensive health care
legislation proposed by the Clinton Administration;
Whereas the Commission's Democratic staff director has refused to approve
requests by Republican Members to informally characterize certain features
of the Democrats' pending health care proposal as ``government run health
care'' but has approved requests by Democratic Members to informally
characterize the same aspects of the bill as ``the public option'';
Whereas the Commission's Democratic staff director has refused to approve
more than twenty requests by Republican Members to use the phrase ``cap and
tax'' to describe a Democratic proposal to reduce carbon emissions by
imposing new fees, taxes and higher costs on American consumers and
businesses;
Whereas a search for the term ``cap and tax'' on the Google internet
search engine yielded at least 4,478,000 appearances of this commonly used
phrase;
Whereas an article in the April 27, 2009 edition of ``Politico''
newspaper quoted the most senior Member of the House, Democratic
Representative John Dingell of Michigan, the former chairman of the House
Committee on Energy and Commerce, as saying, ``Nobody in this country
realizes that cap and trade is a tax, and it's a great big one.'';
Whereas the Commission's Democratic staff director has dismissed the
proposed descriptive term, ``cap and tax'' as an informal and inappropriate
characterization of the legislation, while at the same time granting
approval to Democratic Members seeking to use the phrase ``cap and trade''
to informally and inappropriately characterize the same bill;
Whereas the Commission's Democratic staff director has refused to approve
material submitted by Republican Members seeking to convey to the public
those Members' concern about substantial job losses expected to result if
the Democrats' proposed national energy tax is enacted, while at the same
time approving mailings submitted by Democratic Members informing the
public about large numbers of new jobs the Democrats claim will be created
by the same legislation;
Whereas the Democratic staff director's actions have prompted a steady
stream of media reports describing a climate of partisan censorship imposed
on the House by the Democratic majority;
Whereas an article in the July 23, 2009, edition of Roll Call newspaper
stated, ``A dispute over the right of House Republicans to use the
chamber's official franking service to send a mailer critical of Democratic
health care plans has escalated beyond the Franking Commission to `high
levels on the Democratic side,' Franking Commission member Rep. Dan Lungren
(R-CA) said at a Thursday press conference. Asked whether he believed the
matter had been referred to Rep. Pelosis (D-CA) office, Lungren, the
ranking member of the House Administration Committee, said, `All I've been
told is that its above the Franking Commission and that it appears to be
above our committee, so I don't know where you go after that'.'';
Whereas by permitting the Commission's Democratic staff director to carry
out her duties in a partisan and unfair manner, the Democratic Members of
the Franking Commission have brought discredit on the House; and,
Whereas clause 1 of rule XXIII of the Rules of the House of
Representatives, also known as the Code of Official Conduct, provides ``A
Member, Delegate, Resident Commissioner, officer, or employee of the House
shall behave at all times in a manner that shall reflect creditably on the
House'': Now, therefore, be it
Resolved, That the House views with disapproval the failure of the
Democratic Members of the Franking Commission to ensure that the
Commission's Democratic staff carries out its important responsibilities in
a professional, fair, and impartial manner.
The SPEAKER pro tempore. The resolution presents a question of
privilege.
motion to table
Mr. [Steny] HOYER [of Maryland]. Mr. Speaker, I move that the
resolution be laid on the table.
The SPEAKER pro tempore. The question is on the motion to
table.
The question was taken; and the Speaker pro tempore announced
that the ayes appeared to have it.
Mr. BOEHNER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, this
15-minute vote on the motion to table will be followed by a 5-
minute vote on the motion to suspend the rules on S. 1513.
The vote was taken by electronic device, and there were--yeas
244, nays 173, answered ``present'' 11, not voting 5, as follows:
[Roll No. 656] . . .
So the motion to table was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Sec. 6.15 The House has adopted a privileged resolution permitting
House employees to respond to subpoenas duces tecum requesting
documents and other material relevant to ongoing litigation
concerning the constitutionality of the franking
privilege.(134)
---------------------------------------------------------------------------
134. Parliamentarian's Note: At the time of this proceeding, House
officers and employees did not have the ability to respond to
subpoenas absent specific authorization by the House. Standing
authorization to respond to various types of judicial process
is now included as part of rule VIII. See House Rules and
Manual Sec. 697 (2021). For more on the history of rule VIII
and its precursors, see Precedents (Wickham) Ch. 6
Sec. Sec. 26, 27.
---------------------------------------------------------------------------
On March 9, 1976,(135) the House adopted the following
resolution permitting House employees to respond to subpoenas:
---------------------------------------------------------------------------
135. 122 Cong. Rec. 5829-32, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
COMMUNICATION FROM MAJORITY LEADER--COMMON CAUSE ET AL. AGAINST
BAILER ET AL. IN U.S. DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA
The SPEAKER laid before the House the following communication
from the majority leader of the House of Representatives, which was
read and ordered to be printed:
Washington, DC,
March 4, 1976.
Hon. Carl Albert,
The Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: I am forwarding herewith a copy of a legal
stipulation and protectiveorder dated February 24, 1976, as amended
and approved by order of the United States District Court for the
District of Columbia on March 1, 1976, in the case of Common Cause
v. Bailer (Civil Action No. 1887-73).
This order involves the production of documents in the
possession of certain employees of the House, including the
Superintendent of the House Majority Room and others, which
documents cannot be produced without the consent of the House.
I am, therefore, referring the matter to you so that it may be
laid before the House.
With best wishes,
Sincerely,
Thomas P. O'Neill, Jr.
The court order reads as follows:
[U.S. District Court for the District of
Columbia--Civil Action No. 1887-73]
Order
(Common Cause et al., plaintiffs, v.
Benjamin Bailer et al., defendants)
The above matter came before the Court at a status call on
February 2, 1976, to receive a report concerning the progress of
discovery and to resolve any outstanding issues.
(1) With respect to the discovery sought of employees of the
House of Representatives, it was represented that a stipulation and
consent order were in the process of being worked out between
counsel for the respective parties. Said stipulation and order
dated February 24, 1976, were subsequently filed. Accordingly, it
is by the Court, Ordered, that said stipulation and consent order
dated February 24, 1976, as amended to include the paragraph
described in (4) below, be and are hereby approved.
(2) With respect to the discovery sought of U.S. Senate
employees Estep and Needham, a stipulation under date of January 7,
1976, has been entered into between counsel for the respective
parties. Accordingly, it is by the Court,
Ordered, that said stipulation be approved and accepted for
filing with the understanding that it be read to include the
provisions of the proposed order described in (4) below.
(3) With respect to the matter of subpoenas being directed to
one hundred administrative assistants or aides of U.S. Senators, it
is understood that counsel are endeavoring to work out a solution
which will include the directing of one subpoena to a single staff
employee who will represent all one hundred Senators in the
furnishing of documents under the protection of anonymity.
Accordingly, it is by the Court,
Ordered, that the proposed procedure be and hereby is approved,
the Court to be notified as to the precise procedure agreed upon.
(4) With respect to defendants' request that they be assured of
the full opportunity to participate in any discovery proceedings
conducted in this cause, it is by the Court, Ordered, that any
order, or agreement or stipulation approved by the Court regarding
the production of information or documents in the above-captioned
action shall be subject to the following terms:
That, in addition to the procedures required by the Federal
Rules of Civil Procedure, defendants shall be entitled to every
right accorded plaintiffs herein and shall be provided with a copy
of all materials obtained by plaintiffs hereunder; and plaintiffs
shall notify defendants in advance of any interview, by deposition
or otherwise, provided for herein and be given the opportunity to
participate fully in such interview.
(5) With respect to Senate employee Fern, plaintiffs seek
production of the following internal documents of the Senate Select
Committee on Standards and Conduct:
(A) The actual text of (a) all complaints to the Select
Committee concerning the use of the frank by Members of the Senate
and the disposition thereof, (b) all written requests from Members
of the Senate to the Select Committee for advice concerning the use
of the frank and the written responses thereto and (c) deponent
Fern's notes or other memoranda concerning oral requests for advice
and oral responses, or, in lieu of the actual text of the
documents, a summary of each such document with the full document
made available to plaintiffs' counsel to verify the accuracy of the
summaries; and
(B) All internal memoranda of the Committee concerning the use
of the frank which have been approved by the Select Committee or
used as the basis for rendering advice to Members of the Senate.
Actual text was defined by plaintiffs' counsel as a copy of the
full text of the document or the original document itself, with
only the identification of the Senator deleted.
In a ``Memorandum of Deponent Fern in Explanation of
Position,'' Mr. Fern's counsel indicated that after a decision by
the Select Committee not to produce the documents, the Senate on
December 17, 1975, itself considered the matter and adopted a
resolution reaffirming a previous Senate resolution prohibiting
``the disclosure of the internal records of the Senate Select
Committee on Standards and Conduct'' for reasons of
confidentiality. On January 27, 1976, the Select Committee again
considered the matter and determined that under the order of the
Senate it could make no change in its position that said documents
could not be produced. At the February 2, 1976, status call,
counsel for Mr. Fern reiterated the Select Committee's position
that Fern would not be permitted to hand over physical possession
of the documents, but, as an alternative, indicated that he would
supply summaries of the documents described in subparagraph (A)
above. Plaintiff insists on an actual inspection of the original
documents to ensure the accuracy of the summaries. The Select
Committee has declined to permit inspection of the documents
themselves and has rejected plaintiffs' proposal. This particular
matter is therefore in the same posture as it was on January 12,
1976, the time of the previous status call.
We have given careful thought to the contentions of the
parties. It is conceded that the documents themselves are relevant
to the issues in this case. Whether the documents are privileged
may be determined by whether they relate to the business of
Senators or the business of candidates for the Senate. This
approaches a capsule description of the ultimate issue in this
case. We can agree that a privilege for Senatorial documents
exists, without deciding that these documents are Senatorial and
therefore privileged.
At this stage in the lawsuit we think it better to act as if
the documents were Senatorial and privileged, with the ultimate
decision reserved. Inspection by plaintiffs' counsel, even with all
safeguards, would in some sense defeat the privilege, if in
ultimate analysis these documents were found to be properly
entitled to protection. However, there is no doubt that the
privilege claimed, if it exists, is not absolute but is defeasible
upon a showing of proper need. As the recent Watergate experience
has taught us, a President's claim of absolute privilege on the
grounds of confidentiality must yield when a proper showing is made
that the overriding considerations of the public interest require
disclosure. The body to make such a determination is the judiciary
after an in camera inspection of the material. United States v.
Nixon U.S. (1974).
It is our judgment that plaintiffs have up to this point failed
to demonstrate the showing of particular need to overcome the
Select Committee's claim of privilege. It may well be that the
summaries themselves plus additional discovery in other areas will
satisfy the plaintiffs' evidentiary problems and will make it
unnecessary for us to order at this time the production of the
documents themselves. On the other hand, we see no reason why Mr.
Fern should not be required also to supply summaries of ``all
internal memoranda'' described in subparagraph (B) above. It is
understood that the entire file of original documents is quite
limited in size. Accordingly, it is by the Court,
Ordered, that plaintiffs' motion to compel production of
original documents by the witness Fern be and is hereby denied
without prejudice; and it is
Further ordered, that the witness Fern be and is hereby ordered
to produce summaries of all documents covered in subparagraphs (A)
and (B) above.
Malcolm R. Wilkey.
U.S. Circuit Judge.
William B. Jones,
U.S. District Judge.
John H. Pratt,
U.S. District Judge.
March 1, 1976.
[U.S. District Court for the District of
Columbia--Civil Action No. 1887-73]
Stipulation and Protective Order Regarding Production of
Information and Documents by Certain Employees of the House of
Representatives
Common Cause, et al., plaintiffs, v. Bailer,
et al., defendants
introductory statement
The following production of information and documents shall
constitute a satisfactory return to all subpoenas previously issued
by Plaintiffs to Thomas Lankford, David Ramage, Ell Bjellos and
Victor Smiroldo. The materials to be provided to Plaintiffs will
not publicly identify individual Members of Congress by name.
Further, these materials shall not be disclosed publicly except to
the extent that, consistently with this Stipulation, they become a
part of the public record in this litigation. Further discovery
will not be sought by Plaintiffs from these four individuals nor
from other employees of or personnel associated with the House
Majority and/or Minority Rooms, the Publications Distribution
Service and the House Commission on Congressional Mailing
Standards.
I. Thomas Lankford-David Ramage
Messrs. Lankford and Ramage are, respectively, the Minority and
Majority Clerks of the House of Representatives. As such, each has
responsibilities connected with the printing of franked materials.
Messrs. Lankford and Ramage agree to provide such information as is
available in their files disclosing the sources of funds used to
defray printing costs for mass-mailed franked materials. This
information will be provided on a per seat basis. However, in lieu
of actual identification of individual Members, Members will be
referred to in accordance with the procedures described in Part V,
infra, of this Stipulation.
For each seat, the dollar amount of funds will be broken down
into the following categories:
a. Stationery account.
b. Personal check from a Member.
c. Personal check from someone other than a Member.
d. House office account.
e. Political committee.
f. Unknown.
This information is to be provided by Messrs. Lankford and
Ramage on an annual basis extending from January 1, 1973, through
November 30, 1975, inclusive.
In addition, Messrs. Lankford and Ramage will identify the
banks and bank accounts by number in which the proceeds of their
printing operations are deposited.
Finally, Messrs. Lankford and Ramage will not be deposed.
II. Eli Bjellos
Mr. Bjellos is Chief, House Publications Distribution Service
(PDS). As such, he supervises the handling of franked materials
preparatory to delivery to the U.S. Postal Service.
Mr. Bjellos will make such of his files, for the period 1967-
present, as pertain to the handling of franked materials by the PDS
directly available to members of the legal staff (including
volunteers) working under the direct supervision of the undersigned
counsel for Plaintiff Common Cause for the sole purpose of
preparing compilations of the per seat volume and timing of franked
mail sent by individual Members of Congress. At any one time, not
more than five such members of Plaintiff's legal staff, previously
designated to the Court and deponents' counsel, shall have access
to these files of the PDS. All persons having such access shall not
disclose, during discovery or at trial or thereafter, to any other
persons the identity of any individual Members of Congress either
in connection with their use of information obtained from Mr.
Bjellos' files or for any other purpose resulting from or made
possible by their prior access to Mr. Bjellos' files; nor shall any
Information derived from the inspection of the files be used for
any purpose other than the aforesaid compilations. The undersigned
counsel for Plaintiffs shall ensure that, before they obtain access
to PDS files, all such members of the legal staff of Plaintiff
Common Cause shall acknowledge in writing to the Court that they
have been informed of the terms of this Stipulation and Protective
Order and are bound thereby.
The PDS files and the worksheets of the members of Plaintiffs'
legal staff shall at all times remain in the offices of the PDS.
After the final compilation of the PDS data is completed by
Plaintiffs' legal staff, the data will be processed and provided to
Plaintiffs' counsel as described in Part V, infra. Deponents'
counsel, by coding the processed final compilation of PDS data,
shall not be deemed to have conceded the accuracy or validity of
the data or compilation thereof supplied by Plaintiffs, and shall
be free thereafter to contest the accuracy and/or validity thereof
should Plaintiffs seek to rely on the data for any purpose during
this litigation.
In the alternative, Plaintiffs may request that information be
compiled by Mr. Bjeilos' staff, reflecting the per seat volume and
timing of franked mail sent by Individual Members, on a daily basis
for the period 1967 to the present. Such compilations will be
processed as described in Part V, infra, and will be provided
subject to the following conditions:
(a) that Plaintiffs bear the full costs of compilation efforts,
including the compensation of personnel involved; and (b) that such
compilation efforts as Plaintiffs may specify will not, in Mr.
Bjellos' reasonable opinion, result in significant interference
with the regular operations of the Publications Distribution
Service.
Deponents' counsel shall retain a copy of the final compilation
and the originals of all worksheets, for any purpose which the
House deems appropriate. Upon reasonable notice, Plaintiffs'
counsel may inspect the worksheets to insure the accuracy of the
final compilation.
Mr. Bjellos will not be deposed. However, Mr. Bjellos will make
himself available, upon notice to his counsel, for an informal
interview to answer questions agreed upon between counsel for
Plaintiffs and Mr. Bjellos in advance of the entry of this
Stipulation and Protective Order. Also, Mr. Bjellos will, upon
reasonable notice to himself and his counsel, make himself
available informally to answer such questions as are necessary to
decipher notations or similarly clarify information contained in
the materials provided to Plaintiffs' counsel under this Part.
III. Victor Smiroldo
Mr. Smiroldo Is Staff Director and Counsel, House Commission on
Congressional Mailing Standards. On behalf of the House Commission,
Mr. Smiroldo will provide Plaintiffs, at their expense, with copies
of all documents and other writings pertaining to all formal
Complaint proceedings, pending or completed. In addition,
Plaintiffs will receive copies of all documents in the files of the
Commission that embody (a) formal or informal advice rendered by
the Commission and/or its staff to Members of Congress regarding
their use of the franking privilege; or (b) policy statements or
regulations of general applicability adopted by the Commission
regarding permissible uses of the franking privilege by Members of
Congress; or (c) communications of the Commission or its staff with
third parties outside the House of Representatives that relate to
the franking privilege. The only omissions from these materials
will be such details as identify a particular Congressman.
This voluntarily offered material includes:
a. Correspondence and other communications from the Commission
to Members of Congress or their staffs, advising a Member with
respect to the frankability of a proposed mailing.
b. Correspondence and other communications from Members of the
House Commission staff to Members of Congress or their staffs that
provide such advice.
c. Correspondence and other communications relating to the
franking privilege, between, on the one hand, the House Commission
or its staff and, on the other hand, individuals other than Members
of Congress or their staff.
d. Internal staff memoranda addressed to the Commission in
cases where staff memoranda have been adopted by the Commission as
the basis for its final action in (i) rendering advice on the
frankability of a proposed mailing, or (ii) adopting policies or
regulations of general application with respect to permissible uses
of the franking privilege by Members of Congress.
Where available, a copy of the actual proposed mailing under
consideration by the House Commission or its staff (with details
identifying individual Members omitted) will be attached to the
above-described materials.
Also, where necessary to understand the advice rendered by the
Commission or its staff, portions of the requests for advisory
opinions will be provided.
Mr. Smiroldo will not be deposed. However, Mr. Smiroldo will
make himself available for an informal interview, and submit an
affidavit answering the questions propounded by Plaintiff's
counsel, if necessary, to clarify the materials provided to
Plaintiff's counsel it is specifically understood and agreed that
Mr. Smiroldo will not provide Plaintiffs with information or access
to other materials consisting of (a) internal memoranda that were
not adopted by the Commission as the basis for advice or policy
decisions by the Staff or the Commission (b) requests for advice by
members, except as otherwise provided for above, and (c) either the
identity or the code number for the members involved. See Part V,
infra.
A unique multi-digit code number shall be assigned each
document provided under this Part and lodged with the Court
together with a unique ``key'' which shall correlate each code
number with the code numbers separately and uniquely assigned to
each Member's list of attributes as provided for in Part V. The
code assigned the documents shall differ from all other codes
herein provided for and the ``key'' shall differ from the ``keys''
provided for in Part V. Plaintiff's counsel may move, upon
reasonable notice to Deponents' counsel and upon a showing of
particularized need therefor, for access to the code for the
documents and the ``key'' correlating the documents to the list of
attributes. The terms of access to the key and code shall be
Identical to those in Part V.
IV. Descriptive information with respect to individual Members
Plaintiffs will prepare and provide Deponents' counsel with a
list of current Members of Congress, associating each Member with
the following descriptive information:
a. Primary and general election vote percentages for each
Member and challenger for each election held in the years 1966
through 1974, rounded off to the nearest percent.
b. Month of each primary election for each Member who sought
reelection in the years 1972 through 1974.
c. The seniority by number of terms for those presently Members
and the numbers of terms served by those not presently Members,
reported as freshmen, two terms, three to five years, and more than
five terms.
d. Where applicable, whether the Member did not seek
renomination or reelection.
e. General region of the country; e.g., South or non-South.
f. The percentage of urban population for each Member's
district reported in categories of ten percent; except that
categories 0 and 100% shall be reported separately.
g. The primary and general election campaign spending totals
for each incumbent seeking reelection and for each challenger
reported in categories of $25,000; except that expenditures in
excess of $200,000 shall be reported as one category.
h. The general election vote percentage which the Presidential
candidate of the Member's political party won in 1968 and 1972,
reported in categories of five percent.
i. Month and year of reapportionment since 1966.
Deponents' counsel will then process the data for each seat in
accordance with Part V, infra, and provide the Court and
Plaintiffs' counsel with the coded list of attributes. Deponents
shall not be deemed to have conceded the accuracy or validity of
the attributes supplied by Plaintiffs, and shall be free thereafter
to contest its accuracy and/or validity should Plaintiffs seek to
rely on the data for any purpose during this litigation. The coded
list of attributes processed in accordance with Part V will be
subject to the seal of the Court, and will not, in whole or in
part, be disclosed to any other person or introduced in this
action, except under seal, at any time during discovery or at trial
or thereafter with the following exceptions:
1. The coded list of attributes may be provided to other
persons, solely in connection with this litigation, for the purpose
of preparing aggregate statistical analyses by certain categories
of Members of Congress.
2. The coded list of attributes may be provided to expert
witnesses, solely in connection with this litigation, in order to
obtain an affidavit or testimony, which affidavit or testimony may
be publicly disclosed or filed with the court only if they do not
disclose, directly or indirectly, the coded list of attributes or
any portion thereof.
3. Aggregate statistical analyses by certain categories of
Members of Congress may be introduced publicly in this action so
long as such statistical analyses do not consist of any category
that contains less than 10 Members of Congress.
Persons having access to the coded list of attributes or
portions thereof or information derived therefrom shall not further
disclose the coded list of attributes or portions thereof of
information derived therefrom to any other persons. The undersigned
counsel for Plaintiffs shall ensure that, before obtaining access
to the coded list of attributes, persons to be provided access
shall acknowledge in writing to the Court that they have been
informed of the terms of this Stipulation and Protective Order and
are bound thereby.
V. Compilation and processing of data
Counsel for Deponents Ramage, Lankford and Bjellos will prepare
a coded version of the per seat list of attributes described in
Part IV, supra, by substituting a unique multidigit number for the
name of each Member. In addition, Deponents' counsel will file a
``key,'' assigning a number to each individual Member of the House,
to this coded version with the Court in camera, to be kept in the
chambers of one of the three judges assigned to this case. This
``key'' will not be provided or otherwise made available to
Plaintiffs or their counsel, except that Plaintiffs may seek access
to particular portions of the ``key'' by motion, served on
Deponents' counsel, demonstrating a particularized need for access
to such particular portions that clearly outweigh the interests
supporting the confidentiality of the code. Plaintiffs' counsel
will receive a copy of the coded version of the per seat lists of
attributes.
The data from Messrs. Ramage, Lankford and Bjellos for each
Member of the House will be separately compiled. After compilation,
the name of each Member will be deleted and a unique multi-digit
identifying code number will be substituted by Deponents' counsel.
The unique multi-digit code numbers for the list of attributes
will not be identical to the unique multi-digit code numbers for
the compilation of data from the files of Messrs. Ramage, Lankford
and Bjellos. Instead, Deponents' counsel will prepare a second
``key,'' to permit the separately coded data compilation for each
Member to be coordinated with pertinent coded list of attributes
applicable to that Member. This second ``key'' will be available to
Plaintiffs and their counsel as follows: Plaintiffs' undersigned
counsel will receive a single copy of this ``key,'' to be retained
solely by him, except that the key may be made available to Karen
Paget, a computer expert, or such other qualified single individual
selected by Plaintiffs' counsel as a replacement, where a
replacement is necessary and Deponents' counsel is so notified, to
enable her to assist counsel in processing the data for purposes of
this litigation and for no other purpose. Karen Paget, or her
qualified replacement, shall not disclose this key, or portions
thereof, to any other person. Further, counsel for Plaintiffs shall
ensure that, before obtaining access to this key, or portions
thereof, Karen Paget, or her qualified replacement, shall
acknowledge in writing to the Court that she has been informed of
the terms of this Stipulation and Protective Order and is bound
thereby.
VI. Record of computer processing
Plaintiffs' counsel shall maintain or supervise the maintenance
of a complete record of all computer input and output generated in
the course of Plaintiffs' processing of data to be supplied in
accordance with this Stipulation and Protective Order. This record
of computer input and output shall be made available to counsel for
Deponents only upon motion, previously served upon counsel for
Plaintiffs, if it appears that public disclosure of use of the
frank by named individual Members of the House may have occurred in
possible violation of this Protective Order. This record shall not
be used by Deponents for any purpose other than in relation to such
a suspected violation.
VII. Discovery from other sources
When other persons against whom discovery is sought provide
documents to Plaintiffs that identify or refer to a particular
Member, Plaintiffs will first have such persons submit such
documents to the Court and receive the code number associated with
the list of attributes. Plaintiffs' counsel will have the person
deposed prepare and provide Plaintiffs' counsel with copies of such
documents with details that identify a particular Member omitted.
In lieu of identification by name, Members will be referred to by
the code number assigned to that Member's descriptive
characteristics. Also, in lieu of identification by name, Members
shall be referred to by their coded number by any witnesses who may
actually testify either during discovery or during any trial that
may occur. Finally, Plaintiffs will refer to individual Members in
the course of discovery or trial or in any motion for summary
judgment or the like only by reference to their coded number.
VIII. Defendants' access to data from House Employees
The counsel for Defendants shall be provided with copies of all
materials furnished to Plaintiffs' counsel. Said counsel for
Defendants shall not further disclose the contents of such
information and materials, or any portions thereof, to any other
person or persons without prior approval of the Court, such
approval to be sought by motion previously served upon counsel for
Deponents.
IX. Verification
The accuracy and authenticity of information described in Parts
I through III that is provided to Plaintiffs, Defendants and the
Court by Deponents will be verified by the Affidavits of Deponents.
Agree to the foregoing Stipulation and
Protective Order
For Plaintiffs:
Kenneth J. Guido.
For Messrs. Ramage, Lankford, Bjellos and Smiroldo:
Edwin M. Zimmerman.
So Ordered:
Malcom R. Wilkey.
William B. Jones.
John R. Pratt.
certificate of service
I hereby certify that I have, this 24th day of February 1976,
caused copies of the foregoing ``Stipulation and Protective Order
Regarding Production of Information and Documents by certain
Employees of the House of Representatives'' to be served by hand
delivery on--
Cornelius Kennedy, Esq., Kennedy & Webster, 888 17th Street,
N.W., Washington, DC 20006
Kenneth J. Guido, Jr., Esq., Common Cause, 2030 M Street, N.W.,
Washington, DC 20036
Bruce E. Titus Esq., Department of Justice, 10th and
Constitution Ave., N.W., Room 3337, Washington, DC 20530
Arthur F. Fergenson.
Mr. [Thomas] O'NEILL [of Massachusetts]. Mr. Speaker, I offer a
privileged resolution (H. Res. 1082) and ask for its immediate
consideration.
The Clerk read the resolution as follows:
H. Res. 1082
Whereas in the case of Common Cause et al. against Bailar et al.
(fromerly Common Cause et al. against E.T. Klassen et al.) (Civil Action
Number 1887-73) pending in the United States District Court for the
District of Columbia, subpoenas duces tecum were served upon various
employees of the House of Representatives; and
Whereas the House of Representatives on January 23, 1975, adopted House
Resolution 85 and on December 4, 1975, adopted House Resolution 902
asserting the privileges of the House against the production of documents
and disclosure of information pursuant to the order of the ordinary courts
of justice without the consent of the House, authorizing the Speaker to
designate counsel to represent the interest of the House and of the
aforementioned employees in any proceeding related to the disposition of
the subpoenas or motions served thereon in this case, and further providing
for the cooperation of the House consistent with its privileges upon a
court determination of the materiality and relevancy of the material
covered by subpoenas; and
Whereas the Court on July 30, 1975, filed a memorandum and order granting
Plaintiff's motion to compel discovery with respect to the House employees
but committing to further negotiations between Plaintiffs and the House
employees the exact nature and bulk of the materials to be produced; and
Whereas said negotiations have resulted in an agreement which was filed
with the Court on February 24, 1976, and which was amended and approved by
the said Court on March 1, 1976; Therefore, be it
Resolved, That by the privileges of this House no evidence of a
documentary character under the control and in the possession of the House
can, by the mandate of process of the ordinary courts of justice, be taken
from such control or possession but by its permission, and no House
employee may be compelled to disclose information obtained pursuant to his
official duties as an employee of the House, without the consent of the
House; be it further
Resolved, That the consent of this House is hereby given to the
subpoenaed employees to produce the information requested pursuant to the
stipulation and protective order dated February 24, 1976, as amended and
approved by order dated March 1, 1976, of the United States District Court
for the District of Columbia in the case of Common Cause v. Bailar (Civil
Action 1887-73); and be it further
Resolved, That legal and administrative expenses incurred in formulating
and executing the stipulation and protective order are authorized to be
paid from the contingent fund of the House pursuant to vouchers signed by
the Speaker; and be it further
Resolved, That a copy of these resolutions be submitted to the said Court
by the Clerk of the House of Representatives or by his authorized
representative.
The SPEAKER.(136) The Chair recognizes the gentleman
from Massachusetts (Mr. O'Neill).
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136. Carl Albert (OK).
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Mr. O'NEILL. Mr. Speaker, this resolution relates to the case
of Common Cause against Bailar, in which the organization entitled
``Common Cause'' is contesting the constitutionality of the laws
governing the congressional franking privilege. As stated in the
resolution, the House has previously passed several resolutions in
the 94th Congress protecting the files of the House of
Representatives from overly broad subpoenas directed to a number of
employees of the House.
The intention of this resolution is to allow compliance by the
House employees with a stipulation and protective order which was
granted by the U.S. District Court for the District of Columbia and
which after long and careful deliberations, was negotiated with the
concurrence of the leadership on both sides of the aisle, by the
counsel appointed by the Speaker pursuant to authority given him by
the House and by the counsel for Common Cause. The protective order
allows plaintiffs in the suit access to only such files and
information which are material and relevant to the constitutional
issue asserted by the plaintiffs, and prohibits their access to the
names and identities of individual Members.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 6.16 The House has, by privileged resolution, authorized the House
Commission on Congressional Mailing Standards (now the House
Communications Standards Commission) to intervene on behalf of the
House in a lawsuit challenging the constitutionality of the
franking privilege.
On July 1, 1976,(137) the House adopted the following
resolution:
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137. 122 Cong. Rec. 21852-53, 94th Cong. 2d Sess.
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AUTHORIZING INTERVENTION OF HOUSE COMMISSION ON CONGRESSIONAL
MAILING STANDARDS IN THE CASE OF COMMON CAUSE VERSUS BAILAR ET
AL.
Mr. [Richard] BOLLING [of Missouri]. Mr. Speaker, by direction
of the Committee on Rules, I call up House Resolution 1382 and ask
its immediate consideration.
The Clerk read the resolution as follows:
H. Res. 1382
Resolved, That the House Commission on Congressional Mailing Standards is
authorized to seek to intervene in the pending action entitled ``Common
Cause et al. v. Benjamin Bailar et al.'', Civil Action Numbered 1887-73,
pending in the United States District Court for the District of Columbia.
The SPEAKER.(138) The gentleman from Missouri (Mr.
Bolling) is recognized for 1 hour.
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138. Carl Albert (OK).
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Mr. BOLLING. Mr. Speaker, I yield 30 minutes to the gentleman
from Mississippi (Mr. Lott), pending which I yield myself such time
as I may consume.
Mr. Speaker, this resolution was introduced by the majority
leader and the minority leader. It is an action recommended to the
Congress by the Justice Department. It will enable the House
Commission on Congressional Mailing Standards to seek to intervene
in the suit against the Department of the Treasury having to do
with the frank.
It is, as far as I know, totally noncontroversial, and it is in
the interests of the House and the Members of the House that the
resolution be agreed to.
Mr. [Trent] LOTT [of Mississippi]. Mr. Speaker, I thank the
gentleman for his explanation, and I yield myself such time as I
may consume.
Mr. Speaker, House Resolution 1382 is designed to authorize the
House Commission on Congressional Mailing Standards to seek to
intervene in the action entitled ``Common Cause et al. v. Benjamin
Bailar et al.'' which presently is pending in the U.S. District
Court for the District of Columbia. This action arose in 1973 when
Common Cause filed suit against the Postmaster General and the
Secretary of the Treasury to prevent the expenditure of funds to
honor the congressional frank, alleging that the franking statute
was unconstitutional.
Since the suit was filed, several employees of the House have
been issued subpenas. Private attorneys were retained by authority
of House Resolution 85 to assist these employees in responding to
the subpenas and to examine the alternatives available to the
House. Thereafter, a conclusion was reached that the best interests
of the House would be served by its intervening in the matter in
order to argue the constitutionality of the franking statute before
the court. Pursuant to this determination, House Resolution 1382
was introduced by the majority and minority leaders and referred to
the Committee on Rules. On June 30 the resolution was passed
unanimously by that committee and ordered reported to the House.
Mr. Speaker, I favor this resolution and support its adoption.
Mr. BOLLING. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 6.17 Pursuant to statute,(139) the House approves
certain adjustments to the Members' Representational Allowance via
the adoption of a simple House resolution.
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139. Parliamentarian's Note: Under 2 U.S.C. Sec. 4313, the Committee on
House Administration may make such adjustments via committee
order, but only for specified reasons (for example, an increase
in the cost of materials or services). Here, the increase in
the MRA was provided for additional security resources, and
thus could only be effectuated by House resolution. See 2
U.S.C. Sec. 4314(b).
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On June 27, 2017,(140) the House adopted the following
resolution authorizing a temporary increase in the MRA:
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140. 163 Cong. Rec. H5202 [Daily Ed.], 115th Cong. 1st Sess.
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ADJUSTING THE AMOUNT OF THE MEMBERS' REPRESENTATIONAL ALLOWANCE
Mr. [Gregg] HARPER [of Mississippi]. Mr. Speaker, I send to the
desk a resolution, and I ask unanimous consent for its immediate
consideration in the House.
The Clerk read the title of the resolution.
The SPEAKER pro tempore.(141) Is there objection to
the request of the gentleman from Mississippi?
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141. Doug Collins (GA).
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There was no objection.
The text of the resolution is as follows:
H. Res. 411
Whereas on June 14, 2017, an armed gunman opened fire at a practice for
the annual Congressional Baseball Game for Charity, wounding five
individuals;
Whereas Members of the House are understandably concerned about the
security of their staff and the constituents they serve, as well as their
personal security;
Whereas the Members' Representational Allowance (MRA) is available for
ordinary and necessary expenses associated with security measures; and
Whereas heightened security concerns necessitate an adjustment in the MRA
to provide Members with additional resources: Now, therefore, be it
Resolved, That pursuant to section 1(b) of House Resolution 1372, Ninety-
fourth Congress, agreed to July 1, 1976, as enacted into permanent law by
section 101 of the Legislative Branch Appropriation Act, 1977 (2 U.S.C.
4314), the Members' Representational Allowance applicable as of the date of
the adoption of this resolution for each Member of the House of
Representatives (including the Delegates and Resident Commissioner to the
Congress) is increased by $25,000, to be available through January 2, 2018.
The resolution was agreed to.
A motion to reconsider was laid on the table.
D. Immunities
Sec. 7. Immunities of Members Generally; Service of Process
The Constitution specifies two types of immunities enjoyed by
Members of Congress. Pursuant to article I, section 6, clause 1,
Members ``shall . . . be privileged from Arrest during their
attendance'' at sessions of Congress.(1) Pursuant to the
same clause, ``for any Speech or Debate . . . they shall not be
questioned in any other place.''(2)
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1. House Rules and Manual Sec. Sec. 90, 91 (2021). This privilege is
applicable ``in all Cases, except Treason, Bribery, and Breach
of the Peace.'' U.S. Const. art. I, Sec. 6, cl. 1. The scope of
the exception has been interpreted ``to mean all indictable
crimes.'' 3 Hinds' Precedents Sec. 2673. For more on this
privilege, see Sec. 9, infra.
2. House Rules and Manual Sec. Sec. 92-95 (2021). For more on this
privilege, see Sec. 8, infra.
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These two grants of immunity have a long history stretching back to
earlier British and colonial practices.(3) Their purpose is
to preserve the independence of the legislative branch in our Federal
system of separated powers, and ensure that Members are not prevented
by others from exercising their representational
responsibilities.(4) To deny a Member the ability to attend
sessions of Congress (by physically arresting said Member, or burdening
said Member with judicial process)(5) is to deny
representation to that Member's constituents. This is not to say that
Members of Congress are above the law, or not subject to the same legal
rules applicable to ordinary citizens.(6) Rather, it is a
recognition that the representational duties of Members are central to
our system of government, and that an appropriate balance must be
struck between exercising such duties and responding to legal
processes.
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3. Following the violent conflicts between the king and Parliament in
17th-century England, Parliament asserted its privileges with
respect to the crown by adopting a ``Bill of Rights'' in 1689.
See Josh A. Chafetz, Democracy's Privileged Few: Legislative
Privilege and Democratic Norms in the British and American
Constitutions, (Yale University Press 2007), pp. 134-143.
Similar privileges were asserted by colonial assemblies at
various times before American independence, and the Articles of
Confederation included language nearly identical to that found
in the Constitution. See United States v. Johnson, 383 U.S.
169, 177 (1966). At the Constitutional Convention, relatively
little deliberation occurred on importing these privileges and
immunities into the new Constitution of the United States--
potentially reflecting the noncontroversial nature of these
longstanding prerogatives of legislatures. See Deschler's
Precedents Ch. 7 Sec. 16.
4. See, e.g., United States v. Johnson, 383 U.S. 169, 180-81 (1966)
(``[I]t is apparent from the history of the clause that the
privilege was not born primarily of a desire to avoid private
suits . . . but rather to prevent intimidation by the executive
and accountability before a possibly hostile judiciary.'');
United States v. Brewster, 408 U.S. 501, 507 (1972) (``The
immunities of the Speech or Debate Clause were not written into
the Constitution simply for the personal or private benefit of
Members of Congress, but to protect the integrity of the
legislative process by insuring the independence of individual
legislators.''); United States v. Helstoski, 442 U.S. 477, 491
(1979) (``The Speech or Debate Clause was designed neither to
assure fair trials nor to avoid coercion. Rather, its purpose
was to preserve the constitutional structure of separate,
coequal, and independent branches of government. The English
and American history of the privilege suggests that any lesser
standard would risk intrusion by the Executive and the
Judiciary into the sphere of protected legislative
activities.''); and Eastland v. United States Servicemen's
Fund, 421 U.S. 491, 511 (1975) (``This case illustrates vividly
the harm that judicial interference may cause . . . [t]he
Clause was written to prevent the need to be confronted by such
`questioning' and to forbid invocation of judicial power to
challenge the wisdom of Congress' use of its investigative
authority.'').
5. The privilege from arrest in British practice ``extended to
protection against being sued during Parliament time because
responding to suits was so difficult that it would take a
Member away from his parliamentary duties, almost as certainly
as arresting him would.'' See Josh A. Chafetz, Democracy's
Privileged Few: Legislative Privilege and Democratic Norms in
the British And American Constitutions (Yale University Press
2007), pp. 111-133.
6. The textual exceptions listed in the Constitution (fortified by
subsequent case law) make it clear that Members of Congress
cannot avoid criminal liability through an assertion of these
parliamentary privileges. In Brewster, the Supreme Court stated
unequivocally that the Speech or Debate Clause was not intended
``to make Members of Congress super-citizens, immune from
criminal responsibility.'' United States v. Brewster, 408 U.S.
501, 516 (1972).
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The constitutional privileges described above ``act as procedural
defenses''(7) and are thus asserted almost exclusively in
the context of judicial proceedings involving Members. Federal courts
have therefore provided most of the analysis of these privileges and
immunities--defining their scope and providing interpretations of the
relevant constitutional language. In doing so, the courts have
recognized a sphere of legitimate legislative activity that is
protected from judicial process or inquiry. With respect to those
protected legislative acts, Members: may not be held personally
liable;(8) are shielded from most inquiries into those
acts;(9) and may be relieved of the burden of defending
themselves against judicial process aimed at those acts.(10)
Further, Members may not be compelled to testify or produce documents
when the privilege is invoked.(11)
---------------------------------------------------------------------------
7. See Deschler's Precedents Ch. 7 Sec. 15.
8. See Kilbourn v. Thompson, 103 U.S. 168 (1880).
9. See Tenney v. Brandhove, 341 U.S. 367 (1951); and United States v.
Johnson, 383 U.S. 169 (1966).
10. See Dombrowski v. Eastland, 387 U.S. 82 (1967).
11. See Brown Williamson Tobacco v. Williams, 62 F.3d 408 (D.C. Cir.
1995); and U.S. v. Rayburn House, 497 F.3d 654 (D.C. Cir.
2007).
---------------------------------------------------------------------------
When process is served on Members of the House, the Member (or the
House itself) has the constitutional privilege of asserting one of
these immunities to quash the inquiry. Over the course of its history,
the House has chosen a variety of procedural methods for responding to
subpoenas or other judicial orders served on its Members, officers, and
employees.(12)
---------------------------------------------------------------------------
12. For service of process on officers, officials, and employees of the
House, see Deschler's Precedents Ch. 6 Sec. 23; Deschler's
Precedents Ch. 11 Sec. 16; and Precedents (Wickham) Ch. 6
Sec. Sec. 26, 27.
---------------------------------------------------------------------------
It has been said that ``the privilege of the Member [is] the
privilege of the House and that privilege [cannot] be waived except
with the consent of the House.''(13) Thus, throughout the
19th century, when Members became involved in litigation (for example,
by being called to testify before a court), such Members would seek a
decision of the House as to whether the appearance would be consistent
with the rights and privileges of membership. A simple resolution of
the House, denying(14) or authorizing(15)
compliance with the court order, would then be presented as a question
of the privileges of the House for a vote by the full
body.(16) If no resolution authorizing compliance was
adopted, the privilege would be retained.(17)
---------------------------------------------------------------------------
13. 3 Hinds' Precedents Sec. 2662. See also 6 Cannon's Precedents
Sec. 586 (Rep. Fiorello LaGuardia of New York stating that, ``I
can not obey that subpoena without the permission of this
House.'').
14. See, e.g., 3 Hinds' Precedents Sec. 2661.
15. See, e.g., 3 Hinds' Precedents Sec. 2662; Deschler's Precedents Ch.
7 Sec. 15.1; and Deschler's Precedents Ch. 11 Sec. Sec. 14.1,
14.3, 14.6, 14.7, 14.10, 15.1, and 15.2.
16. For more on questions of privilege generally, see Deschler's
Precedents Ch. 11; and Precedents (____) Ch. 11.
17. See 6 Cannon's Precedents Sec. 586 (subpoena duces tecum issued to
a Member but no resolution offered authorizing compliance). See
also Deschler's Precedents Ch. 11 Sec. Sec. 14.2, 14.4, 14.5,
14.8, and 14.9.
---------------------------------------------------------------------------
By the middle of the 20th century, this method of addressing court
orders served on Members of the House was beginning to be seen as
cumbersome and time-consuming. As questions of privilege, resolutions
to authorize (or deny) compliance could be raised at any point during
the House's legislative business, and thus had the potential to delay
the consideration of even highly-privileged legislative
measures.(18) This procedure also required the House to be
in session to adopt the required resolutions, which could have the
effect of creating delays in judicial proceedings if process was served
on Members during periods of adjournment or recess.
---------------------------------------------------------------------------
18. For the precedence of questions of privilege as compared to other
items of House business, see Deschler's Precedents Ch. 11
Sec. Sec. 4, 5; and Precedents (____) Ch. 11.
---------------------------------------------------------------------------
Between 1948 and 1979, there occurred a gradual shift in the
methods the House utilized to defend the constitutional privileges of
its Members. The intent of these efforts was to provide ongoing
authority for Members themselves to make an initial determination as to
whether or not compliance with judicial process was permissible--
effectively shifting the burden of asserting the privilege from the
House itself to the Member. During this period, a variety of
resolutions were adopted that provided this kind of
authorization,(19) first to officers of the House and then
to Members themselves.(20)
---------------------------------------------------------------------------
19. For a list of such resolutions and brief description of the
authorities conveyed, see Precedents (Wickham) Ch. 6 Sec. 26
(fn. 13).
20. Parliamentarian's Note: Officers, officials, and employees of the
House have often been subject to judicial process, frequently
in their capacity as custodians of official documents relevant
to the case at issue. The procedures used by the House in
asserting its constitutional privileges as applied to such
officers and employees of the House have often mirrored the
procedures applicable to Members. Today, both are covered under
the rubric of rule VIII of the standing rules of the House.
House Rules and Manual Sec. 697 (2021). For a discussion of
issues involving the service of process on officers and
employees of the House, see Precedents (Wickham) Ch. 6
Sec. Sec. 26, 27. For an earlier treatment, see Deschler's
Precedents Ch. 6 Sec. 23; and Deschler's Precedents Ch. 11
Sec. 16.
---------------------------------------------------------------------------
Ultimately, the House adopted what is now rule VIII(21)
of its standing rules to address subpoenas and other service of process
issues. The rule grants standing authority for Members, Delegates,
Resident Commissioners, officers, and employees of the House to comply
with properly-served judicial subpoenas or orders, upon a determination
by the affected individual that such compliance is consistent with
``the privileges and rights of the House.''(22) The rule
requires those who have been served to inform the Speaker of such
service, and whether the proposed response is consistent with the
privileges of the House. The Speaker in turn is required by the rule to
inform the House of the proposed action to be taken. In doing so, the
Speaker permits the House as a body to pass judgment on the proposed
response, and potentially take steps to modify or prohibit the
response. Thus, the House as an institution retains the ultimate
authority in defending its constitutional privileges.
---------------------------------------------------------------------------
21. House Rules and Manual Sec. 697 (2021). The rule was originally
adopted as rule L in the 97th Congress in 1981.
22. Rule VIII, clause 1(a); House Rules and Manual Sec. 697 (2021). In
the 107th Congress, the rule was expanded to expressly include
administrative subpoenas as well as judicial subpoenas and
orders. However, that aspect of the rule was eliminated in the
115th Congress. See Sec. 7.9, infra. The rule was substantially
revised in the 115th Congress to consolidate and clarify the
notification aspects of the rule and to eliminate a former
requirement that the Clerk provide a copy of the rule to the
court.
---------------------------------------------------------------------------
Sec. 7.1 Pursuant to rule VIII,(23) (1) Members are required
to notify the Speaker if they have been served with judicial
process; (2) the Speaker is required to promptly lay such matters
before the House; and (3) Members themselves make the initial
determination as to whether compliance with the subpoena or order
is consistent with the privileges of the House.(24)
---------------------------------------------------------------------------
23. House Rules and Manual Sec. 697 (2021).
24. Parliamentarian's Note: Although not required by the rule, most
Members avail themselves of the services of the Office of
General Counsel (or, occasionally, outside counsel) for legal
advice regarding the requirements of judicial process and the
House's constitutional prerogatives. For more on the Office of
General Counsel, see clause 8 of rule II. See also Precedents
(Wickham) Ch. 6 Sec. 19.
---------------------------------------------------------------------------
On January 30, 2017,(25) the following letters were laid
before the House, indicating that Members of the House had been served
with subpoenas, and that (after consultation with the Office of General
Counsel), the Members had determined that compliance was consistent
with the privileges of the House:
---------------------------------------------------------------------------
25. 163 Cong. Rec. 1332, 115th Cong. 1st Sess. For similar examples of
Members indicating that they intended to comply with judicial
subpoenas, see 160 Cong. Rec. 15477-78, 113th Cong. 2d Sess.
(Nov. 12, 2014).
---------------------------------------------------------------------------
COMMUNICATION FROM THE HONORABLE ELIJAH E. CUMMINGS, MEMBER OF
CONGRESS
The SPEAKER pro tempore laid before the House the following
communication from the Honorable Elijah E. Cummings, Member of
Congress:
Congress of the United States,
House of Representatives,
Washington, DC, January 30, 2017.
Hon. Paul D. Ryan,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: This is to notify you formally pursuant to
Rule VIII of the Rules of the House of Representatives that we have
been served with a subpoena for documents, issued by the District
Court for the District of Maryland in Benisek v Lamone.
After consultation with the Office of General Counsel, we have
determined that compliance with the subpoena will be consistent
with the privileges and rights of the House.
Sincerely,
Elijah E. Cummings,
Member of Congress. -------------------
COMMUNICATION FROM THE HONORABLE STENY H. HOYER, MEMBER OF
CONGRESS
The SPEAKER pro tempore laid before the House the following
communication from the Honorable Steny H. Hoyer, Member of
Congress:
Congress of the United States,
House of Representatives,
Washington, DC, January 30, 2017.
Hon. Paul D. Ryan,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: This is to notify you formally pursuant to
Rule VIII of the Rules of the House of Representatives that I have
been served with a witness subpoena for documents, issued by the
District Court for the District of Maryland in Benisek v Lamone.
After consultation with the Office of General Counsel, I have
determined that compliance with the subpoena will be consistent
with the privileges and rights of the House.
Sincerely,
Steny H. Hoyer. -------------------
COMMUNICATION FROM THE HONORABLE C.A. DUTCH RUPPERSBERGER,
MEMBER OF CONGRESS
The SPEAKER pro tempore laid before the House the following
communication from the Honorable C.A. Dutch Ruppersberger, Member
of Congress:
Congress of the United States,
House of Representatives,
Washington, DC, January 30, 2017.
Hon. Paul D. Ryan,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: This is to notify you formally pursuant to
Rule VIII of the Rules of the House of Representatives that we have
been served with a subpoena for documents, issued by the District
Court for the District of Maryland in Benisek v Lamone.
After consultation with the Office of General Counsel, we have
determined that compliance with the subpoena will be consistent
with the privileges and rights of the House.
Sincerely,
C.A. Dutch Ruppersberger,
Member of Congress. -------------------
COMMUNICATION FROM THE HONORABLE JOHN P. SARBANES, MEMBER OF
CONGRESS
The SPEAKER pro tempore laid before the House the following
communication from the Honorable John P. Sarbanes, Member of
Congress:
Congress of the United States,
House of Representatives,
Washington, DC, January 30, 2017.
Hon. Paul D. Ryan,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: This is to notify you formally pursuant to
Rule VIII of the Rules of the House of Representatives that we have
been served with a subpoena for documents, issued by the District
Court for the District of Maryland in Benisek v Lamone.
After consultation with the Office of General Counsel, we have
determined that compliance with the subpoena will be consistent
with the privileges and rights of the House.
Sincerely,
John P. Sarbanes,
Member of Congress.
Sec. 7.2 Pursuant to rule VIII,(26) Members are required to
notify the Speaker of the receipt of judicial subpoenas, and may
indicate in such correspondence that they have determined that
compliance with such subpoenas is inconsistent with the privileges
of the House.
---------------------------------------------------------------------------
26. House Rules and Manual Sec. 697 (2021).
---------------------------------------------------------------------------
On September 24, 2015,(27) the following communications
were laid before the House, indicating that Members had be served with
subpoenas and that (after consultation with the Office of General
Counsel), they had determined that compliance with the subpoenas was
inconsistent with the privileges of the House:
---------------------------------------------------------------------------
27. 161 Cong. Rec. 14775-76, 114th Cong. 1st Sess. For similar examples
of Members indicating that they intended to move to quash
judicial subpoenas, see 159 Cong. Rec. 3377, 113th Cong. 1st
Sess. (Mar. 12, 2013); and 159 Cong. Rec. 3775, 113th Cong. 1st
Sess. (Mar. 15, 2013).
---------------------------------------------------------------------------
COMMUNICATION FROM CHAIR OF COMMITTEE ON OVERSIGHT AND
GOVERNMENT REFORM
The SPEAKER pro tempore laid before the House the following
communication from the chair of the Committee on Oversight and
Government Reform:
House of Representatives,
Committee on Oversight and Government Reform,
Washington, DC, September 22, 2015.
Hon. John A. Boehner,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: This is to notify you formally, pursuant to
Rule VIII of the Rules of the House of Representatives, that I have
received a subpoena, issued by the Superior Court for the District
of Columbia, purporting to require that, in connection with a
particular criminal case, I produce certain official documents and
appear to testify at trial on official matters.
After consultation with the Office of General Counsel, I have
determined, pursuant to Rule VIII, that the subpoena (i) is not a
``proper exercise of jurisdiction by the court,'' (ii) seeks
information that is not ``material and relevant,'' and/or (iii) is
not ``consistent with the privileges and rights'' of the House, its
Members, its officers, or its employees. Accordingly, I intend to
move to quash the subpoena, or for other protective relief.
Sincerely,
Jason Chaffetz,
Chairman. -------------------
COMMUNICATION FROM RANKING MEMBER OF COMMITTEE ON OVERSIGHT AND
GOVERNMENT REFORM
The SPEAKER pro tempore laid before the House the following
communication from the ranking member of the Committee on Oversight
and Government Reform:
House of Representatives,
Committee on Oversight and Government Reform,
Washington, DC, September 22, 2015.
Hon. John A. Boehner,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: This is to notify you formally, pursuant to
Rule VIII of the Rules of the House of Representatives, that I have
received a subpoena, issued by the Superior Court for the District
of Columbia, purporting to require that, in connection with a
particular criminal case, I produce certain official documents and
appear to testify at trial on official matters.
After consultation with the Office of General Counsel, I have
determined, pursuant to Rule VIII, that the subpoena (i) is not a
``proper exercise of jurisdiction by the court,'' (ii) seeks
information that is not ``material and relevant,'' and/or (iii) is
not ``consistent with the privileges and rights'' of the House, its
Members, its officers, or its employees. Accordingly, I intend to
move to quash the subpoena, or for other protective relief.
Sincerely,
Elijah E. Cummings,
Ranking Member.
Sec. 7.3 Pursuant to rule VIII,(28) Members are required to
notify the Speaker upon receipt of a subpoena or other judicial
order, and may supplement such correspondence to correct errors or
omissions in the initial notification.
---------------------------------------------------------------------------
28. House Rules and Manual Sec. 697 (2021).
---------------------------------------------------------------------------
On March 11, 2011,(29) the following communication was
laid before the House:
---------------------------------------------------------------------------
29. 157 Cong. Rec. 3849-50, 112th Cong. 1st Sess.
---------------------------------------------------------------------------
COMMUNICATION FROM CHAIR OF COMMITTEE ON OVERSIGHT AND
GOVERNMENT REFORM
The SPEAKER pro tempore (Mr. Harris) laid before the House the
following communication from the chair of the Committee on
Oversight and Government Reform:
House of Representatives,
Committee on Oversight and Government Reform,
Washington, DC, March 11, 2011.
Hon. John A. Boehner,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: My letter of March 3, 2011 notified you
formally, pursuant to Rule VIII of the Rules of the House of
Representatives, that the Committee on Oversight and Government
Reform has been served with a subpoena for documents issued by the
United States District Court for the District of Columbia in a case
now ending before that Court. That letter incorrectly referenced
the pending case as a civil case. In fact, it is a criminal case.
Sincerely,
Darrell E. Issa,
Chairman, Committee on Oversight
and Government Reform.
Sec. 7.4 The procedural requirements of rule VIII(30)
regarding the receipt of subpoenas and judicial orders apply to
Delegates and Resident Commissioners in the same manner as they
apply to Members.
---------------------------------------------------------------------------
30. House Rules and Manual Sec. 697 (2021).
---------------------------------------------------------------------------
On September 30, 2015,(31) the following communication
from the Delegate from the District of Columbia was laid before the
House pursuant to rule VIII:
---------------------------------------------------------------------------
31. 161 Cong. Rec. 15497, 114th Cong. 1st Sess.
---------------------------------------------------------------------------
COMMUNICATION FROM THE HONORABLE ELEANOR H. NORTON, MEMBER OF
CONGRESS
The SPEAKER pro tempore (Mr. Young of Iowa) laid before the
House the following communication from the Honorable Eleanor H.
Norton, Member of Congress:
Congress of the United States,
House of Representatives,
Washington, DC, September 30, 2015.
Hon. John A. Boehner,
Speaker, House of Representatives, Washington, DC.
Dear Mr. Speaker: This is to notify you formally, pursuant to
Rule VIII of the Rules of the House of Representatives, that I have
received a subpoena, issued by the Superior Court for the District
of Columbia, in connection with a particular criminal case, that I
produce certain official documents and appear to testify at trial
on official matters.
After consultation with counsel, I will make the determination
required by Rule VIII.
Sincerely,
Eleanor H. Norton,
Member of Congress.
Sec. 7.5 Pursuant to rule VIII, Members are permitted to make the
initial determination as to whether compliance with judicial
process is consistent with the privileges and prerogatives of the
House, but that ``[u]nder no circumstances may minutes or
transcripts of executive sessions, or evidence of witnesses in
respect thereto, be disclosed or copied.''(32)
---------------------------------------------------------------------------
32. Rule VIII, clause 3(b); House Rules and Manual Sec. 697 (2021).
---------------------------------------------------------------------------
Rule VIII, permitting Members to determine on an individual basis
whether compliance with subpoenas or other judicial orders is
consistent with the privileges of the House, does not extend to the
production of executive session material.(33) On March 17,
1998,(34) the following letter from a Member, indicating
that the Office of General Counsel had advised him that compliance with
subpoenas was not consistent with the privileges of the House, was laid
before the House:
---------------------------------------------------------------------------
33. Parliamentarian's Note: The Committee on Standards of Official
Conduct (now the Committee on Ethics) always meets in executive
session (pursuant to clause 3(c)(1) of rule XI) unless the
committee votes to open the session to the public. House Rules
and Manual Sec. 806 (2021). The documents sought here were of
executive session material, and therefore could not be produced
under rule VIII.
34. 144 Cong. Rec. 3838, 105th Cong. 2d Sess. For a similar case prior
to the advent of rule VIII (where the House took no action with
respect to a subpoena for executive session material, thus
precluding the production of said documents), see 120 Cong.
Rec. 16918, 93d Cong. 2d Sess. (May 30, 1974).
---------------------------------------------------------------------------
COMMUNICATION FROM THE CHAIRMAN OF THE COMMITTEE ON STANDARDS
OF OFFICIAL CONDUCT
The SPEAKER pro tempore laid before the House a communication
from the Chairman of the Committee on Standards of Official
Conduct:
Committee on Standards
of Official Conduct,
Washington, DC, March 16, 1998.
Hon. Newt Gingrich,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: This is to formally notify you, pursuant to
Rule L (50) of the Rules of the House of Representatives, that the
Committee on Standards of Official Conduct (``Committee'') has been
served with a grand jury subpoena (for documents) issued by the
U.S. District Court for the District of Massachusetts and directed
to the Committee's ``Keeper of Records.''
After the consultation with the Office of General Counsel, the
Committee has determined that compliance with the subpoena is not
consistent with the precedents and privileges of the House and,
therefore, that the subpoena should be resisted.
Sincerely,
James V. Hansen,
Chairman.
Prior Practice
Sec. 7.6 Under prior practice, Members were not permitted to respond to
judicial process without the explicit consent of the House, which
could be granted via privileged resolution.(35)
---------------------------------------------------------------------------
35. Parliamentarian's Note: Under modern procedures pursuant to rule
VIII, Members notify the House when they receive subpoenas or
other judicial orders, but are otherwise allowed to determine
for themselves whether a response is consistent with the rights
and privileges of the House. The adoption of a separate
resolution in each case is no longer required.
---------------------------------------------------------------------------
As exemplified by these proceedings of January 22,
1976,(36) prior to the advent of rule VIII,(37)
Members needed specific authorization from the House (in the form of a
privileged resolution) in order to comply with judicial subpoenas or
orders:
---------------------------------------------------------------------------
36. 122 Cong. Rec. 581, 94th Cong. 2d Session. For similar examples of
the House adopting privileged resolutions authorizing Members
to respond to subpoenas, see 119 Cong. Rec. 21180, 93d Cong.
1st Sess. (June 25, 1973); 121 Cong. Rec. 16860, 94th Cong. 1st
Sess. (June 4, 1975); 121 Cong. Rec. 37888-89, 94th Cong. 1st
Sess. (Dec. 1, 1975); and 122 Cong. Rec. 145, 94th Cong. 2d
Sess. (Jan. 19, 1976).
37. House Rules and Manual Sec. 697 (2021).
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PRIVILEGES OF THE HOUSE--SUBPOENA IN CASE OF BOSTON PNEUMATICS,
INC. AGAINST INGERSOLL-RAND CO.
Mr. [Joseph] McDADE [of Pennsylvania]. Mr. Speaker, I rise to a
question of the privileges of the House.
The SPEAKER pro tempore (Mr. [Thomas] O'Neill [of
Massachusetts]). The gentleman will state it.
Mr. McDADE. Mr. Speaker, I have been subpoenaed by the U.S.
District Court for the District of Columbia to appear at the office
of Stassen, Kostos and Mason, 450 Federal Bar Building West,
Washington, DC, on January 26, 1976, at 10 a.m., to testify on
behalf of Boston Pneumatics, Inc., at the taking of a deposition in
the case of Boston Pneumatics, Inc. against Ingersoll-Rand Co.,
civil action No. 72-1729, now pending in the U.S. District Court
for the Eastern District of Pennsylvania.
Under the precedents of the House, I am unable to comply with
this subpoena without the consent of the House, the privileges of
the House being involved. I, therefore, submit the matter for the
consideration of this body.
Mr. Speaker, I send the subpoena to the desk.
The SPEAKER pro tempore. The Clerk will read the subpoena.
The Clerk read as follows:
[In the U.S. District Court for the District of Columbia, Civil
Action File, U.S.D.C. Eastern District of Pennsylvania, 72-
1729; FS. 76-0013.]
Boston Pneumatics, Inc. vs. Ingersoll-Rand Company.
To Joseph M. McDade, United States House of Representatives,
2202 Rayburn House Building, Washington, DC.
You are commanded to appear at the office of Stassen Kostos and
Mason, 450 Federal Bar Building West in the city of Washington on
the 26th day January, 1976, at 10:00 o'clock A.M. to testify on
behalf of Plaintiff, Boston Pneumatics, Inc. at the taking of a
deposition in the above entitled action pending in the United
States District Court for the Eastern District of Pennsylvania and
bring with you any written correspondence between your office and
the Ingersoll-Rand Company and between your office and the General
Services Administration, regarding allegations of violations of the
Buy-American Act by Boston Pneumatics during the period around July
1969 to July 1970.
Dated January 16, 1976.
James F. Davey,
Clerk.
By Mary B. Deavers,
Deputy Clerk.
Any subpoenaed organization not a party to this suit is hereby
admonished pursuant to Rule 30(b)(6), Federal Rules of Civil
Procedure, to file a designation with the court specifying one or
more officers, directors, or managing agents, or other persons who
consent to testify on its behalf, and shall set forth, for each
person designated, the matters on which he will testify or produce
documents or things. The persons so designated shall testify as to
matters known or reasonably available to the organization.
Mr. [John] McFALL [of California]. Mr. Speaker, I offer a
privileged resolution (H. Res. 971) and ask for its immediate
consideration.
The Clerk read the resolution as follows:
H. Res. 971
Whereas Representative Joseph M. McDade, a Member of this House, has been
served with a subpoena issued by the United States District Court for the
District of Columbia to appear at the office of Stassen, Kostos and Mason,
450 Federal Bar Building West, Washington, DC, on the 26th of January 1976,
at 10:00 A.M. to testify on behalf of Boston Pneumatics, Inc., at the
taking of a deposition in the case of Boston Pneumatics, Inc. against
Ingersoll-Rand Company, civil action number 72-1729, now pending in the
United States District Court for the Eastern District of Pennsylvania; and
Whereas by the privileges of the House no Member is authorized to appear
and testify but by the order of the House: Therefore, be it
Resolved, That Representative Joseph M. McDade is authorized to appear in
response to the subpoena of the United States District Court for the
District of Columbia to testify at the taking of deposition in the case of
Boston Pneumatics, Inc. against Ingersoll-Rand Company at such time as when
the House is not sitting in session; and be it further
Resolved, That as a respectful answer to the subpoena a copy of this
resolution be submitted to the said court.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 7.7 Under prior practice, Members were not permitted to respond to
judicial process without the specific authorization of the House,
and the House (via privileged resolution) could choose to assert
its privileges with respect to the release of documents under its
control.(38)
---------------------------------------------------------------------------
38. Parliamentarian's Note: Under current rule VIII procedures, Members
must notify the House with respect to any subpoenas they
receive, but the determination whether or not to comply is left
to the judgment of the individual Member (typically after
consultation with the Office of General Counsel or, more
rarely, outside counsel).
---------------------------------------------------------------------------
The proceedings of December 19, 1975,(39) demonstrate
prior practice with respect to subpoenas issued for House documents. In
this instance, the House adopted a resolution (raised as a question of
the privileges of the House) asserting its privilege to deny the
production of the requested documents:
---------------------------------------------------------------------------
39. 121 Cong. Rec. 41972-73, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
PRIVILEGES OF THE HOUSE-BALTIMORE CONTRACTORS, INC. AGAINST THE
UNITED STATES
The SPEAKER.(40) The Chair recognizes the gentleman
from Massachusetts (Mr. O'Neill).
---------------------------------------------------------------------------
40. Carl Albert (OK).
---------------------------------------------------------------------------
Mr. [Thomas] O'NEILL [of Massachusetts]. Mr. Speaker, I rise to
a question of the privileges of the House.
Mr. Speaker, the U.S. Court of Claims, on June 17, 1975,
entered an order in the case of Baltimore Contractors, Inc.,
against the United States (Ct. Cl. No. 272-70) requiring the
production of certain Government documents. Certain of those
documents covered by the said order of the court are documents of
the House Building Commission and as such they are documents which
are within the control and possession of the House of
Representatives. The order of the court requiring their production,
therefore, gives rise to a question of the privileges of the House.
Mr. Speaker, as a member of the House Building Commission I
send to the desk a privileged resolution (H. Res. 947) in response
to the said order of the court.
The SPEAKER. The Clerk will read the resolution.
The Clerk read the resolution, as follows:
H. Res. 947
Whereas in the case of Baltimore Contractors, Inc. against the United
States (Case No. 272-70) pending in the United States Court of Claims, an
order was issued by the said court on June 17, 1975 granting the
plaintiff's motion for the production of certain documents in the
possession and under the control of the House of Representatives: Therefore
be it
Resolved, That by the privileges of this House no evidence of a
documentary character under the control and in the possession of the House
of Representatives can, by the mandate of process of the ordinary courts of
justice, be taken from such control or possession but by its permission; be
It further
Resolved, That a copy of this resolution be submitted to the said court
as a respectful answer to the order aforementioned.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 7.8 Under prior practice, Members were not permitted to respond to
judicial process without the specific authorization of the House,
and when the House (by inaction) failed to provide such
authorization, compliance with the judicial order was not
permitted.(41)
---------------------------------------------------------------------------
41. Parliamentarian's Note: The advent of rule VIII (and related
precursor resolutions) essentially reversed the burdens with
respect to judicial process. Under current rules, Members are
permitted to make the initial determination as to whether
compliance with the subpoena or other judicial order is
consistent with the rights and privileges of the House, and
inaction by the House constitutes acquiescence in the Members'
judgment.
---------------------------------------------------------------------------
Under prior practice of the House with regard to the receipt of
subpoenas, authorization to respond to the subpoena could only be
provided by the House itself via the adoption of a privileged
resolution.(42) Failure to adopt such a resolution
constituted the House's judgment that such authorization should not be
provided, as occurred on December 11, 1979:(43)
---------------------------------------------------------------------------
42. For an example of a resolution authorizing compliance with a
subpoena, see Sec. 7.6, supra. For an example of a resolution
prohibiting compliance, see Sec. 7.7, supra.
43. 125 Cong. Rec. 35469, 96th Cong. 1st Sess. For a similar occasion
where the House did not adopt a resolution authorizing a
response to a subpoena, see 126 Cong. Rec. 30050, 96th Cong. 2d
Sess. (Nov. 18, 1980).
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PRIVILEGES OF THE HOUSE--SUBPOENA DUCES TECUM IN THE CASE ON
DONALD GASQUE
Mr. [Parren] MITCHELL of Maryland. Mr. Speaker, I rise to a
question of the privileges of the House.
The SPEAKER pro tempore.(44) The gentleman will
state it.
---------------------------------------------------------------------------
44. Robert Giaimo (CT).
---------------------------------------------------------------------------
Mr. MITCHELL of Maryland. Mr. Speaker, I have been served with
subpoena duces tecum for the circuit court of Anne Arundel County,
MD, to appear Thursday, December 30, 1979, in the ease of Donald
Gasque.
Under the precedents I am unable to respond without the
permission of the House and the privileges of the House being
involved.
I send the subpoena to the desk for such action as the House
may take.
The SPEAKER pro tempore. The Clerk will read the subpoena.
The Clerk read as follows:
Summons Duces Tecum
Defendant: Donald Gasque.
Case No. 22,854.
State of Maryland, Anne Arundel County, Sct:
To: Parren J. Mitchell, 1018 Federal Office Building, 31 Hopkins Plaza,
Baltimore, Maryland 21201.
You are hereby summonsed to appear before the Judges of the Circuit Court
for Anne Arundel County, Court House, Church Circle, Annapolis, Maryland,
on Thursday, the 13th day of December 1979, at 1:30 PM, to testify for the
Defendant, and to bring with you a report which you have in your possession
which outlines and discusses the conditions at the Maryland House of
Corrections, Jessup, Maryland.
Failure to attend, may result in your arrest.
Witness the Honorable Judges of the Circuit Court for Anne Arundel
County, Maryland.
W. Garrett Larrimore, Clerk.
By Donna Heins, Deputy.
Date issued: December 6, 1979.
Requested by:
Name: James D. McCarthy, Jr.
Address: Assistant Public Defender, 60 West Street, Suite 203, Annapolis,
Maryland 21401.
Sec. 7.9 Under a prior form of rule VIII,(45) administrative
subpoenas were treated in the same manner as judicial subpoenas,
and subject to the same procedural requirements.
---------------------------------------------------------------------------
45. House Rules and Manual Sec. 697 (2021).
---------------------------------------------------------------------------
During the 107th through 114th Congresses, rule VIII expressly
applied both to judicial subpoenas and orders as well as administrative
subpoenas issued by executive agencies. The current form of the rule
(as well as the form of the rule prior to the 107th Congress) does not
apply to administrative subpoenas, though the House retains the ability
to respond to such subpoenas via the adoption of a privileged
resolution.(46) The proceedings of May 3,
1999,(47) provide an example of a Member notifying the House
that an administrative subpoena had been received, and the House
choosing not to authorize a response:
---------------------------------------------------------------------------
46. See, e.g., Deschler's Precedents Ch. 11 Sec. 14.8.
47. 145 Cong. Rec. 8040, 106th Cong. 1st Sess. For a similar example,
see 144 Cong. Rec. 18298, 105th Cong. 2d Sess. (July 30, 1998).
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COMMUNICATION FROM CHAIRMAN, HOUSE REPUBLICAN CONFERENCE
The SPEAKER pro tempore laid before the House a communication
from the Honorable J.C. Watts, Jr., Chairman, House Republican
Conference:
House Republican Conference,
House of Representatives,
Washington, DC, April 30, 1999.
Hon. J. Dennis Hastert,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: I write to notify you pursuant to L.
Deschler, 3 Deschler's Precedents of the United States House of
Representatives ch. 11, Sec. 14.8 (1963), that I have been served
with an administrative agency subpoena (in my capacity as Chairman
of the House Republican Conference) issued by the Federal Election
Commission. The subpoena seeks information and documents relating
to Conference activity from 1996.
Sincerely,
J.C. Watts, Jr.,
Chairman. -------------------
COMMUNICATION FROM THE HONORABLE JOHN A. BOEHNER, MEMBER OF
CONGRESS
The SPEAKER pro tempore laid before the House the following
communication from the Honorable John A. Boehner, Member of
Congress:
Congress of the United States,
House of Representatives,
April 30, 1999.
Hon. J. Dennis Hastert,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: This is to notify you pursuant to L.
Deschler, 3 Deschler's Precedents of the United States House of
Representatives ch. 11 Sec. 14.8 (1963), that I have been served
with an administrative agency subpoena issued by the Federal
Election Commission.
Sincerely,
John A. Boehner. -------------------
COMMUNICATION FROM STAFF MEMBER OF THE HONORABLE JOHN A.
BOEHNER, MEMBER OF CONGRESS
The SPEAKER pro tempore laid before the House the following
communication from Barry Jackson, Chief of Staff to the Honorable
John A. Boehner, Member of Congress:
Congress of the United States,
House of Representatives,
April 30, 1999.
Hon. J. Dennis Hastert,
Speaker, U.S. House of Representatives,
Washington, DC.
Dear Mr. Speaker: This is to notify you pursuant to L.
Deschler, 3 Deschler's Precedents of the United States House of
Representatives ch. 11, Sec. 14.8 (1963), that I have been served
with an administrative agency subpoena issued by the Federal
Election Commission.
Sincerely,
Barry Jackson,
Chief of Staff.
Sec. 8. Speech or Debate Immunity
``[F]or any Speech or Debate in either House, [Senators and
Representatives] shall not be questioned in any other place.'' This
principle, articulated in article I, section 6, clause 1(1)
of the Constitution, is derived directly from the English Bill of
Rights of 1689, which provides ``That the freedom of speech, and
debates or proceedings in Parliament, ought not to be impeached or
questioned in any court or place out of Parliament.''(2)
Although originally designed to prevent royal interference with
parliamentary deliberations, this privilege in the American context
plays a similar role in maintaining the independence of the legislative
branch against encroachments by the executive or the
judiciary.(3)
---------------------------------------------------------------------------
1. House Rules and Manual Sec. Sec. 92-95 (2021).
2. See Deschler's Precedents Ch. 7 Sec. 16. The Articles of
Confederation formulated the same immunity provision as
follows: ``Freedom of speech and debate in Congress shall not
be impeached or questioned in any court or place out of
Congress.'' See United States v. Johnson, 383 U.S. 169, 177
(1966).
3. See Sec. 7, supra.
---------------------------------------------------------------------------
Although textually limited to ``Speech or Debate''(4)
this privilege has been interpreted more broadly to encompass all
legislative acts.(5) Speeches or debates on the floor of the
House during its sitting(6) are obviously covered as one of
the most fundamental legislative acts in which a Member may
engage.(7) Similarly, voting on measures (and introducing
them for consideration) has been held entitled to protection under the
Speech or Debate Clause.(8) In a recent circuit court case,
the D.C. Circuit Court held that the system of proxy voting instituted
by the House in response to the COVID-19 pandemic concerned ``core
legislative acts'' that cannot be questioned due to Speech or Debate
immunity.''(9) Related activities, such as participating in
committee meetings and hearings,(10) producing committee
reports,(11) conducting investigations and general
information-gathering for legislative purposes,(12) have all
been considered legislative acts covered by the grant of immunity. Even
House and Senate regulations regarding admission to their respective
press galleries (despite potential First Amendment concerns) have been
held immune from challenge under the Speech or Debate
Clause.(13)
---------------------------------------------------------------------------
4. For examples of Speech or Debate immunity raised in the context of
defamation suits, see Deschler's Precedents Ch. 7
Sec. Sec. 16.3, 16.4.
5. See, e.g., Gravel v. United States, 408 U.S. 606 (1972). See also
Deschler's Precedents Ch. 7 Sec. 17.
6. Parliamentarian's Note: The clause applies not only to words
actually spoken in debate, but also remarks inserted into the
Congressional Record with the consent of the House. See
Deschler's Precedents Ch. 7 Sec. 16.3.
7. Parliamentarian's Note: It should be noted that the speech of
Members is protected from being subject to challenge outside of
the House, not within the House. The House is at liberty to
adopt rules of decorum that regulate the content of speeches
made during its legislative sessions. Such restrictions do not
run afoul of the constitutional principle discussed here. See
Sec. 8.1, infra. See also 3 Hinds' Precedents Sec. 2671. For
more on decorum in debate, see Deschler's Precedents Ch. 29
Sec. Sec. 40-66; and Precedents (____) Ch. 29.
8. See, e.g., Kilbourn v. Thompson, 103 U.S. 168 (1880).
9. See McCarthy v. Pelosi, No. 20-5240 slip op. at 8 (D.C. Cir. 2021)
(``Indeed, we are hard-pressed to conceive of matters more
integrally part of the legislative process than the rules
governing how Members can cast their votes on legislation and
mark their presence for purposes of establishing a legislative
quorum.'').
10. See, e.g., Kilbourn v. Thompson, 103 U.S. 168 (1880).
11. See, e.g., Hentoff v. Ichord, 318 F. Supp. 1175 (D.D.C. 1970).
12. See, e.g., Eastland v. United States Servicemen's Fund, 421 U.S.
491 (1975).
13. See Consumers Union of United States, Inc. v. Periodical
Correspondents' Association, 515 F.2d 1341, 1350 (D.C. Cir.
1975) (The Correspondents' Association ``was performing
delegated legislative functions; in fact these were an integral
part of the legislative machinery.'').
---------------------------------------------------------------------------
A seminal Supreme Court case interpreting the Speech or Debate
Clause occurred in 1880.(14) The House had established a
special committee to investigate certain real estate transactions, and
empowered said committee with the authority to subpoena witnesses and
documents. Hallett Kilbourn, a private citizen, was instructed to
produce relevant documents, and upon his refusal to do so, the House
Sergeant-at-Arms was directed to take Kilbourn into custody. Kilbourn
sued both Members of the House and House officers for false
imprisonment. The Court held that the Speech or Debate Clause provided
the Member defendants with an affirmative defense: that their actions
in facilitating the imprisonment of Kilbourn (reporting facts to the
House, considering the resolution authorizing the imprisonment, voting
in favor of said resolution, etc.) should all be considered activities
protected by the Speech or Debate Clause.
---------------------------------------------------------------------------
14. Kilbourn v. Thompson, 103 U.S. 168 (1880).
---------------------------------------------------------------------------
In the mid-20th century, a series of cases further defined the
scope of the immunity in the context of criminal charges brought
against Members. United States v. Johnson(15) and United
States v. Brewster(16) both involved corruption schemes
implicating sitting Members of Congress. In both cases, the Court held
that the prosecutions were within the power of the government, but that
the Speech or Debate Clause protected Members' legislative acts from
being relied upon in that prosecution.(17) Inquiries into
the motives or reasons behind a legislative act are similarly
precluded.(18) Actions tangential or merely related to the
legislative process, however, were not protected.(19) In a
subsequent case, the Court held that a promise to undertake a
legislative act (as opposed to the act itself) is not protected by
Speech or Debate immunity.(20)
---------------------------------------------------------------------------
15. 383 U.S. 169 (1966). See also Deschler's Precedents Ch. 7
Sec. 16.1.
16. 408 U.S. 501 (1972). See also Deschler's Precedents Ch. 7
Sec. 16.2.
17. See United States v. Johnson, 383 U.S. 169, 184-85 (1966) (``The
indictment itself focused with particularity upon motives
underlying the making of the speech and upon its contents . . .
[w]e hold that a prosecution under a general criminal statute
dependent on such inquiries necessarily contravenes the Speech
or Debate Clause.'').
18. See United States v. Johnson, 383 U.S. 169, 177 (1966) (``We see no
escape from the conclusion that such an intensive judicial
inquiry, made in the course of a prosecution by the Executive
Branch under a general conspiracy statute, violates the express
language of the Constitution and the policies which underlie
it.''). See also Miller v. Transamerican Press, Inc., 709 F.2d
524, 530 (9th Cir. 1983) (``Because Steiger's insertion of the
article into the Record was privileged, questions about it are
prohibited. This proscription includes questions about his
motive or legislative purpose.'').
19. See United States v. Brewster, 408 U.S. 501, 528 (1972) (the
``Speech or Debate Clause does not prohibit inquiry into
illegal conduct simply because it has some nexus to legislative
functions.'').
20. See United States v. Helstoski, 442 U.S. 477, 490 (1979) (``[I]t is
clear from the language of the Clause that protection extends
only to an act that has already been performed. A promise to
deliver a speech, to vote, or to solicit other votes at some
future date is not `speech or debate.' Likewise, a promise to
introduce a bill is not a legislative act.''). Private
discussions about potential future legislative acts are
similarly not protected. See U.S. v. Renzi, 651 F.3d 1012, 1025
(9th Cir. 2011) (``[T]he fact that the Court permitted
Brewster's prosecution for his alleged purpose in negotiating
with private parties, solicitation of a bribe, demonstrates
that private negotiations between Members and private parties
are not protected `legislative acts . . .''').
---------------------------------------------------------------------------
In other criminal cases, courts have had to balance the immunity
conferred on Members by the Constitution with the government's interest
in investigating corruption and other illegal acts committed by
Members.(21) A case occurred in 2006, when the FBI executed
a search warrant at a Member's office in the Rayburn House Office
Building. Paper and electronic documents were seized as part of an
investigation into alleged acts of bribery, fraud, and other crimes. In
the ensuing litigation, the court noted that this was ``the first time
a sitting Member's congressional office has been searched by the
Executive''(22) and that the case had obvious implications
for the separation of powers. Ultimately, the court found that the
Member was ``entitled to the return of all legislative materials
(originals and copies) that are protected by the Speech or Debate
Clause seized'' from his office, and further that the executive branch
officials executing the seizure were barred from disclosure and from
further involvement in the pending criminal matter.(23) In
another case in 2015, the FBI sought a search warrant to inspect a
Member's email accounts for evidence in a fraud, extortion and bribery
investigation.(24) The Member attempted to quash the search
warrant prior to its execution, claiming Speech or Debate immunity. The
court found that the motion to quash was premature, and that the Speech
or Debate Clause did not prevent the search: ``Permitting an
interlocutory appeal of an order denying a motion to quash an
unexecuted search warrant based on the Speech or Debate Clause would
set bad precedent and insulate Members from criminal investigations and
criminal process. This, of course, cannot and should not be the purpose
of the Clause.''(25) In both cases described here, the
courts stressed the importance of utilizing ``taint
teams''(26) or ``filter teams''(27) to screen
potentially privileged material before disclosure to executive
authorities.
---------------------------------------------------------------------------
21. See U.S. v. Rayburn House Office Building, 497 F.3d 654, 664 (D.C.
Cir. 2007) (``[T]he remedy must give effect not only to the
separation of powers underlying the Speech or Debate Clause but
also to the sovereign's interest under Article II, Section 3 in
law enforcement.'').
22. See U.S. v. Rayburn House Office Building, 497 F.3d 654, 659 (D.C.
Cir. 2007).
23. Id. at 666.
24. See In re Search of Elec. Commc'ns, 802 F.3d 516 (3d Cir. 2015).
25. Id. at 531.
26. Id. at 530.
27. United States v. Rayburn House Office Building, 497 F.3d 654, 656-
57 (D.C. Cir. 2007).
---------------------------------------------------------------------------
The Court in Brewster articulated a distinction between legislative
acts and other acts (potentially also undertaken in an official or
representative capacity) that are merely ``political'' in nature, and
thus cannot take advantage of the protection afforded by the Speech or
Debate Clause.(28) In Hutchinson v. Proxmire the Court held
that press releases, newsletters, and similar constituent
communications are not protected legislative acts.(29)
Members often travel on official business, but courts have held that
such activity does not constitute a legislative act that would prohibit
inquiries into other (nonofficial) purposes of the
travel.(30)
---------------------------------------------------------------------------
28. United States v. Brewster, 408 U.S. 501, 512-13 (1972) (``It is
well known, of course, that Members of the Congress engage in
many activities other than the purely legislative activities
protected by the Speech or Debate Clause. These include a wide
range of legitimate `errands' performed for constituents, the
making of appointments with Government agencies, assistance in
securing Government contracts, preparing so-called `news
letters' to constituents, news releases, and speeches delivered
outside the Congress. The range of these related activities has
grown over the years. They are performed in part because they
have come to be expected by constituents, and because they are
a means of developing continuing support for future elections.
Although these are entirely legitimate activities, they are
political in nature, rather than legislative, in the sense that
term has been used by the Court in prior cases. But it has
never been seriously contended that these political matters,
however appropriate, have the protection afforded by the Speech
or Debate Clause.''). See also Deschler's Precedents Ch. 7
Sec. 16.2.
29. 443 U.S. 111, 133 (1979) (``Valuable and desirable as it may be in
broad terms, the transmittal of such information by individual
Members in order to inform the public and other Members is not
a part of the legislative function or the deliberations that
make up the legislative process . . . [a]s a result,
transmittal of such information by press releases and
newsletters is not protected by the Speech or Debate
Clause.''). For the formation of a Senate committee authorized
to file an amicus brief in the Hutchinson case, see 125 Cong.
Rec. 6080, 96th Cong. 1st Sess. (Mar. 22, 1979).
30. See U.S. v. Biaggi, 853 F.2d 89, 102 (2d Cir. 1988) (``Travel
itself normally lacks the necessary legislative character to
trigger speech-or-debate protection.'').
---------------------------------------------------------------------------
The House's investigatory authorities permit the House and its
committees to engage in a variety of actions that courts have held to
be legislative acts protected by Speech or Debate
immunity.(31) Issuing subpoenas and seeking judicial
enforcement of those subpoenas are thus considered legislative acts
protected under the Constitution.(32) Documents that come
into the possession of the House or its committees become part of the
legislative process, and the Speech or Debate Clause may preclude
inquiries into those documents or their provenance.(33)
Preparing, printing, and distributing committee reports have also been
held protected legislative acts.(34)
---------------------------------------------------------------------------
31. See Deschler's Precedents Ch. 7 Sec. 17.
32. See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 507
(1975) (``We conclude that the Speech or Debate Clause provides
complete immunity for the Members for issuance of this
subpoena.''). See also Kilbourn v. Thompson, 103 U.S. 168
(1880).
33. See, e.g., Brown Williamson Tobacco v. Williams, 62 F.3d 408, 423
(D.C. Cir. 1995) (The claim ``is to a right to engage in a
broad scale discovery of documents in a congressional file that
comes from third parties. The Speech or Debate Clause bars that
claim.''); and Senate Permanent Subcommittee on Investigations
v. Ferrer, 856 F.3d 1080, 1086 (D.C. Cir. 2017) (``. . . the
separation of powers, including the Speech or Debate Clause,
bars this court from ordering a congressional committee to
return, destroy, or refrain from publishing the subpoenaed
documents.'').
34. See, e.g., MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d
856, 861 (D.C. Cir. 1988) (``As the preparation of the
statement for publication in the subcommittee report was part
of the legislative process, that is the end of the matter. It
is the responsibility of Congress, not of the courts, to assure
the integrity of its reports.'').
---------------------------------------------------------------------------
In 1972, the Supreme Court considered the case of a U.S. Senator
who had entered the text of the classified ``Pentagon Papers'' into the
record of a subcommittee hearing.(35) The Court held that
this action was a legislative act protected by the Speech or Debate
Clause. However, the Senator's attempt to publish the same material
through a private publishing company was found to be not
protected.(36) The Court defined a legislative act as an
``integral part of the deliberative and communicative processes by
which Members participate in committee and House proceedings with
respect to the consideration and passage or rejection of proposed
legislation or with respect to other matters which the Constitution
places within the jurisdiction of either House.''(37)
---------------------------------------------------------------------------
35. Gravel v. United States, 408 U.S. 606 (1972). See also Deschler's
Precedents Ch. 7 Sec. 17.4. For a resolution of the Senate
authorizing reimbursement for Senator Gravel's legal fees, see
Deschler's Precedents Ch. 7 Sec. 17.5.
36. Gravel v. United States, 408 U.S. 606, 625 (1972). Although
speeches contained in the Congressional Record are protected
under Speech or Debate immunity, courts have considered whether
circulating unofficial reprints of the Congressional Record is
itself a legislative act that would enjoy similar protection.
See Deschler's Precedents Ch. 7 Sec. 16.3 (``. . . the absolute
privilege to inform fellow legislators becomes a qualified
privilege when portions of the Congressional Record are
republished and unofficially disseminated.''). Similarly,
dissemination of legislative correspondence (see Chastain v.
Sundquist, 833 F.2d 311 (D.C. Cir. 1987)) or committee reports
(see Doe v. McMillan, 412 U.S. 306 (1973)) may not be protected
by Speech or Debate immunity.
37. See Gravel at 625.
---------------------------------------------------------------------------
In a recent case involving the constitutionality of prayers
delivered by the House Chaplain, a circuit court stated that
``legislative prayer is not `an integral part of the deliberative and
communicative process.'''(38) Thus, Speech or Debate
immunity could not be invoked to terminate the litigation.
---------------------------------------------------------------------------
38. Barker v. Conroy, 921 F.3d 1118, 1127 (D.C. Cir. 2019).
---------------------------------------------------------------------------
The House's own internal disciplinary processes have sometimes come
under scrutiny with respect to Speech or Debate considerations. In
general, courts have found compliance with the House's ethics
requirements to be nonlegislative actions. So, for example, neither
reimbursement receipts nor financial disclosure forms have been found
to be legislative documents protected under Speech or Debate
immunity.(39) Likewise, testimony given before the House's
Committee on Ethics has been held nonlegislative in character and
therefore may become the subject of inquiries by the judicial
branch.(40) However, actions taken by the House to impose
disciplinary sanctions on its Members (filing reports by the Committee
on Ethics, considering disciplinary resolutions on the floor of the
House, voting to impose sanctions, etc.) have been treated as
legislative acts, and Members are immune from any liability stemming
from such actions.(41)
---------------------------------------------------------------------------
39. See, e.g., United States v. Schock, 891 F.3d 334 (7th Cir. 2018);
and U.S. v. Rose, 28 F.3d 181 (D.C. Cir. 1994).
40. See, e.g., U.S. v. Rose, 28 F.3d 181 (D.C. Cir. 1994) (``. . . the
Supreme Court has never decided if the Speech or Debate Clause
protects a Member's testimony given in a personal capacity to a
congressional committee. We conclude that it does not . . .'').
41. See, e.g., Rangel v. Boehner, 785 F.3d 19 (D.C. Cir. 2015).
---------------------------------------------------------------------------
The courts have addressed whether personnel decisions by Members
are ``legislative acts'' that may be protected by the Speech or Debate
Clause. A circuit court in 1986(42) found that such
decisions regarding the employment of staff are integral to the
legislative process, and thus protected. However, in 2006, the same
court (relying on Supreme Court decisions handed down in the interim)
partially repudiated that analysis,(43) stating that Speech
or Debate immunity should not be viewed as creating a bar to employment
discrimination claims under the Congressional Accountability
Act.(44) However, as with other types of claims, Speech or
Debate immunity may present plaintiffs with evidentiary difficulties,
as inquiries related to the claim may be barred by the
privilege.(45)
---------------------------------------------------------------------------
42. Browning v. Clerk, 789 F.2d 923 (D.C. Cir. 1986). But see Walker v.
Jones, 733 F.2d 923 (D.C. Cir. 1984) (``For the reasons set out
below, however, we believe that personnel actions regarding the
management of congressional food services are too remote from
the business of legislating to rank `within the legislative
sphere.''').
43. Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir.
2006).
44. P.L. 104-1, 109 Stat. 3.
45. Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 14-15 (D.C.
Cir. 2006) (``The Speech or Debate Clause therefore may
preclude some relevant evidence in suits under the
Accountability Act.'').
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Immunities of Officers and Staff
Courts have also grappled with the question of whether
congressional officers, staff, aides, or employees are themselves (at
least in some circumstances) protected by the Speech or Debate Clause.
The text of the Constitution mentions only Senators and
Representatives, and early cases distinguished between protected acts
performed by legislators themselves and unprotected acts performed by
officers or employees of the House.(46) However, more recent
cases have articulated rationales for deeming staff as protected by the
constitutional immunity. Such ``aides and assistants . . . must be
treated as the [Member's] alter ego'' if the purpose of the Clause is
not to be frustrated.(47) Thus, when officers or employees
of the House engage in duties to effectuate the legislative acts of
Members of Congress, they are protected under the Speech or Debate
Clause on the same basis as Members.
---------------------------------------------------------------------------
46. See Deschler's Precedents Ch. 7 Sec. 16 (``employees of the House
charged with the execution of the resolution could be held
personally liable for enforcing an unconstitutional
congressional act'' (citing Kilbourn v. Thompson, 103 U.S. 168
(1880)). See also Dombrowski v. Eastland, 387 U.S. 82 (1967)
(``. . . the doctrine of legislative immunity is less absolute
when applied to officers or employees of legislative
bodies.''); and Powell v. McCormack, 395 U.S. 486 (1969) (``. .
. although an action against a Congressman may be barred by the
Speech or Debate Clause, legislative employees who participated
in the unconstitutional activity are responsible for their acts
. . .'').
47. Gravel at 616, 617. See also Eastland v. United States Servicemen's
Fund, 421 U.S. 491, 507 (1975) (``We conclude that the Speech
or Debate Clause provides complete immunity for the Members for
issuance of this subpoena. We draw no distinction between the
Members and the Chief Counsel.''); and Rangel v. Boehner, 785
F.3d 19, 25 (D.C. Cir. 2015) (plaintiff's argument that two
congressional staffers did not enjoy immunity ``runs headlong
into Gravel. . . . [t]he key consideration, Supreme Court
decisions teach, is the act presented for examination, not the
actor.'').
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Waivers
As noted earlier, Speech or Debate immunity operates as a
procedural defense to judicial process.(48) It is thus
incumbent on the affected Member to assert that defense as litigation
proceeds. Former voluntary compliance with investigatory authorities or
judicial orders, or prior waivers of other constitutional protections,
does not constitute a waiver of Speech or Debate
immunity.(49) The Court in United States v. Helstoski
further held that waivers of the immunity ``can be found only after
explicit and unequivocal renunciation of the
protection.''(50)
---------------------------------------------------------------------------
48. For current procedures for responding to service of process under
rule VIII (and the ability of Members to waive applicable
constitutional protections under those procedures), see Sec. 7,
supra.
49. 442 U.S. 477, 492 (1979) (``The exchanges between Helstoski and the
various United States Attorneys indeed indicate a willingness
to waive the protection of the Fifth Amendment; but the Speech
or Debate Clause provides a separate, and distinct, protection
which calls for at least as clear and unambiguous an expression
of waiver.''). For an insertion into the Congressional Record
of the text of the Helstoski decision by the chair of the
Committee on House Administration, see 125 Cong. Rec. 15303-
306, 96th Cong. 1st Sess. (June 18, 1979).
50. Id. at 491.
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Sec. 8.1 In response to parliamentary inquiries, the Chair confirmed
that the Constitution's Speech or Debate immunity granted to
Members of Congress does not prevent the House from enforcing
appropriate decorum standards with respect to debate on the floor
of the House.
On May 25, 1995,(51) the Chair reiterated the House's
decorum standards with respect to matters pending before the Committee
on Standards of Official Conduct (now the Committee on Ethics) and
further confirmed that the Constitution's grant of Speech or Debate
immunity to Members of Congress does not bar the enforcement of such
rules of decorum:
---------------------------------------------------------------------------
51. 141 Cong. Rec. 14434-36, 104th Cong. 1st Sess. For the
parliamentary limits on Speech or Debate immunity described in
Jefferson's Manual of Parliamentary Practice, see 3 Hinds'
Precedents Sec. 2671. See also House Rules and Manual Sec. 302
(2021).
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REGARDING THE ETHICS PROCESS IN THE HOUSE
The SPEAKER pro tempore.(52) Under the Speaker's
announced policy of May 12, 1995, the gentlewoman from Colorado
[Mrs. Schroeder] is recognized for 60 minutes as the designee of
the minority leader.
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52. Danny Burton (IN).
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Mrs. [Patricia] SCHROEDER [of Colorado]. I thank the Speaker
very much for yielding to me. . . .
This letter was addressed to both Nancy Johnson and Jim
McDermott, care of the Committee on Ethics, and it is about the
issue of the pending matters in front of the Committee on Ethics
that appear, according to news printed stores, to be in deadlock. .
. .
Well, we still have not heard anything from the Committee on
Ethics that this has been approved, and yet today we saw
announcements that he was going off on a 35 city tour come August
break, sponsored, I assume, by the same company that is doing the
book. And there are an awful lot of issues around that. . . .
We are also asking questions about, are there any conflicts of
interest? Who is paying for the tour and is there any conflict of
interest vis-a-vis legislation in front of this body, because we
understand, if it is Mr. Murdoch, Mr. Murdoch has some very, very
important interests in this body on the telecommunications issues
and many others. . . .
parliamentary inquiries
Mr. [John] PORTER [of Illinois]. Mr. Speaker, I have a
parliamentary inquiry.
Mrs. SCHROEDER. Mr. Speaker, I yield to the gentleman from
Illinois [Mr. Porter] for a parliamentary inquiry.
The SPEAKER pro tempore (Mr. Burton of Indiana). The gentleman
will state it.
Mr. PORTER. Mr. Speaker, I would inquire as to whether this
discussion is within the rules of the House or outside the rules of
the House?
The SPEAKER pro tempore. Members should not engage in debate
concerning matters that may be pending in the Committee on
Standards of Official Conduct.
Mr. [Lloyd] DOGGETT [of Texas]. Mr. Speaker, I have a
parliamentary inquiry.
Mrs. SCHROEDER. Mr. Speaker, I yield to the gentleman from
Texas [Mr. Doggett] for a parliamentary inquiry.
The SPEAKER pro tempore. The gentleman will state it.
Mr. DOGGETT. In March of this year, Speaker Gingrich announced
that under the speech and debate clause applying to this Congress
that Members were free to speak on any subject at any time. I am
wondering if that pronouncement does not control in a situation
that applies to the Speaker as well.
The SPEAKER pro tempore. The ``Speech and debate'' clause does
not apply with respect to the subject of the parliamentary inquiry
just asked by the gentleman from Illinois.
The Chair will again state that Members should not engage in
debate concerning matters that may be pending in the Committee on
Standards of Official Conduct.
Sec. 8.2 A resolution expressing the sense of the House with regard to
the scope of the Constitution's Speech or Debate immunity
provision, and further requesting that the United States Supreme
Court issue a writ of certiorari to review a circuit court decision
interpreting such provision, constitutes a valid question of the
privileges of the House.
On May 12, 1988,(53) the Majority Leader (Rep. Tom Foley
of Washington), on behalf of himself and the Minority Leader (Rep. Bob
Michel of Illinois), offered the following resolution as a question of
the privileges of the House:
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53. 134 Cong. Rec. 10574, 10576, 10579, 100th Cong. 2d Sess.
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PRIVILEGES OF THE HOUSE--RELATING TO THE DUTIES AND PRIVILEGES
OF MEMBERS OF THE HOUSE OF REPRESENTATIVES
Mr. [Thomas] FOLEY [of Washington]. Mr. Speaker, I offer a
privileged resolution (H. Res. 446) and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 446
Whereas, consistent with the Constitution and the history of
parliamentary bodies, the Members of the United States House of
Representatives have always considered it to be an integral part of the
official responsibilities of Members of Congress to inform the citizens
they represent and the agencies of government regarding issues of public
importance;
Whereas, the judiciary of the United States has in a long series of
decisions established the doctrine of official immunity pursuant to which
all public officials are provided certain protections from civil liability
when engaged in the good faith performance of their official functions;
Whereas, in 1985 Representative Don Sundquist, a Member of this House,
communicated with the Attorney General of the United States, the Federal
Legal Services Corporation, and the citizens of the congressional district
which he represents, informing them of an ongoing issue of public
importance, a controversy relating to the expenditure of federal funds by
the Memphis Area Legal Services in that federally funded organization's
continuing dispute with the State of Tennessee's judicial branch;
Whereas, Wayne Chastain an attorney with the Memphis Area Legal Services
filed suit against Representative Sundquist seeking in excess of one
million dollars in personal damages based on Representative Sundquist's
official communications with the Attorney General of the United States, the
Federal Legal Services Corporation, and the citizens of Tennessee;
Whereas, the United States District Court for the District of Columbia
dismissed the suit, holding that Representative Sundquist's actions were
official and that for the good faith performance of their official duties
Members of Congress, like all other public officials, are protected from
civil liability;
Whereas, on November 6, 1987, a divided panel of the United States Court
of Appeals for the District of Columbia Circuit, departed from the
precedent of that Court and the Supreme Court and reversed the ruling of
the District Court holding that the doctrine of official immunity, which
provides certain protections from civil liability to all public officials
engaged in the good faith performance of their official duties, was not
applicable to the official actions of a Member of Congress;
Whereas, despite the expressed desire of a majority of the participating
judges of the Court of Appeals for the District of Columbia Circuit to
review the decision of the panel's majority by rehearing the case en banc,
the en banc Court of Appeals declined to rehear the case;
Whereas, Representative Sundquist, through the Office of General Counsel
to the Clerk of the House, is presently seeking a writ of certiorari from
the Supreme Court of the United States;
Whereas, the decision of the divided panel of the Court of Appeals raises
the most serious concerns for the doctrine of separation of powers provided
in the Constitution and for the ancient and historic rights and privileges
of the House; and
Whereas, the decision of the divided panel of the Court of Appeals, if
left standing, will have an adverse effect on the performance of important
official duties by Members of the House and will deprive citizens of an
irreplaceable source of information about the functioning of their
government: Now, therefore, be it
Resolved, That the House of Representatives considers the informing of
citizens and executive branch agencies on matters of public importance to
be a part of the official duties of a Member of the House; and be it
further
Resolved, That the House of Representatives considers it to be
appropriate that Members of the House engaged in the performance of their
official duties will be treated by the Courts with the same respect and
protection presently afforded by the Courts to all other public officials;
and be it further
Resolved, That the House of Representatives views with deep concern the
decision of the divided panel of the Court of Appeals of the District of
Columbia Circuit in the case of Wayne Chastain v. The Honorable Don
Sundquist because of its impact on the necessary and proper functioning of
the House of Representatives as a coordinate branch of government and as
the elected representatives of the American people; and be it further
Resolved, That the House of Representatives respectfully requests the
Supreme Court of the United States to grant a writ of certiorari, so that
it may review this matter, and reach a just result; and be it further
Resolved, That the Clerk of the House shall forthwith transmit a
certified copy of this resolution to the Honorable Clerk of the Supreme
Court.
The SPEAKER pro tempore (Mr. [Charles] Schumer [of New York]).
The resolution presents a question of privilege, and the Chair
recognizes the gentleman from Washington for 1 hour.
Mr. FOLEY. Mr. Speaker, for purposes of debate only, I yield 30
minutes to the distinguished gentleman from Illinois [Mr. Michel],
pending which I yield myself such time as I may consume.
Mr. FOLEY. Mr. Speaker, on behalf of the Republican leader, Mr.
Michel and myself, I have introduced this privileged resolution.
The resolution expresses, to the Supreme Court of the United
States, a respectful request of this House. By adopting this
resolution we will be asking that the Court grant a review of a
recent decision of the Federal Court of Appeals for the District of
Columbia Circuit which impacts on the day-to-day operation of the
House and its Members.
The litigation at issue, Chastain versus Sundquist, is a civil
action which alleges that Congressman Sundquist, our colleague from
Tennessee, included defamatory material in a letter which he sent
to a Federal agency discussing an issue of public importance and
controversy in the Memphis area. Specifically, Representative
Sundquist, in his letters and in his discussions with his
constituents, expressed his concerns with respect to the operation
of a federally funded program, the Memphis Area Legal Services. . .
.
Mr. Speaker, I would ask then to include with my remarks at the
conclusion of my opening remarks the text of our ``Dear Colleague''
letter that the gentleman from Washington [Mr. Foley] and I jointly
signed to the membership.
I will reserve the balance of my time.
House of Representatives,
Washington, DC.
Dear Colleague: On Wednesday, May 11, 1988, we will seek floor
consideration of a privileged resolution. The resolution requests
the Supreme Court to review a recent decision of the United States
Court of Appeals for the District of Columbia Circuit in Chastain
v. Sundquist. The Speaker and the Bipartisan Leadership of the
House believe that the opinion of the divided panel of the Court of
Appeals represents a significant departure from established
precedent and seriously threatens the proper functioning of Members
of the House as representatives of the American people.
The Court of Appeals has held that Members of Congress do not
receive the protections provided to all other public officials
under the doctrine of official immunity. This ruling was issued,
and permitted to stand, by a sharply divided Court of Appeals in a
million dollar lawsuit brought against our colleague, Don
Sundquist.
Congressman Sundquist had written letters to the appropriate
Executive Branch officials expressing his concern with the
allocation of resources, and the manner of operation, of the
Memphis Area Legal Services, a federally funded entity. He also
brought these concerns on this ongoing public controversy to the
attention of his constituents.
A lawyer, who was mentioned in one of the letters, brought suit
against Congressman Sundquist alleging that the communications with
the Executive Branch and with the public had been defamatory. The
suit sought in excess of one million dollars in damages.
Congressman Sundquist was represented by the General Counsel to
the Clerk of the House. The District Court dismissed the suit,
holding that Congressman Sundquist had been engaged in his official
duties and, therefore, was protected by the doctrine of official
immunity. Pursuant to that doctrine, all public officials who are
engaged in the discretionary performance of their official
functions can only be subjected to suit and liability for
violations of clearly established standards of statutory or
constitutional law. Since the Plaintiff had not alleged that
Congressman Sundquist had violated any statute or constitutional
provision, the District Court dismissed the case.
On appeal a three-judge panel ruled, on a two-to-one vote, that
Members of Congress engaged in official, but not legislative
actions, receive no protection whatsoever. The justification for
this treatment, which differs from the treatment accorded every
other public official at all levels and in all branches of
government, was that the Constitution provides Members with an
absolute privilege for legislative actions under the Speech or
Debate Clause and that, therefore, no other privilege would apply.
Judge Mikva, a former Member of the House, dissented and wrote
a strongly worded opinion which argued for the application of the
immunity and pointed out that the two-judge majority was departing
from the established precedent of the Court of Appeals.
Congressman Sundquist sought to have the decision reviewed by
the full Court of Appeals, but despite the agreement of a six-judge
plurality that the panel's decision should be reviewed, the full
court declined to rehear the case. Congressman Sundquist is
presently seeking a review of the matter by the Supreme Court.
Our resolution simply requests the Supreme Court to review the
case. Adoption of the resolution will not ask the Court to rule in
any particular fashion on the merits of Congressman Sundquist's
argument but will highlight for the Court the extreme importance of
this question to all Members of the House. Every one of us is
called upon on a daily basis to perform many official functions
which are not integral parts of the legislative process. The job of
a Congressman extends far beyond the confines of formulating,
debating and acting on legislative proposals. Each of us is in
daily contact with Executive agencies and with our constituents.
Part of our task is to bridge the gap between the federal
government and the citizens we represent. It is important that we
be able to attend to these responsibilities without unnecessary
fear or inconvenience from litigation. The same reasoning that has
led the Judicial Branch to provide a degree of protection to
Executive and Judicial Branch officials ranging from cabinet
officers to local dog catchers should lead the Court to review a
decision denying that protection to Members of Congress.
We hope you will support our privileged resolution.
Thomas S. Foley,
Majority Leader.
Robert H. Michel,
Republican Leader.
. . .
Mr. FOLEY. Mr. Speaker, I yield back the balance of my time,
and I move the previous question on the resolution.
The previous question was ordered.
The SPEAKER pro tempore (Mr. [Barton] Gordon [of Tennessee]).
The question is on the resolution.
The question was taken; and the Speaker pro tempore announced
that the ayes appeared to have it.
Mr. FOLEY. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
413, nays 0, answered ``present'' 2, not voting 16, as follows:
[Roll No. 128] . . .
Sec. 9. Immunity from Arrest
The Constitution grants Members of Congress ``privilege from
arrest''(1) during their attendance at congressional
sessions, and during travel to and from such sessions.(2) As
with Speech or Debate immunity, this constitutional provision has its
origins in English practice dating back centuries, and was originally
devised as a means to counter royal interference with Members of
Parliament. In the American context, it serves to insulate the
legislative branch from the other branches of government in recognition
of the principle of separation of powers.
---------------------------------------------------------------------------
1. U.S. Const. art. I, Sec. 6, cl. 1. The full passage reads: ``They
shall in all Cases, except Treason, Felony or Breach of the
Peace, be privileged from Arrest during their attendance at the
Session of their respective Houses, and in going to and
returning from the same.'' See also House Rules and Manual
Sec. Sec. 90, 91 (2021).
2. For an 1886 court case articulating a broad interpretation of
travel to and from congressional sessions, see 3 Hinds'
Precedents Sec. 2674. See also 3 Hinds' Precedents Sec. 2676
(House determination that a Member arrested on vacation could
not continue to be held after Congress assembled).
---------------------------------------------------------------------------
At the time of the Constitutional Convention, arrest and
imprisonment for civil offenses was still common, and it was primarily
towards these arrests that the provision was aimed.(3) The
Constitution specifies that the immunity from arrest does not apply in
cases of ``Treason, Felony, and Breach of the Peace.''(4)
Subsequent court rulings have clarified the scope of this language as
encompassing all criminal offenses.(5) Because arrest in
civil cases is no longer generally part of the American legal system,
this constitutional provision has been described as virtually
obsolete.(6)
---------------------------------------------------------------------------
3. See Deschler's Precedents Ch. 7 Sec. 18. For an example of a Member
being arrested in a civil debt case, and the House's subsequent
assertion of the constitutional privilege to secure his
release, see 3 Hinds' Precedents Sec. 2676.
4. U.S. Const. art. I, Sec. 6, cl. 1.
5. See, e.g., Williamson v. U.S., 207 U.S. 425 (1908) (``. . . from
the foregoing it follows that the term `treason, felony, and
breach of the peace,' as used in the constitutional provision
relied upon, excepts from the operation of the privilege all
criminal offenses. . . .''). See also 6 Cannon's Precedents
Sec. 589. In 1878, the House Committee on the Judiciary studied
the issue and concluded that Members were not immune from state
criminal processes. See 3 Hinds' Precedents Sec. 2673.
6. See Deschler's Precedents Ch. 7 Sec. 18 (fn. 18).
---------------------------------------------------------------------------
The immunity applies to Members, and had also been considered
applicable to Delegates and Resident Commissioners.(7)
Members-elect travelling to Washington, D.C., to be sworn at the
assembly of a new Congress are also covered by this grant of
immunity.(8)
---------------------------------------------------------------------------
7. See Deschler's Precedents Ch. 7 Sec. 18 (fn. 10) (citing Doty v.
Strong, 1 Pinn. 84 (Sup. Ct. Wisc. Territ. 1840)).
8. See House Rules and Manual Sec. 300 (2021) (statement in
Jefferson's Manual of Parliamentary Practice that ``Privilege
from arrest takes place by force of election.''). See also
Deschler's Precedents Ch. 7 Sec. 18 (fn. 8) (citing Dunton &
Co. v. Halstead, 2 Clark 236 (Dist. Ct. Phil. 1840)).
---------------------------------------------------------------------------
Although this constitutional provision has virtually no modern
applicability, the issue of how to balance Members' representational
responsibilities with the requirements of judicial process remains
salient. Court orders, summonses and subpoenas are routinely issued to
Members of Congress in their capacity as private
citizens.(9) Courts have ruled (and the House has
acknowledged) that such requests are not ``arrests'' that would be
prohibited under the Constitution's grant of immunity.(10)
Nevertheless, such processes have the potential to interfere with
legislative activity if Members are frequently called away to
participate in judicial proceedings. Thus, courts have typically
demonstrated a willingness to make accommodations to Members of
Congress whose involvement in legal proceedings is required. Such
accommodation has often taken the form of granting extensions or
continuances until the House would no longer be in
session.(11)
---------------------------------------------------------------------------
9. For more on service of process on Members generally, see Sec. 7,
supra.
10. See Deschler's Precedents Ch. 7 Sec. 18 (fn. 19) (citing Long v.
Ansell, 293 U.S. 76 (1934)). In one instance in 1929, a Senator
indicated that he would ignore a grand jury summons issued to
him by the Supreme Court of the District of Columbia.
Subsequently, the court noted, ``Section 6, Article I, of the
Constitution of the United States, gives immunity to arrest to
the Members of Congress while that body is in session. It does
not say that they are privileged from subpoena, but if they do
not obey, the only step the court could take would be to issue
an attachment for their arrest. Since the Constitution provides
immunity from arrest, in my opinion they are not subject to
such action.'' See 6 Cannon's Precedents Sec. 588.
11. See Deschler's Precedents Ch. 7 Sec. 18 (fn. 3) (citing James v.
Powell, 274 N.Y.S. 2d 192, 26 App. Div. 2d 295 (1966) for the
proposition that ``where actual interference with the
legislative process is shown the courts will make suitable
provision by way of adjournment or fixing of a time and place
of examination which will obviate any real conflict.'').
PRECEDENTS OF THE HOUSE
Ch. 7
INDEX TO PRECEDENTS
Adjournment
Delegates and Resident Commissioners, motion to adjourn offered by,
Sec. Sec. 2, 2.1
motion to adjourn, ability of Delegates and Resident Commissioners
to offer, Sec. Sec. 2, 2.1
American Samoa
Delegates from, Sec. 2
Chaplain
Delegate or Resident Commissioner sponsoring guest chaplain,
Sec. 2.18
guest chaplain sponsored by Delegate or Resident Commissioner,
Sec. 2.18
Chief Administrative Officer (CAO)
compensation of Members, role in disbursing, Sec. 5
Members' Representational Allowance (MRA), publication of
disbursements, Sec. 6
office space, role in assigning, Sec. 6
Clerk
compensation, role in disbursement, Sec. 5
vacancies, role in managing office, Sec. Sec. 6, 6.8, 6.11
Code of Official Conduct
see Ethics
Committee of the Whole
automatic revote provision, Sec. Sec. 2, 2.12, 2.13, 2.14
Delegates and Resident Commissioners, authority to preside over,
Sec. Sec. 2, 2.16
Delegates and Resident Commissioners, voting rights in,
Sec. Sec. 2, 2.11, 2.12, 2.13, 2.14, 2.15, 2.17
presiding officer, Delegates and Resident Commissioners serving as,
Sec. Sec. 2, 2.16
quorum rules, Sec. 2
voting rights of Delegates and Resident Commissioners, Sec. Sec. 2,
2.11, 2.12, 2.13, 2.14, 2.15, 2.17
Committee on House Administration
allowances, former authority to adjust, Sec. Sec. 5, 6, 6.1, 6.2,
6.3, 6.4, 6.5, 6.6
allowances, role in authorizing, Sec. Sec. 5, 6, 6.17
Members' Representational Allowance (MRA), role regarding,
Sec. Sec. 5, 6, 6.17
vacancies, role regarding, Sec. 6
Committees
assignment of Delegates and Resident Commissioners to, Sec. Sec. 2,
2.8
Committee of the Whole, see Committee of the Whole
Delegates and Resident Commissioners, voting rights in, Sec. 2
rank of Delegates and Resident Commissioners on, Sec. Sec. 2, 2.8
voting rights of Delegates and Resident Commissioners, Sec. 2
Compensation
27th Amendment, operation of, Sec. 5
appropriations process, relationship to, Sec. 5
Chief Administrative Officer (CAO), role in disbursements, Sec. 5
Citizens' Commission on Public Service and Compensation, Sec. 5
Clerk, role in disbursements, Sec. 5
Commission on Executive, Legislative, and Judicial Salaries, Sec. 5
Committee on House Administration, role regarding, Sec. 5
conflicts of interest, Sec. 5
constitutional provisions regarding, Sec. 5
cost-of-living adjustments, Sec. 5
death, effect of, Sec. 5
death gratuities, Sec. Sec. 5, 5.2
deductions for leaves of absence, Sec. 5
deductions for rule violations, Sec. 5
election contests, relationship to, Sec. 5
Ethics Reform Act of 1989, Sec. 5
Federal Salary Act of 1967, Sec. 5
financial disclosure requirements, Sec. 5
fines, Sec. 5
generally, Sec. 5
gift rules Sec. 5
health benefits, Sec. 6
history, Sec. 5
honoraria, Sec. Sec. 5, 5.8, 5.11
incompatible offices, relationship to, Sec. 4
leaves of absence, deductions for, Sec. Sec. 5, 5.6
mileage expenses, Sec. 5
``No Budget, No Pay'' bills, Sec. Sec. 5, 5.4
oath, relationship to, Sec. Sec. 5, 5.1
outside earned income, Sec. Sec. 5, 5.11, 5.12, 5.13
party leaders, Sec. 5
rate of compensation, Sec. 5
resignation, effect of, Sec. 5
retirement benefits, Sec. 6
royalties, Sec. Sec. 5, 5.13
``Saxbe fix'', Sec. 4
Sergeant-at-Arms, former role in disbursements, Sec. Sec. 5, 5.10
Speaker, Sec. 5
Speaker's administrative role regarding, Sec. 5
statutory rulemaking related to, Sec. 5
taxes, Sec. Sec. 5, 5.3
term of office, relationship to, Sec. 5
travel reimbursements, Sec. 5
waiving salary, Sec. 5
Conferences
conference committees, appointment of Delegates and Resident
Commissioners, Sec. Sec. 2, 2.9
Delegates and Resident Commissioners, appointment to conference
committees, Sec. Sec. 2, 2.9
Congressional Record
allowances, adjustments published in, Sec. Sec. 6, 6.3
copies provided to Members, Sec. 6
franking privilege, ability to send copies via, Sec. 6
franking privilege regulations published in, Sec. Sec. 6, 6.12
Constitution
compensation of Members, provisions regarding, Sec. 5
emoluments, provisions regarding, Sec. 4
franking privilege, constitutionality of, Sec. Sec. 6, 6.15, 6.16
immunities of Members generally, Sec. 7
incompatible offices, provisions regarding, Sec. 4
privilege from arrest, Sec. Sec. 7, 9
qualifications of Members, provisions regarding, Sec. 3
Speech or Debate immunity, Sec. Sec. 7, 8
Contested Elections
see Election Contests
Death
compensation of Members, effect of, Sec. 5
gratuities, Sec. Sec. 5, 5.2
Debate
Delegates and Resident Commissioners, rights to, Sec. 2
Decorum
Delegates and Resident Commissioners, applicability to, Sec. 2
Speech or Debate immunity, relationship to, Sec. Sec. 8, 8.1
Delegates and Resident Commissioners
Chaplain, guest chaplains sponsored by, Sec. 2.18
Code of Official Conduct, applicability, Sec. 2
committee assignments, Sec. Sec. 2, 2.8
Committee of the Whole, presiding over, Sec. Sec. 2, 2.16
Committee of the Whole, voting in, Sec. Sec. 2, 2.11, 2.12, 2.13,
2.14, 2.15, 2.17
compensation, Sec. 2
conference committees, appointment to, Sec. Sec. 2, 2.9
decorum rules, applicability, Sec. 2
discharge petition, inability to sign, Sec. Sec. 2, 2.7
election of Speaker, inability to vote in, Sec. Sec. 2, 2.5
floor privileges, Sec. 2
history, Sec. 2
impeachment articles, ability to offer, Sec. 2
impeachment articles, inability to vote on, Sec. 2
impeachment articles, question of privilege regarding, Sec. Sec. 2,
2.6
joint committees, appointment to, Sec. 2
motion to adjourn, ability to offer, Sec. 2.1
motion to recommit, ability to offer, Sec. 2.3
motion to reconsider, inability to offer, Sec. 2
motion to refer, ability to offer, Sec. 2.2
motions, ability to offer generally, Sec. 2
oaths, Sec. 2
objections to unanimous-consent requests, authority to raise,
Sec. Sec. 2, 2.4
party organization, relationship to, Sec. Sec. 2, 2.8
points of order, authority to raise, Sec. 2
privilege from arrest, Sec. 9
privileges generally, Sec. 2
qualifications, Sec. 3
rank on committees, Sec. Sec. 2, 2.8
salary and benefits, Sec. 2
select committees, appointment to, Sec. 2
seniority, Sec. Sec. 2, 2.8
service of process on, Sec. 7.4
Speaker election, inability to vote in, Sec. Sec. 2, 2.5
statutory origin, Sec. 2
term of office, Sec. 2
unanimous-consent request to sign discharge petition not
entertained, Sec. Sec. 2, 2.7
unanimous-consent requests, authority to propose, Sec. 2
vacancies, Sec. 2
voting rights in the Committee of the Whole, Sec. Sec. 2, 2.11,
2.12, 2.13, 2.14, 2.15, 2.17
Discharge Petitions
Delegates and Resident Commissioners may not sign, Sec. Sec. 2, 2.7
unanimous-consent request to allow Delegates and Resident
Commissioners to sign not entertained, Sec. Sec. 2, 2.7
District of Columbia
Delegates from, Sec. 2
Election Contests
compensation pending resolution of case, Sec. 5
exclusion distinguished from, Sec. 3
expulsion distinguished from, Sec. 3
Election of Speaker
see Speaker of the House
Ethics
censure, Sec. Sec. 6, 6.10
Code of Official Conduct, applicability to Delegates and Resident
Commissioners, Sec. 2
Code of Official Conduct, employment rules contained in, Sec. 6
Committee on Ethics, Sec. Sec. 5, 6
conflicts of interest, Sec. 5
employment rules, Sec. 6
Ethics Reform Act of 1989, Sec. 5
expulsion, see Expulsion
financial disclosure requirements, Sec. 5
fines for rule violations, Sec. 5
gift rules, Sec. 5
honoraria rules, Sec. Sec. 5, 5.8, 5.11
Members' Representational Allowance (MRA), ethics rules regarding,
Sec. 6
outside earned income, Sec. Sec. 5, 5.11, 5.12, 5.13
reprimand, Sec. 6
Speech or Debate immunity, relationship to, Sec. 8
Exclusion
compensation, effect on, Sec. 5
election contests distinguished from, Sec. 3
expulsion distinguished from, Sec. 3
incompatible offices, relationship to, Sec. Sec. 3, 4
Powell v. McCormack, Sec. 3
qualifications, relationship to, Sec. 3
vacancies created by, Sec. 3
Expulsion
election contests distinguished from, Sec. 3
exclusion distinguished from, Sec. 3
vacancies created by, Sec. 6.11
Floor Privileges
Delegates and Resident Commissioners, Sec. 2
staff of Members, Sec. 6.9
Franking Privilege
Congressional Record, regulations published in, Sec. Sec. 6, 6.12
constitutionality, Sec. Sec. 6, 6.15, 6.16
generally, Sec. 6
history, Sec. 6
House Communications Standards Commission, Sec. Sec. 6, 6.12, 6.14,
6.16
Members' Representational Allowance (MRA), relationship to, Sec. 6
questions of privilege regarding, Sec. Sec. 6, 6.13, 6.14
Guam
Delegates from, Sec. 2
House Administration
see Committee on House Administration
Impeachment
Delegates and Resident Commissioners may not vote on articles,
Sec. 2
Delegates and Resident Commissioners may offer resolution of
impeachment, Sec. 2
qualifications, relationship to, Sec. 3
question of privilege regarding Delegate and Resident Commissioner
voting, Sec. Sec. 2, 2.6
resolution of impeachment, offering by Delegates or Resident
Commissioners, Sec. 2
Incompatible Offices
compensation, Sec. Sec. 4, 5
declination, relationship to, Sec. 4
duties, Sec. 4
emoluments, prohibition on increasing, Sec. 4
executive branch offices, Sec. 4
generally, Sec. Sec. 3, 4
judicial branch offices, Sec. 4
leaves of absence, relationship to, Sec. Sec. 4, 4.1
military service, relationship to, Sec. Sec. 4, 4.1
oath, relationship to, Sec. Sec. 4, 4.2, 4.3
resignation, relationship to, Sec. Sec. 4, 4.4
``Saxbe fix,'' Sec. 4
Senate service, Sec. 4
state offices, relationship to, Sec. Sec. 4, 4.3, 4.4
temporary offices, Sec. 4
term of office, relationship to, Sec. Sec. 4, 4.2
vacancies created by, Sec. 4
Joint Committees
Delegates and Resident Commissioners, appointment to, Sec. 2
Journal
copies provided to Members, Sec. 6
Leaves of Absence
compensation, effect on, Sec. Sec. 5, 5.6
incompatible offices, relationship to, Sec. Sec. 4, 4.1
oath, relationship to, Sec. 5
procedure, Sec. Sec. 5, 5.5, 5.6, 5.7
unanimous consent to obtain, Sec. Sec. 5, 5.5, 5.6, 5.7
Members
allowances, see Members' Representational Allowance (MRA)
compensation, Sec. 5
Congressional Record, copies provided to, Sec. 6
death gratuities, Sec. Sec. 5, 5.2
Delegates and Resident Commissioners distinguished, Sec. 2
ethics rules, see Ethics
franking privilege generally, Sec. 6
incompatible offices, see Incompatible Offices
Journal, copies provided to, Sec. 6
leaves of absence generally, Sec. 5
oath of office, see Oath of Office
office and staff, see Members' Office and Staff
privileges and immunities generally, Sec. Sec. 7, 8, 9
qualifications, Sec. 3
salary and benefits, Sec. 5
service of process, Sec. Sec. 7, 7.1, 7.2, 7.3
travel, Sec. 5
Members' Office and Staff
allowances generally, Sec. Sec. 5, 6
allowances, historical practices regarding, Sec. Sec. 6, 6.1, 6.2,
6.3, 6.4, 6.5, 6.6
Code of Official Conduct, applicability, Sec. 6
district offices, Sec. 6
ethics rules regarding, Sec. 6
floor privileges for Members' staff, Sec. 6.9
generally, Sec. 6
House Page program, Sec. 6
Members' Representational Allowance (MRA), Sec. Sec. 5, 6, 6.7,
6.17
Office of Congressional Workplace Rights, Sec. 6
Office of Diversity and Inclusion, Sec. 6
Office of Employee Advocacy, Sec. 6
office space, Sec. 6
staff employment, rules regarding, Sec. 6
vacancies, effect of, Sec. Sec. 6, 6.8, 6.11
Members' Representational Allowance (MRA)
adjustments, Sec. Sec. 5, 6, 6.17
allowances, former rules regarding, Sec. Sec. 5, 6, 6.1, 6.2, 6.3,
6.4, 6.5, 6.6
Chief Administrative Officer (CAO), publication of disbursements
by, Sec. 6
Committee on Ethics, role regarding, Sec. 6
Committee on House Administration, role regarding, Sec. Sec. 5, 6,
6.7, 6.17
franking privilege, relationship to, Sec. 6
history, Sec. Sec. 5, 6, 6.7
House Communications Standards Commission, regulations issued by,
Sec. Sec. 6, 6.12
Motion to Adjourn
see Adjournment
Motion to Recommit
Delegates and Resident Commissioners, ability to offer, Sec. 2.3
Motion to Reconsider
Delegates and Resident Commissioners, inability to offer, Sec. 2
Motion to Refer
Delegates and Resident Commissioners, ability to offer,
Sec. Sec. 2, 2.1
Northern Mariana Islands
Delegates from, Sec. 2
Oath of Office
challenging the right to be sworn, Sec. 3
compensation, relationship to, Sec. Sec. 5, 5.1
Delegates and Resident Commissioners, requirement to take, Sec. 2
incompatible offices, relationship to, Sec. Sec. 4, 4.2, 4.3
leaves of absence, relationship to, Sec. 5
qualifications, relationship to, Sec. 3
Party Organization
committee assignments, role regarding Delegates and Resident
Commissioners, Sec. Sec. 2, 2.8
compensation of floor leaders, Sec. 5
Delegates and Resident Commissioners, membership in, Sec. 2
floor leaders, compensation of, Sec. 5
seniority of Delegates and Resident Commissioners, Sec. Sec. 2, 2.8
Philippine Islands
Resident Commissioners from, Sec. 2
Points of Order
Delegates and Resident Commissioners, authority to raise, Sec. 2
Privilege from Arrest
constitutional provisions, Sec. Sec. 7, 9
Delegates and Resident Commissioners, applicability, Sec. 9
generally, Sec. Sec. 7, 9
history, Sec. Sec. 7, 9
Puerto Rico
Resident Commissioner from, Sec. 2
Qualifications
age, Sec. 3
citizenship, Sec. 3
constitutional provisions regarding, Sec. 3
Delegates and Resident Commissioners, statutory requirements,
Sec. 3
exclusion, relationship to, Sec. 3
impeachment, relationship to, Sec. 3
inhabitancy, Sec. 3
loyalty, Sec. 3
oath, relationship to, Sec. 3
Powell v. McCormack, Sec. 3
Questions of Privilege
Delegates and Resident Commissioners not permitted to vote on
articles of impeachment via, Sec. Sec. 2, 2.6
franking privilege, resolutions regarding, Sec. Sec. 6, 6.13, 6.14
Speech or Debate immunity, resolution regarding, Sec. 8.2
Quorums
Committee of the Whole, Delegates and Resident Commissioners
counted, Sec. 2
Delegates and Resident Commissioners counted in Committee of the
Whole, Sec. 2
Reconsideration
see Motion to Reconsider
Resignation
compensation, effect on, Sec. 5
incompatible offices, relationship to, Sec. Sec. 4, 4.4
Rules of the House
amendments to standing rules regarding compensation, Sec. Sec. 5,
5.11, 5.12, 5.13
Federal Salary Act of 1967, Sec. 5
House precedents, publication and distribution of, Sec. 6
House Rules and Manual, publication and distribution of, Sec. 6
statutory rulemaking related to Members' salaries, Sec. 5
Salary and Benefits of Members
see Compensation
``Saxbe fix''
see Incomptaible Offices
Select Committees
Delegates and Resident Commissioners, appointment to, Sec. Sec. 2,
2.10
Sergeant-at-Arms
compensation of Members, former role regarding, Sec. Sec. 5, 5.10
salary of Members, former role regarding, Sec. Sec. 5, 5.10
salary of Members, litigation involving, Sec. Sec. 5, 5.10
Service of Process
administrative subpoenas, Sec. 7.9
Delegates and Resident Commissioners, procedure, Sec. Sec. 7, 7.4
executive session material, Sec. Sec. 7, 7.5
former practice, Sec. Sec. 7.6, 7.7, 7.8, 7.9
Members, procedure, Sec. Sec. 7, 7.1, 7.2, 7.3
Rule VIII procedures, Sec. Sec. 7, 7.1, 7.2, 7.3
Speaker of the House, role regarding, Sec. Sec. 7, 7.1
Speaker of the House
compensation, Sec. 5
compensation of Members, role regarding, Sec. 5
Delegates and Resident Commissioners may not vote in election of,
Sec. Sec. 2, 2.5
election, Delegates and Resident Commissioners may not vote in,
Sec. Sec. 2, 2.5
service of process, role regarding, Sec. Sec. 7, 7.1
Speech or Debate Immunity
constitutional provisions, Sec. 8
decorum rules, relationship to, Sec. Sec. 8, 8.1
ethics rules, applicability, Sec. 8
generally, Sec. 8
Hutchinson v. Proxmire, Sec. 8
In re Search of Elec. Commc'ns, Sec. 8
Kilbourn v. Thompson, Sec. 8
legislative acts, definition, Sec. 8
prayer, constitutionality challenged, Sec. 8
questions of privilege involving, Sec. 8.2
staff, applicability, Sec. 8
United States v. Brewster, Sec. 8
United States v. House Rayburn Office Building, Sec. 8
United States v. Johnson, Sec. 8
waivers, Sec. 8
Travel
CODELs, Sec. 5
mileage expenses, Sec. 5
reimbursements, Sec. 5
Unanimous Consent
Delegates and Resident Commissioners, authority to object,
Sec. Sec. 2, 2.4
Delegates and Resident Commissioners, authority to propose
requests, Sec. 2
Delegates and Resident Commissioners may not sign discharge
petitions via, Sec. Sec. 2, 2.7
discharge petitions, request to allow Delegates and Resident
Commissioners to sign, Sec. Sec. 2, 2.7
leaves of absence transacted via, Sec. Sec. 5, 5.5, 5.6, 5.7
U.S. Virgin Islands
Delegates from, Sec. 2
Virgin Islands
see U.S. Virgin Islands
Voting
Committee of the Whole, authority for Delegates and Resident
Commissioners to vote in, Sec. Sec. 2, 2.11, 2.12, 2.13, 2.14,
2.15, 2.17
Delegates and Resident Commissioners, authorities and limitations,
Sec. Sec. 2, 2.11, 2.12, 2.13, 2.14, 2.15, 2.17
Delegates and Resident Commissioners, prohibition on voting in
Speaker election, Sec. Sec. 2, 2.5
disqualification for personal or pecuniary interest, Sec. 5
leaves of absence, statements regarding missed votes, Sec. 5
proxy voting, Sec. 5
Speaker election, authority to vote in, Sec. Sec. 2, 2.5
CHAPTER 8
Elections and Election Campaigns
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Commentary and editing by Max Spitzer, J.D., LL.M.
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A. Apportionment; Voting Districts
Sec. 1. Constitutional and Statutory Requirements
Sec. 2. Districting and Redistricting
B. Time, Place, and Regulation of Elections
Sec. 3. State and Federal Jurisdiction over House
Elections
Sec. 4. Vacancies; Continuity of Operations
C. Campaign Practices
Sec. 5. Election Campaigns and Campaign Financing
Regulation
Sec. 6. The Federal Election Commission
Sec. 7. House Ethics Rules
A. Apportionment; Voting Districts
Sec. 1. Constitutional and Statutory Requirements
Pursuant to article I, section 2, clause 3, of the U.S.
Constitution, Members of the House of Representatives are to be
``apportioned among the several States . . . according to their
respective numbers.''(1) This process of allocating
Representatives to the states based on population can be described as
proceeding in three distinct phases. First, information regarding the
population of each state must be compiled via the taking of the
decennial census. Then, Congress (by law) must make the formal
allocation of Representatives to each state--a process known as
``apportionment.''(2) Finally, each state must then decide
how constituencies within the state are to elect each of its
Representatives--a process known as ``districting'' (or
``redistricting'').(3) Over the course of its history, the
United States has chosen a variety of methods to effectuate each of
these tasks, consistent with constitutional requirements.
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1. House Rules and Manual Sec. 14 (2021).
2. For earlier treatment of apportionment issues, see 1 Hinds'
Precedents Sec. Sec. 297-308; 6 Cannon's Precedents
Sec. Sec. 38-52; and Deschler's Precedents Ch. 8 Sec. Sec. 1,
2.
3. For earlier treatment of issues relating to districting or
redistricting, see 1 Hinds' Precedents Sec. Sec. 309-319; 6
Cannon's Precedents Sec. Sec. 53, 54; and Deschler's Precedents
Ch. 8 Sec. Sec. 3, 4.
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The Census
With respect to the taking of the census, the Constitution provides
that, ``The actual Enumeration shall be made within three Years after
the first Meeting of the Congress of the United States, and within
every subsequent Term of ten Years, in such Manner as they shall by Law
direct.''(4) Pursuant to the same clause, each state is to
receive at least one Representative, and there shall be no more than
one Representative per 30,000 people.(5) The Constitution
itself provided the initial allocation of 65 Representatives to the
original 13 states.(6) The first census was taken in 1790,
and has been taken every ten years since that time.(7)
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4. U.S. Const. art. I, Sec. 2, cl. 3; House Rules and Manual Sec. 15
(2021).
5. Parliamentarian's Note: During the First Congress, the House and
Senate passed a series of 12 constitutional amendments, ten of
which would later be known as the Bill of Rights. The remaining
two amendments were not ratified by the requisite number of
states when initially proposed. One such amendment achieved
ratification in 1992 and became the 27th Amendment to the
Constitution. The remaining amendment has never been ratified.
That amendment, the so-called ``Congressional Apportionment
Amendment'' would have required one representative per 30,000
constituents until the size of the House reached 100 Members;
thereafter one Representative per 40,000 constituents until the
size of the House reached 200 Members; and thereafter one
Representative per 50,000 constituents. Had this amendment been
adopted, the current population of the United States would have
resulted in a House of Representatives of over 6,000 Members.
6. The initial apportionment of Representatives was as follows: New
Hampshire, three Representatives; Massachusetts, eight; Rhode
Island, one; Connecticut, five; New York, six; New Jersey,
four; Pennsylvania, eight; Delaware, one; Maryland, six;
Virginia, ten; North Carolina, five; South Carolina, five; and
Georgia, three.
7. House Rules and Manual Sec. 15 (2021).
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Under the original terms of the Constitution, the census count
included free persons, excluded ``Indians not taxed,'' and counted only
three-fifths of enslaved persons.(8) The abolishment of
slavery by the 13th Amendment to the Constitution(9)
rendered moot the provision regarding enslaved persons, and section 2
of the 14th Amendment affirmatively revised the apportionment
requirements as follows: ``Representatives shall be apportioned among
the several States according to their respective numbers, counting the
whole number of persons in each state, excluding Indians not
taxed.''(10) In 1924, Congress passed two laws regarding the
status of Native Americans and their relationship to Federal taxation.
The Indian Citizenship Act(11) conferred U.S. citizenship on
all Native Americans born within the territorial limits of the United
States. The Revenue Act of 1924(12) expanded the category of
persons subject to Federal taxation to include Native Americans. Thus,
following the enactment of these laws (and decisions of the Supreme
Court relating to taxation of Native Americans),(13) there
were no longer considered any individuals in the category ``Indians not
taxed'' for census-taking purposes. The 1940 census message from the
executive affirmatively noted that Native Americans had been included
in the tabulation.(14)
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8. U.S. Const. art. I, Sec. 2, cl. 3; House Rules and Manual Sec. 15
(2021).
9. House Rules and Manual Sec. 224 (2021).
10. House Rules and Manual Sec. 226 (2021).
11. P.L. 68-175, 43 Stat. 253.
12. P.L. 68-176, 43 Stat. 253.
13. See, e.g., Superintendent v. Commissioner, 295 U.S. 418 (1935).
14. See Deschler's Precedents Ch. 8 Sec. Sec. 1.1, 2.3.
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Section 2 of the 14th Amendment to the Constitution also provides
that a state's representation in the House may be proportionally
reduced by Congress if the state denies otherwise qualified inhabitants
the right to vote.(15) This authority, however, has never
been used to reduce the number of Members to which a state is entitled
under the most recent census.(16)
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15. House Rules and Manual Sec. 226 (2021).
16. For an attempt to offer an amendment to an apportionment bill to
require the President to reduce the representation of certain
states (held to be nongermane), see Deschler's Precedents Ch. 8
Sec. 2.7. See also Deschler's Precedents Ch. 8 Sec. 2.8 (an
amendment requiring a report on the number of citizens denied
the right to vote ruled not germane to a civil rights bill).
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The executive branch is responsible for conducting the decennial
census. During the early 19th century, the census was taken by U.S.
Marshals under the auspices of the Department of State. In 1849,
jurisdiction over the census was transferred to the Department of the
Interior. In 1902, Congress established a permanent Census Bureau,
which was moved the following year into the newly-created Department of
Commerce and Labor. When the Departments of Commerce and Labor were
separated in 1913, the Census Bureau was retained by the Department of
Commerce, where it remains today.(17)
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17. For more on the history of the Census Bureau, see https://
www.census.gov/history/www/census--then--now/ (last visited Oct.
19, 2022).
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Although originally designed as a simple count of population, the
census now includes additional information and statistics to be used
for purposes other than congressional apportionment.(18) The
results of each decennial census are transmitted to the House via
presidential message.(19)
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18. See Deschler's Precedents Ch. 8 Sec. 2.1.
19. See, e.g., Deschler's Precedents Ch. 8 Sec. 2.2. For presidential
messages and communications generally, see Deschler's
Precedents Ch. 35; and Precedents (____) Ch. 35.
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Pursuant to clause 1(n)(8) of rule X, the Committee on Oversight
and Reform has jurisdiction over ``Population and demography generally,
including the Census.''(20) Measures relating to the census
are therefore referred by the Speaker to that committee. Under a former
line of precedents involving matters of ``constitutional privilege,''
measures concerning the census were accorded high privilege and could
be brought up on the floor at virtually any time.(21)
However, in 1926, Speaker Nicholas Longworth of Ohio overturned those
earlier precedents by ruling that reapportionment legislation was not
privileged under House rules.(22) In so ruling, Speaker
Longworth held that such constitutional matters are ``directory''
rather than ``mandatory'' and that the regular rules for the
consideration of nonprivileged legislation should apply. Today, matters
relating to the census, apportionment, or districting enjoy no special
status within the House.
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20. House Rules and Manual Sec. 732 (2021).
21. See 1 Hinds' Precedents Sec. Sec. 305, 306. See also 6 Cannon's
Precedents Sec. Sec. 49, 50.
22. See Deschler's Precedents Ch. 8 Sec. Sec. 1.2, 2.4. See also 6
Cannon's Precedents Sec. 48.
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Apportionment
Following the transmittal of census data by the executive to
Congress, Congress uses that data to allocate Representatives to each
state consistent with constitutional(23) requirements--a
process known as ``apportionment.''(24) Throughout the 19th
century, Congress used a variety of mathematical models to determine
how seats in the House should be allocated.(25) Until the
1920 census, Congress would enact a new law apportioning seats to the
several states. However, the 1920 census proved
controversial(26) and Congress was unable to enact the
required legislation. The election of Members to the House throughout
the 1920s thus proceeded under the apportionment made pursuant to the
prior census. In 1929, the impasse was finally resolved, and Congress
passed the Reapportionment Act of 1929 (also known as the Permanent
Apportionment Act of 1929).(27) That act for the first time
established in law a mathematical formula that would be used to
apportion Representatives to the House automatically after each
decennial census. The particular mathematical method of apportionment
was specified as the method of ``equal proportions.''(28)
Under the law, the executive forwards the census results to Congress,
and applies the method of equal proportions to indicate how many seats
in the House each state shall receive. The Clerk of the House is then
required, within 15 calendar days, to submit a formal certification of
these numbers to the executive branch of each state.(29)
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23. Although the Constitution does not specify a particular method of
apportionment, it does require: (1) that the allocation of
Representatives to the states be based on population (i.e.,
``according to their respective numbers''); (2) that the number
of Representatives shall not exceed one per 30,000; and (3)
that, regardless of population, each state is entitled to at
least one Representative. U.S. Const. art. I, Sec. 2, cl. 3;
U.S. Const. amend. XIV, Sec. 2.
24. Parliamentarian's Note: Following the first census of 1790,
Congress passed a law apportioning Members of the House to the
states in proportion to their population. However, the method
used to allocate Representatives was considered by President
George Washington to be constitutionally defective, thus
occasioning the first veto in American history. 3 Annals of
Cong. 539, 2d Cong. 1st Sess. (Apr. 5, 1792). A revised
apportionment bill was signed into law on April 14, 1792.
25. Parliamentarian's Note: Over the course of the 19th century, there
were three main competing methods of apportionment, known by
the names of their original advocates: Hamilton, Jefferson, and
Webster. Because of variations in population from state to
state, it was impossible to divide a finite set of Members
across the states such that each Member represented the same
number of people. Each method thus involved a slightly
different way of treating remainders and fractional seats.
Jefferson's method was generally used prior to 1840, after
which Webster's method was more common. In the latter part of
the 19th century, Hamilton's method (also known as Vinton's
method) gained prominence. In the 20th century, a new formula,
known as the method of ``equal proportions'' (also known as the
Huntington-Hill method), was established in law as the
mechanism to allocate seats in the House following a decennial
census. See Deschler's Precedents Ch. 8 Sec. 2.6.
26. The results of the 1920 census revealed that, for the first time, a
majority of Americans lived in urban as opposed to rural areas.
Conflict between urban and rural interests in Congress
prevented the enactment of reapportionment legislation based on
the 1920 census numbers.
27. P.L. 71-13, 46 Stat. 21. These provisions of law have been codified
at 2 U.S.C. Sec. Sec. 2a et seq.
28. See Apportionment and Redistricting Process for the U.S. House of
Representatives, CRS Report R45951 (Oct. 10, 2019).
29. 2 U.S.C. Sec. 2a(c).
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With respect to the total number of Representatives to be allocated
to the states, ad hoc adjustments were replaced in the 20th century by
a statutory cap. Throughout the 19th century, each census would
typically be followed by a new apportionment law that increased the
size of the membership of the House and divided the new total among the
states.(30) Thus, the House grew from its original 65
Members in 1789, to over 100 Members after the first census, to over
200 Members in 1823, and over 300 Members in 1883.
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30. Parliamentarian's Note: In the 19th century, there were only two
instances of the size of the House being reduced following a
decennial census. Following the sixth decennial census in 1840,
the size of the House was reduced from 242 to 223 Members.
Between the seventh decennial census in 1850 and the eighth
decennial census in 1860, three new states were admitted and
California was apportioned two additional seats--increasing the
number of Representatives from 233 to 239. However, following
the eighth census, the original total number of seats from the
1850 apportionment law was retained, and those 233 seats
reapportioned accordingly.
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The Apportionment Act of 1911(31) established the size
of the House at 435 Members--a total number that has remained unchanged
(with one exception) to this day.(32) Following the
admission of Alaska and Hawaii as states in 1959, the size of the House
was temporarily increased to 437.(33) However, following the
18th decennial census in 1960, the size of the House was returned to
435 Members.
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31. P.L. 62-5, 37 Stat. 13.
32. Parliamentarian's Note: The Apportionment Act of 1911 divided 433
seats among the existing states, and provided for one
Representative each for the territories of Arizona and New
Mexico should they be admitted as states before the next census
(which they were). The Reapportionment Act of 1929 reiterated
the 435-Member total and mandated automatic reapportionment
using the method of equal proportions.
33. See Deschler's Precedents Ch. 8 Sec. 2.
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The (constitutional) apportionment of Representatives to the House
is an entirely separate process from the (statutory) allocation of
nonvoting Delegates or Resident Commissioners. Over the course of its
history, the United States has provided for nonvoting representation to
the House from U.S. territories (such as the U.S. Virgin Islands or
Guam), commonwealths (such as Puerto Rico and the Northern Mariana
Islands), and Federal districts (such as the District of
Columbia).(34) The Representatives from such areas have been
styled ``Delegates'' or ``Resident Commissioners.''(35) The
number of such Delegates and Resident Commissioners depends on the
statute authorizing such representation. For example, when the
Philippines was a territorial possession of the United States, it was
represented for a time by two Resident Commissioners. Currently, there
is one nonvoting Delegate or Resident Commissioner per jurisdiction
having such representation in the House.(36)
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34. For more on Delegates and Resident Commissioners generally, see
Deschler's Precedents Ch. 7 Sec. 3; and Precedents (Smith) Ch.
7 Sec. 2.
35. For an overview of the history of Delegates and Resident
Commissioners to the House, see Delegates to the U.S. Congress:
History and Current Status, CRS Report R40555 (Aug. 25, 2015).
36. Statutes authorizing nonvoting Delegates or Resident Commissioners
to the House have been codified as follows: 48 U.S.C.
Sec. Sec. 891-894 (Resident Commissioner from Puerto Rico); 2
U.S.C. Sec. 25a (Delegate from the District of Columbia); 48
U.S.C. Sec. Sec. 1711-1715 (Delegate from Guam); 48 U.S.C.
Sec. Sec. 1711-1715 (Delegate from the U.S. Virgin Islands); 48
U.S.C. Sec. Sec. 1731-1735 (Delegate from American Samoa); and
48 U.S.C. Sec. Sec. 1751-1757 (Delegate from the Northern
Mariana Islands).
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As with legislation related to the census, legislation relating to
apportionment enjoys no special privilege in the House, and must be
considered under the rules for ordinary (nonprivileged)
measures.(37) Pursuant to clause 1(l)(3) of rule X, the
Committee on the Judiciary has jurisdiction over ``Apportionment of
Representatives.''(38) This same provision has been
interpreted to encompass state redistricting standards as
well.(39)
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37. See Deschler's Precedents Ch. 8 Sec. Sec. 1.2, 2.4. See also 6
Cannon's Precedents Sec. 48.
38. House Rules and Manual Sec. 729 (2021).
39. See Deschler's Precedents Ch. 8 Sec. 3.2.
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Sec. 2. Districting and Redistricting
The process of apportioning Representatives to the states should be
distinguished from the process of dividing the states into districts to
elect those Representatives. As described above, the apportionment
process occurs at the Federal level, via the gathering of census data
and the use of statutory formulas to allocate Representatives. The
states themselves have no role in apportionment. By contrast, the
districting (or redistricting) process occurs primarily at the state
level, via the enactment of state laws that divide the state into
districts whose constituencies elect their Representatives.
Although the states are primarily responsible for the districting
process, the Constitution grants Congress the authority to enact laws
that supersede state procedures.(1) Over the course of the
19th century, Congress would periodically pass laws mandating that
certain principles be adhered to when the states exercise their
authority to create congressional districts. The first such Federal law
was enacted in 1842,(2) and required states to use single-
Member districts only.(3) It further required that each
district be composed of continuous territory.(4) In 1872,
another law required that districts be created such that each district
in the state would have approximately the same
population.(5) Another law, enacted in 1901, required
districts to be as compact as possible.(6) The
Reapportionment Act of 1911 consolidated these three principles
(compact, single-Member districts, of roughly equal population) into a
single law articulating Federal standards for state
districting.(7)
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1. U.S. Const. art. I, Sec. 4 (``The Times, Places, and Manner of
holding Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof; but the
Congress may at any time by Law make or alter such
Regulations.'').
2. 5 Stat. 491.
3. See Deschler's Precedents Ch. 8 Sec. 3. The single-Member district
requirement was repealed in 1850 (9 Stat. 428), but reinstated
in 1862 (12 Stat. 572).
4. See Deschler's Precedents Ch. 8 Sec. 3.
5. 17 Stat. 28.
6. 31 Stat. 733.
7. Parliamentarian's Note: Although these Federal standards for state
districting were established in law, the House demonstrated
considerable reluctance to reject the seating of Members who
had been elected via procedures that did not meet these
standards. See, e.g., 1 Hinds' Precedents Sec. 310 (Member-
elect from an at-large district allowed to take his seat). See
also Deschler's Precedents Ch. 8 Sec. Sec. 3, 3.7. For more on
election contests generally, see Deschler's Precedents Ch. 9;
and Precedents (Smith) Ch. 9.
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The Reapportionment Act of 1929 substantially revised the 1911 law,
retaining the overall total of 435 Members, but instituting an
automatic process for apportioning Representatives based on the method
of ``equal proportions.'' In revising the apportionment laws, the act
of 1929 failed to reiterate the earlier Federal standards for state
redistricting processes. In a 1932 case,(8) the Supreme
Court confirmed that these Federal standards were no longer applicable.
Over the ensuring decades, the issue of authority over state
districting standards was extensively litigated in the courts. In 1946,
the Supreme Court declined to enter the ``political thicket'' of state
districting, declaring that such issues were nonjusticiable political
questions.(9) The seminal case of Baker v. Carr in 1962
essentially reversed this analysis, articulating new standards for
determining whether a nonjusticiable political question
exists.(10) Relying on the Equal Protection Clause of the
14th Amendment, the Court held that the malapportioned state
legislative districts violated the principle of ``one person, one
vote.'' Two years later, the issue of congressional districting came
directly before the Court in the case Wesberry v.
Sanders.(11) In that case, the Court held that a Georgia
districting law that allowed for wide disparities in population among
districts was unconstitutional (effectively reinstating the earlier
statutory requirement that congressional districts within a state be
roughly equal in population).(12) Subsequent case law
articulated factors that a court may consider in determining whether a
state's districting plan meets constitutional muster. Such factors
include: the compactness of the districts, the contiguity of the
districts (i.e., whether they are composed of continuous territory),
and whether the districts cross geographic or political/municipal
boundaries.(13)
---------------------------------------------------------------------------
8. Wood v. Broom, 287 U.S. 1 (1932).
9. Colegrove v. Greene, 328 U.S. 549 (1946).
10. 369 U.S. 186 (1962).
11. 376 U.S. 1 (1964).
12. Parliamentarian's Note: Due to the mathematical impossibility of
creating districts exactly equal in population, the Supreme
Court has struggled with the degree to which a congressional
district map may deviate from the theoretical ideal. For
subsequent cases addressing those questions, see, e.g.,
Kirkpatrick v. Preiser, 394 U.S. 526 (1969); Mahan v. Howell,
410 U.S. 315 (1973); and Karcher v. Daggett, 462 U.S. 725
(1983). The Court has also addressed the issue of which
individuals should be counted in determining the population of
a district. See Evenwel v. Abbott, 578 U.S.__ (2016).
13. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964). The courts have
also been responsive to claims that improper districting by
states has resulted in the denial or dilution of voting rights
of minority populations. See, e.g., United Jewish
Organizations, Inc. v. Carey, 430 U.S. 144 (1977); Thornburg v.
Gingles, 478 U.S. 30 (1986); Shaw v. Reno, 509 U.S. 630 (1993);
Shaw v. Hunt, 517 U.S. 899 (1996); Easley v. Cromartie, 532
U.S. 234 (2001); and Shelby County v. Holder, 570 U.S. 529
(2013). The extent to which districts may be drawn to favor one
political party has also been the subject of litigation, though
majority opinions announcing clear standards have been rare.
See, e.g., Davis v. Bandemer, 478 U.S. 109 (1986); Vieth v.
Jubelirer, 541 U.S. 267 (2004); LULAC v. Perry, 548 U.S. 399
(2006); Gill v. Whitford, 585 U.S.__ (2018); Lamone v. Benisek,
588 U.S.__ (2019); and Rucho v. Common Cause, 588 U.S.__
(2019).
---------------------------------------------------------------------------
With respect to the issue of whether states could provide for at-
large or multi-Member districts, Congress affirmatively reinstated the
requirement of single-Member districts only via the enactment of a new
statute in 1967.(14) The law provides that states with more
than one Representative must create ``a number of districts equal to
the number of Representatives to which such State is so entitled'' and
that no district may elect more than one Representative.(15)
---------------------------------------------------------------------------
14. P.L. 90-196, 81 Stat. 581. This law has been codified at 2 U.S.C.
Sec. 2c. See also Deschler's Precedents Ch. 8 Sec. 3.3
15. 2 U.S.C. Sec. 2c.
---------------------------------------------------------------------------
B. Time, Place, and Regulation of Elections
Sec. 3. State and Federal Jurisdiction over House Elections
The U.S. Constitution divides jurisdiction over elections to the
House between the House and the states. Article I, section 4, clause 1,
provides: ``The Times, Places, and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or
alter such Regulations.''(1) In practice, this concurrent
jurisdiction over House elections has been resolved in favor of the
states with respect to the administration of the elections themselves
and the procedures for conducting them, while the House has maintained
the authority to review (and in some cases override) actions by the
states. Ultimately, the House has plenary authority, under the
Constitution,(2) to judge which individuals have been
properly elected to its membership.
---------------------------------------------------------------------------
1. House Rules and Manual Sec. Sec. 42-44 (2021).
2. U.S. Const. art. I, Sec. 5 (``Each House shall be the Judge of the
Elections, Returns and Qualifications of its own Members . .
.'').
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The Supreme Court has held that Congress's power to prescribe
regulations for the conduct of congressional elections is
``comprehensive'' and that it is within the power of Congress to
provide ``a complete code for congressional elections.''(3)
Despite this vast authority to regulate elections to the House, the
House has traditionally deferred to the states with respect to the
administration of such elections (including the validity of ballots,
recount procedures, and similar matters). Ultimately, the House has the
ability to refuse to seat Members-elect where state election procedures
are considered deficient.(4)
---------------------------------------------------------------------------
3. Smiley v. Holm, 285 U.S. 355, 366 (1932).
4. For more on election contests generally, see Deschler's Precedents
Ch. 9; and Precedents (Smith) Ch. 9.
---------------------------------------------------------------------------
Under the Constitution, voters in House elections must meet the
qualifications that the state requires for elections to the ``most
numerous branch'' of the state legislature.(5) In the
earliest years of the republic, states would often mandate property
requirements as a qualification for voting, but such conditions have
long since been eliminated. Although courts have held that states may
restrict the franchise in certain ways (for example, by requiring the
absence of a criminal record to vote), states do not have unfettered
discretion in this area, and must abide by other voter qualification
provisions of the Constitution. For example, the 15th, 19th, 24th, and
26th amendments to the Constitution each impose restrictions on the
ability of states to limit the franchise.(6)
---------------------------------------------------------------------------
5. U.S. Const. art. I, Sec. 2.
6. The 15th Amendment states that the right to vote may not be denied
or abridged based on ``race, color, or previous condition of
servitude'' of the citizen. Similar language in the 19th
Amendment eliminated restrictions based on sex, while the 26th
Amendment expanded the franchise to anyone 18 years of age or
older. The 24th Amendment prohibited denying the right to vote
for failure to pay a poll tax.
---------------------------------------------------------------------------
In addition to these constitutional protections regarding the right
to vote, Congress has enacted a variety of civil rights laws designed
to safeguard the ability of citizens to exercise the
franchise.(7) These laws provide Federal remedies for
individuals whose right to vote was impeded or denied by their state or
local governments. For example, section 5 of the Voting Rights Act of
1965(8) required covered jurisdictions to obtain
preclearance from either the Attorney General or U.S. District Court
for the District of Columbia before implementing any changes to state
voting procedures, in order to ensure that such changes were not made
to discriminate against particular groups of voters. In recent decades,
laws such as the Help America Vote Act(9) have been enacted
to provide states with Federal assistance in conducting their
elections, particularly technical assistance with electronic voting
equipment and other resources to help secure the integrity of the
electoral process.
---------------------------------------------------------------------------
7. See, e.g., the Civil Rights Act of 1870 (16 Stat. 140); the Civil
Rights Act of 1957 (P.L. 85-315, 71 Stat. 634); the Civil
Rights Act of 1964 (P.L. 88-352, 78 Stat. 241); and the Voting
Rights Act of 1965 (P.L. 89-110, 79 Stat. 437).
8. 52 U.S.C. Sec. 10304. In 2013, the Supreme Court held that the
coverage formula in section 4 of the Voting Rights Act was
unconstitutional, resulting in the inability to enforce the
preclearance requirements of section 5. Shelby County v.
Holder, 570 U.S. 529 (2013).
9. 52 U.S.C. Sec. Sec. 20901 et seq.
---------------------------------------------------------------------------
Virtually all states require eligible voters to first register and
be placed on the voting rolls before being permitted to cast
votes.(10) At the Federal level,(11) Congress
enacted the National Voter Registration Act(12) in 1993 to
require greater access to registration services (for example, by
requiring states to provide voter registration materials at social
service agencies). That act also permits registration via Federal form
and prohibits removing voters from registration lists in certain
circumstances.(13)
---------------------------------------------------------------------------
10. North Dakota is the only state that does not require voters to
register for Federal or state elections. Many states provide
for automatic registration, and/or the ability to register on
the same day as the election.
11. For jurisdiction over voter registration in Federal elections, see
Deschler's Precedents Ch. 8 Sec. 6 (``congressional authority
to preempt state regulation extends to the registration
process'').
12. 52 U.S.C. Sec. Sec. 20501 et seq.
13. See Federal Role in Voter Registration: the National Voter
Registration Act of 1993 and Subsequent Developments, CRS
Report R45030 (May 11, 2022).
---------------------------------------------------------------------------
Congress has also enacted statutes designed to improve
accessibility, both in the registration process and at state polling
places. The Voting Accessibility for the Elderly and Handicapped Act,
originally passed in 1984, requires states to provide accommodations at
polling sites and registration locations for disabled or elderly
voters.(14) Assistance and support for citizens overseas
(particularly members of the military) to exercise their right to vote
is provided by the Uniformed and Overseas Citizens Absentee Voting Act
(most recently amended in 2009 by the Military and Overseas Voter
Empowerment Act).(15)
---------------------------------------------------------------------------
14. 52 U.S.C. Sec. Sec. 20101 et seq. The Americans with Disabilities
Act (42 U.S.C. Sec. Sec. 12101 et seq.), while not directly
concerned with voting procedures, has been interpreted by
Justice Department regulations as encompassing accessibility
issues at polling places. The Justice Department routinely
publishes an ``ADA Checklist for Polling Places'' to assist
states with compliance.
15. 52 U.S.C. Sec. Sec. 20301 et seq.
---------------------------------------------------------------------------
Federal regulation of state election procedures extends beyond
general elections to encompass party primaries as well.(16)
As with state laws regarding the general election, Congress typically
defers to the states to establish appropriate procedures for the
conduct of primary elections. However, Congress has the authority to
make laws that supersede such procedures.
---------------------------------------------------------------------------
16. See Deschler's Precedents Ch. 8 Sec. Sec. 7.2-7.5.
---------------------------------------------------------------------------
Where Congress has asserted its role in regulating elections
administered by the states, it has typically been to ensure that states
conduct elections in compliance with their own procedures or to
standardize procedures across states where necessary.(17)
Ultimately, the House's sole authority to judge who has been properly
elected to its membership provides a mechanism by which a state's
administration of an election may be reviewed. Election contests may be
brought in the House, either pursuant to its inherent authority under
the Constitution or pursuant to the procedures of the Federal Contested
Elections Act.(18) Investigations made while evaluating a
contested election may involve an examination of the conduct of state
election administrators, state election statutes, and state judicial
opinions interpreting such statutes.(19)
---------------------------------------------------------------------------
17. See Deschler's Precedents Ch. 8 Sec. 5 (``. . . congressional
regulation [of congressional elections] has been directed
largely towards the failure of the states to ensure the
regularity of elections under their own state laws.'').
18. See Precedents (Smith) Ch. 9.
19. Id.
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With respect to nonvoting Delegates or Resident Commissioners who
represent nonstate areas of the United States, the election of such
individuals proceeds according to the statutes that create those
positions.(20) There is no constitutional provision
conferring jurisdiction over such elections to the territories,
commonwealths, or districts themselves--only statutory provisions that
may be altered by law at any time. As a result, Congress has a greater
ability to impose specific requirements for the election of Delegates
and Resident Commissioners than it does for the election of
Members.(21)
---------------------------------------------------------------------------
20. See 48 U.S.C. Sec. Sec. 891-894 (Resident Commissioner from Puerto
Rico); 2 U.S.C. Sec. Sec. 25a (Delegate from the District of
Columbia); 48 U.S.C. Sec. Sec. 1711-1715 (Delegate from Guam);
48 U.S.C. Sec. Sec. 1711-1715 (Delegate from the U.S. Virgin
Islands); 48 U.S.C. Sec. Sec. 1731-1735 (Delegate from American
Samoa); and 48 U.S.C. Sec. Sec. 1751-1757 (Delegate from the
Northern Mariana Islands).
21. Parliamentarian's Note: The statutes creating the different
Delegate and Resident Commissioner positions typically provide
some amount of discretion to the territory or commonwealth to
administer the election as it chooses. The House will generally
defer to such laws in judging election contests in the same
manner that it defers to state law. See, e.g., Deschler's
Precedents Ch. 8 Sec. 5.5. See also Precedents (Smith) Ch. 9
Sec. 20.2.
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Sec. 4. Vacancies; Continuity of Operations
The resignation of a Member from the House causes a vacancy in that
congressional seat.(1) The resigning Member submits their
resignation to an appropriate state official (most often the Governor),
and such correspondence is laid before the House for the information of
other Members. Members have sometimes resigned prospectively, i.e.,
with a future effective date for the resignation, in which case the
vacancy occurs when the resignation becomes effective.
---------------------------------------------------------------------------
1. For resignations generally, see Deschler's Precedents Ch. 37; and
Precedents (____) Ch. 37.
---------------------------------------------------------------------------
A vacancy in a House seat may also arise due to the death or
incapacity of the Member,(2) a Member-elect declining to
take the seat,(3) the exclusion of a Member-elect from the
House,(4) or the expulsion of a Member.(5)
Because only the House has the constitutional authority to decide who
is entitled to its membership, the House is the ultimate arbiter of
when a vacancy exists in any of its seats. The House has been informed
of the presumptive death of a Member-elect, and responded by declaring
a vacancy in his congressional seat.(6) Where a Member
became incapacitated (falling into a coma following a heart attack) but
was reelected to the next Congress, the House adopted a privileged
resolution declaring the seat vacant.(7) A vacancy may also
arise where the House does not receive a certificate of election from
relevant state officials, and no individual claims a right to the
seat.(8)
---------------------------------------------------------------------------
2. See Deschler's Precedents Ch. 38; and Precedents (____) Ch. 38.
There have been instances where a candidate died just prior to
the general election, but nevertheless succeeded in winning the
seat posthumously. For example, Rep. Patsy Mink of Hawaii died
before the general election for the 108th Congress, but was
nevertheless elected. See Deschler's Precedents Ch. 38
Sec. Sec. 2.5, 5.7. The resulting vacancy was filled by special
election.
3. See, e.g., 1 Hinds' Precedents Sec. 415 (Member-elect never took
his seat in the House, having been elected to the Senate). See
also 2 Hinds' Precedents Sec. Sec. 1230-1232, and 1234. There
have also been historical instances of vacancies being created
when a Member of the House accepts a constitutionally-
incompatible office. See, e.g., 1 Hinds' Precedents Sec. 486.
For more on incompatible offices generally, see Deschler's
Precedents Ch. 7 Sec. Sec. 13, 14; and Precedents (Smith) Ch. 7
Sec. 4.
4. For exclusion generally, see Deschler's Precedents Ch. 12 Sec. 14;
and Precedents (____) Ch. 12.
5. For expulsion generally, see Deschler's Precedents Ch. 12 Sec. 13;
and Precedents (____) Ch. 12.
6. Rep. Nick Begich of Alaska and Rep. Hale Boggs of Louisiana were
among the passengers of an airplane that disappeared between
Anchorage and Juneau, on October 16, 1972. Based on an Alaskan
judicial order declaring the presumptive death of Rep. Begich,
the Governor of Alaska declared a vacancy and scheduled a
special election to fill Begich's seat. Louisiana authorities
took no action with regard to the status of Boggs' seat. The
House subsequently adopted House Resolution 1, declaring a
vacancy and providing for a funeral delegation to attend
memorial services for the late Rep. Boggs. H. Res. 1, 119 Cong.
Rec. 15-16, 93d Cong. 1st Sess. (Jan. 3, 1973). See also
Deschler's Precedents Ch. 38 Sec. Sec. 2.15-2.17.
7. See H. Res. 80, 127 Cong. Rec. 2916-17, 97th Cong. 1st Sess. (Feb.
24, 1981). The Member-elect (Gladys Noon Spellman of Maryland)
never regained consciousness and passed away on June 19, 1988.
See Deschler's Precedents Ch. 38 Sec. 2.17.
8. Parliamentarian's Note: At the beginning of the 116th Congress, no
certificate of election was issued to either of the candidates
from the Ninth District of North Carolina, due to alleged
ballot fraud. See 165 Cong. Rec. H1 [Daily Ed.], 116th Cong.
1st Sess. (Jan. 3, 2019). Later that Congress, state officials
communicated to the House that a special election would be held
to fill the vacancy. See 165 Cong. Rec. H2736 [Daily Ed.],
116th Cong. 1st Sess. (Mar. 14, 2019). At the beginning of the
117th Congress, no certificate of election had been received
for the 22nd District of New York (due to the closeness of the
election and ongoing, state-level recount procedures). 167
Cong. Rec. H1 [Daily Ed.], 117th Cong. 1st Sess. (Jan. 3,
2021). The election was finally certified on February 5, 2021,
and the Member-elect was sworn in on February 11, 2021. 167
Cong. Rec. H491-H492 [Daily Ed.], 117th Cong. 1st Sess. (Feb.
11, 2021). See also House Rules and Manual Sec. 22a (2021).
---------------------------------------------------------------------------
When a vacancy occurs in a House seat, a new Member is elected via
special election.(9) Special elections proceed according to
the laws of the individual states. While the timing of general
elections is a matter of Federal law, the timing of special elections
is determined by relevant state laws. If the vacancy occurs within a
certain numbers of days of the next regular election, state law may
provide that the special election to fill the vacancy occur at the same
time as the general election for the next Congress.(10)
---------------------------------------------------------------------------
9. Parliamentarian's Note: This is to be contrasted with vacancies
that occur in Senate seats, which are filled by appointment by
the state's Governor. U.S. Const. amend. XVII.
10. Parliamentarian's Note: Some state laws have special rules for
conducting special elections that occur close to the next
regularly scheduled general election. For example, in 1994,
Oklahoma law provided that any vacancy that occurred after
March 1 of an election year would be filled by the winner of
the general election in November. An Oklahoma Member (Rep.
James M. Inhofe) resigned his seat on November 15, 1994, in
order to take a seat in the Senate. Mr. Steve Largent had
already won his election to the same seat for the upcoming
104th Congress. Under Oklahoma law, the Governor of Oklahoma
had the ministerial duty of ``appointing'' Mr. Largent to the
vacant seat for the 103d Congress, following the resignation of
Rep. Inhofe. Although state Governors do not have the authority
to appoint persons to vacant House seats, the House deferred to
state law and treated the Oklahoma procedures as a valid
election of Mr. Largent to a seat in the 103d Congress. A
privileged resolution was offered on November 29, 1994, to
authorize the Speaker to administer the oath of office to Mr.
Largent, and referring the question of final right to the seat
to the Committee on House Administration. See H. Res. 585, 140
Cong. Rec. 29585-86, 103d Cong. 2d Sess. (Nov. 29, 1994). See
also Precedents (Wickham) Ch. 2 Sec. 3.9.
---------------------------------------------------------------------------
A special election proceeds in the same manner as a general
election. The state certifies the winner of the election, and issues a
certificate of election to the winning candidate.(11) The
certificate is then forwarded to the Clerk of the House, and the
Member-elect appears to take the oath of office. The oath is typically
administered by the Speaker of the House, though a Speaker pro tempore
may also perform this function.(12)
---------------------------------------------------------------------------
11. See Precedents (Wickham) Ch. 2 Sec. Sec. 3.5, 3.6. Special
elections may also become the subject of election contests in
the same manner as general elections. See Deschler's Precedents
Ch. 9 Sec. Sec. 10.17, 10.18.
12. See Deschler's Precedents Ch. 6 Sec. 12.8; and Precedents (Wickham)
Ch. 6 Sec. Sec. 11, 12.4.
---------------------------------------------------------------------------
Pursuant to clause 5(d) of rule XX,(13) when a vacancy
arises or is filled, the Chair announces to the House the new ``whole
number'' of the House. The whole number of the House is the number of
Members ``chosen, sworn, and living, and whose membership in the House
has not been terminated by resignation or by action of the
House.''(14)
---------------------------------------------------------------------------
13. House Rules and Manual Sec. 1024b (2021).
14. Rule XX, clause 5(c)(7)(B); House Rules and Manual Sec. 1024a
(2021).
---------------------------------------------------------------------------
Following the terrorist attacks of September 11, 2001, the House
undertook several studies aimed at developing procedures that would be
used to ensure the continuity of House operations in the wake of a
catastrophic event.(15) One of the overarching concerns was
how the House should respond to a mass casualty event where a
substantial portion of its membership had been either killed or
incapacitated. The most significant parliamentary question with regard
to such a circumstance was how to address the Constitution's quorum
requirements in the event that a regular (majority) quorum could not be
formed.
---------------------------------------------------------------------------
15. In May 2002, the House established a bipartisan Continuity of
Congress Working Group to investigate what changes should be
made to House rules to account for catastrophic circumstances.
For remarks by the cochair of the Working Group, see 148 Cong.
Rec. 22676-77, 107th Cong. 2d Sess. (Nov. 14, 2002). For
remarks by the chair of the Committee on Rules regarding these
continuity of operations issues, see 150 Cong. Rec. 19033-41,
108th Cong. 2d Sess. (Sept. 22, 2004).
---------------------------------------------------------------------------
At the beginning of the 109th Congress, the House adopted a new
rule to address these issues. Clause 5(c) of rule XX provides
procedures should the House find itself without a quorum due to
``catastrophic circumstances.'' This rule establishes the concept of a
``provisional number of the House'' where a quorum based on the whole
number of the House cannot be obtained. The provisional number of the
House is determined on the basis of an extended call of the House
(lasting multiple days) that reveals the inability to assemble a
regular quorum. Members who are able to respond to said quorum call
constitute the provisional number of the House, and the Constitution's
quorum requirements are interpreted with reference to that provisional
number.(16)
---------------------------------------------------------------------------
16. Parliamentarian's Note: When the provisional quorum rule was first
adopted, some Members questioned whether the rule was
consistent with the Constitution's quorum requirements. Rep.
Brian Baird of Washington attempted to raise a ``constitutional
point of order'' against the resolution adopting rules for the
109th Congress, but the Speaker declined to entertain the point
of order. As an alternative, Rep. Baird raised the question of
consideration with respect to the resolution, which was agreed
to by the House. See 151 Cong. Rec. 44-46, 109th Cong. 1st
Sess. (Jan. 4, 2005).
---------------------------------------------------------------------------
A House resolution, adopted in 2002 and sent to the chief executive
official of each state, encouraged each state to examine the policies
and procedures for conducting special elections so that vacancies ``may
be filled in a timely fashion.''(17) Some states in response
reported information about their special election practices to the
House via memorial.(18)
---------------------------------------------------------------------------
17. H. Res. 559, 148 Cong. Rec. 18919-25, 107th Cong. 2d Sess. (Oct. 2,
2002).
18. See 148 Cong. Rec. 22946, 107th Cong. 2d Sess. (Nov. 17, 2002).
---------------------------------------------------------------------------
Congress also addressed the possibility of numerous vacancies in
House seats though changes in the statutory law regarding special
elections.(19) In ``extraordinary circumstances'' (defined
as over 100 vacancies in the House), the statute authorizes expedited
filling of such vacancies via special election.(20) Such
special elections ``shall take place not later than 49 days'' after the
Speaker of the House has announced the existence of the required
vacancies.(21) A joint resolution proposing an amendment to
the Constitution regarding the filling of House vacancies in
extraordinary circumstances was considered in the House, but failed to
reach the necessary two-thirds supermajority for
passage.(22)
---------------------------------------------------------------------------
19. See P.L. 109-55, 119 Stat. 588, codified at 2 U.S.C. Sec. 8.
20. 2 U.S.C. Sec. 8(b)(4)(A).
21. 2 U.S.C. Sec. 8(b)(2).
22. H.J. Res. 83, 150 Cong. Rec. 11287-305, 108th Cong. 2d Sess. (June
2, 2004). In 1960, the House considered a Senate measure
proposing to amend the Constitution to provide a mechanism for
state officials to fill vacancies in the House in certain
circumstances. However, the House amended the Senate measure to
remove that provision (the remaining text would later be
ratified as the 23rd Amendment). See S.J. Res. 39, 106 Cong.
Rec. 12571, 86th Cong. 2d Sess. (June 14, 1960). For an earlier
constitutional amendment passed by the Senate regarding filling
House vacancies (but not considered by the House), see S.J.
Res. 39, 100 Cong. Rec. 7658-69, 83d Cong. 2d Sess. (June 4,
1954).
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C. Campaign Practices
Sec. 5. Election Campaigns and Campaign Financing Regulation
The constitutional authorities described in the preceding sections
of this chapter allow Congress to regulate the time, place, and manner
of elections to the House, and give the House the exclusive right to
judge the elections and returns of its own Members. The Supreme Court
has further clarified that these constitutional authorities over
election processes extend to issues regarding voter registration,
primary elections, and election campaign practices.(1) This
last category is the subject of this section, with an emphasis on the
regulation of campaign financing of House elections.
---------------------------------------------------------------------------
1. Smiley v. Holm, 285 U.S. 355, 366 (1932).
---------------------------------------------------------------------------
Although election campaigns have been a part of American democracy
since its founding, it was not until the 20th century that the first
Federal laws were passed regulating the financing of election
campaigns.(2) One of the earliest of such laws was the
Tillman Act of 1907,(3) which prohibited corporations from
contributing to political campaigns. The National Publicity
Act(4) followed in 1910, instituting financial disclosure
requirements on political parties, and limiting the amount of money
such parties could contribute to House elections. Amendments to these
laws were consolidated into a revision of campaign finance laws with
the passage of the Federal Corrupt Practices Act of 1925.(5)
---------------------------------------------------------------------------
2. ``Prior to 1890 no law had been passed in the United States
regulating the use of money in elections. Indeed, until the
presidential election of 1904 the subject of campaign funds had
not received any serious public consideration.'' James K.
Pollock, Jr., Party Campaign Funds (A.A. Knopf 1926), p. 7.
3. P.L. 59-36, 34 Stat. 864. A similar restriction on contributions
from unions was passed in 1947, over the veto of President
Harry Truman. See P.L. 80-101, 61 Stat. 136.
4. P.L. 61-274, 36 Stat. 822. This act was also known as the Federal
Corrupt Practices Act of 1910.
5. P.L. 68-506, 43 Stat. 1070. For earlier treatment of campaign laws
under this act, including relevant court cases and election
contests, see 6 Cannon's Precedents Sec. Sec. 67-79.
---------------------------------------------------------------------------
In 1928, the House established its first ``special committee'' to
investigate campaign practices and campaign expenditures.(6)
The committee was to report on ``the campaign expenditures of the
various presidential candidates, vice presidential candidates,
senatorial candidates, and candidates for the House of Representatives
in both parties, the names of the persons, firms, or corporations
subscribing, the amount contributed, the method of expenditure of said
sums, and all facts in relation thereto, not only as to the
subscriptions of money and expenditures thereof but as to the use of
any other means or influence, including the promise or use of
patronage, and all other facts in relation thereto that would not only
be of public interest but would aid the Congress in any necessary
remedial legislation.''(7) This committee was further
provided with subpoena authority and other investigative powers.
---------------------------------------------------------------------------
6. H. Res. 232, 69 Cong. Rec. 10688, 70th Cong. 1st Sess. (May 29,
1928).
7. Id.
---------------------------------------------------------------------------
Similar committees were formed by the House in each successive
Congress for over 40 years.(8) Although the investigative
scope of these committees varied over time, they were primarily focused
on collecting data on campaign expenditures--the individuals, groups,
and other entities contributing to election campaigns, the amounts of
such contributions, the amount of spending by candidates for House
seats, etc. These committees were also charged with investigating
whether any Federal laws regarding campaign financing had been
violated. On occasion, information from such special committees would
be found to have bearing on an election contest pursued with regard to
a particular House election.(9) Jurisdiction over the same
campaign issues was formally given to the Committee on House
Administration in the 94th Congress.(10)
---------------------------------------------------------------------------
8. See Deschler's Precedents Ch. 8 Sec. 14. See also ``Guide to the
Records of the United States House of Representatives at the
National Archives, 1789-1989: Bicentennial Edition,'' https://
www.archives.gov/legislative/guide/house/chapter-22.html (last
visited Aug. 25, 2022).
9. See Deschler's Precedents Ch. 8 Sec. Sec. 14.4-14.8.
10. See Deschler's Precedents Ch. 8 Sec. 10.10.
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Sec. 6. The Federal Election Commission
Prior to 1971, campaign financial disclosures for House Members
were required to be reported to the Clerk of the House. The Clerk,
however, had no method to enforce this requirement, and over time
compliance waned. Between 1971 and 1976, a series of statutory
enactments on the part of the legislative branch and constitutional
rulings on the part of the judicial branch laid the foundation for
current Federal regulation of election campaigns. In 1971, Congress
passed the Federal Election Campaign Act (FECA),(1)
repealing the earlier Federal Corrupt Practices Act. FECA initially
divided its enforcement powers among the Clerk of the House (for House
Members),(2) the Secretary of the Senate (for Senators), and
the Comptroller General of the General Accounting Office(3)
(for the presidential campaign). This structure was fundamentally
changed by the FECA amendments of 1974(4)--the law that
created the Federal Election Commission (FEC).
---------------------------------------------------------------------------
1. P.L. 92-225, 86 Stat. 3.
2. For precedents relating to the Clerk's role in campaign finance
regulation under the original 1971 act, see Deschler's
Precedents Ch. 8 Sec. Sec. 10.6-10.10.
3. Parliamentarian's Note: The General Accounting Office was
redesignated as the Government Accountability Office in 2004.
4. P.L. 93-443, 88 Stat. 1263.
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The FEC was empowered with enforcing the disclosure and expenditure
limits imposed by FECA. It was to be headed by six commissioners--two
to be appointed by the President, two to be appointed by the President
pro tempore of the Senate and two to be appointed by the Speaker of the
House.(5) The Clerk of the House and the Secretary of the
Senate were made ex officio, nonvoting members of the Commission. This
structure for the commission was challenged as impermissibly mixing
executive and legislative functions. The Supreme Court ultimately ruled
that the commission's appointment structure violated the Constitution's
principle of separation of powers.(6) Congress responded by
passing the FECA amendments of 1976.(7) This act introduced
a new organizational structure designed to pass constitutional
scrutiny. The new FEC, still with six commissioners, would be appointed
by the President with the advice and consent of the Senate. The act
further stipulated that no more than three commissioners may belong to
the same political party, and that most decisions of the commission
would require four votes to be adopted. This appointment and voting
structure was intended to foster independence and bipartisan decision-
making.(8)
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5. See Deschler's Precedents Ch. 8 Sec. 10.11.
6. See Buckley v. Valeo, 424 U.S. 1 (1976).
7. P.L. 94-283, 90 Stat. 475.
8. Parliamentarian's Note: Although the bipartisan nature of the
commission was designed to achieve fair and impartial
regulation of campaign laws, it often had the effect of
creating deadlock votes among the commissioners, where the
agreement of four commissioners could not be obtained and
action could not therefore be taken. Additionally, in recent
years, the FEC has sometimes lost its policymaking quorum due
to vacancies. This occurred in 2007, 2019, and 2020.
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The 1974 amendments to FECA contained contribution limits to
Federal campaigns, which restricted the amount of money that could be
given to candidates seeking Federal office. The Supreme Court, in the
same ruling that declared unconstitutional the FEC's original
appointment structure, held that such contribution limits violated the
First Amendment's right to free speech. Thus, the contribution limits
were also repealed in the 1976 amendment. Further amendments to the act
in 1979 simplified some of the act's reporting requirements and
prohibited the use of campaign funds for personal
purposes.(9)
---------------------------------------------------------------------------
9. P.L. 96-187, 93 Stat. 1339.
---------------------------------------------------------------------------
The FEC may issue regulations to enforce campaign finance laws.
Such regulations are subject to congressional disapproval via special
procedures contained in statute.(10) Following the revisions
to FECA made in 1979,(11) a disapproval resolution reported
by a committee of the House has priority on the floor, and a motion to
proceed to its consideration is deemed ``highly privileged'' under
House rules.(12)
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10. 52 U.S.C. Sec. 30111(d). Any ``rule, regulation, or form''
promulgated by the Commission must first be submitted to
Congress for its review. Pursuant to the original form of the
statute, either House of Congress could then disapprove of the
proposal within a specified time period. However, in 1983, the
Supreme Court held that these types of ``congressional veto''
procedures in statute were unconstitutional, thus prohibiting
the nullification of executive regulations by simple resolution
of one House of Congress or concurrent resolution of both
Houses. See Immigration and Naturalization Service v. Chadha,
462 U.S. 919 (1983). Thus, for the disapproval mechanism in the
FECA to be effective, it must be done via a joint resolution of
both Houses that is signed by the President.
11. P.L. 96-187, 93 Stat. 1339.
12. Parliamentarian's Note: Prior to the amendments of 1979, such
disapproval resolution had no special privilege in the House.
For an example of a disapproval resolution being considered
pursuant to a special order of business resolution prior to the
enactment of the 1979 amendments, see Deschler's Precedents Ch.
8 Sec. 10.12.
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Sec. 7. House Ethics Rules
The statutes described above represent the primary mechanism by
which the financing of congressional election campaigns is regulated.
Thus, the enforcement of campaign financing rules is principally the
role of executive branch entities, such as the Federal Election
Commission (FEC) and the Department of Justice. However, campaign-
related activities are, to a limited extent, also covered by House
ethics rules. These rules have long provided guidelines and
prohibitions regarding the use of campaign funds that are similar to
the statutory provisions described in preceding sections.
Although the Code of Official Conduct devotes comparatively little
attention to the issue of campaign financing relative to other matters,
several longstanding provisions do address the proper use of campaign
funds by Members. When the House first adopted its Code of Official
Conduct in the 90th Congress in 1968, it contained a provision
requiring Members to keep ``campaign funds separate from personal
funds.''(1) The same provision (with certain amendments) is
retained in the current House rules as clause 6 of rule
XXIII.(2) The Ethics Reform Act of 1989(3) made
additional changes to the Code of Official Conduct, including a
requirement that funds from campaign accounts may only be used for
``bona fide campaign or political purposes.''(4) Although it
is rare for campaign-related activity to become the subject of an
inquiry by the Committee on Ethics, there have been instances where
Members have been reprimanded,(5) or censured(6)
for failure to abide by either statutory or House ethics rules
regarding the disclosure of campaign financing and proper use of
campaign funds.(7)
---------------------------------------------------------------------------
1. H. Res. 1099, 114 Cong. Rec. 8802, 90th Cong. 2d Sess. (Apr. 3,
1968).
2. House Rules and Manual Sec. 1095 (2021).
3. P.L. 101-194, 103 Stat. 1716.
4. Rule XXIII, clause 6(c); House Rules and Manual Sec. 1095 (2021).
5. See Sec. Sec. 7.1-7.3, infra.
6. See Sec. 7.4, infra.
7. Parliamentarian's Note: It was alleged that Speaker James Wright of
Texas used campaign funds to produce a book from which he
derived royalties. Although other aspects of the book's
production and financing resulted in the Committee on Standards
of Official Conduct concluding that House ethics rules had been
breached, the committee concluded that no campaign funds were
used to produce the book. For more on the ethics case against
Speaker Wright (and his subsequent resignation of the
speakership), see Deschler's Precedents Ch. 37 Sec. 9.1 and
Precedents (Wickham) Ch. 6 Sec. 7.4.
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Sec. 7.1 A Member has been reprimanded for, inter alia, failure to
abide by campaign financing disclosure requirements, conversion of
campaign funds to personal use, and the misuse of official
resources for campaign purposes, in violation of House ethics rules
and applicable law.
On July 31, 2020,(8) the House adopted a privileged
report from the Committee on Ethics reprimanding a Member for filing
false campaign financing reports, failing to properly disclosure
campaign contributions, accepting impermissible campaign contributions,
converting campaign funds for personal use, misusing official resources
for campaign purposes, and pressuring official staff to perform
campaign work:
---------------------------------------------------------------------------
8. 166 Cong. Rec. H4194-H4197 [Daily Ed.], 116th Cong. 2d Sess.
---------------------------------------------------------------------------
IN THE MATTER OF REPRESENTATIVE DAVID SCHWEIKERT OF ARIZONA
Mr. [Theodore] DEUTCH [of Florida]. Madam Speaker, by direction
of the Committee on Ethics, I offer a privileged resolution (H.
Res. 1074) in the matter of Representative David Schweikert, and
ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 1074
Resolved, (1) That the House adopt the Report of the Committee on Ethics
dated July 30, 2020, In the Matter of Allegations Relating to
Representative David Schweikert.
The SPEAKER pro tempore.(9) The gentleman from
Florida is recognized for 1 hour.
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9. Diana DeGette (CO).
---------------------------------------------------------------------------
Mr. DEUTCH. Madam Speaker, I yield an equal amount of time to
the gentleman from Texas (Mr. Marchant), the ranking member of the
Committee on Ethics, for purposes of debate only, and I ask
unanimous consent that he be permitted to control that time.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Florida?
There was no objection.
Mr. DEUTCH. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, as chairman of the Committee on Ethics, I rise
in support of a resolution for Representative David Schweikert of
Arizona to be reprimanded by the House of Representatives.
One of our most basic obligations as Members of Congress is to
adhere to the principle that public office is a public trust. To
uphold that trust and to maintain civic confidence in the integrity
of the body, we, as Members, have bound ourselves by certain
standards of official conduct.
Our Constitution vests the House with the responsibility for
self-discipline and self-accountability to those ethical standards.
The Committee on Ethics, whose membership is evenly divided between
Republicans and Democrats and whose work is supported by
nonpartisan staff, is charged with: enforcing the laws and rules
governing our official conduct; investigating allegations that
those laws and rules have been violated; and, where appropriate,
making recommendations to the House for the disposition of such
investigations. We are here today to fulfill that charge.
Our committee began reviewing allegations involving
Representative Schweikert after public reports detailed potential
misconduct by him and his former chief of staff, who is no longer
employed by the House.
In 2018, the Office of Congressional Ethics sent two separate
referrals regarding Representative Schweikert to the Ethics
Committee for further review. Those referrals included: troubling
allegations of systemic campaign finance violations and reporting
errors by Representative Schweikert's authorized campaign
committees; allegations of misuse of his Members' Representational
Allowance, or MRA, for unofficial purposes; and evidence that he
pressured his official staff to perform campaign work.
During the 115th Congress, the committee impaneled an
investigative subcommittee to lead a bipartisan review of these
allegations. At the start of the 116th Congress, the committee
reestablished that evenly divided bipartisan panel and appointed
Representative Dean Phillips of Minnesota as its chair, along with
Representative Bill Flores of Texas, Representative Jamie Raskin of
Maryland, and Representative John Katko of New York.
The subcommittee, which was capably supported by the
committee's professional, nonpartisan investigative staff, took
testimony from 18 witnesses and reviewed several hundred thousand
pages of documents. The investigative subcommittee also heard from
Representative Schweikert himself and considered his views and
interpretation of the evidence without prejudgment.
Upon completing its exhaustive investigation, the subcommittee
unanimously concluded that there was substantial reason to believe
that Representative Schweikert's conduct violated various House
rules, the Code of Ethics for Government service, Federal laws, and
other applicable standards.
On June 30, 2020, the investigative subcommittee unanimously
adopted a Statement of Alleged Violations, or SAV, detailing 11
separate violations and the facts giving rise to those violations.
As set forth in counts 1 through 6 of the SAV, between 2010 and
2017, Representative Schweikert's campaign committees erroneously
disclosed or failed to disclose hundreds of thousands of dollars in
loans that were made or obtained for the benefit of his
congressional campaigns, including a fictional $100,000 loan that
purported to be sourced from personal funds. His campaign
committees also failed to report or falsely reported hundreds of
thousands of dollars in campaign disbursements and contributions.
For those cumulative and sustained acts, Representative
Schweikert violated: Federal Election Commission Act reporting
requirements; clause 1 of the Code of Official Conduct of House
rule XXIII, which requires Members of this House to behave at all
times in a manner that reflects creditably on this House; and the
Code of Ethics for Government Service.
Count 7 addresses conduct by Representative Schweikert's former
chief of staff, who made hundreds of thousands of dollars in
impermissible outlays on behalf of Representative Schweikert's
campaign committees over a 7-year period. Even though these outlays
were eventually reimbursed by the campaign, they amounted to
impermissible campaign contributions under Federal law.
For knowing of this practice as it was ongoing but failing to
prevent it, Representative Schweikert violated clause 1 of House
rule XXIII and the Code of Ethics for Government Service.
As detailed in count 8, between 2011 and 2018, Representative
Schweikert converted campaign funds for personal purposes,
primarily by accepting personal items from several staff members
that were later reimbursed using campaign funds.
The conduct violated: Federal election law and regulations;
clause 6 of House rule XXIII, which states campaign funds must be
kept separate and cannot be converted to personal use; and the Code
of Ethics for Government Service.
Count 9 addresses Representative Schweikert's misuse of
official resources--including official funds, staff time, and
congressional office space--for unofficial and campaign purposes
between 2011 and 2017.
By misusing his MRA and failing to provide necessary oversight
over its use, Representative Schweikert violated 31 U.S. Code,
section 1301, clause 1 of House rule XXIII, and the Code of Ethics
for Government Service.
As set forth in count 10, Representative Schweikert violated
clause 1 of House rule XXIII by pressuring his former chief of
staff to fundraise for his campaigns and fostering an office
environment in which congressional staff felt pressured to perform
campaign work.
Finally, as detailed in count 11, Representative Schweikert
violated clause 1 of House rule XXIII by failing to exercise the
proper candor and due diligence necessary in responding to these
allegations, including a finding by this investigate subcommittee
that certain aspects of his testimony lacked credibility.
Under House and committee rules, a Member confronted with a
Statement of Alleged Violations may either challenge the
allegations with a public hearing of an adjudicatory subcommittee
or, instead, reach a negotiated resolution with the investigative
subcommittee.
In this instance, Representative Schweikert, with the
assistance of his counsel, negotiated a resolution in which he
admitted to all 11 counts in a Statement of Alleged Violations. He
also agreed to waive his rights to any additional process,
including his right to an adjudicatory hearing.
For his misconduct, Representative Schweikert agreed to accept
a sanction of reprimand by the House as well as a $50,000 fine to
be paid to the United States Treasury.
The investigative subcommittee carefully considered whether
censure, rather than a reprimand, befitted Representative
Schweikert's egregious conduct. Ultimately, the bipartisan
subcommittee agreed to this negotiated sanction of a monetary fine
and public reprimand by his colleagues, in large part because of
Representative Schweikert's willingness to accept responsibility
for his own misconduct.
On July 29, our bipartisan Ethics Committee unanimously voted
to adopt the subcommittee's recommendations and transmit to the
House the resolution currently under consideration. Yesterday
morning, Ranking Member Marchant and I filed our committee's
report, together with the report of the investigative subcommittee,
accompanying exhibits, Representative Schweikert's responsive
views, and the materials provided to the committee by the Office of
Congressional Ethics in its referrals. I urge all of my colleagues,
if they have not done so already, to carefully read those
materials. . . .
I encourage all Members of this House, all candidates and
Congressional staff, to avail themselves of our committee's
resources to help them satisfy their ethical obligations and to
avoid the mistakes like those by Representative Schweikert that
bring us to the floor of the House today.
Madam Speaker, I urge by colleagues to vote ``aye'' as well,
and I yield back the balance of my time.
The SPEAKER pro tempore. Without objection, the previous
question is ordered.
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 7.2 A Member has been reprimanded for, inter alia, misusing
official resources for campaign purposes, and pressuring official
staff to perform campaign work, in violation of House ethics rules
and applicable law.
On August 2, 2012,(10) the House adopted a privileged
report from the Committee on Ethics reprimanding a Member for, inter
alia, converting campaign funds for personal use, and pressuring
official staff to perform campaign work:
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10. 158 Cong. Rec. 13191-93, 13195, 112th Cong. 2d Sess.
---------------------------------------------------------------------------
IN THE MATTER OF REPRESENTATIVE LAURA RICHARDSON OF CALIFORNIA
Mr. [Josiah] BONNER, Jr. [of Alabama]. Mr. Speaker, by
direction of the Committee on Ethics, I offer a privileged
resolution and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 755
Resolved, That the House adopt the Report of the Committee on Ethics dated
August 1, 2012, In the Matter of Representative Laura Richardson.
The SPEAKER pro tempore.(11) The gentleman from
Alabama is recognized for 1 hour.
---------------------------------------------------------------------------
11. Steve Womack (AR).
---------------------------------------------------------------------------
Mr. BONNER. Mr. Speaker, I yield an equal amount of time in
this debate to a lady with whom I am honored to serve, the
gentlewoman from California (Ms. Sanchez), the ranking member of
the Committee on Ethics, for purposes of debate only, and I ask
unanimous consent that she be permitted to control that time.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Alabama?
There was no objection.
Mr. BONNER. Mr. Speaker, I yield myself such time as I may
consume.
As chairman of the Committee on Ethics, I rise in support of a
resolution before us today which calls for a reprimand for
Representative Laura Richardson of California. . . .
Mr. Speaker, while the full committee report, the investigative
subcommittee report, Representative Richardson's responsive views,
and all exhibits were filed by the ranking member and me yesterday
morning, and have been available to the House and to the American
people since that time, here now, in summary, are the seven counts
of violation:
First, Representative Richardson violated the Purpose Law,
title 31, section 1301, United States Code, by using official
resources of the House for campaign, political, personal, and other
nonofficial purposes.
Second, Representative Richardson violated House rule XXIII by
retaining a full-time employee in her district office who did not
perform duties commensurate with their compensation.
Third, Representative Richardson violated House rule XXIII by
behaving in a manner that did not reflect credibly upon this House
when she unlawfully used House resources for nonofficial purposes.
Fourth, Representative Richardson violated House rule XXIII by
behaving in a manner that did not reflect credibly upon the House
when she improperly compelled members of her official staff to do
campaign work by threatening, attempting to intimidate, directing
or otherwise pressuring them to do such work.
Fifth, Representative Richardson violated House rule XXIII by
behaving in a manner that did not reflect credibly upon the House
when she obstructed and attempted to obstruct the investigation of
this committee into these allegations.
Sixth, Representative Richardson violated clause 2 of the Code
of Ethics for Government Service by failing to uphold the laws and
legal regulations discussed above and being a party to their
evasion.
Seventh, Representative Richardson violated House rule XXIII by
failing to abide by the letter and spirit of House and committee
rules.
The record should note that anytime a Member is confronted with
a Statement of Alleged Violation, he or she has the option of
challenging those allegations with a public hearing of an
adjudicatory subcommittee or, in the case of Representative
Richardson, negotiating a resolution with the investigative
subcommittee.
In this instance, Representative Richardson negotiated a
resolution in which she admitted to all seven counts in the
Statement of Alleged Violation and has waived her rights to any
additional process in this matter, including waiving her right to
an adjudicatory hearing. Representative Richardson has also agreed
to accept a reprimand by the House as well as a $10,000 fine to be
paid out of personal funds to the U.S. Treasury no later than
December 1, 2012.
In the history of our country, five Members have been expelled
from Congress; 23 Members have been censured; and eight Members
have been reprimanded. Representative Richardson negotiated--and we
recommend--the sanction of reprimand.
The investigative subcommittee unanimously adopted a report
recommending a resolution including these terms to the full
committee, and on July 31, 2012, the full committee adopted the
recommendations of the subcommittee. . . .
Mr. [Charles] DENT [of Pennsylvania]. I want to thank the
gentleman from Alabama and the gentlelady from California for their
leadership of the committee.
As a member of the Committee on Ethics and as the chairman of
the investigative subcommittee, or ISC, in this matter, I do rise
in support of the resolution, which calls for the adoption of this
committee's report and will serve as a reprimand of Representative
Laura Richardson for her conduct and will impose upon her a $10,000
fine. . . .
Here is a summary of the findings of the report and why the
committee recommends that Representative Richardson be reprimanded
by the House for her conduct.
As discussed fully in the investigative subcommittee report,
fundamentally, Representative Richardson failed to acknowledge the
boundaries between the official and political realms. On page 59 of
the ISC report, it reads in part:
This case is about boundaries. The House entrusts Members with a great
deal of discretion over a large amount of taxpayer resources . . . This
constructive trust requires Members to delineate between the official, the
political, and the personal in ways that are at times quite tidy and at
others tangled . . . Representative Richardson did not acknowledge these
boundaries. She acted to consume the resources endowed to her as a Member
for whatever purpose suited her whims at the moment, be they official acts,
her reelection, or her person needs . . . The ISC discovered significant
evidence suggesting that her wrongdoing continued even after learning that
the committee was investigating her.
If the committee fails to exact a steep price for such conduct, the
message is one of a set of rules with a toothless enforcement mechanism.
Representative Richardson's misconduct included that, first,
she improperly compelled or coerced members of her staff to do
campaign work. Representative Richardson required the staff of her
district office in Long Beach, California, to perform campaign work
each weeknight from approximately 6:30 p.m. through 9 p.m. during
at least the 2 months prior to the 2010 primary and general
elections. This practice alone accounted for hundreds of hours of
conscripted campaign work by public servants who did not wish to
perform it and may not be forced to do so. She also required her
district staff to perform additional campaign work on the weekends.
Representative Richardson applied the same philosophy to her
Capitol Hill staff. This demonstrates a blatant disregard for the
boundaries between official events and campaign events.
Second, Representative Richardson used official resources of
the House for campaign and nonofficial purposes. While the report
has a detailed exposition of many of the resources used by
Representative Richardson, some of the more significant improper
uses of resources included the use of staff time during the
official work day to conduct campaign activities, repeated use of
the House email system to conduct campaign business, use of the MRA
to lease a car, which she parked at her house and used as her only
mode of transportation in the district, regardless as to whether
her destination was official, campaign, or personal in nature.
Third, Representative Richardson paid her deputy district
director as a full-time House employee, but for months before the
2010 elections she directed this employee to conduct campaign work
for a significant portion of each day. Additionally, in 2011,
nearly a year after Representative Richardson received notice of
the committee's investigation into misuse of House resources,
Representative Richardson hired a new district director, who, with
Representative Richardson's knowledge and approval, spent much of
his time performing campaign work.
Taken together, a theme emerges. Representative Richardson used
her staff as she saw fit. The evidence does not demonstrate isolate
incidents of compelled campaign work. If that were, in fact, the
case, we would not likely be here today. It demonstrates a constant
effort by Representative Richardson to direct and pressure her
official employees to perform as much campaign work as possible,
regardless of whether or not they wanted to volunteer. . . .
Mr. BONNER. Mr. Speaker, in closing, I want to once again thank
members of the committee, as well as members of the pool, for their
tremendous service that they render to this institution. And on
behalf of the entire House, I want to again thank the nonpartisan,
professional committee staff for their extraordinary hard work and
commitment to the House of Representatives and to the American
people that we all serve. . . .
Mr. Speaker, while some might prefer a harsher sentence,
perhaps a few might even think a reprimand is too severe, I urge my
colleagues to support the unanimous recommendation of the only
evenly divided committee in this House of Representatives.
And with that, I yield back the balance of my time.
The SPEAKER pro tempore. Without objection, the previous
question is ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 7.3 A Member has been reprimanded by the House for failure to
disclose campaign contributions in violation of applicable law.
On October 13, 1978,(12) the House considered a
privileged resolution to adopt a report filed by the Committee on
Standards of Official Conduct (now the Committee on Ethics)
reprimanding Rep. John McFall of California for violations of Federal
campaign laws:
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12. 124 Cong. Rec. 37005-7006, 37020, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
IN THE MATTER OF REPRESENTATIVE JOHN J. McFALL
Mr. [John] FLYNT [of Georgia]. Mr. Speaker, I offer a
privileged resolution (H. Res. 1415) and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 1415
Resolved, That the House of Representatives adopt the Report by the
Committee on Standards of Official Conduct dated October 6, 1978. In the
Matter of Representative John J. McFall of California.
The SPEAKER.(13) The gentleman from Georgia (Mr.
Flynt) is recognized for 1 hour.
---------------------------------------------------------------------------
13. Thomas O'Neill (MA).
---------------------------------------------------------------------------
Mr. FLYNT. Mr. Speaker, for the purposes of debate only, I
yield 20 minutes to the gentleman from South Carolina (Mr. Spence)
and also for the purposes of debate only, I yield 20 minutes to the
gentleman from California (Mr. McFall) and pending that I yield
myself such time as I may consume.
The SPEAKER. The gentleman is recognized.
Mr. FLYNT. Mr. Speaker, this resolution relates to the matter
of Representative John J. McFall, a Representative from the State
of California.
On the basis of evidence which has been gathered by the
committee, and which Is set forth in length in the committee report
accompanying this resolution, and which had been painstakingly
reviewed by the committee in open session, the committee filed a
Statement of Alleged Violation against Mr. McFall on July 12 of
this year. The Statement of Alleged Violation contained three
counts. After Mr. McFall's lawyer received full discovery of
materials relevant to his case, after hearing arguments from Mr.
McFall's attorney in support of a motion to dismiss the charges,
and after hearing from Mr. McFall himself, the committee voted to
hold a public hearing to resolve the charges. At the hearing, Mr.
McFall was ably represented by counsel, was permitted, through
counsel, to cross examine witnesses called by the staff and was
permitted to subpoena, and in fact did subpoena, witnesses to
testify on his behalf.
After the close of the hearing, and after receiving both
written and oral arguments from counsel on both sides, the
committee determined, by a vote of 8 to 3, that one of the three
counts in the Statement of Alleged Violation had been sustained by
clear and convincing evidence. The committee decided, in its
findings of fact, that Mr. McFall did receive a $3,000 campaign
contribution from Mr. Tongsun Park in October 1974 which he did not
report as a campaign contribution as the law in existence at that
time required. The committee found that the other two charges were
not sustained.
The committee then voted, 8 to 3, that Mr. McFall should be
reprimanded and that the adoption of this report shall constitute
such reprimand. The facts relating both to the count which was
sustained and the counts which were not sustained are clearly and
succinctly set forth in the report and in the sworn testimony.
Summaries of those facts prepared by the special staff and by the
attorneys for Representative McFall, are contained in appendices A
and B of this report.
The testimony that this $3,000 was a campaign contribution is
made clear by the testimony of him who gave it and the testimony of
him who received it and by the testimony of him on whose behalf it
was received.
Mr. Ray Barnes, at that time administrative assistant to Mr.
McFall, on one of his later appearances before the committee told
the committee that he had requested from the messenger of Mr. Park,
one John Gibbons, permission to change this from a contribution in
the nature of a campaign contribution and asked if it could be used
in Mr. McFall's then existing office account.
Mr. John Gibbons of whom Mr. Ray Barnes testified he had asked
that question, testified that he had no recollection of Mr. Ray
Barnes or of anyone else, either directly or indirectly, asking him
for permission to change the nature of the campaign contribution.
Mr. Ray Barnes then subsequently testified that perhaps he had
talked with somebody else in the office of Mr. Tongsun Park and of
Mr. John Gibbons, but no such person's name was ever given to the
committee, and no such person was ever brought to testify that this
was other than a campaign contribution, and that Mr. McFall and Mr.
Ray Barnes assumed that they had the right to change the nature of
the contribution from that which the donor intended, as clearly
expressed by a note in writing, saying, ``Good luck in your
campaign,'' or ``Good luck in the upcoming election,'' or words to
that effect.
Let me say, Mr. Speaker, that the committee found that the
allegations in Count 1 had been sustained.
Mr. Speaker, let me say that Jack McFall is a man with whom I
have served in this body for most of my service here and for all of
his service here. He is a man with whom I proudly served on the
Committee on Appropriations of the House of Representatives, and a
man next to whom I sat on the Subcommittee on Defense of the
Committee on Appropriations. Let me say that I consider Jack McFall
the same good friend of mine that he has always been during the
period of our service. I commend him for his services to his
district, to his State, and to our Nation, which we both love.
However, if campaign expenditure reporting acts of the United
States of America are going to mean anything, Mr. Speaker, I submit
that it is the responsibility of those who receive them to report
them, to turn them back, or to get clear and unmistakable authority
from him who gave them to change them from the nature of a campaign
contribution.
In asking the House of Representatives to sustain the
recommendations of this committee, let me say clearly, as Mr.
McFall has said so many times, that he appreciates the fact that
the committee itself dismissed the two charges which would have
reflected adversely on his honor, his honesty, and his integrity.
The committee found, by a majority vote, that the last two charges
had not been sustained. The committee found, by a vote of 8 to 3,
that the charges contained in the statement of alleged violations
in count 1 had been sustained by clear and convincing evidence.
Mr. Speaker, based upon the testimony which appears in the
report, which, if necessary, I could relate by chapter and verse,
paragraph and line here today, but for reasons of compassion I
choose not to do so, Mr. Speaker, I ask that the House of
Representatives sustain the Committee on Standards of Official
Conduct in the recommendation that Mr. McFall, the respondent in
this matter, be reprimanded and that by the adoption of this
resolution, the reprimand be considered as having been
administered.
Mr. Speaker, I reserve the balance of my time.
The SPEAKER. The Chair recognizes the gentleman from South
Carolina (Mr. Spence).
Mr. [Floyd] SPENCE [of South Carolina]. I yield myself 3
minutes.
Mr. Speaker, as I have said before, this is not an easy task.
We did not ask for this job, but it has to be done. We spent months
and months and months compiling the evidence which is contained
within this publication. We did not expect today to come before the
Members and lay all of this out. We simply do not have the time,
and I doubt very seriously if many would be here to hear it. We
have had public hearings open for anyone to come and spend as much
time as he or she wanted to obtain the answers to any of these
questions that you may now have. The evidence is here in this
report for all of you to read.
As I stated earlier, our decisions have been based on the facts
contained within these reports. I believe the facts compel the
conclusion reached by eight members of our committee that the
gentleman from California (Mr. McFall) received $3,000 as a cash
campaign contribution from Tongsun Park in October 1974, and he did
not report this as the law requires. We find that the gentleman
from California (Mr. McFall) has conducted himself in a manner
which did not reflect creditably on the House of Representatives
and is, therefore, guilty of a violation of rule 1 of the Code of
Conduct.
The SPEAKER. The Chair recognizes the gentleman from California
(Mr. McFall) for 20 minutes.
Mr. [John] McFALL [of California]. Mr. Speaker, today the
Members of this House are asked to consider the recommendation of
the Committee on Standards of Official Conduct that I receive a
reprimand for failing to report a campaign contribution.
The committee_after an investigation that began February 9,
1977_has made its determination that a $3,000 donation to me from
Tongsun Park constituted a campaign contribution for which I was
bound by the Federal Election Campaign Act to report_rather than a
donation to my office account, which I was not required to report.
It is this finding of the committee that forms the basis for
its bringing a recommendation for reprimand.
The violation of statute as cited by the committee is a civil
violation_one that heretofore has been adjudicated administratively
by the Federal Election Commission.
Nevertheless, I am ready to accept the decision of the House.
Each of us who serve in the Congress has been chosen by the
people to be the lawmakers for all.
As you and every other individual in our country, I am required
to abide by the laws we make.
Consequently, I accept full responsibility for any violation by
me of any law or rule of this House.
Throughout the past 2 years that the news media, then the
Department of Justice, and subsequently the Committee on Standards
of Official Conduct have been investigating the Korean matter, I
have been forthright and candid with them and the people I am
privileged to serve. Voluntarily and readily, I have provided all
information, files and related documents, and answered any and all
questions that would assist in arriving at the truth.
I know first hand the degree to which the committee has
diligently pursued its directive under House Resolution 252.
As I stated to the committee In open hearing and to my
constituents many times, I welcomed the investigation and the
opportunity it provided me to place the record in full view for all
to examine and judge.
Following its lengthy investigation, the committee has judged
me innocent of involvement in any situation of real or apparent
influence in the performance of my governmental duties.
Furthermore, it has judged me innocent of misusing funds
donated to me for my office account.
In this regard, the committee has affirmed my honesty and
integrity, and has rejected any allegation that I participated in
any situation involving improper influence.
For this I am grateful.
The committee, however, has decided that a $3,000 donation
should have been reported as a campaign contribution.
It should be borne in mind that the $3,000 had been legally and
properly placed in my office account, whether or not it had been
reported as a campaign contribution.
As the evidence showed, there was confusion in 1974 in the
interpretation of the campaign law on this point. Whether or not
the donation was in fact a reportable campaign contribution is a
question about which reasonable men and women can--and still do--
disagree. However, after lengthy deliberations the committee
resolved this legal question against me.
The committee decided that I made a mistake, even though I
believed at the time that my actions were in full compliance with
the law and rules of the House.
I am thankful that in 1978, the Congress has clearer laws and
regulations to guide us all in the handling of contributions. These
rules will protect all candidates and help to assure confidence in
our electoral system.
I accept their determination that I made a mistake, and say to
you and the people I represent that I am sincerely sorry for having
made it.
I respect this House, and hold the trust of the people in me to
be the highest honor that can be bestowed by one person upon
another.
I look to the future in the hope that I can continue to serve
the people and this House. . . .
Mr. FLYNT. Mr. Speaker, I have no further requests for time.
Mr. SPENCE. Mr. Speaker, I have no further requests for time.
Mr. McFALL. Mr. Speaker, I have no further requests for time.
Mr. FLYNT. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 7.4 A Member has been censured for, inter alia, converting
campaign funds for personal use in violation of House ethics rules.
On June 10, 1980,(14) the House adopted a privileged
resolution censuring Rep. Charlie H. Wilson of California for violating
House rules regarding the use of campaign funds:
---------------------------------------------------------------------------
14. 126 Cong. Rec. 13801-805, 13807-11, 13818-20, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
IN THE MATTER OF REPRESENTATIVE CHARLES H. WILSON
The SPEAKER.(15) The unfinished business is the
further consideration of the resolution(H. Res. 660) in the matter
of Representative Charles H. Wilson.
---------------------------------------------------------------------------
15. Thomas O'Neill (MA).
---------------------------------------------------------------------------
The Clerk will report the resolution.
The Clerk read the resolution as follows:
Resolved,
(1) That Representative Charles H. Wilson be censured;
(2) That Representative Charles H. Wilson be denied the chair on any
committee or subcommittee of the House of Representatives for the remainder
of the Ninety-sixth Congress;
(3) That upon adoption of this resolution, Representative Charles H.
Wilson forthwith present himself in the well of the House of
Representatives for the public reading of this resolution by the Speaker;
and
(4) That the House of Representatives adopt the report of the Committee
on Standards of Official Conduct dated May 3, 1980, in the matter of
Representative Charles H. Wilson.
The SPEAKER. Pursuant to the rules of the House and the
unanimous-consent agreement, the gentleman from Florida (Mr.
Bennett) has 12 minutes remaining; the gentleman from South
Carolina (Mr. Spence), has 8 minutes remaining; the gentleman from
California (Mr. Charles H. Wilson), or his designee, has 1 hour
remaining.
The Chair recognizes the gentleman from Florida (Mr. Bennett).
Mr. [Charles] BENNETT [of Florida]. Mr. Speaker, I yield myself
such time as I may consume.
Mr. Speaker, on May 29, the House voted to postpone further
proceedings on House Resolution 660 until today, after my
assurances in the May 29 proceedings that the committee would
consider in an additional meeting of the committee any rebuttal to
the newly offered evidence that Representative Wilson might wish to
submit to the committee. I wrote Representative Wilson and his
lawyer on May 30 and offered to receive from them ``any objection,
comments, or additional proof on the new evidence submitted by
Representative William M. Thomas on the House floor May 29.'' The
committee met on June 5 and the proceedings of that meeting have
been printed and are available to each Member. The matter now
before the House is the original report of the committee dated May
8, which the committee has not changed in any respect.
Based on the record of the disciplinary hearing, the
committee's findings and recommendations stand.
In debate on disciplinary matters such as this, no rule
prohibits any Member at any later time from bringing up material
germane to the question whether or not the material had been before
the committee previously. This was the effect of the ruling by the
Speaker on May 29. Obviously it would be best to receive evidence
in the committee's proceedings, where rules govern its admission
and the witnesses are under oath, and cross examination is
possible. But then the Constitution states in (art. I, sec. 5) that
the House is granted the power to ``punish its Members for
disorderly behavior, and, with the concurrence of two-thirds, expel
a Member.'' Therefore, as unwieldly as it may be, these issues can
be raised and decided upon before the whole House and it is
doubtful that any statute or rule could change this. The House can
consider these additional materials in any way it wishes. But the
recommendation in this case as made on April 24, 1980, and the
committee's report filed on May 8, 1980, are the principal matters
before the House today.
I reserve the balance of my time. . . .
The SPEAKER pro tempore.(16) The Chair recognizes
the gentleman from California (Mr. Charles H. Wilson).
---------------------------------------------------------------------------
16. Paul Simon (IL).
---------------------------------------------------------------------------
Mr. CHARLES H. WILSON of California. Mr. Speaker, I yield
myself such time as I may consume.
Mr. Speaker, first, I would like to emphasize most emphatically
that I am not guilty and have not been guilty of any disorderly
conduct insofar as this House of Representatives is concerned or
any of my activities in the House of Representatives. I mention
that because the chairman just mentioned that the Constitution
provides the Congress with the authority to punish its Members if
they are guilty of disorderly conduct. Further, I will state most
emphatically that I am not guilty of any of the charges which have
been brought against me by this committee. I make that statement
because in some of the ``Dear Colleague'' letters which we have
sent to you to try and educate you on my side of this problem, some
Members have been concerned that I stressed the fact that the
committee had not proven its case and I had not denied guilt at any
time. I am, therefore, at this time denying guilt absolutely of any
crime or any charge whatsoever that this committee has brought
against me.
This is the second time that this resolution is before you. We
are here again because a member of the committee was unconvinced
that certain counts would be supported by the House. We had to have
additional evidence. As he said:
In discussing the matter with Members on the floor, they were indicating
that, although it was clear and convincing, that there were perhaps some
gaps that made it less clear and convincing.
Quoting further:
I found that they were not going to agree with the committee based upon
the arguments that were made about the gaps.
So here we are again. We have no assurance that additional new
evidence may not be offered. But for the moment, the committee now
seems satisfied that they have plugged the gaps in their case.
Twice now I have mentioned the committee's case. Many of you
may not realize that this particular case was one that the
committee initiated. No Member, no private individual or group
signed a complaint against me. The committee staff initiated this
case on their own in February of 1979. They investigated this case
for 9 months, including the issuing of subpenas before the
committee had its first majority vote in November. I was then asked
to appear before them and answer their questions. You may remember,
on page 2 of the committee report, it is mentioned that I declined
to testify in this executive session.
Ladies and gentlemen, the committee had not voted at that time
to hold an official inquiry into the case. How was I going to
refute information in one executive session without knowing what
they had discovered in an investigation that spanned two
Congresses?
The need to provide the House with an ethics system to protect
the institution of Congress is apparent to all of us. This
resolution, however, shows that how we go about protecting the
institution is still in need of refinement. The most glaring need
is to address the issue of the committee initiating, investigating,
and prosecuting its own complaint. When the committee proceeds, as
in this case, it writes its own script. Rather than objectively
viewing the facts, they must prejudiciously support the resolution.
The committee develops tunnel vision, seeing only that which proves
its own complaint it initiates. This is the process where, once it
begins, there can be no stopping it until it reaches the floor of
the House. It is natural, under the circumstances, but it must be
eliminated from proceedings such as this.
I will wager that there will be major changes made in the
procedures of this committee as a result of the case against
Charles H. Wilson. If the arguments of my lawyers have had any
influence at all in any area at all, it will be that there have to
be major changes made in the proceedings.
But what of the violations of House rule XLIII? There are two
points to keep in mind. First, these alleged violations took place
in 1971 and 1972. I think it is a statement of the committee's
efforts that six of the seven oldest counts are the ones presented
to you. The committee not only dropped the four most recent counts,
but they also found no evidence on the counts alleging criminal
violations of bribery, perjury, and payroll kickbacks. These last
counts are the allegations the press chose to highlight throughout
these last 6 months, even after they had been dropped by the
committee, and these are the allegations I was accused of during
the recent campaign in which I was defeated for renomination. These
are the allegations that were leaked the day before the committee
chose to vote an official inquiry into this matter.
I have never acted in a criminal manner, I have not violated
the rules of the House.
Second, the evidence must show that these violations were in
direct conflict with the standards and rules as enforced and
observed in 1971 and 1972.
There can be no mixing of rule definitions and application from
year to year. The violations must have been those expressly
forbidden in 1971 and 1972.
But once again, the committee confuses or counts on confusion
when it presents this resolution. It is not surprising that 60
percent of the committee is comprised of Members who are in their
second term or less. This is directly reflective of the fact that
60 percent of the Members of this Congress, today, did not even
serve their first day in office until after the alleged violations
I have been accused of took place. I supported the ethic reform
legislation in 1977. The House was right in its decision. But who
will argue that retroactive application of stricter rules and
enforcement mechanisms is what the House intended? The very fact
changes and refinements were made is indicative of the fact that
the 1971 and 1972 standards and procedures were far different from
the 1977 changes and what they are today. Members must, somehow,
reject all they know or understand now about the rules in force now
and learn and know the rules as they were in 1971 and 1972.
The years after Watergate brought on a new era as far as this
institution is concerned. The committee knows, and I know, that for
you to ignore your reactions to that situation, to try to displace
that anger caused by Watergate, is beyond your, or my, ability. By
issuing this report, the committee is asking each Member to walk a
tight, impossible line of judging standards that are not only alien
but unacceptable to many of you. It is the specific purpose of
House rule 10 to protect Members under an ethics investigation from
being held in violation of House rules for changes in standards
from one period to another. It is a protection that prohibits the
committee either directly or indirectly to confuse a standard of
one era with that of another. House rule 10 is an ethical standard
of the House just as House rule 43 is. Unfortunately, House
Resolution 660 speaks to the literal reading of the rules. It
ignores the compliance and interpretation of those rules in effect
in 1971 and 1972 and the conflict that sitting Members have in
their post-Watergate experience.
One last word on the background of these allegations. As many
of you know, the Obey commission provided the House with a major
overhaul of the ethics provisions in 1977. Among the commission's
changes were fuller financial disclosure requirements, unofficial
office account prohibitions, unearned income provisions, and the
prohibition of using campaign funds for personal use. In making
these changes, the commission stated that the 1971 and 1972 rules
and standards ``were essentially unenforceable because of the
totally subjective nature of their terms.'' Standards that were
``neither defined nor discussed in the legislative history'' when
these rules were drafted.
What is this resolution all about? It is a resolution to
censure a sitting Member of Congress for action of over 7 and 8
years ago. It is a resolution that asks you to censure a Member
because you did not anticipate what would happen to the ethics
rules 7 and 8 years later.
This is a matter where the House will agree to be subjected to
the same open process and parameters the committee used in the
matter of Charles H. Wilson. It is the full House that rightly
determines its future and that of its Members. This resolution
gives the full House that opportunity.
There is no dispute to the need of protecting this institution
from ethic abuses. But, the institution is made up of each
individual Member as a collective body. When divided into
individuals, they should be afforded the same protection the
institution deems necessary for itself.
If there is one charge that a Member must refute it is that he
used his office for his own gain. I flatly deny these allegations
by the committee. No one can buy a piece of me. There is no
evidence that shows me selling out my profession. The facts do not
support these allegations. The committee has not carried the burden
of proof. It continually infers my guilt. It continually circles
around the accusation. But they have not proved it because no such
action on my part existed.
What is it the committee wants you to believe? It is asking you
to take the testimony of an expert in postal legislation at face
value. George Gould began gaining experience in postal legislation
in 1973, not 1971 or 1972, when he became my staff director of the
subcommittee handling postal affairs. To his credit he has become
an expert in postal affairs. But the committee makes no note that
my postal subcommittee and George Gould's expertise were after
these alleged violations took place in 1971 and 1972. The committee
would have you believe that in 1971 and 1972 my simple little
Committee on Census and Statistics was enough of a position for me
to have a conflict of interest in the setting of postal rates. How
ridiculous.
But, the committee also ignores two other points; 3 years
before my taking the chairmanship of the Postal Subcommittee,
postal rates were removed from the full committee and the House
when the independent Postal Rate Commission was created. No one on
the committee, no one in the House, could after that time change
postal rates. To do so would require the influencing of the Postal
Rate Commission, not a Member of Congress.
Second, the committee points to specific legislation that
showed that I acted with a conflict of interest. This legislation
was referred to the Interstate and Foreign Commerce Committee, not
the Post Office and Civil Service Committee, of which I was one of
26 Members. The committee would have you believe that my taking the
postal subcommittee for the first time in 1973 is clear and
convincing evidence of my unethical actions in 1971 and 1972 and
for legislation that was pending in the Interstate and Foreign
Commerce Committee of which I was not a member.
The committee's own witness, Mr. Lee Rogers, is the one who
swore under penalty of perjury that the two $5,000 checks he gave
to me were loans. Loans were written on them and in response to
questions by members of the committee, he said this was not an
unusual procedure for him and he off the top of his head named half
a dozen other people who he had made similar loans to under similar
circumstances, without notes, without interest or anything of the
sort, and yet the committee would tell you that because I did not
report in 1977 these two $5,000 checks as unsecured notes on my
financial disclosure report that I did not consider them as loans.
Well, let me tell you that in California there is a 4-year
statute of limitations on unpaid loans and those loans were not
collectible at that time and did not have to be reported in 1977.
Now, Mr. Cheney the other day went through a list of the years
prior to 1977 when I did not include these checks as unpaid loans.
The law at that time said unsecured loans in excess of $10,000. I
was not required to report those on the financial disclosure forms
at that time. It was 1977 when the law became effective that
required loans of $10,000 or more be reported.
Now, the committee bypasses Mr. Rogers' testimony completely.
He swore under penalty of perjury, he had immunity, that was the
only thing that he could be caught on was to lie to the committee,
and they accepted that testimony without any question at the time
and I do not know whether they are going to bring perjury charges
against Mr. Rogers at the present time or not, because they are
ignoring completely the testimony which he presented to the
committee and they are now calling these $5,000 checks gifts,
instead of loans which they rightly were. I was not bought by Lee
Rogers. I have not been bought by anyone.
The committee has erred to excess in trying to put these
charges over on the House. It is disgusting that the committee
would attempt such juggling of dates and facts and come up with
these allegations, but it is not surprising. This resolution is the
end product of the committee's own initiated investigation.
The committee proof lies not in the facts it presents, but in
the conjecture and misstatements of events. The committee plays
upon what each Member knows to infer the events of almost a decade
ago. The committee is under the belief that its mandate requires an
accused Member to carry the burden of proof of his own innocence.
With all of the time available to it, its investigative powers,
its access to funding, the committee has come up with allegations
of 7 and 8 years ago.
This is a resolution based on someone's gut feeling, not on
facts. This resolution is based on the proposition where there was
one violation, there must be others. The committee feels it is
obligated to find other violations, regardless of the time that has
passed on or the changes made in the rules and standards.
If you have read the materials I have sent to you, it is
apparent that the Ethics Committee has pushed this matter beyond
all bounds of realistic fairness. I have worked hard for my
constituents. I have never let them down. I would never have
knowingly violated their trust. Yet, in June I was defeated in my
own primary. That defeat was the most heartbreaking of all. It was
as if my whole career in this House was meant to be repudiated, but
it really could not be otherwise based upon the 5 and 6 months of
extensive press and media and open opposition pronouncements at
every turn of the committee process, even to the date before the
committee voted to start its proceedings. I was tried and convicted
time and again, four times I was tried and convicted. To this very
day I could pick up a paper and find the disproved charges of
bribery, perjury and payroll kickbacks in the articles.
When will the record finally be set straight? To expect my
constituents to ignore such constant reinforcement of unethical
behavior and criminal conduct, though there never was, would be
disrespectful of their value and standards.
The fact remains I have lost everything of value that I worked
so hard to achieve professionally. What is left is my self-respect
and my reputation.
I suppose I could have walked away from this whole thing months
ago. I suppose I could have walked away from this whole thing
yesterday, but I cannot because the committee is wrong. These 18
years have given me enough insight to know when to fight or not to
fight for an issue.
Practicalities bear a great deal on making those decisions. But
in this instance, practicalities have no bearing. This resolution
brands me as something I am not. I have not acted in any manner
that is disrespectful of this House. This institution has been my
life. I cannot let these years go by and end as the committee would
like.
Every issue in this House is given a full and fair hearing.
Every issue in this House has its supporter and detractor. But
every issue that comes before this House is judged on its merits in
the way in which it came before this House.
Sometimes personalities become more dominant than the facts and
the procedures, but the House, in its wisdom, always seems to make
the right decision. I believe that this last fight for me can be
judged on its merits.
Oh, I recognize I am not a popular person in this House. I have
emotionally objected to unanimous-consent requests of people, Ms.
Holtzman, Mr. Gramm. I have even antagonized other people, some of
my colleagues on this side because I vote with the folks on this
side on some matters of international affairs, which mean so much
to me. But I do not think that how you vote on this matter today
should be based upon whether I am a popular Member of the House or
not. It should be based on what is right and what is wrong.
Reading all that has been presented, listening to all that has
been spoken, this House must come to grips with this resolution. My
constituents have made their decision based upon what they know.
I have fought this resolution based upon what I know, and what
I have been advised to do by my counsel. And let me tell you, I
take their advice. They are very expensive.
You must evaluate all that has been presented to you, factually
and otherwise.
Let me know, let each succeeding House know what this
institution considers to be the facts and the truth. Let each
succeeding Congress know what it expects of the Members as
individuals, and let each individual Member know what he can expect
from the institution as a whole.
I thank my colleagues for their patience. . . .
Mr. McCLOSKEY. Mr. Speaker, we participate today in an
extremely important part of the legislative process. Under the
Constitution we are specifically granted the power to discipline a
Member by a majority vote, or to expel a Member under our rules and
our Code of Ethics by a two-third vote. We have guides under the
Constitution but no mandate as to what rules to apply as to guilt
or innocence.
Clearly, a Member has a constitutional right against self-
incrimination. He has the right to counsel. But whether we in the
House today are sitting as a jury, a trier of the fact, or an
appellate court is not clear. We vote as our consciences dictate.
One thing is clear, however. We have adopted our own rules that
before we discipline a Member, we apply the test of clear and
convincing evidence. We do not apply a civil test of the weight of
the evidence on one side or the other, and we do not go so far as
to require, under the criminal rule, guilt beyond a reasonable
doubt. But we do require clear and convincing evidence, here we
recognize, that we as the House sit independent of the committee.
The committee has served as an investigator. It has served as a
prosecutor. It has served as grand jury. That committee contains, I
think, some of our ablest Members, people that do a job for all of
us, and I thank them for the job that they have done in this case.
But I respectfully disagree that the quantum of evidence shown in
the record--and I have read that record three times now--meets the
clear and convincing test. I would not have been presumptuous
enough to make this argument on Mr. Wilson's behalf but for having
had the privilege of spending 14 years as a small-town lawyer,
serving as president of the Conference of Barristers of the State
Bar of California, and having edited the procedural handbook on
ethics that is used by the California Bar for disciplinary
proceedings. I think that as a bar, we attorneys apply to ourselves
a higher standard of guilt than we do to criminal defendants, and
that for that standard of guilt, in my judgment--were Mr. Wilson to
be tried for professional misconduct before the State Bar in
California--this evidence would not suffice to meet the clear and
convincing evidence test.
Let me take up the eight specific counts and the proof in the
record. These eight counts essentially divide into two categories.
The first counts 1, 2, and 3 involve three checks that were given
to Mr. Wilson by a Mr. Lee Rogers in June of 1971, in June of 1972,
and in December of 1972. I think the committee concedes that if
those three checks were loans, Mr. Wilson is guilty of nothing. If
they were gifts, then he is guilty of the counts as charged.
We as triers of the fact must look at the record, and I would
ask the committee to point to anything in the record which
furnishes clear and convincing evidence that the checks were not
loans. The sole evidence, the sole witness who appeared before the
committee, Mr. Lee Rogers himself who signed these three checks,
said that they were loans. Two of the checks bore the word ``loan''
on the face of them. The committee went to that point and said,
well, there was no promissory note; there was no due date on the
loan; there was no rate of interest. Mr. Rogers never sued to get
the money back. All of those things are true, but Mr. Rogers was in
a peculiar relationship with Mr. Wilson. He was a member of his
staff.
He was the chairman of his key committee to raise money for Mr.
Wilson in his campaigns. He was a multimillionaire. He was a man
who testified before the committee that he was not accustomed to
sue to get loans back, and that he rarely was repaid. He listed a
number of people to whom he had given loans, and only on one
occasion had the individual paid him back. So the evidence is in a
state of confusion, in my judgment, as to whether or not these
transactions were loans or gifts. You could go either way. In our
consciences as Members, it is perfectly appropriate for the members
of the committee to reach the conclusion that on the evidence that
they examined, they believed these were gifts and not loans. But I
would submit to you that applying a clear and convincing evidence
test to this evidence, you would have to give the benefit of the
doubt to Mr. Wilson.
This was a peculiar relationship, to have a man on your staff
who was an expert in postal matters; ran three companies engaged in
the mail order business; obviously giving advice to Mr. Wilson on
his payroll at $1,000 a month, $12,000 a year between 1971 and
1974; taken off of the payroll in 1974; put back in 1976. This was
a transaction between a man and his employee, and while it is
peculiar and it is strange, it does not seem to me to qualify as
clear and convincing evidence that this was a gift of funds and not
a loan.
Now take the second set of counts, the last five counts of
conversion. These were moneys, about $15,000 in counts 7 and 8 and
$9,900 in counts 9, 10, and 11, which were paid from Mr. Wilson's
campaign account to him. The first two checks, roughly, $15,000,
were repaying bank loans that he had taken out during the 1970
campaign.
I pointed out in a letter to the committee before this matter
was heard on May 29 that there was no evidence in the record to
show that this $15,000 in debts, incurred during the campaign in
1970, were not taken out by Mr. Wilson to pay his campaign
expenses.
The gentleman from California (Mr. Thomas), with documents that
were obtained just before the hearings, showed those documents to
me, and those documents conclusively show, in my judgment, that
these moneys were not spent for campaign expenses in 1970. There is
a statement by Mr. Wilson made to the California authorities, not
required by law to the Federal authorities, that he had incurred no
personal expenses for campaign purposes in 1970, and I advised Mr.
Wilson that if the record stayed in that condition, I would not
argue on his behalf that these moneys were used either for campaign
expenses or were used for personal expenses. But what were they
used for? Mr. Wilson brought forth, and it is in the record of the
committee hearings, that he held two fundraisers. The first was
held in March of 1969, and his campaign account shows deposits of
about $15,700 in that period of time from that fundraiser, and he
paid himself $15,500 to pay these two loans back.
In November 1971, 7 or 8 months later, he held a second
fundraiser, and in that fundraiser he raised over $13,000. He then
wrote three checks, counts 9, 10, and 11, for $9,900 to himself.
But where in the record is there any indication or any fact or any
evidence to indicate that those were not reimbursement, say, for
newsletters, or travel expenses?
We were accustomed, in 1967 when I was first elected to the
Congress, until 1977, 10 years later--in fact, I think most Members
did--to raise money from our supporters to pay those costs of
newsletters and travel which were not covered by the House expense
allowances. I can remember in 1967 coming back here as a freshman
when the House funded six trips a year back and forth to
California. We were accustomed to making 20 or 25 trips a year back
and forth to our districts. And there are Members from California
who go back every weekend. Until 1977 it was eminently proper, and
it was accepted as right, to raise money from your supporters to
pay for these business expenses, the additional expenses of
newsletters, and travel which were not funded by the House and were
not proper campaign expenses.
There is no showing in the record that these funds were not
used for this purpose, so we are left with a situation dating back
to 1971 that Mr. Wilson applied $25,000 to his own use, but there
is no evidence to show that it was not for proper purposes, for
congressional expenses. The violation was to use them for personal
expenses.
We are faced, then, as a trier of the fact with the question,
where should the burden of proof lie, the committee having come
forward with evidence of suspicious payments? Should the burden be
on the Member to produce records from 9 years ago showing that
these expenses were for a specific valid purpose?
We in the Congress have applied a 5-year statute of limitation
on crimes to all other citizens. We are not bound by that statute
of limitation, but I think we should consider the reasoning behind
the statute of limitation. The reason for the statute of limitation
is that very few of us can reach back more than 5 years and produce
evidence of what we spent money for at any given time. That statute
of limitation is founded in a rule of reason that no person should
be charged with a crime that occurred so long ago that he cannot
easily produce evidence to refute the accusations. I think we
should apply in these proceedings the constitutional view that a
person is presumed innocent until proven guilty. We have adopted as
one of our rules that that proof be by clear and convincing
evidence.
I have no disagreement with the gentleman of the committee
except on this one point. It seems to me that the clear and
convincing evidence of what happened 9 years ago should be on the
committee to produce, not on the part of the defendant to try to
refute. It is that reason and that reason alone that causes me to
urge that we should vote for an acquittal on all eight of the
counts with which Mr. Wilson is charged.
It is not a disagreement with the fairness of the proceedings
that the committee has undertaken, but it seems to me that we make
a record here that is going to stand for 200 years. If we are going
to insist on proof that is clear and convincing, then we must do so
on the record before us and the record of this evidence is not
clear and convincing; it is evidence that raises a suspicion; it
may raise a possibility or even a probability of guilt, but it is
not evidence that if we were arguing this case before a jury, or we
were arguing this case before our peers in the Bar Association or
any other professional organization that we could say meets the
clear and convincing test. . . .
Mr. [Wyche] FOWLER [of Georgia]. Mr. Speaker, I believe I speak
for all members of the committee when I say, that this is not a
pleasant task. Our charge was to proceed fairly, dispassionately,
and without any sense of moral righteousness. I think we did that,
and we acted in a nonpartisan manner in presenting the committee's
recommendations for discipline which we have given to all Members
of the House.
I will proceed quickly because we have only 4 or 5 minutes
left, most of the time having been used last week.
Let me try to summarize why the committee has recommended what
it has:
First, there was no substantial rebuttal to the charges that
there were conversions from Mr. Wilson's campaign account--moneys
traced from his campaign funds to his office account to a
California bank account--to pay off personal debts. Why? Because
Mr. Wilson refused to testify.
Second, today, for the first time, Mr. Wilson has spoken. He
says that what the committee found were ``gifts'' were in fact
``loans.'' We do think that the evidence was clear and convincing
that these moneys were gifts, but Mr. Wilson cannot argue it both
ways.
I ask all Members to read the testimony of Mr. Lee Rogers. Mr.
Rogers described himself as a multimillionaire engaged in the mail
order business. He testified he was made a congressional employee
of Mr. Wilson by Mr. Wilson for 3 years and paid $12,000 a year.
Mr. Rogers did claim that the moneys he gave to Mr. Wilson were
``loans.'' The committee, however, found the evidence to belie this
interpretation, and dismissed the charges relating to ``loans.''
However, Mr. Wilson now for the first time insists on the
interpretation of ``loans.'' I can say in rebuttal that there was
substantial evidence that Mr. Rogers was put on the congressional
payroll as a method of repaying the money that was ``loaned'' by
Mr. Rogers.
Mr. FORD of Michigan. Mr. Speaker, will the gentleman yield?
Mr. FOWLER. I will not yield until I have finished my
statement. Now, all Members must determine whether it was a
``gift'' or whether it was a ``loan.'' You have heard Mr. Wilson.
We did not. He refused to testify at any time before the committee.
I am willing to accept what Mr. Wilson has said, but you must
determine the credibility of his testimony in light of that of Mr.
Rogers. There are only four pages of his testimony. Please read it.
Finally, on the subject of the statute of limitations. The
statute of limitations, I say to my colleagues and fellow lawyers
at the bar, was put on the books in English and American
constitutional history to deal primarily with petty crimes_crimes
committed outside of the jurisdiction, crimes that had been
consciously concealed, as well as lesser infractions considered
``stale'' by the passage of time.
But there are some crimes that so shock the public conscience
that there is no statute of limitations.
The committee dealt with this question of what happened in 1972
as soon as it came to light. We did not tarry out of a sense of
forgiveness to Mr. Wilson. All delays or postponements were at his
request.
Your committee is not a court of law. What we tried to do was
pierce procedure to get at the substance while protecting Mr.
Wilson in his constitutional rights. Much of the outrage at the
judicial branch of our Government occurs when technical defenses,
properly presented, are allowed to shadow or obscure the real
issues, the issues of substance.
Here, I submit, are the issues of substance which we must
decide after hearing and reading all the evidence:
First, was there a conversion of campaign funds for personal
use? The committee, by an overwhelming majority, found that there
was.
Second, was the congressional office of Mr. Wilson being used
for private rather than public purposes, or used so casually as to
violate the responsibilities of stewardship with which we are all
charged? The committee, by an overwhelming majority, thought it
was.
Last, I must say that there was a duty, an absolute duty of Mr.
Wilson, to speak in defense of himself and in defense of the
institution of the Congress.
Mr. Wilson does not stand questioned by the courts. He stands
questioned by his peers. And the question is direct and profound:
Did he violate his oath of office?
This is different than an accusation against the butcher or the
baker or the candlestick maker. If a member of any of those
occupations are brought before any court of inquiry and found
guilty, it would not affect the institution of butchering or baking
or candlestick making. It would leave no taint on any other
practitioner of the profession. No other butcher or baker or
candlestick maker would be affected.
The SPEAKER. The time of the gentleman from Georgia (Mr.
Fowler) has expired.
Mr. BENNETT. Mr. Speaker, I yield 1 additional minute to the
gentleman from Georgia.
Mr. FOWLER. Mr. Speaker, but whenever we are accused, when any
one of our Members is accused, then we all stand accused. He does
stand alone, because the institution is therefore brought under
question. The institution of Congress is also the name which then
must be cleared. And that duty accrues to Mr. Wilson, as a sitting
Member of this Congress, to clear the name of this institution as
much as it is to clear himself.
My colleagues, it is extremely unpleasant, after the defeat of
Mr. Wilson of California, to be here. The committee tried for
months to bring this matter for resolution. We have granted the
delays of Mr. Wilson, who has asked over and over to postpone it
beyond his primary. But all I can say to you, to answer the
gentleman from South Carolina, who quoted Sir Thomas More
accurately, though not completely, is that when asked, ``Who will
defend after the laws?'' the answer by Roper was, ``God will
defend.'' And the answer of Sir Thomas More was, ``Then let God
strike down the laws.''
We have laws called ``rules'' for protection of the
institution. We must defend them. It is our duty, regardless of all
externalities like elections. The committee has found, in a strong
nonpartisan vote, after hearing the evidence, that the punishment
recommended, regretfully, should be accepted by this House. . . .
Mr. [Louis] STOKES [of Ohio]. Mr. Speaker, I am a member of the
Committee on Standards of Official Conduct. As such, I am the only
member of the committee who voted against each and every count
which the committee found to be proved. I also voted against the
committee's recommendations that Charles H. Wilson be censured and
stripped of his chairmanships.
Mr. Speaker, I did not seek membership on this committee. In
fact, as you know, I resisted this appointment for a considerable
amount of time. In agreeing to go on this committee, I did consider
that my background might enable me to bring a different perspective
to the committee. The background to which I refer is that of having
been a trial defense lawyer in criminal cases for 14 years. That
experience included trying hundreds of cases ranging from first
degree murder down to simple assault. It also included
participation in several cases in the U.S. Supreme Court.
One of these cases which I argued in that Court, Terry against
Ohio, a landmark case, is still the law of the land in stop and
frisk, search and seizure law under the fourth amendment to the
Constitution. I mention this, Mr. Speaker, not out of braggadocio,
but to say that I think I bring to the committee some understanding
of our system of justice and more importantly a real understanding
of due process of law. I also understand that the Ethics Committee
is not a court of law and that in proceedings before it, ordinary
rules of evidence in a court of law do not apply. But, I say to my
colleagues that even disciplinary tribunals such as the Ethics
Committee cannot divest themselves of the requirement to afford a
respondent due process of law and fundamental fairness. As one who
has spent a great part of his life preserving the constitutional
rights of criminals in order that that constitutional right would
be available to America's best citizens if ever need be, I can only
say to you, that the due process and fundamental fairness denied to
Charles Wilson today may be denied to you or me tomorrow.
It is for that reason that there is something fundamentally
wrong with a system where the same Members of the House who
initiate an investigation of a Member, charge him with violations,
investigate the charges, hear the evidence relating to the charges,
decide the guilt as to the charges, and then decide the punishment
for the charges. There is something fundamentally wrong with this
system, otherwise 9 of the 12 members sitting on this committee in
February 1979, would not have proposed to the House under House
Resolution 136 legislation to change the rules and initiate new
methods of disciplinary proceedings which would insure due process
and fairness.
The gentleman from Missouri (Mr. Clay) is correct. The members
of the committee were in and out of the room, in absentia, and
otherwise occupied during proceedings where witnesses were giving
testimony against the respondent for whom they now recommend this
severe punishment. One afternoon, while witnesses were testifying,
I had to spend over 2 hours in the Rules Committee. I did not want
to leave Charlie's hearing, but, I had to make a choice,
legislation affecting my congressional district won priority over
my obligation to my colleague. Sure I had the transcript to read,
but did you know that accompanying the transcript was a letter from
our staff director which said:
The enclosed transcripts from the Wilson hearings are for your review. It
is the opinion of the committee staff that the transcripts are not totally
accurate, therefore the reporting company will be asked to review their
tapes.
This means then that not only did those of us who missed
hearing witnesses not only have no opportunity to observe the
witnesses on the stand, to observe their demeanor, to evaluate
their appearance of truthfulness or lack of thruthfulness, but we
made up for this by reading ``not totally accurate transcripts.''
How would any of you today like to have your fate determined, be
censured, and stripped by some jurors who were running around
answering bells and taking care of regular congressional business
while deciding your fate?
Now, let us talk about counts 7, 8, 9, 10, and 11 which all
dealt with conversion of campaign funds to personal use 8 and 9
years ago. The House rule which the respondent is alleged to have
violated which was in effect in 1971 and 1972, and which is in
effect today, prohibits conversion to personal use of funds ``in
excess of reimbursement for legitimate and verifiable prior
campaign expenses.'' Thus, under the House rule in question, a
Member has the absolute right to be reimbursed from campaign funds
for campaign expenses he may have incurred and once reimbursed may
use the reimbursed amount for personal or any other use. Under the
rules of our committee, it was incumbent upon the staff to prove by
clear and convincing evidence that these transfers were not
reimbursements for prior campaign expenses.
The key to the lack of clear and convincing proof that
Representative Wilson committed any offense can be found in the
statements of our distinguished chairman on the floor here last
week. With references to counts 7, 8, 9, 10, and 11, the chairman
in his remarks used phases such as, ``the committee was offered no
evidence that this loan was for prior campaign expenses,'' or ``the
committee was offered no evidence that this loan was for legitimate
campaign expenses,'' or ``no evidence was offered to the
contrary.'' The fact, my colleagues, is that Representative Wilson
had no burden of proof as to his innocence. The committee was
required, but they did not offer one scintilla of evidence that the
transfers were ``in excess of reimbursement for legitimate and
verifiable campaign expenses.''
They cannot absolve themselves of such burden of proof by
transferring the burden of proof to the respondent. Additionally
and more importantly, let us admit that the House has played around
a little bit with the same law Representative Wilson has been found
guilty of violating. Conversion of campaign funds to personal use
was not prohibited by law in 1971 and 1972. It also was not
prohibited by the Federal Election Campaign Act. Even the more
recent amendment does not prohibit conversion of campaign funds for
Members in office on January 8, 1980. The House rule relating to
conversion was adopted in 1968.
In 1975 the rule was amended to prohibit conversion unless
``otherwise specifically provided by law.'' This change in the law,
as we all know, was enacted to permit a special circumstance to
occur in the House. Once the circumstance was over, in 1977 we
removed the 1975 provision and went back to the previous law. Thus,
two points appear to be evident. First, there is no well-stated
policy in this area and second, we have alternately prohibited and
permitted under certain circumstances the same thing Representative
Wilson has been found guilty of. My conscience will not under these
circumstances permit me to find him guillty of these 8- and 9-year-
old charges. And since the charges are not criminal in nature, and
since few of us would be able to reconstruct campaign records 8 or
9 years later, the absence of a statute of limitations would seem
to me to be denial of fundamental fairness.
Lastly, I want to say that I do not condone wrongdoing, nor do
I oppose disciplinary proceedings against any Member of the House
under proper circumstances. As a member of this committee, I can
say to you without fear of refutation, that all members of the
committee acknowledged Representative Wilson's attorney, Mr.
Bonner's observation that at one time or another, each of us, with
the exception of the chairman and perhaps one other member had
missed some portion of the proceedings. Every member agreed that
before deliberating they wanted to read the transcripts so that
they could accurately and intelligently discuss the evidence.
Therein was the admission that the circumstances under which we
acted as jurors did not lend itself to our being able to act as
jurors. Here was an admission by the entire committee that they
were unable to deliberate and decide this case upon the evidence
they had seen and heard. Even in a court of law when jurors cannot
remember the evidence they are instructed that they must recall the
evidence as they saw and heard it in the courtroom.
Mr. Speaker, my conscience will not let me find Representative
Wilson guilty of any of these charges. The question for you to ask
yourselves is this: Would you want yourself or anyone near and dear
to you to be found guilty based upon this kind of evidence? I urge
a no vote on this resolution. . . .
Mr. [Lunsford] PREYER [of North Carolina]. Mr. Speaker, I will
just touch on two points very briefly: First, to respond to the
testimony of the gentleman from California (Mr. McCloskey) that was
offered a little earlier this afternoon. What Mr. McCloskey pointed
out was the source of the campaign funds in the campaign fund
account of Mr. Wilson. But the point we are concerned with is the
transfer from that campaign fund account to the office account then
to pay for his personal expenses. For example, the first of the
fundraisers occurred on February 26, 1971. On March 9, Mr. Wilson
withdrew $10,283.35 for deposit in his office account, and on the
day following drew the same amount of money, to the penny, and
repaid a loan at the Imperial Bank. That loan was characterized on
the loan approval and credit report as being for ``personal
expenses.'' Clearly, in the absence of even a single fragment of
evidence that these funds were used for any other purpose, the
committee is entitled to clearly and convincingly conclude that the
funds were used precisely for the purpose stated on the approval of
the credit report. I think the same rationale applies to the other
counts dealing with the conversion of funds.
Let me finally just briefly mention the statements that have
been made about this being a ``mock trial,'' that we have ``leveled
all of the rules of constitutional procedure,'' and that we have
abolished protection for Members of the House here. I think as a
matter of policy we may want to change the way we have proceeded,
and I have cosponsored H.R. 136 because I think as a matter of
policy we ought to get Members of the House more involved in these
ethics procedures rather than leaving it up to the committee to
handle all aspects of these things. But I want to make it very
clear to you that by cosponsoring that bill does not mean I have
the slightest question about the constitutionality of the
procedures of the Committee on Standards of Official Conduct.
There can be no question under the law that our proceedings are
entirely constitutional. They are customary procedures that protect
all sorts of professional organizations, medical societies, bar
associations, and the rules which we follow offer every sort of
protection for a Member, including adequate notice, the right to
counsel, the right to challenge any member of the committee who he
believes cannot make an impartial decision, the right of discovery,
the right of cross-examination, the right to call witnesses and to
offer evidence in his own defense. Mr. Wilson's attorneys were
granted access to all of the committee's evidence in this case
before the hearing commenced, and every motion filed, whether it
was timely or not_and some were not timely_was heard by the
committee. The committee granted his subpenas for all the witnesses
that he requested. The committee granted every reasonable request
of the respondent in this case.
These disciplinary procedures are not criminal cases. They are
not the same. If they were, the ability of any institution to
protect its own integrity would be in question. But the committee
rules as applied in this case have been fair and certainly are in
no way violative of due process. . . .
Mr. LIVINGSTON. Mr. Speaker, the charges against Mr. Wilson are
contained in the original committee report, in the Record of May
29, 1980, and in the amended report.
There is no need to dwell on the facts. The record is complete.
Mr. Wilson is charged first with violating House rule 43,
clause 4, in three counts, to wit: receiving gifts of substantial
value from a person with direct interest in legislation.
The committee found sufficient evidence to prove clearly and
convincingly that Mr. Wilson received three checks totaling $10,500
from Lee Rogers, and that Lee Rogers, whose principal business was
a mail order operation, had a direct interest in postal
legislation, over which Mr. Wilson, as a member of the Postal
Subcommittee, had direct jurisdiction.
The question is whether the checks constituted ``loans'' or
``gifts.'' The definitions of both were inserted by me into the
Record of May 29, 1980.
The committee found that, although two checks were marked
``loans,'' and Lee Rogers called them ``loans,'' there was--
No written agreement;
No maturity date;
No interest:
No repayment schedule;
No attempt to repay; and
No demand to repay.
In fact, it was deemed totally unreasonable to believe them to
be anything other than ``gifts.''
Hence, the committee found Mr. Wilson guilty of counts 1, 2,
and 3. In counts 7, 8, 9, 10, and 11, Mr. Wilson was charged with
five instances of syphoning off campaign funds for his personal
use, in violation of House rule 43, clause 6. In fact, the
committee found Mr. Wilson violated rule 43, clause 6 by convert
$25,383.35 of campaign funds to his personal use.
The checks show the transactions. The only question is this:
Were they reimbursements for prior loans to his campaign?
Mr. Wilson did not testify, but he leaves the House with the
clear implication that he is claiming they were reimbursement for
prior loans.
Lacking any evidence to prove such is true, the committee found
evidence to show clearly and convincingly that money was taken by
Mr. Wilson strictly for his personal use, and that these funds were
not campaign debts to him. There is no evidence at all to show they
were campaign obligations to Mr. Wilson.
Moreover, documents introduced by Representative Bill Thomas,
show categorically, by Mr. Wilson's own hand, that in the only
campaign preceding these transactions, the candidate, Mr. Wilson,
contributed no money to the campaign. He loaned no money to the
campaign, and the campaign was completed in the black, without
debt. So there was no need for Mr. Wilson to loan the campaign
money.
Now we hear that Mr. Wilson raised $15,727 in a fundraiser in
February 1971 and $13,880 in November 1971.
Mr. Wilson would now have us believe that this money was raised
to reimburse himself for out-of-pocket campaign costs or office
expenses not reflected on his campaign documents--$25,383.35 to be
exact.
This argument simply does not hold water, and is beyond belief
for an average reasonable man. There are simply no documents which
verify such out-of-pocket expenditures.
The checks supporting counts 7 through 11 make it abundantly
clear that Mr. Wilson had personal obligations which had nothing to
do with his campaign, and that he took the money from his campaign
to pay them off.
Thus, there is ample justification to support the committee's
finding that Mr. Wilson is guilty of counts 7, 8, 9, 10, and 11.
He took the money;
He converted it to his own use; and
It was not for loans by him to a previous campaign.
I urge the committee to find Mr. Wilson guilty as charged and
to censure him for his conduct.
Mr. [Harold] HOLLENBECK [of New Jersey]. Mr. Speaker, I had not
intended to speak again in this matter but am constrained to by
certain further statements and allegations made by members and
counsel since the beginning portion of this hearing.
Let me refer to statements by counsel at the June 5, 1980,
hearing (transcript p. 26, 1. 12; through p. 27, 1. 20). These
statements allude to his feelings that he was ``sandbagged'' by
members of the committee and the House who ``have taken the
position that Mr. Wilson did not have a full defense, because
certain documents, no evidence was put in, he only chose to call an
abbreviated number of witnesses.'' (p. 27, 1. 4-6). Counsel's
defensiveness surprises this Member since in reviewing the floor
statements and dear colleague letters I find no allegations that
Mr. Wilson ``did not have a full defense.''
On the contrary, counsel provided an outstanding defense. But
simply put, on the basis of all the evidence adduced, the charges
were proven to the committee by the ``clear and convincing''
standard and that proof is in the report of the committee.
This Member, in his initial remarks, enunciated his firm belief
that the House should act on the record adduced at the hearings for
two reasons--he was afraid of the introduction of additional
evidence on the floor as was attempted by Mr. Wilson and Mr. Thomas
and, second, he felt that the dignity of the House might be
besmirched by additional allegations and statements made on the
floor under the immunity of the speech and debate clause but not
made under oath at the hearings. And after listening to the
gentleman from Missouri (Mr. Clay) use unfounded and
unsubstantiated statistics to attack the committee itself, I
realize I should have had a third fear.
Let me say in closing that I respect the views of the gentleman
from California (Mr. McCloskey) who, I add parenthetically, I agree
with on several counts, and his basis for them. He, as I, and as I
hope this body will have based our conclusions on the facts, on the
record and not on extraneous material or on an unfounded attack on
the committee's basic fairness.
Mr. BENNETT. Mr. Speaker, I move the previous question on the
resolution, as amended.
The previous question was ordered.
motion to recommit offered by mr. mcloskey
Mr. McCLOSKEY. Mr. Speaker, I offer a motion to recommit.
The SPEAKER. Is the gentleman opposed to the resolution?
Mr. McCLOSKEY. Yes I am, Mr. Speaker.
The SPEAKER. The gentleman qualifies.
The Clerk will report the motion to recommit.
The Clerk read as follows:
Mr. McCloskey moves to recommit the resolution (H. Res. 660) to the
Committee on Standards of Official Conduct with instructions to report the
same to the House forthwith with the following amendment:
Strike out all after the resolving clause and insert in lieu thereof the
following:
That Representative Charles H. Wilson be reprimanded.
The SPEAKER. The question is on the motion to recommit offered
by the gentleman from California (Mr. McCloskey).
The question was taken; and the Speaker being in doubt, the
House divided, and there were--ayes 67, noes 102.
Mr. FORD of Michigan. Mr. Speaker, on that I demand the yeas
and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
97, nays 308, answered ``present'' 4, not voting 24, as follows:
[Roll No. 307] . . .
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
The SPEAKER. The question is on the resolution, as amended.
The question was taken; and the Speaker announced that the ayes
appeared to have it.
Mr. BENNETT. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were refused.
So the resolution, as amended, was agreed to.
A motion to reconsider was laid on the
table. -------------------
CENSURE OF REPRESENTATIVE CHARLES H. WILSON OF CALIFORNIA
The SPEAKER. Will the gentleman from California (Mr. Charles H.
Wilson) kindly appear in the well?
Mr. CHARLES H. WILSON of California presented himself at the
bar of the House.
The SPEAKER read House Resolution 660, as amended, as follows:
H. Res. 660
Resolved,
(1) That Representative Charles H. Wilson be censured.
(2) That upon adoption of this resolution, Representative Charles H.
Wilson forthwith present himself in the well of the House of
Representatives for the public reading of this resolution by the Speaker;
and
(3) That the House of Representatives adopt the report of the Committee
on Standards of Official Conduct dated May 8, 1980, in the matter of
Representative Charles H. Wilson.
The SPEAKER. The matter is closed.
PRECEDENTS OF THE HOUSE
Ch. 8
INDEX TO PRECEDENTS
Apportionment
Apportionment Act of 1911, Sec. 1
constitutional provisions regarding, Sec. 1
Delegates and Resident Commissioners, relationship to, Sec. 1
``equal proportions'' method, Sec. 1
historical development, Sec. 1
jurisdiction, of House committees, Sec. 1
methods of apportionment, history, Sec. 1
Permanent Apportionment Act of 1929, Sec. 1
privilege of legislation regarding, Sec. 1
size of the House, relationship to, Sec. 1
Campaigns
see Election Campaigns
Census
African-Americans, historical treatment of, Sec. 1
Committee on Oversight and Reform, jurisdiction, Sec. 1
constitutional requirement to take, Sec. 1
executive agencies with jurisdiction over, Sec. 1
historical development, Sec. 1
jurisdiction, of executive agencies, Sec. 1
jurisdiction, of House committees, Sec. 1
Native Americans, historical treatment of, Sec. 1
presidential messages regarding, Sec. 1
privilege of legislation regarding, Sec. 1
proportional reduction of House seats, Sec. 1
Committee on Ethics
see Ethics
Committee on House Administration
campaign practices, jurisdiction over, Sec. 5
Committee on Oversight and Reform
census, jurisdiction over, Sec. 1
Committee on the Judiciary
apportionment, jurisdiction over, Sec. 1
Committees
apportionment, jurisdiction over, Sec. 1
campaign practices, jurisdiction over, Sec. 5
campaign practices, special committee on, Sec. 5
census, jurisdiction over, Sec. 1
special committee on campaign practices, Sec. 5
Constitution
apportionment, provisions regarding, Sec. 1
campaign contribution limits, constitutionality of, Sec. 6
census, provisions regarding, Sec. 1
Federal Election Commission (FEC), constitutional defects in
original appointment structure, Sec. 6
quorum requirements, Sec. 4
Contested Elections
see Elections to the House
Continuity of Operations
see Vacancies
Delegates and Resident Commissioners
apportionment, relationship to, Sec. 1
elections of, Sec. 3
Districting
Baker v. Carr, Sec. 2
compactness, Sec. 2
congressional authority over, Sec. 2
contiguity, Sec. 2
equal population, requirements regarding, Sec. 2
generally, Sec. 2
gerrymandering, Sec. 2
single-Member districts, use of, Sec. 2
state authority over, Sec. 2
Wesberry v. Sanders, Sec. 2
Election Campaigns
campaign expenditures, regulation of, Sec. 5
contribution limits, constitutionality of, Sec. 6
disclosure requirements, Sec. 5
Federal Corrupt Practices Act of 1925, Sec. 5
Federal Election Commission (FEC), Sec. 6
National Publicity Act of 1910, Sec. 5
Tillman Act of 1907, Sec. 5
Election Contests
see Elections to the House
Elections to the House
accessibility, Sec. 3
campaigns, see Election Campaigns
certificate of election, lack of, Sec. 4
civil rights laws, effect of, Sec. 3
congressional authority over, Sec. 3
constitutional amendments, effect of, Sec. 3
constitutional provisions regarding, Sec. 3
Delegates and Resident Commissioners, elections of, Sec. 3
election campaigns, see Election Campaigns
election contests, Sec. 3
Federal Contested Elections Act (FCEA), Sec. 3
Federal Election Commission, see Federal Election Commission (FEC)
oath of office, requirement to take, Sec. 4
primary elections, Sec. 3
qualifications for voting, Sec. 3
registration of voters, Sec. 3
special committee on campaign practices, Sec. 5
special elections, Sec. 4
state authority over, Sec. 3
vacancies, see Vacancies
voter qualifications, Sec. 3
voter registration, Sec. 3
Ethics
campaign finance violations, Sec. Sec. 5, 6, 7
censure, Sec. Sec. 7, 7.4
code of official conduct, campaign provisions in, Sec. 7
Committee on Ethics, Sec. 7
Ethics Reform Act of 1989, Sec. 7
reprimand, Sec. Sec. 7, 7.1-7.3
Federal Election Commission (FEC)
constitutional defects in original appointment structure, Sec. 6
enforcement powers, Sec. 6
Federal Election Campaign Act (FECA), Sec. 6
historical development, Sec. 6
membership, Sec. 6
regulations issued by, Sec. 6
Gerrymandering
see Districting
Invesigations and Inquiries
election contests, relationship to special committee on campaign
practices, Sec. 5
special committee on campaign practices, Sec. 5
Oath of Office
requirement to take, Sec. 4
Speaker, administration of oath by, Sec. 4
Speaker pro tempore, administration of oath by, Sec. 4
Presidential Messages
census results transmitted via, Sec. 1
Privileged Questions
census, former precedents regarding, Sec. 1
statutory disapproval procedures under the Federal Election
Campaign Act (FECA), Sec. 6
Quorums
constitutional requirements, Sec. 4
continuity of operations, Sec. 4
provisional quorums, Sec. 4
whole number adjustment, Sec. 4
Redistricting
see Districting
Resignation
prospective resignations, Sec. 4
vacancies caused by, Sec. 4
Rules of the House
statutory rulemaking under the Federal Election Campaign Act
(FECA), Sec. 6
Speaker of the House
oath of office, administration by, Sec. 4
Speaker pro tempore, Sec. 4
Special Committees
see Committees
Vacancies
certificate of election, lack of, Sec. 4
continuity of operations, Sec. 4
death, Sec. 4
declination, Sec. 4
exclusion, Sec. 4
expulsion, Sec. 4
incapacitation, Sec. 4
resignation, Sec. 4
whole number adjustment, Sec. 4
CHAPTER 9
Election Contests
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Commentary and editing by Max Spitzer, J.D., LL.M.
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A. Jurisdiction and Authority
Sec. 1. Constitutional Provisions; Historical
Background
Sec. 2. Statutory Provisions; Former Statutory
Provisions
Sec. 3. State and Local Election Procedures
Sec. 4. Jurisdiction: House, Committees, and Courts
B. Grounds and Defenses
Sec. 5. Grounds for Initiating a Contest
Sec. 6. Defenses to a Contest
C. Procedure
Sec. 7. Standing; Parties
Sec. 8. Notice of Contest
Sec. 9. Other Pleadings
Sec. 10. Taking Testimony; Depositions
D. Committee and House Consideration
Sec. 11. Burden of Proof; Presumptions
Sec. 12. Ballot Issues; Recounts
Sec. 13. Disposition of Contests
E. Summaries of Election Contests, 1973-2020
Sec. 14. Ninety-third Congress, 1973-1974
Sec. 15. Ninety-fourth Congress, 1975-1976
Sec. 16. Ninety-fifth Congress, 1977-1978
Sec. 17. Ninety-sixth Congress, 1979-1980
Sec. 18. Ninety-seventh Congress, 1981-1982
Sec. 19. Ninety-eighth Congress, 1983-1984
Sec. 20. Ninety-ninth Congress, 1985-1986
Sec. 21. One Hundredth Congress, 1987-1988
Sec. 22. One Hundred First Congress, 1989-1990
Sec. 23. One Hundred Second Congress, 1991-1992
Sec. 24. One Hundred Third Congress, 1993-1994
Sec. 25. One Hundred Fourth Congress, 1995-1996
Sec. 26. One Hundred Fifth Congress, 1997-1998
Sec. 27. One Hundred Sixth Congress, 1999-2000
Sec. 28. One Hundred Seventh Congress, 2001-2002
Sec. 29. One Hundred Eighth Congress, 2003-2004
Sec. 30. One Hundred Ninth Congress, 2005-2006
Sec. 31. One Hundred Tenth Congress, 2007-2008
Sec. 32. One Hundred Eleventh Congress, 2009-2010
Sec. 33. One Hundred Twelfth Congress, 2011-2012
Sec. 34. One Hundred Thirteenth Congress, 2013-2014
Sec. 35. One Hundred Fourteenth Congress, 2015-2016
Sec. 36. One Hundred Fifteenth Congress, 2017-2018
Sec. 37. One Hundred Sixteenth Congress, 2019-2020
Sec. 38. One Hundred Seventeenth Congress, 2021-2022
A. Jurisdiction and Authority
Sec. 1. Constitutional Provisions; Historical Background
When the House first convenes at the outset of a Congress, Members-
elect arrive to be sworn in as full Members of the House. If there are
no controversies or disputes with respect to the election of any
individual, the states will have conveyed the required certificates of
election to the Clerk of the House, and each Member-elect will be
administered the oath of office.(1) However, the right of
any individual to a seat in the House may be challenged by others who
may formally ``contest'' the election. This chapter addresses the
subject of election contests brought before the House of
Representatives.(2)
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1. For more on the administration of the oath, see Precedents
(Wickham) Ch. 2. See also Deschler's Precedents Ch. 2.
2. For earlier treatment of election contests generally, see 1 Hinds'
Precedents Sec. Sec. 528-755; 6 Cannon's Precedents
Sec. Sec. 88-120; and Deschler's Precedents Ch. 9 Sec. Sec. 1-
45.
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The individual who initiates the election contest is known as the
contestant. The individual responding to the contest (most often the
Member-elect bearing a certificate of election) is known as the
contestee. In contested election cases, the matter is styled similar to
a court case: ``Contestant v Contestee'' (with the contestant's name
given first).
The format of this chapter will follow the arrangement used in the
preceding Deschler's Precedents series. The various elements of an
election contest will be analyzed separately in the initial sections,
while the remaining sections will contain full summaries of each
election contest considered by the House between the 93d and 117th
Congresses.(3)
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3. For summaries of election contests brought during the First
Congress through the 59th Congress (1789-1906), see 1 Hinds'
Precedents Sec. Sec. 756-844; and 2 Hinds' Precedents
Sec. Sec. 845-1135. For summaries of election contests brought
during the 60th Congress through the 72d Congress (1907-1933),
see 6 Cannon's Precedents Sec. Sec. 121-189; and the Appendix
to Deschler's Precedents Ch. 9. For summaries of election
contests brought during the 72d Congress through the 92d
Congress (1931-1972), see Deschler's Precedents Ch. 9
Sec. Sec. 46-64.
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Issues surrounding the expulsion of Members from the House, or
exclusion of individuals from its membership, are addressed in Chapter
12 of this series.(4) Similarly, a more detailed discussion
of election practices may be found in Chapter 8.(5) In
addition, Chapter 2 concerns the administration of the oath of office
and the certificates of election, while Chapter 7 contains material on
the qualification of Members.(6)
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4. See also 2 Hinds' Precedents Sec. Sec. 1236-1289; 6 Cannon's
Precedents Sec. Sec. 236-239; and Deschler's Precedents Ch. 12
Sec. 13, 14.
5. See also 1 Hinds' Precedents Sec. Sec. 507-527; 6 Cannon's
Precedents Sec. Sec. 66-87; and Deschler's Precedents Ch. 8.
6. See also 1 Hinds' Precedents Sec. Sec. 127-185, 414-506; 2 Hinds'
Precedents Sec. 1136-1235; 6 Cannon's Precedents Sec. Sec. 6-22
and 55-65; Deschler's Precedents Ch. 2; and Deschler's
Precedents Ch. 7.
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Constitutional Provisions
Article I, section 4, of the U.S. Constitution provides that the
``Times, Places, and Manner'' of holding elections for Representatives
to the House shall be vested in the legislatures of the individual
states.(7) However, Congress may ``at any
time''(8) enact laws to alter the regulations propounded by
state legislatures. These constitutional provisions effectively create
concurrent jurisdiction over the election of Representatives, and
Congress has on many occasions exercised its authority to regulate
state election procedures.(9)
---------------------------------------------------------------------------
7. House Rules and Manual Sec. 42 (2021).
8. Id.
9. Voting and election laws have been codified in Title 52 of the U.S.
Code. Chapter 301 concerns the regulation of Federal election
campaigns and campaign financing. See 52 U.S.C. Sec. Sec. 30101
et seq.
---------------------------------------------------------------------------
Pursuant to article I, section 5, of the Constitution, the House
``shall be the Judge of the Elections, Returns, and Qualifications of
its own Members.''(10) The Supreme Court has held that the
question as to the right of an individual to a seat in the House is a
``nonjusticiable political question.''(11) The House itself
has asserted its right under the Constitution to be the final arbiter
of who is entitled to membership.(12)
---------------------------------------------------------------------------
10. House Rules and Manual Sec. 46 (2021). See also 1 Hinds' Precedents
Sec. 634.
11. Roudebush v. Hartke, 405 U.S. 15, 19 (1972).
12. See Deschler's Precedents Ch. 9 Sec. 1 (fn. 3) (The right to a seat
in the House ``is in the sole and exclusive jurisdiction of the
House of Representatives.''). See generally, 1 Hinds'
Precedents Sec. Sec. 634-677; and 6 Cannon's Precedents
Sec. Sec. 90-96.
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Sec. 2. Statutory Provisions; Former Statutory Provisions
When the House first convened in 1789, it had no statutory
mechanism for resolving election contests. Instead, it established a
standing Committee of Elections to handle any disputes that
arose.(1) That committee promulgated rules for taking
evidence and other procedures relating to election contests. These
procedures were codified in statute in 1798, and remained in force
until the mid-19th century.(2)
---------------------------------------------------------------------------
1. 1 Annals of Cong. 127, 1st Cong. 1st Sess. (Apr. 14, 1789).
2. 1 Stat. 537. See also Staff of H. Comm. on Admin., 112th Cong. A
History of the Committee on House Administration 1947-2012, at
27-30 (Comm. Print 2013).
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In 1851, a second statute addressing contested congressional
elections was enacted into law.(3) This statute, the
Contested Elections Act, was used to govern proceedings in election
contests from the 32d Congress to the 91st Congress. In 1969, Congress
passed the Federal Contested Elections Act (FCEA),(4) which
has regulated the consideration of election contests from the 92d
Congress to the present. The enactment of the modern statute
affirmatively repealed the earlier contested elections law. All
election contests discussed in this chapter were decided after
enactment of the modern statute.
---------------------------------------------------------------------------
3. 9 Stat. 568. Prior to its repeal, this statute (along with
subsequent amendments to the original act) had been codified at
2 U.S.C. Sec. Sec. 201-226.
4. 2 U.S.C. Sec. Sec. 381-396.
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The FCEA prescribes procedures for initiating an election
contest,(5) taking testimony and evidence,(6) and
filing pleadings.(7)
---------------------------------------------------------------------------
5. See Sec. 8, infra.
6. See Sec. 10, infra.
7. See Sec. 9, infra.
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Sec. 3. State and Local Election Procedures
Although the Constitution confers on Congress the ability to alter
any state or local regulations concerning the conduct of elections for
Members to the House, Congress has typically deferred to state and
local election boards to conduct elections in the manner of their
choosing. The House has no authority to direct state or local officials
to conduct a recount, or to otherwise intervene in those election
procedures. If an election contest is pursued, the case is typically
brought to the House after state and local officials have completed
their work (i.e., the result has been officially certified by the
relevant state authorities). State courts have often disclaimed
jurisdiction over election contests, in deference to the constitutional
provision giving the House sole authority to judge the elections of its
Members.(1)
---------------------------------------------------------------------------
1. See, e.g., McCuen v Dickey, Sec. 24.1, infra (Arkansas circuit
court dismissed case, citing lack of jurisdiction).
---------------------------------------------------------------------------
Sec. 4. Jurisdiction: House, Committees, and Courts
As noted earlier, constitutional provisions confer jurisdiction
over the election of its Members to the House. Under the Federal
Contested Elections Act (FCEA), the House attains jurisdiction over an
individual election contest when the notice of contest is filed by the
contestant with the Clerk of the House. The Clerk then transmits the
notice and any accompanying papers or pleadings to the Committee on
House Administration. No further action of the House is required for
the Committee on House Administration to begin consideration of the
case.
An election contest may also be initiated by the House
itself.(1) On opening day of a new Congress, prior to the
swearing-in of Members-elect, any Member-elect may offer a challenge to
the seating of any other Member-elect.(2) The House must
then decide how to resolve the challenge, either by seating the Member-
elect despite the challenge, by seating the Member-elect conditionally
but referring the issue to the Committee on House Administration, or by
declining to seat the Member-elect and referring the case to committee.
---------------------------------------------------------------------------
1. See Precedents (Wickham) Ch. 2 Sec. 4.
2. Parliamentarian's Note: Since the advent of the modern statute
prescribing procedures for resolving election contests,
challenges on the floor of the House on opening day have been
extremely rare. Since the 93d Congress in 1973, there have only
been two instances of a Member-elect being challenged, both
occurring in 1985. See Precedents (Wickham) Ch. 2
Sec. Sec. 4.1, 4.2; McCloskey v McIntyre, Sec. 20.1; and Hansen
v Stallings, Sec. 20.3, infra. In the 117th Congress, a
challenge was made to the seating of all Members-elect from
certain states, and the House subsequently adopted a privileged
resolution authorizing the Speaker to administer the oath of
office to all Members-elect. See 167 Cong. Rec. H7-H8 [Daily
Ed.], 117th Cong. 1st Sess. (Jan. 3, 2021).
---------------------------------------------------------------------------
Under the FCEA, a notice of contest must first be filed before the
House takes cognizance of the election contest. This requirement does
not, however, affect the House's plenary authority under the
Constitution to decide election cases. Where the House finds no merit
in the contest (for example, the contestant is found to be incompetent
under the statute to bring a claim), it may summarily dismiss the
contest prior to committee consideration.(3) Similarly,
where there is extrinsic evidence of irregularities in an election, the
House may itself initiate a contest even where no notice of contest has
been filed.(4) There have also been instances where the
House has failed to take formal action on an election contest--most
often where the contestee is determined to have the final right to the
seat but is already a sworn Member.(5)
---------------------------------------------------------------------------
3. See Deschler's Precedents Ch. 9 Sec. Sec. 4.4, 4.5.
4. See, e.g., McCloskey v McIntyre, Sec. 20.1, infra.
5. See Deschler's Precedents Ch. 9 Sec. Sec. 42.19, 42.20.
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On April 14, 1789, the House established a ``Committee of
Elections,'' and chose seven Members by ballot to serve on such
committee.(6) Members of this committee were charged with
examining certificates of election, taking ``into their consideration
all such matters as shall or may come in question . . . touching
returns and elections,'' and to report their findings back to the
House.(7) In 1794, the House adopted a resolution requiring
that a Committee of Elections ``be appointed at the commencement of
each session.''(8) This committee would have exclusive
jurisdiction over election contests for the next century.
---------------------------------------------------------------------------
6. 1 Annals of Cong. 127-28, 1st Cong. 1st Sess. (Apr. 14, 1789).
7. Id.
8. 1 Annals of Cong. 879-80, 3d Cong. 2d Sess. (Nov. 13, 1794).
---------------------------------------------------------------------------
Toward the end of the 19th century, as the membership of the House
grew larger, the workload of the committee correspondingly increased.
In 1895, the Committee on Elections was split into three separate
committees: Committee on Elections No. 1, Committee on Elections No. 2,
and Committee on Elections No. 3.(9) These three committees
handled election contests until the mid-20th century. As part of the
Legislative Reorganization Act of 1946,(10) committee
jurisdictions were streamlined, numerous committees were consolidated,
and the jurisdiction of the three election committees was subsumed into
the new Committee on House Administration.(11) The Committee
on House Administration maintains a Subcommittee on Elections to
address contested elections. It has also chosen to form ad hoc task
forces and panels to address individual election contests.
---------------------------------------------------------------------------
9. See 4 Hinds' Precedents Sec. 4019.
10. P.L. 79-601, 60 Stat. 812.
11. Staff of H. Comm. on Admin., 112th Cong. A History of the Committee
on House Administration 1947-2012, at 21-22 (Comm. Print 2013).
---------------------------------------------------------------------------
Pursuant to clause 1(k)(12) of rule X,(12) the Committee
on House Administration has jurisdiction over the election of Members,
as well as all election contests. Similarly, the FCEA contemplates
actions by the relevant ``committee'' of the House, which is defined as
the Committee on House Administration.(13)
---------------------------------------------------------------------------
12. House Rules and Manual Sec. 724 (2021).
13. Parliamentarian's Note: As codified, the FCEA still refers to the
Committee on House Administration by its former name: the
Committee on House Oversight. The Committee on House
Administration was known by this name during the 104th and
105th Congresses. See House Rules and Manual Sec. 724 (2021).
---------------------------------------------------------------------------
B. Grounds and Defenses
Sec. 5. Grounds for Initiating a Contest
The Federal Contested Elections Act (FCEA) does not specify the
grounds on which an election contest may be based. Contestants are thus
free to assert any basis for challenging the right of the contestee to
the seat in question. However, it should be noted that the statute
contemplates affirmative defenses that the contestee may utilize in
responding to a notice of contest. One such defense directly addresses
the claims made by the contestant in the notice of contest: the
contestant must state grounds sufficient to change the result of the
election.(1) Thus, whatever facts the contestant alleges as
a basis for contesting the election must be sufficient to meet this
burden.
---------------------------------------------------------------------------
1. 2 U.S.C. Sec. 383(b)(3).
---------------------------------------------------------------------------
The notice of contest must also state ``with particularity'' the
grounds on which the contestant seeks to challenge the results of the
election.(2) Vague or ambiguous allegations will not be
sufficient for the contestant to succeed, and the Committee on House
Administration has often recommended the dismissal of election contests
on the basis that the grounds relied upon in the notice of contest were
insufficiently specific to carry the burden of proof.(3)
---------------------------------------------------------------------------
2. 2 U.S.C. Sec. 382(b).
3. See, e.g., Sec. 5.1, infra.
---------------------------------------------------------------------------
Voting and Balloting Irregularities
By far the most common allegation proffered in a notice of contest
is that there were substantial irregularities in election procedures or
the tabulation of votes.(4) The specifics of such claims
vary from contest to contest. For instance, the contestant may assert
that voting machines or equipment failed to accurately record
votes.(5) The contestant may claim that the ballots
themselves (or the process of marking ballots) were confusing or
ambiguous and that, as a result, the intent of the voter was not
properly ascertained.(6) It may also be asserted that
individuals not qualified to vote were nevertheless permitted to cast
votes illegally.(7)
---------------------------------------------------------------------------
4. For an earlier treatment of such issues, see Deschler's Precedents
Ch. 9 Sec. 12.
5. See, e.g., Sec. 5.2, infra.
6. See, e.g., Sec. 5.3, infra.
7. See, e.g., Sec. 5.4, infra.
---------------------------------------------------------------------------
The conduct of election officials is often raised as an issue in
the contestant's notice of contest. The contestant may claim that
election officials either intentionally breached their duties under
state and local election laws,(8) or that the officials were
negligent in carrying out such duties.(9)
---------------------------------------------------------------------------
8. See, e.g., Sec. 5.5, infra.
9. See, e.g., Hansen v Stallings, Sec. 20.3; and Curtis v Feeney,
Sec. 31.2, infra.
---------------------------------------------------------------------------
Improper Attempts to Influence Voters
Another common ground for initiating an election contest is the
allegation that the contestee sought to improperly influence or confuse
voters.(10) The specifics of this type of claim may involve:
harassment or intimidation of voters;(11) ``vote-buying'' or
other attempts to bribe voters;(12) or the dissemination of
misleading information to voters.(13)
---------------------------------------------------------------------------
10. For an earlier treatment of such issues, see Deschler's Precedents
Ch. 9 Sec. 11.
11. See, e.g., Sec. 5.6, infra.
12. Id.
13. See, e.g., Young v Mikva, Sec. 15.1, infra.
---------------------------------------------------------------------------
Violations of Campaign Practices Laws
Election campaigns are conducted pursuant to a variety of Federal,
state, and local laws.(14) Such laws regulate how campaign
contributions are collected and spent, what communications to voters
are permitted, and other campaign practices. A contestant may base
their challenge to the results of the election on allegations that the
contestee violated these laws (and that, but for the election campaign
violations, the contestant would have been elected
instead).(15)
---------------------------------------------------------------------------
14. See Precedents (Smith) Ch. 8. For earlier treatment of the
regulation of campaign practices, see Deschler's Precedents Ch.
8 Sec. Sec. 10-14.
15. See, e.g., Sec. 5.7, infra. See also Deschler's Precedents Ch. 9
Sec. 10.
---------------------------------------------------------------------------
Qualifications; Exclusion
The contestant may assert that the contestee in an election contest
is not entitled to a seat in the House on the grounds that the
contestee does not meet the qualifications for office laid out in the
Constitution (and thus was never a viable candidate for the
seat).(16) However, the House has been reluctant to treat
such claims as a legitimate basis for initiating an election contest,
as the individual was still properly elected to the seat. Instead, the
House had usually viewed such claims as more appropriately adjudicated
in the context of exclusion from the House, rather than as an election
contest.(17)
---------------------------------------------------------------------------
16. Parliamentarian's Note: The differences in outcome between an
election contest and a case of exclusion can be summarized as
follows: an election contest in which the contestant is
successful results in the unseating of the contestee and the
seating of the contestant. However, the exclusion of an
individual from the House, on the basis that the individual is
not qualified to serve, results in a vacancy in the seat (which
must be filled via special election).
17. See Precedents (Smith) Ch. 7. See also Deschler's Precedents Ch. 7
Sec. Sec. 9-14 and Deschler's Precedents Ch. 12 Sec. 14.
---------------------------------------------------------------------------
However, the Committee on House Administration has on occasion
taken up cases where one of the bases for the election contest was the
lack of proper qualifications by the contestee.(18) In no
such cases since the advent of the FCEA did the committee find that the
arguments by the contestant had merit; all were thus dismissed by the
House.
---------------------------------------------------------------------------
18. See, e.g., Sec. 5.8, infra.
---------------------------------------------------------------------------
Other Grounds
Since the advent of the FCEA, a variety of other arguments have
been raised as possible grounds for challenging the outcome of an
election. These have included: abuse or misuse of an official
position;(19) intimidation of, or threats directed at, the
contestant;(20) and refusal to debate the
contestant.(21) Finally, a number of election contests have
been brought under the FCEA based on alleged fraud or error in the
primary election to select party candidates for the general
election.(22) In general, the House has been reluctant to
treat such grounds as valid, on the theory that losing primary
candidates do not have standing to challenge the results of the general
election.(23)
---------------------------------------------------------------------------
19. See, e.g., Sec. 5.9, infra.
20. See, e.g., Sec. 5.10, infra.
21. See, e.g., Sec. 5.11, infra.
22. See, e.g., Sec. 5.12, infra.
23. See Sec. 7, infra.
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Sec. 5.1 Grounds for initiating an election contest must be based on
specific evidence, and the notice of contest must state ``with
particularity'' the basis for challenging the results of the
election.
In the case of Wilson v Hinshaw (Sec. 15.3, infra), the committee
report evinced the proposition that the contestant must provide enough
evidence to allow the committee to determine whether ``contestant's
claims are substantial and not frivolous''(24) Allegations
of fraud in the notice of contest ``should disclose with particularity
what, when, where, how much and by whom.''(25) The committee
ultimately concluded that the allegations in that case were ``vague and
uncertain as to the necessary particulars.''(26) In the case
of Lowe v Fowler (Sec. 16.7, infra), the committee asserted that the
contestant must meet the high burden of providing specific, substantial
evidence, and, in dismissing the contest, concluded that this
``standard has not been met by the contestant in his
pleadings.''(27)
---------------------------------------------------------------------------
24. H. Rept. 94-761, 94th Cong. 1st Sess. p. 3.
25. Id. at p. 4.
26. Id.
27. H. Rept. 95-724, 95th Cong. 1st Sess. p. 4.
---------------------------------------------------------------------------
Sec. 5.2 A notice of contest may be based on allegations that voting
machines or equipment failed to accurately record votes.
In the case of McCuen v Dickey (Sec. 24.1, infra), the contestant
alleged that ``the position of the individual voting pointers, vis a
vis the location of the names on the ballot inserts associated with
these pointers, was misleading to voters.''(28) Contestant
further alleged that certain voting machines were ``improperly
programmed and were defective''(29) and that other machines
were not properly secured against tampering.(30) In the case
of Gonzalez v Diaz-Balart (Sec. 31.1, infra), the contestant alleged
that voting machines ``were hacked or had their data tabulations
altered by electronic means.''(31) In both of these cases,
the committee found the claims of the contestants unpersuasive, and
resolved the contests in favor of the contestees.
---------------------------------------------------------------------------
28. H. Rept. 103-109, 103d Cong. 1st Sess. p. 4.
29. Id. at p. 5.
30. Id. at p. 6.
31. H. Rept. 110-175, 110th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
Sec. 5.3 A notice of contest may be based on the allegation that
ballots were inherently confusing or ambiguous, and thus the intent
of the voter was not properly ascertained.
In the case of Dehr v Leggett (Sec. 16.5, infra), the election was
conducted using IBM Votomatic machines, where a data card is inserted
underneath a plastic ballot sheet and perforated when the voter makes a
selection. The contestant argued that penciled-in notations regarding
write-in candidates obscured the contestant's name and thus misled
voters as to whom they were selecting (a claim ultimately rejected by
the Committee on House Administration).(32) In the case of
Archer v Packard (Sec. 19.1, infra), Votomatic machines were also used,
and it was alleged by the contestant that voters attempting to vote for
a write-in candidate defaced some machines--leading to possible
confusion by subsequent voters using those machines.(33)
However, the contestant could only provide one substantiated instance
of a voter who claimed that his vote had been affected by a defaced
machine,(34) and the case was dismissed. In the case of
McCuen v Dickey (Sec. 24.1, infra), the contestant alleged that it was
``difficult for voters to align the name of the person for whom they
wished to vote, with the pointer designated for the person'' due to the
ballot design.(35) The committee, however, was not persuaded
by this argument and the case was ultimately dismissed.
---------------------------------------------------------------------------
32. H. Rept. 95-654, 95th Cong. 1st Sess. pp. 2, 3.
33. H. Rept. 98-452, 98th Cong. 1st Sess. p. 4.
34. Id.
35. H. Rept. 103-109, 103d Cong. 1st Sess. p. 5.
---------------------------------------------------------------------------
Sec. 5.4 A notice of contest may be based on the allegation that
individuals ineligible to vote were nevertheless permitted to cast
ballots.
In the case of Hansen v Stallings (Sec. 20.3, infra), the
contestant claimed that ``illegal votes had been cast by persons not
properly registered'' to vote, and that such votes ``if removed from
the results, would change the outcome of the election.''(36)
The Committee on House Administration in that case went on to analyze
Idaho state law regarding proper registration procedures, and concluded
that ``no facts have been produced from which it could be concluded
that the voters involved were not qualified.''(37) In the
Dornan v Sanchez (Sec. 26.1, infra) case, the contestant argued that
illegal votes were cast by a variety of unqualified individuals,
including ``under-age voters'' ``noncitizens,'' and ``convicted
felons.'' The contestant ultimately narrowed his claims to the issue of
voting by noncitizens. The committee investigation did find evidence
that illegal votes were cast, but not enough to make a difference.
---------------------------------------------------------------------------
36. H. Rept. 99-290, 99th Cong. 1st Sess. p. 3.
37. Id. at p. 4.
---------------------------------------------------------------------------
Sec. 5.5 A notice of contest may allege intentional or negligent
improper conduct by state and local election officials.
In the case of Freeman v Mitchell (Sec. 17.2, infra), the
contestant argued that improper conduct by election officials was
intentional, that ``contestee and associates conspired with election
officials,'' and that the ``election was illegally and improperly
certified.''(38) Ultimately, the committee concluded in that
case that the contestant had ``failed to support'' such allegations
``with documentary or other evidence.''(39) In the Archer v
Packard (Sec. 19.1, infra) case, the contestant incorporated into his
notice of contest the allegations contained in a petition filed in
state court that claimed ``a variety of inadequacies in the . . .
conduct of officials charged with overseeing the
election.''(40) However, the committee ``found no evidence
of criminal violations of the California Election Code by election
officials'' and the case was dismissed.(41) The Anderson v
Rose (Sec. 25.1, infra) case involved a ``long laundry list of
allegations, principally directed at elections officials in Robeson
County''(42) by the contestant. The contestant claimed both
intentional and negligent conduct by election officials--that
``[b]allots were improperly remarked by election
officials,''(43) and that ``election officials were
improperly advising and assisting voters.''(44) Ultimately,
the committee concluded that the contestant did not provide the
necessary evidence to support his claims, and the case was dismissed.
---------------------------------------------------------------------------
38. H. Rept. 96-226, 96th Cong. 1st Sess. p. 4.
39. Id.
40. H. Rept. 98-452, 98th Cong. 1st Sess. p. 2.
41. Id. at p. 4.
42. H. Rept. 104-852, 104th Cong. 2d Sess. p. 18.
43. Id. at p. 5.
44. Id. at p. 12.
---------------------------------------------------------------------------
Sec. 5.6 A notice of contest may be based on the allegation that the
contestee sought to improperly influence, intimidate, or confuse
voters.
In the Anderson v Rose (Sec. 25.1, infra) case, contestant
submitted affidavits and other evidence ``suggesting that voters were
harassed at certain polling stations.''(45) The contestant
also claimed that ``[b]ribes were offered to voters with funds
contributed'' by the contestee.(46) Similarly, in the
Hayward v Cuellar (Sec. 34.1, infra) case, the contestant argued that
some voters were ``intimidated''(47) and that others ``were
given free tacos, and were provided money in return for their
vote.''(48) Accusations of bribery were also at the center
of the Wilson v Leach (Sec. 17.4, infra) case, where contestant alleged
that voters were ``paid to vote in the election for
Contestee.''(49) In the Young v Mikva (Sec. 15.1, infra)
case, contestant claimed that the election was marred by ``[w]idespread
dissemination by Contestee to hundreds of thousands of voters of false
and misleading information about Contestant.''(50) In all of
these cases, the committee found that the contestant did not support
the allegations with sufficient evidence, and the cases were dismissed.
---------------------------------------------------------------------------
45. H. Rept. 104-852, 104th Cong. 2d Sess. p. 13.
46. Id. at p. 5.
47. H. Rept. 113-22, 113th Cong. 1st Sess. p. 2.
48. Id. at p. 4.
49. H. Rept. 96-784, 96th Cong. 2d Sess. p. 3.
50. H. Rept. 94-759, 94th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
Sec. 5.7 Allegations that the contestee violated laws regarding
permissible campaign practices have been used as the basis of a
notice of contest.
Federal, state, and local laws govern what activities candidates
for House seats may engage in during their campaigns. Contestants have
sometimes based their contests on accusations that the contestee
violated such laws. For example, one of the allegations contained in
the notice of contest in the Young v Mikva (Sec. 15.1, infra) case was
the ``acceptance by Contestee of political contributions in violation
of the FECA of 1971, and the failure to report these contributions as
required by law.''(51) In the Wilson v Hinshaw (Sec. 15.3,
infra) case, a grand jury indicted contestee ``on one count of
conspiracy to pay voters in order to secure his election and ten counts
of paying voters''(52) but the contestee was acquitted by a
Federal jury. Ultimately, ``Contestant withdrew any allegations of
involvement by Contestee''(53) in the alleged fraud and
irregularities surrounding the election. Both of these cases were
decided by the committee in favor of the contestee.
---------------------------------------------------------------------------
51. Id.
52. H. Rept. 94-761, 94th Cong. 1st Sess. p. 2.
53. Id. at p. 3.
---------------------------------------------------------------------------
Sec. 5.8 The House has viewed claims that the contestee failed to meet
constitutional requirements for qualification as more properly
framed as a matter of exclusion to be decided by the House rather
than as a legitimate basis to contest an election.
In the Mack v Stokes (Sec. 15.4, infra) case, the committee ``took
note of the fact that this case is a qualifications case and as such
would more appropriately be brought to the House of Representatives by
a petition or memorial rather than by proceeding in the nature of a
contest.''(54) In the case of Lyons v Gordon (Sec. 29.2,
infra), contestant advanced the theory that the contestee was not
qualified to serve in the House because certain actions of his rendered
him an ``insurrectionist'' under clause 3 of the 14th
Amendment.(55) In response, the committee found that, ``as a
general matter, challenges to the qualifications of a member-elect to
serve in the Congress fall outside the purview of the FCEA, which was
designed to consider allegations relating to the actual conduct of the
election.''(56) In the Cox v McCrery (Sec. 31.5, infra)
case, the contestant argued that ``the Contestee was not, when elected
on November 7, 2006, an inhabitant of the state of Louisiana within the
meaning of the Qualification clause.''(57) The committee,
however, found that, ``[u]nder the precedents, a challenge to the
qualifications of a Member is not treated as an election
contest''(58) and that ``challenges to the qualifications of
a Member-elect to serve in the Congress are not a proper subject for a
contest brought under the FCEA.''(59) Although in each of
these cases the committee recommended dismissal based on a failure to
adequately support their grounds for the contests, it nevertheless
evinced a view that qualifications challenges should not be made in the
context of an election contest.
---------------------------------------------------------------------------
54. H. Rept. 94-762, 94th Cong. 1st Sess. p. 2.
55. H. Rept. 108-208, 108th Cong. 1st Sess. p. 2.
56. Id. at p. 4.
57. H. Rept. 110-177, 110th Cong. 1st Sess. p. 2.
58. Id. at p. 3.
59. Id. at p. 4.
---------------------------------------------------------------------------
Sec. 5.9 A notice of contest has been based on the allegation that
contestee (or others) abused or misused an official position to
affect the outcome of the election.
In the Wilson v Hinshaw (Sec. 15.3, infra) case, the contestant
argued that ``misconduct by Contestee and abuse of his position as
County Assessor''(60) resulted in an election that was not
``fair, independent, and open.''(61) In the case of Saunders
v Kelly (Sec. 16.1, infra), the contestant alleged that ``the chairman
of the Florida Ethics Commission carried out an attack . . . against
her candidacy''(62) and that the contestee ``conspired with
the Chairman of the committee to attack her candidacy.''(63)
In both of these cases, the accusations of misuse of official positions
were deemed by the committee as not sufficiently supported with
specific evidence, and the cases were dismissed.
---------------------------------------------------------------------------
60. See H. Rept. 94-761, 94th Cong. 1st Sess. p. 2.
61. Id.
62. H. Rept. 95-242, 95th Cong. 1st Sess. p. 2.
63. Id.
---------------------------------------------------------------------------
Sec. 5.10 A notice of contest has been based on allegations that the
contestee made threats against the contestant or engaged in other
acts of intimidation.
In the case of Freeman v Mitchell (Sec. 17.2, infra), the
contestant ``alleged acts of violence and intimidation to herself, her
husband, her campaign staff, and her supporters.''(64) Such
acts allegedly included ``telephone death threats,'' ``attempts to
extort money,'' and ``a threat to contestant's own life at
gunpoint.''(65) However, the committee determined that the
contestant did not sufficiently support such claims and ``failed to
meet the burden placed on contestant by the act in order to overcome
the motion to dismiss.''(66)
---------------------------------------------------------------------------
64. H. Rept. 96-226, 96th Cong. 1st Sess. p. 4.
65. Id.
66. Id. at p. 5.
---------------------------------------------------------------------------
Sec. 5.11 A notice of contest has been based in part on the allegation
that, but for contestee's failure to debate the contestant, the
outcome of the election would have been different.
In the Tataii v Abercrombie (Sec. 32.1, infra) case, the committee
report noted that ``Contestant's sole allegation supporting his contest
is that, but for Contestee's refusal to debate him, Contestant would
have won election to the First Congressional District'' of
Hawaii.(67) However, the committee concluded that such
accusations were ``no more than unsupported speculation'' and that
contestant's ``claims do not cast sufficient doubt on the results of
the election to merit further investigation.''(68) The case
was subsequently dismissed.
---------------------------------------------------------------------------
67. H. Rept. 111-68, 111th Cong. 1st Sess. p. 3.
68. Id. at p. 4.
---------------------------------------------------------------------------
Sec. 5.12 The House has rejected fraud or error in the primary election
as a valid basis for a notice of contest.
In the Perkins v Byron (Sec. 17.1, infra) case, the contestant
``claimed that the Maryland Democratic Central Committee failed to
provide adequate notice of the meeting''(69) at which an
alternative nominee was selected following the death of the prior
nominee. The committee report stated that the contestant ``made no
claim of any irregularity in the conduct of the general
election.''(70) It concluded that the contestant ``failed to
demonstrate that his allegations, if true, would have changed the
election results.''(71) The case of Tataii v Case
(Sec. 29.1, infra) also involved the death of one party's nominee prior
to the general election. The deceased candidate won the general
election posthumously, and a special election was held to fill the
resulting vacancy. The committee report on the contest summarized the
basis for contestant's claim as follows: ``. . . the contestant's claim
to why he is entitled to the Second Congressional seat is based chiefly
on his argument that Representative Mink should have been disqualified
as a primary candidate, that he should have been declared the
Democratic nominee by default, and that as the nominee, he would have
been the inevitable general election winner.''(72) The
committee was not persuaded by this argument, deciding that ``the basis
for the contestant's Notice of Contest falls outside the scope of the
FCEA.''(73) In its analysis, the committee stated
unequivocally that, ``[b]y its very terms, the FCEA does not
contemplate considering Notices of Contest that are based on the
conduct of primary elections.''(74) Thus, the case was
decided in favor of the contestee.
---------------------------------------------------------------------------
69. H. Rept. 96-78, 96th Cong. 1st Sess. p. 3.
70. Id.
71. Id. at p. 4.
72. H. Rept. 108-207, 108th Cong. 1st Sess. pp. 4, 5.
73. Id. at p. 5.
74. Id. at p. 4.
---------------------------------------------------------------------------
Sec. 6. Defenses to a Contest
The Federal Contested Elections Act (FCEA) provides four possible
defenses that a contestee may assert in opposition to a notice of
contest filed by the contestant. These are: (1) insufficiency of
service; (2) lack of standing of the contestant; (3) failure of the
notice of contest to state grounds sufficient to change the results of
the election; and (4) failure of contestant to claim a right to
contestee's seat.(1)
---------------------------------------------------------------------------
1. 2 U.S.C. Sec. 383(b).
---------------------------------------------------------------------------
The notice of contest filed by the contestant must be properly
served on the contestee in conformity with the statute's service
requirements.(2) The statute requires that the notice of
contest be filed within 30 days after the results of the election have
been officially declared by the relevant state
authorities.(3) Thus, the untimely filing of a notice of
contest may be raised by the contestee as a possible
defense.(4) Other deficiencies in service (such as lack of
proof of service, or improper form of the notice) may similarly be
raised by the contestee under this statutory defense.(5)
---------------------------------------------------------------------------
2. 2 U.S.C. Sec. 382(c).
3. 2 U.S.C. Sec. 382(a).
4. See, e.g., Sec. 6.1, infra.
5. See, e.g., Sec. 6.2, infra.
---------------------------------------------------------------------------
The contestant must have proper standing to challenge the results
of the election, and the contestee may allege lack of standing as a
defense to a notice of contest.(6) The FCEA specifies that,
to have proper standing, an individual must have been ``a candidate for
election in the last preceding election.''(7) Thus, losing
primary election candidates, campaign organizations, or other
individuals who were not candidates in the general election, will not
be able to meet the requirements for standing under the
statute.(8)
---------------------------------------------------------------------------
6. 2 U.S.C. Sec. 383(b)(2). For a discussion of standing generally,
see Sec. 7, infra. For examples of election contests where the
contestee raised the issue of standing, see, e.g., Lowe v
Fowler, Sec. 16.7; Thorsness v Daschle, Sec. 17.5; and Project
Hurt v Waters, Sec. 34.3, infra. See also Deschler's Precedents
Ch. 9 Sec. Sec. 14.1, 14.2.
7. 2 U.S.C. Sec. 382(a). Under the former Contested Elections Act, the
standing requirements were not as strict as under the FCEA, and
the statute theoretically permitted ``any person'' to challenge
the results of an election. See Deschler's Precedents Ch. 9
Sec. 19. Nevertheless, even under the old statute, the House
considered individuals who were not candidates in the general
election as incompetent to pursue a claim. See Deschler's
Precedents Ch. 9 Sec. 19.1.
8. Parliamentarian's Note: Although the individual or entity filing a
notice of contest under the FCEA may lack proper standing, the
Committee on House Administration may nevertheless elect to
consider the merits of the case in order to dismiss the case on
substantive rather than merely procedural grounds. See, e.g.,
Project Hurt v Cohen, Sec. 34.2, infra.
---------------------------------------------------------------------------
To prevail in an elections contest case, the contestant must show
not only that there were errors, fraud, or irregularities in the
conduct of the election, but also that such factors were sufficient to
change the result of the election.(9) In other words, but
for such factors, the contestant (rather than the contestee) would have
been declared the winner of the election. Since the advent of the FCEA,
contestees have often asserted the defense that, even accepting the
truth of the contestant's claims regarding the election, the contestant
did not demonstrate that the result would have been
different.(10)
---------------------------------------------------------------------------
9. 2 U.S.C. Sec. 383(b)(3).
10. See, e.g., Sec. 6.3, infra. See also Deschler's Precedents Ch. 9
Sec. 13.3.
---------------------------------------------------------------------------
The final statutory defense under the FCEA is a failure by the
contestant to claim a right to contestant's seat.(11) This
defense has been asserted where, for example, the individual initiating
the contest was only a candidate in the party primary election, but not
a candidate in the general election.(12) In other cases,
this defense has essentially merged with the third statutory defense
(failure to demonstrate that the results of the election would have
been different) because the inability to claim that the result would
have changed necessarily precludes the contestant from claiming that
they should be seated in place of the contestee.(13)
---------------------------------------------------------------------------
11. 2 U.S.C. Sec. 383(b)(4).
12. See, e.g., Hill and Panlasigui v Clay, Sec. 16.6, infra.
13. See, e.g., Sec. 6.4, infra.
---------------------------------------------------------------------------
In addition to these defenses provided by the FCEA, House
precedents delineate additional nonstatutory defenses that a contestee
may assert to counter the allegations made in a notice of
contest.(14) Some of these nonstatutory defenses are
analytically similar to the defenses (or other requirements) provided
in statute. For example, the House has recognized the failure on the
part of the contestant to state the grounds for the contest with
specificity as a valid defense for the contestee(15)
(mirroring the statutory requirement that the contestant state grounds
``with particularity'').(16) Contests that the House has
determined were brought on mere ``conjecture'' have likewise been
dismissed as lacking the required specificity.(17)
---------------------------------------------------------------------------
14. See Deschler's Precedents Ch. 9 Sec. 13.
15. See, e.g., Sec. 6.5, infra. See also Deschler's Precedents Ch. 9
Sec. 13.8.
16. 2 U.S.C. Sec. 382(a).
17. See, e.g., Freeman v Mitchell, Sec. 17.2, infra (contestee claimed
insufficient knowledge to response to vague allegations by
contestant). See also Jennings v Buchanan, Sec. 31.4, infra.
---------------------------------------------------------------------------
Pursuant to the statute, contestants must also request proper
relief in their notice of contest (i.e., claim a right to the
contestee's seat). Where a contestant merely requests a recount of
certain disputed ballots or precincts (without further claiming that
the result of the recount would demonstrate that the contestant was the
actual winner), the committee has recommended dismissal of the
case.(18)
---------------------------------------------------------------------------
18. See, e.g., Ziebarth v Smith, Sec. 15.5; and Hendon v Clarke,
Sec. 19.2, infra.
---------------------------------------------------------------------------
The failure of the contestant to make a prima facie case has also
been recognized by the House as a legitimate defense in an election
contest.(19) Where the contestee asserts that the contestant
has made no claim that there were any irregularities, fraud, or
misconduct in the administration of the election, the House may choose
to dismiss the case as lacking a proper foundation.(20)
---------------------------------------------------------------------------
19. See Deschler's Precedents Ch. 9 Sec. 13.1.
20. See, e.g., Sec. 6.6, infra.
---------------------------------------------------------------------------
The House has been reluctant to accord legitimacy to election
contests where the contestant had opportunities at the state level to
pursue claims related to the conduct of the election but chose to forgo
those opportunities.(21) The defense of a ``failure to
exhaust state remedies'' has been asserted in election contests since
the advent of the FCEA, though the statute does not specifically
require contestants to avail themselves of state processes prior to
commencing an election contest.(22)
---------------------------------------------------------------------------
21. See Deschler's Precedents Ch. 9 Sec. Sec. 13.4, 13.5.
22. See, e.g., Anderson v Rose, Sec. 25.1; and Dornan v Sanchez,
Sec. 26.1, infra.
---------------------------------------------------------------------------
Where the contestant asserts that irregularities or misconduct
occurred prior to the election (for example, errors in the production
or distribution of absentee ballots), the contestee may offer the
defense that such issues should have been addressed at the state level
prior to the election. The House has accepted this defense in earlier
cases,(23) noting that candidates should attempt to resolve
known pre-election issues prior to the election (i.e., when there is
still time to prevent those issues from affecting the outcome of the
election).(24)
---------------------------------------------------------------------------
23. See Deschler's Precedents Ch. 9 Sec. Sec. 13.6, 13.7.
24. See, e.g., Won Pat v Blaz, Sec. 20.2, infra.
---------------------------------------------------------------------------
It is important to note that the contestee is not required to
assert any defense in an election contest in order to prevail. The
burden at all times is on the contestant to prove the case. The FCEA
provides that the ``failure of contestee to answer the notice of
contest or to otherwise defend as provided by this chapter shall not be
deemed an admission of the truth of the averments in the notice of
contest.''(25) Since the enactment of the statute, several
cases have proceeded to committee consideration despite the lack of any
answer or defense offered by the contestee.(26) The
contestant may respond to contestee's defenses by noting that they were
not filed within the time period prescribed by the statute, and thus
should be disregarded as untimely.(27) However, as even the
lack of defense does not shift the burden of proof, an untimely defense
presents no barrier to the success of the contestee.
---------------------------------------------------------------------------
25. 2 U.S.C. Sec. 385.
26. See, e.g., Sec. 6.7, infra; and Tataii v Abercrombie, Sec. 32.1,
infra. Withdrawal from the case by the contestant necessarily
moots any lack of defense on the part of the contestee. See
Kyros v Emery, Sec. 15.2, infra.
27. See, e.g., Hansen v Stallings, Sec. 20.3, infra.
---------------------------------------------------------------------------
Abatement; Laches
An election contest may become moot due to the failure of the
contestant to continue the case to its conclusion.(28)
Contestants may withdraw their notice of contest at any point,
including during committee consideration of the claims, in which case
the election contest is terminated. Furthermore, pursuant to the FCEA,
the contested election ``shall abate'' in the event of the death of the
contestant.(29) Where a notice of contest has been filed,
but the contestant does not thereafter provide the House with any
testimony or evidence in support of the claim, the House may dismiss
the case on that basis.(30) The House may also choose to
dismiss an election contest upon a finding that the contestant has
unreasonably delayed the proceedings by failing to gather evidence,
submit testimony, or file required briefs within the time periods
established by law.(31)
---------------------------------------------------------------------------
28. See, e.g., Hart v Miller-Meeks, Sec. 38.1, infra.
29. 2 U.S.C. Sec. 395.
30. See, e.g., Deschler's Precedents Ch. 9 Sec. Sec. 15.1-15.3.
31. See, e.g., Deschler's Precedents Ch. 9 Sec. Sec. 16.1, 16.2.
---------------------------------------------------------------------------
Sec. 6.1 Contestees may avail themselves of the defense that the
contestant failed to file the notice of contest within the required
time period.
In the Rayner v Stewart (Sec. 17.3, infra) case, the contestee
averred that the notice of contest was not timely filed--a claim that
the ad hoc panel investigating the case concluded was
true.(32) The committee also found no merit to contestant's
substantive claims, and therefore recommend dismissal of the case,
``based on procedural and substantive grounds.''(33) In the
Gonzalez v Diaz-Balart (Sec. 31.1, infra) case, contestee sought ``to
have this election contest dismissed based on Contestant's failure to
timely file the Notice of Contest with the Clerk of the House of
Representatives pursuant to the filing requirements under
FCEA.''(34) Although the committee chose to dismiss the case
on substantive grounds, the minority views accompanying the report
agreed with contestee's assertion regarding the proper method of filing
the notice of contest, and concluded that the case could have been
dismissed on this procedural ground alone.(35) In the
Project Hurt v Cohen (Sec. 34.2, infra) case, the committee report
noted that ``Project Hurt filed the Notice of Contest with the Clerk of
the House of Representatives on March 27, 2013, 112 days past the
certification date. The notice of contest was not timely and therefore
should not be considered.''(36) For this and other reasons,
the case was dismissed.
---------------------------------------------------------------------------
32. H. Rept. 96-316, 96th Cong. 1st Sess. p. 3.
33. Id. at p. 5.
34. H. Rept. 110-175, 110th Cong. 1st Sess. p. 3.
35. Id. at pp. 5, 6.
36. H. Rept. 113-132, 113th Cong. 1st Sess. p. 3.
---------------------------------------------------------------------------
Sec. 6.2 Contestees may base their defense on the lack of (or
deficiencies in) proper service of process.
The FCEA provides that the contestant must properly serve the
contestee with the notice of contest, and lays out the requirements for
proper service.(37) Contestees may therefore offer a defense
that the notice was not properly served. For instance, in the Rayner v
Stewart (Sec. 17.3, infra) case, contestee countered contestant's
notice of contest by claiming, in part, that there was no proof of
service.(38) This alleged procedural defect, along with
other procedural defects related to the notice contest, was accepted by
the committee as accurate, and the case was dismissed ``based on both
procedural and substantive grounds.''(39)
---------------------------------------------------------------------------
37. 2 U.S.C. Sec. 382(c).
38. H. Rept. 96-316, 96th Cong. 1st Sess. pp. 2, 3.
39. Id. at p. 5.
---------------------------------------------------------------------------
Sec. 6.3 Contestees may offer the defense that, even accepting the
factual claims made by the contestant, contestant did not
demonstrate how the result of the election would have been
different.
In the Pierce v Pursell (Sec. 16.4, infra) case, contestee ``filed
a Motion to Dismiss and asserted that the contestant had failed to
state grounds sufficient to change the result of the
election.''(40) In assessing whether or not to grant
contestant's request for a recount, the committee stated that ``some
substantial allegations of fraud must be alleged, and the likelihood
must exist that the result of the election would have been different
were not for such irregularity or fraud.''(41) The committee
ultimately concluded that the contestant had not met this burden. In
the case of Anderson v Rose (Sec. 25.1, infra), contestee's motion to
dismiss ``demanded dismissal on the grounds that Anderson's Notice
failed to state sufficient grounds to change the result of the
election.''(42) The committee report in this case evinced
the following standard for evaluating whether contestant has shown that
the outcome would have been different: credible allegations must be
made which ``show either that: (1) more ballots mere improperly cast
than the margin of victory; or (2) because of contaminating factors
such as bribery, harassment of voters, corruption of officials, etc.,
in certain precinct(s), the credibility of the vote total is
irreparably damaged.''(43) However, the committee concluded
that the ``allegations did not meet the required standard to survive
the Motion to Dismiss.''(44) The contestee in the Curtis v
Feeney (Sec. 31.2, infra) case also filed a motion to dismiss based on
the defense that the contestant ``failed to claim a right to the office
and support that claim with specific credible allegations of
irregularities or fraud that if proven true would be sufficient to
change the result of the election.''(45) The committee
reiterated this standard, stating that to ``survive a motion to
dismiss, Contestant must proffer allegations that, if proven, would
have altered the election outcome.''(46) In recommending
dismissal, the committee concluded that ``Contestant's claims amount to
no more than raw conjecture and speculation unsupported by specific and
credible allegations of irregularity sufficient to put into doubt the
outcome of the election.''(47)
---------------------------------------------------------------------------
40. H. Rept. 95-245, 95th Cong. 1st Sess. p. 2.
41. Id. at p. 4.
42. H. Rept. 104-852, 104th Cong. 2d Sess. p. 6.
43. Id. at p. 7.
44. Id. at p. 12.
45. H. Rept. 110-176, 110th Cong. 1st Sess. p. 3.
46. Id.
47. Id. at p. 6.
---------------------------------------------------------------------------
Sec. 6.4 Contestees may offer a defense that the contestant's notice of
contest failed to include an affirmative claim of right to the seat
at issue.
In the Hill and Panlasigui v Clay (Sec. 16.6, infra) case, a
``Concerned Citizens Committee'' filed a notice of contest on behalf of
two primary election candidates alleging that the election was tainted
by illegal voting and other irregularities and seeking a new primary
election.(48) The committee concluded that no claims were
made regarding the general election and that therefore the contest
should be dismissed on the ground that the ``notice of contest and
subsequent pleadings did not sustain contestants' claim of a right to
contestee's seat.''(49) In the Ziebarth v Smith (Sec. 15.5,
infra) case, one defense offered by the contestee was the ``[f]ailure
of contestant to claim right to contestee's seat.''(50) In
that case, the contestant sought a recount in certain precincts, but
after the committee's review of the pleadings it concluded that there
was no ``indication as to the factual basis for contestant's opinion
that a recount would change the result of the election and substantiate
contestant's claim of a right to the seat in question.''(51)
Similarly, the contestant in the Pierce v Pursell (Sec. 16.4, infra)
case also claimed that a recount of ballots would demonstrate that he
was the rightful winner of the election, and contestee filed a motion
to dismiss based in part on the defense that contestant ``had failed to
claim a right to contestee's seat.''(52) The committee
agreed that the ``present case lacks all of the ingredients that our
colleagues in earlier Congresses have found essential to ordering a
recount'' and recommended dismissal of the case.(53)
Finally, in the Project Hurt v Waters (Sec. 34.3, infra) and the
Project Hurt v Cohen (Sec. 34.2, infra) cases, a not-for-profit
organization attempted to challenge two different congressional
elections, but in both cases the committee stated, ``Project Hurt does
not claim a right to the office''(54) and both cases were
resolved in favor of the contestee.
---------------------------------------------------------------------------
48. H. Rept. 95-723, 95th Cong. 1st Sess. p. 2.
49. Id. at p. 4.
50. H. Rept. 94-763, 94th Cong. 1st Sess. p. 4.
51. Id.
52. H. Rept. 95-245, 95th Cong. 1st Sess. p. 2.
53. Id. at p. 4.
54. H. Rept. 113-133, 113th Cong. 1st Sess. p. 3; and H. Rept. 113-132,
113th Cong. 1st Sess. p. 3.
---------------------------------------------------------------------------
Sec. 6.5 Contestees may offer a defense that the contestant has not
stated the grounds for the contest with sufficient specificity.
In the Saunders v Kelly (Sec. 16.1, infra) case, the contestee
claimed that the notice of contest ``was so vague and ambiguous'' that
the contestee was ``unable to adequately respond
thereto.''(55) The committee ultimately agreed that the
contestant ``has not made the sort of specific allegations accompanied
by supportive evidence that is required to overcome a motion to
dismiss.''(56) Similarly, the contestee in the Freeman v
Mitchell (Sec. 17.2, infra) case claimed that he was ``without
sufficient knowledge or information to respond''(57) to
contestant's allegations, and that contestant ``failed to support her
allegations with documentary evidence.''(58) The committee
reiterated the statutory requirement to state grounds for the contest
with ``particularity''(59) and ultimately recommended
dismissal of the case.
---------------------------------------------------------------------------
55. H. Rept. 95-242, 95th Cong. 1st Sess. p. 2.
56. Id. at p. 4.
57. H. Rept. 96-226, 96th Cong. 1st Sess. p. 2.
58. Id. at p. 3.
59. Id. at p. 5.
---------------------------------------------------------------------------
Sec. 6.6 Contestees may assert a defense that the contestant has not
made a prima facie showing that would overcome the presumption that
the election was properly conducted.
To overcome the presumption that certified election results were
correct and valid, a contestant must make out a prima facie case
demonstrating how fraud, mistake, or other irregularities could
successfully impeach those results.(60) Contestees may
therefore assert a defense that the contestant has not made such a
showing. For example, in the Thorsness v Daschle (Sec. 17.5, infra)
case, contestee argued that ``Contestant made no showing of fraud,
irregularities, or misconduct.''(61) The committee
concurred, stating that, contestant's notice of contest was not
initially supported by any documentary evidence establishing the
allegations(62) and the case was dismissed.
---------------------------------------------------------------------------
60. See, e.g., Deschler's Precedents Ch. 9 Sec. 13.1.
61. H. Rept. 96-785, 96th Cong. 2d Sess. p. 2.
62. Id. at p. 4.
---------------------------------------------------------------------------
Sec. 6.7 Pursuant to the FCEA, the burden of proof rests with the
contestant, and the lack of any timely defense or answer on the
part of the contestee is not to be construed as an admission of the
truth of claims made in the notice of contest.
In the Lyons v Gordon (Sec. 29.2, infra) case, the committee report
noted that the contestee submitted a one-page letter relating to the
case but ``did not file a formal answer in response to the Notice of
Contest.''(63) The committee went on to reiterate that the
``burden remains upon the contestant to provide credible allegations to
the House sufficient to support a claim under the
FCEA.''(64) The case was ultimately dismissed. In the Hansen
v Stallings (Sec. 20.3, infra) case, the contestant argued that
contestee's motion to dismiss should not be granted because it was not
timely filed.(65) However, the committee explained that a
``Motion to Dismiss, whenever filed, is always in order for the
Committee's consideration''(66) and that ``it is immaterial
whether the Committee dismisses the contest on its own initiative, or
upon the motion of the contestee, whenever such motion is
filed.''(67)
---------------------------------------------------------------------------
63. H. Rept. 108-208, 108th Cong. 1st Sess. p. 3.
64. Id.
65. H. Rept. 99-290, 99th Cong. 1st Sess. p. 8.
66. Id.
67. Id.
---------------------------------------------------------------------------
C. Procedure
Sec. 7. Standing; Parties
Under the Federal Contested Elections Act (FCEA), an individual
filing a notice of contest challenging the results of an election must
have been a candidate in that election.(1) In other words,
to have standing to file a notice of contest, the individual must be
eligible to claim a right to the seat. However, as the House is (under
the Constitution) the ultimate arbiter of any disputes with regard to
its membership, the House is at liberty to decide election cases
brought by those who were not candidates for the seat at
issue.(2)
---------------------------------------------------------------------------
1. In order to file a notice of contest under the FCEA, an individual
must have been ``a candidate for election in the last preceding
election.'' 2 U.S.C. Sec. 382(a).
2. Parliamentarian's Note: Under the earlier act (the Contested
Elections Act, formerly codified at 2 U.S.C. Sec. Sec. 201-
226), ``any person'' could give notice of an intention to
contest an election. However, the House still considered
individuals who were not candidates in the general election as
incompetent to pursue a claim. See Deschler's Precedents Ch. 9
Sec. 19.1.
---------------------------------------------------------------------------
Despite the statutory requirement that a contestant be a candidate
in the general election for the seat, the House has taken up several
election contests initiated by other individuals or
organizations.(3) Individuals who lost primary elections,
and were thus precluded from competing in the general election, have
sometimes filed notices of contest.(4) In one case, the
Committee on House Administration treated a losing primary candidate as
competent to file a notice of contest under the statute on the theory
that such an individual was eligible to win the seat as a write-in
candidate.(5) The House has rejected contests initiated by
the campaign manager for a losing general election
candidate,(6) candidates in an unofficial ``shadow''
election,(7) and a citizen challenging multiple elections
via petition.(8)
---------------------------------------------------------------------------
3. For examples of organizations, rather than individuals, filing
notices of contest, see, e.g., Hill and Panlasigui v Clay,
Sec. 16.6; Project Hurt v Cohen, Sec. 34.2; and Project Hurt v
Waters, Sec. 34.3, infra.
4. See, e.g., Tataii v Case, Sec. 29.1, infra. See also Deschler's
Precedents Ch. 9 Sec. Sec. 19.1, 19.4, and 19.5.
5. See, e.g., Haas v Bass, Sec. 25.2, infra (The committee report
states that the contestant ``would have apparent standing to
contest the election.'').
6. See Deschler's Precedents Ch. 9 Sec. 19.2.
7. See Deschler's Precedents Ch. 9 Sec. 19.3.
8. See Deschler's Precedents Ch. 9 Sec. 19.6.
---------------------------------------------------------------------------
The FCEA applies both to elections to the House as Members and to
elections to the House as Delegates or Resident
Commissioners.(9)
---------------------------------------------------------------------------
9. 2 U.S.C. Sec. 381(1). See, e.g., Won Pat v Blaz, Sec. 20.2, infra.
---------------------------------------------------------------------------
Sec. 7.1 In order to have standing to pursue a claim under the FCEA, a
contestant must be an individual who was a candidate in a general
election for a seat in the House.
Under the statutory definition,(10) organizations (such
as advocacy groups, citizens committees, etc.) are not competent to
file claims under the FCEA. The cases of Project Hurt v Cohen
(Sec. 34.2, infra) and Project Hurt v Waters (Sec. 34.3, infra) were
both filed by the same not-for-profit organization. The committee
report in both cases stated that ``Project Hurt does not meet the
definition of Contestant under the FCEA and is not authorized to file a
contest.''(11) These cases were ultimately dismissed by the
House.
---------------------------------------------------------------------------
10. 2 U.S.C. Sec. 382(a).
11. H. Rept. 113-133, 113th Cong. 1st Sess. p. 2; and H. Rept. 113-132,
113th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
Sec. 7.2 Although losing primary election candidates are not competent
to file claims under the FCEA, the House may nevertheless accept
such a filing under the theory that such individuals may have
qualified as write-in candidates in the general election.
In the case of Tataii v Case (Sec. 29.1, infra), the contestant's
substantive claims were aimed at irregularities in the primary
election, and he was not a candidate in the general
election.(12) The committee stated that it was ``unclear,
however, whether a contestant may claim a right to a seat, and thus
have standing, when the basis of his or her complaint relates to the
conduct of the primary election, not the general
election.''(13) The committee went on to dismiss the case on
other grounds, without resolving the question of standing. In the Haas
v Bass (Sec. 25.2, infra) case, the contestant was a losing primary
candidate who nevertheless, under New Hampshire law, was permitted to
solicit votes as a write-in candidate.(14) The committee
concluded that the contestant ``would have apparent standing to contest
the election.''(15)
---------------------------------------------------------------------------
12. H. Rept. 108-207, 108th Cong. 1st Sess. p. 3. Although the
contestant was not a candidate in the general election, he was
a candidate in the special election to fill the vacancy caused
by the death of the incumbent prior to the general election.
13. Id.
14. H. Rept. 104-853, 104th Cong. 2d Sess. p. 2. The FCEA defines a
``candidate'' for purposes of the act as someone whose name was
printed on the general election ballot, or who seeks the office
``by write-in votes, provided that he is qualified for such
office'' and state law permits such write-in candidates. 2
U.S.C. Sec. 381(2).
15. H. Rept. 104-853, 104th Cong. 2d Sess. p.3.
---------------------------------------------------------------------------
Sec. 8. Notice of Contest
Pursuant to the Federal Contested Elections Act (FCEA), an election
contest commences when the contestant files the required initial
pleading: the notice of contest.(1) A defeated candidate in
an election to the House has 30 days under the statute to submit this
document to the Clerk of the House, and to serve upon the contestee
written notice that the contest has been initiated.(2) The
30-day period runs from the point at which the election is formally
certified by the relevant state or local election
officials.(3)
---------------------------------------------------------------------------
1. For an example of the House summarily dismissing an election
contest due to the contestant having failed to file a notice of
contest, see Deschler's Precedents Ch. 9 Sec. 20.1. See also
Deschler's Precedents Ch. 9 Sec. Sec. 18.1, 18.2.
2. 2 U.S.C. Sec. 382(a).
3. Id. See, e.g., Dornan v Sanchez, Sec. 26.1, infra. See also
Deschler's Precedents Ch. 9 Sec. Sec. 20.4, 20.5.
---------------------------------------------------------------------------
The House may choose to dismiss an election contest on the
procedural ground that the notice of contest was not timely
filed.(4) However, the House may also choose to overlook an
untimely submission, often to dismiss the case on substantive rather
than merely procedural grounds.(5) In some cases, the House
has treated the mailing of the required notice of contest within the
statutory time period as sufficient to initiate a
contest.(6) There is no prohibition on the same individual
initiating contests with respect to the same seat in successive
elections.(7)
---------------------------------------------------------------------------
4. See, e.g., Sec. 8.1, infra.
5. Id. See also Deschler's Precedents Ch. 9 Sec. Sec. 20.2, 20.3.
6. See, e.g., Gonzalez v Diaz-Balart, Sec. 31.1; and Russell v Brown-
Waite, Sec. 31.3, infra. The minority views in each of these
cases would have determined that the notice of contest was not
timely filed and would have dismissed the contest based on that
procedural ground.
7. See Deschler's Precedents Ch. 9 Sec. 18.4.
---------------------------------------------------------------------------
The form of the notice of contest is provided by
statute.(8) The notice of contest must state ``with
particularity'' the grounds on which the contest is being pursued, and
inform the contestee that an answer to the notice of contest must be
filed within 30 days.(9) The notice of contest must be
signed by the contestant and verified by ``oath or
affirmation.''(10) The contestant may revise a notice of
contest by filing an amended notice of contest.(11) The
Committee on House Administration may recommend dismissal of a contest
on the basis that the notice of contest was in improper
form.(12) The lack of specificity with respect to the
grounds for commencing the contest has often been used by the House as
the basis for dismissing an election contest.(13) Similarly,
the statute provides two affirmative defenses to an election contest
that address the content of the notice of contest: (1) that the notice
of contest did not state grounds sufficient to change the result of the
election;(14) and (2) that the notice of contest did not
claim a right to the contestee's seat.(15)
---------------------------------------------------------------------------
8. 2 U.S.C. Sec. 382(b).
9. Id.
10. Id. See Deschler's Precedents Ch. 9 Sec. 22.4.
11. See Sec. 9, infra.
12. See, e.g., Sec. 8.2, infra.
13. See, e.g., Saunders v Kelly, Sec. 16.1, infra. See Deschler's
Precedents Ch. 9 Sec. Sec. 13.8, 22.1-22.3.
14. 2 U.S.C. Sec. 383(b)(3).
15. 2 U.S.C. Sec. 383(b)(4).
---------------------------------------------------------------------------
The notice of contest must also be properly served upon the
contestee.(16) The FCEA provides a variety of methods by
which service of process may be executed and verified.(17)
Lack of proper service may provide a basis for the Committee on House
Administration to recommend dismissal of the election
contest.(18) Lack of proper service is also provided as a
possible defense by the contestee.(19)
---------------------------------------------------------------------------
16. 2 U.S.C. Sec. 382(c).
17. Id. Under the prior statute, it was unclear whether substituted
service (rather than personal service) was sufficient to meet
statutory requirements. See Deschler's Precedents Ch. 9
Sec. 21.1. However, under the current statute, substituted
service is permissible.
18. See, e.g., Sec. 8.3, infra. For minority views concluding that an
election contest should have been dismissed for lack of proper
service, see Oberweis v Underwood, Sec. 38.2, infra.
19. 2 U.S.C. Sec. 383(b)(a).
---------------------------------------------------------------------------
Sec. 8.1 The House may choose to dismiss an election contest based on
the untimely filing of the notice of contest, though the House has
also taken mitigating factors into account when deciding whether to
dismiss the case on procedural grounds.
Under the FCEA, a contestant seeking to challenge the results of an
election must file the notice of contest within 30 days of the final
certification of results.(20) If the contestant fails to
abide by this requirement, the House may dismiss the case for lack of
timely filing. For example, in both the Project Hurt v Cohen
(Sec. 34.2, infra) case and the Project Hurt v Waters (Sec. 34.3,
infra) case, the committee report stated that the ``Notice of Contest
was not timely filed and therefore should not be
considered.''(21) In some cases, the House has chosen to
accept an untimely filing and instead dismiss the case on substantive
rather than procedural grounds. For example, in the Tataii v
Abercrombie (Sec. 32.1, infra) case, the committee report concluded
that ``the Contestant's Notice of Contest was filed untimely with the
Clerk of the House of Representatives.''(22) However, the
committee went on to state that ``it is acknowledged that the
Contestant may have received inaccurate advice on exhausting his
remedies and timely filing. Therefore the Committee will evaluate
Contestant's claims on their merits.''(23) In the Gonzalez v
Diaz-Balart (Sec. 31.1, infra) case and the Russell v Brown-Waite
(Sec. 31.3, infra) case, the minority views accompanying the
committee's report in each case took issue with the method of filing,
stating that ``[w]hile mailing does suffice for service of other kinds
of pleading, it does not suffice for the initial filing of the contest.
We believe the proper interpretation of FCEA requires the document
actually be in the possession of the Clerk within the prescribed
period.''(24) The majority, however, accepted the date on
the certificate of service as the date of submission and did not
address the question of untimely filing.
---------------------------------------------------------------------------
20. 2 U.S.C. Sec. 382(a).
21. H. Rept. 113-133, 113th Cong. 1st Sess. p. 3; and H. Rept. 113-132,
113th Cong. 1st Sess. p. 3.
22. H. Rept. 111-68, 111th Cong. 1st Sess. p. 3.
23. Id.
24. H. Rept. 110-175, 110th Cong. 1st Sess. pp. 5, 6; and H. Rept. 110-
178, 110th Cong. 1st Sess. pp. 5, 6.
---------------------------------------------------------------------------
Sec. 8.2 The House may dismiss an election contest on the basis that
contestant's notice of contest was not in proper form.
The FCEA provides that the notice of contest must abide by certain
formal requirements, including a statement of the grounds for
initiating the contest, a verified signature, etc.(25) The
House may dismiss a contest on the basis that the notice of contest
lacked these required elements. For example, in the Rayner v Stewart
(Sec. 17.3, infra) case, the contestee's motion to dismiss noted
several deficiencies in contestant's notice of contest, including: lack
of timely filing; failure to name the proper party; and failure to
state when contestee's answer would be due under the
statute.(26) The committee accepted that these formal
requirements were not met and dismissed the case ``based both on
procedural and substantive grounds.''(27)
---------------------------------------------------------------------------
25. 2 U.S.C. Sec. 382(b).
26. H. Rept. 96-316, 96th Cong. 1st Sess. pp. 2, 3.
27. Id. at p. 5.
---------------------------------------------------------------------------
Sec. 8.3 The House may dismiss an election contest on the basis that
the notice of contest was not properly served upon the contestee.
The FCEA provides certain methods for properly notifying the
contestee that an election contest has been initiated.(28)
If the contestant fails to demonstrate proof of proper service, the
House may dismiss the case. For example, the House in the Rayner v
Stewart (Sec. 17.3, infra) case concluded that ``there was no proof of
service'' by the contestant.(29) This omission was one of
the procedural grounds on which the committee recommended dismissal.
---------------------------------------------------------------------------
28. 2 U.S.C. Sec. 382(c).
29. H. Rept. 96-316, 96th Cong. 1st Sess. p. 4.
---------------------------------------------------------------------------
Sec. 9. Other Pleadings
As noted above,(1) the statutory method for commencing
an election contest is the filing by the contestant of a notice of
contest. This initial pleading is the required first step under the
Federal Contested Elections Act (FCEA), and its filing confers
jurisdiction over the election contest to the House (specifically, the
Committee on House Administration). This pleading may be revised or
supplemented, either by filing an amended notice of
contest(2) or by submitting an addendum to the original
notice of contest.(3)
---------------------------------------------------------------------------
1. See Sec. 8, supra.
2. See, e.g., Sec. 9.1, infra.
3. Id.
---------------------------------------------------------------------------
A variety of additional pleadings may also be filed in an election
contest once the notice of contest has been filed. In response to a
notice of contest, the contestee has three options available under the
statute. In most cases that have arisen since the advent of the FCEA,
the contestee has responded to the notice of contest with a motion to
dismiss. The contestee may submit this motion prior to filing an answer
to the notice of contest, and invoke one or more of the defenses
described in the statute.(4) Alternatively, the contestee
may take issue with the specificity of the complaint in the notice of
contest, and file instead a motion for a more definite statement.
Finally, the contestee may simply file an answer to the notice of
contest.
---------------------------------------------------------------------------
4. The contestee may also raise one of the nonstatutory defenses
recognized under the precedents. See Sec. 6, supra.
---------------------------------------------------------------------------
Answer
After the notice of contest has been filed, the contestee has 30
days under the statute to submit a reply, termed the
``answer.''(5) The answer should admit or deny the charges
made in the notice of contest, or state that the contestee has
insufficient information to admit or deny such claims.(6)
While the statute contemplates that an answer will be filed in response
to any notice of contest, the failure on the part of the contestee to
make such a pleading does not shift the burden of proof.(7)
``The failure of contestee to answer the notice of contest or to
otherwise defend as provided by this chapter shall not be deemed an
admission of the truth of the averments in the notice of
contest.''(8) In most election contests that have arisen
under the FCEA, the contestee has foregone the opportunity to file an
answer to the notice of contest.(9) If the contestee does
file an answer, the contestant may choose to file a subsequent
response.(10)
---------------------------------------------------------------------------
5. 2 U.S.C. Sec. 383(a).
6. Id.
7. See Sec. 11, infra.
8. 2 U.S.C. Sec. 385.
9. See, e.g., Tataii v Abercrombie, Sec. 32.1, infra.
10. See, e.g., McCuen v Dickey, Sec. 24.1, infra. The statute does not
require a response to the answer, nor is such a response
specifically contemplated under the statutory procedures.
---------------------------------------------------------------------------
Motion for a More Definite Statement
In some cases, the contestee will aver that the allegations
contained in the notice of contest are insufficiently specific, and
that the contestee is therefore unable to formulate an appropriate
answer. The FCEA thus permits the contestee to instead file a ``motion
for a more definite statement.''(11) This pleading must
identify the defects in the notice of contest, and what details are
required to prepare a response.(12) If the committee grants
this motion, the statute provides ten days for the contestant to submit
a more detailed statement.(13) Failure to do so in the
allotted time may be used by the committee as a basis for dismissing
the case.(14)
---------------------------------------------------------------------------
11. 2 U.S.C. Sec. 383(c). For examples of election contests where a
motion for a more definite statement was filed, see, e.g.,
Ziebarth v Smith, Sec. 15.5; Saunders v Kelly, Sec. 16.1;
Perkins v Byron, Sec. 17.1; and Dornan v Sanchez, Sec. 26.1,
infra.
12. 2 U.S.C. Sec. 383(c).
13. Id. For an example of a response to a motion for a more definite
statement, see, e.g., Dornan v Sanchez, Sec. 26.1, infra.
14. 2 U.S.C. Sec. 383(c).
---------------------------------------------------------------------------
Motion to Dismiss
Under the FCEA, the burden is on the contestant to present a prima
facie case in the notice of contest.(15) The rationale for
this requirement is that lengthy inquiries or investigations should be
avoided if the contestant cannot show how such investigations would
prove the allegations made in the notice of contest. Thus, the
contestee is permitted to file a motion to dismiss (in lieu of an
answer) before any testimony or evidence is gathered, in order to
expedite the dismissal of cases that on their face fail to properly
challenge the results of the election. In formulating the motion to
dismiss, contestees may avail themselves of any of the four prescribed
defenses provided in the FCEA.(16) In addition, the House
has also recognized other nonstatutory defenses that may also be
asserted in a motion to dismiss.(17)
---------------------------------------------------------------------------
15. 2 U.S.C. Sec. 385.
16. 2 U.S.C. Sec. 383(b).
17. See Sec. 6, supra.
---------------------------------------------------------------------------
The motion to dismiss may be accompanied by additional information,
in the form of ``memoranda'' or ``appendices'' in support
thereof.(18) Contestees may also file a supplemental motion
to dismiss containing additional arguments or defenses.(19)
A motion to dismiss that is initially postponed in order for conduct
discovery may be renewed following the submission of testimony or
evidence.(20)
---------------------------------------------------------------------------
18. See, e.g., Anderson v Rose, Sec. 25.1; and Jennings v Buchanan,
Sec. 31.4, infra.
19. See, e.g., Perkins v Byron, Sec. 17.1, infra.
20. See, e.g., Dornan v Sanchez, Sec. 26.1, infra.
---------------------------------------------------------------------------
In response to a motion to dismiss, the contestant may choose to
file a pleading in opposition. Since the advent of the FCEA, these
pleadings have been styled as: a ``memorandum in
opposition;''(21) a ``reply;''(22) a
``response;''(23) and an ``answer.''(24)
Regardless of how the pleading is presented, its purpose is to counter
the defenses raised in the motion to dismiss and raise arguments for
the committee to consider in evaluating whether or not dismissal is
warranted. In response to this pleading by the contestant, the
contestee may in turn file a reply,(25) and the contestant
may then submit a response to said reply.(26)
---------------------------------------------------------------------------
21. See, e.g., Mack v Stokes, Sec. 15.4, infra.
22. See, e.g., Ziebarth v Smith, Sec. 15.5, infra.
23. See, e.g., Won Pat v Blaz, Sec. 20.2; McCuen v Dickey, Sec. 24.1;
and Anderson v Rose, Sec. 25.1, infra.
24. See, e.g., Thorsness v Daschle, Sec. 17.5; and Archer v Packard,
Sec. 19.1, infra.
25. See, e.g., Won Pat v Blaz, Sec. 20.2; and Anderson v Rose,
Sec. 25.1, infra.
26. See, e.g., Anderson v Rose, Sec. 25.1, infra.
---------------------------------------------------------------------------
Discovery Motions
Election contests may proceed to the discovery stage, wherein the
parties may take depositions, issue subpoenas, and otherwise gather
evidence to support their claims. Pleadings at the discovery stage may
request that the time for conducting discovery be extended or
enlarged.(27) They may also call for compliance with duly-
issued subpoenas,(28) or request that subpoenas issued by
the other party be modified or quashed.(29) The committee
itself may request that the parties supply pertinent information, and
additional pleadings may be filed in response to such a
request.(30) Should a witness refuse to sign the transcript
of a deposition, the statute provides for a motion to suppress the
deposition.(31)
---------------------------------------------------------------------------
27. See, e.g., Paul v Gammage, Sec. 16.2; Freeman v Mitchell,
Sec. 17.2; and Dornan v Sanchez, Sec. 26.1, infra.
28. See, e.g., Dornan v Sanchez, Sec. 26.1, infra.
29. 2 U.S.C. Sec. 388(e). See Dornan v Sanchez, Sec. 26.1, infra.
30. See, e.g., Dornan v Sanchez, Sec. 26.1, infra.
31. 2 U.S.C. Sec. 386(h).
---------------------------------------------------------------------------
Other Motions
In several election contests since the enactment of the FCEA, the
contestant has filed a motion to stay the proceedings.(32)
While not recognized under the statute, this motion has been used in
cases where there is ongoing litigation related to the election
contest, and the contestant desires the court proceedings to conclude
prior to moving forward with the election contest in the House. The
Committee on House Administration may grant such a motion on the theory
that the court proceedings may render further inquiry by the committee
moot.
---------------------------------------------------------------------------
32. See, e.g., Sec. 9.2, infra.
---------------------------------------------------------------------------
In one election contest, the committee task force evaluating the
case had recommended dismissal, and the contestant thereafter filed
with the committee a ``motion to reconsider'' the determination of the
task force.(33) Ultimately, the committee chose not to
reconsider that determination and the contest was dismissed.
---------------------------------------------------------------------------
33. See Anderson v Rose, Sec. 25.1, infra.
---------------------------------------------------------------------------
Sec. 9.1 Contestants in election contests may be permitted to
supplement their initial notice of contest by filing an amended
notice of contest or an addendum to the original filing.
In the McCuen v Dickey (Sec. 24.1, infra) case, the contestant
``filed an Amended Notice of Election Contest with the Clerk, providing
additional information and arguments in support of his two initial
contentions, and providing documentary evidence and
exhibits.''(34) In the Kyros v Emery (Sec. 15.2, infra)
case, the contestant initially made claims regarding violations of
campaign practices, but ``the Contestant, with the consent of the
Contestee, withdrew these charges by filing an Amended Notice of
Contest.''(35) In the Anderson v Rose (Sec. 25.1, infra)
case, the contestant filed two addenda to the initial notice of contest
containing new allegations relating to financial improprieties and
residency requirements.(36)
---------------------------------------------------------------------------
34. H. Rept. 103-109, 103d Cong. 1st Sess. p. 4.
35. H. Rept. 94-760, 94th Cong. 1st Sess. p. 2.
36. H. Rept. 104-852, 104th Cong. 2d Sess. p. 4 (fn. 6).
---------------------------------------------------------------------------
Sec. 9.2 In cases where an election contest was initiated while
litigation relating to the election remained ongoing, the
contestant has sometimes filed a motion to stay the proceedings
pending an outcome of the litigation.
In the case of Paul v Gammage (Sec. 16.2, infra), the contestant
filed a motion ``requesting that the House stay all proceedings pending
the outcome of court proceedings in Texas.''(37) In the
Freeman v Mitchell (Sec. 17.2, infra) case, the contestant filed a
``Motion for stay of proceeding pending resolution of appeal to the
Court of Special Appeals of Maryland.''(38) In the Thorsness
v Daschle (Sec. 17.5, infra) case, the contestant filed a ``Motion to
Extend Time Until the South Dakota Supreme Court Acts Upon Disputed
Ballots.''(39) The committee did ultimately render its
decision after the South Dakota Supreme Court had ruled in favor of the
contestee, and incorporated that ruling into its determination to grant
contestee's motion to dismiss.(40)
---------------------------------------------------------------------------
37. H. Rept. 95-243, 95th Cong. 1st Sess. p. 2.
38. H. Rept. 96-226, 96th Cong. 1st Sess. p. 3.
39. H. Rept. 96-785, 96th Cong. 2d Sess. p. 2.
40. Id. at p. 4.
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Sec. 10. Taking Testimony; Depositions
Either party in an election contest may take testimony from
witnesses via deposition, to be used for discovery purposes or as
evidence.(1) The opposing party, as well as third-party
witnesses or any other person, may be subpoenaed to give
testimony.(2) Under the statute, the contestant's period for
taking testimony occurs first: after the contestee's answer is filed
(or following the expiration of the time period for filing an answer),
the contestant has 30 days in which to take testimony.(3)
After that 30-day period for the contestant to take evidence expires,
the contestee's 30-day period begins.(4) After that period
is exhausted, the contestant has a further 10 days to take rebuttal
testimony.(5) Depositions must be taken before an officer
authorized to administer oaths.(6) The other party is to be
notified two days in advance of any deposition.(7) The
statute provides for penalties for witnesses who refuse to appear in
response to a subpoena.(8) The committee may extend or
enlarge the period for discovery at the request of either
party.(9) Evidence submitted to the committee may be
withdrawn by the parties.(10)
---------------------------------------------------------------------------
1. 2 U.S.C. Sec. 386(a). It should be noted that a successful motion
to dismiss necessarily terminates the case, thus precluding
these statutory mechanisms for taking evidence. Since the
advent of the Federal Contested Elections Act, only one
election contest has proceeded to the discovery phase. See
Dornan v Sanchez, Sec. 26.1, infra.
2. Id.
3. 2 U.S.C. Sec. 386(c).
4. Id.
5. Id.
6. 2 U.S.C. Sec. 386(d).
7. 2 U.S.C. Sec. 387(a).
8. 2 U.S.C. Sec. 390.
9. See Sec. 9, supra. See also Deschler's Precedents Ch. 9
Sec. Sec. 27.10-27.15. For an example of the time for taking
testimony being tolled while ballots were in the possession of
a court, see Deschler's Precedents Ch. 9 Sec. 27.8.
10. See Deschler's Precedents Ch. 9 Sec. 32.1.
---------------------------------------------------------------------------
Examination of Parties and Witnesses
Pursuant to the Federal Contested Elections Act (FCEA), depositions
in an election contest are taken before an ``officer authorized to
administer oaths''.(11) Said officer puts the witness under
oath, and the witness' testimony is recorded and
transcribed.(12) The opposing party is permitted to cross-
examine any witness, which may be done in person or by the submission
of written interrogatories.(13)
---------------------------------------------------------------------------
11. 2 U.S.C. Sec. 386(d).
12. 2 U.S.C. Sec. 386(g).
13. Id.
---------------------------------------------------------------------------
Following the completion of a deposition, the witness reviews the
transcript of the proceedings to ensure its accuracy.(14)
Review of the transcript may be waived by the witness and the
parties.(15) The witness may make revisions in form or in
substance, but must provide reasons for the proposed
change.(16) After review, the deposition shall be signed by
the witness. If the witness is unable to sign, or refuses to sign, the
officer who conducted the deposition shall sign it, and note any
reasons for the failure of the witness to sign the
deposition.(17) Where the witness refuses to sign the
deposition, the committee may entertain a motion to suppress the
deposition.(18)
---------------------------------------------------------------------------
14. 2 U.S.C. Sec. 386(h).
15. Id.
16. Id.
17. Id.
18. Id. See Deschler's Precedents Ch. 9 Sec. 28.1.
---------------------------------------------------------------------------
The officer before whom the deposition is taken is required by
statute to certify the deposition, attesting to its accuracy and that
the witness was properly sworn.(19) The officer then files
the deposition with the Clerk of the House,(20) and notifies
the parties of its filing.(21)
---------------------------------------------------------------------------
19. 2 U.S.C. Sec. 391(a).
20. Id.
21. 2 U.S.C. Sec. 391(b).
---------------------------------------------------------------------------
Scope of Examination; Objections
Witnesses may be examined with regard to any matter relevant to the
election contest, whether it relates to claims made by the contestant
or defenses proffered by the contestee.(22) Questions may
pertain to records, documents, or other materials known to the witness
that are relevant to the case.(23) Witnesses may also be
questioned regarding the identity of persons with additional knowledge
or relevant facts regarding the election contest.(24) The
opposing party is entitled to cross-examine any witness.(25)
---------------------------------------------------------------------------
22. 2 U.S.C. Sec. 386(b).
23. Id. On the issue of whether ballots are considered ``papers'' that
may be subpoenaed in an election contest, see Deschler's
Precedents Ch. 9 Sec. Sec. 29.2, 29.3.
24. 2 U.S.C. Sec. 386(b).
25. Id.
---------------------------------------------------------------------------
Either party may raise objections to the testimony presented, and
the officer conducting the deposition notes all such
objections.(26) Objections may also be raised with regard to
manner of taking the deposition or the qualifications of the officer
conducting the deposition.(27)
---------------------------------------------------------------------------
26. 2 U.S.C. Sec. 386(g).
27. Id.
---------------------------------------------------------------------------
Subpoenas; Affidavits
The FCEA allows for the issuance of subpoenas to compel testimony
from witnesses(28) or the production of documents or other
materials.(29) The statute provides the form that the
subpoena should take(30) and delineates the procedures for
their issuance (including timing, method of service, and proof of
service).(31) Subpoenas in election contests are to be
issued by a judge or clerk located in the district, state, or county in
which the examination is to take place, upon application by any
party.(32) Witnesses are only required to attend
examinations where the person resides or transacts business, or within
40 miles of the place of service.(33) Failure to comply with
a subpoena under the FCEA is punishable by fines, imprisonment, or
both.(34) In the only election contest to proceed to the
discovery phase since the FCEA's enactment, the House adopted a
resolution demanding that the U.S. Attorney file criminal charges
against an entity for failure to comply with validly-issued
subpoenas.(35)
---------------------------------------------------------------------------
28. 2 U.S.C. Sec. 388(a).
29. 2 U.S.C. Sec. 388(e).
30. 2 U.S.C. Sec. 388(d).
31. 2 U.S.C. Sec. 388(b).
32. 2 U.S.C. Sec. 388(a). For an example of a district court issuing a
subpoena in an election contest, but later recalling said
subpoena, see Dornan v Sanchez, Sec. 26.1, infra.
33. 2 U.S.C. Sec. 388(c).
34. 2 U.S.C. Sec. 390. Under the earlier statute, there were no
penalties prescribed for failure to comply with subpoenas. See
Deschler's Precedents Ch. 9 Sec. 30.2.
35. See H. Res. 244, 143 Cong. Rec. 20876-85, 105th Cong. 1st Sess.
(Sept. 30, 1997). See also Dornan v Sanchez, Sec. 26.1, infra.
---------------------------------------------------------------------------
Parties in the case, or recipients of subpoenas issued pursuant to
the FCEA, may file with the committee motions to quash or modify the
subpoenas.(36) In response to such motions, the committee
has voted to modify and enforce the subpoenas,(37) quash the
subpoenas,(38) or hold the subpoenas in abeyance pending a
determination as to their relevancy.(39)
---------------------------------------------------------------------------
36. See Sec. 9, supra.
37. See H. Rept. 105-416, 105th Cong. 2d Sess., p. 13.
38. Id.
39. Id.
---------------------------------------------------------------------------
The FCEA provides that testimony may be provided to the committee
in the form of an affidavit.(40) The parties may also agree
to written stipulations, confirming the mutual understanding of what a
witness would have testified to had a deposition been
taken.(41) The filing procedures (and timelines) are the
same as those for taking testimony via deposition.(42) When
filing the notice of contest, the contestant may choose to include
affidavits or other testimony in support of the claims
therein.(43)
---------------------------------------------------------------------------
40. 2 U.S.C. Sec. 387(c).
41. Id.
42. Id.
43. See, e.g., Sec. 10.2, infra.
---------------------------------------------------------------------------
Committee Investigations
Independent of the statutory mechanisms for taking testimony and
deposing witnesses, other procedures may be used by the Committee on
House Administration to evaluate whether the election contest has
merit. The committee has sometimes sent observers to the congressional
district in dispute in order to monitor a state-ordered recount or
other election proceeding.(44) The committee has also
conducted a preliminary review of disputed ballots.(45) The
committee may solicit the assistance of the Government Accountability
Office (GAO) in testing and analyzing electronic voting
equipment(46) or tabulating ballots in a
recount.(47)
---------------------------------------------------------------------------
44. See, e.g., Sec. 10.3, infra.
45. See, e.g., Kyros v Emery, Sec. 15.2, infra.
46. See, e.g., Sec. 10.4, infra.
47. Id.
---------------------------------------------------------------------------
Like the parties in the case, the committee itself may also issue
subpoenas, interrogatories, or other requests for information in
furtherance of the investigation.(48) In order to protect
private or sensitive information, the committee may issue protective
orders indicating how information is to be transmitted and
safeguarded.(49) The committee may also instruct state or
local election officials to safeguard ballots, voting machines, or
other equipment and materials, so that the committee can conduct its
own recount.(50)
---------------------------------------------------------------------------
48. See, e.g., Sec. 10.5, infra.
49. Id.
50. Id.
---------------------------------------------------------------------------
Effect of Motion to Dismiss
As noted earlier,(51) the contestee in an election case
may, prior to the taking of any testimony, offer a motion to dismiss
the case. The motion to dismiss will be granted where the contestant
has not made a prima facie case that the contestant, and not the
contestee, is entitled to the seat. Because the motion to dismiss is
available prior to the statutory periods for conducting discovery, the
granting of the motion necessarily terminates the case before testimony
under the statutory procedures is obtained. Subpoenas or notices of
deposition issued while a motion to dismiss is pending may be rendered
moot by the House's dismissal of the case.(52) Where
consideration of a motion to dismiss is postponed by the committee,
discovery under the statute may proceed.(53) Since the
advent of the FCEA in 1969, there has only been one election contest
that has proceeded to the stage of taking testimony under the
statute.(54)
---------------------------------------------------------------------------
51. See Sec. 9, supra.
52. See, e.g., Sec. 10.6, infra.
53. Id.
54. See Dornan v Sanchez, Sec. 26.1, infra.
---------------------------------------------------------------------------
Sec. 10.1 During the discovery phase(55) of an election
contest, the parties are authorized to issue subpoenas through
judicial officials, and submit pleadings relating to the
enforcement of such subpoenas.
---------------------------------------------------------------------------
55. Parliamentarian's Note: The FCEA authorizes the parties in an
election contest to issue subpoenas and take depositions in
order to gather evidence if the case proceeds to discovery.
Since the advent of the FCEA, only the Dornan v Sanchez case
(Sec. 26.1, infra) has continued to this phase. The Paul v
Gammage case (Sec. 16.2, infra) and the Freeman v Mitchell case
(Sec. 17.2, infra) were both dismissed prior to the discovery
phase, but prior to dismissal, the contestants in both cases
filed pleadings seeking to enlarge the period of discovery by
30 days. See H. Rept. 95-243, 95th Cong. 1st Sess., p. 2, and
H. Rept. 96-266, 96th Cong. 1st Sess., p. 3. In Freeman v
Mitchell (Sec. 17.2, infra), the contestant also filed notices
of deposition and subpoenas duces tecum, but such motions were
temporarily quashed and ultimately mooted when the contestee's
motion to dismiss was granted. See H. Rept. 96-226, 96th Cong.
1st Sess., p. 3. Under the statute, deposition may be subject
to a motion to suppress if the deponent refuses to sign the
deposition (2 U.S.C. Sec. 386(h)) but no case thus far under
the FCEA has utilized this procedure.
---------------------------------------------------------------------------
In the case of Dornan v Sanchez (Sec. 26.1, infra), the contestant
issued numerous subpoenas, and the Committee on House
Oversight(56) itself issued interrogatories(57)
and subpoenas in furtherance of its investigation.(58) These
subpoenas became the subject of pleadings by both parties, seeking to
have the subpoenas enforced, modified, quashed, or held in abeyance
pending the submission of further evidence.(59)
---------------------------------------------------------------------------
56. Parliamentarian's Note: During the 104th and 105th Congresses, the
Committee on House Administration was redesignated as the
Committee on House Oversight. House Rules and Manual Sec. 724
(2021).
57. Parliamentarian's Note: The committee, by unanimous consent,
delegated the authority to issue interrogatories to the chair
of the committee after consultation with the ranking minority
member. However, it should be noted that clause 2(m)(3)(A) of
rule XI, which permits committees to delegate certain
investigatory authorities to the chair, is textually limited to
``the power to authorize and issue subpoenas'' and is silent
with respect to other forms of compulsory process. Although no
challenge was made to the committee's authorization here, the
ranking minority member of the committee did express concern
that he was not appropriately consulted with respect to the
issuance of the interrogatories. 143 Cong. Rec. 21828-29, 105th
Cong. 1st Sess. (Oct. 8, 1997).
58. H. Rept. 105-416, 105th Cong. 2d Sess. pp. 12, 13.
59. Id.
---------------------------------------------------------------------------
Sec. 10.2 When initiating an election contest, a contestant may choose
to submit affidavits or other testimony in support of the notice of
contest.
In the Jennings v Buchanan (Sec. 31.4, infra) case, the contestant
submitted ``affidavits memorializing the eyewitness accounts'' of
voters attesting to their difficulty in using the voting software used
in the election.(60) In the Freeman v Mitchell (Sec. 17.2,
infra) case, the contestant submitted four affidavits from ``campaign
associates'' relating to claims of harassment and intimidation against
the contestant.(61)
---------------------------------------------------------------------------
60. H. Rept. 110-528, 110th Cong. 2d Sess. p. 7.
61. H. Rept. 96-226, 96th Cong. 1st Sess. p. 5.
---------------------------------------------------------------------------
Sec. 10.3 In its investigation of an election contest, the Committee on
House Administration may send staff to the relevant district, in
order to gather information or monitor recounts or other state-
level proceedings relating to the contest.
In the Lowe v Fowler (Sec. 16.7, infra) case, ``the Committee
dispatched staff . . . to meet with the Atlanta assistant city
attorney'' and other election officials.(62) In the Hill and
Panlasigui v Clay (Sec. 16.6, infra) case, ``committee dispatched staff
to St. Louis to meet with the incumbent board of election
commissioners, the commission secretary, and the commission
counsel.''(63) In the Lehr v Deggett (Sec. 16.5, infra)
case, the committee report noted that the contestant had ``filed for a
recount of the returns in Sacramento County, which recount was duly
conducted and observed by the parties in interest, their attorneys, and
staff from the Committee on House Administration.''(64)
Similarly, in the Paul v Gammage (Sec. 16.2, infra) case, a ``recount
was conducted under the general observation of inspectors from the
Secretary of State of Texas and by counsel from Elections Subcommittee
of the House Administration Committee.''(65) The committee
report in the Young v Mikva (Sec. 16.3, infra) case described a
proceeding in a local court where contestant had petitioned to have
certain absentee ballots counted, and noted that ``staff of this
committee was present during this proceeding.''(66) Prior to
the withdrawal of the contestant in the Kyros v Emery (Sec. 15.2,
infra) case, the ``Subcommittee on Elections directed its staff to
conduct a preliminary review of the disputed ballots in Portland,
Maine.''(67) In the Wilson v Leach (Sec. 17.4, infra) case,
a Member ``accompanied by Majority and Minority staff, made
arrangements with the Department of Justice to visit the Department and
individually review each of the FBI interviews of voters from the
precinct in which specific violations were alleged to have
occurred.''(68) Finally, in the Dornan v Sanchez (Sec. 26.1,
infra) case, the task force investigating the case held a field hearing
in Santa Ana, California, to hear testimony from state and local
election officials.(69)
---------------------------------------------------------------------------
62. H. Rept. 95-724, 95th Cong. 1st Sess. p. 2.
63. H. Rept. 95-723, 95th Cong. 1st Sess. p. 3.
64. H. Rept. 95-654, 95th Cong. 1st Sess. p. 1.
65. H. Rept. 95-243, 95th Cong. 1st Sess. p. 2.
66. H. Rept. 95-244, 95th Cong. 1st Sess. p. 2.
67. H. Rept. 94-760, 94th Cong. 1st Sess. p. 2.
68. H. Rept. 96-784, 96th Cong. 2d Sess. p. 2.
69. H. Rept. 105-416, 105th Cong. 2d Sess. p. 13.
---------------------------------------------------------------------------
Sec. 10.4 In investigating election contests, the Committee on House
Administration has availed itself of assistance from the Government
Accountability Office (GAO) in analyzing voting equipment and
tabulating ballots.
In the Jennings v Buchanan (Sec. 31.4, infra) case, the task force
investigating the contest ``unanimously voted to retain the Government
Accountability Office (GAO) to investigate whether the voting machines
used in Sarasota County contributed to the unusually high number of
undervotes.''(70) In the McCloskey v McIntyre (Sec. 20.1,
infra) case, the committee undertook its own recount of the ballots
used in the election, and ``arranged with the General Accounting
Office(71) to provide two-person teams of auditors to
actually count the ballots . . . under the overall direction of the
Task Force.''(72)
---------------------------------------------------------------------------
70. H. Rept. 110-528, 110th Cong. 2d Sess. pp. 1614, 1615.
71. The General Accounting Office was renamed the Government
Accountability Office in 2004. See P.L. 108-271, 118 Stat. 811.
72. H. Rept. 99-58, 99th Cong. 1st Sess. p. 33.
---------------------------------------------------------------------------
Sec. 10.5 In furtherance of its investigation into election contests,
the Committee on House Administration may issue requests for
information, protective orders, or instructions to local officials
to safeguard ballots or other materials.
In the Dornan v Sanchez (Sec. 26.1, infra) case, the committee
``voted to authorize the issuance of interrogatories'' to the
contestant, the contestee, and various state and local election
officials.(73) In the same case, the committee deemed it
necessary ``to issue its own subpoenas and undertake a larger role in
the investigation'' when earlier requests for information were not
complied with.(74) The committee also issued ``three
protective orders that specify the term of production and custody of
documents produced under subpoena'' in order to ``protect the
legitimate privacy interests of those organizations and individuals
subpoenaed by the Contestant.''(75) In the McCloskey v
McIntyre (Sec. 20.1, infra) case, the committee instructed all county
clerks in the district to ``protect and keep safe'' all relevant
documents in the case ``including but not limited to all ballots,
certifications, poll books, and tally sheets.''(76)
---------------------------------------------------------------------------
73. H. Rept. 105-416, 105th Cong. 2d Sess. p. 13. For a discussion of
the committee's delegation of this authority to the chair of
the committee, see Sec. 10.1 (fn. 57), supra.
74. Id.
75. Id. at p. 12.
76. H. Rept. 99-58, 99th Cong. 1st Sess. p. 13.
---------------------------------------------------------------------------
Sec. 10.6 If the contestee's motion to dismiss is granted, any pending
subpoenas or notices of deposition become moot due to the
termination of the case, but where a motion to dismiss is merely
postponed, discovery may proceed.
In the Freeman v Mitchell (Sec. 17.2, infra) case, the ad hoc
elections panel investigating the case temporarily quashed subpoenas
filed by the contestant pending a decision on contestee's motion to
dismiss.(77) These subpoenas were rendered moot when the
motion to dismiss was granted and the House adopted a resolution
dismissing the case. By contrast, in the Dornan v Sanchez (Sec. 26.1,
infra) case, the task force investigating the case ``voted to postpone
the disposition of Ms. Sanchez's Motion to Dismiss until a hearing on
the merits.''(78) Ultimately that motion to dismiss was
renewed (and granted) following the committee's investigation.
---------------------------------------------------------------------------
77. H. Rept. 96-226, 96th Cong. 1st Sess. p. 3.
78. H. Rept. 105-416, 105th Cong. 2d Sess. p. 3.
---------------------------------------------------------------------------
D. Committee and House Consideration
Sec. 11. Burden of Proof; Presumptions
When evidence is submitted in an election contest, the Committee on
House Administration (often through a subcommittee or ad hoc task
force) must evaluate said evidence and make judgments as to its
relevance, credibility, etc. The House has articulated a ``fair
preponderance of the evidence'' standard in evaluating claims made in
election contests.(1) Hearsay evidence will not be
admitted(2) and unsupported claims will generally lead to a
dismissal of the case.(3) Evidence regarding elections to
prior Congresses will not be considered relevant for an election
contest brought in the current Congress.(4) In the past,
evidence gathered by special committees investigating campaign
practices has been submitted to the Committee on House Administration
where relevant to an ongoing election contest.(5)
---------------------------------------------------------------------------
1. See Deschler's Precedents Ch. 9 Sec. Sec. 35.2, 36.5, 47.9, 50.2;
and 6 Cannon's Precedents Sec. 91. It should be noted that,
although the fair preponderance standard has been used most
frequently, the House has also articulated different
evidentiary standards in different contexts. For example, in
the Dornan v Sanchez case (Sec. 26.1, infra), the committee
report stated that ``Only clear and convincing evidence can
provide the basis to overcome the presumption of legitimacy of
the electoral process.'' H. Rept. 105-416, 105th Cong. 2d Sess.
p. 15. An earlier case evinced the view that, where the
contestant requests that votes be rejected, evidence that they
were illegally cast must ``leave no doubt.'' Deschler's
Precedents Ch. 9 Sec. Sec. 35.5, 56.5. In another case, the
committee accepted ``none but clear and convincing testimony''
regarding the number and contents of disputed ballots.
Deschler's Precedents Ch. 9 App. Sec. 1.6. Similarly, in an
1890 case, the committee determined that a ``clear
preponderance of competent evidence'' must be demonstrated
before a vote could be ``thrown out for illegality.'' 1 Hinds'
Precedents Sec. 585.
2. See Deschler's Precedents Ch. 9 Sec. 35.9.
3. See, e.g., Sec. 11.1, infra.
4. See, e.g., Sec. 11.2, infra.
5. See Deschler's Precedents Ch. 9 Sec. 34.1.
---------------------------------------------------------------------------
The burden of proof in election contests is always on contestants
to demonstrate that their claims are well-founded.(6) The
contestee is not required to answer the notice of contest, and the
failure to answer (pursuant to statute) is not to be considered an
admission of the claims made by the contestant.(7) Evidence
submitted with or as part of the notice of contest must be sufficient
to survive a motion to dismiss, and a motion to dismiss may be granted
before any evidence is gathered under the statutory
procedures.(8) If the contestant argues that a recount of
ballots by the committee is necessary, the contestant must demonstrate
both that there were errors in the tabulation of votes and that ballots
have been properly preserved for recount purposes.(9)
---------------------------------------------------------------------------
6. See Deschler's Precedents Ch. 9 Sec. 35.
7. 2 U.S.C. Sec. 385 (``The failure of contestee to answer the notice
of contest or to otherwise defend as provided by this chapter
shall not be deemed an admission of the truth of the averments
in the notice of contest.'').
8. See Sec. Sec. 9, 10, supra.
9. See Deschler's Precedents Ch. 9 Sec. Sec. 35.10, 37.19, 37.20,
40.5-40.8, and 41.3.
---------------------------------------------------------------------------
Contestants must also overcome the presumption of regularity that
attaches to the official results of any election.(10) State
and local election officials are presumed to have undertaken their
duties competently and in good faith.(11) Fraud is never to
be presumed but must be proven.(12) A valid certificate of
election issued by state officials has been considered prima facie
evidence of the regularity and correctness of the
election.(13) The mere closeness of an election in no way
creates a presumption that fraud or error has occurred.(14)
---------------------------------------------------------------------------
10. See Deschler's Precedents Ch. 9 Sec. 36. See also Sec. 11.3, infra.
11. See, e.g., McCloskey v McIntyre, Sec. 20.1, infra (``election
officials are presumed to have operated in good faith'').
12. See, e.g., Young v Mikva, Sec. 15.1, infra.
13. See, e.g., McCloskey v McIntyre, Sec. 20.1, infra (``To prevent
election disputes from degenerating into partisan
confrontations, the House has created a general presumption in
favor of the candidate who is certified by the appropriate
state election official as a Member-elect. That certification
carries with it the presumption that the state election
procedures have been timely, regular, and fairly
implemented.''). See also Gonzalez v Diaz-Balart, Sec. 31.1,
infra (``Contestant's allegations are no more than unsupported
speculation and his claims do not cast sufficient doubt on the
results of the election to merit investigation. For the
committee to come to any other conclusion would be to remove
the presumption of regularity that attaches to the state
certification and would make all elections open to contest and
investigation based on mere conjecture or speculation.'').
14. See, e.g., Sec. 11.4 infra. See also Deschler's Precedents Ch. 9
Sec. 36.11.
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Sec. 11.1 The burden of proof rests with the contestant in an election
contest, and claims that lack sufficient evidentiary support will
not be accepted.
In the Mack v Stokes (Sec. 15.4, infra) case, the committee found
that the contestant did not meet this burden of proof, stating that
``only conclusions of law are alleged and no substantial offer of proof
is made.''(15) The committee report in the Perkins v Byron
(Sec. 17.1, infra) case reiterated the fact that the contestant ``must
initially support his allegations and conclusions with documentary
evidence, or provide some other showing that would change the result of
the election.''(16) However, no such showing was made:
``Contestant Perkins failed to present any documentary evidence
supporting his allegations''(17) The House ultimately
dismissed the case.
---------------------------------------------------------------------------
15. H. Rept. 94-762, 94th Cong. 1st Sess. p. 3.
16. H. Rept. 96-78, 96th Cong. 1st Sess. p. 3.
17. Id.
---------------------------------------------------------------------------
Sec. 11.2 Evidence relating to actions or events in elections to prior
Congresses will not be considered relevant for purposes of
evaluating claims regarding an election to the current Congress.
In the Wilson v Hinshaw (Sec. 15.3, infra) case, the contestant
made ``allegations of violations of law, misconduct, and other actions
both in the 1972 congressional election (in which contestee was a
candidate) and the 1974 congressional election, on the part of
contestee and other individuals.''(18) However, the
committee stated that the ``allegations of wrongdoing by the Contestee
in 1973 for a seat in the 93d Congress cannot be considered in this
election contest for a seat in the 94th Congress.''(19)
Similarly, in the Lowe v Fowler (Sec. 16.7, infra) case, one of the
contestant's claims was that, because contestant had received
substantially more votes in the 1970 primary election as compared to
the 1977 special election at issue, ``a presumption of fraud or
irregularity'' could be inferred.(20) The committee rejected
this argument, stating that ``Disparity in the number of votes is not,
in itself, sufficient to demonstrate fraud or
irregularity.''(21)
---------------------------------------------------------------------------
18. H. Rept. 94-761, 94th Cong. 1st Sess. p. 2.
19. Id. at p. 5.
20. H. Rept. 95-724, 95th Cong. 1st Sess. p. 2.
21. Id. at p. 3.
---------------------------------------------------------------------------
Sec. 11.3 The official returns and certification by state and local
election officials constitutes prima facie evidence that the
election was properly administered, and the contestant must provide
sufficient evidence to overcome that presumption.
A presumption of regularity attaches to the official returns of an
election, and contestants bear the burden of overcoming this
presumption with substantial evidence. As stated in the Jennings v
Buchanan (Sec. 31.4, infra) case, ``It is the Constitutional duty of
the House of Representatives to investigate a valid election contest,
yet only clear and convincing evidence can provide the basis to
overcome the presumption of regularity accorded a State's certified
results.''(22) The committee report in the Gonzalez v Diaz-
Balart (Sec. 31.1, infra) case similarly describes the presumption that
contestants must overcome: ``Contestant's allegations are no more than
unsupported speculation and his claims do not cast sufficient doubt on
the results of the election to merit investigation. For the committee
to come to any other conclusion would be to remove the presumption of
regularity that attaches to the state certification and would make all
elections open to contest and investigation based on mere conjecture or
speculation.''(23) In the Haas v Bass (Sec. 25.2, infra)
case, the committee stated in its conclusion that the ``official
certification of election submitted to the Clerk of the House by the
New Hampshire Secretary of State provides prima facie evidence of the
regularity and correctness of state election returns and of Mr. Bass'
presumption of entitlement to the seat''(24) and that the
contestant failed ``to present any basis on which the Committee could
overcome, rebut, or contradict this presumption.''(25)
---------------------------------------------------------------------------
22. H. Rept. 110-528, 110th Cong. 2d Sess. p. 12.
23. H. Rept. 110-175, 110th Cong. 1st Sess. p. 4.
24. H. Rept. 104-853, 104th Cong. 2d Sess. p. 3.
25. Id. at p. 4.
---------------------------------------------------------------------------
Sec. 11.4 The mere closeness of an election does not raise a
presumption or inference of fraud or irregularity, and the
contestant must prove any such fraud or irregularity by presenting
sufficient evidence.
Contestants have sometimes argued that a close result in the
election should lead to the presumption that fraud or other
irregularities must have occurred. This type of argument has not been
accepted by the House, which has required contestants to demonstrate
(via substantial evidence) what fraud or irregularities occurred and
what impact they had on the election. As stated in the Young v Mikva
(Sec. 15.1, infra) case, ``fraud is never presumed but must be proven,
and . . . the mere closeness of the result of an election raises no
presumption of fraud, irregularities, or dishonesty.''(26)
The committee report in the Ziebarth v Smith (Sec. 15.5, infra) case
articulated the same principle in denying contestant's request for a
recount based solely on the closeness of the election
results.(27)
---------------------------------------------------------------------------
26. H. Rept. 94-759, 94th Cong. 1st Sess. pp. 4, 5.
27. H. Rept. 94-763, 94th Cong. 1st Sess. pp. 15, 16.
---------------------------------------------------------------------------
Sec. 12. Ballot Issues; Recounts
The Committee on House Administration may find it necessary, in
exceptional circumstances, to examine disputed ballots used in an
election or conduct its own recount.(1) Most states have
adopted their own recount procedures, often triggered automatically
when the difference in votes between the winning and losing candidates
is within a certain margin. In addition, some states have voluntary
procedures by which unsuccessful candidates can request recounts of
some or all precincts.(2) In general, the Committee on House
Administration is highly deferential to state election procedures, and
where state recount processes exist, the committee is unlikely to
intervene to conduct its own count of the ballots.(3) On
occasion, the committee has sent observers to supervise a recount
conducted by state officials.(4) There have also been
historical instances where the parties to an election contest have
agreed to conduct their own recount.(5)
---------------------------------------------------------------------------
1. Under modern statutory procedures, committee-conducted recounts
have become exceedingly rare. For earlier treatment of recounts
under the prior statute, see Deschler's Precedents Ch. 9
Sec. 39-41.
2. See, e.g., Illinois' ``discovery recount'' procedures described in
Young v Mikva, Sec. 15.1, and Idaho's partial recount
provisions described in Hansen v Stallings, Sec. 20.3, infra.
See also Deschler's Precedents Ch. 9 Sec. 41.2 (New Hampshire
state law permitted either candidate to request a recount).
3. See Sec. 12.1, infra. See also Deschler's Precedents Ch. 9
Sec. 41.1 (committee indicated that it would not conduct its
own recount where state recount procedures existed). But see
McCloskey v McIntyre, Sec. 20.1, infra.
4. See, e.g., Young v Mikva, Sec. 15.1; Paul v Gammage, Sec. 16.2;
Dehr v Leggett, Sec. 16.5; and Dornan v Sanchez, Sec. 26.1,
infra. See also Deschler's Precedents Ch. 9 Sec. 39.4.
5. See Deschler's Precedents Ch. 9 Sec. Sec. 39.1, 39.2.
---------------------------------------------------------------------------
Despite the House's reluctance to conduct its own recounts, it is
also the case that states have long recognized the House's authority,
under the Constitution, to determine which individuals have been
properly elected to its membership.(6) Thus, states may have
adopted procedures that do not permit recounts in elections to Federal
office, preferring instead to defer to the House's jurisdiction over
election contests.(7)
---------------------------------------------------------------------------
6. See, e.g., Ziebarth v Smith, Sec. 15.5, infra (Nebraska court
determined that there was no method to contest an election to
the House under Nebraska law, and thus only the House could
conduct a recount of ballots); Rayner v Stewart, Sec. 17.3,
infra (U.S. district court held that the House has exclusive
jurisdiction over the final determination as to who was elected
to one of its seats); and McCuen v Dickey, Sec. 24.1, infra
(Arkansas state court dismissed complaint on the grounds that
it lacked jurisdiction over a contested House election).
7. See, e.g., Sec. 12.2, infra.
---------------------------------------------------------------------------
A request that the House conduct a recount of ballots used in the
election is not a proper form of relief under the Federal Contested
Elections Act. Instead, the contestant must affirmatively claim a right
to contestee's seat. Merely requesting a recount, without offering
supporting evidence demonstrating that the result of the election would
have been different, is not sufficient under the statute.(8)
This principle conforms to the House's overarching goal in election
contests to balance the need to adjudicate valid, substantiated claims
with the desire to avoid time-consuming and meritless investigations.
---------------------------------------------------------------------------
8. See, e.g., Ziebarth v Smith, Sec. 15.5; and Hendon v Clarke,
Sec. 19.2, infra. See also Deschler's Precedents Ch. 9 Sec. 40.
---------------------------------------------------------------------------
In evaluating ballots, the House weighs a variety of factors to
reach a decision. Of paramount importance is determining the intent of
the voter.(9) The focus on voter intent supports the goal of
avoiding voter disenfranchisement wherever possible. A secondary factor
is compliance with state and local election laws. The House has
distinguished between ``mandatory'' provisions in state election
statutes, and ``directory'' provisions. ``Mandatory'' provisions are
those which are ``substantial,''(10) ``essential to the
validity of the election,''(11) and ``confer rights of
suffrage.''(12) ``Directory'' provisions, by contrast, are
merely ``formal,''(13) ``relate to the mode of
procedure,''(14) and constitute only ``administrative
requirements.''(15) Provisions of state law that regulate
the conduct of voters have been considered ``mandatory,'' while those
regulating the conduct of election officials have been considered
merely ``directory.''(16) As a result, the House will
generally not invalidate ballots where the only issue is lack of
compliance by election officials with ``directory'' provisions of
election law.(17)
---------------------------------------------------------------------------
9. See Deschler's Precedents Ch. 9 Sec. 38.1.
10. See Deschler's Precedents Ch. 9 Sec. 10.6.
11. See Deschler's Precedents Ch. 9 Sec. 10.11.
12. See Deschler's Precedents Ch. 9 Sec. 10.10.
13. See Deschler's Precedents Ch. 9 Sec. 10.6.
14. Id.
15. See Deschler's Precedents Ch. 9 Sec. 10.11.
16. See Deschler's Precedents Ch. 9 Sec. 10.7.
17. See, e.g., Deschler's Precedents Ch. 9 Sec. 10.14. However,
election results may be invalidated where there is ``evidence
of legal fraud or intentional corruptness'' on the part of
election officials. See Deschler's Precedents Ch. 9 Sec. 10.13.
---------------------------------------------------------------------------
In determining voter intent, the House examines the format of the
ballot, the markings of the voter, and the requirements of state law.
The House has distinguished ambiguous or misleading ballots (where
recourse to extrinsic evidence may clarify voter intent) and
conflicting voter marks (where the intent of the voter is a ``matter of
conjecture.'').(18) State laws (and the interpretation of
those laws by state courts), are accorded some deference in evaluating
the validity of ballots, but are not considered binding.(19)
Ambiguities in state law will generally be resolved in favor of
validating ballots where the intent of the voter is
clear.(20)
---------------------------------------------------------------------------
18. See Deschler's Precedents Ch. 9 Sec. Sec. 37.1, 38.3.
19. See Deschler's Precedents Ch. 9 Sec. 38.4.
20. See Deschler's Precedents Ch. 9 Sec. 38.5.
---------------------------------------------------------------------------
On occasion, the House has had to make determinations as to voter
intent in the context of straight-ticket voting. In general, where the
clear intent of the voter is to vote for all candidates of a single
party, the House candidate of that party is entitled to such straight-
ticket votes.(21) However, an intent to vote straight-ticket
will not be presumed based on selections for other
candidates.(22)
---------------------------------------------------------------------------
21. See Deschler's Precedents Ch. 9 Sec. 37.7.
22. See Deschler's Precedents Ch. 9 Sec. Sec. 37.6, 37.8.
---------------------------------------------------------------------------
The House has also addressed ambiguities in ballots that allow for
write-in candidates. The misspelling of a candidate's name, where the
intent of the voter is otherwise clear, will not be sufficient to
invalidate a ballot.(23) Where a voter writes in a
candidate's name, but fails to properly mark the ballot next to the
name, the vote may still be accepted.(24)
---------------------------------------------------------------------------
23. See Deschler's Precedents Ch. 9 Sec. 37.12.
24. See Deschler's Precedents Ch. 9 Sec. Sec. 37.9, 37.16.
---------------------------------------------------------------------------
The voter's markings on the ballot are obviously the best evidence
of voter intent, but such markings may be ambiguous or conflicting.
Stray marks or an improperly formed ``check'' or ``X'' will generally
be accepted as a valid marking if the intent of the voter is
clear.(25) Ballots with conflicting marks for both
candidates, however, will be rejected.(26) State election
law requirements regarding the type of marking device (e.g.,
pencil,(27) sticker,(28) etc.) or other
formalities (e.g., detaching a ballot stub)(29) may be taken
into account in evaluating ballots, and have been subject to the
``mandatory'' versus ``directory'' analysis described above.
---------------------------------------------------------------------------
25. See Deschler's Precedents Ch. 9 Sec. Sec. 37.10, 37.11.
26. See Deschler's Precedents Ch. 9 Sec. 37.15.
27. See Deschler's Precedents Ch. 9 Sec. 37.18.
28. See Deschler's Precedents Ch. 9 Sec. 37.14.
29. See Deschler's Precedents Ch. 9 Sec. 37.17.
---------------------------------------------------------------------------
Where there is evidence that some number of votes in the election
were cast illegally, but it is impossible to determine for which
candidate the illegal votes were cast, the House has used a
``proportionate deduction'' rule to invalidate such
votes.(30) This method deducts the illegal votes from both
candidates in the proportion of each candidate's share of the overall
vote.
---------------------------------------------------------------------------
30. See Deschler's Precedents Ch. 9 Sec. Sec. 37.3-37.5.
---------------------------------------------------------------------------
Since the advent of the Federal Contested Elections Act, the
Committee on House Administration has only conducted one full recount
of an election to the House.(31) In the case of McCloskey v
McIntyre (Sec. 20.1, infra), the committee had concluded that many
valid ballots had been rejected by state and local officials for
technical errors and that the standards for invalidating ballots were
not uniform.(32) It thus authorized a task force to obtain
the ballots used in the election, and conduct a new recount. The task
force developed protocols for how to evaluate problematic
ballots,(33) and conducted a full recount(34)
utilizing the resources of the Government Accountability Office
(GAO).(35)
---------------------------------------------------------------------------
31. See Sec. 12.3, infra. In one other election contest, the committee
began an investigation into disputed ballots, but the
contestant ultimately withdrew the case, rendering the
committee investigation moot. See Kyros v Emery, Sec. 15.2,
infra.
32. See H. Rept. 99-58, 99th Cong. 1st Sess. pp. 15-32.
33. Id. at pp. 3, 4.
34. But see H. Rept. 99-58, 99th Cong. 1st Sess., pp. 55-57 (dissenting
views questioned why certain ballots were not included in the
recount).
35. At the time of this election contest, GAO was known as the General
Accounting Office. For an earlier example of the House
utilizing the services of GAO in an election contest, see
Deschler's Precedents Ch. 9 Sec. 41.5.
---------------------------------------------------------------------------
Sec. 12.1 Where state recount procedures are available to the parties,
the Committee on House Administration has been reluctant to
authorize its own review of disputed ballots.
In the Thorsness v Daschle (Sec. 17.5, infra) case, the ad hoc
election panel investigating the case noted that the South Dakota
Supreme Court had already conducted a review of the disputed ballots,
and concluded, ``In light of this exhaustive de novo recount by South
Dakota's highest Court, it would seem both redundant and presumptuous
for this panel to recount the ballots ourselves and substitute our
judgement for the courts.''(36) In the case of Hendon v
Clarke (Sec. 19.2, infra), the contestant's request for a recount was
denied by both state election officials and Federal
courts.(37) In considering whether to conduct its own
recount, the Committee on House Administration noted that, ``In
previous contests the Committee has held that before it will conduct a
recount, a Contestant must meet his evidentiary burden, i.e.,
demonstrate that the recount would change the result of the
election.''(38) The committee determined that this burden
had not been met and the case was ultimately dismissed.
---------------------------------------------------------------------------
36. H. Rept. 96-785, 96th Cong. 2d Sess. p. 3.
37. H. Rept. 98-453, 98th Cong. 1st Sess. p. 2.
38. Id.
---------------------------------------------------------------------------
Sec. 12.2 State recount procedures may not provide for state-level
review of disputed ballots in Federal elections.
The case of Kyros v Emery (Sec. 15.2, infra) involved a Maine law
that allowed for state officials to make determinations as to disputed
ballots except for elections governed by the Federal
Constitution.(39) Thus, the parties agreed that only the
House of Representatives had the authority to review disputed ballots.
The Subcommittee on Elections began a preliminary review before the
contestant terminated the case by withdrawing.(40)
---------------------------------------------------------------------------
39. H. Rept. 94-760, 94th Cong. 1st Sess. p. 5.
40. Id. at pp. 2-4.
---------------------------------------------------------------------------
Sec. 12.3 The House has the authority to conduct its own review and
recount of disputed ballots in a House election.
In the case of McCloskey v McIntyre (Sec. 20.1, infra), the
Committee on House Administration (following state-level recounts)
chose to conduct a full recount of the ballots cast in the
election.(41) However the committee stressed that ``The
House has consistently extended considerable deference to state
election procedure''(42) and that it was only the
``manifest''(43) irregularities and inconsistencies in state
election processes that compelled the committee to authorize a
recount.(44)
---------------------------------------------------------------------------
41. H. Rept. 99-58, 99th Cong. 1st Sess. p. 33.
42. Id. at p. 3.
43. Id.
44. For dissenting views in this case, arguing that a recount was not
justified, see H. Rept. 99-58, 99th Cong. 1st Sess. pp. 53, 54.
---------------------------------------------------------------------------
Sec. 13. Disposition of Contests
As noted above,(1) under the Federal Contested Elections
Act (FCEA), the House obtains jurisdiction over an election when a
notice of contest is filed with the Clerk of the House. The Clerk then
forwards this pleading, along with any accompanying documentation, to
the Committee on House Administration, which has jurisdiction over
election contests pursuant to clause 1(k)(12) of rule X.(2)
The committee then assigns the matter to either a subcommittee, or an
ad hoc task force (most often composed of three Members--two from the
majority party and one from the minority party).(3) The task
force or subcommittee will generally review the matter, and make a
recommendation to the full committee. The full committee then meets to
compose a committee report on the matter, and make a recommendation to
the full House.(4) As with most committee reports in the
House, members of the committee who do not wish to associate themselves
entirely with the report may instead file separate views to accompany
the report.(5) The filing of a committee report on an
election contest is a privileged matter under clause 5(a)(3) of rule
XIII.(6)
---------------------------------------------------------------------------
1. See Sec. 8, supra.
2. House Rules and Manual Sec. 724 (2021). The FCEA also defines the
relevant committee for purposes of the act as the Committee on
House Administration. See 2 U.S.C. Sec. 381(7).
3. Parliamentarian's Note: The Committee on House Administration has
maintained a Subcommittee on Elections since the consolidation
of the three elections committees in the Legislative
Reorganization Act of 1946.
4. Parliamentarian's Note: Until the 94th Congress, House rules
mandated that the Committee on House Administration file a
final report on every election contest. See House Rules and
Manual Sec. 733 (1973). Deadlines were imposed by rule on the
committee to complete its action. See Deschler's Precedents Ch.
9 Sec. Sec. 43.5, 43.6. Although these requirements are no
longer in House rules, the committee generally does file a
report for every contest (even those deemed more properly
brought as an issue exclusion rather than an election contest).
See, e.g., Cox v McCrery, Sec. 31.5, infra. See also Deschler's
Precedents Ch. 9 Sec. 43.3. Committee reports have typically
been filed even where the contestant withdraws from the case
(see, e.g., Deschler's Precedents Ch. 9 Sec. Sec. 43.10, 43.12;
and Kyros v Emery, Sec. 15.2, infra.), but there have been
instances where no committee report was filed. See, e.g.,
Deschler's Precedents Ch. 9 Sec. 43.11; and Hart v Miller-
Meeks, Sec. 38.1, infra. For other historical examples of the
committee failing to take action on election contests, see
Deschler's Precedents Ch. 9 Sec. Sec. 43.13, 43.14.
5. Rule XI, clause 2(l); House Rules and Manual Sec. 804 (2021). For
examples of committee reports on election contests with
dissenting or minority views, see, e.g., Paul v Gammage,
Sec. 16.2; Hendon v Clarke, Sec. 19.2; McCloskey v McIntyre,
Sec. 20.1; Anderson v Rose, Sec. 25.1; Dornan v Sanchez,
Sec. 26.1; Gonzalez v Diaz-Balart, Sec. 31.1; and Russell v
Brown-Waite, Sec. 31.3, infra. See also Deschler's Precedents
Ch. 9 Sec. Sec. 43.7-43.9.
6. House Rules and Manual Sec. Sec. 853-855 (2021). For an example of
a committee report on an election contest filed with the Clerk
rather than on the floor as a privileged matter, see Jennings v
Buchanan, Sec. 31.4, infra.
---------------------------------------------------------------------------
No contestant has been successful in an election contest pursued
under the FCEA, and thus no contestant has been seated in place of the
contestee.(7) In the vast majority of cases, the contestee
filed a motion to dismiss the case, which the committee (after
consideration of the case) recommended be granted. In other cases, the
contestee chose not to file any pleadings in the case, and the
committee, on its own authority, recommended that the case be
dismissed. In prior years, election contests were occasionally resolved
by adopting a resolution seating neither the contestant nor the
contestee, but instead declaring the seat vacant.(8)
---------------------------------------------------------------------------
7. Parliamentarian's Note: The election contest of McCloskey v
McIntyre (Sec. 20.1, infra) did involve an ultimately
successful challenge to the seating of the contestee in favor
of the contestant, but that contest proceeded under the House's
own constitutional authority and not pursuant to statutory
procedures.
8. See Deschler's Precedents Ch. 9 Sec. Sec. 42.11, 42.12, and 42.15.
---------------------------------------------------------------------------
Under modern practice, the committee report accompanies a simple
House resolution formally resolving the contest. There is no prescribed
form that such resolutions must take.(9) It is possible for
a single resolution to resolve multiple election
contests,(10) but under modern procedures a separate
resolution is used for each individual contest.(11) Issues
relating to the seating of Members have long been recognized as
constituting questions of the privileges of the House,(12)
and thus the 72-hour layover period for committee reports does not
apply.(13)
---------------------------------------------------------------------------
9. Parliamentarian's Note: As all contests brought under the FCEA to
date have been unsuccessful, the resolutions resolving such
contests have typically consisted of a single sentence
dismissing the case.
10. See, e.g., Deschler's Precedents Ch. 9 Sec. 44.3.
11. For an example of two election contests being dismissed in serial
fashion via individual resolutions, see Project Hurt v Cohen,
Sec. 34.2; and Project Hurt v Waters, Sec. 34.3, infra.
12. See 1 Hinds' Precedents Sec. 322; and 3 Hinds' Precedents
Sec. Sec. 2579-2587. For questions of privilege raised during
the pendency of an election contest (either to resolve the
contest or address collateral issues), see McCloskey v
McIntyre, Sec. 20.1; and Dornan v Sanchez, Sec. 26.1, infra.
For questions of privilege generally, see Precedents (____) Ch.
11; and Deschler's Precedents Ch. 11.
13. See House Rules and Manual Sec. 850 (2021).
---------------------------------------------------------------------------
A resolution to resolve an election contest may be offered as a
privileged question,(14) but in recent years the committee
member filing the report usually requests unanimous consent for the
immediate consideration of the resolution.(15) In one
instance, such a unanimous-consent request also specified other aspects
of the resolution's consideration, such as debate time.(16)
Absent such types of provisions, a resolution resolving an election
contest is considered under the hour rule. The time for debate on a
resolution resolving an election contest may be extended by unanimous
consent.(17) Under the precedents, the side supporting the
seating of the contestant is entitled to close debate.(18)
Contestants in election contests are entitled to floor privileges
``during the pendency of their cases'' under clause 2(a)(2) of rule
IV,(19) but may not participate in debate.(20)
Contestees who are seated Members may participate in debate on the
resolution disposing of the contest.(21) A resolution
resolving an election contest is subject to the regular parliamentary
motions recognized by the House, such as amendment,(22) a
motion to recommit the resolution to committee,(23) and a
demand for a division of the question.(24)
---------------------------------------------------------------------------
14. See, e.g., Hansen v Stallings, Sec. 20.3, infra.
15. See, e.g., Hayward v Cuellar, Sec. 34.1, infra.
16. See, e.g., Jennings v Buchanan, Sec. 31.4, infra. In that instance,
the unanimous-consent request allowed ten minutes of debate
time (equally divided between the chair and ranking member of
the Committee on House Administration) and ordered the previous
question to final adoption of the resolution without
intervening motion.
17. See Deschler's Precedents Ch. 9 Sec. 42.9.
18. See Deschler's Precedents Ch. 9 Sec. 42.8.
19. House Rules and Manual Sec. 678 (2021).
20. See Deschler's Precedents Ch. 9 Sec. 42.6.
21. See Deschler's Precedents Ch. 9 Sec. 42.7.
22. See Deschler's Precedents Ch. 9 Sec. Sec. 42.17, 42.18.
23. See Deschler's Precedents Ch. 9 Sec. 42.16.
24. See Deschler's Precedents Ch. 9 Sec. Sec. 42.13, 42.14.
---------------------------------------------------------------------------
Expenses; Compensation
Witnesses who give depositions in election contests are, pursuant
to statute,(25) entitled to fees and travel expenses.
Parties may also apply to the committee for reimbursement for certain
funds.(26) Under the earlier statute, there was a cap for
such expenses, but the modern FCEA only requires that the expenses be
``reasonable.''(27) In prior years, the House would
occasionally authorize payments from the ``contingent
fund''(28) of the House to cover costs associated with the
contest.(29) In the McCloskey v McIntyre (Sec. 20.1, infra)
election contest, neither the contestee nor the contestant were seated
on opening day, but both were paid (pursuant to the resolution
transferring jurisdiction of the case to the Committee on House
Administration) ``an amount equal to the daily equivalent of the annual
rate of basic pay payable to a Member of the House'' for the period
commencing with the adoption of the resolution and ending upon
resolution of the contest.(30)
---------------------------------------------------------------------------
25. 2 U.S.C. Sec. 389(b).
26. 2 U.S.C. Sec. 396.
27. Id.
28. Parliamentarian's Note: References to the ``contingent fund'' were
eliminated in the 104th Congress and replaced with ``applicable
accounts of the House.'' See rule X, clause 1(k)(1); House
Rules and Manual Sec. 724 (2021).
29. See, e.g., Deschler's Precedents Ch. 9 Sec. Sec. 45.1, 45.2. For an
unusual example of a joint resolution authorizing payment from
the Treasury of the United States to compensate parties in an
election contest, see Deschler's Precedents Ch. 9 Sec. 45.3.
30. See McCloskey v McIntyre, Sec. 20.1, infra. For similar past
instances, see Deschler's Precedents Ch. 9 Sec. Sec. 45.4,
45.5.
---------------------------------------------------------------------------
Sec. 13.1 A contestant may withdraw the election contest at any point,
resulting in a termination of the case.
An election contest may end upon a withdrawal by the contestant,
and there have been several instances of contestants choosing not to
pursue their cases to a final decision by the House. In the Kyros v
Emery (Sec. 15.2, infra) case, the committee begin an investigation
into certain contested ballots, but the contestant concluded that
continuing the review would not overturn sufficient ballots to reverse
the outcome of the election, and he stated an intention to
withdraw.(31) The committee report noted that the
``withdrawal of Contestant Kyros terminated this case.''(32)
The Hart v Miller-Meeks (Sec. 38.1, infra) case was also terminated by
the withdrawal of the contestant, and in that case no committee report
was filed.(33)
---------------------------------------------------------------------------
31. H. Rept. 94-760, 94th Cong. 1st Sess. p. 4.
32. Id.
33. For a letter regarding the case from the chair of the committee to
the Speaker that was submitted to the Congressional Record, see
167 Cong. Rec. E464-E465 [Daily Ed.], 117th Cong. 1st Sess.
(Apr. 28, 2021).
---------------------------------------------------------------------------
E. Summaries of Election Contests, 1973-2020
Sec. 14. Ninety-third Congress, 1973-1974
There were no election contests considered by the House during the
93d Congress.
Sec. 15. Ninety-fourth Congress, 1975-1976
Sec. 15.1 Young v Mikva
The general election for the office of Representative to Congress
from the Tenth District of Illinois was conducted on November 5,
1974.(1) The general election candidates were Abner J. Mikva
(the Democratic candidate) and Samuel H. Young (the Republican
candidate). The official canvass of votes indicated that 164,054 total
votes were cast, of which 83,457 were cast for Mr. Mikva and 80,597
were cast for Mr. Young. Mr. Mikva's margin of victory was therefore
2,860 votes. Mr. Mikva was thereafter certified as the winner of the
election. His credentials were presented to the House of
Representatives, and on January 14, 1975, he was duly administered the
oath of office without objection or challenge.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 94-759, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk of the House, on December 23, 1974, received a notice of
contest filed by Mr. Young (hereafter ``contestant'') under the Federal
Contested Elections Act. This initial pleading was forwarded to the
Committee on House Administration for its consideration. The pleading
was accompanied by the requisite proof of service.
Contestant's notice of contest requested that he be declared by the
House to have won the general election and that he was entitled to the
seat at issue. Alternatively, the contestant requested that the House
declare a vacancy in the office of Member of the House of
Representatives for the Tenth District of Illinois.
Contestant advanced three categories of allegations to support his
requested relief. First, the contestant alleged dissemination by Mr.
Mikva (hereafter ``contestee'') of false or misleading information
about the contestant to voters. Second, the contestant alleged that the
contestee violated the Federal Elections Campaign Act of 1971 by
receiving certain kinds of campaign contributions and failing to report
such contributions. Third, the contestant alleged that a recount of all
ballots in the contest would show that a sufficient number had been
improperly cast for the contestee to reduce the number he received
below that of the contestant. Contestee moved to dismiss the contest on
the basis that contestant had not stated grounds sufficient to change
the result of the election (one of the four possible statutory
defenses).(2)
---------------------------------------------------------------------------
2. See 2 U.S.C. Sec. 383(b)(3).
---------------------------------------------------------------------------
In its committee report, the Committee on House Administration
concluded that the contestant's claim was without merit and that the
motion to dismiss should be granted. The committee concluded that the
contestant failed to demonstrate how the allegations would have changed
votes sufficient to reverse the outcome of the election. The committee
reiterated that a presumption of regularity must be overcome by the
production of sufficient proof of fraud or error. In the view of the
committee, the contestant did not present sufficient evidence to
overcome this presumption.
The committee further concluded that the contestant's request for a
recount should not be granted, as the contestant failed to provide
evidence justifying such recount. The committee noted that state
election procedures allowed losing candidates who attained certain vote
thresholds to request a partial recount of certain precincts (a
``discovery recount'').(3) The contestant availed himself of
this procedure, and alleged that, as a result of this process, a number
of absentee ballots should be invalidated for technical errors.
However, the committee expressed ``considerable doubt''(4)
that Illinois law required the invalidation of such ballots, and
further determined that the contestant had not presented any evidence
that votes were either willfully or fraudulently miscounted. The
committee reiterated that the burden is on the contestant to show
sufficient evidence to justify a committee-conducted recount, which, in
the committee's estimation, the contestant failed to do.
---------------------------------------------------------------------------
3. H. Rept. 94-759, 94th Cong. 1st Sess. p. 5.
4. Id. at p. 6.
---------------------------------------------------------------------------
On December 18, 1975, the committee's report was filed with the
House with the recommendation that the election contest be dismissed.
On December 19, 1975,(5) the House by unanimous consent
adopted House Resolution 894, dismissing the contest:
---------------------------------------------------------------------------
5. 121 Cong. Rec. 41868-69, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSAL OF ELECTION CONTEST OF SAMUEL H. YOUNG
Mr. [Wayne] HAYS of Ohio. Mr. Speaker, by direction of the
Committee on House Administration, I call up a privileged
resolution (H. Res. 894), and ask unanimous consent for its
immediate consideration.
H. Res. 894
Resolved, That the election contest of Samuel H. Young, contestant,
against Abner J. Mikva, contestee, Tenth Congressional District of the
State of Illinois, be dismissed.
The SPEAKER.(6) Is there objection to the request of
the gentleman from Ohio?
---------------------------------------------------------------------------
6. Carl Albert (OK).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 15.2 Kyros v Emery
The general election for the office of Representative to Congress
from the First District of Maine was conducted on November 5,
1974.(7) The general election candidates were Peter N. Kyros
(the Democratic candidate) and David F. Emery (the Republican
candidate). The official canvass of votes indicated that 187,727 total
votes were cast, of which Mr. Emery obtained a margin of victory of 679
votes. Mr. Emery was thereafter certified as the winner of the election
on December 23, 1974. His credentials were presented to the House of
Representatives, and on January 14, 1975, he was duly administered the
oath of office without objection or challenge.
---------------------------------------------------------------------------
7. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 94-760, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
Due to the closeness of the result, Mr. Kyros requested that a
recount be conducted pursuant to state law. The recount commenced on
November 25, 1974, supervised by the Maine Secretary of State. On
December 19, 1974, a review of disputed ballots was begun. The parties
agreed that, under state law and the Constitution, only the House of
Representatives has the authority to determine the winner of elections
to House seats, and thus only the House had jurisdiction over the
disputed ballots.
On December 27, 1974, Mr. Kyros (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was then forwarded
to the Committee on House Administration. On December 30, 1974, the
Maine Secretary of State executed an affidavit correcting the vote
totals, and bringing Mr. Emery's margin of victory down to 421 votes.
The contestant offered two arguments in support of his claim to be
seated as the Member from the First District of Maine. First, the
contestant argued that proper application of the law to the disputed
ballots would show a plurality in favor of the contestant. Second, the
contestant alleged that Mr. Emery (hereafter ``contestee'') engaged in
unfair and fraudulent campaign practices. This second category of
allegations was withdrawn by the contestant via an amended notice of
contest filed on March 17, 1975, and the committee did not consider
those claims.
The Subcommittee on Elections heard oral arguments in the case on
March 25, 1975, focusing on the proper standard for evaluating the
disputed ballots. Counsel for the parties were instructed to file
briefs relating to that issue. For the duration of five days in May
1975, staff for the subcommittee conducted a preliminary review in
Portland, Maine, in order to resolve challenges and reduce the number
of ballots in dispute. The remaining disputed ballots were counted and
sealed by a United States Marshal, and delivered to the Committee on
House Administration in Washington, D.C.
During July 1975, the Subcommittee on Elections met to discuss the
types of ballots in dispute and the proper standard for evaluating how
such ballots should be counted. On July 15, 1975, the subcommittee made
several rulings with regard to the disputed ballots. On July 16, 1975,
the subcommittee met again, but before continuing its review, the
contestant announced that he was withdrawing his notice of contest. In
doing so, the contestant stated that he did not believe a further
review of disputed ballots would demonstrate that the contestee had
received fewer votes.
In its committee report, the Committee on House Administration
included a lengthy analysis of how challenges to the disputed ballots
should be received. The committee reviewed the relevant state laws,
discussed the extent to which the House should be bound by such laws,
and articulated the standard for evaluating voter intent.(8)
The committee also reiterated the House's constitutional authority to
judge the elections of its Members, and the extent to which it has in
the past deferred to state law and the interpretations of that law by
state courts. The committee report reaffirmed the distinction between
``directory'' and ``mandatory'' laws--the latter viewed as being ``of
the very essence of the thing done'' and essential to the ``vital
purpose'' of the statute,(9) while the former regarded as
merely formal or technical requirements. The overarching consideration
is to prevent the disenfranchisement of voters for innocent errors
committed by election officials.
---------------------------------------------------------------------------
8. H. Rept. 94-760, 94th Cong. 1st Sess. p. 5.
9. Id. at p. 9.
---------------------------------------------------------------------------
As the contestant ultimately withdrew his case, the committee did
not make a formal recommendation to the House as to which side should
prevail. Instead, it simply noted in its report that ``The withdrawal
of Contestant Kyros terminated this case.''(10) On December
19, 1975,(11) the House by unanimous consent adopted House
Resolution 895, dismissing the contest:
---------------------------------------------------------------------------
10. Id. at p. 5.
11. 121 Cong. Rec. 41869, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSAL OF ELECTION CONTEST OF PETER N. KYROS
Mr. [Wayne] HAYS of Ohio. Mr. Speaker, by direction of the
Committee on House Administration, I call up a privileged
resolution (H. Res. 895), and ask unanimous consent for its
immediate consideration.
The Clerk read the resolution as follows:
H. Res. 895
Resolved, That the election contest of Peter N. Kyros, contestant,
against David F. Emery, contestee, First Congressional District of the
State of Maine, be dismissed.
The SPEAKER.(12) Is there objection to the request
of the gentleman from Ohio?
---------------------------------------------------------------------------
12. Carl Albert (OK).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 15.3 Wilson v Hinshaw
The general election for the office of Representative to Congress
from the 40th District of California was conducted on November 5,
1974.(13) The general election candidates were Roderick J.
Wilson (the Democratic candidate) and Andrew J. Hinshaw (the Republican
candidate). The official canvass of votes indicated that 173,299 total
votes were cast, of which Mr. Hinshaw received 116,499 votes and Mr.
Wilson received 56,850. Mr. Hinshaw's margin of victory was therefore
59,599 votes. Mr. Hinshaw was thereafter certified as the winner of the
election on December 10, 1974, by the Secretary of State of California.
His credentials to the House of Representatives, and on January 14,
1975, he was duly administered the oath of office without objection or
challenge.
---------------------------------------------------------------------------
13. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 94-761, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Wilson (hereafter ``contestant'') served a notice of contest on
Mr. Hinshaw (hereafter ``contestee'') by mail on January 3, 1975. The
notice of contest was received by the Clerk of the House on January 6,
1975, and forwarded to the Committee on House Administration for its
consideration.
The contestant alleged that the contestee engaged in numerous
violations of law, including both Federal campaign laws and civil
rights laws. In particular, the contestant alleged that the contestee
abused his position as county tax assessor to both interfere with the
contestant's campaign and distribute illegal favors to contestee's
supporters. In sum, contestant's allegations described a wide-ranging
conspiracy by the contestee and others to deprive voters of a ``free,
independent, and open election.''(14)
---------------------------------------------------------------------------
14. H. Rept. 94-761, 94th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
In response, the contestee filed a motion to dismiss the contest,
based on the statutory defense that the contestant had failed to state
grounds sufficient to change the result of the election.(15)
The Subcommittee on Elections held a hearing on March 25, 1975, to
consider this motion. In its committee report, the committee noted that
to prevail, a contestant must show with particularity how the
allegations contained in the notice of contest would support a
conclusion that the results of the election would have been different.
General assertions and vague or uncertain allegations are insufficient
to carry the contestant's burden. The committee concluded that the
contestant had presented ``no concrete evidence''(16)
demonstrating how votes would have been different had the alleged
violations of law not occurred.
---------------------------------------------------------------------------
15. Id. at p. 3. See also 2 U.S.C. Sec. 383(b)(3).
16. Id. at p. 4.
---------------------------------------------------------------------------
The committee reiterated that alleged criminal violations are not
grounds for determining an election contest if such violations cannot
be connected by substantial evidence to the conduct of the election.
The committee also noted that some of the allegations involved conduct
in the preceding election in 1972, and that the House (as a ``separate
constitutional entity'' each Congress)(17) thus does not
have jurisdiction over prior claims of misconduct or criminal activity.
---------------------------------------------------------------------------
17. Id. at p. 6.
---------------------------------------------------------------------------
For these reasons, the committee adopted its report recommending
dismissal of the case. On December 19, 1975,(18) the House
by unanimous consent adopted House Resolution 896, dismissing the
contest:
---------------------------------------------------------------------------
18. 121 Cong. Rec. 41869, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSAL OF ELECTION CONTEST OF RODERICK J. WILSON
Mr. [Wayne] HAYS of Ohio. Mr. Speaker, by direction of the
Committee on House Administration, I call up a privileged
resolution (H. Res. 896), and ask unanimous consent for its
immediate consideration.
The Clerk read the resolution as follows:
H. Res. 896
Resolved, That the election contest of Roderick J. Wilson, contestant,
against Andrew J. Hinshaw, contestee, Fortieth Congressional District of
the State of California, be dismissed.
The SPEAKER.(19) Is there objection to the request
of the gentleman from Ohio?
---------------------------------------------------------------------------
19. Carl Albert (OK).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 15.4 Mack v Stokes
The general election for the office of Representative to Congress
from the 21st District of Ohio was conducted on November 5,
1974.(20) The general election candidates were William Mack
(the Republican candidate) and Louis A. Stokes (the Democratic
candidate). Mr. Stokes was certified by the Secretary of State of Ohio
as the winner of the election on December 10, 1974. His credentials
were presented to the House of Representatives, and on January 14,
1975, he was duly administered the oath of office without objection or
challenge.
---------------------------------------------------------------------------
20. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 94-762, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Mack (hereafter ``contestant'') filed a notice of contest with
the Clerk of the House on the same day that Mr. Stokes (hereafter
``contestee'') was certified as having won the election. The Clerk
referred the notice to the Committee on House Administration for its
consideration. On January 8, 1975, the Clerk received a motion to
dismiss (as well as briefs and exhibits in support thereof) from the
contestee, which was also referred to the Committee on House
Administration. In response, the contestant, on January 13, 1975, filed
a memorandum in opposition to the motion to dismiss, along with related
documents.
Contestant's only argument in the case was that contestee lacked
essential qualifications for the office; specifically, that the
contestee was not an inhabitant of the state, as required by the
Constitution.(21)
---------------------------------------------------------------------------
21. U.S. Const. art. I, Sec. 2, cl. 2; and House Rules and Manual
Sec. 11 (2021).
---------------------------------------------------------------------------
The committee's report noted that, as essentially a qualifications
case rather than an election contest, it ``would more appropriately be
brought to the House of Representatives by a petition or memorial
rather than by proceeding in the nature of a contest.''(22)
It further noted the ``inappropriateness of the
procedure''(23) but nevertheless chose not to recommend
dismissal on mere procedural grounds.
---------------------------------------------------------------------------
22. H. Rept. 94-762, 94th Cong. 1st Sess. p. 2.
23. Id.
---------------------------------------------------------------------------
Turning to the merits of contestant's argument, the committee found
that the contestant had only advanced conclusions of law, and did not
provide any specific evidence to support those conclusions. The
committee briefly summarized the legal issues surrounding
qualifications cases, such as the definitions of ``inhabitancy'' and
``legal residence'' (citing both House precedents and Federal and state
case law). In recommending dismissal of the case, the committee
reiterated that the contestant must carry the burden of proof and
substantiate their claims with something more than ``unsupported
generalities.''(24)
---------------------------------------------------------------------------
24. Id. at p. 4.
---------------------------------------------------------------------------
On December 19, 1975,(25) the House by unanimous consent
adopted House Resolution 897, dismissing the contest:
---------------------------------------------------------------------------
25. 121 Cong. Rec. 41869, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSAL OF ELECTION CONTEST OF WILLIAM (BILL) MACK
Mr. [Wayne] HAYS of Ohio. Mr. Speaker, by direction of the
Committee on House Administration, I call up a privileged
resolution (H. Res. 897) and ask unanimous consent for its
immediate consideration.
The Clerk read the resolution as follows:
H. Res. 897
Resolved, That the election contest of William (Bill) Mack, contestant,
against Louis A. Stokes, contestee, Twenty-first Congressional District of
the State of Ohio, be dismissed.
The SPEAKER.(26) Is there objection to the request
of the gentleman from Ohio?
---------------------------------------------------------------------------
26. Carl Albert (OK).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 15.5 Ziebarth v Smith
The general election for the office of Representative to Congress
from the Third District of Nebraska was conducted on November 5,
1974.(27) The general election candidates were Virginia H.
Smith (the Republican candidate) and Wayne Ziebarth (the Democratic
candidate). The Nebraska State Canvassing Board reported that 80,992
votes had been cast for Mrs. Smith, and that 80,225 votes had been cast
for Mr. Ziebarth. Mrs. Smith was certified by the Nebraska State
Canvassing Board as the winner of the election on December 3, 1974. Her
credentials were presented to the House of Representatives, and on
January 14, 1975, she was duly administered the oath of office without
objection or challenge.
---------------------------------------------------------------------------
27. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 94-763, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Ziebarth (hereafter ``contestant'') filed a notice of contest
with the Clerk of the House on December 30, 1974, which was referred to
the Committee on House Administration for its consideration. On January
7, 1975, contestant filed additional documents, including a copy of a
petition for a recount filed with the Nebraska state
courts.(28) On January 24, 1975, Mrs. Smith (hereafter
``contestee'') filed a motion to dismiss, or, in the alternative, a
motion for a more definite statement (as provided by the Federal
Contested Elections Act)(29) along with supporting
documentation.
---------------------------------------------------------------------------
28. The contestant's request for a recount had been denied by the
Nebraska Secretary of State. See H. Rept. 94-763, 94th Cong.
1st Sess. p. 3. On May 15, 1975, a Nebraska district court held
that there was no method of contesting a congressional election
under Nebraska law. Thus, the only entity with jurisdiction to
conduct a recount, as requested by the contestant, was the
House of Representatives.
29. 2 U.S.C. Sec. 383(c).
---------------------------------------------------------------------------
Contestant claimed that the reported vote totals from various
precincts contained errors, and that statistical evidence showed that a
recount would confirm that contestant had in fact received more votes
than the contestee. Contestant relied heavily on a statistical analysis
conducted by a statistician with experience in election cases.
Contestee availed herself of two of the defenses to the contest
provided under the statute: (1) that by merely requesting a recount,
the contestant had failed to properly claim a right to the seat at
issue;(30) and (2) that the contestant failed to state
grounds sufficient to change the result of the election.(31)
Contestee also filed, as an alternative to the motion to dismiss, a
motion for a more definite statement. In that pleading, contestee
requested more specific information about the precincts at issue, the
nature of the statistical analysis supporting contestant's claims, and
how precisely a new canvass of the votes would demonstrate a reversal
of the certified results.
---------------------------------------------------------------------------
30. 2 U.S.C. Sec. 383(b)(4).
31. 2 U.S.C. Sec. 383(b)(3).
---------------------------------------------------------------------------
On March 11, 1975, the Subcommittee on Elections held the motion to
dismiss in abeyance while granting the motion for a more definite
statement. The committee report noted the lack of any state recount
procedures, and that it was in the interest of justice to allow the
contestant the opportunity to add specificity to his claims. In
response, the contestant filed an amended notice of contest on April 8,
1975. However, the committee concluded that the contestant failed to
supply the needed particularization to cure the defects in the initial
pleading.
On April 17, 1975, the contestee filed an answer to the amended
notice of contest. This pleading contained an affidavit from the
Nebraska Secretary of State rebutting the allegations of overcounts and
undercounts in precincts identified by the contestant. The committee
report stated that during the next two months, the contestant failed to
utilize the discovery processes under the statute to substantiate any
of the general assertions made in prior pleadings. The committee
concluded that the contestant was only seeking a recount under the
auspices of the House because no such relief was available at the state
level.
The committee report analyzed the circumstances under which the
Committee on House Administration should undertake a recount in order
to resolve an election contest. In summarizing the issues, the
committee cited ``traditional requirements of pleading and proof''
drawn from earlier contests.(32) In essence, a committee-
ordered recount should only be granted where the contestant has made
specific claims and offers preliminary proof of fraud or irregularity
sufficient to change the result of the election. Absent the offering of
such evidence, the committee would likely be inundated with requests
for ``fruitless, time-consuming fishing expeditions,''(33)
based on little more than the closeness of the election results. The
committee reiterated the presumption of regularity that attaches to any
election properly certified by the relevant state officials.
---------------------------------------------------------------------------
32. H. Rept. 94-763, 94th Cong. 1st Sess. p. 11.
33. Id. at p. 12.
---------------------------------------------------------------------------
The committee thus concluded that the contestant had failed to meet
the burden of proof required under the statute, and that therefore
contestee's motion to dismiss should be granted. On December 19,
1975,(34) the House by unanimous consent adopted House
Resolution 898, dismissing the contest:
---------------------------------------------------------------------------
34. 121 Cong. Rec. 41869, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSAL OF ELECTION CONTEST OF WAYNE ZIEBARTH
Mr. [Wayne] HAYS of Ohio. Mr. Speaker, by direction of the
Committee on House Administration, I call up a privileged
resolution (H. Res. 898) and ask unanimous consent for its
immediate consideration.
The Clerk read the resolution as follows:
H. Res. 898
Resolved, That the election contest of Wayne Ziebarth, contestant,
against Virginia H. Smith, contestee, Third Congressional District of the
State of Nebraska, be dismissed.
The SPEAKER.(35) Is there objection to the request
of the gentleman from Ohio?
---------------------------------------------------------------------------
35. Carl Albert (OK).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 16. Ninety-fifth Congress, 1977-1978
Sec. 16.1 Saunders v Kelly
The general election for the office of Representative to Congress
from the Fifth District of Florida was conducted on November 2,
1976.(1) The general election candidates were Richard Kelly
(the Republican candidate) and JoAnn Saunders (the Democratic
candidate). The Elections Canvassing Commission of Florida reported
that 138,371 votes had been cast for Mr. Kelly, and that 96,260 votes
had been cast for Ms. Saunders. Mr. Kelly was certified as the winner
of the election on November 10, 1976. His credentials were presented to
the House of Representatives, and on January 4, 1977, he was duly
administered the oath of office without objection or challenge.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 95-242, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 10, 1976, Ms. Saunders (hereafter ``contestant'') filed
a notice of contest with the Clerk of the House of Representatives,
which was forwarded to the Committee on House Administration for its
consideration. On January 13, 1977, Mr. Kelly (hereafter ``contestee'')
filed both a motion to dismiss the case, and a motion for a more
definite statement. On March 2, 1977, the Committee on House
Administration appointed an ad hoc panel of three Members to review the
case and make recommendations on the motions before it. The panel met
on March 10, 1977, and again on March 30, 1977, to hear oral arguments
and review the evidence presented.
Contestant argued that contestee conspired with the Florida Ethics
Commission to circulate negative information about the contestant and
her financial disclosure statements. Contestant also argued that
Florida's requirement for candidates to file such disclosures was
unconstitutional, in that it added new qualifications to those required
under the Constitution.
Contestee, in reply briefs, argued that the contestant's notice of
contest was too vague and ambiguous to allow an adequate response.
Contestee also noted the decision of a Federal district court, which
had held that the Florida ethics requirements were not
unconstitutional. Finally, contestee asserted the statutory defense
that the contestant had not stated grounds sufficient to change the
outcome of the election.(2)
---------------------------------------------------------------------------
2. 2 U.S.C. Sec. 383(b)(3).
---------------------------------------------------------------------------
The panel and the full committee agreed that the contestant had not
met her burden in this case. Rather than support her claims with
specific evidence of fraud, misconduct, or irregularities, the
contestant asserted merely generalized allegations and uncertain
accusations of wrongdoing. The committee therefore recommended
dismissal of the case in its committee report. On May 9,
1977,(3) the committee offered House Resolution 525
(dismissing the contest) as a privileged matter, which the House
adopted by voice vote:
---------------------------------------------------------------------------
3. 123 Cong. Rec. 13953-54, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST RICHARD KELLY
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, by direction
of the Committee on House Administration, I call up a privileged
resolution (H. Res. 525), and ask for its immediate consideration.
The CLERK read the resolution, as follows:
H. Res. 525
Resolved, That the election contest of JoAnn Saunders, contestant,
against Richard Kelly, contestee, Fifth Congressional District of the State
of Florida, be dismissed.
The SPEAKER pro tempore.(4) The Chair recognizes the
gentleman from New Jersey (Mr. Thompson) for 1 hour.
---------------------------------------------------------------------------
4. William Natcher (KY).
---------------------------------------------------------------------------
Mr. THOMPSON. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I intend to call up three additional privileged
resolutions dealing with contested election cases--House
Resolutions 526, 527, and 528.
I intend further, Mr. Speaker, to defer in each instance to the
member of the Committee on House Administration who chaired the
respective contested election panel.
Before proceeding, however, I should like to note several
matters briefly for the Record.
The U.S. Constitution gives the House plenary power to judge
its own elections.
Under the rules of the House, jurisdiction over election
contests lies with the Committee on House Administration.
Eight election contests, a nearly unprecedented number, have
arisen from elections to the 95th Congress.
In order to expedite the processing and resolution of these
eight cases, I assigned each one to a three-member contested
election panel.
Four of these contested election panels have concluded their
hearings and deliberations, and have reported to the full House
Administration Committee.
These four matters are before the House this afternoon; because
of the serious import of a contest for a Member's seat in Congress,
I urge my colleagues to pay particular attention.
In each of the four election cases before us today I want to
commend the superb work done by the panel chairman and members. The
investigation and resolution of a cloud to a Member's seat is
always a heavy responsibility. In each instance our colleagues met
that responsibility with distinction.
Mr. Speaker, the instant resolution, House Resolution 525,
deals with the contested election matters of Saunders against
Kelly. The ad hoc panel assigned to this case was chaired by the
Honorable Joseph Minish and consisted of our colleagues Robert
Mollohan and Samuel Devine.
Mr. Speaker, I yield such time as he may consume to the
gentleman from New Jersey (Mr. Minish) for debate only.
Mr. [Joseph] MINISH [of New Jersey]. Mr. Speaker, this
resolution pertains to the election contest brought against the
Honorable Richard Kelly.
Congressman Kelly was certified on November 10, 1976, as the
duly elected U.S. Representative from Florida's Fifth District; the
official canvass of that race showed that Mr. Kelly had defeated
his opponent in the general election, Ms. JoAnn Saunders by 42,111
votes. His credentials were presented to the House and he took the
oath and was seated without objection on January 4, 1977.
On December 10, 1976, Ms. Saunders filed a notice of contest
pursuant to the Federal Contested Elections Act.
The contestant alleged that during the campaign she had been
involved in a controversy with the Florida Ethics Commission
concerning her filing of a personal financial disclosure statement
which is required by State law. She asserted that the requirement
that a candidate file a statement of financial interest at the time
qualifying papers are filed is unconstitutional. The contestant
further alleged that the chairman of the Florida Ethics Commission
carried on ``an attack--against'' her candidacy and that the
contestee ``conspired with the chairman'' of the Commission to
attack her candidacy. She stated that prior to the controversy
surrounding her difficulties with the Ethics Commission she was
leading in the campaign, and that her subsequent loss to Mr. Kelly
was ``solely as a result of the unconstitutional action'' of the
Ethics Commission. She cited unfavorable press publicity because of
this matter.
On January 13, 1977, the contestee filed two motions pursuant
to the act. One was a motion for a more definite statement which
asserted that the contestant's notice of contest was so vague and
ambiguous that he was unable to respond adequately to it.
The other was a motion to dismiss. It cited a Federal district
court order which held that Florida's personal financial disclosure
statute was not unconstitutional and asserted that the contestant
had failed in his notice of contest to state grounds sufficient to
change the results of the election.
On March 2, 1977, the Committee on House Administration adopted
a resolution which assigned the consideration of the case to an ad
hoc panel consisting of myself as chairman and the Honorable Robert
L. Mollohan and the Honorable Samuel L. Devine as members. The
panel was charged in the resolution ``to report findings and to
make recommendations on this matter to the Committee on House
Administration.''
On March 10, 1977, the panel met in open session and heard oral
argument by counsel for contestant and contestee on contestee's
motion to dismiss. The panel then took the matter under advisement.
The record was held open for postsubmission filings.
On March 30, 1977, the panel met again in an open hearing to
discuss the evidence presented in this case relevant to the pending
motion. Pursuant to a motion made by Mr. Devine, the panel voted
unanimously to recommend to the Committee on House Administration
that the contestee's motion to dismiss should be granted.
On April 28 the Committee on House Administration approved that
recommendation and reported the resolution.
The Commission is of the opinion after careful consideration of
the record that the case should be dismissed. We reached this
conclusion only after a thorough review of the oral argument by
counsel and the written submissions on behalf of the contestant and
the contestee.
The contest should be dismissed because the contestant has
failed to meet the burden placed by the act on all contestants if
such a motion to dismiss is to be denied.
The statute, together with its legislative history and the
precedents construing it, indicate that more than mere notice
pleading and generalized allegations are required if a motion to
dismiss is to be denied. This was made clear in the case of Tunno
against Veysey, the first case to arise under the present statute,
where the Committee noted that--
Under the new law then the present contestant and any further contestant,
when challenged by motion to dismiss, must have presented in the first
instance, sufficient allegations and evidence to justify his claim to the
seat in order to overcome the motion to dismiss.
The contestant in the case has not made the sort of specific
allegations accompanied by supportive evidence that is required to
overcome a motion to dismiss. Indeed, she has offered no specific
evidence in support of her claim.
Accordingly, the committee recommends to the House that the
resolution be adopted dismissing this contested election case.
Mr. THOMPSON. Mr. Speaker, does the gentleman from California
(Mr. Wiggins) seek recognition for debate?
Mr. [Charles] WIGGINS [of California]. I do, Mr. Speaker.
Mr. THOMPSON. Mr. Speaker, I yield 3 minutes to the gentleman
from California (Mr. Wiggins), for debate only.
Mr. WIGGINS. Mr. Speaker, the contest of Saunders against Kelly
is ripe for disposition on the merits. The decision of the House
committee to dismiss the Saunders contest is correct. But I do not
agree with the reasons for that action which are stated in the
majority report and I will take just a moment to tell the Members
why.
It is clear from the notice of contest filed by Ms. Saunders
that she has not alleged a legal basis entitling her to any relief
and it is clear that she cannot do so. Accordingly it is wholly
appropriate to entertain a motion to dismiss.
Now why is it that she has not alleged a legal basis for
relief? The contestant Ms. Saunders complains that election
officials in the State of Florida called to the attention of the
electorate the fact that she had failed to comply with certain
procedural requirements of the Florida statute. If that is her only
complaint, it does not justify overturning an election. It is not a
legal basis for doing so since it does not challenge the propriety
of the election process itself. Accordingly I join in the
majority's view that this contest should be dismissed.
But please do not understand my support to be agreement with
the reasons stated by the majority that there is a duty on the part
of the respondent faced with a motion to dismiss to go forward and
instantly prove all elements of his or her case. That is a
misplaced burden of proof as we shall explain later in connection
with other contests.
Mr. THOMPSON. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 16.2 Paul v Gammage
The general election for the office of Representative to Congress
from the 22nd District of Texas was conducted on November 2,
1976.(5) The general election candidates were Ron Paul (the
Republican candidate) and Bob Gammage (the Democratic candidate). The
initial vote totals indicated that Mr. Gammage received 96,433 votes,
while Mr. Paul received 96,197 votes. Because of the closeness of the
result, a recount was conducted by the Secretary of State of Texas,
with observers from the Committee on House Administration. The final
count showed 96,535 votes cast for Mr. Gammage and 96,267 votes cast
for Mr. Paul. Mr. Gammage's margin of victory was therefore 268 votes.
On November 22, 1976, Mr. Gammage was certified as the winner of the
election by the Texas Secretary of State. His credentials were
presented to the House of Representatives, and on January 4, 1977, he
was duly administered the oath of office without objection or
challenge.
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5. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 95-243, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 19, 1976, Mr. Paul (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was forwarded to
the Committee on House Administration for its consideration. On January
19, 1977, Mr. Gammage (hereafter ``contestee'') filed both an answer to
the notice of contest, and a motion to dismiss the case. On February 8,
1977, the contestant filed a motion to extend the time for discovery,
requesting an additional 30 days to take depositions.
On February 23, 1977, an ad hoc panel of the Committee on House
Administration met to hear arguments regarding the above pleadings, and
an additional filing from the contestant (a motion to stay all
proceedings pending the resolution of a Texas state court case). On
March 2, 1977, the Texas Supreme Court ruled that state proceedings
contesting the election of this Federal office were invalid under the
Constitution, and state court proceedings where therefore terminated.
On March 9, 1977, the ad hoc panel met and voted to recommend that the
motion to dismiss be granted.
In its committee report, the Committee on House Administration
reiterated the ``weighty'' burden placed on contestants by the Federal
Contested Elections Act (FCEA) to overcome a motion to
dismiss.(6) The committee also reiterated the presumption of
regularity that attaches to official returns and actions of election
officials. Not only must the contestant overcome those presumptions,
but in doing so, the contestant must also demonstrate how the outcome
of the election would have been changed absent the alleged
irregularities. Contestant ``alleged instances of improper and perhaps
even illegal voting''(7) but did not support such
allegations with specific evidence. The committee report concluded by
noting the time and expense involved in pursuing meritless claims, and
recommended that the House grant contestee's motion to dismiss.
---------------------------------------------------------------------------
6. H. Rept. 95-243, 95th Cong. 1st Sess. p. 4.
7. Id.
---------------------------------------------------------------------------
In its dissenting views accompanying the committee report, Members
from the minority party evinced disagreement with the majority party's
analysis. The primary issue in dispute was the extent to which a
contestant must ``prove''(8) the allegations contained in
the notice of contest in order to prevail on a motion to dismiss.
Because the statute provided for the possibility of an extensive
discovery process, the dissent argued for a lower threshold for the
contestant to reach at the initial pleading stages. In essence, the
dissent argued that the committee impermissibly reversed the burden of
proof under the statute, and that contestant should have been allowed
to proceed to the discovery stage in order to gather additional
evidence to support his allegations.
---------------------------------------------------------------------------
8. Id. at p. 7.
---------------------------------------------------------------------------
On May 9, 1977,(9) the committee offered House
Resolution 526 (dismissing the contest) as a privileged matter, which
the House adopted by voice vote:
---------------------------------------------------------------------------
9. 123 Cong. Rec. 13954-57, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST BOB GAMMAGE
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, by direction
of the Committee on House Administration, I call up a privileged
resolution (H. Res. 526) and ask for its immediate consideration.
The Clerk read the resolution as follows:
H. Res. 526
Resolved, That the election contest of Ron Paul, contestant, against Bob
Gammage, contestee, Twenty-second Congressional District of the State or
Texas, be dismissed.
The SPEAKER pro tempore.(10) The gentleman from New
Jersey (Mr. Thompson) is recognized for 1 hour.
---------------------------------------------------------------------------
10. William Natcher (KY).
---------------------------------------------------------------------------
Mr. THOMPSON. Mr. Speaker, this resolution deals with the
contested election case of Paul against Gammage. The ad hoc
committee investigating this case was chaired by the gentleman from
Pennsylvania (Mr. Ammerman) and consisted of the gentleman from
Michigan (Mr. Nedzi) and the gentleman from California (Mr.
Wiggins).
Mr. Speaker, I yield such time as he may consume, for debate
only, to the gentleman from Pennsylvania (Mr. Ammerman), the panel
chairman.
Mr. [Joseph] AMMERMAN [of Pennsylvania]. Mr. Speaker, the
subject of House Resolution 526, for which I now rise, is the
contested election case of Paul against Gammage arising out of the
general election of November 2, 1976, for a seat in the 59th
Congress from the 22d district of Texas. I will briefly summarize
events which have taken place from the date of the general
election, November 2, 1976, up to this moment.
The result of the November 2, 1976, general election involving
Mr. Gammage and Mr. Paul showed a difference of 236 votes in Mr.
Gammage's favor.
Mr. Paul requested and obtained a full recount pursuant to
Texas law which resulted in a difference of 268 votes in Mr.
Gammage's favor.
The recount was conducted under the general observation of
inspectors from the secretary of state of Texas and by counsel from
the House Administration Committee. Accordingly, on November 22,
1976, Bob Gammage received a certificate of election from the
secretary of state of Texas. Mr. Gammage was duly sworn, without
objection, as a Member of the 95th Congress on January 4, 1977.
Mr. Paul filed an election contest in the State district court
of Harris County, Tex., pursuant to Texas law. Mr. Gammage
responded with a motion to dismiss and State court litigation was
joined.
On December 19, 1976, contestant Paul filed a notice of contest
with the U.S. House of Representatives pursuant to the Federal
Contested Election [sic](11) Act. The matter was
referred to the Committee on House Administration and on January
19, 1977, contestee Gammage filed an answer and motion to dismiss.
---------------------------------------------------------------------------
11. As in the original. Text should read: Elections.
---------------------------------------------------------------------------
During this period, Chairman Frank Thompson, Jr., appointed me
to chair a contested election panel to deal with this matter. Also
serving on that panel are Lucien Nedzi and Charles Wiggins.
On February 23, 1977, the panel conducted an open hearing for
the purpose of hearing oral arguments from both sides pertaining to
three motions:
First. A motion by contestant Paul requesting that the House
stay all proceedings pending the outcome of court proceedings in
Texas.
Second. A motion by contestant Paul requesting 30 additional
days for taking depositions.
Third. A motion by contestee Gammage for a dismissal of the
case. Arguments were heard and taken under advisement. The record
was held open for postsubmission briefs.
One week after the panel hearing, on March 2, 1977, the Supreme
Court of Texas ruled that the provisions of Texas law under which
contestant Paul had brought his State court contest, as it applied
to Federal offices ``is in diametrical conflict with and contrary
to article I, section 5 of the U.S. Constitution.''
The State court cases were thereby terminated and the question
of staying House proceedings was moot.
On March 9, 1977, again 1 week later, the panel met in an open
hearing for the purpose of discussing the evidence presented.
Pursuant to a motion made by Chairman Ammerman, the panel voted 2
to 1 to recommend to the full Committee on House Administration
that contestee Gammage's motion to dismiss be granted.
On April 28, 1977, at a full committee meeting, the Committee
on House Administration voted 16 to 6 to adopt House Resolution
526:
Resolved, That the election contest on Ron Paul, contestant, against Bob
Gammage, contestee, 22d Congressional District of the State of Texas, be
dismissed.
That is the resolution before the House this afternoon.
Mr. Speaker, a contest for a seat in the House is a matter of
the most serious import. The House underlined its concern when it
passed, in 1969, the Contested Election Act.
The thrust of the legislative history and first House cases
interpreting the contested election law can be summarized simply:
The contestant must, at the outset, make allegations with sufficient
supportive evidence to justify his claim to the seat. In other words, Mr.
Speaker, the contestant must come forward with sufficient evidence, which
if substantiated, would show he would have won the election.
Mere allegations or statements by one's campaign workers do not
meet the high standard of supportive evidence that must be offered
before a contestant is entitled to go forward.
The dissenting views object because an evidentiary burden is
placed on contestant Paul. However, Mr. Speaker and my fellow
colleagues, that is only proper: The contested election law does
not purport to allow losing candidates to go on fishing
expeditions. Indeed, had the committee permitted, Mr. Paul might
have attempted to depose every voter in the 22d district.
Mr. Speaker, Ron Paul had his ``days in court.'' This committee
allowed him ample opportunity to argue his case and present
supportive and credible evidence that would show his entitlement to
this seat in Congress.
He argued at length, but failed to present evidence to support
his claim to this seat.
Mr. Speaker, I urge the adoption of House Resolution 526.
Mr. THOMPSON. Mr. Speaker, before yielding to the distinguished
gentleman from California, I am constrained to say with
considerable pride that in this instance and in the preceding one,
the wisdom of setting up bipartisan panels, including bipartisan
staff and bipartisan investigators, is vindicated by the splendid
work done by the gentleman from Pennsylvania (Mr. Ammerman) and the
gentleman from New Jersey (Mr. Minish), as well as the two panel
chairmen to follow. The gentleman from Pennsylvania (Mr. Ammerman)
has been a U.S. attorney for western Pennsylvania, and has had
extensive experience as a prosecutor, as a lawyer, and certainly
has given evidence of a splendid knowledge of law in this instance.
Mr. Speaker, for purposes of debate only, I yield 5 minutes to
the gentleman from California (Mr. Wiggins), a distinguished
constitutional lawyer second only to the gentleman from Texas (Mr.
Eckhardt).
Mr. [Charles] WIGGINS [of California]. Mr. Speaker, I thank the
gentleman for yielding to me. I object to the resolution, and will
urge my colleagues to vote against it, but I assure the gentleman
that my objections are not based upon any constitutional argument.
Ladies and gentlemen, we are in the process of adopting a
totally improper procedure for the consideration of election
contests, and it is important that we correct it now. It has
nothing to do with the merits of Mr. Paul's case or the case that
will follow. It is important, however, that whatever the merits may
be, we adopt a procedure providing for the orderly, fair
disposition of election contests.
Let me explain very briefly, ladies and gentlemen, what our
statute provides. The new contested election statute enacted by
this House provides that a contest will be commenced by the filing
of a document known as a notice of contest. This is something akin
to a complaint. It is a pleading which initiates the process.
That pleading, the notice of contest, must be filed within 30
days following the certification of the results of an election by
the appropriate State election officers. In this case, there is no
challenge at all to the fact that Mr. Paul filed an appropriate
notice of contest within the time provided by law.
The next section of our election contest statute says what the
contestee must do when served with a notice of contest. The statute
says that the contestee may do one of two things: He may either
file an answer within 30 days of service of the notice of contest,
in which answer the contestee admits, denies or otherwise answers
the complaint: or, alternatively, the contestee may raise certain
motions by way of defense.
Those motions include a statement that the complaint, that is,
the notice, is so ambiguous that it is impossible to frame an
answer to it. We understand such a motion. It is addressed to the
sufficiency of the pleading. The statute also provides that a
contestee may, by way of motion, complain that the notice of
contest fails to state with particularity the grounds upon which
the contest is founded or that it would change the result of the
election. Such a motion is also addressed to the pleadings.
Bear in mind that the burden on the maker of that motion is to
``state,'' only to allege, the basis of the contest.
The statute goes on to provide a method of collecting evidence
in support of a well-pleaded notice of contest. The statute says
that 30 days after this answer comes in, the contestant may start
collecting his evidence by way of noticing depositions, obtaining
affidavits, or entering into stipulations.
That is the technique envisioned in the law for the proof of
allegations contained in a notice of contest.
That is the process, I say to the Members. Let me tell the
Members what is wrong with our treatment of that process.
We are authorizing the contestee to file a motion to dismiss
any time after the filing of the notice of contest. When that
motion to dismiss is filed, the majority says that there is a
burden cast upon the contestant. He is a respondent to the motion.
The immediate burden is cast on the respondent of the motion to
come forward and prove the case at that time, even though the time
for taking depositions and the collection of evidence has not yet
run.
There is an analogy in Federal civil practice.
It is clear that the maker of a motion to dismiss is asking for
a disposition of the case on the merits. He is not challenging the
pleadings. It is not in the nature of a demurrer.
In that respect, the motion to dismiss is very much like a
motion for summary judgment.
There are enough attorneys in this Chamber right now to know
that the maker of a motion for summary judgment carries a very
heavy burden of proof.
The SPEAKER pro tempore. The time of the gentleman from
California (Mr. Wiggins) has expired.
Mr. THOMPSON. Mr. Speaker, I yield 5 additional minutes for the
purpose of debate only to the gentleman from California (Mr.
Wiggins).
Mr. WIGGINS. Mr. Speaker, as I just said, this motion to
dismiss is very much like a motion for summary judgment. When
confronted with a motion for summary judgment in civil litigation,
the responding party does not carry the burden, nor should he. The
maker of the motion carries the burden. And he must show that there
are no issues of fact justifying going to the jury, and he must
show that he is entitled to judgment as a matter of law. The
responding party need not prove his case to defeat the motion.
He must merely show credible questions of fact which justify
going forward.
Mr. Speaker, we are now abandoning all those lessons, and we
are saying that the making of motion to dismiss immediately after a
notice of contest casts upon the respondent the duty of proving his
case right then in response to the motion, even though the effect
of granting the motion, as in this case, is to cut off the
opportunity of taking depositions, which is the technique
envisioned in the statute for collecting the evidence.
Let me suggest a proper disposition of this matter. Clearly
this resolution ought to go back to the committee so that the
contestant can go forward with his attempt to prove his case, as
envisioned by the statute. I have no idea whether he is going to
prove it or not. He has undertaken a pretty tough case to prove,
and it may be that he cannot prove it. But surely he should have
the chance to do so, and he should not be cut off.
The proper disposition of the pending resolution is to recommit
that resolution to the Committee on House Administration so that
the contestant will have a chance to prove his case. If in fact he
cannot do so, of course, we will dispose of his contest quickly,
but under no circumstances should we right now on this floor ratify
a procedure which denies to a contestant the opportunity of proving
his case.
In conclusion, Mr. Speaker, it might be alleged that Mr. Paul
had that chance. After all, the statute gives him 30 days within
which to take depositions. But the statute also says that he may
extend that time for good cause, and within 30 days Mr. Paul
through his attorney came forward and made a formal request to
extend time.
Our committee did not even reach that motion. It elected to
dismiss it on the merits and with prejudice because the contestee
filed a notice to dismiss.
We cannot tolerate this procedure. We cannot tolerate it in the
future. There are going to be other contests by Republicans and
Democrats, so let us not look at this as a partisan issue. This
question will come up again in the future. If we do anything today,
let us establish a precedent, a precedent that will provide for the
fair disposition of all election contests according to the election
contest statute. Let us not emasculate that statute as is suggested
by the majority.
Mr. Speaker, I urge a ``no'' vote on the resolution. I urge an
``aye'' vote on the motion to recommit which will be made.
Mr. THOMPSON. Mr. Speaker, I yield 4 minutes to the gentleman
from Michigan (Mr. Nedzi).
Mr. [Lucien] NEDZI [of Michigan]. Mr. Speaker, I thank the
gentleman from New Jersey (Mr. Thompson) for yielding me this time.
Mr. Speaker, I was very pleased to hear the gentleman from
California (Mr. Wiggins) say that this is not a partisan issue. I
think the Members on our side have demonstrated that it is not a
partisan issue because we voted across the board in all four of
these contests. We disallowed them basically because evidence was
not presented to our committee which warranted that kind of
response upholding any of the contests.
Mr. Speaker, the issue is a pretty simple one which I think
each of us is going to have to resolve in his own mind. The
gentleman from California (Mr. Wiggins) has taken one approach to
the statute. I, along with my colleagues on this side of the aisle,
have taken another approach which I think is the more reasonable
one.
The question is whether we are going to insist upon all of the
fine legalisms of procedure that exist in a court of law in these
election contests which are, as all of us know, fraught with
political pitfalls and political temptations.
This is the problem, Mr. Speaker. It is not a partisan issue.
I think that in many cases if we go the route of allowing these
legal procedures to tie up the Committee on House Administration
and the House of Representatives to a point where we cannot resolve
these election contests expeditiously, we are going to find that in
each of the congressional districts anyone who thinks that he has a
good shot at whoever is pronounced the winner of an election,
during the next election will engage in an election contest. He
will come in and have a forum which will enable him to get a leg up
as far as the next election is concerned. The issue will not be
resolved within that period of time.
Therefore, Mr. Speaker, the question is whether we are going to
seek to resolve these issues expeditiously where evidence has not
been presented to the panel with any degree of sufficiency, or
whether we are going to insist on permitting these people to go on
fishing expeditions.
There is an historical presumption that the certificate of
election is valid; and unless that is refuted with adequate
evidence, we certainly should stick to that presumption.
Mr. [George] MAHON [of Texas]. Mr. Speaker, will the gentleman
yield?
Mr. NEDZI. I yield to the gentleman from Texas
Mr. MAHON. Mr. Speaker, I concur in the remarks of the
gentleman from Michigan (Mr. Nedzi). The Committee on House
Administration has now investigated this matter and is satisfied
that Mr. Gammage received the majority of the votes in the election
and that in the recount he continued to receive a majority of the
votes. He was certified by the secretary of state of Texas as
having been elected to the Congress from the 22d District. Any
close election always raises questions, but it seems to me this now
should not be a partisan matter and that the proper action of the
House is to approve the recommendation of the Committee on House
Administration so that the people of the 22d District of Texas can
be represented.
I urge the House to defeat the motion to recommit and to
approve the recommendation of the committee.
Mr. THOMPSON. Mr. Speaker, I yield 2 minutes to the gentleman
from Texas (Mr. Archer), for purposes of debate only.
Mr. [William] ARCHER [of Texas]. Mr. Speaker, last November
voters of the 22d Congressional District of Texas went to the polls
to elect their Congressman.
The true outcome of that election is still very much in doubt,
and it now appears quite probable from the proceedings today that
it will be forever in doubt.
Mr. Speaker, I must question the action taken by the Committee
on House Administration. The committee has denied the right to
pursue justice, which is sacred to our American principles, and
denied it to one of the staunchest defenders of justice and liberty
who has ever served in the Congress.
Certainly the time is now to put to rest any doubts whatsoever
about the outcome of last November's election. However, that does
not mean that we have a right to unfairly limit a fellow American's
right to present evidence to prove his case; and that is what the
majority will be doing today if it votes to dismiss Congressman Ron
Paul's contest.
Mr. Speaker, as my colleague, the gentleman from California has
stated so eloquently, Congressman Ron Paul has procedurally been
denied the opportunity to present evidence substantiating his claim
that the election should be invalidated.
For the second time now, Congressman Ron Paul has been told
that he has no right to present evidence to prove his case.
The Texas Supreme Court ruled in effect that the people of the
State of Texas do not have any right to use their court system to
settle questions involving Federal elections. But I might point out
that that was a 5 to 4 decision of a 9-judge panel, all of whom are
Democrats.
Is this body going to rule that the people of the State of
Texas also cannot depend upon the U.S. House of Representatives to
seek out the truth in such disputes? If so, that is really quite a
frightening comment on our system of justice in this country.
Mr. THOMPSON. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I cannot leave unanswered the remarks of the
gentleman from Texas (Mr. Archer). To say that there is still doubt
may be a valid claim in his mind. It is not in the judgment of the
committee.
To say that there has been a denial of justice by the Committee
on House Administration is an absolute and complete untruth and is
deeply resented.
I refuse to yield.
To say that we should yield this matter to the Supreme Court of
Texas is to say to the Supreme Court of Texas, notwithstanding the
5-to-4 vote that, no, you are wrong, we throw it back to you.
To say that we have not considered motives, to say that we have
been unfair, is an absolute insult to the members of the Committee
on House Administration and I do not intend to let it go
unanswered.
I deeply regret having to say this to the gentleman.
The gentleman from California (Mr. Wiggins) has not accused us
of evil motives. He bases his case on legal theory. The gentleman
from Texas may make such judgments as he wants on the Americanism
of anybody--whatever that is, whether it be love of mother, or
apple pie, or Texas, or whatever. He can have his definition. I
have wondered for years at the definition of a great American. I
have heard a great many described as great Americans whom I would
not describe as such, but I have not taken their definition.
Mr. Speaker, I yield briefly to the gentleman from California
(Mr. Wiggins) for the purpose of debate only.
Mr. WIGGINS. Mr. Speaker, I did not at all understand the
gentleman from Texas (Mr. Archer) to impugn in any way the motives
and the integrity of the members of the committee on which we both
serve but, nevertheless, I fully share the views of the gentleman
from Texas that justice has been denied in this case because the
committee is approving a procedure which prevents one of the
parties from going forward to prove his case. That is a fair
observation and I hope the gentleman from New Jersey does not take
it personally.
Mr. THOMPSON. Mr. Speaker, if the gentleman will yield, we have
adhered strictly to the standards set forth in the statute. I
concede to the gentleman that it can be bad but I deny that there
was any justice denied in this case.
Mr. WIGGINS. Indeed, the words ``motion to dismiss'' do not
appear anywhere in this statute. This is not a statutory motion.
Rather is calls upon the inherent authority of the committee to
dismiss a frivolous petition on a good showing. Strangely, we
require the respondent to prove his case in order to resist the
motion. That is not right, my colleagues, and I do not believe that
that is what justice is all about. This emasculates the statute. I
urge the Members to read it, it is all in title 2, section 382.
Mr. THOMPSON. Mr. Speaker, I yield 2 minutes, for debate only,
to the gentleman from California (Mr. John L. Burton).
Mr. JOHN L. BURTON [of California]. Mr. Speaker, later on there
is another contest Pierce against Pursell that is a very close
election that will forever be in doubt in the minds of many people,
including the member of the Democratic Party whose motion was
dismissed by majority members of the House Administrative
Committee. He was denied any means of pursuing his action, which
was merely a recount, because there is no provision available. We
did it consistent with the laws and the procedures of this House
and the Committee on House Administration. That election will also
forever be in doubt in the mind of the Democrat who ran for office.
I would say to my colleagues on this side of the aisle I will
wonder if we did the right thing if this all becomes a partisan
basis in the view that elections will forever be in doubt, because
we do not have a procedure--and I would like to see one--for
recount. But we were struck with the fact that under the laws and
under our precedents there is no procedure except to call them as
we see them, and that is how we did it, fairly and squarely. I do
not see anybody raising that issue on the Pierce against Pursell
matter.
Mr. THOMPSON. Mr. Speaker, I yield such time as he may consume
to the gentleman from Pennsylvania (Mr. Ammerman).
Mr. AMMERMAN. Mr. Speaker, we, the panel, notified the
contestant of the hearings and for him to come forward with
whatever he had. We heard the argument and questions were put by
the gentleman from Michigan (Mr. Nedzi) directly to his counsel--
which the transcript will show--such as, ``Do you have anything?
Why do you not present it?''
It boils down simply to this: Do the Certificate of Election
and the results of the election that it certifies mean anything, or
does the person who was certified have to go in and show that the
contestant was wrong? It is strictly a technicality. He had an
opportunity to present everything he had. He had taken depositions
over a period of almost 89 days, and he did not even present them.
There was an opportunity not only that day but in the ensuing week,
which we gave him, to present anything, and it was not done.
Mr. THOMPSON. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
motion to recommit offered by mr. wiggins
Mr. WIGGINS. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore. Is the gentleman opposed to the
resolution?
Mr. WIGGINS. I am, Mr. Speaker.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk reads as follows:
Mr. Wiggins moves to recommit the resolution, H. Res. 526, to the
Committee on House Administration.
The SPEAKER pro tempore. Without objection, the previous
question is ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to
recommit.
The question was taken; and the Speaker pro tempore announced
that the noes appeared to have it.
Mr. WIGGINS. 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. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas
126, nays 260, answered ``present'' 2, not voting 44, as follows:
[Roll No. 211] . . .
Mr. FINDLEY changed his vote from ``nay'' to ``yea.''
Mr. WIRTH changed his vote from ``yea'' to ``nay.''
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the SPEAKER pro tempore announced
that they ayes appeared to have it.
Mr. WIGGINS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were refused.
So the resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 16.3 Young v Mikva
The general election for the office of Representative to Congress
from the Tenth District of Illinois was conducted on November 2,
1976.(12) The general election candidates were Samuel H.
Young (the Republican candidate) and Abner J. Mikva (the Democratic
candidate). The initial vote totals indicated that Mr. Mikva received
106,804 votes, while Mr. Young received 106,603 votes. Mr. Mikva's
margin of victory was therefore 201 votes. On November 5, 1976, a
county clerk filed a petition in an Illinois state court to have
certain absentee ballots counted, despite their having not been
delivered to their required precincts in time to be counted. The court,
however, dismissed the action. A similar action filed on November 12,
1976, was also dismissed. Mr. Mikva was declared the winner of the
election by the Governor on November 22, 1977.
---------------------------------------------------------------------------
12. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 95-244, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
On November 24, 1976, Mr. Young took advantage of the state's
``discovery recount'' procedures to request a partial recount of
certain precincts. This recount, supervised by state officials and
observers from the Committee on House Administration, began on December
6, 1976, and was concluded on December 7, 1976.
On December 16, 1976, Mr. Young filed a petition for a court-
ordered recount of certain precincts. Mr. Mikva opposed this motion on
January 6, 1977, and the court granted Mr. Mikva's motion to dismiss on
January 18, 1977, finding that the state's recount provisions were
inapplicable to Federal elections, and that there were no state
procedures for contesting such elections. Mr. Young appealed to the
Illinois Supreme Court, but at the time of the filing of the
committee's report in this election contest, the Illinois Supreme Court
had not issued a decision.
On December 20, 1976, Mr. Young (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was referred to
the Committee on House Administration for its consideration. On January
20, 1977, Mr. Mikva (hereafter ``contestee'') filed a motion to
dismiss, and on March 8, 1977, an ad hoc panel from the Committee on
House Administration met to consider oral arguments and written
testimony. The panel gave the parties an additional ten days to submit
further information. Action on the motion to dismiss was deferred until
April 20, 1977. At that time, the ad hoc panel recommended granting
contestee's motion to dismiss.
In its report recommending dismissal of the contest, the Committee
on House Administration reiterated previously-articulated standards for
evaluating motions to dismiss. The report noted the presumptions of
regularity that accompany official state election documents (such as
certificates of election), as well as actions by election officials.
The burden is thus placed on the contestant to overcome these
presumptions of regularity by substantial evidence. Not only must the
contestant show that there existed fraud, mistake, or other
irregularities in the election process, but that such factors were
determinative of the outcome. Ultimately, the committee found that the
contestant had failed ``to sustain the necessary burden to
overcome''(13) the motion to dismiss.
---------------------------------------------------------------------------
13. H. Rept. 95-244, 95th Cong. 1st Sess. p. 7.
---------------------------------------------------------------------------
One minority party Member (Rep. Dave Stockman of Michigan) filed
minority views to accompany the committee's report. In his statement,
Rep. Stockman claimed that it was ``premature'' and
``improper''(14) for the House to dismiss the contest. He
described the contestant as facing a ``Catch-22''(15)
dilemma, where state recount procedures denied him the ability to
inspect ballots and, lacking such supporting evidence, contestant could
not proceed to the discovery phase under the FCEA. In Rep. Stockman's
view, the motion to dismiss should not be granted, in order to afford
contestant the opportunity to gather additional evidence. In additional
dissenting views submitted by all minority party members of the
committee, the argument was made that ``the majority elevates a
certificate of election to a conclusive presumption of the validity of
an election by denying to the contestant any means of challenging
it.''(16)
---------------------------------------------------------------------------
14. Id. at p. 9.
15. Id. at p. 8.
16. Id. at p. 10.
---------------------------------------------------------------------------
On May 9, 1977,(17) the committee offered House
Resolution 527 (dismissing the contest) as a privileged matter, which
the House adopted by voice vote:
---------------------------------------------------------------------------
17. 123 Cong. Rec. 13957-60, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST ABNER J. MIKVA
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, by direction
of the Committee on House Administration, I call up a privileged
resolution (H. Res. 527), and ask for its immediate consideration.
The CLERK read the resolution, as follows:
H. Res. 527
Resolved, That the election contest of Samuel H. Young, contestant,
against Abner J. Mikva, contestee, Tenth Congressional District of the
State of Illinois, be dismissed.
The SPEAKER pro tempore.(18) The gentleman from New
Jersey (Mr. Thompson) is recognized for 1 hour.
---------------------------------------------------------------------------
18. William Natcher (KY).
---------------------------------------------------------------------------
Mr. THOMPSON. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, this resolution deals with the contested election
case of Young against Mikva. The ad hoc panel investigating this
case was chaired by the gentleman from California, the Honorable
Leon Panetta, and consisted of the gentleman from California, the
Honorable Augustus Hawkins, and the gentleman from Michigan, the
Honorable Dave Stockman.
Mr. Speaker, I yield 5 minutes to the gentleman from California
(Mr. Panetta), the panel chairman.
Mr. [Leon] PANETTA [of California]. Mr. Speaker, we deal now
with House Resolution 527, which involves the election contest
between Samuel Young, the contestant, and Abner Mikva, the
contestee, in the 10th Congressional District of Illinois.
The Committee on House Administration recommends adoption of
the resolution for dismissal. The history of this case is rather
complicated. I will try to present a brief summary to the House.
The general election was held on November 2, 1976, at which
time Mr. Mikva won over Mr. Young by 201 votes. On November 22 Mr.
Mikva was certified and declared by the Governor of Illinois as
having been duly elected.
On November 24, Mr. Young filed a petition for discovery
recount with the clerk of Cook County. On December 6 and 7, a
recount was held before representatives of Mr. Young and Mr. Mikva,
the clerk of Cook County, and staff members of the Committee on
House Administration. A retabulation was made of approximately
53,000 votes, and it was indicated at that time that there was only
a difference of four votes in the election result.
On December 16, 1976, a petition for a recount was filed by Mr.
Young in the circuit court, and on December 20, 1976, Mr. Young
filed a notice of intention to contest the election with the House
of Representatives.
Mr. Speaker, the notice of intention to contest was based on
approximately five grounds, alleging malfunction of voting
machines, ballots with various identifying marks, ballots not
initialed by election judges, ballots cast by nonresidents, and
others.
On January 4, 1977, Mr. Mikva was sworn in as the
Representative from the 10th Congressional District. On January 6,
1977, he filed a motion to dismiss the petition for recount in the
courts, and the courts upheld Mr. Mikva and dismissed the case.
That case is still under appeal to the supreme court in Illinois.
On January 20, 1977, Mr. Mikva filed a motion to dismiss with
the committee under section b(3), which states that the contestant
must state grounds that are sufficient to change the result of the
election, and the position by Mr. Mikva was that the motion did not
state grounds sufficient to change the result of the election.
Hearings were held on March 8, by the ad hoc subcommittee
chaired by myself, with the distinguished gentleman from California
(Mr. Hawkins) and also the distinguished gentleman from Michigan
(Mr. Stockman). On April 5 an additional hearing was held, and on
April 20 a final hearing was held on the motion to dismiss. And a
vote was taken of 2 to 1 recommending dismissal.
The basic issue that faces the House is whether the notice of
contest filed by Mr. Young states grounds sufficient to change the
result of the election. The law in this case is very clear. In an
amendment adopted by the House in 1969 makes it clear that an
individual can file a motion for dismissal in order to challenge
notices of contest that do not meet the burden of presenting
sufficient facts and evidence.
In Tunno against Veysey, which is one of the cases handled by
the House, the point was made that there is a substantial burden on
the contestant not only to come forward with allegations, but also
to present evidence and facts supporting those allegations. This is
a heavy burden placed on the contestant.
Indeed, in one case, Gormley against Goss, it was held that
there were three prerequisites, one, that the official returns
themselves are prima facie evidence that the conduct of the
election officials was legal; second, that there is also a
presumption that the officials performed their duty honestly.
Therefore, the burden to resist these presumptions is a heavy
one and falls on the contestant.
Mr. Speaker, this is not just a motion for summary judgment. It
should not be compared to other civil proceedings. This is not just
simple notice pleadings. There is a substantial burden on the
contestant to come forward not only with allegations; but with
facts.
In this case, Mr. Speaker, the initial allegations were based
not on fact but on information and belief. The affidavits filed by
the contestant showed, at most, a difference of 4 to 10 votes out
of 53,000 votes.
The SPEAKER pro tempore. The time of the gentleman from
California (Mr. Panetta) has expired.
Mr. THOMPSON. Mr. Speaker, I yield 3 additional minutes to the
gentleman from California (Mr. Panetta), for purposes of debate
only.
Mr. PANETTA. To continue what I was saying, Mr. Speaker, the
contestant showed a difference of 4 to 10 votes out of the 53,000
vote recount and out of the 200,000 vote election result.
The question is, Are 4 to 10 votes enough of a difference to
warrant this House proceeding with a full investigation and a full
recount of that election?
Mr. Speaker, it was the decision of the panel, which has the
right to exercise its discretion in these matters, based on the
facts presented to it, that the contestant had not met his burden.
We are not in the business of helping the contestant to make out
his case. We may argue with procedure. We may not like the process
established, but the fact is that we must adhere to the procedures
that we have before the House. The fact is that the contestant did
not meet or comply with those procedures.
Mr. Speaker, it could well be said that any argument with
procedures should be dealt with legislatively; but it should not be
dealt with in the context of a quasijudicial proceeding. Therefore,
Mr. Speaker, based on the time and effort that would be involved in
further investigating this case and based on the dangerous
precedent that could be established, it was the decision of the
panel that we recommend dismissal of the case.
I, too, Mr. Speaker, as chairman of that panel, recommend
dismissal of this case and that the Members agree to House
Resolution 527.
Mr. THOMPSON. Mr. Speaker, I yield 5 minutes to the
distinguished gentleman from Michigan (Mr. Stockman), for the
purposes of debate only.
Mr. [David] STOCKMAN [of Michigan]. Mr. Speaker, I rise in
opposition to the resolution before us.
I just want to make clear before I proceed into the argument
that we do not take this position in this case for the purpose of
merely overturning the result of a certified election. We are not
taking this position, because we wish to deny the seat to a sitting
Member of this body, because we want to see a seat switched from
one side of the aisle to the other, and certainly not because we
think the proceedings which took place before our panel and our
full committee were unfair.
Mr. Speaker, our purpose, really, in raising these questions on
these resolutions is to prevent the accumulation of precedents
which, in our judgment, will render our whole contested elections
procedure null and void and will make it, for all practical
purposes, a useful instrument to resolve election contests.
I think it is important for the House to understand that the
resolution before the House today is not the product of a hearing
on the merits of this case. No evidence was gathered by the
committee. Neither of the parties involved in this contest took
depositions or other steps to gather evidence. No examination or
cross examination occurred.
All of the procedures that are provided by U.S.C. 386 to 389
were not used, because we did not get that far. This motion to
dismiss was interposed; and as a result, the basic procedures of
the Contested Elections Act were not used.
The fact is that the motion to dismiss must clearly rest on a
showing by the contestee that grounds sufficient to change the
result of the election were not presented.
Mr. Speaker, the majority of the panel and the majority of the
committee have concluded that such grounds were not presented.
I would like to take just about 2 minutes to lay before the
House some of the information that was contained in the notice of
contest, in the pleadings of the contestant in this case, and then
I would ask the Members, on the basis of this evidence, whether or
not they think sufficient grounds were presented.
The following pieces of information were presented to us in the
original notice of the contestant, first, it showed that there were
10 votes that were counted for the contestee which actually
belonged to the contestant, as a result of a discovery recount that
was made, and those have not been questioned by the contestee.
Second, it showed in this same discovery recount which was
carried out pursuant to State procedure, that there were 230
ballots which were uninitialed by the election judges and,
nevertheless, they were counted, even though that is a violation of
the State law in Illinois.
The third thing that the notice showed, or contended, or
alleged, was that there were 611 ballots containing distinguishing
marks, numbers, some of them in sequential order; these ballots
also contained lines, checks, and all of these marks, again, are
prohibited by the election act in Illinois.
These ballots were counted, therefore, in violation of the
basic election act in this State under which the election was
carried out.
Then, finally, the notice of contest filed by the contestant
contained the names and addresses of 20 individuals who voted in
that election despite the fact that they had been stricken from the
registration rolls previous to the election. Nevertheless, those
ballots cast by unregistered voters were counted.
What does this add up to? It adds up to a showing, a clear,
concrete, material showing, that 871 ballots were counted in that
contest which were either--No. 1, erroneously tabulated; No. 2,
counted in violation of the State law; or, No. 3, illegally cast.
We were dealing with an election involving a difference of only
201 votes and we have a showing in the pleadings, in the notice of
contest, that there were 871 ballots which are subject to question.
The only thing that the notice of contest does not show is
whether or not each of those 871, or even 500 of them, would have
gone to the contestee or the declared winner in that election, Mr.
Mikva and, therefore, would not change the outcome.
But I would suggest to the House that proving which way each
one of those ballots would have gone is not something that has to
be done in the initial notice; that is something that should be
done during hearings on the merits.
This case is far different from some of those we have had in
the past, because I think the notice is sufficient and demonstrates
that the outcome could have been different.
I would urge that the House recommit this matter to the
committee.
Mr. THOMPSON. Mr. Speaker, before yielding to the gentleman
from California (Mr. John L. Burton) following which I presume the
gentleman from California (Mr. Wiggins) would want to be heard--I
might point out that, in substance, the legal groundwork for this
and the other three contests today is essentially the same. I would
think that it is a matter which will come up later, and which
deserves some further in depth discussion, probably in the
Committee on House Administration which has the substantive
legislative jurisdiction.
Mr. Speaker, I yield 3 minutes to the distinguished gentleman
from California (Mr. John L. Burton) for debate only.
Mr. JOHN L. BURTON [of California]. Mr. Speaker, I thank the
gentleman from New Jersey for yielding to me.
This case, again, is not unlike the next matter that will be
before us and it is not unlike a matter that was before us 2 years
ago out in the State of Nebraska, Ziebarth versus Smith, where
there was a close election and where the loser petitioned on the
basis of statistical information and probabilities that the
counting of the ballots had to be erroneous and, therefore, the
winning candidate, Mrs. Smith of Nebraska, should not have been
seated.
At that time the Committee on House Administration, with a
majority joined by the minority and only myself voting in the
negative, dismissed the contest. The matter went to the floor and
again the contest was dismissed. I voted in the negative, because I
thought there should be some procedure in a close election whereby
there should be an avenue of recourse. I found out, chairing the
Pierce-Pursell matter that in fact there was not. Based on that I
would hope to introduce later this year legislation to provide for
a recount procedure for the House of Representatives and that does
not exist at the present time in many of the States. But again here
we are faced with a close election.
The minority members felt somehow that the burden of proof was
met by the losing candidate and voted not to dismiss--the same
facts. The numbers are a little bit different. I think there is
maybe a 100-vote difference in the margin in the Michigan contest.
We on the majority--including myself who voted against dismissing a
similar matter 2 years ago because I thought there had to be
recourse--voted to dismiss, because there was just no way in the
world that we could go in and start ordering local governments to
pay for some kind of a recount.
So I would hope that the gentleman from Michigan (Mr. Stockman)
--and we have discussed this--would join with me in coming up with
a procedure to deal with close elections.
Mr. CHARLES H. WILSON of California. Mr. Speaker, will the
gentleman yield?
Mr. JOHN L. BURTON. I yield to the gentleman from California.
Mr. CHARLES H. WILSON of California. I thank the gentleman for
yielding.
I wonder if the gentleman will agree with me that perhaps we
should have a rollcall vote when the next resolution comes up.
Mr. JOHN L. BURTON. Possibly on the next one.
Mr. CHARLES H. WILSON of California. Apparently these are all
going on a party-line vote.
Mr. JOHN L. BURTON. We did not operate on a party-line basis
when we dismissed Smith and Ziebarth 2 years ago, Kyros and Emery 2
years ago, and the Pierce-Pursell matter this year. I am kind of
distressed that some of these things become partisan, because the
facts are the same.
We are dealing with a close election. Unfortunately, there is
no procedure under the laws we can address ourselves to, and I hope
we can deal with these in fairness as with the others.
I thank the gentleman for yielding.
Mr. THOMPSON. Mr. Speaker, for debate only, I yield 3 minutes
to the gentleman from California (Mr. Wiggins).
Mr. [Charles] WIGGINS [of California]. Mr. Speaker, I should
like to paint a little picture here which demonstrates how utterly
preposterous this procedure is. Let us suppose you are a plaintiff
and you file a complaint, and you allege in the complaint a cause
of action entitling you to relief. Let us suppose that the
defendant instead of answering immediately files a motion to
dismiss your well-pleaded complaint and sets it down for hearing on
his motion to dismiss. You go into court, and the judge says to
you, the plaintiff:
Well, what have you got to say for yourself? Why shouldn't we dismiss
your complaint? Prove it. Prove it now. Prove up your allegations.
Your answer is:
Well, Your Honor, this is not my motion. It is not my burden to establish
a motion to dismiss. Moreover, I am entitled to take depositions to find
out what the evidence is to support my well-pleaded allegations.
We have that procedure in civil litigation, because it is fair,
and doing it in this context is unfair.
Mr. THOMPSON. Mr. Speaker, will the gentleman yield?
Mr. WIGGINS. I yield to the gentleman from New Jersey.
Mr. THOMPSON. I thank the gentleman for yielding.
We are in an entirely different situation here, I respectfully
say. We are not in court. There is a presumption to which a Member
is entitled when his secretary of state or Governor certifies to
his election.
Mr. WIGGINS. I stipulate that presumption, but it is not a
constructive presumption which prohibits someone from offering
evidence that it is improper. To maintain this position is to do
away with our election contest statute.
Mr. THOMPSON. If the gentleman will yield further--and if
necessary I will yield him additional time for debate--in the
matter of the case just disposed of, the contestee was given an
opportunity of in excess of 10 days to submit additional evidence.
The rules of discovery are not applicable here as they are or
perhaps should be. The legal situation, as the gentleman knows, is
different.
Mr. WIGGINS. But surely the rules of discovery in our own
election contests statute are applicable; are they not?
Mr. THOMPSON. Yes, and with respect to existing standards the
gentleman is quite right, and the rules have been strictly adhered
to.
Mr. WIGGINS. It provides that those depositions be made after
answer and the answer was never filed in this case.
Mr. THOMPSON. But those procedures were not utilized by Dr.
Paul.
Mr. WIGGINS. If the gentleman wishes to go back and reargue
that case, I will if the gentleman will extend the time.
In this case there is a stronger answer. There was not any
answer at all filed. In this case the gentleman from Illinois (Mr.
Mikva), for whom I have the greatest respect, filed an immediate
motion to dismiss, cutting off any opportunity.
Mr. THOMPSON. Mr. Speaker, I yield 2 minutes to the gentleman
from California (Mr. Panetta).
Mr. PANETTA. Mr. Speaker, I would say very briefly if we get
into the game of trying to take outside legal procedures and try to
apply them here, it is a very dangerous game. Those procedures are
just not the same.
As a matter of fact, in standard civil proceedings, if a person
comes forward with a motion and the respondent on the motion does
not present anything, he is going to get thrown out of court.
In 2 U.S.C. section 385, default of contestee, the language
says:
The failure of contestee to answer the notice of contest or to otherwise
defend as provided by this chapter shall not be deemed an admission of the
truth of the averments in the notice of contest. Notwithstanding such
failure, the burden is upon contestant to prove that the election results
entitle him to contestee's seat. (P.L. 91-138, Sec. 6, Dec. 5, 1969, 83
Stat. 286.)
If the gentleman from Illinois (Mr. Mikva) did not do anything,
file a motion to dismiss, or whatever, and he did nothing,
according to this statute the burden would still be on the
contestant, Mr. Young, to prove his case.
Mr. WIGGINS. Mr. Chairman. if the gentleman will yield, I agree
totally with the gentleman. Of course the burden rests on the
contestant to prove his case, but the time to prove that case is
when the case is submitted on the record, not before one has had an
opportunity to develop that record.
Mr. PANETTA. I understand the gentleman's argument and I have
the greatest respect for his expertise. I respectfully disagree
with him. I think it extremely important that we do not come into
these cases as advocates and that we do not take the position of
simply supporting one side or the other because of party. We must
deal with the facts as they are presented to the committee.
The second point I would like to make is that it is extremely
dangerous for this House if we permit free and open notices to be
filed by everyone everywhere to contest elections. They must be
based on fact.
Mr. THOMPSON. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
motion to recommit offered by mr. wiggins
Mr. WIGGINS. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore. Is the gentleman opposed to the
resolution?
Mr. WIGGINS. I am, Mr. Speaker.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Wiggins to recommit the resolution (H. Res. 527) to the Committee on
House Administration.
The SPEAKER pro tempore. Without objection, the previous
question is ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to
recommit.
The motion to recommit was rejected.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker announced that the ayes
appeared to have it.
Mr. WIGGINS. 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. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas
272, nays 107, answered ``present'' 3, not voting 50, as follows:
[Roll No. 212] . . .
Mr. ST GERMAIN changed his vote from ``nay'' to ``yea.''
Mr. HAGEDORN changed his vote from ``yea'' to ``nay.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Sec. 16.4 Pierce v Pursell
The general election for the office of Representative to Congress
from the Second District of Michigan was conducted on November 2,
1976.(19) The general election candidates were Carl D.
Pursell (the Republican candidate) and Edward C. Pierce (the Democratic
candidate). The official canvass of votes indicated that Mr. Pursell
received 95,397 votes, while Dr. Pierce received 95,053 votes. Mr.
Pursell's margin of victory was therefore 344 votes. On November 23,
1976, Mr. Pursell was certified as the winner of the election by the
Michigan Board of Canvassers. His credential were presented to the
House of Representatives, and on January 4, 1977, he was duly
administered the oath of office without objection or challenge.
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19. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 95-245, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
On November 8, 1976, Dr. Pierce filed suit in state court to obtain
a review of tally sheets and vote totals, but the initial order
granting this request was reversed on appeal. Dr. Pierce next filed a
petition for a recount with the Board of Canvassers, but this request
was also denied, on the basis that state law did not provide for a
recount of elections for Federal office.
On December 2, 1976, Dr. Pierce (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was forwarded to
the Committee on House Administration for its consideration. The notice
of contest claimed that certain mistakes had been made in the
tabulation of votes, and that certain precincts should be recounted. In
reply, Mr. Pursell (hereafter ``contestee'') filed a motion to dismiss,
asserting the statutory defenses that the contestant had not properly
claimed a right to the seat, and that contestant had not stated that,
but for the alleged errors, the result of the election would have been
different.
The Committee on House Administration established an ad hoc panel
of three Members on March 2, 1977, to investigate the matter. The panel
met on March 7, 1977, to hear oral arguments on contestee's motion to
dismiss. On March 16, 1977, the ad hoc panel voted unanimously to
recommend that the committee grant the motion to dismiss.
In its committee report, the Committee on House Administration
reviewed prior precedents regarding the circumstances under which the
committee would undertake a recount after the initiation of an election
contest. The committee concluded that the case ``lacks all of the
ingredients that our colleagues in earlier Congresses have found
essential to ordering a recount.''(20) To prevail on a
request for a recount, ``substantial allegations of fraud must be
alleged''(21) and ``the likelihood must exist that the
result of the election would have been different.''(22) The
committee recommended that the House adopt a resolution to dismiss the
contest.
---------------------------------------------------------------------------
20. H. Rept. 95-245, 95th Cong. 1st Sess. p. 4.
21. Id.
22. Id.
---------------------------------------------------------------------------
Members of the minority party filed supplemental views to accompany
the committee report. In those views, the minority desired to
distinguish this case from a similar case in the same
Congress.(23) There, the minority felt that the contestant
had affirmatively alleged specific ballots errors sufficient to change
the result of the election. Here, however, the contestant had advanced
merely a suspicion of error without any supporting evidence. Thus,
while the minority agreed that the motion to dismiss should be granted,
it disagreed with the standard used by the majority in evaluating such
cases.
---------------------------------------------------------------------------
23. See Young v Mikva, Sec. 16.3, supra.
---------------------------------------------------------------------------
On May 9, 1977,(24) the committee offered House
Resolution 528 (dismissing the contest) as a privileged matter, which
the House adopted by voice vote:
---------------------------------------------------------------------------
24. 123 Cong. Rec. 13960-61, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST CARL D. PURSELL
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, by direction
of the Committee on House Administration, I call up a privileged
resolution (H. Res. 528) and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 528
Resolved, That the election contest of Edward C. Pierce, contestant,
against Carl D. Pursell, contestee, Second Congressional District of the
State of Michigan, be dismissed.
The SPEAKER pro tempore.(25) The gentleman from New
Jersey (Mr. Thompson) is recognized for 1 hour.
---------------------------------------------------------------------------
25. William Natcher (KY).
---------------------------------------------------------------------------
Mr. THOMPSON. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, this resolution deals with the contested election
case of Pierce against Pursell. The ad hoc panel investigating this
case was chaired by the gentleman from California, the Honorable
John L. Burton, and consisted of the gentleman from Illinois, the
Honorable Frank Annunzio, and the gentleman from New Hampshire, the
Honorable James Cleveland.
Mr. Speaker, I yield such time as he may consume to the
gentleman from California (Mr. John L. Burton), the chairman of the
panel, for purposes of debate only.
Mr. JOHN L. BURTON [of California]. Mr. Speaker, I thank the
chairman of the committee for yielding this time to me.
This is the election contest matter to which I referred in
debate on the other two resolutions in which the margin of victory,
out of more than 190,000 votes, was 344 votes.
In this matter I will listen, I am sure, very closely to the
motion to recommit offered by the gentleman from California, and I
will see if he raises any arguments that would cause me to change
my mind from my original intention.
Mr. Speaker, we found ourselves in this situation with the same
problems as did the other election panels. This was a close
election that will forever be in doubt. There is a contest in which
the losing candidate raised some probabilities of error in the
tabulation of votes that could lead one to believe that the outcome
of the election might have been changed.
After listening to testimony, we found that whatever we did
would be second-guessing the results of this election, with no real
information brought to us, other than some statistical
probabilities, that could guide us to do anything but dismiss the
contest.
Mr. THOMPSON. Mr. Speaker, will the gentleman yield?
Mr. JOHN L. BURTON. I yield to the gentleman from New Jersey.
Mr. THOMPSON. May I ask the gentleman this question, Mr.
Speaker:
Am I correct that in this matter, following the canvass showing
the difference of 344 votes and the presentation of the credentials
of Mr. Pursell to the House, on November 8 the contestant, Dr.
Pierce, filed a suit in the State court seeking an order permitting
an inspection and review of tally sheets containing the vote totals
and that the initial court granted the requested order, but that
decision was reversed on appeal; is that correct?
Mr. JOHN L. BURTON. By the Supreme Court: yes, it was.
Mr. THOMPSON. By the Supreme Court of the State?
Mr. JOHN L. BURTON. By the Supreme Court of the State of
Michigan.
Mr. THOMPSON. In other words, it is a situation analogous to
the Supreme Court decision in the Paul case; is that correct?
Mr. JOHN L. BURTON. I believe that the State Supreme Court of
Michigan and the State Supreme Court of Texas are the highest
judicial branches in those States.
Mr. Speaker, it is interesting to point out that if this were a
primary election, a recount could have been granted, under State of
Michigan law. If it were an election for a judgeship in the State
or for the State legislature, there could have been a recount under
the State law.
The only place where there cannot be a recount is in the
general election for a Member of Congress or the U.S. Senate.
There was a feeling on my part, as I expressed earlier, that
there should be a procedure whereby, especially in a State that
provides for recounts all the way up the line, with this one
exception, a recount might be in order. However, we have no
guidelines for a recount. We really have no policy with respect to
a recount.
Therefore, based on that information, I felt that it was my
duty, in fairness and in equity, notwithstanding the fact that this
Member very strongly wanted the losing party, Dr. Pierce, to win
the general election, to decide that the only thing I could do, in
fairness and in equity, and that the members of committee, the
gentleman from Illinois (Mr. Annunzio) and the gentleman from New
Hampshire (Mr. Cleveland) could do was to dismiss this contest, not
on a party-line basis, not on an ideological basis, but in fairness
and in honesty.
Mr. Speaker, I do feel, based on my experience with this
contest and with the others, that there should be a procedure
whereby recount procedures are available in congressional
elections; and I would hope that our committee would move on such a
matter.
As I say, I think this is really pretty well on all fours with
the Gammage matter, and with the Mikva matter.
Mr. Speaker, somebody wants to vote. I do not know whether the
motion to recommit will come now or later. I certainly believe that
consistency is the hobgoblin of small minds, but I would still vote
against the motion to recommit this matter, as I did on the others.
Mr. THOMPSON. Mr. Speaker, I yield 4 minutes to the gentleman
from California (Mr. Wiggins), for purposes of debate only.
Mr. [Charles] WIGGINS [of California]. Mr. Speaker, some of the
Members of this body believe that this contest is fairly analogous
to the previous ones, the Paul and Mikva contests.
It is not. There are some important legal distinctions between
them, and I will take just a moment to explain them.
In this case the notice of contest alleges only as follows:
Contestant Pierce bases this contest on information and belief that
certain mistakes were committed and corrections thereof should be made.
Contestant Pierce considers himself to be aggrieved by such mistakes.
Mr. Speaker, that is the pleading we have in this case. In both
the Mikva case and the Paul case the complaint specified with great
particularity the precise nature of the irregularities.
They were sufficiently numerous to change the result of an
election. The case before us now is indeed on all fours with the
case we decided 2 years ago, Zeibarth versus Smith. In that case
Mr. Zeibarth could not point to any specific irregularities, he
merely had a close election on his hands and he was disappointed in
the result and said,
It is so close there must be some irregularity, I ought to have a
recount.
The decision in Zeibarth versus Smith was that a close election
standing alone was not a sufficient basis to overturn an election.
The gentleman from California thought there should be a
procedure for a recount and I would not resist amending the code to
provide an automatic recount in close elections, even with no
specific allegation of irregularity.
But in Zeibarth versus Smith 2 years ago we said that closeness
alone is not enough and that you must allege with specificity the
particular irregularities which occurred in the election. Clearly
Mr. Pierce has not done so. All that was shown is what I have read
to the Members, that certain unspecified mistakes were committed
and the contestant conceives himself to have been aggrieved.
Therefore the proper disposition in this case, in light of those
pleadings, and no offer to amend it on his part, is to approve the
resolution before the committee.
It is not my intention to offer a motion to recommit, but if
the majority would wish to do so, I would not resist it.
Mr. THOMPSON. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I gather there is sort of an element of throwing
the gauntlet by the gentleman from California (Mr. Wiggins). I do
not anticipate any motion to recommit unless it is made by the
gentleman from California.
I would like to point out a few things. First of all, the
notice of contest in the Mikva case, was based on information and
belief and not on particularities and not until the committee
granted an extension were there any affidavits presented.
For those Members who subscribe and have subscribed to the
argument presented by the gentleman from California (Mr. Wiggins)
in the earlier cases today, it would seem that the same standard
should apply in this case. For those Members who desire different
standards and who voted earlier to recommit House Resolution 526,
perhaps they should consider turning this matter down, in order to
be consistent because they are analogous.
Mr. JOHN L. BURTON. Mr. Speaker, will the gentleman yield?
Mr. THOMPSON. I yield to the gentleman from California.
Mr. JOHN L. BURTON. Mr. Speaker, I would like to say there was
a showing which I would consider, there was one precinct where
there seemed to be a disproportionate falloff, or a possible loss
in which the losing party or the moving party claimed 90 votes. I
think the winning party stipulated it could not have been more than
40 or 50. There were further showings made, but we did not consider
them in any way sufficient enough to go in and order an election.
There was a partial recount that showed a switch of four votes.
I really believe this is on all fours with the others.
I might say that I believe as the gentleman from Michigan (Mr.
Stockman) does, that we should have a procedure setting forth how
we could deal with this type of matter because it is not an easy
thing to deal with, especially when you are in the majority and
calling them as you see them and then you find out that other
people appear to see things differently depending on how you look
at it from one side to the other.
Mr. THOMPSON. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker pro tempore announced
that the ayes appeared to have it.
Mr. [Elliott] LEVITAS [of Georgia]. 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. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas
371, nays 8, answered ``present'' 2, not voting 51, as follows:
[Roll No. 213] . . .
Mr. MILLER of California changed his vote from ``nay'' to
``yea.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Sec. 16.5 Dehr v Leggett
The general election for the office of Representative to Congress
from the Fourth District of California was conducted on November 2,
1976.(26) The general election candidates were Robert L.
Leggett (the Democratic candidate) and Albert Dehr (the Republican
candidate). The official returns indicated that Mr. Leggett received
75,866 votes, while Mr. Dehr received 75,202 votes. Mr. Leggett's
margin of victory was therefore 664 votes. Following the canvass, Mr.
Dehr filed for a recount in Sacramento County, which was observed by
staff from the Committee on House Administration. Following the
recount, Mr. Leggett's margin of victory was reduced to 651 votes. On
December 3, 1976, Mr. Leggett was certified as the winner of the
election by the California Secretary of State. His credentials were
presented to the House of Representatives, and on January 4, 1977, he
was duly administered the oath of office without objection or
challenge.
---------------------------------------------------------------------------
26. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 95-654, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 31, 1976, Mr. Dehr (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was referred to
the Committee on House Administration for its consideration.
In his notice of contest, contestant argued that the IBM Votomatic
system used in the election did not reliably record voters' choices.
Specifically, contestant alleged that the ballot and punch-card system
made it difficult for voters to correctly distinguish between votes for
write-in candidates and votes for Mr. Leggett (hereafter
``contestee'').
On March 2, 1977, the Committee on House Administration formed an
ad hoc panel of three Members to review the case. On July 15, 1977, the
panel met to hear oral arguments from the parties. On July 29, 1977,
the panel voted to recommend that the contest be dismissed.
In its committee report, the Committee on House Administration
rejected the contention that the voters were confused by the Votomatic
system used in the election. The committee noted the consistent manner
in which candidates were listed on the master ballot, and considered it
unlikely that voters would be confused as to how to vote for the
contestee or for a write-in candidate. The contestant had presented no
direct evidence as to how specifically votes would have been changed as
a result of these ostensibly ambiguous ballots.
On October 27, 1977,(27) the committee offered House
Resolution 770 (dismissing the contest) as a privileged matter, which
the House adopted by voice vote:
---------------------------------------------------------------------------
27. 123 Cong. Rec. 35407-408, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST OF ALBERT DEHR AGAINST ROBERT
L. LEGGETT
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, by direction
of the Committee on House Administration I call up a privileged
resolution (H. Res. 770), and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 770
Resolved, That the election contest of Albert Dehr, contestant, against
Robert L. Leggett, contestee, Fourth Congressional District of the State of
California, be dismissed.
The SPEAKER pro tempore.(28) The gentleman from New
Jersey (Mr. Thompson) is recognized for 1 hour.
---------------------------------------------------------------------------
28. James Wright (TX).
---------------------------------------------------------------------------
Mr. THOMPSON. Mr. Speaker, I yield such time as he may consume
to my distinguished colleague, the chairman of the ad hoc election
panel, the gentleman from New York (Mr. Pattison).
Mr. [Edward] PATTISON of New York. Mr. Speaker, before getting
into this contest, allow me to go into some background. Eight cases
were filed before the Committee on House Administration arising out
of elections for seats in the 95th Congress, five from the general
election of November 2, 1976, two from primary elections, and one
from a subsequent special election.
The U.S. Constitution provides Congress with plenary power over
its own elections and the rules of the House give the Committee on
House Administration authority and jurisdiction to process these
matters.
In order to provide for both an efficient and expeditious
handling of these eight cases, the Honorable Frank Thompson, Jr.,
chairman of the full Committee on House Administration, pursuant to
the rules of the House and the rules adopted for the Committee on
House Administration, designated this and seven other three-member
ad hoc panels to deal with these eight separate cases to the point
of disposition, subject to the approval of the full committee and
ultimately the full House.
This ad hoc panel consists of Mr. Jones of Tennessee, Mr. Burke
of Florida, and myself, as chairman.
A formal notice of contest was filed by Albert Dehr,
unsuccessful candidate for a seat in the 95th Congress in the
November 1976 general election. Mr. Dehr filed his notice of
contest in this case on January 3, 1977. Pursuant to the rules of
the House, the case was referred to the committee on House
Administration.
Congressman Leggett responded on February 8, 1977, and the
matter was brought before the ad hoc election panel.
On July 15, the panel heard oral argument, both sides being
represented by able counsel. The contestant claimed that
Congressman Leggett received votes allegedly cast for a write-in
candidate.
On July 29, 1977, the panel met again to consider this matter.
After carefully considering the legal arguments, examining copies
of the ballot inserts and receiving a staff report from committee
general counsel, the panel voted unanimously to dismiss the
election contest.
I might say, Mr. Speaker, it was clear to the panel that the
likelihood of any votes being erroneously cast for Congressman
Leggett was extremely remote. The contestant was given every
opportunity to demonstrate otherwise, but failed to do so.
Finally, on September 21, 1977, the full Committee on House
Administration met and voted, again unanimously, to dismiss this
contest.
Mr. Speaker, this matter was fully investigated and fairly
heard. I urge my colleagues to vote with the committee to dismiss
this contest.
Mr. THOMPSON. I yield for the purpose of debate only to the
ranking minority member of the panel, the gentleman from Florida
(Mr. Burke).
Mr. [Herbert] BURKE of Florida. Mr. Speaker, I thank the
gentleman from New York for yielding.
As the ranking minority member of this ad hoc committee, I
would like to concur with a statement my colleague from New York
has just given. This matter has been examined fully by the
committee. My opinion is that the committee was fair with the
attorneys on both sides, and after hearing all the testimony and
the probable evidence the committee found no reason that the
outcome of this election should be reversed. I agree with the
recommendations of the committee.
Mr. THOMPSON. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 16.6 Hill and Panlasigui v Clay
The primary election to nominate a Democratic candidate for the
office of Representative to Congress from the First District of
Missouri took place on August 3, 1976.(29) Of the seven
candidates, William L. Clay received the most votes (by a margin of
26,526 votes compared to the next highest vote-getter). A ``Concerned
Citizens Committee'' on behalf of two losing primary candidates (Felix
J. Panlasigui and Elsa D. Hill), filed a petition with election
officials, alleging that the candidates' names were left off of certain
ballots, that candidates' names were not in the correct position on
other ballots, that illegal votes had been cast, and that voting
machines had been tampered with. The St. Louis Board of Election
Commissioners investigated the allegations, and concluded that there
was ``no merit''(30) to the complaints. Thereafter, suits
were filed in both state and Federal courts, both of which were
dismissed on lack of jurisdiction grounds. On October 14, 1976, the
``Concerned Citizens Committee'' requested that the FBI conduct an
investigation into the matter. In December, the Justice Department
concluded the matter, stating that it was ``lacking
foundation.''(31)
---------------------------------------------------------------------------
29. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 95-723, 95th Cong. 1st Sess.
30. H. Rept. 95-723, 95th Cong. 1st Sess. p. 2.
31. Id. at p. 3.
---------------------------------------------------------------------------
On August 30, 1976, the ``Concerned Citizens Committee,'' on behalf
of Mr. Panlasigui and Ms. Hill (hereafter ``contestants'') filed a
notice of contest with the Clerk of the House, which was forwarded to
the Committee on House Administration for its consideration. The notice
of contest reiterated the claims made to state officials and the FBI.
On March 2, 1977, the Committee on House Administration formed an ad
hoc panel of three Members to review the allegations. On August 18,
1977, committee staff traveled to St. Louis to meet with state and
local election officials and review documents related to the case. On
September 29, 1977, the ad hoc panel recommended dismissal of the case.
In its committee report, the Committee on House Administration
concluded that contestants' ``allegations were not well
founded.''(32) The contestants failed to demonstrate
sufficient grounds to change the result of the election, and their
pleadings did not sustain a claim of a right to the seat. The committee
thus recommended that the case be dismissed. On October 27,
1977,(33) the committee offered House Resolution 822
(dismissing the contest) as a privileged matter, which the House
adopted by voice vote:
---------------------------------------------------------------------------
32. Id. at p. 4.
33. 123 Cong. Rec. 35408, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST OF ELSA DEBRA HILL AND FELIX J.
PANASIGUI [sic](34) AGAINST WILLIAM CLAY
---------------------------------------------------------------------------
34. As in the original. Text should read: Panlasigui.
---------------------------------------------------------------------------
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, by direction
of the Committee on House Administration, I call up a privileged
resolution (H. Res. 822), and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 822
Resolved, That the election contest of Elsa Debra Hill and Felix J.
Panasigui, contestants, against William Clay, contestee, First
Congressional District of the State of Missouri, be dismissed.
The CHAIRMAN.(35) The gentleman from New Jersey (Mr.
Thompson) is recognized for 1 hour.
---------------------------------------------------------------------------
35. James Wright (TX).
---------------------------------------------------------------------------
Mr. THOMPSON. Mr. Speaker, I yield such time as he may consume
to my distinguished colleague, the gentleman from California (Mr.
Van Deerlin), chairman of the ad hoc election panel.
Mr. [Lionel] VAN DEERLIN [of California]. Mr. Speaker, this
contested election involves the Democratic primary in the First
Congressional District of Missouri.
Ned Pattison and Bill Frenzel also served the ad hoc panel
hearing the case.
The Democratic primary for the First Congressional District of
Missouri was held on August 3, 1976. There were seven candidates.
Congressman William L. Clay received 29,094 votes. I will skip
over the second, third, and fourth finishers, all of whom accepted
the official tally.
The fifth highest number of votes cast were for one of the
contestants in this action, Felix J. Panasigui. He received 957
votes.
The sixth highest number of votes were for the other
contestant, Elsa D. Hill, who received 574.
On August 30, 1976, the contestants Panasigui and Hill filed
their notice of contest with the Clerk of the House.
Since that time the contestants have filed numerous documents
and pleading with our committee. The allegations contained in those
documents raise substantially the same charges that the contestants
filed with the St. Louis Board of Election commissioners. They are:
First. That Ms. Hill's and Mr. Panlasigui's names were left off
the primary ballot in at least 17 different polling places;
Second. That in a number of instances, the name of Ms. Hill
appeared on the ballot in a place other than its designated
position;
Third. That illegal votes were cast under the names of
registered voters who did not appear at the polls; and
Fourth. That some votes were cast on the machines after the
closing of the polls.
A staff report prepared by committee general counsel indicates
that the St. Louis board of election commissioners thoroughly
investigated the described charges, and found that: ``There is no
merit in the complaints filed by Mrs. Hill.''
The staff report also indicates that the contestants requested
that the Public Integrity Section of the Criminal Division of the
Justice Department conduct an investigation, and that subsequently
an investigation was conducted by the Federal Bureau of
Investigation. Attached to the staff report was a letter from
Justice stating that: ``The matter was closed in the Criminal
Division as lacking foundation.''
Additionally, committee staff went to St. Louis and met with
the board of election commissioners and their counsel. At that
meeting the board's investigation was discussed, and supporting
documents were provided to staff.
On September 29, 1977, the ad hoc election panel voted,
unanimously, to dismiss the election contest.
Finally, on October 20, 1977, the full Committee on House
Administration voted, again unanimously, to dismiss this matter.
Mr. Speaker, over the past several weeks, members of the
committee and staff have been harassed--even threatened--in
connection with this case. Enough of the taxpayers money has been
expended on the matter, which clearly has no basis in fact or law.
Mr. Speaker, I urge colleagues to join in supporting the
recommendations of the panel and committee, and dismissing this
election contest.
Mr. THOMPSON. Mr. Speaker, I thank the gentleman from
California.
Mr. Speaker, I yield, for purposes of debate only, such time as
he may consume to our distinguished colleague, the gentleman from
Minnesota (Mr. Frenzel).
Mr. [William] FRENZEL [of Minnesota]. Mr. Speaker, I thank the
chairman for yielding.
I subscribe to the statement of the gentleman from California
and hope this resolution will be speedily adopted.
Mr. THOMPSON. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 16.7 Lowe v Fowler
On January 30, 1977, Andrew Young (Representative from the Fifth
District of Georgia) resigned from the House in order to serve as
Ambassador to the United Nations.(36) A special election to
fill his vacant seat was conducted on March 15, 1977. Twelve candidates
took part in the election, and no candidate received a majority of
votes cast. A runoff election was then held on April 5, 1977, with
Wyche Fowler receiving 54,378 votes and John Lewis receiving 32,732
votes.
---------------------------------------------------------------------------
36. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 95-724, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
On April 15, 1977, one of the 12 initial candidates, Wyman C. Lowe
(hereafter ``contestant'') filed a notice of contest with the Clerk of
the House, which was referred to the Committee on House Administration
for its consideration. The contestant alleged that Mr. Fowler
(hereafter ``contestee'') was ineligible to run for the seat because he
had not resigned from the Atlanta City Council. The notice of contest
also stated that the low vote totals for contestant (as compared to
vote totals in a prior election) gave the presumption of fraud or
irregularity. Contestant also claimed that a large number of unused
extra ballots supported the claims of fraud or error. Contestee filed a
motion to dismiss the contest, based on lack of standing by the
contestant, and a failure to state grounds sufficient to change the
result of the election.
On March 2, 1977, the Committee on House Administration established
an ad hoc panel of three Members to review the matter. On September 16,
1977, staff of the committee met with state and local officials in
Georgia. They obtained from the Atlanta City attorney an opinion that
state law did not require resignation from the Atlanta City Council in
order to run for another office. Committee staff also met with election
officials to review documents relating to the claim of unused extra
ballots. The committee concluded that the ``apparent discrepancies were
either explicable or normal.''(37)
---------------------------------------------------------------------------
37. H. Rept. 95-724, 95th Cong. 1st Sess. p. 3.
---------------------------------------------------------------------------
With respect to the claims regarding low vote totals compared to
prior elections, the committee's report cited earlier
precedents(38) for the proposition that a mere disparity in
the number of votes from one election to the next does not raise the
presumption of irregularity. Vague or uncertain allegations will not be
sufficient for a contestant to prevail in an election contest. The
committee thus recommended granting contestee's motion to dismiss.
---------------------------------------------------------------------------
38. See 2 Hinds' Precedents Sec. 942; and Deschler's Precedents Ch. 9
Sec. 47.9.
---------------------------------------------------------------------------
On October 27, 1977,(39) the committee offered House
Resolution 825 (dismissing the contest) as a privileged matter, which
the House adopted by voice vote:
---------------------------------------------------------------------------
39. 123 Cong. Rec. 35408-409, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST W. WYCHE FOWLER, JR.
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, by direction
of the Committee on House Administration, I call up a privileged
resolution (H. Res. 825), and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 825
Resolved, That the election contest of Wyman C. Lowe, contestant, against
W. Wyche Fowler, Junior, contestee, Fifth Congressional District or the
state of Georgia, be dismissed.
The SPEAKER pro tempore.(40) The gentleman from New
Jersey is recognized for 1 hour.
---------------------------------------------------------------------------
40. James Wright (TX).
---------------------------------------------------------------------------
Mr. THOMPSON. Mr. Speaker, before yielding to the chairman of
the ad hoc panel, I would like to express my appreciation not only
to the three panel chairmen who are presenting these election
contest matters today, but to all the other members, majority and
minority, of the Committee on House Administration who served on
these panels.
We think that we have saved a tremendous lot of time, money,
and that each and every one of the panel chairmen have done a
really outstanding job, as have their colleagues from the minority.
In this case, the panel chairman to whom I yield, is the
gentleman from Pennsylvania (Mr. Ammerman).
Mr. [Joseph] AMMERMAN [of Pennsylvania]. Mr. Speaker, I have
been designated by the Honorable Frank Thompson, chairman of the
Committee on House Administration, to chair the ad hoc panel
investigating the contested election involving the Fifth
Congressional District of Georgia.
Also serving with me are the Honorable Lucien Nedzi of
Michigan, and the Honorable Bill Frenzel of Minnesota.
By way of background, a special election was held in Atlanta,
Ga., on March 15, 1977, to fill the seat vacated by U.N.
Ambassador, Andy Young. There were 12 candidates in that election.
Wyche Fowler ran first with 29,898 votes; John Lewis ran second
with 21,531. The contestant in today's case, Wyman Lowe, came in
eighth, with 276 votes.
As Mr. Fowler did not receive a majority, a runoff election was
held on April 5, 1977. In that election, Mr. Fowler defeated Mr.
Lewis by 54,378 to 32,732 votes.
On April 15, 1977, Mr. Lowe filed this election contest with
the House of Representatives. Since that time, Mr. Lowe has filed
numerous documents and pleadings with this committee. Generally,
Mr. Lowe alleges three grounds in support of his election contest:
First. That since Mr. Fowler, who was president of the Atlanta
City Council did not resign that seat, he was ineligible to run for
Congress;
Second. Mr. Lowe asserts that since he received 36,000 votes in
the 1970 Democratic primary against Andy Young and only 276 votes
in his 1977 race, there must exist fraud because of the disparity
in vote totals; and
Third. That the vote tallys did not properly total and that
there were shortages in unused, extra ballots.
The members of the panel have been provided with a staff report
prepared by committee general counsel.
In summary, that report indicates that the office of the
Atlanta city attorney had ruled on February 16, 1976, that members
of the Atlanta City Council did not have to resign to run for other
office.
The staff report also concluded that the precedents of the
House require a higher degree of proof than a showing that a
candidate received substantially fewer votes in a subsequent
election.
Additionally, committee staff went to Atlanta and met with the
city attorney's office and Fulton County election officials. It was
determined that the allegations of the voting irregularities made
by Mr. Lowe were not substantiated. In many instances Mr. Lowe
apparently misread the tally sheets and used the congressional vote
rather than the total vote cast for Congress and the county
commissioner race. The staff was satisfied that the alleged
discrepancies were either explained away by examination or normal
to the election process.
On October 6, 1977, the ad hoc election panel met and
unanimously voted to dismiss the election contest.
Finally, on October 13, the full Committee on House
Administration met and voted, again unanimously, to dismiss this
case.
Mr. Speaker, I might point to my colleagues that this is the
third election contest Mr. Lowe has filed with the House. This
contest has no claim to legitimacy--in either fact or law--and I
strongly urge my colleagues to promptly dismiss this matter.
Mr. THOMPSON. Mr. Speaker, I yield such time as he may consume
to the distinguished minority member of the panel, the gentleman
from Minnesota (Mr. Frenzel), for debate only.
Mr. [William] FRENZEL [of Minnesota]. Mr. Speaker, I thank the
distinguished gentleman from New Jersey for yielding to me.
I support the statement of the distinguished gentleman from
Pennsylvania, the task force chairman, and hope that the resolution
will be promptly adopted.
Mr. THOMPSON. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 16.8 Moreau v Tonry
The general election for the office of Representative to Congress
from the First District of Louisiana was conducted on November 2,
1976.(41) Richard A. Tonry (the Democratic candidate) was
certified as the winner of that election. Another Democratic candidate,
James A. Moreau, who had lost to Mr. Tonry in the Democratic primary,
petitioned the Committee on House Administration to investigate the
circumstances of the primary election.(42) In addition, Mr.
Moreau pursued his claim in state courts, and the Louisiana Supreme
Court ultimately dismissed the case and refused the invalidate the
election.(43)
---------------------------------------------------------------------------
41. For more details on this case, see Contested Election Cases in the
House of Representatives: 1933 to 2011, CRS Report 98-194 (Dec.
12, 2011).
42. Parliamentarian's Note: As Mr. Moreau was not a candidate in the
general election, he would not have had standing to pursue his
election contest under the FCEA.
43. See Moreau v. Tonry, 339 So. 2d 3, 5 (La. 1976), rev'g 338 So. 2d
791 (La. 1976).
---------------------------------------------------------------------------
On February 11, 1977, several Louisiana election officials pleaded
guilty to casting fraudulent votes for Mr. Tonry. As the Committee on
House Administration continued its investigation, Mr. Tonry decided to
resign his seat, thus mooting the election contest.(44) No
committee report was therefore filed in this case. Mr. Tonry's letter
of resignation was laid before the House on May 4, 1977:(45)
---------------------------------------------------------------------------
44. Parliamentarian's Note: Following his resignation, Mr. Tonry was
charged with taking illegal campaign contributions. He pleaded
guilty and served a six-month prison term.
45. 123 Cong. Rec. 13391, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
RESIGNATION AS MEMBER OF HOUSE OF REPRESENTATIVES
The SPEAKER laid before the House the following communications,
which were read:
Washington, DC., May 4, 1977.
Hon. Thomas P. O'Neill, Jr.,
Speaker of the House, Washington, DC.
Dear Mr. Speaker: Enclosed please find my letter of resignation
addressed this day to the Honorable Edwin W. Edwards, the Governor
of the State of Louisiana.
My short stay in the House has been the most rewarding
experience of my life. I am tremendously impressed by the integrity
and industry of its members. I have made friends whom I will never
forget.
Keep my seat warm and tell my colleagues not to forget me
because I am running again and will win again.
With kindest personal regards, I am.
Sincerely,
Richard A. Tonry.
House of Representatives,
Washington, DC., May 4, 1977.
Hon. Edwin W. Edwards,
Governor, State Capitol,
Baton Rouge, La.
Dear Governor Edwards: This is perhaps the hardest letter I
have ever had to write.
I am sure you are familiar with the continuing controversy that
has surrounded my election to Congress. My own personal
investigation and that of the House Committee has convinced me that
there were fraudulent and illegal votes cast in my favor and in
favor of my opponent. I sincerely believe and have always felt that
if all the fraudulent and illegal votes were subtracted from the
total I would still be declared the winner.
However, what I believe is not important. What must be
protected is our beloved Louisiana and this Nation. That fraudulent
votes were cast at all is deplorable. This democracy must be
protected and the people of the First Congressional District must
rest with the assurance that their Congressman has been elected by
a majority of the people.
I have enjoyed nothing as much as serving my people in
Congress. I know I have been a good Congressman.
But the divisiveness must be cured and the will of the people
in the First Congressional District must be definitively
recognized.
For these reasons, I hereby tender my resignation as the United
States Representative for the First Congressional District.
I respectfully request that you call a new election as soon as
possible so that the people of my district will not be without
representation for any significant length of time.
Sincerely,
Richard A. Tonry.
Sec. 17. Ninety-sixth Congress, 1979-1980
Sec. 17.1 Perkins v Byron
The general election for the office of Representative to Congress
from the Sixth District of Maryland was conducted on November 7,
1978.(1) The general election candidates were Beverly Byron
(the Democratic candidate) and Melvin Perkins (the Republican
candidate). The official returns indicated that Mrs. Byron had received
122,374 votes, while Mr. Perkins had received 14,276 votes. On November
30, 1978, Mrs. Byron was certified as the winner of the election by the
Maryland State Board of Canvassers.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 96-78, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
On November 28, 1978, Mr. Perkins (hereafter the ``contestant'')
filed a notice of contest with the Clerk of the House, which was
forwarded to the Committee on House Administration for its review. The
notice of contest asserted that Mrs. Byron (hereafter the
``contestee'') had been improperly selected by the state Democratic
party to stand in the election in place of her husband, who had died
prior to the general election. The contestant argued that a special
election should have been held to fill the vacancy.
On December 28, 1978, contestee filed both a motion to dismiss
(based on lack of proper service) and a motion for a more definite
statement. A supplemental motion to dismiss was filed by contestee on
February 23, 1979, on the basis that contestant had not properly
claimed a right to the seat, and that contestant had failed to state
grounds sufficient to change the result of the election.
The Committee on House Administration formed an ad hoc panel of
three Members to review the case. On February 28, 1979, the panel met
to hear oral arguments, and, after executive session deliberation,
voted to recommend that the contestee's motion to dismiss be granted.
On March 1, 1979, the full committee voted to recommend dismissal of
the case.
In its committee report, the Committee on House Administration
found that the statutory requirement that contestee be properly served
with the notice of contest had not been met. It further concluded that
contestant had not stated grounds sufficient to change the result of
the election. Contestant ``failed to present any documentary evidence
supporting his allegations,''(2) nor did contestant attempt
to demonstrate how the allegations, if true, would have changed the
outcome of the election. The committee report noted provisions of state
law regarding the death of candidates and the circumstances under which
special elections are to be held, and concluded that there was no
requirement to hold a special election in this case. The committee
therefore recommended that the contestee's motion to dismiss be
granted.
---------------------------------------------------------------------------
2. H. Rept. 96-78, 96th Cong. 1st Sess. p. 3.
---------------------------------------------------------------------------
On March 29, 1979,(3) the committee filed its privileged
report, and the House (by unanimous consent) adopted House Resolution
189 to dismiss the contest:
---------------------------------------------------------------------------
3. 125 Cong. Rec. 6832-33, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING ELECTION CONTEST AGAINST BEVERLY BYRON
Mr. NEDZI, from the Committee on House Administration,
submitted a privileged report (Rept. No. 96-78) on the resolution
(H. Res. 189) dismissing the election contest against Beverly
Byron, which was referred to the House Calendar and ordered to be
printed.
Mr. [Lucien] NEDZI [of Michigan]. Mr. Speaker, I ask unanimous
consent for immediate consideration of the resolution.
The Clerk read the resolution, as follows:
H. Res. 189
Resolved, That the election contest of Melvin Perkins, contestant,
against Beverly B. Byron, contestee, Sixth Congressional District of the
State of Maryland, be dismissed.
The SPEAKER.(4) Is there objection to the request of
the gentleman from Michigan?
---------------------------------------------------------------------------
4. Thomas O'Neill (MA).
---------------------------------------------------------------------------
There was no objection.
The SPEAKER. The gentleman from Michigan (Mr. Nedzi) is
recognized for 1 hour.
Mr. NEDZI. Mr. Speaker, the rules of the House and title 2 of
the United States Code place contested elections under the
jurisdiction of the Committee on House Administration. This year
five contested elections were filed with the committee.
In order to insure the timely and responsive handling of these
election contests, so that all five might go forward
simultaneously, the committee has established five three-member
panels, consisting of two members of the majority and one member of
the minority, with majority and minority legal staff assigned to
support the panels.
Each panel examines the record of the particular case assigned
to it, and then conducts hearings and factfinding as may be
necessary. After considering the information presented by the
parties, and after due deliberation, the election panel then
recommends to the full committee what it considers to be the
appropriate disposition of the contest. The committee then reviews
the recommendation, makes a final determination, and refers its
final action to the House. This procedure has been extremely
successful in insuring that both the contestant and contestee have
a timely and responsive forum for consideration of each contest.
The election contest before the House this afternoon is Perkins
against Byron. It is the first of five which the House will
consider under the elections panel procedure this Congress. Each of
these contested elections is being considered under the provisions
of 2 U.S.C. 381 et seq., which was enacted in 1969. The first
contest decided under the 1960 act was Tunno against Vesey.
[sic](5) There the contestant alleged various
irregularities, and contestee moved to dismiss the contest. The
committee examined the contestant's arguments, and his showing that
the allegations, if true, would change the result of the election.
However, notwithstanding contestant's allegations, he failed to
demonstrate to the satisfaction of the committee that further
proceedings would be fruitful. The committee then recommended, and
the House adopted, a resolution dismissing the case, without a full
presentation of the evidence, because contestant had failed to
demonstrate that his allegations, if true, would have changed the
results of the election. Such a failure is statutory defense to a
contest.
---------------------------------------------------------------------------
5. As in the original. Text should read: Veysey.
---------------------------------------------------------------------------
The legislative branch is a policy-making body with a
constitutional responsibility to determine its own proceedings,
such as elections contests, impeachment matters and other similar
pronouncements. The standards and procedures must, of course, be
fair to all sides. However, the legislative branch is not the
judicial branch, either in its constitutional duties or its
procedures. In that regard, the House has determined by statute
that it need not proceed to full presentation of evidence on the
merits, when it is evident on the face of the allegations and
supporting materials, that an elections contest is frivolous, or
that the results of the election will not be changed. Thus the
burden, on a motion to dismiss, properly rests on the contestant,
who must demonstrate, by more than mere allegation, that there is
some documentable basis for his allegations.
To quote the House report in Tunno against Veysey,
It has been the experience of Congress that exhaustive hearings and
investigations have, in the past, been conducted only to find that if the
contestant has been required at the outset to make proper allegations, with
sufficient supportive evidence that could most readily have been garnered
at the time of the election, such further investigation would have been
unnecessary and unwarranted.
Under the new law, then, the present contestant, and any future
contestant, must have presented, in the first instance, sufficient
allegations and evidence to justify his claim to the seat in order to
overcome the motion to dismiss.
Mr. Speaker, I yield 10 minutes, for the purposes of debate
only, to the gentleman from New York (Mr. Peyser), the
distinguished chairman of the Ad Hoc Elections Panel which reviewed
the contest.
Mr. [Peter] PEYSER [of New York]. Mr. Speaker, I thank the
gentleman from Michigan, the ranking member of the Committee on
House Administration, for his clarification of the act.
This elections contest was filed by Mr. Melvin Perkins against
Mrs. Beverly Byron for the seat in the Sixth Congressional District
of Maryland. In the election held November 7, 1978, Beverly Byron
received 122,374 votes to Mr. Perkins' 14,276 votes, a margin of
108,098 votes. The election results were certified by the Maryland
State Board of Canvassers on November 30, 1978. Beverly Byron was
sworn in and took office on January 15, 1979, after presenting her
credentials to the House.
On November 28, 1978, Melvin Perkins filed a handwritten notice
of contest with the Clerk of the House. The notice of contest was
somewhat ambiguous, and portions were illegible. But the general
allegation was that Mrs. Byron was improperly selected by the
Democratic State Central Committee of Maryland to replace her
husband, the late honorable Goodloe Byron, who was selected by
primary election as the Democratic nominee for reelection, but who
died before the date of the general election. The notice of contest
asserted that a special election should be held to fill the vacancy
during the unexpired term.
On December 28, 1978, Mrs. Byron filed a motion to dismiss the
contest and subsequently filed a supplemental motion to dismiss.
The grounds for the motion were: First, improper service of the
notice of contest; second, failure of the contestant to allege
grounds sufficient to change the result of the election; and third,
failure of the contestant to claim a right to contestee's seat--all
statutory grounds for dismissing an election contest under the
provisions of 2 U.S.C. 383.
On February 28, 1979, the ad hoc elections panel, consisting of
myself as chairman, the honorable Ed Jones, and the honorable
Carroll A. Campbell, Jr., held an open hearing for the purpose of
receiving oral argument on the motion to dismiss. Contestant
Perkins and his counsel were present, and counsel for Mrs. Byron
was present. Each side was provided 20 minutes to argue on the
motion. Upon conclusion of the hearing, the election panel reviewed
the record before it, and considered the oral arguments. After due
deliberation, the panel adopted a motion, by a vote of 3 ayes and 0
nays, to recommend to the full committee that contestee's motion to
dismiss be granted. On March 1, 1979, the full committee reviewed
the panel's recommendation and by a rollcall vote of 23 ayes and 0
nays, adopted a resolution recommending dismissal of the contest to
the House. That recommendation is before you now.
In assessing the record of the contest, the panel noted that
contestant Perkins failed to provide documented proof of service of
the notice of contest on Mrs. Byron in accordance with the
provisions of section 282 of title 2, United States Code, and that
Mr. Perkins failed to state grounds sufficient to change the result
of the election. The panel did not deem it necessary to reach the
question of whether contestant failed to claim a right to Mrs.
Byron's seat.
Although contestant is not required to prove his case on a
motion to dismiss, contestant must initially support his
allegations and conclusions with documentary evidence, or provide
some other showing which would change the result or the election.
Contestant Perkins failed to present any documentary evidence
supporting his allegations, which claimed that the Maryland
Democratic Central Committee failed to provide adequate notice of
the meeting at which the successor to the late Honorable Goodloe
Byron was nominated. Furthermore, Perkins failed to demonstrate
that his allegations, if true, would have changed the results of
the election.
The panel concluded that the case should be dismissed, because
contestant Perkins failed to provide service of the notice of
contest on Mrs. Byron in accordance with the requirements of the
act, and failed to support his allegations with evidence sufficient
to meet contestant's burden in overcoming a motion to dismiss, and
failed to demonstrate that his allegations, if true, would have
changed the election results.
The decision is, therefore, based both on the procedural defect
of lack of proper service, and on the substantive defect of failure
to allege grounds, and to support such grounds with documentary
evidence sufficient to change the election results.
Mr. Speaker, I want the House to know that the ad hoc committee
gave every opportunity to Mr. Perkins to present his case and to
listen to him beyond the time normally allotted, and that the
questioning was very careful and thoughtful. I particularly want to
thank my colleague who served with me on that committee, the
gentleman from South Carolina (Mr. Campbell) who pursued a line of
questioning that was very important in reaching a decision.
Mr. Speaker, I would be glad to yield at this time to the
gentleman from South Carolina.
Mr. [Carroll] CAMPBELL [of South Carolina]. I thank the
gentleman for yielding, and I thank him for his comments. As the
gentleman has stated, the line of questioning was pursued, and
there was no substantiation of the allegations that were made. The
findings were that Mrs. Byron was not properly served. We found
that we did not have to go into the further motion for dismissal by
Mrs. Byron which alleged that a dismissal at that time should be
made because of the failure to claim a right to the seat. That was
not a matter that we had to bring up. It might also be pointed out,
as the gentleman from New York (Mr. Peyser) has so eloquently
stated here, that there were no irregularities in the election vote
whatsoever. Because of the hearings and because of the work of the
chairman of the subcommittee who did such an outstanding job, I
rise to support the resolution, and, as he has pointed out, it was
a unanimous recommendation.
Mr. PEYSER. I thank the gentleman for his comments.
Mr. Speaker, I yield back the remainder of my time.
Mr. NEDZI. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 17.2 Freeman v Mitchell
The general election for the office of Representative to Congress
from the Seventh District of Maryland was conducted on November 7,
1978.(6) The general election candidates were Parren J.
Mitchell (the Democratic candidate) and Debra Freeman (an Independent
candidate). The official canvass indicated that Mr. Mitchell received
51,996 votes, while Mrs. Freeman received 6,626 votes. On November 30,
1978, Mr. Mitchell was certified as the winner by the Maryland State
Administrative Board of Election Laws. His credentials were presented
to the House of Representatives, and on January 15, 1979, he was duly
administered the oath of office without objection or challenge.
---------------------------------------------------------------------------
6. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 96-226, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
On November 17, 1978, Mrs. Freeman filed a petition in state court
seeking authorization to inspect voting machines and an injunction
against certifying the election. This petition was denied and an appeal
was subsequently filed.
On December 29, 1978, Mrs. Freeman (hereafter the ``contestant'')
filed a notice of contest with the Clerk of the House, which was
forwarded to the Committee on House Administration for its
consideration. On January 26, 1979, Mr. Mitchell (hereafter the
``contestee'') filed a motion to dismiss and an answer to the notice of
contest. On January 30, 1979, the Committee on House Administration
established an ad hoc panel of three Members to evaluate the pleadings.
In her notice of contest, contestant alleged that both contestee
and election officials engaged in a variety of illegal acts to win the
election, including tampering with voting machines, intimidating
voters, fraud, extortion, and other ``dirty tricks.''(7)
Contestee's motion to dismiss asserted that the contestant had not
stated ground sufficient to change the result of the election, and
further alleged that the notice of contest had not been filed in a
timely manner under the statute.
---------------------------------------------------------------------------
7. H. Rept. 96-226, 96th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
On February 26, 1979, contestant filed several additional
pleadings: (1) a motion to stay the proceedings pending the outcome of
the state litigation then on appeal; (2) a motion to enlarge the time
for discovery; and (3) notices for depositions and subpoenas duces
tecum for election officials. The ad hoc panel temporarily quashed the
subpoenas pending a determination on the contestee's motion to dismiss.
On March 14, 1979, the panel met to hear oral arguments on the motion
to dismiss.
On April 3, 1979, the panel deliberated and recommended that
contestee's motion to dismiss be granted. The panel concluded that the
contestant had not shown ``by documentary evidence or
otherwise''(8) that the alleged illegal behavior had the
effect of reversing the outcome of the election.
---------------------------------------------------------------------------
8. Id.
---------------------------------------------------------------------------
In its committee report, the Committee on House Administration
agreed with the conclusions of the ad hoc panel. The entirety of the
contestant's evidence consisted of unsupported allegations in the
notice of contest and ``four affidavits from campaign
associates.''(9) These documents were insufficient to carry
the burden under the statute, and therefore the committee recommended
dismissal of the case.
---------------------------------------------------------------------------
9. Id. at p. 5.
---------------------------------------------------------------------------
On June 12, 1979,(10) the committee offered House
Resolution 198 (dismissing the contest) as a privileged matter, and the
House adopted the resolution by voice vote:
---------------------------------------------------------------------------
10. 125 Cong. Rec. 14457-58, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST PARREN J. MITCHELL
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, I call up a
privileged resolution (H. Res. 198) dismissing the election contest
against Parren J. Mitchell, and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 198
Resolved, That the election contest of Debra Hannania Freeman,
contestant, against Parren J. Mitchell, contestee, Seventh Congressional
District of the State of Maryland, be dismissed.
The SPEAKER.(11) The gentleman from New Jersey (Mr.
Thompson) is recognized for 1 hour.
---------------------------------------------------------------------------
11. Thomas O'Neill (MA).
---------------------------------------------------------------------------
Mr. THOMPSON. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, under the Constitution and the Rules of the House,
the Committee on House Administration is charged with the
responsibility for investigating contested elections. In this
Congress five election contests were filed. In each case I, as
chairman of the committee, appointed an ad hoc panel to conduct the
investigation.
In the contest before the House today, Freeman against
Mitchell, the panel was chaired by our colleague, the gentleman
from Connecticut, Mr. William Ratchford. Also serving with Chairman
Ratchford were the committee members, the gentleman from North
Carolina, Mr. Charles Rose, and the gentleman from Georgia, Mr.
Newt Gingrich.
Mr. Speaker, I now yield such time as he may consume to the
gentleman from Connecticut (Mr. Ratchford).
Mr. [William] RATCHFORD [of Connecticut]. Mr. Speaker, I thank
the gentleman from New Jersey, the chairman of the Committee on
House Administration.
This election contest was filed by Mrs. Debra Hannania-Freeman
against Parren J. Mitchell for the seat in the Seventh
Congressional District of Maryland. In the election held on
November 7, 1978, Parren J. Mitchell received 51,996 votes to Mrs.
Freeman's 6,626 votes, a margin of 45,370 votes. The election
results were certified by the Maryland State Board of Election Laws
on November 30, 1978. Parren J. Mitchell was sworn in and took
office on January 15, 1979, after presenting his credentials to the
House.
On December 29, 1978, Mrs. Freeman filed a notice of intention
to contest against Mr. Mitchell with the Clerk of the House. The
notice of contest alleged inadequate and insufficient police
protection of voting machines, conspiracy between Mr. Mitchell and
election officials, malfunction of voting machines due to
tampering, improper and illegal certification of Mr. Mitchell and
various acts of fraud, violence, intimidation, assault, theft,
extortion, and ``dirty tricks.''
On January 26, 1979, Mr. Mitchell filed a motion to dismiss and
answer to the notice of intention to contest. The grounds for the
motion and answer were: First, The notice of intention to contest
was not timely filed within the required statutory period: second,
The notice of intention to contest failed to state grounds
sufficient to change the results of the election; and third, The
contestee was without sufficient knowledge or information to
respond to the remaining allegations.
Counsel for the contestant made his appearance on February 26,
1979, and subsequently filed the following papers with the
committee:
First. Motion for stay of proceeding pending resolution of
appeal to the Court of Special Appeals of Maryland;
Second. Motion to enlarge time for discovery by 30 days;
Third. Two notices of depositions, and
Fourth. A motion to strike and answer to motion to dismiss.
On March 5, 1979, the attorney general of Maryland filed a
motion to quash subpenas, and I issued an order on March 6, 1979,
which temporarily quashed subpenas without prejudice to the
contestant.
The ad hoc election panel consisting of the Honorable Charles
Rose, the Honorable Newt Gingrich and me as chairman held an open
hearing on March 14, 1979, for the purpose of receiving oral
argument on the motion to dismiss. Contestant Freeman and her
counsel were present, counsel for the contestee was present, and
the assistant attorney general for the State of Maryland was
present. All sides were provided 20 minutes each to argue on the
motion.
All parties were heard and upon conclusion of the hearing, the
election panel took the case under advisement.
On April 3, 1979, the panel, on my motion, voted unanimously to
go into executive session to discuss the oral argument, pleadings
and motions on the case. After due deliberation the panel adopted a
motion, by a vote of 3 ayes and 0 nays, to recommend to the full
committee that the contestee's motion to dismiss be granted. On
April 4, 1978, the full committee reviewed the panel's
recommendation and by voice vote unanimously adopted a resolution
recommending dismissal of the contest to the House. That
recommendation is now before the House.
In assessing the record, the panel noted that contestant
Freeman failed to provide sufficient record to support the
allegations contained in her notice of contest in accordance with
the provisions of 2 U.S.C. 383, and that Mrs. Freeman failed to
state grounds sufficient to change the result of the election. The
panel did not deem it necessary to rule on the remaining motions.
Although contestant is not required to prove her case on a
motion to dismiss, contestant must initially support her
allegations and conclusions with documentary evidence, or provide
some other showing which would change the result of the election.
Contestant Freeman failed to present documentary evidence
sufficient to support her allegations of inadequate and
insufficient police protection of voting machines, conspiracy,
malfunction of voting machines, improper and illegal certification,
fraud, intimidation, extortion or ``dirty tricks.'' Furthermore,
contestant failed to demonstrate that her allegations, if true,
would have changed the results of the election.
The panel concluded that the case should be dismissed because
contestant Freeman failed to support her allegations with evidence
sufficient to meet the contestant's burden in overcoming a motion
to dismiss.
The decision is therefore based on the substantive defect of
failure to allege grounds, and to support such grounds with
documentary evidence, sufficient to change the election results.
Mr. Speaker, at this point I yield to the gentleman from
Georgia (Mr. Gingrich).
Mr. [Newt] GINGRICH [of Georgia]. I thank the gentleman for
yielding.
Mr. Speaker, I just want to commend the gentleman from
Connecticut (Mr. Ratchford). The hearings made it very clear that
there was no evidence that was substantial enough to warrant any
question about who won the election. I think it was very clear
there were a number of allegations with no proof. I would hope that
the House would vote to dismiss the charges and to vote for passage
of House Resolution 198.
Mr. RATCHFORD. Mr. Speaker, we have no further requests for
time, and I move the previous question on the resolution.
The previous question was ordered.
The SPEAKER. The question is on the resolution.
The question was taken; and the Speaker announced that the ayes
appeared to have it.
Mr. [John] ERLENBORN [of Illinois]. 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. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas
378, nays 0, not voting 56, as follows:
[Roll No. 208] . . .
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Sec. 17.3 Rayner v Stewart
The general election for the office of Representative to Congress
from the First District of Illinois was conducted on November 7,
1978.(12) The general election candidates were A. A. Sammy
Rayner (the Republican candidate) and Bennett M. Stewart, Jr. (the
Democratic candidate). The official canvass indicated that Mr. Stewart
received 47,581 votes, while Mr. Rayner received 33,540 votes. The
Board of Canvassers declared the result on November 19, 1978, and
certifying credentials were signed by the Secretary of State and
Governor of Illinois on November 30, 1978. Mr. Stewart's credentials
were presented to the House of Representatives, and on January 15,
1979, to he was duly administered the oath of office without objection
or challenge.
---------------------------------------------------------------------------
12. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 96-316, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Rayner filed suit in a U.S. district court, but the case was
dismissed due to lack of jurisdiction. In the court's memorandum
opinion of March 14, 1979, the judge held that the House of
Representatives had exclusive jurisdiction over the final determination
as to the outcome of an election to one of its seats.
On December 27, 1978, Mr. Rayner (hereafter the ``contestant'')
filed a notice of contest with the Clerk of the House, which was
referred to the Committee on House Administration for its
consideration. On January 22, 1979, Mr. Stewart (hereafter the
``contestee'') file a motion to dismiss the contest. In contestant's
notice of contest, he alleged ``massive errors, irregularities, fraud
and mistake in the conduct of said election.''(13)
Contestant further alleged illegal assistance to voters in casting
ballots, irregularities in voting displays, removal of poll-watchers,
and other errors. Contestee's motion to dismiss asserted that the
notice of contest had numerous procedural deficiencies (lack of proper
service, failure to name the proper party, untimely filing, etc.) and
further, that contestant had failed to state grounds sufficient to
change the result of the election.
---------------------------------------------------------------------------
13. H. Rept. 96-316, 96th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
The Committee on House Administration formed an ad hoc panel of
three Members to review the pleadings. The panel met on March 6, 1979,
to hear oral arguments. On April 25, 1979, it met again and recommended
that contestee's motion to dismiss be granted.
In its committee report, the Committee on House Administration
agreed with the conclusions of the ad hoc panel. To prevail against a
motion to dismiss, the contestant ``must initially support his
allegations and conclusions with documentary or other
evidence.''(14) The committee found that the contestant had
not produced such evidence, and the documents that were provided were
insufficient to support the allegations. The committee also took issue
with technical deficiencies in contestant's pleadings, and thus
rendered its decision ``based both on procedural and substantive
grounds.''(15)
---------------------------------------------------------------------------
14. Id. p. 3.
15. Id. p. 5.
---------------------------------------------------------------------------
On June 28, 1979,(16) the committee filed its privileged
report with the House. By unanimous consent, the House took up House
Resolution 344 (dismissing the contest), and adopted the resolution by
a division vote of 63 to 0:
---------------------------------------------------------------------------
16. 125 Cong. Rec. 17225-26, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST BENNETT M. STEWART
Mr. NEDZI, from the Committee on House Administration,
submitted a privileged report to accompany a resolution (H. Res.
344) on the election contest of A.A. Sammy Rayner, Jr., contestant,
against Bennett M. Stewart, contestee, First Congressional District
of the State of Illinois, which was referred to the House Calendar
and ordered to be printed.
Mr. [Lucien] NEDZI [of Michigan]. Mr. Speaker, I ask unanimous
consent for immediate consideration of the resolution.
The Clerk read the resolution, as follows:
H. Res. 344
Resolved, That the election contest of A.A. Sammy Rayner, Jr.,
contestant, against Bennett M. Stewart, contestee, First Congressional
District of the State of Illinois, be dismissed.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Michigan?
There was no objection.
The SPEAKER pro tempore. The gentleman from Michigan (Mr.
Nedzi) is recognized for 1 hour.
Mr. NEDZI. Mr. Speaker, the Rules of the House and title 2 of
the United States Code, place uncontested elections under the
jurisdiction of the Committee on House Administration. This year
five contested elections were filed with the committee.
The election contest before the House this afternoon is Rayner
against Stewart. It is the fourth of the five contests which the
House will consider under the elections panel procedure.
This election contest was filed by Mr. A. A. Sammy Rayner, Jr.,
against Mr. Bennett M. Stewart for the seat in the First
Congressional District of Illinois. In the election held on
November 7, 1978, Bennett Stewart received 47,581 votes to Mr.
Rayner's 33,540, a margin of 14,041 votes. The election results
were certified by the Board of Canvassers on November 19, 1978. The
results were filed with the Cook County Circuit Court on November
20, 1978. Certifying credentials were signed by the Secretary of
State and the Governor, and were issued to Mr. Stewart on November
30, 1978. Bennett Stewart was sworn in and took the oath of office
on January 15, 1979, after presenting his credentials to the House.
On December 27, 1978, Mr. Rayner filed with the Clerk of the
House a ``petition under the Federal Contested Elections Act''
against the Chicago Board of Election Commissioners and the Clerk
of Cook County. Nowhere in his pleadings did Mr. Rayner mention Mr.
Stewart as a party to the proceeding. The petition went on to
allege ``massive errors, irregularities, fraud, and mistakes in the
conduct of said election which impaired the plaintiff's right to
vote and the right to have his vote counted.'' The petition further
alleged illegal vote totals on the backs of voting machines,
illegal assistance to voters in casting their votes, prohibition of
Rayner vote watchers from polling places, numerous counting errors
and electioneering at or near the polls.
On January 22, 1979, Mr. Stewart filed a motion to dismiss the
contest. The grounds for the motion were as follows:
First. The notice of contest failed to state grounds sufficient
to change the result of the election.
Second. The notice of contest was not filed within the
statutory 30-day period in accordance with the provisions of 2
United States Code 282(a);
Third. The notice of contest failed to name a proper party--
Bennett M. Stewart, in accordance with the provisions of 2 United
States Code 381(d).
Fourth. The notice of contest failed to State that Mr. Stewart
had 30 days in which to answer pleadings, in accordance with the
provisions of 2 United States Code 382(b); and
Fifth. The notice of contest was insufficient for failure of
Mr. Rayner to show proof of service upon Mr. Stewart, as required
by 2 United States Code 382(c).
On March 6, 1979, the Ad Hoc Elections Panel, consisting of
myself as chairman, the Honorable Robert H. Mollohan, and the
Honorable Jerry Lewis, held an open hearing for the purpose of
receiving oral argument on the motion to dismiss. Contestant Rayner
and his counsel were present, and counsel for contestee Stewart was
present. Each side was provided 20 minutes to argue the motion.
Upon conclusion of the arguments, the panel took the matter under
advisement.
After a thorough review of the record, and after due
deliberation, on April 25, 1979, the Panel adopted a motion by a
vote of three ``ayes'' and no ``nays,'' to recommend to the full
committee that the contestee's motion to dismiss be granted.
On April 25, 1979, by a unanimous voice vote, the Committee on
House Administration adopted the panel's resolution to recommend
dismissal of the contest to the House. That recommendation is
before you now.
In assessing the record of the contest, the panel noted that
contestant Rayner failed to overcome any of the contestee's
procedural defenses in his motion to dismiss. However, the
principal deficiency in contestant's pleading and upon which the
committee primarily relied, was contestant's failure to state
grounds sufficient to change the result of the election.
Although contestant is not required to prove his case on a
motion to dismiss, contestant must initially support his
allegations and conclusions with documentary or other evidence, and
must provide some showing that his allegations, if true, would
change the result of the election.
Contestant Rayner failed to present sufficient documentary or
other evidence supporting his allegations of massive errors,
irregularities, fraud, and mistake. For example, contestant alleged
the ``possibility of 10,449 (vote) forgeries'', but did not
demonstrate by affidavit or other showing, a single convincing
instance of forgery. Contestant alleged an ``8,000 vote
discrepancy'', but failed to explain how that discrepancy, if true,
would change the results of the election. Contestant filed 12
affidavits which alleged questionable circumstances at polling
places. But even if such circumstances were assumed to be true,
contestant was unable to demonstrate that the circumstances would
change the result of the election.
The panel concluded that the case should be dismissed because
of the contestant's numerous technical errors, and because
contestant failed to support his allegations with documentary or
other evidence, sufficient to meet the contestant's burden in
overcoming a motion to dismiss. Contestant further failed to
demonstrate that his allegations, if true, would have changed the
election result.
The decision is therefore based both on procedural
deficiencies, and on the substantive defect of failure to allege
grounds sufficient to change the election results and to support
such grounds with documentary or other evidence.
Mr. Speaker, I yield to our colleague and member of the panel,
the gentleman from California (Mr. Lewis).
Mr. [Jerry] LEWIS [of California]. Mr. Speaker, I thank the
gentleman from Michigan for yielding. It was my responsibility to
serve with my chairman of the subcommittee and to share his
responsibility. It was very apparent that the chairman was more
than willing to take testimony, respond to questions, and ask
questions. There was a 15,000 vote spread in this election. There
was no evidence presented whatsoever for a change of the vote.
Mr. Speaker, I personally would recommend an ``aye'' vote on
this motion, and support the position of the committee.
Mr. NEDZI. I thank the gentleman.
Mr. Speaker, I move the previous question on the resolution.
The previous question was ordered.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and on a division (demanded by Mr.
Symms) there were ayes 63; noes 0.
So the resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 17.4 Wilson v Leach
The general election for the office of Representative to Congress
from the Fourth District of Louisiana was conducted on November 7,
1978.(17) The general election candidates were Jimmy Wilson
(the Republican candidate) and Anthony C. Leach, Jr. (the Democratic
candidate). The official canvass indicated that Mr. Leach received
65,583 votes, while Mr. Wilson received 65,317 votes. Mr. Leach's
margin of victory was therefore 266 votes. The Louisiana Secretary of
State and Governor certified Mr. Leach as the winner of the election on
November 21, 1978. Mr. Leach's credentials were presented to the House
of Representatives, and on January 15, 1979, he was duly administered
the oath of office without objection or challenge.
---------------------------------------------------------------------------
17. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 96-784, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
On December 20, 1978, Mr. Wilson (hereafter the ``contestant'')
filed a notice of contest with the Clerk of the House, which was
referred to the Committee on House Administration for its
consideration. On January 11, 1979, the contestant filed an amended
notice of contest. On January 22, 1979, Mr. Leach (hereafter the
``contestee'') filed a motion to dismiss, on the basis that contestant
had failed to state grounds sufficient to change the result of the
election.
Shortly after the election, a Federal investigation began regarding
allegations of vote-buying by the contestee. On July 20, 1979,
contestee was indicted on 11 counts relating to payments to individuals
to secure his election. The committee deferred action on contestee's
motion to dismiss until after court proceedings had concluded. On
November 3, 1979, contestee was acquitted on all 11 counts.
Thereafter, the Committee on House Administration formed an ad hoc
panel of three Members to review the case. On November 28, 1979, the
panel met to hear oral arguments from the parties. The panel also
agreed to extend its investigation to include the Department of
Justice's criminal case against contestee. A member of the panel
reviewed FBI interviews of voters conducted during its investigation.
On December 20, 1979, the panel voted to recommend that the contestee's
motion to dismiss be granted.
In its committee report, the Committee on House Administration
reiterated the high burden that must be overcome if a contestant is to
prevail against a motion to dismiss. The contestant must show with
specific evidence not only that irregularities occurred, but that ``but
for''(18) the irregularities, the result of the election
would have been different.
---------------------------------------------------------------------------
18. H. Rept. 96-784, 96th Cong. 2d Sess. p. 3.
---------------------------------------------------------------------------
The committee acknowledged that evidence of fraud and
irregularities did exist in this case, but further noted that such
irregularities were not connected to the contestee, that contestee had
been acquitted of involvement in those activities by a Federal jury,
and that the contestant had withdrawn claims of alleged involvement by
the contestee. The committee report discussed the FBI's investigation
of vote-buying, and concluded that while some accounts were
substantiated, they were insufficient to cause a reversal of the
election's outcome. The committee thus recommended dismissal of the
case.
Members of the minority party filed separate minority views to
accompany the committee's report. In those views, the minority party
Members recognized the need to quickly dispose of frivolous contests,
but asserted that the committee must fully investigate situations where
there is substantiated evidence of fraud and illegal conduct. The
minority would have denied the motion to dismiss in order to proceed to
the discovery stage under the Federal Contested Elections Act and
gather additional evidence. Only after such a process could a
determination be made as to which individual is entitled to the seat in
question. In short, the minority believed that the contestant had
carried his burden under the statute.
On March 4, 1980,(19) the committee called up House
Resolution 575 (dismissing the contest) as a privileged matter. The
House adopted the resolution by a vote of 241 to 153 (with three
Members voting ``present'' and 36 Members not voting):
---------------------------------------------------------------------------
19. 126 Cong. Rec. 4491-98, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST ANTHONY CLAUDE LEACH,
JR.
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, I call up a
privileged resolution (H. Res. 575) dismissing the election contest
against Anthony Claude Leach, Jr., and ask for its immediate
consideration.
The Clerk read the resolution as follows:
H. Res. 575
Resolved, That the election contest of Jimmy H. Wilson, contestant,
against Anthony Claude Leach, Junior, contestee, Fourth Congressional
District of the State of Louisiana, be dismissed.
The SPEAKER pro tempore.(20) The gentleman from New
Jersey (Mr. Thompson) is recognized for 1 hour.
---------------------------------------------------------------------------
20. Carroll Hubbard, Jr. (KY).
---------------------------------------------------------------------------
Mr. THOMPSON. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, in this case I also appointed an ad hoc panel of
House Administration Committee members to conduct the investigation
of the Wilson against Leach matter. The panel was chaired by our
colleague John Burton. Also serving with Chairman Burton were
Joseph G. Minish and Robert E. Badham.
Mr. Speaker, at this point I yield for purposes of debate only
such time as he may consume to the gentleman from California (Mr.
John L. Burton).
Mr. JOHN L. BURTON [of California]. Mr. Speaker, the election
contest before the House today was filed by Mr. Jimmy H. Wilson
against Mr. Anthony Claude Leach, Jr., for the seat in the Fourth
Congressional District of Louisiana. The official canvass of the
Fourth District of Louisiana showed that in the November 7, 1978,
election Mr. Leach received 65,583 votes and Mr. Wilson received
65,317 votes, a difference of 266 votes. Mr. Leach was certified by
the State of Louisiana as the elected representative from the
Fourth District and he presented his credentials and was sworn in
and took office on January 15, 1979.
On December 20, 1978, Mr. Wilson filed with the House of
Representatives a notice of contest. The matter was referred under
the rules of the House to the Committee on House Administration.
The chairman of the committee appointed an ad hoc panel which I
chaired and on which I was joined by Mr. Joseph Minish and Mr.
Robert Badham of the committee. The panel reviewed the evidence and
held hearings on the matter, reporting its findings to the full
committee. After careful deliberation the committee voted to
recommend to the House that the contest be dismissed.
This is not an instance where the incumbent's involvement in
the alleged vote fraud is at issue. He has been acquitted of all
such charges by a Federal district court jury, and just as
important, the contestant has withdrawn any allegation of his
involvement. As is clear from the case of Evans against Turner,
which is reprinted as appendix A in the committee's report, it
would be inappropriate to ascribe to Mr. Leach any fraud or
irregularities involving third parties.
So it is clear that the question before the House today is not
his guilt or innocence; that has already been decided. The question
today is simply the sufficiency of the contestant's evidence.
It is clear under the governing statute and House precedent
that a contestant has a substantial burden to carry. A contestant
must provide the House with evidence not only that fraud or
irregularity existed but that the fraud or irregularity was
sufficiently widespread to have changed the outcome of the
election.
In the present contest, the contestant, Mr. Wilson,
consequently, was required to allege and support with specific
evidence that at least 266 votes, the margin of the incumbent's
victory, were illegally cast for the incumbent. It is the judgment
of the majority of the committee that the contestant has not met
this burden.
The record fails to substantiate the claim that more than 266
votes were fraudulently cast for the incumbent. In fact the
evidence falls short of this mark. The evidence offered
specifically identified only 32 potentially illegal votes. And even
going outside the record, as the committee has done, to review the
evidence generated by the FBI in its investigation of vote buying
in the election, at most only an additional 34 votes become
suspect.
The contestant relies on a notebook which was offered in
evidence at the trial of Mr. Leach to support his claim that the
outcome of the election was affected. He claimed that the notebook
contained the names of 440 voters who were paid to vote in the
election for the incumbent.
The FBI, however, interviewed 283 of the 440 voters named in
the notebook. The vast majority of those interviewed, 225 of the
283, stated that they were not paid to vote. Only 58 admitted
receiving payment and of those 17 were not instructed on how to
vote and only 14 were instructed to vote for Mr. Leach.
A thorough investigation by the U.S. attorney's office and the
FBI revealed only 14 votes illegally cast for the incumbent. The
contestant has provided the House with no reason to believe a
further investigation by the House would be more successful.
That an election contestant feels that he may, some day and in
some unspecified way, show sufficient fraud is not the point; he
must demonstrate to the House a likelihood that further
investigation will bear fruit. The contestant has not done so.
Given the substantial burden of proof imposed, the contestant has
been unable to demonstrate that the result of the election would be
changed by whatever deplorable illegal activity might have occurred
in the election.
Given the choice between dismissing the contest or embarking on
a fishing expedition, House precedent and reason call for the
dismissal of the contest. In that recommendation, a majority of the
committee concurred.
I would, before yielding for purposes of debate only, like to
say that the committee's report was delayed for some time because,
after allegations were brought and indictments were brought by a
Federal grand jury, our discussions with the Department of Justice
indicated their very strong desire that we not proceed further
until the legal proceedings had come to an end. It is for that
reason we were forced into a delayed time.
I would also like to commend my colleague, the ranking minority
member of the subcommittee task force for the time and effort that
he has put into this matter. I would like to further commend him,
for in this matter he rose above the position of partisanship and
press conferences and addressed himself to the issues as best he
could, and to some questions that were in his mind. Although we
disagree on the final disposition of this matter, I know he does
this from a point of view that he just feels another disposition
other than dismissal would be in order. We feel also, as a matter
of conscience, given the statutes and the precedents of the House,
that the dismissal is the only course of conduct that the committee
or the House could take.
Mr. THOMPSON. Mr. Speaker, I yield for purposes of debate only
10 minutes to the gentleman from California (Mr. Badham).
Mr. [Robert] BADHAM [of California]. I thank the distinguished
chairman. I hope I will have the opportunity to thank him more as
time progresses.
Mr. THOMPSON. I would say to my distinguished colleague, the
gentleman from California, that I hope so, too. Let us see how we
do with the first third.
Mr. BADHAM. That is certainly agreeable to me, I will say to my
distinguished chairman.
Mr. Speaker, we are confronted here today with a most trying
and difficult situation that involves a Member of this House, the
integrity of this House, and the situation that we might be facing
in the future when allegations are brought against Members of this
House, as have been brought recently in the so-called Abscam, and
about how we proceed as a body that is responsible for its own
membership, and the terms of membership as opposed to court
proceedings that are for the purpose of uncovering criminal
matters.
First of all, let me state as a member of the panel in the
matter of the contested election of the gentleman from Louisiana
(Mr. Leach) that I and my colleagues on the committee can find no
fault with the actions of Mr. Leach because Mr. Leach is not on
trial in these proceedings, or in the panel, or in the resolution
before the House, because, as my distinguished friend and
colleague, the gentleman from California, Mr. Burton, has so aptly
pointed out, Mr. Leach has been acquitted by a Federal jury in
Louisiana of 12 men tried and true by a vote of 12 to 0. So, again,
this is not a criminal proceedings in any stretch of the
imagination.
What we have before us, on the contrary, is a contest of
election which, as in previous contests that have been brought
before this body. We understand this procedure prescribes very
difficult hurdles for a contestant to surmount. First of all, the
contestant must demonstrate in a specific allegation that a
sufficient number of votes were illegally cast so as to change the
outcome of the election. In this case when specific allegations
were brought by Mr. Jimmie Wilson of the 4th District in Louisiana,
he surmounted the hurdles and established a prima facie case.
In the particular election contest at hand, we have specific
allegations made by the contestant that over 400 votes were
illegally cast and the election was fraught with fraud. There is
nothing in the brief of the contestee, Mr. Leach, that would tend
to deny this. In sworn testimony by over 20 people who were
convicted in court or entered guilty pleas in Federal court trial
in the State of Louisiana, that these votes were, indeed, illegally
cast. The majority and, indeed, my good friend, the chairman of the
panel, the gentleman from California, Mr. Burton, has made the
statement that it is true that the guilty pleas add up to
approximately 33 illegally cast votes. The prosecution allowed each
of the defendants to plead guilty to only one count of vote-buying.
Sworn testimony in the Federal court in Louisiana indicates
otherwise, but these guilty were allowed to plead on one count
alone and that added up to about 33 votes.
I would now like to read into the Record a portion of the
transcript of sworn testimony by the former mayor of the town in
which all of this went on. The gentleman who was the mayor was a
fellow named Ralph D. McRae, Jr., who served as mayor of the town
of Leesville. Mr. McRae testified to the following:
Mr. Ralph D. McRae, Jr., called as a witness by counsel for the
government for the purpose of giving evidence, being first duly sworn,
testified as follows:
Direct Examination
By Mr. Lydick:
Q. Would you tell us your name, please?
A. My name is Ralph D. McRae, Jr.
Q. And how do you spell the last?
A. M-c capital R-A-E.
Q. Where do you live, Mr. McRae?
A. I live in Leesville.
Q. Were you raised in the Leesville area?
A. Yes, sir.
Q. How long have you lived in Leesville?
A. All my life except for the time spent in the Service and at college.
Q. How old are you?
A. I am thirty-five.
Q. Are you married?
A. Yes, sir.
Q. Do you have any children?
A. Yes, sir.
Q. How many?
A. I have three.
Q. Have you ever served in the Armed Forces?
A. Yes, sir.
Q. In what capacity and during what period of time?
A. I was an infantry officer and a pilot from June, 1966 until August,
1972.
Q. Were you decorated while in the Service?
A. Some, yes, sir.
Q. What decorations did you receive?
A. Distinguished Flying Cross, Bronze Star, Vietnamese Cross of
Gallantry. I have at over twenty-eight Oak Leaf Clusters, Army
Accommodation Medal, numerous campaign and service ribbons.
Now, this is not your ordinary, run-of-the-mill, vote buyer;
and he said in sworn testimony, unrefuted, unchallenged the
following:
Question. Did you talk with other people about the term commercial
voters?
Answer. Yes, sir.
Question. What did that term commercial voters mean between the people
that you talked with?
Answer. Sir, the term refers to a person who has, in the past, or expects
to be paid to vote.
Question. Do you recall where it was?
Answer. Yes, sir. It was in an automobile.
Question. What was said on that occasion?
Answer. On that occasion Mr. Leach told me that he had reconsidered and
he would like for me to help him in the commercial area in District Two. I
told him I thought five thousand dollars would do it.
Question. Did you have any additional discussions at that time concerning
that money?
Answer. Yes, sir. I told him that the way I arrived at the five thousand
dollars was I felt that we could get by with paying five dollars a vote,
and we would need about twenty-five hundred dollars to pay the voters and
twenty-five hundred dollars to pay the drivers.
Question. What occurred during that meeting, Mr. McRae?
Answer. Well, that meeting was kind of a repeat of the first. Mr. Leach
was in a hurry. He was on his way someplace. Shreveport, I guess. And he
asked me how it was going. I told him I thought things were in pretty good
shape. And he gave me a thousand dollars at that time.
Again I want to stress that Mr. Leach is not on trial. What is
on trial are two things here: The integrity of the U.S. House of
Representatives and the integrity of the election held in the
Fourth District of Louisiana on November 7, 1978. While Mr. Leach
is not on trial; the election process of this country is; and it
was found to be faulty; admittedly fraudulent by the majority of
the panel. This puts us in a terrible dilemma. First of all, from a
question of timeliness, the House of Representatives Committee on
House Administration's panel on this contested election had to
delay any sort of investigation until the case was prosecuted fully
in the Federal courts, and only then on resolution of that could we
then legitimately, without obstructing prosecution in the Federal
courts, conduct our own investigation if one was to be held. Now we
are in the 2d session of the 96th Congress. The case almost a year
and a half old, and the question comes out, then, Could we at this
point investigate? That is the question that should be answered by
the House of Representatives because the panel could not and did
not. Neither did the full committee.
But, Mr. Speaker, I say that we have a situation where fraud
was conducted in an election for membership to this body. Such
being the case, it falls squarely upon us to investigate fully and
to determine whether or not a person was beneficiary of a
fraudulent election. The people of that district have the right to
be represented in a true election.
Mr. Speaker, I feel that this resolution to dismiss must be
opposed because not only has the matter not been investigated from
the standpoint of the integrity of the House of Representatives,
but I might add that the criminal prosecution and the criminal
investigation of this same election on November 7, 1978, is not
only still under investigation, but the grand jury, a Federal grand
jury in Louisiana, has within the past week accepted another guilty
plea to another count of vote buying in that election race of 1978,
and two others indicted on February 29 in Shreveport on multiple
counts of vote buying in Sabine Parish. The indictment named names
of people who were given money to vote for candidates in that
congressional race in the primary and in the general election.
Mr. THOMPSON. Mr. Speaker, I yield to the gentleman from
California (Mr. Badham) an additional 20 minutes for purposes of
debate only.
Mr. BADHAM. I thank the distinguished gentleman.
Mr. Speaker, both in the primary and in the general election--
and a Mrs. Lorraina Sepulveda was indicted by that same grand jury
on nine counts of vote buying in that same election. It is to be
noted that both grand juries above mentioned are still in session.
The Shreveport one announced it had heard 52 witnesses and it would
reconvene this matter on March 17, 1978.
Mr. Speaker, I cannot believe, in all conscience, that the
Members of the body in which we are privileged to serve can condone
this and call it just a little bit of fraud, as was the gist of the
Kentucky case.
For purposes of debate I now yield of my time 3 minutes to the
gentleman from Minnesota (Mr. Frenzel).
Mr. [William] FRENZEL [of Minnesota]. Mr. Speaker, I thank the
gentleman for yielding.
Mr. Speaker, I think this is an important vote for the House of
Representatives. I have the feeling some of the Members may want to
look on this as something very routine--a normal dismissal of a
contest for election.
It is a good deal more than that because of the widespread
fraud which did occur in this particular district. I believe that
fraud cast a kind of a shadow over the whole House of
Representatives.
This matter is one that should not be dismissed without a great
deal of thought, a great deal more investigation, and, certainly,
until the completion of the legal actions that are going forward in
the State of Louisiana.
Mr. Speaker, I look upon this resolution as not being
pernicious but certainly being very premature under the
circumstances.
In the Committee on House Administration there is a precedent
that we are very careful about accepting election contests. We try
to make sure that we do not overturn the opponent will of the
people unless we have very strong evidence that the will of the
people was somehow controverted by fraud, miscount or some other
reason. That is a good precedent. We should stick to it.
However, Mr. Speaker, we have a case where there was widespread
fraud. There were 22 guilty pleas. Not one or two or an isolated
one. Not disadvantaged, uneducated people. The exmayor of the town
is involved in this election fraud.
Mr. Speaker, I would like to repeat the words of my
distinguished colleague from California (Mr. Badham). We are not
talking here about our colleague, Buddy Leach. The gentleman's
innocence has been determined by a jury of his peers and of that we
are glad. However, we are talking about the process that brought
Mr. Leach into this body.
Mr. Speaker, if we compare the Daschle case which has just been
dispatched by this House, we will recall that there we let the
State supreme court make the decision. We deferred action until all
the local dust had settled.
In this case, as was pointed out by gentleman from California
(Mr. Badham), grand juries are still in operation. There were two
guilty pleas accepted last week. Obviously grand juries are still
sitting on this matter. The matter has not been completed in
Louisiana and there is no reason for this House to dismiss the
complaint.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. BADHAM. Mr. Speaker, I yield 2 additional minutes to the
gentleman from Minnesota (Mr. Frenzel).
Mr. FRENZEL. Mr. Speaker, the contestee has submitted
documentation showing 440 allegedly bought votes. That contest was
won by our colleague, the gentleman from Louisiana (Mr. Leach) by
266 votes. The 22 people who pleaded guilty are certainly not going
to plead guilty for any more than they have to, so we have a very
small number of votes that have been admittedly bought.
However, Mr. Speaker, I think, when we have 22 guilty pleas
previously, a couple of more now and a grand jury still sitting,
there is a strong presumption that more than 266 votes may have
been involved.
Mr. Speaker, because the election process is so fundamental and
our representativeness is so fundamental, I think it would be a
terrible mistake, and a terrible precedent, for this House to
dismiss this case at this time.
Obviously, the House should retain jurisdiction of this contest
until all of us are absolutely certain that there is no pall, no
shadow hanging over the election of our colleague.
Therefore, Mr. Speaker, I recommend very strongly, as strongly
as I can to this body, do not take this measure lightly. It is not
some kind of indictment of the gentleman from Louisiana (Mr.
Leach). It is simply an earnest desire on our part to find out what
indeed happened in that election district. We have not yet found
out.
Mr. BADHAM. Mr. Speaker, I yield 1 minute to the gentleman from
Alabama (Mr. Dickinson).
Mr. [William] DICKINSON [of Alabama]. Mr. Speaker, at this time
I rise to express my strong opposition to the pending motion in the
House to dismiss the election contest from the Fourth Congressional
District of Louisiana.
I am certain that many of my colleagues have shared my shock
and outrage at the various revelations which have been made through
court testimony and FBI reports as to how improper influences were
exerted to affect the outcome of this race for a seat here in the
U.S. House of Representatives. One could easily come to the
conclusion that this was one of the most sordid election contests
in modern times--and, yet, the majority on the Committee on House
Administration would have us believe that there was not enough
wrongdoing to question the 266-vote margin in this election.
On the basis of information obtained to date, it would, of
course, be impossible to say how many fraudulent votes were cast in
favor of the alleged winner in this race. We do know that 24
individuals have been convicted of vote-buying activities and a
notebook was offered in evidence at one of the trials in this case
containing the names of 440 voters who were purportedly paid to
vote for the contestee in the general election. Various
investigations and court proceedings are still underway in this
matter.
Under these circumstances, I must disagree with the conclusion
of the majority of the Committee on House Administration that the
``contestee Leach received the majority of the votes cast and was
duly elected by the voters of the Fourth Congressional District.''
I do not think that the House should give its stamp of approval to
the outcome of a race which is so shrouded in uncertainty and
chicanery.
Therefore, I urge the House to reject this motion dismissing
the election contest against Mr. Leach and I further urge that the
Committee on House Administration then examine the case on its
merits by conducting a full inquiry into all available evidence--
something which the committee has not done to date.
Mr. BADHAM. Mr. Speaker, I now yield 3 minutes to the gentleman
from South Carolina (Mr. Campbell).
Mr. [Carroll] CAMPBELL [of South Carolina]. Mr. Speaker, the
House is today taking up House Resolution 575, dismissing without
full investigation the election contest against our colleague from
Louisiana. As a small step toward restoring public confidence in
this institution, this resolution should be defeated.
The House Administration Committee majority sees its
responsibility in election disputes as one of separating challenges
which ``merit a full investigation from those where further
investigation appears to be unwarranted,'' and I concur.
In this case, the record is clear that further investigation is
in fact warranted. The committee report states that:
It is apparent that fraud and irregularities were involved in the
election in question.
And bases its recommendation for dismissal on the grounds that
there is no hard evidence that the contestee himself was directly
involved with the vote buying that evidently went on. Nothing in
the statute, however, suggests that a fraudulent election is any
less so whether or not the beneficiary of that fraud actively
participates.
The majority contends that since there are only 58 proven cases
of vote buying and the margin of the contestee's victory was 266
votes, there is no reason for further investigation. Again,
however, the record suggests strongly that the votes still in
question may well have changed the outcome of the election.
Mr. Speaker, I make no accusation against any Member of this
House, but I believe we owe it to the American people--and to
ourselves--to avoid even the appearance of coverup where the
integrity of this body is at stake.
Mr. BADHAM. Mr. Speaker, I would just like to say that the
remarks made by the Members who have served on the Committee on
House Administration with me are remarks that are proper. I would
again recite the facts that the House of Representatives has never
taken an investigative posture or role in this case; that
indictments are still coming down from the Federal grand juries at
work in the State of Louisiana; that the FBI did only a very
cursory examination and did not even inquire of people under oath
as to the reasons for and matters surrounding their activities and
their presence in various notebooks.
I think it would be a shame for the House of Representatives at
this juncture to give up the jurisdiction of this case.
I would like to thank the distinguished chairman of the panel,
the gentleman from California, for his understanding in this
matter, and the committee chairman for allowing the minority to
have this time, because I think it is serious and I think the
integrity of this House is further cast in a light that is not
altogether good for this House with the people of the United
States, whom we represent.
Mr. [John] ROUSSELOT [of California]. Mr. Speaker, will the
gentleman yield?
Mr. BADHAM. I yield to my colleague from California.
Mr. ROUSSELOT. Mr. Speaker, could the gentleman tell us, did
the committee have any kind of hearing of fact on this?
Mr. BADHAM. I can respond to the gentleman by saying, yes, we
did have a hearing in that the representatives of the contestant
and the representatives of the contestee were both allowed time
before the committee to make statements and plead their case, as it
were, but as far as investigation or hearings into the actual fact,
I will have to say ``no.''
Mr. ROUSSELOT. So, as the gentleman has already stated then,
there really was not an adequate investigation on our part?
Mr. BADHAM. That is correct.
Mr. ROUSSELOT. Well, it is certainly unfortunate because we
have enough problems as it is with credibility these days, and that
is certainly too bad. I am sorry to hear that.
Mr. BADHAM. I thank the gentleman.
May I inquire of the Speaker as to how much time I have
remaining?
The SPEAKER pro tempore. The gentleman has 8 minutes remaining.
Mr. [Elliott] LEVITAS [of Georgia]. Mr. Speaker, will the
gentleman yield for a question?
Mr. BADHAM. I will be happy to yield to the gentleman from
Georgia.
Mr. LEVITAS. Mr. Speaker, along with other Members of the House
I have been sitting through this debate, trying to read the
committee report and form a judgment. There were two points that I
am still not clear about, and certainly I want to make a judgment
based on the facts and not some partisan consideration. I am sure
the gentleman from California feels likewise.
In the opening statement of the gentleman from California he
read or referred to testimony from a Mayor McRae of Leesville, I
believe it is, Louisiana. Does the gentleman from California know
whether Mayor McRae's testimony was given at the trial of
Congressman Leach, which resulted in his acquittal?
Mr. BADHAM. Yes. The record will show that the testimony that I
referred to was given by former Mayor McRae of Leesville in the
trial of Congressman Leach.
Mr. LEVITAS. The reason I asked the question is, if that
testimony were to be believed by myself or by a jury, then it was
pretty clear that Congressman Leach was guilty of the crime
alleged; and since the jury acquitted him, it must have been based
on some judgment by that jury that Mr. McRae's testimony was not
credible.
Mr. BADHAM. I find the gentleman's analysis striking. I find
the gentleman's analysis extremely logical, and I have a hard time
believing the whole thing, too.
Mr. LEVITAS. May I ask another question?
Mr. BADHAM. I would be delighted to yield.
Mr. LEVITAS. The other question is this, and it was a point
which both the gentleman from South Carolina and the gentleman from
California made; that is, there was another reason that perhaps the
committee should retain jurisdiction. That relates to the fact that
there are ongoing investigations by other grand juries involving
this same matter.
I wonder if the gentleman from California (Mr. Badham) or the
gentleman from California (Mr. John L. Burton) would care to give
some guidance to those of us who are not on the committee as to the
significance of the ongoing grand jury investigations?
Mr. BADHAM. Well, I think it is somewhat clear that the Federal
Justice Department is not satisfied that all the wrongdoing
pertinent to that particular election has been uncovered and
brought to the Federal court.
I would be happy to yield to the gentleman from South Carolina
for further response.
Mr. CAMPBELL. Mr. Speaker, the point being that in the
committee report we state that there was--paraphrasing--there were
not enough votes that were proved to have been bought to overturn
the result of the election. Now, in the process of pleading, plea
bargaining, many of the people involved plead to one instance of
vote buying when in fact there had been a number of instances under
question. The fact that now there are other instances coming to
light strengthens the argument that there were in fact enough votes
in question, and that in fact if the investigation were to continue
and we were to consider all of the numbers that were in question as
fraudulent votes, that it would probably be enough to change the
result of an election. Not knowing that fact at this time, we are
making the argument that this committee should retain jurisdiction
until such time as it is closed out, and that we are satisfied
completely that there are enough votes.
I am not condoning a little sin in the process, but that is the
way the committee has operated on this, and we have tried to look
at all elections along those lines.
Mr. JOHN L. BURTON. Mr. Speaker, will the gentleman yield?
Mr. BADHAM. I yield to the gentleman from California.
Mr. JOHN L. BURTON. Mr. Speaker, I thank the gentleman for
yielding. I have got my own time. I was just standing.
Mr. BADHAM. Mr. Speaker, I reserve the balance of my time.
Mr. THOMPSON. Mr. Speaker, how much time does my colleague, Mr.
Badham, have remaining?
The SPEAKER pro tempore. The gentleman from California (Mr.
Badham) has 2 minutes remaining.
Mr. THOMPSON. Could it be agreed that the gentleman reserve the
balance of his time, but that the last 2 minutes be given to the
chairman of the panel, the gentleman from California (Mr. John L.
Burton)?
Mr. BADHAM. I have no objection to that.
Mr. THOMPSON. We want to be fair in this debate.
Mr. BADHAM. If the gentleman will yield, I have always agreed
that the gentleman, the distinguished chairman, is eminently fair.
Mr. THOMPSON. I thank the gentleman.
Mr. BADHAM. And the distinguished gentleman, the chairman of
the panel, also.
The SPEAKER pro tempore. The Chair recognizes the gentleman
from California (Mr. John L. Burton).
Mr. JOHN L. BURTON. Mr. Speaker, I would ask the distinguished
chairman of the full committee if I may be yielded such time as I
may consume.
Mr. THOMPSON. The chairman yields such time as he may consume
to the gentleman from California, with the request that the
chairman be informed as to when we approach the last 3 minutes.
Mr. JOHN L. BURTON. Mr. Speaker, the precedents of the House
must be followed. We have a duty to ourselves. I think we also have
a duty to the contestants, we have a duty to the voters of that
congressional district, and certainly, in the words of our great
friend and colleague, the chairman of the Republican Policy
Committee, Representative Shuster of Pennsylvania, who said:
The position is that the people of the Fourth District of Louisiana have
a right to a final determination of this question, or this matter.
Mr. Speaker, I submit that is what we are doing.
Unsupported allegations of fraud or irregularity are
insufficient to overturn an election. This is in the matter of Mr.
Pierce, who was a contestant, versus Mr. Pursell, a member of the
minority party, an incumbent. I was on that panel. I chaired that
panel, and we held in favor of a member of the opposition that
unsupported allegations of fraud or irregularity were insufficient,
that there must be specificity, and that we cannot just go on a
fishing expedition.
I think my good friend, the gentleman from California (Mr.
Badham), will admit that he is not sure what we would do if we did
not dismiss today, but we probably should go somewhere and look at
something. Notwithstanding the fact the FBI investigation was
alleged to be cursory, however, I submit it is a crime to lie to a
law enforcement official in his official capacity, whether one is
under oath or not.
We were asked to take the testimony of an admitted felon,
former Mayor McRae, but the jury listened to it and did not agree
to it at the time they acquitted Mr. Leach of any wrongdoing.
Allegations of fraud or irregularity absent a showing of the
contestee's involvement must be supported by evidence sufficiently
specific--and I underline that--to support a finding that final and
further investigation will likely bear fruit.
Nobody is saying this is likely to bear fruit. They are saying
we should go on a fishing expedition in order to find out whether
it bears fruit.
Mr. [Daniel] LUNGREN [of California]. Mr. Speaker, will the
gentleman yield?
Mr. JOHN L. BURTON. Mr. Speaker, if I could finish this first,
I will be happy to yield. Let me finish this reference to Evans
against Turner, and then I will be happy to yield to my friend, the
gentleman from California.
The case of Evans against Turner in the 56th Congress was very
persuasive at least on this Member as we were trying to determine
what the facts are and if there were any irregularity in election,
and yet the person thought to be penalized, if you will, was not a
participant in those irregular activities.
In this case, Mr. Speaker, there was a circulation of a general
circular proposing bribery, of which the contestee was not
cognizant, and it did not vitiate the election although it was
accompanied by acts of bribery.
On February 5, 1900, Mr. Romulus R. Linney, of North Carolina,
from the Committee on Elections No. 1, submitted a report in the
Kentucky case of Evans against Turner. The grounds of the contest
alleged by the contestant were fraud and bribery, the
specifications of which were denied by the sitting Member.
Again, Mr. Speaker, it seems to be right on all fours with this
matter.
The opinion states that the sitting Member had been returned by
a plurality of 568 votes, a close election. The committee decided
the contestant had not successfully attacked that vote, and enough
votes were not vitiated.
Again, Mr. Speaker, that is the finding the majority panel
made.
The evidence offered by the contestant tends to prove the allegations of
fraud and bribery, and much of it discloses the resort to methods which
were disreputable--
As was the case here with whatever actions other people were
taking.
To continue, Mr. Speaker:
it is in evidence that on the morning of the election a circular was issued
and generally distributed in the city of Louisville among the political
workers of the contestant, printed on the paper of the Congressional
Campaign Committee, on that date, and containing a proposition to place
$100 in each precinct, and requesting Captains of each ward, if they did
not get the money by 6:30 on the morning of the election, to come to
headquarters. The circular was issued by enemies of the contestant. This is
a novel method in the history of political struggles in the United States,
and in the opinion of the committee demands the unqualified condemnation of
the committee.
And, Mr. Speaker, I would say the activities that were engaged
in by persons were admitted felons, including one whose testimony
was read to the House or to those who are persons unknown at this
time, are equally reprehensible to this Member of Congress and, I
am sure, to the entire House.
Returning to the finding, Mr. Speaker:
This evidence tends strongly to establish the contention of the
contestant but does not show the contestee was a party to the fraud.
There is no evidence tending to show that the contestee had anything to
do with the fake circular, and there is much evidence offered by the
contestee showing the propositions of bribery came from persons who were
organized for the purpose of obtaining money from someone--anyone from whom
they could obtain it. Upon a careful consideration, the committee was
unable to determine the exact number of votes tainted and vitiated by fraud
and bribery.
Then, Mr. Speaker, without debate or division, I might add, the
House agreed to the resolutions confirming title on the sitting
Member.
Mr. Speaker, I would also like to point out that the
allegations concerned a certain area in Vernon Parish, ward 1,
precinct 11, called the ``Crossing.'' Historically, in 1971
Representative Leach got 71.6 percent of the vote against two
candidates. In 1975 that total was raised when he was a State
senator by 15 percentage points, and he received 86.7 percent of
the vote. In this election it was increased by less than 7 percent,
by 6.3 percent or half of the increase over the prior 4 years, and
he received 93 percent of the vote.
I mention this just to indicate that the historical support
here was predominantly, if not totally, black. It was a black
constituency that the incumbent had, and it is highly unlikely that
he would have to buy allegiance at this time. It was evident in
fact that he was so popular in the community that a variety of
candidates--I think, including the school board and the county
sheriff or parish sheriff, who parenthetically received 15 percent
of all Federal revenue sharing right off the top in the State of
Louisiana, and in fact including the distinguished senior Senator--
were attaching themselves to his coattails, and he was leading
several slates.
Mr. Speaker, I believe that the people do, as our good friend,
the gentleman from Pennsylvania (Mr. Shuster), said, have a right
to a resolution of this matter. It is our opinion that the only
resolution can be dismissal, and to go on a fishing expedition, I
think, is unfair and does not resolve the matter for them nor for
the incumbent.
Again the testimony of an admitted felon who was relied upon
here was listened to by a jury of 12 men and women, good and true,
and it is a fact in judicial law that they were there watching the
demeanor of and were able to assess the credibility of that person
and chose to believe that person was not in fact telling the truth.
I think we are in a situation where we cannot gainsay that.
Mr. BADHAM. Mr. Speaker, will the gentleman yield?
Mr. JOHN L. BURTON. I am happy to yield to the gentleman from
California.
Mr. BADHAM. Mr. Speaker, I would like to inquire of the Chair
if it is not true that we are to use our remaining 2 minutes after
the time the gentleman speaks?
Mr. JOHN L. BURTON. Mr. Speaker, may I inquire, how much time
do I have remaining.
Mr. [Carroll] HUBBARD [of Kentucky]. The Chair will state that
the gentleman from New Jersey (Mr. Thompson) has 12 minutes
remaining.
Mr. JOHN L. BURTON. Mr. Speaker, I would be happy to yield 1
minute to the gentleman from California (Mr. Lungren).
Mr. LUNGREN. Mr. Speaker, may I begin by saying that the
gentleman from California (Mr. Badham) made a good point.
Mr. JOHN L. BURTON. Mr. Speaker, if I may interrupt, I will ask
the Chair to remind me when I have 5 minutes remaining. I yield 1
minute now to the gentleman from California (Mr. Lungren).
Mr. LUNGREN. Mr. Speaker, as the Members know, I am not a
member of this committee, but I have been trying to listen to find
out what the criteria is that was used for this resolution.
I heard the gentleman from California tell us that unless there
is sufficient evidence that shows there is in fact a true contest
of an election, the resolution before us would be appropriate, and
I would like to ask two questions of the gentleman from California.
First, do we have in this House in past experience a situation
which parallels this, that is, one in which 24 people have already
been convicted either by a plea or by a conviction of a court of
vote fraud?
Second, I would like to ask the gentleman, is it not true that
most of us who have been involved with legal proceedings know that
plea bargaining usually amounts to a lessening of the charges that
were originally brought and may in fact not really limit themselves
to all of the charges that were brought?
Mr. JOHN L. BURTON. If the gentleman will yield, I will be
happy to answer the question.
Mr. LUNGREN. I yield to the gentleman.
Mr. JOHN L. BURTON. The 34 was the number that totaled those in
the indictment, not the plea bargaining. So the 34 was what they
were indicted for. They plea-bargained that down to a lesser
number. The number 34 was the number of illegal votes that were
named or alleged in the indictments. So that answers that question.
Mr. LUNGREN. There were 24, I understand, who have been
convicted to this point, although 2 more are in the process.
Mr. JOHN L. BURTON. Thirty-four was the total number of tainted
votes that were alleged in the indictments and, as the gentleman
knows, an indictment is an accusation and not a fact.
Mr. LUNGREN. My question then is this: Is the gentleman
suggesting that the 24 who have been convicted is the total sum and
substance of all of the possible fraud? And I mean by ``possible,''
for which there is some credible evidence that existed in that
election. Is that what we are to believe and, therefore, are
consistent in saying that in no way could there have been 266
falsehoods?
Mr. JOHN L. BURTON. I think we would be consistent in saying
that in no way do we know in any election in the Nation there may
or may not have been a fraudulent vote cast.
I would just respond by saying--and then I will yield to the
gentleman from Louisiana for debate only--that under the rules of
the House, and as the chairman of the task force involving a member
of your party, a member of this party over here, we ruled at that
time that there would have to be specific allegations that lead you
somewhere and you cannot just say there has been some fraud and to
go about it. Even our good friend, the gentleman from California
(Mr. Badham), was at a specific loss to tell us what to do except
that our committee somehow could have done a better job than the
FBI. I do not believe that we could have. I believe, with the
precedents of the House, with the allegations that were made,
specific allegations that were made by Mr. Wilson, that the numbers
do not add up to a total. That in no way says a little fraud is not
a bad thing. A little fraud, like a little bit of learning, is a
dangerous thing.
Mr. Speaker, I yield to the gentleman from Louisiana (Mr.
Breaux) for purposes of debate only.
Mr. [John] BREAUX [of Louisiana]. I thank the gentleman for
yielding.
Mr. Speaker, I take this time, although I did not plan to, just
to make a couple of observations.
I think, somehow, that the gentleman from Louisiana (Mr. Leach)
really becomes a victim of the political climate, and I think, in
making him the victim of the political climate, we really make the
House a victim of the political climate. I say that because I think
that our minds are really made up on this issue and it is basically
being made up because of which party we happen to belong to. This
election contest is not being decided based on how we should
interpret the law that we passed in this area, but it is being
decided based on how many press releases we can issue on
Congressman Leach's election.
I think we do ourselves a disservice in this area. We passed a
law which should govern what action we should take in this regard,
and it says that the person who is challenging must show grounds
sufficient to change the result of the election, not the fact that
there was fraud, or that there were votes bought in the election.
That is admitted. A trial has cleared Congressman Leach of any
wrongdoing in that regard completely. In fact, the challenger does
not even contest Leach's involvement any more.
But if you accept as fact all of the votes that the challenger
says were bought were in fact bought, it does not affect the
outcome of the election. And the law that we in this House passed
clearly states that the challenger must show that enough votes were
fraudulently cast to change the outcome of the election. That
clearly has not been done.
We have been looking at this election for over a year; the U.S.
attorney has; the FBI has; and you can book it that the challenger
has. And despite all of that, despite all of those interviews, they
still have not come up with a standard that we ourselves have
placed on the challenger, that he has to show that there were votes
bought and that it would in fact change the result of the election.
So are we interested in doing a service to this House and to
this body and not just to our party? I think we have to look at
those facts, forget the press releases, and do justice to the
gentleman whose career, really, is at stake and indeed the
integrity of this House is at stake.
Mr. THOMPSON. Mr. Speaker, I yield such further time as he may
consume to the gentleman from California (Mr. John L. Burton).
Mr. JOHN L. BURTON. Mr. Speaker, I yield 2 minutes to the
gentlewoman from Louisiana (Mrs. Boggs).
Mrs. [Corinne] BOGGS [of Louisiana]. I thank the gentleman from
California and the gentleman from New Jersey.
Mr. Speaker, I would like to address myself to the climate that
we have indeed created here or have simply reflected here, and
there is another climate that we have to think about aside from the
integrity of this House, and that is the integrity of the people of
Louisiana and the integrity of all of the people who have worked
for so many years in trying to make certain that all of the chores
of democracy have been properly done, that the voters are properly
registered, that the voters know what the issues are, that the
voters know where the polling places are, that they have easy
access to the vote, that the vote will be administered over by
honest and efficient commissioners, that the vote will be properly
counted, honestly counted and promptly promulgated.
There have been groups in Louisiana which have been working in
these regards for over 40 years. We were one of the first States to
having voting machines, we were one of the first States to have
permanent registration since 1941. We worked diligently to enlarge
the franchise, particularly to blacks and other minorities, and
many of the people who have worked in this regard also worked very
diligently in the campaign of the gentleman whose contest is before
us today.
So I do think we have to remember these elements as well.
I have been a member of the Elections Subcommittee of House
Administration, and I have worked with many of the Members who have
spoken previously today. I think I have agreed on that committee
very, very often with the gentleman from Minnesota (Mr. Frenzel). I
have also agreed with the gentleman from California (Mr. John L.
Burton). And I do think that we all know that in other contests
that we have looked at, we agreed that it was not worth the time
and the effort and the moneys that would have to be expended to
attorneys and other investigators to look into cases where not
sufficient amounts of evidence had been shown that the election
could be overturned by the number of votes that were in contest.
I hope that my colleagues will join me in voting to dismiss
this contest.
The SPEAKER pro tempore. The gentleman from New Jersey (Mr.
Thompson) has 4 minutes remaining, and the gentleman from
California (Mr. Badham) has 2 minutes remaining.
Mr. BADHAM. Mr. Speaker, I yield 30 seconds to the gentleman
from South Carolina (Mr. Campbell).
Mr. CAMPBELL. I thank the gentleman for yielding.
Mr. Speaker, one point should be made. There was a statement
made concerning partisanship of this nature, and I think that the
majority side would agree that we have heard many contested
elections this year and that we on the minority side have in every
instance agreed with the majority in all cases in dismissing
challenges by, in all cases, the minority candidates. And, this
happens to be one that we stand on the merits of the case, and I do
not think that it should be inferred that this is strictly
partisanship on the part of the minority. Rather, it is a stand
against fraud in the election process.
Mr. BADHAM. Mr. Speaker, I reserve the balance of my time.
Mr. JOHN L. BURTON. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, I would just like to respond that the members of
the committee have never raised this on a partisan level, and I
commended the gentleman from California (Mr. Badham) for it. The
gentleman from California (Mr. Badham) was out of the country on
official business at the time that your leadership held a press
conference before our first meeting on it, to let us know what they
were going to do. So any remarks certainly would not go to any of
the minority members of either the task force or the committee. So
the gentleman is to be commended for approaching this with an open
mind. It was the Republican leadership which chose to make this a
partisan issue and practically decide what the votes were going to
be before we had our hearing on it. I wanted to make that straight,
to differentiate the gentleman from the position of the leadership.
I think the gentleman did approach it, as we did, with as open a
mind as possible, but it was their leadership press conference that
sought to put this in a somewhat partisan light. I do not think the
members of the committee did, because it was not an easy situation
for them.
Mr. BADHAM. Mr. Speaker, I yield myself 30 seconds.
Mr. Speaker, I would like to just mention a couple of comments
that were made by the Members from Louisiana, that really one of
the basic items here at question is the book of 440 people,
allegedly the commercial vote, were they taken to the polls as just
innocent black folks being driven to the polls, or were they
actually paid? That is where the whole thing turns. We have had no
investigation of that.
Mr. Speaker, I yield the balance of my time to the gentleman
from Pennsylvania (Mr. Shuster).
Mr. [E.G.] SHUSTER [of Pennsylvania]. I thank the gentleman for
yielding.
Mr. Speaker, we are not questioning the integrity of the
gentleman from Louisiana (Mr. Leach). We are not even asking for a
final disposition here today. We are simply saying that this should
not be swept under the rug. We are simply saying that there is
evidence of fraud. After all, several people have already been
convicted. There is an ongoing, continuing FBI investigation. Eight
people are still under investigation. So there is evidence of
fraud; the question of how many votes were bought is still at
issue. We have no issue over whether or not some votes were bought,
that is agreed upon.
The issue is how many votes were bought, and we think that not
only Republicans but Democrats, as well, should join in not
permitting this to be swept under the rug. The issue is not Mr.
Leach's integrity.
The issue is the integrity of the electoral process.
Let us vote down this resolution so that the committee can
proceed with a full hearing into this contested election.
Mr. THOMPSON. I yield 2 minutes to the gentleman from
California (Mr. John L. Burton).
Mr. JOHN L. BURTON. I thank the chairman of the Republican
policy committee of the House for his nonpartisan statement.
I also thank him for the bipartisan statements that were made
before we even had our first hearings. I would refer him to his own
statement:
The position is that the people of the Fourth District have a right to a
final resolution of this matter.
This is what we are trying to do. We differ as to whether or
not a House committee could do a better investigatory job than the
FBI. We do not think we could.
Mr. SHUSTER. Mr. Speaker, will the gentleman yield?
Mr. JOHN L. BURTON. I yield to my friend, the gentleman from
Pennsylvania (Mr. Shuster).
Mr. SHUSTER. I thank the gentleman for yielding.
I would ask the gentleman is it not true that Republicans on
the committee vigorously supported dismissing the election contest
brought by a Republican, Leo Thorsness? So our position is not
simply a partisan decision.
Mr. JOHN L. BURTON. I will not talk about the Republicans on
the committee. I commended them. It was the leadership on the
gentleman's side that chose to put this in partisan perspective
before we had our first committee hearing, assuming we were going
to give them 5 minutes and not let them talk. The gentleman from
California (Mr. Badham) was told--well, he was out of the country
on official business--like his vote had already been counted at a
certain place. I do not think that was proper.
We voted to dismiss counts. In fact, we are following
precedents laid down in the matter of Pierce against Pursell where
I, as a Democrat, chaired the subcommittee and ruled against the
Democrat contestee.
So these matters have been nonpartisan, but it was the
leadership of the other side that sought to put this here.
The people of the State of Louisiana, who have to be as
outraged and shocked as anybody that there could be a tainted
election in that State, need a resolution of this problem. They
have never seen the likes of this in any election prior to this,
and hope they never see any tainted elections again.
I just believe that the motion to dismiss is the right thing
for the integrity of the House and the right thing for the
integrity of Mr. Leach. I think it is very important that this has
been cast by some Members under a partisan pall.
Mr. THOMPSON. Mr. Speaker, I think enough has been said on the
question, and I move the previous question on the resolution.
The previous question was ordered.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker pro tempore announced
that the noes appeared to have it.
Mr. JOHN L. BURTON. 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. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas
241, nays 153, answered ``present'' 3, not voting 36, as follows:
[Roll No. 114] . . .
Mr. BENNETT changed his vote from ``yea'' to ``nay.''
Mr. OBEY changed his vote from ``nay'' to ``yea.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Sec. 17.5 Thorsness v Daschle
The general election for the office of Representative to Congress
from the First District of South Dakota was conducted on November 7,
1978.(21) The general election candidates were Thomas
Daschle (the Democratic candidate) and Leo K. Thorsness (the Republican
candidate). The official results indicated that Mr. Daschle received
64,661 votes, while Mr. Thorsness received 64,647 votes. Mr. Daschle's
margin of victory was therefore 14 votes. After a state recount, Mr.
Daschle's margin of victory grew to 105 votes. The South Dakota
Secretary of State certified Mr. Daschle as the winner of the election
on November 27, 1978. Mr. Daschle's credentials were presented to the
House of Representatives, and on January 15, 1979, he was duly
administered the oath of office without objection or challenge.
---------------------------------------------------------------------------
21. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 96-785, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Under South Dakota state law, candidates may appeal recount
decisions to the state Supreme Court. Mr. Thorsness filed a writ of
certiorari with the court, and on August 27 and August 28, 1979, the
court conducted its own recount and review of disputed ballots. The
court determined that Mr. Daschle had won the election.
On December 26, 1979, Mr. Thorsness (hereafter the ``contestant'')
filed a notice of contest with the Clerk of the House, which was
forwarded to the Committee on House Administration for its review.
Contestant alleged that a fair review of disputed ballots would show
that contestant received a plurality. Contestant further alleged that
Mr. Daschle's representatives conducted illegal and fraudulent training
sessions for the state's recount boards.
On January 25, 1979, Mr. Daschle (hereafter the ``contestee'')
filed an answer and a motion to dismiss, arguing that contestant: (1)
had failed to state grounds sufficient to change the results of the
election; (2) had failed to show any fraud, irregularities, or
misconduct on the part of election officials; (3) did not have standing
to file a contest; and (4) had waived his right to contest the election
by proceeding in state courts.
The Committee on House Administration formed an ad hoc election
panel of three Members to review the case. The panel met on March 1,
1979, to hear oral arguments from the parties. The parties stipulated
that the allegation regarding improper training sessions would be
withdrawn. On December 13, 1979, the panel met again, noted the results
of the South Dakota Supreme Court proceeding (which had concluded that
contestee had won the election) and thereafter voted to recommend that
contestee's motion to dismiss be granted.
In its committee report, the Committee on House Administration
agreed with the ad hoc panel that the motion to dismiss should be
granted. The committee found that the contestant had not supported his
allegations with sufficient documentary evidence to show that the
election result would have been different. The report relied heavily on
the fact that the South Dakota Supreme Court had reviewed disputed
ballots and had declared contestee the winner of the election. In the
words of the ad hoc election panel, it would be ``redundant and
presumptuous for this panel to recount the ballots ourselves and
substitute our judgement for the courts.''(22) The committee
agreed that any committee-conducted recount would not be advisable.
---------------------------------------------------------------------------
22. H. Rept. 96-785, 96th Cong. 2d Sess. p. 3.
---------------------------------------------------------------------------
On March 4, 1980,(23) the committee called up House
Resolution 576 (dismissing the contest) as a privileged matter. The
House adopted the resolution by voice vote:
---------------------------------------------------------------------------
23. 126 Cong. Rec. 4490-91, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST THOMAS DASCHLE
Mr. [Frank] THOMPSON [of New Jersey]. Mr. Speaker, I call up a
privileged resolution (H. Res. 576), dismissing the election
contest against Thomas Daschle, and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 576
Resolved, That the election contest of Leo K. Thorsness, contestant,
against Thomas Daschle, contestee, First Congressional District of the
State of South Dakota, be dismissed.
The SPEAKER pro tempore.(24) The gentleman from New
Jersey (Mr. Thompson) is recognized for 1 hour.
---------------------------------------------------------------------------
24. Carroll Hubbard, Jr. (KY).
---------------------------------------------------------------------------
Mr. THOMPSON. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, under the U.S. Constitution and the rules of the
House, the Committee on House Administration is charged with the
responsibility for investigating contested elections. In this
Congress, five contested elections were filed. In each case I
appointed as chairman an ad hoc panel to conduct the investigation.
In the contest before the House today, Thorsness against
Daschle, the panel was chaired by our distinguished colleague, the
gentleman from California (Mr. Fazio). Also serving with the
gentleman from California (Mr. Fazio) were committee members, the
gentleman from South Carolina (Mr. Davis) and the gentleman from
Minnesota (Mr. Frenzel).
Mr. Speaker, I now yield such time as he may consume to the
gentleman from California, the chairman of the panel (Mr. Fazio).
Mr. [Victor] FAZIO [of California]. Mr. Speaker, I thank the
gentleman from New Jersey, the chairman of the Committee on House
Administration.
This election contest was filed by Mr. Leo K. Thorsness against
Thomas A. Daschle for the seat in the First Congressional District
of South Dakota. In the election held on November 7, 1978, Thomas
Daschle received 64,661 votes to Mr. Thorsness' 64,647 votes, a
margin of 14 votes.
Acting under provisions of the laws of the State of South
Dakota, Mr. Thorsness requested a recount for certain selected
districts, at which time the margin of votes grew larger in Mr.
Daschle's favor. Thereupon, a complete district-wide recount was
made and Mr. Daschle's margin of victory grew to a total of 105
votes.
The election results were subsequently certified on November
27, 1978, by the secretary of state and the Governor, and
credentials were issued to Thomas Daschle. Mr. Daschle was sworn in
and took office on January 15, 1979, after presenting his
credentials to the House.
On December 26, 1978, Mr. Thorsness filed a ``notice of
contest'' against Mr. Daschle with the Clerk of the House. The
notice of contest alleged that a fair and impartial review of more
than 2,000 ballots still in dispute would show that the contestant,
Mr. Thorsness, did in fact receive a plurality.
At the same time, the contestant appealed the determination of
the recount board to the supreme court of South Dakota.
On January 25, 1979, the contestee, Mr. Daschle, filed a motion
to dismiss the contest alleging, among other things, a failure to
make a showing of grounds sufficient to change the results of the
election.
On March 1, 1979, the ad hoc election panel, consisting of
myself as chairman, the Honorable Mendel Davis and the Honorable
Bill Frenzel, held an open hearing for the purpose of receiving
oral arguments on the motion to dismiss. Both contestee and
contestant were represented by counsel. The contest centered on the
issue of whether ``a fair and impartial review'' of the disputed
ballots would result in a plurality for the contestant.
The ad hoc election panel again met, on December 13, 1979, with
all members present, to consider the motion to dismiss. After a
thorough review of the record and after due deliberation and
notification from the South Dakota supreme court that it had
determined Daschle to be the winner, the panel voted 3 to 0 to
recommend to the full committee that the contestee's motion to
dismiss be granted.
On February 12, 1980, a quorum being present, by unanimous
voice vote, the Committee on House Administration adopted the
panel's resolution to recommend dismissal of the contest to the
House.
In assessing the record of the contest the panel noted that
contestant Thorsness' case hinged on the allegation that ``a fair
and impartial review'' of the contested ballots would prove him the
winner. The panel held that in light of the exhaustive de novo
recount by South Dakota's highest court, it would seem both
redundant and presumptuous for the panel to recount the ballots and
substitute its judgment for that of the courts. While we certainly
have that authority, we found no reason to use it.
The contestant was unable to produce any documentary or other
evidence of sufficient weight to demonstrate to the satisfaction of
the committee that the allegations, if true, would have changed the
election result. It was the committee's unanimous opinion that the
case should therefore be dismissed.
Mr. Speaker, I yield to the gentleman from Minnesota (Mr.
Frenzel) for any comments the gentleman wishes to make.
Mr. FRENZEL. Mr. Speaker, I thank the distinguished chairman of
the elections panel for yielding.
Mr. Speaker, I rise in support of the privileged resolution.
The contestant and the contestee have had their day in court. The
supreme court of the State of South Dakota has ruled in favor of
our colleague, the gentleman from South Dakota (Mr. Daschle).
The panel has made a good decision. The committee has made a
good decision. The minority believes that the House should ratify
that decision by passing the privileged resolution today.
Mr. Speaker, I thank the gentleman for yielding.
Mr. THOMPSON. Mr. Speaker. I move the previous question on the
resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 18. Ninety-seventh Congress, 1981-1982
There were no election contests considered by the House during the
97th Congress.
Sec. 19. Ninety-eighth Congress, 1983-1984
Sec. 19.1 Archer v Packard
The general election for the office of Representative to Congress
from the 43rd District of California was conducted on November 2,
1982.(1) The general election candidates were Roy Archer
(the Democratic candidate), Johnnie R. Crean (the Republican
candidate), and Ron Packard (a write-in candidate). The official
results indicated that Mr. Packard won a plurality with 66,444 votes,
as compared to 57,995 for Mr. Archer and 56,297 for Mr. Crean. On
December 3, 1982, the California Secretary of State certified the
results of the election, and credentials were issued to Mr. Packard.
Mr. Packard's credentials were presented to the House of
Representatives, and on January 3, 1983, he was duly administered the
oath of office without objection or challenge.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 98-452, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 16, 1982, Mr. Archer filed a petition with a state
court seeking to contest the election. On January 13, 1983, the judge
dismissed the complaint, stating that ``[t]he evidence in this case
falls far short of that required to set aside the results of this
election.''(2)
---------------------------------------------------------------------------
2. H. Rept. 98-452, 98th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
On December 29, 1982, Mr. Archer (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was referred to
the Committee on House Administration for its consideration. In the
notice of contest, contestant alleged that election officials had
engaged in a variety of improper and illegal behavior. On January 21,
1983, Mr. Packard (hereafter ``contestee'') filed a motion to dismiss.
The committee designated a task force to review the matter. On June
30, 1983, the task force met to hear oral arguments from the parties.
On August 3, 1983, the task force voted to recommend that contestee's
motion to dismiss be granted.
In its committee report, the Committee on House Administration
agreed with the conclusion reached by its task force. It reiterated
prior precedents regarding the need for contestant to show that, but
for the alleged acts of election officials, the result of the election
would have been different. The committee relied on the conclusion
reached by the state court that ``exonerated contestee and all election
officials.''(3) It also relied on the determination by a
county district attorney that no prosecutions connected to the election
were warranted. The committee acknowledged that California's process
for voting for write-in candidates using the Votomatic machines caused
the defacement of certain machines, but concluded that there was no
evidence to support the idea that confusion about how to vote properly
was sufficient to change the outcome of the election.
---------------------------------------------------------------------------
3. Id. at p. 4.
---------------------------------------------------------------------------
On November 15, 1983,(4) the committee called up House
Resolution 305 (dismissing the contest) as a privileged matter. The
House adopted the resolution by voice vote:
---------------------------------------------------------------------------
4. 129 Cong. Rec. 32704-705, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST RON PACKARD
Ms. [Mary Rose] OAKAR [of Ohio]. Mr. Speaker, by direction of
the Committee on House Administration, I call up a privileged
resolution (H. Res. 305) dismissing the election contest against
Ron Packard, and ask for its immediate consideration in the House.
The Clerk read the resolution, as follows:
H. Res. 305
Resolved, That the election contest of Roy ``Pat'' Archer, contestant,
against Ron Packard, contestee, Forty-third Congressional District of the
State of California, be dismissed.
The SPEAKER pro tempore.(5) The gentlewoman from
Ohio (Ms. Oakar) is recognized for 1 hour.
---------------------------------------------------------------------------
5. Ronald Coleman (TX).
---------------------------------------------------------------------------
Ms. OAKAR. Mr. Speaker, I yield 30 minutes, for purposes of
debate only, to the gentleman from California (Mr. Thomas) and
pending that I yield myself such time as I may consume.
Mr. Speaker, House Resolution 305 is a resolution to dismiss
the election contest filed in the 43d Congressional District of
California.
In the contest before the House, Archer against Packard, I
chaired the investigating task force and I was joined by committee
members Al Swift and William Thomas.
This election contest was filed by Pat Archer against Ron
Packard for the seat in the 43d Congressional District of
California. In the election held on November 2, 1982, the
Republican candidate, Johnnie Crean, received 56,297 votes, the
Democratic candidate, Pat Archer, received 57,995 votes, and the
write-in candidate, Ron Packard, received 66,444 votes for an 8,449
vote margin of victory. On December 3, 1982, certifying credentials
were signed by the Secretary of State and were issued to Mr.
Packard. The credentials of Mr. Packard were presented to the House
of Representatives on January 3, 1983. He took the oath of office
and was seated on the same day.
Mr. Archer contested the results of the election charging that
irregularities took place during the election. Mr. Archer
challenged the results in California court and his case was
dismissed for lack of evidence.
On June 30, 1983, the task force held an open hearing for
receiving oral argument on the motion to dismiss. On August 3,
1983, the task force again met and voted by a rollcall vote of
three ayes and zero nays to recommend to the committee that the
motion to dismiss be granted and that contest be dismissed.
On October 25, 1983, by a unanimous vote, a quorum being
present, the committee adopted the task force's resolution to
recommend dismissal of the contest to the House.
The recommendation for dismissal is based upon the fact that
the contestant failed to establish, as required by the Contested
Election Act, that the outcome of the election was affected by the
alleged irregularities.
I would note that a contestant has a substantial burden to
carry and the contestant in this matter has fallen far short of
doing so. The contestant lost by over 8,000 votes, and has not
presented any evidence that puts the outcome in doubt. However, I
would note that the election system employed did have inherent
weaknesses when it comes to write-in efforts, such as that
successfully mounted by Mr. Packard. Therefore, the report included
a recommendation that election officials in California explore
alternative means for handling write-in candidacies.
Mr. [William] THOMAS of California. Mr. Speaker, I yield myself
such time as I may consume.
Mr. Speaker, I rise in support of House Resolution 305, the
resolution dismissing the election contest filed by Mr. Roy Pat
Archer against Congressman Ron Packard.
The election of Congressman Packard was the fourth time in U.S.
history that a Member was elected to Congress through the write-in
process. Viable write-in candidacies are rare, and pretty
obviously, elected write-in candidates are rarer yet. It is unique
in the history of the House that we currently have two write-in
candidates sitting.
Although the county election officials did provide the poll
inspectors in the 43d District with extra training on write-in
voting, the importance of frequent checks of the voting booths, and
inspection of the voting devices, they did not anticipate the
volume of problems encountered by the confusion created by the
write-in procedures and the mechanical devices used in voting. The
committee's recommendation to improve the write-in procedures is, I
think, a good one.
Mr. Archer presented his case for himself, and the committee
rejected his conclusions, as did the District Attorney and the
superior court in California previously, and I would strongly urge
the House to do likewise.
Mr. [William] FRENZEL [of Minnesota]. Mr. Speaker, will the
gentleman yield?
Mr. THOMAS of California. I yield to the gentleman from
Minnesota.
Mr. FRENZEL. Mr. Speaker, I take this time only to compliment
the six members of these two election task forces who have worked
over nearly a year on these particular cases.
I think these two cases illustrate some of the behind-the-
scenes work that is done in this Congress of which the outside
world is not aware and in fact some of our own Members are not
aware.
I would further state that in each of these cases the task
forces and the committee uncovered defective State systems. In the
case of North Carolina, there was the problem of not allowing a
candidate a recount and the problem of counting votes in different
ways. In the case of California, there was the difficulty of
administering a write-in system.
Our committee has no jurisdiction over State election systems,
and all we can do is make recommendations. But I hope that the
Members of the House are aware of the extra effort being put in by
members of this committee and of their untiring efforts to see that
the will of the people is maintained in election contests.
Mr. Speaker, I thank the gentleman for yielding.
Mr. THOMAS of California. Mr. Speaker, I have no further
requests for time, and I yield back the balance of my time.
Ms. OAKAR. Mr. Speaker, I have no further requests for time,
and I move the previous question on the resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 19.2 Hendon v Clarke
The general election for the office of Representative to Congress
from the 11th District of North Carolina was conducted on November 2,
1982.(6) The general election candidates were James M.
Clarke (the Democratic candidate), and William Hendon (the Republican
candidate). The official vote count indicated that Mr. Clarke had
received 85,410 votes, and that Mr. Hendon had received 84,085 votes.
On December 6, 1982, the North Carolina Secretary of State and Governor
certified the results of the election. Mr. Clarke's credentials were
presented to the House of Representatives, and on January 3, 1983, he
was duly administered the oath of office without objection or
challenge.
---------------------------------------------------------------------------
6. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 98-453, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
The election contest centered on ballots used in five of the 17
counties in the 11th District of North Carolina. In those countries,
the computer punch-card system used allowed voters to cast ambiguous
ballots by selecting both individual names and a straight-party ticket.
Under North Carolina law, such ambiguous ballots would be counted as
straight-party tickets and the additional markings for individual
candidates ignored. Mr. Hendon challenged the constitutionality of this
North Carolina law in Federal court.
The U.S. District Court for the Western District of North Carolina
ruled against Mr. Hendon's request for a recount and his request to
enjoin the certification of Mr. Clarke. The court held that the North
Carolina statute did not violate the Equal Protection Clause because
all voters in the affected precincts were treated the same. The case
was appealed to the U.S. Court of Appeals for the Fourth Circuit. The
appellate court did accept Mr. Hendon's claim that parts of the North
Carolina law were unconstitutional, but decided that the relief
requested should not be granted. The court held that known pre-election
issues should be resolved prior to the election. Allowing parties to
challenge election laws after the fact ``would encourage parties to
gamble on the favorable outcome of the election, and then, having lost,
to seek to overturn the results in court by challenging'' the election
procedures.(7) The court thus refused to invalidate the
election.
---------------------------------------------------------------------------
7. H. Rept. 98-453, 98th Cong. 1st Sess. p. 3.
---------------------------------------------------------------------------
On December 3, 1982, Mr. Hendon (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was forwarded to
the Committee on House Administration for its review. The notice
alleged that because of the ballot system used, the true intent of the
voter was not reflected in the vote totals. On December 17, 1982, Mr.
Clarke (hereafter ``contestee'') filed a motion to dismiss the case.
The Committee on House Administration formed a task force composed
of three Members to investigate the contest. On July 25, 1983, the task
force met to hear oral arguments from the parties. On August 3, 1983,
the task force voted to recommend that contestee's motion to dismiss be
granted.
In its committee report, the Committee on House Administration
reiterated the substantial burden that a contestant must overcome to
prevail against a motion to dismiss. In the view of the committee, the
``evidence submitted by Contestant amounted to mere
speculation''(8) and that the contestant had not shown with
specificity how the result of the election would have been different
had different balloting procedures been used. The committee also took
issue with the relief sought, i.e., a recount of the votes cast in the
five affected counties. The report evinced great reluctance for the
committee to conduct its own recount, which would necessarily involve
making judgments as to disputed ballots and potentially
disenfranchising some voters. Such a process ``would not guarantee that
the voters' intent would be carried out.''(9) The committee
report concluded that contestee's motion to dismiss should be granted.
---------------------------------------------------------------------------
8. Id. at p. 5.
9. Id. at p. 6.
---------------------------------------------------------------------------
Members of the minority party filed dissenting views to accompany
the committee report. They argued the North Carolina law, which had
been declared unconstitutional, had the effect of favoring Democratic
candidates and ignoring voters' attempts to make split-ticket voting
choices. In their view, the committee should have made the decision to
review disputed ballots and attempt to discern voter intent (consistent
with prior occasions where the committee took these steps). Because the
House is the sole judge of its elections under the Constitution, the
minority party Members, in their dissent, felt that this
``constitutional mandate compels that we act.''(10)
---------------------------------------------------------------------------
10. Id. at p. 11.
---------------------------------------------------------------------------
On November 15, 1983,(11) the committee called up House
Resolution 304 (dismissing the contest) as a privileged matter. The
House adopted the resolution by voice vote:
---------------------------------------------------------------------------
11. 129 Cong. Rec. 32702-704, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST JAMES McCLURE CLARKE
Mr. [Jim] BATES [of California]. Mr. Speaker, by direction of
the Committee on House Administration, I call up a privileged
resolution (H. Res. 304) dismissing the election contest against
James McClure Clarke, and ask for its immediate consideration in
the House.
The Clerk read the resolution, as follows:
H. Res. 304
Resolved, That the election contest of William M. Hendon, contestant,
against James McClure Clarke, contestee, Eleventh Congressional District of
the State of North Carolina, be dismissed.
The SPEAKER pro tempore (Mr. [Ronald] Coleman of Texas). The
gentleman from California (Mr. Bates) is recognized for 1 hour.
Mr. BATES. Mr. Speaker, I yield 30 minutes, for the purpose of
debate only, to the gentleman from California (Mr. Badham), pending
which I yield myself such time as I may consume.
Mr. Speaker, under the U.S. Constitution and the rules of the
House, the Committee on House Administration is charged with the
responsibility for investigating contested elections.
In this Congress, two election contests were filed. In both
contests, the chairman of the Committee on House Administration,
Augustus Hawkins, established a task force to conduct the
investigation.
In the contest before the House today, Hendon against Clarke, I
chaired the investigating task force and I was joined by committee
members Ed Jones and Robert Badham.
This election contest was filed by William Hendon against James
McClure Clarke for the seat in the 11th Congressional District of
North Carolina. In the election held on November 2, 1982, Mr.
Clarke received 85,410 votes while Mr. Hendon received 84,085
votes. On December 6, 1982, certifying credentials were signed by
the secretary of state and Governor and were issued to Mr. Clarke.
The credentials of Mr. Clarke were presented to the House of
Representatives, and he appeared, took the oath of office, and was
seated without objection on January 3, 1983.
Mr. Hendon contested the results of the election and requested
a recount of the ballots cast. Specifically, Mr. Hendon challenged
the vote counting procedures used in 5 of the 17 counties in the
district. In these five counties, ballots which had markings for
both a straight party ticket and for an individual candidate of
another party were counted as a straight party vote. This procedure
was consistent with North Carolina election law and the ballots had
clear instructions that ambiguously marked ballots would be counted
in this way.
Mr. Hendon challenged the constitutionality of the North
Carolina election law in Federal court and requested a recount of
ballots cast in the five counties. A district court rejected Mr.
Hendon's case. However, the appeals court found the North Carolina
law unconstitutional, but denied Mr. Hendon's request for a
recount, holding that it is the duty of parties having grievances
with election laws to challenge the laws prior to the election in
question.
On July 25, 1983, the task force held an open hearing and
received oral argument on a motion to dismiss the contest. On
August 3, 1983, the task force again met and heard additional
arguments. The concerns of this task force centered on whether the
outcome of the election had been affected by the vote counting
procedures used in the election, and whether the committee should
conduct a recount of the ballots. At the conclusion of the oral
presentation, the task force recommended to the committee, by a
rollcall vote of 2 ayes and 1 nay that the motion to dismiss be
granted, and that the contest be dismissed.
On October 25, 1983, by voice vote, a quorum being present, the
committee adopted the task force's resolution to recommend
dismissal of the contest to the House.
These are two bases for the recommendation of dismissal. First
the contestant failed to demonstrate with sufficient evidence, as
required by the Contested Election Act, that the outcome of the
election was affected. The committee found no evidence indicating
that the election was affected by the vote counting procedures used
in the election. Mr. Hendon presented only unsubstantiated
speculation, and the committee felt that the will of the people as
expressed at the ballot box should not be thwarted by mere
speculation.
The second basis for dismissal is that a contestant, wishing to
challenge an election on the basis of known preelection
irregularities, must challenge the irregularities prior to the
election in question. This was the ruling of the U.S. Court of
Appeals, and it is entirely consistent with House precedent. I
would like to point out that the law which the contestant
challenged has been on the books since 1955, and it is the same law
under which the contestant won election to Congress in 1980, at
which time he did not challenge the validity of the statute. To
quote the appeals court:
Failure to require preelection adjudication would permit, if not
encourage, parties who could raise a claim to lay by and gamble upon
receiving a favorable decision of the electorate and then, upon losing,
seek to undo the ballot results in court action.
For these reasons, the committee recommends that the contest of
Hendon against Clarke be dismissed. The House has before it House
Resolution 304 and I urge its adoption.
Mr. [Robert] BADHAM [of California]. Mr. Speaker, I yield
myself such time as I may consume.
Mr. Speaker, this case is case is before us because of the
responsibilities the U.S. Constitution entrusts to the House of
Representatives. Article I, section 5, clause 1 states specifically
that it is the obligation of the House to ``be the Judge of the
Elections, Returns, and Qualifications of its own Members,'' We are
fortunate in having in this case more than the evidence collected
through the Federal Contested Election Act (FCEA) (2 U.S.C. 381-96
(1981)). We also have the benefit of a U.S. Court of Appeals
decision. Hendon v. North Carolina Board of Elections, No. 82-2122
(4th Cir. June 23, 1983). The ruling provides a fair and impartial
analysis that we cannot ignore. The court found unconstitutional
the law under which the Hendon-Clarke ballots were counted.
In addition to the ruling on the methods of vote tabulation,
Mr. Hendon presented this task force with sufficient evidence to
show that he would have won the election if the ballots had been
counted in a constitutional manner. The precedents of the House
allow us to examine the ballots. Equity and our duties under the
Constitution require that we recount those ballots, or, at the very
least, set aside the election, declare the seat vacant, and hold a
new election.
Mr. Hendon brought this contest under the FCEA on the grounds
that the counting and casting of ballots in his congressional race
denied voters equal protection of the law. He also filed suit in
U.S. District Court for the Western District of North Carolina. The
accuracy of the tabulation is crucial because Democrat Clarke
defeated incumbent Hendon by 1,325 votes out of 171,047 cast. The
15 counties in the 11th Congressional District employed 4 voting
methods: a hand-counted paper ballot listing only the congressional
race; a mechanical lever voting machine; an electronic punch card
system (CES); and an optically scanned paper ballot system
(Airmac). Hendon protested the tabulation of votes on the CES,
where voters punched a hole beside the name of a party or candidate
and the ballots were counted electronically by machine, and on the
Airmac system, where voters used a special pen to mark ballots
counted by an optical scanning device. Five counties used these
methods.
Hendon's complaint and the fourth circuit's opinion both center
on the North Carolina statute permitting a person to vote a
straight party ballot by marking a circle above that party's
column. More than 50 contests faced 11th Congressional District
voters last November. Democrats had candidates for all the races
while Republicans fielded less than 10 in some counties. Therefore,
a voter wanting to split his ballot and vote for candidates of
different parties had to mark a square by each candidate's name. A
voter wanting to vote a straight party ticket had to make only one
mark.
The court found the application of these statutes
unconstitutional because of the way a CES or Airmac ballot with a
mark in the straight party circle, but also in the square of an
individual candidate, was counted. Such ballots registered as a
straight party vote, with the vote for the individual of the other
party not counted. But voters using paper ballots or mechanical
lever voting machines could split their tickets, even if they
marked the straight party circle, by just marking Hendon's name.
Mr. Hendon provided the task force with convincing evidence
that this system of counting votes deprived him of enough votes to
change the result of the election. Examining the system, the fourth
circuit rules:
The imposition of a legislative preference for the straight party
candidate, when the voter has indicated no such preference, is an arbitrary
subversion of the electoral process that serves no compelling State
interest.
Mr. Hendon provided the task force with specific evidence that
a constitutional tabulation would have given him enough votes to
change the outcome through affidavits from disenfranchised voters
and through evidence that a manual count necessitated by an
election night breakdown of some CES and Airmac machines showed
Hendon votes not being counted.
While the fourth circuit found the method of vote counting in
the Hendon-Clarke election unconstitutional, it did not order a
recount as had been requested and arrayed for by the Hendon forces.
Although Mr. Clarke and his supporters have tried to make much of
this, the Constitution makes the House the sole judge of the
elections of its Members. See Brit v. Board of Canvassers (172 N.C.
797, 90 S.E. 1005, 1007 (1916)); see also, Roudebush v. Hartke (405
U.S. 15, 25-26 (1972)); Keough v. Homer (8 F. Supp. 933 (S.D. Ill.
1933)). The court knew during its deliberations that Mr. Hendon had
filed an election contest with the House of Representatives. The
court's decision avoids any interference with the constitutional
prerogative of a coequal branch of government.
The precedents of the House of Representatives clearly allow us
to examine contested ballots to insure the integrity of an
election. See Roush v. Chambers (H.R. Rep. No. 513, 87th Cong., 1st
Sess. (1961)); Moreland v. Scharetz (H.R. Rep. No. 1158, 78th
Cong., 1st Sess. (1944)). Faced, as we are, with an election
conducted in a manner a U.S. Court of Appeals has found
unconstitutional, such is our obligation. As this committee said:
The power to examine the ballots and to correct both deliberate and
inadvertent mistakes and errors shall always remain in the House.
Kyros v. Emery (H.R. Rep. No. 760, 94th Cong., 1st Sess. 6
(1975)); (quoting Brown v. Hicks (H.R. Rep. No. 1328, 64th Cong.,
1st Sess. (1916)); see also Mikva v. Young (H.R. Rep. No. 244, 95th
Cong., 1st Sess. (1977)); Ziebart v. Smith (H.R. Rep. No. 763, 94th
Cong., 1st Sess. (1975)); L. Deschler, ``Deschler's Precedents of
the House of Representatives'' (Ch. 8, Sec. 8.4-8.5 (1978)). In
previous contests, such recounts have been conducted by bipartisan
teams supervised by this committee. See, for example, Kyros against
Emery, supra. Mr. Hendon has estimated that 64,000 votes are being
contested and that the recount would take only 5 days.
The precedents of this House further state that disputed
ballots, such as the split ticket ballots in this case, ``should be
counted on the basis of obvious voter intent.'' Mikva v. Young
(H.R. Rep. No. 759, 94th Cong., 1st Sess. 4 (1975)). The North
Carolina statute holds:
No official ballot shall be rejected because of technical errors in
marking it, unless it is impossible to determine the voter's choice under
the rules for counting ballots. (N.C. Gen. Stat. Sec. 163-170.)
Indeed, the fourth circuit rules that no compelling State
interest existed for the method used to count split tickets on CES
and Airmac systems as was done in the 11th Congressional District.
Equity and fairness demand that these ballots be recounted so that
this election can truly reflect the voters intent.
Our constitutional mandate compels that we act. The role of the
judge that this House must assume is not an easy one. But it
entails getting the full facts of this case by conducting a recount
or, alternatively, declaring this seat vacant and ordering a new
election. I strongly urge the House to examine the facts of this
case objectively and to reject House Resolution 304.
Mr. Speaker, I have no further requests for time, and I reserve
the balance of my time.
Mr. BATES. Mr. Speaker, I would just like to commend the
gentleman from California (Mr. Badham) on the fine way that he has
handled this issue. I think certainly his position is not without
merit, but I think on balance the committee and the task force have
made the right decision.
Mr. Speaker, I have no further requests for time, and I move
the previous question on the resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 20. Ninety-ninth Congress, 1985-1986
Sec. 20.1 McCloskey v McIntyre
The general election for the office of Representative to Congress
from the Eighth District of Indiana was conducted on November 6,
1984.(1) The general election candidates were Frank
McCloskey (the Democratic candidate), Richard D. McIntyre (the
Republican candidate), and Michael J. Fallahay (the Libertarian
candidate). The initial vote count indicated that Mr. McCloskey had
received 116,841 votes, Mr. McIntyre had received 116,769 votes, and
Mr. Fallahay had received 769 votes.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 99-58, 99th Cong. 1st Sess.
---------------------------------------------------------------------------
Under Indiana law, the county clerk from each country certifies the
results from that county to the Indiana Secretary of State. Initial
certifications from all counties were received on November 13, 1984. On
November 19 and November 26, two counties submitted corrected returns.
Mr. McIntyre, however, alleged that one additional county (Gibson
County) had incorrect initial vote totals, and that a new count would
show a swing of 111 votes in favor of Mr. McIntyre, thus reversing the
outcome of the election. The county clerk disagreed with this
assessment and did not certify new totals to the Indiana Secretary of
State. The Secretary of State, however, declined to certify a winner
until new vote totals had been produced by Gibson County.
Mr. McIntyre filed suit with the Indiana Supreme Court seeking to
compel Gibson County to submit corrected vote totals to the Secretary
of State. The Indiana Supreme Court ordered all precincts in Gibson
County recounted, and instructed the county clerk to certify new totals
to the Indiana Secretary of State. The recount was conducted between
December 3 and December 7, 1984. Under the new totals, Mr. McIntyre
obtained a margin of victory of 34 votes. On December 14, 1984, the
Indiana Secretary of State certified Mr. McIntyre as the winner of the
election.
Prior to this certification, both candidates had requested recounts
of other counties and precincts pursuant to state law. This state
recount ultimately reached all precincts in 14 of the 15 counties, and
53 of the 157 precincts in the remaining county.
On November 27, 1984, Mr. McCloskey filed suit in the U.S. District
Court in the Southern District of Indiana (Evansville Division),
seeking to direct the Indiana Secretary of State to certify Mr.
McCloskey as the winner of the election. The suit also attempted to
enjoin the ongoing state recounts. On December 7, 1984, the court
denied Mr. McCloskey's requests, stating that the Federal Contested
Elections Act (FCEA) did not pre-empt recounts pursued under state law.
Recounts were thus continued throughout December 1984, and into
January 1985. Under state law, a county circuit judge appointed three-
member commissions to conduct the recounts in each county. Following
the recount, the new vote totals showed that Mr. McIntyre's lead had
increased to 418 votes. On February 6, 1985, the Indiana Secretary of
State then informed the Clerk of the House of the new vote totals and
reaffirmed the original certification of Mr. McIntyre as the winner.
As the state recount continued, Mr. McIntyre appeared on opening
day of the 99th Congress with his credentials and prepared to take the
oath of office with other Members-elect. However, a challenge was made
to the seating of Mr. McIntyre by the Majority Leader (Rep. Jim Wright
of Texas).(2) Following the swearing-in of other Members,
Rep. Wright then offered a privileged resolution to address the issue
of the election to the Eighth District of Indiana. That resolution
provided that neither Mr. McIntyre nor Mr. McCloskey would be seated at
that time, and the question of the final right to the seat would be
referred to the Committee on House Administration. The resolution also
authorized salary expenditures from the contingent fund of the House to
both candidates during the period of the contest. The House adopted the
resolution by a recorded vote of 238 yeas, 177 nays, and 11 not
voting.(3)
---------------------------------------------------------------------------
2. See Precedents (Wickham) Ch. 2 Sec. 4.1.
3. Id.
---------------------------------------------------------------------------
Neither candidate in this contest attempted to file a notice of
contest under the FCEA. Thus, the proceedings of this election contest
did not take place under the rubric of the statute.
On February 6, 1985,(4) the Minority Leader addressed
the House, and read the letter from the Indiana Secretary of State to
the Clerk of the House, indicating that Mr. McIntyre had been elected
by a vote of 114,278 for McIntyre to 113,860 for Mr. McCloskey. The
original certificate of election was thus reaffirmed. The next
day,(5) the Minority Leader offered a resolution raised as a
question of the privileges of the House to permit the Speaker to
administer the oath of office to Mr. McIntyre and to refer the final
right to the seat to the Committee on House Administration. The House
did not adopt the resolution, but instead referred it to the Committee
on House Administration by a vote of 221 yeas, 180 nays, one answering
``present,'' and 30 not voting:
---------------------------------------------------------------------------
4. 131 Cong. Rec. 1844, 99th Cong. 1st Sess.
5. 131 Cong. Rec. 2220-31, 99th Cong. 1st Sess. (Feb. 7, 1985). The
minority party made two similar attempts to seat Mr. McIntyre.
See H. Res. 97, 131 Cong. Rec. 4277-89, 99th Cong. 1st Sess.
(Mar. 4, 1985); and H. Res. 121, 131 Cong. Rec. 7118-28, 99th
Cong. 1st Sess. (Apr. 2, 1985).
---------------------------------------------------------------------------
PRIVILEGES OF THE HOUSE--RESOLUTION TO SEAT RICHARD D. McINTYRE
AS A MEMBER OF THE HOUSE
Mr. [Robert] MICHEL [of Illinois]. Mr. Speaker, I rise to a
question of the privileges of the House, and I offer a privileged
resolution (H. Res. 52) and ask for its immediate consideration.
The Clerk read the resolution as follows:
H. Res. 52
Whereas, Richard D. McIntyre won the November 6, 1984, election in the
Eighth Congressional District of Indiana by 34 votes according to the
certificates of election filed by the county clerks from the District's 15
counties; and
Whereas, the Indiana Secretary of State, Edwin J. Simcox, acting in
accordance with his duties as set forth in the Indiana Code (Ann. Sec. 3-1-
26-9), certified Richard D. McIntyre as the Representative from Indiana's
Eighth Congressional District; and
Whereas the Clerk of the House stated on January 3, 1985 in opening the
99th Congress that he had ``prepared the official roll of the
Representatives-elect'' which included McIntyre's name. The Clerk stated:
``Certificates of election covering the 435 seats in the 99th Congress have
been received by the Clerk of the House of Representatives, and the names
of these persons whose credentials show that they were regularly elected as
Representatives in accordance with the laws of their respective States and
of the United States will be called.'' McIntyre's name was called and he
cast his vote for Robert H. Michel as Speaker of the House of
Representatives; and
Whereas the majority of the House of Representatives on January 3, 1985
voted in House Resolution 1 not to seat Richard D. McIntyre as
Representative from Indiana's Eighth Congressional District despite has
certificate of election issued pursuant to the laws of Indiana; and
Whereas House Resolution 1 is contrary to the precedents of the House of
Representatives in that the holder of a certificate of election not tainted
by fraud or irregularities has previously been granted a prima facie right
to a seat with the final right being referred to the Committee on House
Administration; and
Whereas Richard D. McIntyre received 418 votes more than Francis X.
McCloskey in a recount of the ballots cast in Indiana's Eighth
Congressional District pursuant to Indiana Code (Ann. Sec. 3-1-27 et seq.);
Now, therefore be it
Resolved, That the Speaker is hereby authorized and directed to
administer the oath of office to the gentleman from Indiana, Mr. Richard D.
McIntyre.
Resolved, That the question of the final right of Mr. McIntyre to a seat
in the 99th Congress is referred to the Committee on House Administration.
The SPEAKER.(6) The Chair has examined the
resolution offered by the gentleman from Illinois. In the opinion
of the Chair, the resolution constitutes a question of the
privileges of the House under article I, section 5 of the
Constitution and under rule IX.
---------------------------------------------------------------------------
6. Thomas O'Neill (MA).
---------------------------------------------------------------------------
motion offered by mr. wright
Mr. [James] WRIGHT [of Texas]. Mr. Speaker, I offer a motion to
refer.
The SPEAKER. The Clerk will report the motion.
The Clerk read as follows:
Mr. Wright moves to refer the resolution to the Committee on House
Administration.
The SPEAKER. The gentleman from Texas [Mr. Wright] is
recognized for 1 hour.
Mr. WRIGHT. Mr. Speaker, for purposes of debate only I yield 30
minutes to the gentleman from Minnesota [Mr. Frenzel] or his
designees, and pending that I yield myself such time as I may
consume.
Mr. Speaker, this motion involves a disputed election between
Mr. McCloskey, the Democratic candidate, and Mr. McIntyre, the
Republican candidate in the Eighth District of Indiana.
On January 3, exercising its constitutional responsibility to
be the judge of elections, returns, and qualifications of its own
Members, the House voted to seat neither of the contested
candidates and to refer the matter to the Committee on House
Administration, in order that an entire, thorough, complete inquiry
might be made.
Attempt now is being made to overturn that action of the House.
My motion would simply refer this motion of the gentleman from
Illinois to that committee which already is moving to act in a
responsible way on this contest.
To do otherwise would be to express a lack of confidence in the
duly constituted committees of this House. There is no reason
whatsoever, Mr. Speaker, for any Member of this House to question
the integrity or the intentions of the Committee on House
Administration.
That committee, exercising its jurisdiction, has on numerous
occasions undertaken careful and exhaustive inquiries into
elections that were contested. Never once so far as I know,
certainly not in my memory, has that committee been accused of
having acted in a partisan way or in any way contrary to the facts.
As a matter of fact, in the last Congress a subcommittee
chaired by the gentlewoman from Ohio [Ms. Oakar] heard the case
involving the gentleman from California [Mr. Packard] and ruled in
favor of the gentleman from California [Mr. Packard] a Republican
Member of the House.
The committee ruled on the basis of fact, and that is how the
committee will rule this year, if given that privilege. The House
has referred this matter to its own House committee. To take it
away from the committee now would be to express disfavor of the
committee, to express our lack of confidence in the integrity of
the committee and in the integrity of the House procedures.
For those reasons and for reasons which will be further
elucidated, I believe this matter should be returned to that
committee, this motion referred to the committee, and the committee
given the opportunity to act.
The chairman of that committee has given public assurances that
the committee will act expeditiously. There is no intention to
delay; the intention is precisely the opposite. We intend to act
soon but not sooner than the facts are in, the votes are counted,
and qualified voters are given the privilege of having their votes
taken into account.
Mr. [Frank] ANNUNZIO [of Illinois]. Mr. Speaker, will the
majority leader yield?
Mr. WRIGHT. I yield to the gentleman from Illinois.
Mr. ANNUNZIO. I appreciate the distinguished majority leader
yielding to me.
Mr. Speaker, the Committee on House Administration is well
aware of its heavy responsibility in this matter. As chairman, I
have absolutely no preconceived judgments about the issues that
have been raised in this contested election, or about its likely
outcome.
I want to assure the Members I feel confident that I speak for
the other members of the committee, as well as myself, in saying
that our minds are open and will remain so until all the facts are
in.
To gather these facts, I am informing the House that I have
already appointed a task force, with Mr. Panetta, of California, as
chairman; Bill Clay, of Missouri, a member; and Bill Thomas
representing the minority side on this task force.
They are prepared to move as quickly as possible toward a
resolution of this unfortunate situation. For my part, I want to
completely assure all of my colleagues, both sides of the aisle,
the citizens of the Eighth Congressional District in Indiana, that
the Committee on House Administration will conduct its
investigation in a manner that is thorough, complete, fair and
impartial like we have done all of these years when election
matters have been referred to the House Administration Committee.
I again want to pledge to you our best efforts to uphold the
trust that has been placed upon us.
Mr. WRIGHT. I defer at this time to the gentleman from
Minnesota [Mr. Frenzel] for purposes of debate only.
Mr. [William] FRENZEL [of Minnesota]. Mr. Speaker, I yield such
time as he many consume to the distinguished minority leader, the
gentleman from Illinois [Mr. Michel].
Mr. MICHEL. Mr. Speaker and my colleagues, I am offering this
resolution to seat Rick McIntyre, the duly certified Congressman
from the Eighth District of Indiana.
The resolution is conditional, pending a final outcome of the
House Administration Committee's involvement in this matter.
Before I get to the specifics of the case, allow me to dwell
for just a moment on some facts that put it in historic context.
Our Library of Congress found that from 1920 to 1974, there were 11
occasions when a House race was won by fewer than 100 votes. Oddly
enough, this is not the first time that the Eighth District of
Indiana has been involved in a close race.
In a curious, historic irony, in 1930 incumbent Albert Vestall
of the Indiana Eighth District, beat challenger Claude Bell by nine
votes.
That is right. Nine votes out of 88,397 cast. Do you know what
happened when Congressman Vestall won by such a tiny margin? Why
his election was not even contested. But, my, how times have
changed.
In the election of 1984, the people of the Eighth District of
Indiana voted in another close House election. A certificate of
election, based on final election night results, and the correction
of two tabulating errors, was issued to Mr. McIntyre. He has since
won a recount all in conformance with Indiana law, not by 9 votes,
not by a count less than 100, but by 418 votes.
Mr. McIntyre is, in the eyes of the people of Indiana, a duly
elected and certified representative to this House. But he is not
representing the people of Indiana because this House has barred
him from doing so in an unprecedented display of raw legislative
power.
The people of the Eighth District of Indiana have been
summarily disenfranchised.
I am therefore introducing this resolution for two reasons:
First, because what is happening to the people of the Eighth
District of Indiana is wrong. It is unprecedented, it is
unconstitutional and it is unjust.
Second, if the majority persists in this course, the reputation
of this institution will be severely damaged,
Representative Rick McIntyre, with the certificate of election
given to him by the people of Indiana, has a prima facie right to
take this seat.
The House Administration Committee can pursue any line of
inquiries it so desires. And I do not question the integrity of
that committee or any member thereof. But while this is going on
Rick McIntyre is entitled to be seated by tradition, by precedent
and by law. The facts dictate that Representative Rick McIntyre
should be seated. Justice demands that Representative Rick McIntyre
be seated.
Mr. Speaker, we cannot content ourselves, nor can the people
out in the Eighth District of Indiana be content or satisfied with
the caliber of their representation, simply because House
Resolution No. 1 on opening day provided for a staffed office in
Washington. So what. Roughly 500,000 people have no voice or vote
in the 99th Congress. They have no one to speak for them like I am
speaking today. Instead they have two men clamoring to speak for
them. This is not representation. It is a tragedy.
I have no quarrel with that provision of House Resolution No. 1
which directed the House Administration Committee to examine this
election and report its findings to the House. That is consistent
with the precedents of this great body. In fact, my resolution
would defer to the Committee on House Administration to make a
final determination.
Specifically, the last paragraph reads:
Resolved, That the question of the final right of Mr. McIntyre to a seat
in the 99th Congress is referred to the Committee on House Administration.
The language is totally consistent with section 5 of the
Constitution and all of our precedents. It sets out clearly that
this body can decide the final right to representation based on
election results.
We also have a law--the contested elections law--which provides
the mechanism by which a candidate can question the results of an
election. If there is cause for questioning an election--I mean
real cause, not closeness, we have had close elections, but real
cause--then Mr. McCloskey could have filed a grievance under this
law.
Mr. McCloskey did not file. One has to ask why?
One final point. The same law has another purpose: To ensure
that the citizens of Indiana or any other State are represented in
this body while a contested election is being resolved by the House
Administration Committee. Here again, the law is being ignored. You
cannot get away from that fact. There is a void here, a vacuum, no
representation.
We always have provided heretofore that there is representation
here while the House Administration Committee follows its course.
We have had an official recount. Are we now going to be told
this afternoon that that recount is invalid? When will this ever
cease to happen? When will we go back to Judging these issues by
procedures rather than by politics?
Back in my hometown of Peoria, a former Member of this body,
Abe Lincoln, once said:
No man is good enough to govern another man without the other's consent.
And it can be applied to the case before us.
The majority is, in effect, seeking to govern the people of the
Eight District of Indiana and of the State of Indiana without their
consent.
I would ask Members of the majority to reconsider while there
is still time and while the reputation of this House can still
recover.
Mr. Speaker, I would ask that Members cast a ``no'' vote on the
motion offered by the gentleman from Texas [Mr. Wright].
Mr. FRENZEL. Mr. Speaker, I yield 5 minutes to the
distinguished gentleman from Texas [Mr. Sam B. Hall, Jr.].
Mr. SAM B. HALL, JR. [of Texas]. Mr. Speaker, let me say at the
outset I do not like at all to be placed in the position that I am
today with my party. I am doing this because I think what we are
being asked to do today is not right. I have no feeling against
either one of these gentlemen. I do not know them. I know that the
House Administration Committee will do a fine job in what it is
constitutionally appointed to do.
My only thought Is this. I wish my colleagues to listen to me
for just a moment on some dates.
This election was held on November 6. Between November 8 and
November 21, Mr. McIntyre filed a petition to recount votes in
eight counties. On November 27, Mr. McCloskey filed a suit to
enjoin Mr. McIntyre from having a recount on the basis that the
House of Representatives had the exclusive right to determine its
membership and that the State of Indiana did not have the right to
declare an election contest. Also, the second count in that
petition was that the secretary of state be ordered to certify him,
Mr. McCloskey, as a winner.
Now, this was a Federal court case. It was filed in November
1984. Judge Brooks wrote an opinion on December 7, 1984. Here is
what he said. He refused to grant the relief sought by Mr.
McCloskey against Mr. McIntyre. He said that he could not find any
reading in the statute which gave the right of the Congress to take
over the right of a contested election contest in a State. He said
it in this opinion.
He also stated that he was not going to mandate that the
secretary of state certify a winner. Although he did say rightfully
so, that the secretary of state had a continuing obligation.
He says:
In my reading of the Statute, it says that he has a continuing duty to
recertify at any time the totals that are given to him, I think, he has a
duty to recertify those totals, whatever the outcome may be.
Now, no one is questioning--certainly I am not--we are not
questioning the right of the House Administration Committee to do
what it is constitutionally mandated to do.
The only position I am taking here today is that we, in my
opinion, do not have the right to refuse to seat Mr. McIntyre. He
has been certified. He has been certified twice by the secretary of
state as the winner. I do not know whether he is the winner or
whether he is not. That is not the point.
We had the same type of situation, Adam Clayton Powell. Many of
you are familiar with that case. The Supreme Court of the United
States reversed a lower court and a circuit court, which held that
we had the right to eliminate or expunge him from the membership in
this body. The Supreme Court held we did not have that right and
mandated that we put him back, which we did.
Mr. [Andrew] JACOBS [of Indiana]. Mr. Speaker, will the
gentleman yield on that point?
Mr. SAM B. HALL, JR. Let me finish, please.
Mr. JACOBS. The gentleman is misstating the case. Will the
gentleman yield on that point?
Mr. SAM B. HALL, JR. No, sir; I am not misstating. You read it.
Mr. JACOBS. I wrote a book about it. The gentleman is
misstating the case.
Mr. SAM B. HALL, JR. Mr. Speaker, in the case that we have here
today, we have language by this judge dealing with this specific
point, and I read it. I am reading on page 3 of his opinion:
So, they updated that. They mention specifically--
Talking about the Federal Contested Election Act, which was
passed in 1969--
That it completely overhauls and modernizes election contest procedures
in the House. But nowhere does it refer to any change in the intent to
preempt the States from holding their own recounts.
That has been decided.
I think the gentleman from Virginia, Mr. Abbitt, It was his
testimony, and he is the one who introduced it, said that it is:
Pure and simple, they are prescribing a procedural framework for the
prosecution, defense, and disposition of contested election cases patterned
upon the Federal Rules of Civil Procedure.
Now, listen to this next sentence:
One of the other Congressmen says that a question occurs to me as to
whether the Committee has dealt with the question of whether or not the
certified winner of a general election would be seated pending the outcome
of the contest.
That is the question we have got here today.
Here is what the judge said:
I think Mr. Abbitt says, ``We did not intend to change any basic rule of
law. This is purely and simply a procedural matter * * *
The SPEAKER. The time of the gentleman from Texas has expired.
Mr. SAM B. HALL, JR. May I have an additional 1 minute?
Mr. FRENZEL. I yield the gentleman 30 seconds.
Mr. SAM B. HALL, JR. Now, when you go back to the basic rule of
law, that is that this Congress has a mandate to seat a person if
he has been certified as the winner.
It is up to the House Administration Committee to make a
determination as to whether or not in the future that he is or is
not the winner.
I would say that if this were reversed, if Mr. McCloskey were
in the same shape that Mr. McIntyre is in, he would have the same
right to be seated while the House Administration Committee works
its will.
I certainly think that this gentleman should be seated.
Mr. WRIGHT. May I have a statement of the time, Mr. Speaker?
The SPEAKER. The gentleman from Texas [Mr. Wright] has 24
minutes remaining; the gentleman from Minnesota [Mr. Frenzel] has
17 1/2 minutes remaining.
Mr. WRIGHT. Mr. Speaker, I yield 3 minutes to the gentlewoman
from Ohio [Ms. Oakar] the chairman of a subcommittee of the
Committee on House Administration.
Ms. [Mary Rose] OAKAR [of Ohio]. I thank the majority leader
for yielding.
Mr. Speaker, I subscribe to the fact that this is an issue that
transcends this election. This is an issue that, in my judgment,
directly points to whether or not the House Administration
Committee has the integrity to be fair. We voted to send the
results of this election to the House Administration Committee, and
our chairman is very distinguished.
Now, in the last session I had the dubious task, believe me--it
is not the kind of task one seeks--to chair a task force on a
contested election. It was already mentioned. The gentleman from
California, a Republican Member, was being challenged in terms of
whether or not the election was fair. On the committee we had the
gentleman from Washington, who is a Democrat, and we had the
gentleman from California [Mr. Thomas] who was also from California
and Republican. No one challenged the makeup of the committee, no
one challenged whether or not we would be fair. And this election
was called the most serious election violation--in southern
California--in the history of that area of the State.
Mr. [Robert] WALKER [of Pennsylvania]. Mr. Speaker, will the
gentlewoman yield?
Ms. OAKAR. I only have 3 minutes. If the gentleman would like
to give me some time, I would be happy to extend to him that
courtesy.
We had very, very serious allegations. There was the allegation
that there was a mass conspiracy to deface voting booklets because
one of the candidates was a write-in candidate. Fraud, theft were
also alleged.
Now, we worked on this election for many, many hours. We sent
our legal staff to California directly to look at the evidence, In
fact. They came back with massive amounts of reading material that
I personally read, and, believe me, I had better things to do with
my time. And I personally, after having an extensive hearing, made
the recommendation--and I am as partisan as anybody in this House--
that the Republican Member continued to be certified. And that was
the recommendation I initiated to my committee members.
Now, there was not one Democrat on that House Administration
Committee--and, by the way, the chairman at the time was a Democrat
from California, who voted against our recommendation. The House
Administration has been distinguished by its fairness.
Now, I want to say to my colleagues that we are not only
dealing with a contested election here.
The SPEAKER. The gentlewoman's time has expired.
Ms. OAKAR. We are dealing with the view that----
May I have 30 seconds, Mr. Majority Leader?
Mr. WRIGHT. I yield 30 seconds additionally.
Ms. OAKAR. What we are dealing with is the integrity of a
committee that is objective. And that also should be counted in
your vote. Do you trust the House Administration Committee to be
fair?
And I suggest to you that it has always been fair and will
continue to remain so and can be objective in this election, in
discussing and deciding the results of the McCloskey/McIntyre
contested election.
Mr. [James] PICKLE [of Texas]. Mr. Speaker, will the
gentlewoman yield to me?
Ms. OAKAR. I do not know if I have further time.
Mr. PICKLE. Would the gentleman yield the gentlewoman 1 extra
minute?
Mr. WRIGHT. I yield the gentlewoman an extra minute for the
purpose of yielding to the gentleman from Texas.
Ms. OAKAR. I yield to the gentleman from Texas.
Mr. PICKLE. I see nothing wrong about referring this to the
House Administration Committee. It is a serious question. And most
of us are not familiar with all of the facts and have difficulty in
passing judgment with some finality.
I am concerned, though, that if you refer this to the House
Administration that it might be interpreted as a final act and a
final delay, and the people, then, of Indiana, it would seem to me,
from the district would be entitled to some representation.
Would the gentlewoman tell me, the chairman of the
subcommittee, would she promise the House that that subcommittee
would have a report back to us within 30 days, within 40 days,
within some specific time? If we could have that assurance, I would
say that it is perfectly proper for us to look into it. But without
that assurance, I have grave doubts that we are proceeding in the
right channel.
Can the gentlewoman tell us she would report to the House?
Ms. OAKAR. I am not on the task force at this time. I think
that is a question for the chairman of the Committee on House
Administration. But I can tell you this, that the individuals on
that task force will proceed as expeditiously as possible, knowing
how important it is to the House.
Mr. PICKLE. From this Member's standpoint, I see nothing would
keep us from giving a report of finality within 30 or 40 days, and
I would expect that if some motion were made at that time, we ought
to look at it again.
Ms. OAKAR. That might be possible.
Mr. FRENZEL. Mr. Speaker, I yield 5 minutes to the
distinguished gentleman from Indiana [Mr. Myers].
Mr. [John] MYERS of Indiana. Mr. Speaker, the more I read the
more I understand why the opponents of self-government don't like
us to bring up the case of Adam Clayton Powell.
The U.S. Supreme Court ruled in Powell versus McCormack that
``he House is without power to exclude any Member-elect who meets
the Constitution's requirements for membership.'' How did the Court
arrive at this landmark decision? By studying the history that made
this rule an essential part of the Constitution.
First, the Court studied John Wilkes, the Englishman who kept
getting elected by his constituents to the House of Commons, even
though the House would not seat him.
As it turns out Wilkes had quite an impact on the American
colonists, who sought his advice and took as one of their slogans,
``Wilkes and Liberty.'' Their critics called them Wilkites; they
called themselves Sons of Liberty.
In fact, Wilkes and his exclusion from Parliament symbolized to
colonial America, King George III's attitude about the thing the
colonists craved most: self-government.
What a coincidence, then, that on the same day, John Wilkes
argued against the blockade of Boston Harbor, he argued to expunge
the record of his exclusion. On the exclusion issue he said:
If . . . his constituents should differ in opinion from the majority of
this House, if they should think him fit to be reelected, he ought to be
admitted, because he claims his seat under the same authority by which
every member holds the privilege of sitting and voting here, a delegation
from the people, their free choice.
. . . They are the fountain of this power. We exercise their right. By
their representation only we are a House of Parliament. They have a right
of choosing for themselves, not a majority here for them.
If you can reject those disagreeable to a majority, the House of Commons
will be self-created and self-existing. . . . The consequences of such a
principle are dangerous in the extreme. A more forcible engine of despotism
cannot be put into the hands of a minister.
Convinced that the Wilkes case influenced the framing of our
Constitution, the Court turned next to the drafting debates, where
James Madison argued strongly against giving Congress any power to
exclude Representatives chosen by the people. He warned that
``artificial distinctions may be devised by the stronger in order
to keep out partisans of the weaker faction.''
What were those artificial distinctions on January 3 that were
devised to keep out Rick McIntyre while the gentleman from Idaho,
whose election was formally contested, was seated?
The time of day that McIntyre election certificate was issued;
A Member's opinion that Indiana's ballot validation laws are
too complicated; and
The false statement--and we all know it to be false--that the
McIntyre certificate was based upon a partially completed recount.
Why weren't you told on January 3, Mr. Speaker, that Mr.
McIntyre's certificate was issued when--and not until--the
secretary of state had received all 15 original and correct county
election certificates, and that the McIntyre certificate had
nothing to do with the recount?
Why weren't you told on January 3, Mr. Speaker, that a Federal
court in Indiana--with a judge appointed by President Carter--had
already ruled that there had never been a basis to declare Mr.
McCloskey the winner, and that the secretary of state of Indiana
had acted lawfully and properly in withholding a certificate until
Gibson County corrected its own arithmetic?
Why weren't you reminded on January 3, Mr. Speaker, about the
debate right here in this House on the FCEA? Did you remember the
assurance given us--and all Americans--by the manager of the bill?
Here it is, Mr. Speaker:
Mr. Blackburn. This action would not be construed as changing the present
precedents, which are to the effect that the certified winner will take his
seat pending the outcome of the contest?
Mr. Abbitt. It does not affect the basic law one iota. It is merely
intended to expedite the hearings so that the matter can be brought to a
resolution as quickly as possible.
Is this why former Congressman McCloskey did not file a contest
in compliance with the FCEA? Or was it because he had no basis to
file?
Speaking of floor debates, a lot of history was made right here
in this body relating to Adam Powell on the question of who
composes this body, the voters at home or Congress itself. In fact,
one of our colleagues thought it was historic enough to write a
book about it. It is called ``The Powell Affair, Freedom Minus
One.''
In the opening pages, the author takes us back to the debate on
the original resolution to exclude Mr. Powell.
Where can we Americans who still crave self-Government and
liberty find protection today, Mr. Speaker? Can we find it in this
body?
Mr. Speaker, I ask you and the gentleman from Indiana who wrote
this beautiful book to listen to what the author himself said so
persuasively in that same debate:
Mr. Speaker, those who do not study history are ill-equipped to make it.
One lesson of history is that those of authority who have made historic
decisions on the basis of the emotions of the moment, quite often were the
ones who hindered our heritage of freedom . . .
Mr. Speaker, we of this Select Committee . . . found jealous regard in
the Constitution for the fundamental right of the people of a congressional
district to choose their own representative without permission from the
people of any other congressional district; and we found that in this case
the better part of wisdom is to preserve a fundamental right of freedom by
not setting aside the choice, wise or unwise, of the people of Mr. Powell's
district . . .
Mr. Speaker, we concluded that Mr. Powell is not entitled to the things
this House has to give . . .
But, Mr. Speaker, there is one thing that the House cannot give, and that
is an appointment to represent the people of the 18th district of New York.
This is the one office for which no Congress, no governor, only the
governed can make a choice.
In my judgment, the better part of wisdom cries out against tinkering
with the fundamental right of the people to choose their representative . .
Finally, Mr. Speaker, we are not holding a popularity contest.
Mr. Jacobs own reflection on article 1, section 5 appears on
page 10:
Any high school civics student knows that Article 1 of the United States
Constitution provides, ``Each House shall be the Judge of the Elections,
Returns, and Qualifications of its own members.'' But surely in a
constitutional democracy such a provision could not be interpreted . . . to
confer upon a legislative body unlimited power to abrogate a decision by
the electorate. Or could it?''
He quotes our beloved colleague, the gentleman from Arizona
[Mr. Udall]:
Mr. Powell appears before us today with a certificate of election which
is just as good as yours or mine . . . His people said that they wanted him
to be their Congressman . . .
I say that this [issue] is about fair play to the people Adam Powell
represents. There are 450,000 people--American citizens--in Manhattan who
are represented by this man. They have said that they want him to be their
Congressman. You might not have made that choice, and I might not have made
it. But they want him . . .
I am prepared to let him sit and vote for them until we have a fair
hearing . . .
Our colleague author tells us in his book that he was
confronted by a young black who asked him, ``Do you believe the
Congress of the United States is going to apply a double standard *
* * with regard to Adam Clayton Powell?'' ``I hope not,'' our
author answered. ``And I must say, I disagree sharply with the
action taken on January 10.''
Does the gentleman from Indiana disagree then with the action
taken on January 3, 1985? Did the Congress of the United States
apply a double standard with regard to Rick McIntyre? Will people--
American citizens--from the author's own State be denied a voice in
Government because of it?
Toward the end of his book, our author quoted extensively from
the debate on a later vote to continue excluding Powell. Hear what
he wrote about the speech by a member of Madison's ``weaker
faction,'' Mr. Wiggins of California:
That every American could find protection in the precedent that we
recommended [i.e., seating Powell], was underscored by what Chuck Wiggins
said next:
``I might add, Mr. Speaker, that as a member of the minority party, I
have good reason to reject the notion that my seat is subject to the whim
of the majority of seated members.''
Mr. WRIGHT. Mr. Speaker, I yield 5 minutes to the distinguished
dean of the Indiana delegation, the gentleman from Indiana [Mr.
Hamilton].
Mr. [Lee] HAMILTON [of Indiana]. I thank the gentleman for
yielding me this time.
Mr. Speaker, I rise in opposition to the Michel resolution.
The question before us is of the highest significance: Who will
represent the people of Indiana's Eighth District in Congress? The
answer to that question ought not to be decided on partisan
grounds.
On January 3, 1985, the House of Representatives voted to seat
neither Mr. McIntyre nor Mr. McCloskey until the Committee on House
Administration exercised the House's constitutional power and
conducted its own review of the eighth district congressional race.
That was not a radical decision, nor was it unprecedented. We
did the fair and reasonable thing to protect the voters of the
eighth district, and to preserve the integrity of the House and its
constitutional prerogatives.
Let me summarize briefly the reasons for our action on January
3:
First, it was impossible on that date to tell who was the
winner of the election. The race was simply too close to call. We
could have seated one man or the other, only to unseat him later if
the final results showed a new winner.
That action indeed would have been radical, and would have
served neither the interests of the eighth district residents nor
the ideals of regularity and continuity in the electoral process.
Second, it seemed likely on January 3, that the recounts then
in progress would do little to help us determine who actually
received more votes. The regrettable fact is that the recounts were
being conducted under haphazard and inconsistent rules.
Third, article I, section 5 of the U.S. Constitution says that
``Each House shall be the Judge of the Elections, Returns, and
Qualifications of its own Members.'' This was not an election for a
State or county position. We were not bound by rules adopted by
State or local recount commissions. This was a Federal election,
and the Constitution imposed on us the responsibility to conduct
our own investigation and reach our own conclusion.
Fourth, our action on January 3 was based squarely on House
precedent. I refer to the Roush-Chambers case, which is a clear and
controlling precedent. There have been statements that Roush-
Chambers is distinguishable and should not apply. Those statements
are simply not correct. The record of the Roush-Chambers debate
plainly reveals a strikingly similar set of facts. Mr. Chambers was
the only claimant to the seat who had a certificate from the
Indiana secretary of state. There are repeated references in the
debate to the ``duly certified Member from Indiana.'' Yet, because
the outcome of the election was still in doubt, the House refused
to seat Mr. Chambers notwithstanding his due certification. The
precedent of that case is that the House may scrutinize the
certificate of election and, under unusual and compelling
circumstances, reject it.
Now we are asked to reverse our decision of January 3. But
there is no good reason to do so. In fact, the reasons for waiting
until the committee has inquired and reported are more compelling
than they were a month ago. Consider them briefly:
We still cannot honestly say whether it was Mr. McIntyre of Mr.
McCloskey who received more votes on November 6. Even though they
have been completed, recounts conducted under 15 different sets of
rules under an Indiana statute that the Republican leadership of
the Indiana Senate says is ``obsolete'' and which the Indiana
Legislature is now reforming, should not satisfy us. We do not yet
know the winner in this chaotic process which led eventually to the
disqualification of nearly 5,000 ballots. And we should not guess.
Some ballots were invalidated in some counties because they did
not carry the handwritten initials of poll clerks. In other
counties such ballots were counted. Other ballots were thrown out
in some counties because they did not have precinct numbers written
on them. In other counties such ballots were counted. Still other
ballots were canceled merely because of the masking tape on the
envelopes in which they were stored. A disproportionate number of
all disqualified ballots--about 20 percent--were cast in three
predominantly black precincts in the Evansville area.
Ballots were disqualified in nearly every county on the basis
of some technical deficiency. There was not even a semblance of
uniformity in the application of the disqualifying rules. In case
after case after case, ballots were not counted even though they
would have been perfectly good had they been cast a few miles away
in another county. Such an extraordinary, haphazard, and
inconsistent procedure for judging close elections should not be
the manner of election to this House, and should not be accepted by
this House.
Most of us are not comfortable with any procedure that
disenfranchises large numbers of citizens. We are especially
uncomfortable when we think that the disenfranchisement may change
the outcome of an election. We should not favor election procedures
that ignore the clear intent of the voter or otherwise compromise
the electoral process.
In my view, there are four guidelines for action that should be
recommended to the Committee on House Administration:
First, fair and reasonable recount rules should parallel
Indiana law and practice as closely as possible. We should not
attempt to get around Indiana law or practice, though we must
acknowledge that they are not always clear enough to be
determinative.
Second, the rules must be designed to protect against electoral
fraud. The authenticity of ballots is basic to the fairness of any
election. We must be assured that each ballot was cast properly.
Third, we should do our best to safe-guard the voting franchise
and respect, whenever reasonably possible, the participation of
voters. The recount rules should include every ballot from which
the intent of the voter can reasonably be discerned. The House has
traditionally applied principles which serve to give effect to the
reasonably discernible intentions of the voters. That precedent
should be followed here.
Fourth, the rules must be applied uniformly throughout the
counties of the eighth district.
I really do not know how the application of such a set of
recount rules would affect the outcome of the eighth district race.
Partisanship should be no concern of ours in this case. We ought to
be worried about the will of the eighth district voters and the
integrity of our own actions.
We should permit the Committee on House Administration to
discharge its constitutionally mandated function using fair and
reasonable rules of uniform application. Accordingly, I urge you to
vote against the Michel resolution.
Mr. Michel makes three basic arguments to support his
resolution to seat Mr. McIntyre. These arguments are:
First, Mr. McIntyre won the election on election night and was
properly certified at that time by the secretary of state;
Second, Mr. McIntyre won the election based on the now-
completed recounts, and as a result now holds a valid certificate
from Indiana;
Third, there is no House precedent for our refusal to seat Mr.
McIntyre.
Let me respond briefly to these arguments:
First, Mr. McIntyre did not win the election on election night.
The 15 original certificates, submitted by the 15 county clerks to
the Indiana secretary of state, gave Mr. McCloskey a 72-vote margin
of victory. The Indiana secretary of state, in violation of Indiana
statute, refused to certify Mr. McCloskey. His refusal was based on
rumors of error in the returns from one county, Gibson. However,
there is nothing improper on the face of that return, and there is
nothing legally improper in the return. Indiana law (I.C. 3-1-26-9)
gives the secretary of state no discretion to reject returns from
the county clerks. He is not empowered to act on rumors, but is
required to certify the election based on the face of the returns.
Those fifteen original documents show McCloskey to be the winner.
Several days after the election, Mr. McIntyre requested that
the ballots from Gibson be sealed until they could be examined to
determine the source of the discrepancy in the vote totals. The
ballots were opened and examined by the Gibson County recount
commission. Based upon that recount, the Gibson County clerk issued
an amended certification. The secretary of state immediately
certified Mr. McIntyre the winner on the basis of the recount in
Gibson County alone. The secretary of state subsequently refused to
change that certification each time new vote totals produced by
recounts in other counties showed Mr. McCloskey to be the winner.
Mr. Michel states that a Federal district court judge upheld
the secretary of state's action. In fact, the judge stated that the
secretary of state frustrated the processes for resolving the
election by failing to certify anyone based on the original
returns.
Second, The House should not accept the results produced by the
county recounts. The regrettable fact is that 15 different county
recount commissions adopted and applied their own sets of rules.
There is not the slightest semblance of uniformity from county to
county in the way these rules were applied. Ballots disqualified in
one county would have been perfectly good had they been cast in
another county. The effect of this haphazard application of rules
is that nearly 5,000 ballots were disqualified districtwide. Such a
procedure is improper for judging elections, and we should not
accept it.
Mr. Michel and Mr. Frenzel erroneously contend that Indiana law
requires such a hodgepodge of rules. But rules relating to
punchcard ballots were applied inconsistently in counties which
used punchcards, just as the rules were applied inconsistently in
the counties which used paper ballots. Indiana law regarding the
distinction between punchcard and paper ballots is confusing in any
case. As an example of this confusion, the Indiana General Assembly
refused to recognize a distinction between the two types of ballots
when it recently judged an election to the Indiana House of
Representatives.
Mr. Michel himself lists instances in which inconsistent rules
were applied. He attributes these inconsistencies to partisan
actions designed to disqualify votes for Mr. McIntyre. Inconsistent
rules were applied to disqualify votes for both Mr. McIntyre and
Mr. McCloskey. The House should not be concerned for whom a
disqualified ballot was cast. The House should be concerned with
protecting voters. We should attempt to give equal worth to the
legitimately cast ballots disqualified to Mr. McIntyre's detriment
as we do to the legitimately cast ballots disqualified to Mr.
McCloskey's detriment.
Third, our action on January 3 was based squarely on House
precedent. There is no meaningful distinction between this case and
the Roush-Chambers case. The record of debate in Roush-Chambers
plainly reveals a strikingly similar set of facts. The important
fact from that case is that Mr. Chambers was the only candidate for
the seat who was ever certified by Indiana. There is no mention in
the debate of any certificate for Mr. Roush, but there are repeated
references to the ``duly certified Member of Indiana''(Mr.
Chambers). Both Mr. Chambers and Mr. McIntyre were the only
claimants who held certificates. Yet the House refused to seat both
men until the Committee on House Administration has exercised the
House's constitutional power to judge the election, no withstanding
their certificates. In compelling situations, the House may refuse
to accept a certification from the State. The haphazard
disenfranchisement of 5,000 voters is compelling justification.
Mr. FRENZEL. Mr. Speaker, I yield 2 minutes to the
distinguished gentlewoman from Maryland [Mrs. Bentley].
Mrs. [Helen] BENTLEY [of Maryland]. Mr. Speaker, as the
representative of the Republican freshman class of 1984, I am here
to point out that appearances are deceiving in the election contest
in Indiana's Eighth Congressional District. A member of our class
has been certified twice by his State and yet he is being denied
his right to join us as a voting Member on the floor of the House
of Representatives.
What may appear to be just a case of a contested seat, with
both sides putting forth arguments to support the seating of their
candidate, goes much deeper than that. Whatever the momentary
advantages to the majority, seating the loser on the cynical basis
of sheer force will open a Pandora's box of evils on both the
Nation and on the entire Congress.
In recent years, individual Members of the Congress have
brought disrepute on this body by their private actions. By seating
the candidate who got the few votes, the House will now bring
itself into disrepute as an institution for a base political
motive.
The other party sheds crocodile tears about fairness until they
see an advantage in being unfair. For years they have claimed to be
the party of electoral reform, except in this body. What the
majority party in this House is attempting here is both to play in
the game and to referee it.
Can this be the view of the judicial function to serious
people? To judge a matter does not involve being a witness. It does
not allow creating facts. It certainly does not imply the creation
of rules after the game is over.
The majority cannot base its position on the contested election
statute. It cannot base its position on the facts. It cannot base
its position on the law in Indiana, and of prime importance, it
cannot base its position on the vote results in the Eighth District
of Indiana. Its sole recourse is to its presumed power in having
the votes to force an also-ran into a seat he had not been given by
the voters of his district.
Mr. WRIGHT. Mr. Speaker, I yield 3 minutes to the gentleman
from Maryland [Mr. Mitchell].
Mr. [George] MITCHELL [of Maine]. I thank the gentleman for
yielding this time to me.
Mr. Speaker, I listened very carefully to the arguments
advanced by the minority leader and they were persuasive. I also
listened very carefully to Sam Hall. I have a great deal of respect
for both of those gentlemen. However, both failed to mention
another dimension in this problem which clearly makes it a
compelling issue and, therefore, forces the House to do what it
must do. It is because of that compelling dimension, I must vote
against your motion Mr. Michel, and I would urge my other
colleagues to do so.
The compelling dimension for me is what appears to be a
flagrant, venal violation of civil rights. Now, argue all you want,
but that is an issue for me and it ought to be an issue for you if
you care about this country.
The reason I raise this issue is that in Vanderburgh County we
have seen some strange rules apply. Some of the ballots were
rejected because the poll worker initialed them instead of a judge.
Some of them were rejected because the poll worker initialed them
at one point and later the judge initialed them before taking them
to the election board. But the interesting thing is that of the
counties involved, of the five precincts involved, two were
concentrated in the black areas in the fourth ward. That is where
the area of concentration was.
I would assume that there must be action taken by those local
black citizens to protect their right to vote. It strains credulity
to assume that these different standards were applied in those
areas in Vanderburgh County as opposed to other counties where
there are not concentrations of black voters.
That is the compelling reason why I think the House must act as
it will act. That is the compelling reason why I cannot support Mr.
Michel's or Mr. Hall's position. We are talking about the most
fundamental right in this country, the thing that every President
and every Congress and every elected official has urged us to do:
Get people to get out and exercise their right to vote.
I suggest to you that anything that trammels or diminishes the
right to vote for a given category of people is grossly violative
of the principles for which we should stand. So I would urge my
colleagues, if for no other issue, to vote for the majority
leader's motion on the issue of the compelling problem of civil
rights violations.
Mr. FRENZEL. Mr. Speaker, I yield 5 minutes to the
distinguished gentleman from Michigan [Mr. Vander Jagt].
Mr. [Adrian] VANDER JAGT [of Michigan]. I thank the gentleman
for yielding this time to me.
Mr. Speaker, the essential facts in this case are very simple,
straightforward, and undisputed. Complexity and confusion serve the
purpose only of those who would obscure the truth, because I
honestly believe that when the truth is known and understood, you
will vote to seat Rick McIntyre this afternoon, as we should have
January 3.
Of course you are partisan Democrats, even as we are partisan
Republicans. Of course you would like to protect one of your own
and would reach as far as you reasonably can to do so, even as we
would.
But I believe--no, I know that you are Americans first, and I
believe when the crunch comes and the facts are known, you will
subordinate partisanship to two centuries of precedents in this,
the greatest deliberative body that the world has ever seen, noted
even more for its fairness than its partisanship. I believe that
when the crunch comes, you will vote not to sacrifice truth,
justice, and fairness on the altar of partisanship, even though you
have the votes to do it once the facts are known, because once the
facts were known and understood by a county Democratic judge, by a
Democratic Federal district judge, and by a bipartisan Indiana
Supreme Court, the judges ruled unanimously in favor of Rick
McIntyre, rejecting the arguments that have been raised so
eloquently here today, and the ruling was upheld that Rick McIntyre
was the duly certified winner In the Eighth Congressional District.
Once the facts were known to recount commissioners on the
county level, three-fourths of whom were Democrats, Rick McIntyre
was the winner of that recount by 415 votes. In fact, in
Vanderburgh County there were 2,500 votes disallowed in
predominantly blue-collar white precincts, to which McCloskey made
no objection before on the same basis there were 1,000 votes
disallowed in the black precincts. As a matter of fact, if you put
back in every vote that was disallowed in the recount by counties,
11 out of 15 which were Democratic, McIntyre wins by 34 votes.
No matter how partisan you are, you cannot escape four
undisputed simple facts. First, on election night results, Rick
McIntyre was the winner.
Fact No. 2: On the basis of completed and corrected totals from
the counties, all of them certified to the secretary of state as
complete and correct, McIntyre was the winner and was so certified.
Fact No. 3: On the basis of the recount, McIntyre is the winner
by 450 votes.
And fact No. 4: For two centuries, in 82 out of 82 cases, when
there was a disputed election, the individual who had the due
certificate of election from that State was seated pending the
resolution of the controversy or of the recount.
Now, the case has been made that there is one exception, and in
that exception from Indiana there were two people who showed up,
each of them had a certificate of election, and the House wisely
said, ``You both stand aside until we can figure out which has the
valid certificate of election from that State.''
It is a little bit like an umpire in a baseball game calling
``Strike three, you're out.'' No matter how much you might disagree
with the call on that pitch, it stands because the umpire is duly
authorized to make that call. Now, in elections, unlike in baseball
game, there is an appeals process called recount or referral to the
House Administration Committee, and that is fine. But the original
call by the duly authorized umpire or official of that State stands
until such time as there is an overwhelming case to reverse that
original decision, a case beyond on testimony, not press releases,
on evidence taken under oath, not on charges and claims.
It seems to me that we have a clear-cut case here of whether or
not we are going to undo a mistake that was made on January 3 when,
for the first time in two centuries, we refused to seat a duly
authorized winner.
The majority made the case on January 3 that ``We can't seat
him because there is a recount that is in process, and it would be
premature,'' and the argument was made very persuasively that we
ought to wait until the recount is over. The recount is over, the
final count is in, and McIntyre is an even bigger winner. That
excuse is gone.
Mr. Speaker, let us seat him as we should do under the
Constitution.
Mr. WRIGHT. Mr. Speaker, I yield 2 minutes to the gentleman
from Indiana [Mr. Jacobs].
Mr. JACOBS. Mr. Speaker, first I would like to correct the
first fact of my friend, the gentleman from Michigan, that on
election night the Republican candidate was declared the winner.
The fact----
Mr. VANDER JAGT. Mr. Speaker, will the gentleman yield?
Mr. JACOBS. Of course not. I only have 2 minutes.
Mr. VANDER JAGT. You just made a misstatement of fact as to
what I said. Could I correct it?
The SPEAKER. The gentleman from Indiana [Mr. Jacobs] controls
the time.
Mr. JACOBS. Mr. Speaker, is this the same gentleman who was
calling for fairness? I only have 2 minutes.
The fact is that 15 counties certified their votes and Mr.
McCloskey was the winner by 72 votes. The fact is that the
Republican secretary of state-
Mr. VANDER JAGT. Mr. Speaker, will the gentleman yield?
Mr. JACOBS. Mr. Speaker, could I have regular order, please? I
did not badger the gentleman from Michigan when he was stating his
facts.
The fact is that the secretary of state waited until a
correction was made in one county before certifying. The fact
further is that he certified before the recount was done.
Another fact, is that in the Indiana State Legislature right
now there is a contested election, and in that contested election
the House of Representatives has thrown out the very rules on which
this recount relied and counted all the votes and seated the
Republican by a majority of Republican votes in the State house of
representatives.
The other fact is about Powell versus McCormack. I have great
affection for the gentleman from Texas, and I am sure the error was
unintentional, but Powell versus McCormack turned on whether the
House of Representatives, by a simple majority vote, could refuse
to seat a person whose votes were not in contest, whose citizenship
of the State from which he was elected was not in contest, and
whose citizenship of the United States for 7 years, as provided by
the Constitution, was not in controversy. The controversy was
whether he was a good guy or a bad guy, and the U.S. Supreme Court
held that the House of Representatives by a simple majority vote
could not make that judgment, they would have to do it by a two-
thirds vote. The only judgment they could make by a simple majority
vote would be who got the most votes and whether the person was
qualified in the other two respects I mentioned.
Let me finally say this, Mr. Speaker: I have been disillusioned
today. I have always had a profound respect for my Republican
friends and their cold efficiency, if nothing else, and to think
that they would have to disenfranchise 5,000 of my fellow Hoosiers
in order for their man to win by only 400 votes Is disillusioning.
Mr. FRENZEL. Mr. Speaker, I yield 3 minutes to the
distinguished gentleman from California [Mr. Thomas].
Mr. [William] THOMAS of California. Mr. Speaker, I feel
compelled to take the well as a member of the task force charged
under House Resolution 1 to get to the bottom of this election
question in Indiana's Eighth District.
On January 3, a prudent person could well have taken a wait-
and-see attitude and said, ``Give Indiana the benefit of the doubt,
let them recount, don't seat anyone for the time being.'' Today
that process is behind us. Indiana has recounted. Today the prudent
choice Is to seat Mr. McIntyre conditionally pending the outcome of
the task force's investigation, which for me will be guided by a
requirement that the political chips will fall where they may.
Mr. Speaker, for me, my personal integrity, this institution's
integrity and my oath of office are at stake. If we seat Mr.
McIntyre conditionally, this House loses nothing. Our power is
absolute in this area. But when you exercise absolute power, you
should be absolutely sure.
By voting not to seat today, you repudiate Indiana's recount
statutes; you repudiate the citizens of Indiana, white and black,
Republican and Democrat, who participated in that recount
procedure; you condemn them without a hearing; you reject Indiana's
efforts as unfair, corrupt, biased, or prejudiced without letting
them present their case.
This is what the task force is supposed to do and will do. Let
us examine the facts in an orderly forum under an orderly process.
Would you want anything less for your State and your people?
If you know that the election and the recount in Indiana's
Eighth Congressional District was so flawed by design or accident
as to be repudiated now on this floor, then vote no to seat. But if
you do not know with absolute certainty, if you think that an
orderly investigation of the facts, at no risk to this institution
and its powers, is the very minimum that you would want for your
State and your people, then you must vote to seat Mr. McIntyre.
Seat Mr. McIntyre conditionally and let those of us narrowly
charged with the awesome duty of protecting our free and fair vote
do so in a forum where everyone's rights can be fully exercised. A
vote to seat protects all of us. A vote not to seat puts us all at
risk individually, institutionally and constitutionally. When you
vote, ask yourself, are you absolutely sure.
Mr. WRIGHT. Mr. Speaker, I yield such time as she may consume
to the gentlewoman from Illinois [Mrs. Collins].
Mrs. [Cardiss] COLLINS [of Illinois]. Mr. Speaker, I am
outraged by the disenfranchisement of 5,000 black voters in Indiana
during the Indiana election under discussion today. These uncounted
votes came from three to four election precincts which were
predominantly black. It is obvious which candidate would have
gained these votes. Thus, it is equally obvious which party was
responsible for not counting them.
I believe that this act of disenfranchisement is more important
than even the final disposition of the House seat in question. For
it does not matter who serves in Congress if all the people are not
permitted their constitutional right to vote.
I am particularly angered by the fact that black votes were
singled out as the ones that did not count. This has happened so
many times in our history-yet I refuse to accept this injustice.
At best, the inconsistent and contradictory standards applied
by some of the 15 counties in the recount were the result of
inadvertent mistakes on the part of election officials. At worst,
they are a blatant attempt on the part of the Republicans to steal
the election.
If House Democrats wanted to be partisan, they could have
seated Frank McCloskey on January 3 on the basis of his winning
margin on election night. We did not do that. Instead, we referred
the matter to the House Administration Committee.
In doing so, the House has simply fulfilled its constitutional
responsibility to judge the elections, returns, and qualifications
of its own Members. The House is not imposing any additional
qualifications on its Members, and is therefore in compliance with
the Supreme Court's rulings on this matter.
Instead by referring this matter to committee, the House is
attempting to make certain that the election procedures were fair
and that the candidate receiving the most votes is seated. I have
complete faith that the House Administration Committee will act
with speed and integrity to decide which candidate in this
contested election actually received the most votes.
Have we returned to the days of poll taxes, property
requirements for voting, and other ruses to keep the black
community's voice from being heard? Are we back again at the days
of Jim Crow?
No, we are not returning to the methods of the past but, just
the same, I fear we are going back to the discrimination that has
so colored voting rights in this Nation.
Haven't we learned that we cannot take away any citizen's vote
without threatening every citizen's vote? If Indiana throws out
black votes today who can predict what State will throw out the
votes of another group in the next election.
This is truly a frightening precedent that the vote counters in
Indiana set back on November 6, 1984. It will not go unnoticed or
unchallenged. Black and all other voters will not be
disenfranchised for anybody's political advantage.
Listening to this debate, I am greatly disturbed by this unjust
attempt to deny Representative McCloskey his seat in Congress. It
is the Republicans, not the Democrats, who are distorting the
election results and recount process for partisan advantage.
Mr. WRIGHT. Mr. Speaker, I yield 1 minute to the gentleman from
New York [Mr. LaFalce].
Mr. [Joseph] LaFALCE [of New York]. Mr. Speaker, we must act as
judges rather than as partisans in this case. That is why I called
up Bob Michel's office and said, ``Send me every piece of
information you have on this case so I can sit as a judge rather
than as a partisan.''
There is one issue, and it is not whether we should seat Mr.
McIntyre permanently, but whether we should seat him temporarily,
and I understand that.
It is my judgment we ought not to. There are precedents going
each way, precedents where we have seated individuals temporarily
and where we have not.
What are the deciding factors in this case which should lead us
not to seat him? I think two.
First of all, the certification in question that we are dealing
with, except that Mr. McIntyre won by about 400 votes or so, came
after this House voted to give jurisdiction on the issue to the
House Administration Committee, and I do not think we should be
backtracking.
Second, it is the nature of Indiana's law and practices. The
fact of the matter is that they do have approximately 15 different
standards. Given the conjunction of those two circumstances that we
already assumed jurisdiction prior to this certification and the
fact that they used 15 different sets of standards in determining
the merit of the various ballots chosen, we ought not to seat
temporarily. We ought to wait until the House Administration
Committee judiciously renders Its final nonpartisan decision.
Mr. FRENZEL. Mr. Speaker, the minority in this House is
accustomed to being kicked around by majority Democrats. In the
more than 14 years I've been here, that's been the rule in
everything we do.
Republicans who make up 42 percent of the House get only about
20 percent of its committee staff. The majority Democrat caucus has
demanded extraordinary majorities on all committees. At one time
they required a 2-to-l-plus-1 ratio on conference committees. That
meant Republicans who never had less than 35 percent of the House
frequently had less than 25 percent representation on conference
committees.
This session, the committee ratios have been improved, but the
most important committees, Ways and Means, Appropriations, and
Rules still have indefensible, distorted committee ratios designed
to cheat Republicans out of whatever modest victories they have won
in the last election. Yesterday the minority on Judiciary Committee
had to walk out of committee to dramatize the spiteful 2-to-1-plus-
1 ratio on subcommittees.
Our House procedures are slanted to keep the minority
suppressed. Probably alone among parliamentary bodies, the House
allows its committees to do business with less than a 50-percent
quorum. The minority's right to demand a quorum on the floor has
been substantially reduced.
When minority amendments to appropriations bills were
occasionally being passed, majority Democrats made such amendments
out of order. When other Republican amendments looked attractive,
the majority used its 2-to-1-plus-1 majority on the Rules Committee
to pass rules foreclosing debate and limiting amendments.
These abuses of majority control are just the way things are
here. Most Democrats don't even think about it. They think the
minority was created to be abused by the majority. They don't think
of their conduct as abusive. They think it is the natural order.
Against this historical background of suppression comes the
McIntyre case. I suspect most Members don't know much about it.
Democrats who don't understand the facts and fundamentals did, and
may again, simply blindly follow their leadership in the mistaken
notion that this is just another opportunity to slap down the
minority.
But this isn't just another case. It is the ultimate abuse of
representative government in our Republic. A member-elect of this
House, duly elected and certified under State laws of Indiana-then
duly recertified and reaffirmed by a careful recount process under
a recent State law-has been denied his seat.
His constituents have been abused and insulted. The State of
Indiana has been abused and insulted. This House has been degraded.
The Constitution has been defiled.
And to what purpose? Plain and simple, it is to steal an
election. The purpose is to take unlawfully a seat in Congress from
a Republican who won it, so that the seat can be given to a
Democrat who lost the election.
On January 3, I called this a naked abuse of power by an
arrogant, ruthless majority. After the completion of the recount,
the majority leader's motion seems to make that description a timid
one.
Make no mistake about it. That was no procedural vote on
January 3. This is no simple procedural vote today, nor is it a
little partisan kick at the minority to keep it from acting uppity.
It's a supervote, a blockbuster.
It's a vote where each of you can sustain, or overturn, an
atrocity, a rape of our fundamental theory of elective government.
The vote on January 3 was unprecedented. The new precedent the
House set then puts every seat in every State where the election
was close in jeopardy.
That vote pitted the House majority Democrats against the
people of Indiana, the State of Indiana, and against the very
foundations of this Republic. The people, the State, and the
Republic lost.
When historians write about this case, it will probably be
subtitled, ``The House versus the State of Indiana.'' But, after
this precedent, it could be any State, mine or yours. In my
judgment, this case should be titled, ``House Democrats versus
Elective Government.''
On January 3, I gave some examples why this case differed
markedly from the Roush case. I repeat them now for the record:
First, there is a clear certificated winner here; second, there is
no question about who won; third, there are no allegations of
fraud; fourth, there has been no contest filed under our FCEA;
fifth, there is a modern recount law and it has affirmed the
McIntyre victory; sixth, the House now has a FCEA.
Derchler's precedents clearly identifies the Roush case (ch. 8-
16.2) as one where a certificate of election was contradicted. If
anyone believes the Roush case is a reasonable precedent, it can
only mean they have not studied either case, or the events which
occurred in between.
No amount of partisan sophistry can erode the fact that
Congressman-elect McIntyre was elected on November 6--that he
received an election certificated from the State of Indiana--and
that he should be seated. No other Member of this House has been
denied a seat when the certification process has been clear and
unchallenged.
Then came the clincher. On February 5, this House was
officially notified that a recount, under the laws of the State of
Indiana, supervised by judges in each of the 15 counties, conducted
by recount commissioners chosen by the courts, has been completed.
The secretary of state writes that the recount reaffirms the
earlier certification of Congressman-elect McIntyre.
During the debate on January 3, proponents of the resolution to
deny McIntyre his seat, said the situation was confused because a
recount was in process. I wasn't a bit confused. But, if any other
Member was, there ought to be no need for confusion now after the
recount.
Having lost the election, having lost the attempt to confuse
the election result by claiming victory before corrected county
returns were filed, and having lost the recount, election stealers
are, of course, still trying to spread more confusion.
They say Republicans controlled and subverted the recount in
nefarious ways. That doesn't wash because the county judges appoint
recount commissioners. In Vanderburgh County, in which most changes
were made in the recount, and in which McCloskey forces allege
shenanigans, the Democrat county judge selected 2 Democrats and 1
Republican as recount commissioners.
The most aggressive Democrat commissioner there insisted on
strict compliance with Indiana law. Hundreds of ballots,
particularly absentee ballots for McIntyre, were declared invalid
without a peep out of the McCloskey forces. Later, when several
hundred ballots in black precincts were Invalidated because the law
requires punch card ballots to carry precinct numbers, the
McCloskey forces wailed that Republicans had done something wrong.
The problem here is that every time the McCloskey crowd cries
foul, its allegations are promptly refuted, but it then promptly
raises another specious complaint, That's ridiculous. The burden of
proof is not on McIntyre. He was elected. He was certified.
The burden of proof Is on the loser. The loser has only blown
smoke. He has not put forward convincing proof that the McIntyre
certificate and reaffirmation is flawed. He lost first in the
election, then in court, and then in the recount. The only place he
can win is in this House, and only then if the House majority
Democrats are shameless enough to declare a loser the winner.
The district court's response to McCloskey is instructive here.
The court said if it looked at all the county reports, McCloskey
loses. If it looked at the Gibson recount, he loses. His remedy
lies in the Federal Contested Elections Act.
Despite what the court told him, McCloskey did not file a
contest under that act. He did not do it because he had no case.
Instead, he is now trying to frustrate that act by appealing to his
friends in the House majority. The only way he can succeed-through
confusion.
It's hard to be unemotional, dispassionate, and calm while
being mugged. If I sound emotional, It is because I am. This is not
garden variety, minor league suppression of the minority. This is
not run-of-the-mill partisan game playing. This is murder.
If you don't understand this vote, please find someone who can
explain it to you. Some of you are going to be terribly
embarrassed, and not just by the lawsuits that will inevitably
follow a vote to deny again the seat legally won by Richard
McIntyre.
Please think about what representative government means. Then
vote to seat this lawfully elected Congressman.
Mr. [Trent] LOTT [of Mississippi]. Mr. Speaker, in reviewing
House precedents, I went back to volume one of Hinds' Precedents
which was published in 1907. There you will find in chapter 18 case
after case after case in which the precedent is upheld, and I
quote, that ``The House admits on his prima facie showing and
without regard to final right, a Member-elect from a recognized
constituency whose credentials are in due form and whose
qualifications are unquestioned.''
But in reading over those earlier cases, the more human and
institutional aspect of this precedent was brought home in the
debates of those who have preceded us in this Chamber. Perhaps the
most compelling case was an 1871 challenge in which someone
objected to the seating of a minority party Member, even though his
credentials were in order. A Member of the majority party,
Congressman Dawes of Massachusetts, who served on the elections
committee, rose in the well to defend the temporary right of his
challenged minority party Member to a seat. To quote from
Congressman Dawes' remarks:
Sir, I, as the organ of the Committee on Elections for twelve years, have
time and again so stated . . . that the certificate of a Member, where
there was no allegation against his eligibility, of his lack of loyalty, or
other ineligibility, entitled him to be sworn in.
Mr. Dawes went on, and again I quote:
It has been the struggle during all these disturbed times of that
Committee on Elections to hold to the precedents and to the law against
passion and against prejudice, so that if the party should ever fall into a
minority, they should have no precedent of their own making to be brought
up against them to their own great injury.
My colleagues, what are we doing here? What about the
constitutional right of the people of the Eighth District of
Indiana, to have a representative in the body? Where will it end?
Will winners of close elections summarily not be seated if he or
she is of the wrong party? Will it eventually extend to positions
taken in campaigns, or primary results? Mr. Speaker, it is wrong
not to seat Congressman-elect McIntyre.
And Mr. Dawes concluded his remarks by beseeching his majority
party colleagues, and I quote:
Now, with nothing to be gained, but with everything to be lost, by the
precedent now sought to be established, I entreat the House to adhere to
the ancient rule.
Mr. Dawes prevailed in that instance as the House voted 42-147
against the motion not to seat the challenged Member.
Mr. FRENZEL. Mr. Speaker, how much time do I have?
The SPEAKER. The gentleman has 2 1/2 minutes remaining.
Mr. FRENZEL. Mr. Speaker, I yield myself the remaining time.
general leave
Mr. FRENZEL. Mr. Speaker, I ask unanimous consent that all
Members may be allowed 5 legislative days in which to revise and
extend their remarks on the item of business presently under
consideration.
The SPEAKER. Is there objection to the request of the gentleman
from Minnesota?
There was no objection.
Mr. FRENZEL. Now, Mr. Speaker, there is not time to do
everything. First let us talk about the 5,000 invalidated votes
that Republicans stole; 96 percent of the invalidated votes in the
recount were done by a recount commission appointed with 2-to-1
Democrats, by a Democrat judge, hardly a Republican shenanigan.
With respect to the allegation of the gentleman from Indiana
[Mr. Hamilton] that there are different rules, of course there are
different rules. If the gentleman knew his own State law he would
know they have rules for paper ballots, punchcards, and machines.
Six counties were on punchcards, six were on machines, and three on
paper ballots. Of course they were different.
With respect to the disenfranchisement of black voters, the
judge, the Democrat judge, instructed the 2-to-1 recount
commissioners on Indiana law and on the Supreme Court decisions
which related to it.
Punchcards, when they do not have anything on them other than a
punch in Indiana have got to be thrown out. That law was followed
scrupulously.
Finally let me say that all these items are smoke being blown
over the problem by the McCloskey forces. McIntyre has no burden of
proof. He won. McCloskey has the burden of proof. He lost the
election. He lost in district court and he lost the recount. The
only way McCloskey can win is if he confuses his cronies so that
they violate the laws of the United States and the State of Indiana
and vote him into the Congress.
This is not a procedural vote. It is not a vote on the
integrity of any committee. It Is not the usual political squabble.
It is not just Democrats picking on Republicans so the suppressed
minority will not get uppity.
This is a blockbuster vote. This is murder. This is a rape of a
system. The issue is the ultimate abuse of representative
government. We have an elected, certified Member.
Mr. WRIGHT. Mr. Speaker----
Mr. FRENZEL. Mr. Speaker, I did not yield to the gentleman. Was
he making a point of order?
The SPEAKER. The Chair would probably understand, as does the
gentleman, what the gentleman from Texas was doing. He was
questioning whether the words should be taken down or not. But no
point of order was made.
The gentleman from Minnesota will continue.
Mr. FRENZEL. Mr. Speaker, may I ask the Speaker If I might get
an appropriate amount of time extra, as the gentleman from Texas
did?
The SPEAKER. The gentleman will continue.
Mr. FRENZEL. I thank the Speaker. If I may continue.
The SPEAKER. The remarks of the gentleman from Texas are not
taken out of the time of the gentleman from Minnesota.
Mr. FRENZEL. Mr. Speaker, an elected certified Member of
Congress whose certification has been reaffirmed by a recount under
the appropriate State law has been voted once in an atrocity
perpetrated by this House not to take the seat which he himself
won. If we reaffirm that outrage today we are bringing further
shame upon the House.
I would ask, I would beg, I would implore every Member of the
House to look at the facts. Forget about your partisan
inclinations. Think about what representative government means to
you. Think about what your constituents think when they cast a vote
for you or for your opponent in an election.
Having completed that meditation, I would respectfully request
and suggest that every Member of this House vote down the motion to
refer and to vote to seat Rick McIntyre, the rightful winner in
Indiana's Eighth District election.
The SPEAKER. The time of the gentleman from Minnesota [Mr.
Frenzel] has expired.
The Chair recognizes the gentleman from Texas [Mr. Wright].
Mr. WRIGHT. Mr. Speaker, there has been a veritable rhetorical
orgy attempting to portray what is being done here today and what
was done on January 3 as the theft of an election or as some
surreptitious attempt to seat a Democrat because he is a Democrat.
Let us get it real clear.
We are not trying to seat anybody today. We are trying to allow
the orderly procedures of the House to be followed. This House
voted on January 3 that the matter should be referred to the House
Committee on Administration. It was so referred.
Now, lest anybody think that committee, which has an
unblemished record for nonpartisanship, plans any delays in its
findings, I want to yield to the chairman of that committee or to
the gentleman from Washington [Mr. Foley] who is a member of that
committee to give us assurances that it intends to act and report
back if possible within 45 days.
Mr. ANNUNZIO. Mr. Speaker, will the gentleman yield?
Mr. WRIGHT. I yield for that purpose, I do.
Mr. ANNUNZIO. Mr. Speaker, as the gentleman knows, in an
earlier statement I have instructed this task force to move as
quickly as possible toward a resolution of this unfortunate
situation. As chairman of the full committee, I have already
consulted with the gentleman from California [Mr. Panetta], our
colleague, who is chairman of the task force, and I have asked him
not only to move as quickly as possible toward a resolution of this
problem, but to complete its work within 45 days on or before April
30.
Mr. WRIGHT. Mr. Speaker, I thank the gentleman for that
assurance.
Mr. [Leon] PANETTA [of California]. Mr. Speaker, will the
gentleman yield?
Mr. WRIGHT. I will yield to the gentleman who is the chairman
of the subcommittee.
Mr. PANETTA. I thank the gentleman.
Mr. SPEAKER. For what purpose does the gentleman from Indiana
rise?
Mr. MYERS of Indiana. Mr. Speaker, I ask for a parliamentary
inquiry.
The SPEAKER. Will the gentleman yield for that purpose?
Mr. WRIGHT. I do not yield for that purpose. Mr. Speaker. I
have already yielded to the gentleman from California who is
chairman of the task force investigating this election contest.
The SPEAKER. The gentleman from California will kindly stand at
the microphone and be on his feet.
Mr. PANETTA. I thank the gentleman for yielding. I had not
intended to speak on this issue because I have the responsibility
on the task force to look at this issue. I consider this one of the
most serious responsibilities that I have assumed since becoming a
Member of this institution.
It is my approach that this matter will be handled
expeditiously and on a bipartisan basis because we do have to set
common procedures and determine the vote.
I am in concurrence with the chairman and have indicated to the
chairman that it is our intent that within 45 days to attempt to
report back to the House, assuming that we have cooperation within
the task force.
Mr. WRIGHT. I thank the gentleman for that statement.
Mr. Speaker, I want to address myself in the few remaining
moments to the questions that have been raised.
First is a statement on the part of the minority that somehow
we are breaking precedent. That, of course, is not true. It is not
the first time we have refused to seat either claimant,
notwithstanding the possession by one of a certificate.
In 1961, in the contest between Roush and Chambers, it was
stated clearly on the House floor by the then minority leader, Mr.
Halleck from Indiana, that Mr. Chambers has a certificate of
election from the State of Indiana and should be seated. In that
case the House wisely chose to seat neither Mr. Chambers and Mr.
Roush, and pursuant to the inquiry and the counting of all of the
votes, Mr. Roush was declared the due winner.
Citing Deschler's Precedents:
Thus the adoption of House Resolution 1 automatically nullified the
certificate of election which had been issued by the Governor of Indiana.
Further citing Deschler's Precedents, and I think this is
vital:
Although the House of Representatives generally follows State law and the
rulings of State courts in resolving election contests, this is not
necessarily so with respect to the validity of ballots where the intention
of the voter is clear and there is no evidence of fraud.
What is at issue here today is the insistence of the House
Administration Committee that all ballots of all qualified voters--
Republican, Democrat, or what have you--shall be counted. That is a
sacred right.
This is an unusual case. More than 5,000 voters were
systematically disenfranchised upon often flimsy technicalities.
Now, is it not important that those 5,000 voters shall have their
ballots counted? I do not know who the winner will be. I do not
think members of the committee know who the winner will be.
The gentleman from Michigan [Mr. Vander Jagt] has asserted that
if all of the ballots are counted then Mr. McIntyre will be the
winner. If that is the case, so be it. But let us have the ballots
counted. That is the most sacred thing available in this democracy
of ours.
Let me cite some more precedents from law, the very State of
Indiana itself. The Indiana Supreme Court has held that a precinct
clerk's initials do not need to be inscribed on a ballot; yet many
of these uncounted ballots were disallowed on that ground. The
Indiana State Legislature, acting very recently, overruled an
earlier local election commission ruling in another contest. The
legislature held that strict adherence to this requirement was
unfair to the voters.
These people have been disenfranchised through no fault of
their own, Mr. Speaker. I should like to recite the precedent in
Moss versus Rhea, which held in another case that the failure of
the clerks to initial the ballots was a mistake of which the voter
himself was not a participant, and that the ballots should be
counted.
Further, from McCrary, a Treatise on the Law of Elections,
1897:
Acts of election officials are merely directory and the voter will not be
disenfranchised for failure of these officials to perform their duty.
Further, in the case of Taylor versus England, 6 Cannon's
Precedents, and this is a critical case:
The House of Representatives should not consider itself obligated to
follow the drastic statute of the State of West Virginia.
Another instance of another State.
Under the provisions of which all ballots not personally signed by the
clerks of election in strict compliance with the manner prescribed had been
rejected, but should retain the discretionary right to follow the rules of
endeavoring to discover the clear intention of the voter.
That is what is sacred. That is what is at issue. The intent of
the voter, and his or her right to be counted.
If we declare a winner today before those votes have been
counted, then we will be ratifying decisions which disenfranchised
more the 5,000 Indiana voters.
No question has been raised so far as I am able to discern, but
that those voters were qualified voters. No question has arisen
alleging fraud. The voters came to the polls. They voted. Thousands
of their votes were disallowed. That Is the question which requires
B, committee investigation and finding.
The SPEAKER. All time has expired.
Mr. WRIGHT. Mr. Speaker, I move the previous question on the
motion to refer.
parliamentary inquiry
Mr. FRENZEL. Mr. Speaker, I have a parliamentary inquiry.
The SPEAKER. The gentleman will state his parliamentary
inquiry.
Mr. FRENZEL. Mr. Speaker, my inquiry is will the Speaker
protect my request to strike the intrusion into my discussion by
the distinguished majority leader, the gentleman from Texas [Mr.
Wright], under Deschler's Precedents, and this is volume 8, section
24.65, which says that----
A Member desiring to interrupt another in debate should address the Chair
for permission. If the Member having the floor declines to yield, he may
strike from the record.
The SPEAKER. As to the remarks of the gentleman from Texas [Mr.
Wright], which were not a point of order in view of the fact that
the gentleman from Minnesota [Mr. Frenzel] had the time and did not
yield to the gentleman from Texas [Mr. Wright], the remarks of the
gentleman from Texas [Mr. Wright] will not be printed in the
Record.
Mr. FRENZEL. I thank the Speaker.
The SPEAKER. The question is on ordering the previous question.
The previous question was ordered.
The Clerk will report the motion to refer.
The Clerk read as follows:
Mr. Wright moves to refer the resolution to the Committee on House
Administration.
The SPEAKER. The question is on the motion to refer offered by
the gentleman from Texas [Mr. Wright].
The question was taken; and the Speaker announced that the ayes
appeared to have it.
Mr. FRENZEL. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
221, nays 180, answered ``present'' 1, not voting 30, as follows:
[Roll No. 9] . . .
Mr. REGULA changed his vote from ``yea'' to ``nay.''
So the motion to refer was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
On February 6, 1985, the Committee on House Administration
appointed a task force of three Members to investigate the
circumstances of the election. The committee did not impound or
subpoena the ballots at issue, but relied on state procedures that
ensured the security of the ballots. The task force informed all county
clerks that the committee was investigating the matter, and that all
documents relating to the election should be safeguarded.
On February 21, 1985, the task force adopted an organizational
memorandum outlining the procedures that it would abide by in
determining the final right to the seat for the Eighth District of
Indiana. Included in this memorandum were ballot counting rules for
recounting ballots and resolving issues surrounding disputed ballots.
The task force was mindful of two alleged deficiencies with the state
recount procedures: (1) that overly-stringent application of ballot
counting rules invalidated many legal ballots; and (2) that ballot
counting rules varied considerably from county to county.(7)
---------------------------------------------------------------------------
7. H. Rept. 99-58, 99th Cong. Sess. p. 16.
---------------------------------------------------------------------------
The committee identified 22 different categories of problematic
ballots that, under state law, could be subject to invalidation. The
committee studied Indiana's election statutes, the decisions of its
courts in election cases, and the official instruction manuals provided
to election officials. After reviewing these sources, the committee
concluded that a strict adherence to Indiana law could provide the
necessary uniformity across counties and precincts, but at the expense
of disenfranchising thousands of Indiana voters for mere technical
errors. Rather than cause this potential disenfranchisement, the
committee instead opted to ``count all the votes where election
official error rather than voter error resulted in
disenfranchisement.''(8)
---------------------------------------------------------------------------
8. Id. at p. 22.
---------------------------------------------------------------------------
The committee also reviewed House precedents on election contests
to determine their applicability to the case before it. The committee
reiterated that state election law may be persuasive to the House (and,
indeed, the House has generally shown much deference to state statutes
and court decisions) but it is not dispositive. Further, while the
House ``is not legally bound to follow state law, there are instances
where it is in fact bound by justice and equity to deviate from
it.''(9) The committee also noted that the House has
traditionally been reluctant to disenfranchise voters based on
technical errors made by election officials. Where the intent of the
voter could be ascertained, the general rule has been that the ballot
should be counted.(10)
---------------------------------------------------------------------------
9. Id. at p. 23.
10. See Sec. 12, supra.
---------------------------------------------------------------------------
From these considerations, the task force was able to devise a set
of counting rules to evaluate each of the 22 different categories of
ballots subject to invalidation under Indiana law. The committee
determined that ``these rules come as close as possible . . . to
establishing a fair standard for determining the will of the majority
of voters'' in this election.(11) The committee then
commenced a full recount of all ballots cast in the election.
---------------------------------------------------------------------------
11. H. Rept. 99-58, 99th Cong. 1st Sess. p. 32.
---------------------------------------------------------------------------
The majority and minority parties both agreed that James Shumway,
an independent election official and future Secretary of State for
Arizona, should supervise the recount, assisted by auditors from the
General Accounting Office (now the Government Accountability Office).
The recount began on March 26, 1985.(12)
---------------------------------------------------------------------------
12. For an announcement by the chair of the task force (Rep. Leon
Panetta of California) regarding the status of the recount, see
131 Cong. Rec. 6346, 99th Cong. 1st Sess (Mar. 26, 1985).
---------------------------------------------------------------------------
During the course of the recount, the auditors discovered
tabulation errors in five counties--enough to overcome the vote margin
from the state certified results and give Mr. McCloskey a plurality.
Nevertheless, the recount continued until all ballots had been
examined.
The task force further noted three additional categories of ballots
discovered during the recount process that had not been anticipated
under the task force's recount procedure rules. The report filed by the
committee included a detailed examination of each category, with an
explanation of how the standard used in each case advanced the goal of
counting all valid ballots.
When the task force had completed its recount, the final tally
indicated that Mr. McCloskey had received 116,645 votes and Mr.
McIntyre had received 116,641 votes--a margin of victory of four votes.
Members of the minority party filed a strenuous dissent to
accompany the committee's report, calling the recount process a
``shameful exercise . . . of partisan political
power.''(13) The dissent argued that it was contrary to
precedent not to seat a Member-elect who appeared with a validly-issued
certificate of election, as Mr. McIntyre had done. They cited earlier
cases standing for the proposition that the mere closeness of an
election does not raise the presumption of fraud or irregularity. They
further argued that the House should at least have seated Mr. McIntyre
when the results of the state recount were known on February 7, 1985.
---------------------------------------------------------------------------
13. H. Rept. 99-58, 99th Cong. 1st Sess. p. 45.
---------------------------------------------------------------------------
The dissent also took issue with Mr. McCloskey's failure to proceed
under the FCEA, thus avoiding the need to meet burdens of proof
established by the statute. It also argued that the majority had not
shown proper deference to state laws, but instead substituted its own
procedures for evaluating disputed ballots. The fact that the committee
chose to conduct a recount itself was criticized, citing prior cases
where the committee demonstrated great reluctance in examining ballots
where state recount procedures were already in place.
Finally, the dissent criticized the recount process itself,
accusing it of exhibiting the same inconsistencies and potential for
disenfranchisement as the state election procedures. It was
particularly critical of the categories of ballots that were not
initially anticipated by the task force's counting rules, and thus
required establishing procedures for evaluating them during the recount
itself. The dissent concluded by urging rejection of any resolution to
seat Mr. McCloskey.
The committee filed its report on April 29, 1985. On April 30,
1985,(14) a minority party Member (Rep. William Frenzel of
Minnesota) offered a resolution as a question of the privileges of the
House to declare the seat for the Eighth District of Indiana vacant.
The House rejected the resolution, with 200 Members voting yea, 229
voting nay, and four Members not voting.
---------------------------------------------------------------------------
14. H. Res. 148, 131 Cong. Rec. 9801-21, 99th Cong. 1st Sess.
---------------------------------------------------------------------------
On May 1, 1985, the chair of the committee's task force (Rep. Leon
Panetta of California) offered a privileged resolution to resolve the
election contest.(15) The resolution declared that Mr.
McCloskey had been duly elected and was entitled to a seat in the 99th
Congress. The minority raised the question of consideration against the
resolution, which was decided in the affirmative--242 yeas, 185 nays,
and six not voting. After debate, the minority offered a motion to
recommit the resolution to the Committee on House Administration, with
instructions to count ``otherwise valid unnotarized absentee ballots''
in certain identified counties. The motion to recommit was not adopted.
Thereafter, the resolution seating Mr. McCloskey was agreed to by a
vote of 236 yeas, 190 nays, two answering ``present,'' and five Members
not voting. Mr. McCloskey was then sworn in as a Member of the 99th
Congress by the Speaker.
---------------------------------------------------------------------------
15. H. Res. 146, 131 Cong. Rec. 9998-10020, 99th Cong. 1st Sess.
---------------------------------------------------------------------------
The proceedings of May 1, 1985, are as follows:
RELATING TO ELECTION OF A REPRESENTATIVE FROM THE EIGHTH
CONGRESSIONAL DISTRICT OF INDIANA
Mr. [Leon] PANETTA [of California]. Mr. Speaker, by direction
of the Committee on House Administration, I call up a privileged
resolution (H. Res. 146) relating to election of a Representative
from the Eighth Congressional District of Indiana, and ask for its
immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 146
Resolved, That, based on a recount of votes in the election of November
6, 1984, conducted pursuant to House Resolution 1, Ninety-ninth Congress,
agreed to January 3, 1985, the House of Representatives determines that
Frank McCloskey was duly elected to the office of Representative from the
Eighth Congressional District of Indiana and is entitled to a seat in the
Ninety-ninth Congress.
Mr. [Joe] BARTON of Texas. Mr. Speaker, I raise a question of
consideration and demand that the Chair put the question.
The SPEAKER pro tempore [Mr. (James) Wright (of Texas)]. The
question is, Will the House now consider House Resolution 146?
The question was taken; and the Speaker pro tempore announced
that the ayes appeared to have it.
Mr. BARTON of Texas. Mr. Speaker, on that I demand the yeas and
nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
242, nays 185, not voting 6, as follows:
[Roll No. 89] . . .
So the House agreed to consider House Resolution 146.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The Chair recognizes the gentleman
from California [Mr. Panetta] for 1 hour.
Mr. PANETTA. Mr. Speaker, I yield 30 minutes to the gentleman
from Minnesota [Mr. Frenzel] for purposes of debate only, and I
yield myself 8 minutes.
Mr. Speaker, the privileged resolution that is before you is
for seating and it is made pursuant to the action of the House
taken on House Resolution 1. It is based on actions of the task
force as well as the recommendation of the full House
Administration Committee.
House Resolution 1 was adopted by the House by a vote of 238 to
177. It referred the question of who had the right to the seat in
the Eighth District in Indiana to the Committee on House
Administration.
Pursuant to that vote, the committee organized and appointed
the task force, made up of three Members.
Between February 6 and April 18 the task force adopted a series
of procedures, rules and other memoranda to conduct a recount of
the election in the Eighth District. That recount was conducted by
GAO auditors. The official tally of that recount was presented to
the task force on Monday, April 22, by the director of elections.
The full House committee received the official tally on
Tuesday, April 23.
The official tally that was presented by the director of
elections gave Mr. McCloskey 116,645 votes and Mr. McIntyre 116,641
votes.
Pursuant to the responsibility that was placed on the task
force and the House Administration Committee to determine who
received the most votes based on the official tally provided by the
GAO auditors and the director of elections, it is the
recommendation that Mr. McCloskey, therefore, be seated. That was
approved by the task force and approved by the full House
Administration Committee on April 23.
As you know, a full report based on the actions of the task
force, the views of the task force both on the majority and the
minority side was prepared and that has been provided now to all
Members.
My colleagues, the arguments on this issue are well presented
in the report and the backup material. The issue was fully debated
yesterday on the House floor, based on the motion to vacate the
seat and call for a special election.
I would again ask the Members to please look at the facts that
are presented in that report.
There is a great deal of rhetoric and a great deal of charge
and countercharge that has been presented here, but what I ask the
Members in implementing a very serious responsibility under the
Constitution is please look at the facts that are presented in the
report. I think the conclusion from that report is that the
procedures were indeed fair, that they were developed largely in
cooperation with the minority, that the rules were justified by
House precedent and they were implemented in line with House
precedent all the way down the road, that the GAO auditors and the
director of elections conducted a fair and credible recount of all
the votes that were presented in the Eighth District, all of the
ballots that had been cast, and that the legitimate winner of that
election should now be seated.
In summary, let me also personally thank the individuals that
were involved in this recount. This was difficult responsibility
for all who have been involved. I want to thank in particular the
chairman of the full committee for his cooperation and support
during this entire effort. I want to thank the ranking minority
member, the gentleman from Minnesota [Mr. Frenzel] for his support
during the operations of the task force.
I also want to pay tribute to the members of that task force,
both the gentleman from California [Mr. Thomas] and the gentleman
from Missouri [Mr. Clay], who were always diligent in attending all
the task force hearings, both here and in Evansville, IN, and
although there were disagreements, they continued to work to see
that the process was completed.
I also want to thank all the staff involved on both sides who
worked so hard and diligently in trying to complete this very
difficult process.
Let me say in conclusion that the House was given a very
difficult and uncomfortable responsibility. It is not pleasant to
make judgments on issues like this, but under the Constitution, we
are to be the final judge of election returns and qualifications of
our own Members. That is a very serious responsibility that we have
and one that must be exercised carefully.
The task force and the House Administration Committee in
implementing that responsibility implemented it fairly,
impartially, and honestly. We now present to you the results of the
recount that were accomplished by the task force and the auditors.
No one-no one regrets more deeply than I that the final result
of counting the votes in the Eighth District in Indiana were am
close as they were, no one regrets that more. It would have been
far easier had either candidate won by 100 or more votes, but that
is not the way it turned out according to the recount.
Should the closeness of that vote, as close as it was, lead to
the rejection of all the results, be a justification for rejecting
those results, or more importantly, be a basis to reject the voters
who cast their votes on election night in the Eighth District? Are
they not due some respect by virtue of going to the polls, those
that cast valid ballots, are they not to be respected for the votes
that they cast on election night?
It seems to me that those votes should be counted, that those
votes were cast and that as a result of that, Mr. McCloskey won. We
know very well that if Mr. McIntyre won, he would be seated.
I ask us to do the same for Mr. McCloskey.
Mr. [William] FRENZEL [of Minnesota]. Mr. Speaker, I yield such
time as she may consume to the gentlewoman from Nevada [Mrs.
Vucanovich], a member of the committee.
Mrs. [Barbara] VUCANOVICH [of Nevada]. Mr. Speaker, I just
simply say that I rise in opposition to this resolution.
Mr. FRENZEL. Mr. Speaker, I yield such time as he may consume
to the distinguished gentleman from California [Mr. Thomas], the
sole Republican member of the 2-to-1 task force.
Mr. [William] THOMAS [of California]. Mr. Speaker, I ask
unanimous consent to revise and extend my remarks and to read out
of printed material, waiving rule XXX.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from California?
There was no objection.
Mr. THOMAS of California. Mr. Speaker, I think it is important
for us to note we are here today because of the big lie. And that
is that there was a question over who the people had chosen in
Indiana's Eighth Congressional District election night.
Now, Mr. Speaker, there is no question about who won. Just as I
do not believe there is a plot or a conspiracy going on, I think
there has just been an amazing series of unintended errors, of
inadvertent comments.
From day one in this Congress the Democrats' comments have
referred to recount night, not to election night. Just yesterday on
this floor the majority leader, in speaking out about what
happened, indicated that:
So the question is, did the House do the right thing in having a recount?
Someone said yesterday in debate that the only reason for the
constitutional provision that we be the judge of our own elections is to
guard against extraordinary circumstances, and this gentleman concluded
there had been no extraordinary circumstances in the Indiana case.
The majority leader went on to say:
Well, I suggest that there was truly and extraordinary circumstance when
almost 5,000 American citizens were disenfranchised on technicalities and
their votes were not counted.
Mr. Majority Leader, that was the recount, not the election.
The certificate was based upon the election, not the recount.
Of the 22 task force rules, every one of them counted ballots
that were invalid under Indiana law. When you compare the number of
votes election night with the number of votes in the committee
report under the task force, and subtract the tabulation errors,
the difference is 91 votes. And everyone to the 22 rules of the
task force admitted ballots that were illegal under Indiana law.
And the difference between election night and the task force's
recount after correction for tabulation errors: 191 votes.
Two hundred thirty-three thousand votes were counted election
night, 233,000 votes were counted by the task force. Your error has
been corrected.
From day one of this Congress there has been a systematic
although unintended and inadvertent stream of comments to create
the impression that Republicans played games in Indiana. I thought
for a few days that the secretary of state's name in Indiana was
Mr. Republican, it was so important to underscore the fact that the
secretary of state was a Republican and that the Governor was a
Republican.
Just yesterday the gentleman from Missouri [Mr. Clay], said on
the floor of this House, and I quote:
I assume, Mr. Speaker, that those black voters, and that was 20 percent
of the total black vote in that District, that were disenfranchised under
the recount, the Republican-controlled recount * * *.
Vanderburgh County had a recount commission made up of three
individuals, two of them Democrat, one Republican. Nine of the
fifteen counties were controlled by Democrats. Error corrected.
There were errors made election night, yes. The county clerk
from Gibson County, Mr. Lutz, double counted a precinct. I asked
him, ``You said you saw the sheet and there were two 20th precincts
out of the 37 precincts shown on election night?''
``Mr. Lutz. That is when I knew something--it wasn't perfect. I
noticed it.''
I said, ``Why did you sign your name to a certificate when you
knew the count wasn't perfect?''
Mr. Lutz said, ``I done just like all the other clerks. You
take the summary sheet--that is what the purpose was for. We are in
a hurry. We want to find out what people are getting to these
votes. You understand what I am saying? The total.''
I said, ``Does Indiana law require you to submit the very next
day a total?
Mr. Lutz said, ``No, not the very next day.''
That is at page 297 of the transcript. Mr. Lutz admitted that
he transmitted an imperfect total. Mr. Lutz is a Democrat.
When it was discovered that that total was incorrect the county
judge was asked to order the Democrat county clerk to correct it.
The judge refused. The county judge was a Democrat. It was not
until the State Supreme Court of Indiana ordered, exhibit in the
minority report, the Supreme Court of Indiana determine that an
error had occurred in the counting of the votes. ``The clerk of
Gibson County is ordered within 48 hours of receipt of this order
to proceed pursuant to statute to certify the proper results of the
election in question of the secretary of state of the State of
Indiana.'' The supreme court had to order the Democrat judge in
Gibson County, and the Democrat county clerk to correct the error.
At the same time the State supreme court was ordering Democrats
to correct an error Mr. McCloskey was in State court demanding that
that court rule that the only way to correct the error was to have
a complete recount. While at the same time he was in Federal court
arguing that he should be certified as the proper winner in
Indiana's Eighth Congressional District based upon the erroneous
total of election night.
There were errors election night. Were they corrected? Yes.
There was a full accounting of the votes election night! Was there
a winner election night? Yes. Was the winner McIntyre? Yes. Did
this House honor his valid certificate? No.
We are here today through a series of amazing coincidences. A
Democrat clerk forwards the wrong total and refuses to correct it.
A Democrat county judge refuses to order the Democrat clerk to
correct his total.
Even though the Indiana State Supreme Court orders the error
corrected and a true total is forwarded to the secretary of state,
and then to the House Clerk, the Democrat leadership is apparently
confused, does not understand the difference between election night
and the recount and it asks the House not to honor Mr. McIntyre's
valid certificate.
And this House, on a straight party vote, 238 Democrats vote to
send it to House Administration. A task force is created with a 2-
to-1 Democrat majority. Democrats on the task force vote 2-to-1 to
quit counting when McCloskey is ahead.
House Administration, by a straight Democrat vote, sends this
resolution to the floor.
And soon, with only Democrats voting in favor of seating, Mr.
McCloskey will become a Member of the House of Representatives.
That is quite a streak of coincidences, even for you folks.
The SPEAKER pro tempore. The gentleman from California [Mr.
Thomas] has consumed 8 minutes.
Mr. PANETTA. Mr. Speaker, I yield 4 1/2 minutes to the chairman
of the House Administration Committee, the gentleman from Illinois
[Mr. Annunzio].
Mr. ANNUNZIO. Mr. Speaker, throughout the public debate over
deciding the winner in Indiana's Eighth Congressional District, I
have not spoken. Certainly as a Democrat, I would hope that Mr.
McCloskey would win the seat. But as chairman of the House
Administration Committee, my first and only goal was to make
certain that the House Administration Committee, your committee,
operated in as fair a manner as possible.
During the hearings on the task force report, I made no
statements. On the floor yesterday I made no statements. And my
statement today is not a partisan one designed to advocate the
seating of any candidate.
In January, the House Administration Committee was assigned the
task by this body of preparing a report with recommendations on the
outcome of Indiana's Eighth Congressional District, it was not a
job that I welcomed, but one that you assigned to my committee.
That night in reflecting on the assignment, I decided that because
of the closeness of the race and the supercharged emotions
surrounding it, the committee must operate on the highest ethical
plane. When I appointed the task force I gave them no special
partisan instructions but rather gave the task force and its
chairman, the gentleman from California [Mr. Panetta], a free rein.
I made available to the task force whatever funds and personnel
were necessary to conduct the recount.
Some may feel that the task force did not reach the proper
conclusion. I am not here to debate that point. I do feel that the
task force, dealing with one of the closest political races in our
history, operated in an honorable manner. I commend the three
members of the task force-the gentleman from California [Mr.
Panetta], the gentleman from Missouri [Mr. Clay], and the gentleman
from California [Mr. Thomas], as well as the recount director, Mr.
Shumway.
While others of us were performing our political duties here in
Washington and our constituent duties in our districts, these three
gentlemen were forced to spend hundreds of hours of their own time
working on the task force report.
Members of Congress have so little free time, and I know the
most common complaint in this body is the limited amount of time we
have to spend with our families and loved ones. Yet these three
gentlemen gave up hundreds of hours of their time to complete a
task that I am certain not a single Member of this House would
want.
The many staff people who assisted the task force also are due
our praise, as are the representatives of the General Accounting
Office who assisted the task force. These people worked many hours
that they could have spent with their families or in other more
enjoyable springtime activities.
Mr. Speaker, I am proud of the job that the Committee on House
Administration did on its assignment, and I am particularly proud
of the task force.
Before the final vote is taken on the Eighth District
Congressional seat, I want to let the members of the task force
know that they have performed a valuable service.
It is easy for Members of both sides to criticize specific
actions of the task force, but I do not know of a single Member of
this body who would have wanted to trade places with a member of
the task force. It is a lot harder to go out and do the work and be
faced with tough decisions hour after hour. I cannot let this
contested election episode draw to a close without letting the
members of the task force know of my appreciation for their
efforts.
In closing let me make this request. No matter what your
feelings are about the Eighth Congressional District's seat, please
join me in expressing appreciation of this body for the hard work,
long hours, and devotion to duty put forth by Mr. Panetta, Mr.
Clay, and Mr. Thomas.
Mr. FRENZEL. Mr. Speaker, I yield 2 minutes to the
distinguished gentleman from North Carolina [Mr. Coble].
Mr. [Howard] COBLE [of North Carolina]. I thank the Speaker.
The 34 votes were enlarged to 418 votes; the secretary of state
of Indiana certified the Republican candidate, Mr. McIntyre, as the
winner; Mr. McCloskey, the Democrat candidate, did not allege fraud
or other illegal activity surrounding the election.
Yet Mr. McIntyre's 418 margin of victory was not enough.
Perhaps 500 votes will be insufficient 2 years from now. Perhaps
5,000 will be insufficient 5 years from now.
Some have said, ``Why all the fuss over one seat.'' One seat
will not emasculate the Republicans nor appreciably strengthen the
Democrats. The one seat, however, Mr. Speaker, is not the main
point. The main point is the course that was charted and pursued in
the name of fair play and equity. Fair play and equity, indeed; the
words fair play and equity were severely tarnished by this Chamber.
A dark cloud hangs heavy over this House. And if Mr. Rick McIntyre
is denied his seat that cloud will not disappear.
In Biblical times some martyrs who suffered, had to endure pain
inflicted by thorns and thistles. Some have proclaimed that Rick
McIntyre is plagued by thorns and thistles.
Horns and whistles might be more appropriate. Horns and
whistles that are indigenous to the atmosphere of a carnival
because I fear those who were the architects of this Indiana fiasco
more readily resemble carnival barkers rather than Biblical
martyrs.
The ship of fairness is bound for the shoals and reefs to
destruction. This disaster can be avoided by not denying Rick
McIntyre the seat he won.
I thank the Speaker.
Mr. PANETTA. Mr. Speaker, I yield 6 minutes to the gentleman
from Indiana [Mr. Jacobs].
Mr. [Andrew] JACOBS [of Indiana]. Mr. Speaker, in a Bill
Mauldin cartoon in 1945, a little boy was giving a report in school
and he said, ``And so my conclusion is that wars is impossible
unless both sides is right.''
When you have a very close election as we seldom have in the
history of our Republic you are right at the ragged edge of
democracy. A great deal of discipline, a great deal of self-
restraint is required.
I would like to say a couple of words about the disputed
ballots in the Eighth District of Indiana. As I see it, Mr.
Speaker, they fall into two categories. The first category of
disputed votes are those which were cast by citizens who in every
respect met their obligations, did their duties and cast their
ballots, but ballots which were thrown out because of errors made
by election officials.
Under the Indiana ancient, and, I think, somewhat crazy
statute, such errors by election officials, even though they do not
call into question the validity of the votes cast by the citizens,
under that ancient Indiana law the entire votes of a precinct can
be vitiated by a technical error upon the part of the precinct
official in that precinct.
Imagine what the literal translation of that law could lead to,
if anybody even knew about it. Hardly anybody in Indiana even knew
it was still on the books. And, by the way, the Indiana House of
Representatives just voted 94 to 6 to repeal it and overruled it,
having a similar power as that of the Constitution in the U.S.
House, in judging an election contest this very year.
Imagine what the literal application of that law could lead to.
Let us take an overwhelmingly Republican precinct where most of the
folks vote Republican. Here is a Democratic official at that
precinct who would just as soon not have that precinct counted in
the final tally. So he or she makes an accidental technical error.
Under the literal interpretation of that law all the votes of that
precinct could be thrown out.
It could be worked exactly the same way the other way around.
As I understand It, that question is not paramount in this
debate today. I think most people do agree that that statute is
very bad and that the Indiana Republican majority in the house of
representatives there and the Democratic majority in the House of
Representatives here did the proper thing in exercising the plenary
authority awarded by the constitutions to those respective bodies.
The other category of contested votes, the ones being discussed
here today, are absentee ballots. That category of controversy has
to do with the duty of the individual citizen. When you go to a
precinct to cast your vote you are required, No. 1, to be there on
time. If you get there 1 hour late or 5 minutes late you are not
permitted to cast the vote. You have not met your duty to be there
on time.
No. 2, you are required to sign the polling book in the
presence of election officials.
In the case of absentee ballots theoretically the same thing
applies. You must be there on time with your ballot, not postmarked
but it must be there on election day. That is your responsibility
to get it there.
No. 3, you must have signed the equivalent of the polling book
in the presence of an official known as a notary public.
In the cases of 32 disputed ballots that was not done. They are
intrinsically, not malum prohibitum but malum, in se, they are
intrinsically illegal ballots. But were not 10 of those illegal
ballots counted? Yes, they were. I tell my friend from California
[Mr. Panetta] I think he was mistaken in supporting the counting of
those 10 ballots.
Next question: Once you have counted those 10 illegal ballots,
why not count the other 32 illegal ballots? I cannot tell you,
during my days as a police officer, how many times I heard that
same argument when I was on traffic. ``There went three guys going
40 miles an hour. Why are you stopping me?''
``I wasn't able to stop the others,'' or whatever the reason,
it is not Justification for further illegality.
Now, I hear it said that the task force was happy enough to
overrule Indiana law in one instance but not in another, and I
point out to you that the task force only overruled Indiana law in
one instance. It supported Indiana law in a variety of instances,
including the law requiring registration of voters, the law
requiring presence at the polling place on time, and so on.
Now finally, Mr. Speaker, in all affection for my colleagues,
my fellow citizens of the United States, I think history tells us
that there is a faction among our Republican friends; I think it
could be described best by a faction that hates the word
conservative because it sounds too liberal.
A faction which, somehow or another, seems to assert its
rightness inevitably, and it may be right; maybe it is right by
far, but the remarkable thing about that faction, Mr. Speaker, is
that in the entire history of the Republic, it has never lost an
election. It has had a few stolen from it, but it has never lost an
election-not to the Democrats, not even to other Republicans.
In 1952, that faction lost the Texas primary to Dwight
Eisenhower, but it said no, we didn't lose it; Ike stole the
election, leading Edward R. Murrow to say to this reporter, ``It
would seem as traditional a part of the proceedings as for a fight
manager to yell `We was robbed.' ''
Now, I want you listen to these words: In our campaigns, no
matter how hard fought they may be, no matter how close the
election may turn out to be, those who lose accept the verdict and
support those who win. Who said that? Richard M. Nixon on January
6, 1961, standing at that podium, announcing that he had lost the
election to John F. Kennedy.
However, the faction in 1961 said that Mr. Nixon did not lose
the election to John F. Kennedy; they concluded that John F.
Kennedy stole it.
Mr. FRENZEL. Mr. Speaker, I yield such time as he may consume
to the gentleman from Illinois [Mr. Crane].
removal of name member as cosponsor
of h.r. 75, and h.r. 1345
Mr. [Philip] CRANE [of Illinois]. Mr. Speaker, I ask unanimous
consent that the name of the gentleman from Oregon [Mr. Robert F.
Smith] be removed from the list of cosponsors of H.R. 75, H.R. 76,
and H.R. 1345 and replaced as of today with Mr. Robert C. Smith of
New Hampshire. Mr. Robert F. Smith of Oregon was inadvertently
added to that bill instead of the Robert C. Smith of the State of
New Hampshire.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Illinois?
There was no objection.
Mr. FRENZEL. Mr. Speaker, I yield 1 minutes to the gentleman
from Indiana [Mr. Myers] and following that I yield 1 1/2 minutes
to the distinguished gentleman from Indiana [Mr. Hillis].
Mr. [John] MYERS of Indiana. Mr. Speaker, it has Just been
conceded by my colleague from Indiana that there was an error in
counting 10 ballots in Indiana. Because of that, I think it is good
basis to say that the margin of error of only four votes is good
reason that this should not happen today.
The precedents for the counting of those ballots has been used
by the House, the task force. In Roush versus Chambers in 1961, the
House Administration Committee went out and counted the ballots.
There is one difference. When they came back with their count,
there was never a criticism or question about how they counted the
ballots in Indiana. It was not questioned. You certainly cannot say
that this time.
It is unfair, I think; it is a tragedy, really, to the House of
Representatives. It is a sorry day today, but most importantly it
is a sorry day for a friend of ours, Frank McCloskey, taking his
seat today under this cloud. Because unfortunately, Mr. McCloskey,
who is a friend of mine, I have known him longer than any of the
rest of you I am sure, but he will be remembered as one Member who
was not elected by his constituency but selected by the House, and
that is too bad for a fine gentleman like Mr. McCloskey.
I am not going to vote today on this issue. It is a vote that
should not be taking place in this House. I have not been a party
to illegal acts in the past, and I am not going to be today.
Mr. [Elwood] HILLIS [of Indiana]. Mr. Speaker, we've discussed
at length the constitutional implications inherent in this debate
over the Eighth District of Indiana. We've also spent considerable
time talking about the mechanics of the recount, the ballots which
should or should not be counted, and the partisanship which has
overshadowed clear and reasoned debate.
I want to speak for a moment on behalf of my home State and
more than a half million Hoosiers who have yet to be represented in
the 99th Congress.
Mr. Speaker, they are, in a world, disillusioned. They wonder
what kind of people's House this is that its Members can vote to
deny them their right to elect a Member of Congress who can serve
in this body without suspicion.
They wonder why the House insists they be represented by a man
who many in this Chamber believe lost the election. They wonder how
effective any Representative can be with this sword hanging over
his head.
I know I would have great reservations about taking my seat in
this House under these conditions. I think many of you would too.
Mr. Speaker, the people of the Eighth District want to make
this right. They want another chance to elect their Representative
on the same terms by which all of us were elected. I think they
deserve that opportunity just as their Representative deserves the
right, as we have, to sit in this Chamber as the unchallenged
choice of our constituents.
I have always tried, in my 15 years here, to vote my
conscience. Sometimes that has meant differing with my party's
position on some tough issues. But I have done that and I will do
it again if I think it's right.
I turn to my friends on the other side of the aisle and say to
them: Here is a clear vote of conscience. Here is a chance to do
what all great Democrats have advocated throughout our history. Let
the people decide.
It is not too late. Our actions of yesterday can be reversed by
defeating the motion on the floor today. But it is our last chance
to do what is right.
Please, let us not fail.
Mr. FRENZEL. Mr. Speaker, I yield 2 minutes to the
distinguished gentleman from Texas [Mr. Boulter].
Mr. [Eldon] BOULTER [of Texas]. Mr. Speaker, I want to express
my appreciation to the gentleman from Minnesota [Mr. Frenzel] for
the inspiration you have been to us who believe in this cause so
much.
There have been a lot of words exchanged in the House the past
few months. Many Members on the Democrat side of the aisle have
spent time lamenting and regretting what they call our strident
partisanship on this side of the aisle.
Just to those Members who have spoken in that way, let me say
that on our side of the aisle, we view your words as purposefully
confusing and intent on avoiding the facts.
Yesterday, the chairman of the task force, the gentleman from
California [Mr. Panetta], said that the test which should be
applied to the work of the task force is one of reasonableness. I
agree, but is the result reasonable? Why, of course, it is not.
Why do I say that? Because when all of the ballots that were
cast on election night are counted, McIntyre won by 34 votes. He
won a State-supervised recount by 418 votes. Yet, on those
occasions you said that it was too close; Indiana law is too
confusing; and you said most of all, count all the ballots.
We have Just heard today where 10 ballots were counted and yet
32 more, similarly situated, ballots were not counted; and Mr.
Shumway himself said those ballots should have been counted.
Then yesterday, one of the members of the task force on the
majority side said that our call for a special election--the
Republican call for a special election--could be considered by some
as ``racist.'' That is a quote from Mr. Clay ``could be considered
by some as racist.''
That is sheer, sheer demagoguery. It is untrue, it is
dishonest. And you ask how our side can get emotional on this
issue.
I think history is going to judge this, and I look forward to
history's verdict on this issue.
The mere statement that we are racist shows that you are not
really being reasonable. History will judge that the task force
recount was not proper; the outcome was not reasonable, and that
the majority action was a subterfuge and a deliberate denial of
democracy.
point of personal privilege
Mr. [William] CLAY [of Missouri]. Mr. Speaker, I rise to a
point of personal privilege.
The gentleman accused me of accusing him of being a racist.
The SPEAKER pro tempore. The gentleman cannot----
Mr. CLAY. The gentleman called my name and accused me of
calling him a racist.
The SPEAKER pro tempore. The gentleman cannot----
Mr. CLAY. The gentleman cannot rise to a point of personal
privilege while the House is considering a question of privilege of
the House.
Mr. PANETTA. Mr. Speaker, I yield 3 minutes to the gentleman
from Indiana [Mr. Sharp].
Mr. CLAY. Mr. Speaker, will the gentleman yield?
Mr. [Philip] SHARP [of Indiana]. I yield to the gentleman from
Missouri.
Mr. CLAY. Mr. Speaker, a colleague from the other side of the
aisle misrepresented my remarks of yesterday when he accused me of
calling Republican members ``racist.'' I did not make that
statement and the Congressional Record of April 30, 1985, will
confirm my position.
Apparently the gentleman is very sensitive to such criticism. I
am told that most racists are unable to admit their racism and
sometimes even imagine being attacked for their views.
I know not what category, if either, my accuser falls into, but
I suggest his conscience should be his guide.
Mr. Speaker, I suffered the thankless ordeal of serving on the
election task force to decide the winner in Indiana Eighth
Congressional District. I knew from the outset that the eventual
outcome would leave some disgruntled, some dissatisfied, some as
confused as ever. But respect, concern, appreciation for this
institution moved me to join with two other colleagues in this
endeavor to determine which candidate received the most votes in
the November general election. I wish to commend the other two
members of the task force, Mr. Panetta and Mr. Thomas, for their
diligent, sincere, professional pursuit of the facts in this time-
consuming effort. In particular, I wish to compliment our chairman,
Mr. Panetta, for his impartial and fair handling of this very
sensitive matter. There were times when partisan, intemperate
attacks questioning his integrity would have made lesser men and
women retaliate in kind. Mr. Panetta did not.
Mr. Speaker, after more than 200 hours of debate on the floor
of this House, after 100 hours of deliberations and travel by the
special task force on elections, after 4 months of partisan
wrangling, the moment of truth has arrived. There is no further
time for posturing, procrastinating or politicking. In a matter of
minutes a vote will be taken to seat the winner of the election in
the Eighth District of Indiana. Mr. McCloskey won that election in
a fair but close contest by the slim margin of four votes. When all
of the more than 233,000 legitimate votes were counted, as slim as
the margin was, he emerged the victor.
Some truly believed that a special election should have been
declared because of the closeness of the outcome. Some are not
inclined to accept any verdict other than one favoring their
candidate. Some wish the entire matter had never developed and look
forward to an expeditious resolution of the problem.
To those who still have doubts about the wisdom of seating a
person who only won by four votes, I say that happens to be the
nature of the Democratic process. Our majority leader, Jim Wright
on yesterday, in a brilliant presentation pointed to several Earth
shaking incidents in history that have been decided by one vote.
I would like to expand on his discourse to show that even a
one-vote margin is justification for seating a Member of this
House. The eagle is our national bird, instead of the turkey,
because of a one-vote margin in the Continental Congress. I'm sure
that some turkeys then also argued that a new vote should be taken.
But turkeys, no matter how persuasive their oratory, have never
been able to persuade logical thinking eagles or reasonable,
intelligent people that a one-vote margin is not credible. If they
had, we would be eating eagles on Thanksgiving and those of us who
spent so much time and effort in conducting an honest, fair recount
might be eating crow today.
Mr. Speaker, a President of the United States, Andrew Johnson,
in 1868 was faced with impeachment by an emotionally charged
Congress-similar to the present situation. But a one-vote margin in
the Senate found him not guilty of the charges. Certainly if this
Congress can retain a President by the slim margin of one vote,
this House can seat Mr. McCloskey by the landslide margin of four.
Mr. Speaker, even more related to the point, a President of the
United States was seated by one vote. In the Hayes-Tilden election,
Mr. Samuel Tilden--a Democrat--received the majority of the popular
votes, a majority of the electoral votes on election night and was
announced the winner by every newspaper in the country. But
disputes arose in several of the States challenging the electors. A
law was passed establishing a 15-member commission to decide the
validity of the challenges. Five Members of the Senate; three
Republicans and two Democrats were chosen; Five Members of the
House, three Democrats and two Republicans; five from the Supreme
Court, three Republicans and two Democrats. In a straight party
line vote, eight Republicans to seven Democrats, all Republican
challenges were upheld. The final count of electoral votes was 185
for the Republican, Mr. Hayes, and 184 for the Democrat, Mr.
Tilden. If a President of the United States can be seated by the
margin of one vote, it's ludicrous to argue that four votes
disqualifies Mr. McCloskey from sitting in this Chamber.
Mr. Speaker, I recommend that Mr. McCloskey be seated so that
we can get on with the business of the Nation.
On the second and third pages of the minority views of the
report filed by House Administration concerning McCloskey-McIntyre
election, the Republicans have listed in abbreviated fashion the
sins they feel have been perpetrated upon them and their candidate
by the majority. I would like to take a moment to respond to those
charges.
The first charge is in fact, two assertions. In the interest of
understanding I will deal with each assertion separately.
First, ``the majority refused on January 3, 1985, to seat the
duly certified winner of the election, Richard D. McIntyre,
charging inconsistencies in the election.''
On behalf of myself I plead guilty, but offer the following by
way of mitigating circumstances: Under Indiana law, the secretary
of state is not permitted to reject the return of any county which
has come into his hands and which has been duly authenticated by
the clerk of the circuit court of that county under seal. Yet,
believing tabulation errors to have occurred effecting the outcome
of the election, the secretary of state refused to certify Prank
McCloskey based on official election night returns which showed Mr.
McCloskey to have been the winner by 72 votes. Then, after only a
partial recount of the district had been done, without waiting for
the correction of other tabulation errors, the secretary of state
certified the candidate of his party as the winner at the earliest
moment that candidate appeared to have a lead. At later points in
the recount, when Mr. McCloskey was again ahead, the secretary of
state was either absent and his deputy sick or was enjoined by a
Republican judge and therefore unable to certify Mr. McCloskey. By
January 3, it was evident that the secretary of state was inclined
to certify only one candidate regardless of the facts.
On January 3, the recount of five counties--Monroe, Orange,
Posey, Vanderburgh, and Warrick--had not been completed. These five
counties include more than half of the voters who participated in
the election. Further, if one cumulatively figures the margin
between Mr. McCloskey and Mr. McIntyre and subtracts those counties
where the recount was not completed as of January 3, Mr. McCloskey
had a 2-vote margin on Mr. McIntyre. Finally, in an election
involving over a quarter million voters, where the election night
margin has been reported variously at 72, 39, or 34 votes, and the
recount has yet to be completed, the better course of wisdom would
seem to be to await a definitive recount of the district.
Second, ``as a result, McIntyre is the only person with an
unchallenged certificate of election not seated in the last 50
years.''
This statement is simply factually inaccurate. I would refer my
colleagues on the other side of the aisle to the hearing
transcripts of the task force and to Roush or Chambers (H. Rept.
No. 513, 87th Cong., 1961). As Mr. Roush testified before the task
force, the only candidate to receive a certificate of election in
that contest was Mr. Chambers. Despite this fact, Mr. Chambers was
not sworn in on opening day, nor, as events work out, was he ever
sworn in. Finally, to make sure the record is correct, there were
no allegations of fraud in that election prior to the House's
decision to investigate.
Third, ``the majority refused on February 7, 1985, to seat the
winner of the State of Indiana's recount, McIntyre, charging
inconsistencies in the recount.''
The recount conducted by the State of Indiana treated the
ballots of some voters differently than identical ballots cast by
other voters. Yes, I would certainly call that an inconsistency.
Additionally, the recount disenfranchised 4,800 voters on the
basis of errors made by election officials, not the voter; and, as
indicated earlier, the likelihood of being disenfranchised was as
much a matter of geography and race as anything else. Finally, the
Indiana recount clearly had a disproportionate impact on black
voters, 20 percent of whom were disenfranchised as a result of the
recount.
For any one of these reasons it would have been appropriate for
this body to investigate that recount. Given all of these reasons,
this body would have seriously failed in its duty had it not
discounted the results of that recount.
Fourth, ``the majority refused to require McCloskey to adhere
to the procedures of the Federal Contested Elections Act.''
In point of fact, the procedures of the House do not
necessarily adhere a candidate to the procedures of the Federal
Contested Elections Act. The Federal Contested Elections Act is but
one way to bring an election contest before the House. If the
minority feels it should be the only way, then legislation to
accomplish that end should be pursued. While the method utilized in
this instance is unusual, it is neither unprecedented nor illegal.
Given what has transpired in Indiana, it is also warranted.
Finally, in case there may be a misunderstanding, it was not Mr.
McCloskey who brought this case to us in this manner. Only a member
of this body may bring a case in such a manner and Mr. McCloskey is
not yet a member.
Fifth, ``the majority refused to hold hearings for State
officials and the candidates before supplanting the State's laws
with custom--made rules of its own--a shocking preliminary
indication that the conclusion was predetermined.''
If the House is indeed bound by State law, it is bound by those
laws in their entirety. Not even the minority member of the task
force supported that proposition. Had we sought to implement State
law we would have disenfranchised thousands of voters.
A conclusion was predetermined. Going in we were determined to
adhere to the principles of democracy and determine the will of the
citizens of that district as indicated by their votes.
Unfortunately, adherence to democratic principles required the
supplanting of State law and frankly, little would have been served
by having State officials come before us to explain why voters
should be disenfranchised. Further, as the minority made plain at
the time, the task force was under instructions to proceed as
quickly as due diligence would allow.
Finally, our rules were indeed custom made. That is, the
proposition that errors or mistakes on the part of election
officials should not be allow, to disenfranchise voters is fully
supported by the precedents of the House as established by both
Republican and Democratic majorities.
Sixth, ``the majority voted to vitiate Indiana election laws
after McCloskey lost twice and replaced such laws with rules of its
own which have no basis in Indiana law.''
Since the Eighth District was never recounted in accordance
with Indiana law, it is impossible to say whether McCloskey would
have lost under that law. For instance, because polling machines in
Spencer County were never properly sealed, Indiana law would
require that virtually all the votes cast in that county be
disallowed. In such circumstance, it is entirely likely that
McCloskey would have won the election.
And more importantly, where strict adherence to the law would
require that so many voters be disenfranchised that it is no longer
possible to determine what the will of the voter, is, this House
has both a moral and constitutional duty to ``vitiate'' that law.
Seventh, ``the majority insisted on a House recount after
McCloskey lost the State election, his Federal court suit demanding
certification and the State recount.''
I do not dispute that Mr. McCloskey lost his Federal court suit
demanding certification. As the judge un that case noted, this body
is fully able to correct an erroneous certification. Nor do I
dispute that Mr. McCloskey lost the Indiana recount, by a margin of
one-tenth of the number of voters who were disenfranchised in that
recount. I am even willing to stipulate that, based upon a partial
recount of the district, Mr. McCloskey did not win. However, as the
only fair and uniform recount of that election has proved, it was
Mr. McCloskey, not Mr. McIntyre who won the election.
Eighth, ``the majority suspended its insistence that the House
``count all the votes'' in the name of enfranchising the voters as
soon as McCloskey had a lead of four votes. The majority's change
in position disenfranchised 32 voters whose unnotarized absentee
ballots were identical to those the task force counted a week
earlier.''
I appreciate the minority acknowledging It was not until it
became apparent that Mr. McIntyre would lose that anyone ever
suggested that those unnotarized absentee ballots retained properly
by the county clerks should be counted. To correct the record,
though at no point did the majority anticipate or expect to count
invalid ballots that were retained by the county clerk. Unnotarized
absentee ballots are invalid under Indiana law, they are invalid
under House precedent, and they are invalid under the rules of the
task force. Nevertheless, because some of these ballots had been
counted on election night and were not longer distinguishable from
valid ballots it would otherwise have rejected. It should be noted
that it was Mr. McIntyre, not Mr. McCloskey, who benefited from
this exception. Despite the 11th hour insistence of the minority,
the task sought to minimize those instances, not to compound the
error.
Even granting the minority's view that, because invalid ballots
have been treated with a degree of security, they may now be
considered countable, presumably no one has ever examined those
ballots. Unless the minority happens to know otherwise, there may
still be other faults with the ballots.
The record needs to be corrected on another point as well. As
the minority member of the task force has himself made clear in the
Congressional Record, it was never the intent of the task force to
``count all the votes.'' It was not the task force who
disenfranchised those 32 voters. Where the ability to ensure the
validity of the ballot lies with the voter, the voter must be held
accountable for his actions. It is the voter, not anyone else, who
is responsible for the fact that those ballots have not been
notarized as required by law. In this case, it is the voter who has
disenfranchised himself.
Mr. Speaker, the House of Representatives is being asked to
seat Frank McCloskey as the Representative of the Eighth
Congressional District of Indiana. Because of the partisan nature
of the dispute, there are a number of questions which each Member
of this body must be able to answer with assurance if they are to
vote to seat Mr. McCloskey. As a member of the task force which
conducted the recount In Indiana, I have, of necessity, become
intimately familiar with the issues involved. In my view, Mr.
McCloskey should be seated as a Member of this body. I will review
for the Members the history of this dispute and my reasons for
concluding that it was Mr. McCloskey who was chosen by the greatest
number of citizens of the Eighth District of Indiana to be their
Representative.
makeup of the task force
Much has been made of the fact that the task force consists of
two Democrats and only one Republican. While an evenly divided task
force may sound nice as an ideal, it is obviously unworkable as a
practical matter. We are elected to Congress to make judgments on
the issues before the country, in the case of the task force, we
were told to investigate the election in the Eighth Congressional
District of Indiana, determine if and how to conduct a recount of
that election, and ensure that that recount was conducted. If the
task force had an even number of members, evenly divided between
the parties, it is very conceivable that on those issues on which
the task force divided it would have split evenly. In that
circumstances we may still be waiting even to begin the recount. If
we are to ensure that the task force is to be able to make those
difficult decisions necessary to fulfill its obligations, it is
necessary that the task force have an odd number of members.
Because the citizens of the county have elected a majority of
Democrats to this body, the task force also has a majority of
Democrats. To attempt to make an issue of this demonstrates either
incredible naivety or, in the worst light, demagoguery.
certification issue
The election returns as originally certified by the county
clerks of each of the 15 counties which constitute the Eighth
District were as follows: 116,841 for Frank McCloskey and 116,769
for Rick McIntyre. Of 233,610 votes cast, Mr. McCloskey was shown
to have won by 72 votes. Under Indiana law, the secretary of state
is not permitted to reject the return from any county which has
come into his hands and which has been duly authenticated by the
Clerk of the Circuit Court of that county under seal. Nevertheless,
believing tabulations errors to have occurred which would affect
the outcome of the race, Indiana's secretary of state declined to
certify Mr. McCloskey as the winner of the congressional election
in the Eighth District.
Mr. McIntyre, as permitted by Indiana law and as I would have
done, filed to have a recount conducted in various areas of the
district of his choosing. Mr. McCloskey consequently cross-
petitioned to have recounts conducted. After the completion of the
recount in only 1 of the 15 counties the secretary of state
certified Mr. McIntyre to be the winner by 34 votes.
There should be no question in anyone's mind that a recount of
the results of this election was both appropriate and desirable.
Where election night returns show that, in an election in which
more than 233,600 voters participated, the difference between the
two candidates with the largest numbers of votes is only 72, it is
entirely proper that a recount be conducted. Further, prudent
observers may wish for the recount to be concluded before saying
definitively who won the election.
If this is true, what then are we to make of the actions of the
secretary of state? Without provision in law, he refused to certify
the winner based upon election night results because of his concern
for tabulation errors. Then, after only one county had been
recounted, without waiting for the corrections of other tabulation
errors in other counties, he certifies one candidate, who
coincidentally is a member of his political party, as the winner,
this time by the even closer margin of 34 votes. Given these facts,
and given the fact that at the time the outcome of the election in
the Eighth District was, indeed, in doubt, the actions of this body
of the opening day of the 99th Congress were entirely appropriate.
indiana recount
Now, let us examine the recount conducted by the State of
Indiana. In Indiana there is no provision for conducting a single
recount according to uniform rules on a district-wide basis.
Rather, in each county a recount commission determines its own
responsibilities pursuant to instructions from the judge of the
circuit court in that county. Each judge is elected in a partisan
political campaign. As we have witnessed, the consequence in this
case was that 15 different bodies developed 15 different sets of
criteria for determining the validity of ballots. In one county,
Posey, the recount commission was instructed by the judge to only
recount the votes. As a result, that commission did not examine
ballots to see if they met the requirements of Indiana law, but
limited itself to the correction of election night tabulation
errors.
In another county, Vanderburgh, the recount commission was
instructed to recount the votes pursuant to Indiana law. That
commission determined for itself what the requirements of Indiana
law were, based upon interpretations of that law by the Indiana
Supreme Court. In Vanderburgh County over 3,000 ballots were
disallowed because of errors and omissions committed not by the
voter, but by election officials of the State of Indiana. Three
thousand votes were disallowed in Vanderburgh County, but had those
voters lived in Posey County, their votes would have been counted.
Indiana law allows the candidate requesting the recount to
choose those precincts he wishes recounted without substantiating
the need for the recount. In the Eighth District, black voters are
heavily concentrated in Vanderburgh County. Not surprisingly, Mr.
McIntyre requested recounts in those precincts in which minority
voters were concentrated. As a result, 20 percent of the black
voters of the entire district were disenfranchised in the recount.
Further, despite the fact that both candidates had requested
recounts in parts of Vanderburgh, other parts of that county, where
neither candidate requested a recount, were never recounted by the
State of Indiana. Though probably unintended, Indiana law governing
recounts may result in subjecting blacks to stricter voting
standards than other voters and disproportionately impacting them
as a result. Clearly, this was the consequence in the Eighth
District of Indiana.
The recount conducted by the State of Indiana treated the
ballots of some voters differently in identical ballots of other
voters within the district. The result was the disenfranchisement
of 4,800 voters. Errors and negligence on the part of election
officials were the major causes of voter disenfranchisement. This
process disproportionately impacted the minority population of the
Eighth District of Indiana. For any one of these reasons, it would
have been appropriate for the body to look into that recount. Given
all of these reasons, this body would have seriously failed in its
duty had it not discounted the results of that recount and
determined to conduct its own recount. Finally, there should be no
question as to the authority of this body to conduct a recount.
That authority is found in the Constitution, itself, in article I,
section 5.
house not bound by indiana law
Having reviewed why it was necessary for us to conduct a
recount, I will review the manner in which our recount was
conducted. Let me say at the outset that no member of the task
force ever suggested that the recount be conducted strictly
according to Indiana law. State law either controls or it does not.
If the House felt itself bound by those laws, we are bound by them
in their entirety. If the House has the authority to pick and
choose among those aspects of the law it approves of, there is no
``States right'' issue because clearly the House has chosen not to
be bound by that law. Assuming Indiana law to be sacrosanct, we
would have been bound by the language of those statutes as
interpreted by the Supreme Court of Indiana. One of the county
recount commissions felt itself so bound and as a result
disenfranchised 3,000 voters. Had we applied similar standards,
thousands of additional voters would also have been
disenfranchised. Such a consequence was unacceptable to the members
of the task force and would have been unacceptable to this body.
Finally, the constitutional authority of this House to judge for
itself the elections of its Members clearly takes precedence over
State law.
ballots lacking initials and precinct numbers
Being forced to rely upon the precedents of the House and those
aspects of Indiana law which commended themselves to us, there was
still remarkable unanimity in determining the rules by which votes
would be determined to be valid. In developing the counting rules
there was only one issue of disagreement, whether to count those
nonabsentee paper and punchcard ballots that lacked poll clerks'
initials and precinct numbers. When the voter entered the polling
area he was to be presented a ballot on the back of which were to
be written by the poll clerks the precinct number or designation
and the initials of each poll clerk. In addition, the poll clerks
were to inform the voter to look for the initials and warn the
voter that the ballot would not be counted if both sets of initials
were not present. One member of the task force argued that it was
essential to ballot security that at least one set of initials or
the precinct number appear on the ballot.
First, since the same individuals are responsible for ensuring
that both the initials and the precinct number are on the ballot
and are also responsible for asking the voter to check for them, it
is likely that all three requirements would not be met in the event
poll clerks were ignorant of or negligent in their duties. Those
requirements do not act as a check on each other. Second, a ballot
with only one set of initials and without those of the poll clerk
of the opposite party would on its face seem no more secure than a
ballot without any initials. Third, poll clerk Initials are but one
method of ensuring ballot security. In Indiana, ballots are cast in
the presence of two poll clerks representing the two major parties,
an election inspector, an election judge, and observers from the
political parties. To stuff the ballot box requires not only the
possession of the ballots and the secrecy envelopes but the
complicity of all the aforementioned individuals. Such a conspiracy
would be very difficult to conceal completely and, despite the
extreme, partisan emotions this election has raised, there have
been no allegations of fraud. Finally, investigation revealed that
in many cases poll clerks did not receive instructions before the
election and either through Ignorance or negligence ignored the
initialing requirement.
Based upon these facts, the task force by a 2-to-1 margin voted
to count otherwise valid nonabsentee punchcard and paper ballots
lacking poll clerk initials. The task force also voted to count
otherwise valid ballots lacking precinct numbers. The reasoning
behind this decision was that in the absence of allegations of
fraud or irregularity the enfranchisement of the voter would not be
forfeited due to the failure of an election official to fulfill his
responsibilities under Indiana law. This decision conforms with the
precedents of the House as established by both Republican and
Democratic majorities and, in my view, gives proper weight to the
right of the voter to have his vote counted.
task force never decided to count all votes
The task force did not conclude that it would count all the
ballots. In fact, the task force voted not to count ballots which
were mutilated, on which there was an overvote in the congressional
race, or on which the voter had placed a distinguishing mark.
Finally, all of the task force's counting rules providing
exceptions to Indiana law are conditioned by the phrase ``an
otherwise valid ballot.'' My own position regarding this issue has
been very clear. I feel strongly and have stated that where the
intention of the voter is not in doubt, and the honesty of that
intention is not in question, the failure of election officials to
fulfill their obligations should not be allowed to disenfranchise a
voter who has met all of his obligations. If the intent of the
voter is not clear, if there is good reason to suspect fraud, or if
the voter has failed to fulfill his obligations under law, then we
are obligated to apply a stricter standard to that ballot than
would otherwise have been the case.
actual counting of votes above reproach
The recount itself was conducted by GAO auditors under the
supervision of James H. Shumway, the Arizona State elections
officer. Mr. Shumway was recommended by the Republicans and
concurred in by the Democrats. The entire recount was conducted in
the presence of staff from both sides of the aisles,
representatives from each candidate, the press, and the public. I
do not believe it is possible to conduct a more open recount. I
have heard nothing but praise for the GAO auditors and for Mr.
Shumway. It is very definitely my view that the job they did was
truly exceptional and beyond reproach.
unnotarized absentee ballots
In Indiana there are three classes of absentee ballots. There
are military absentees, absentee ballots delivered to confined
voters by election officials, and what I will call regular absentee
ballots issued to nonmilitary, unconfirmed, registered voters who
will be unable to be present at the polls on election day.
Under Indiana law those absentee ballots delivered by election
officials to those who are confined are witnessed by two election
officials after they are voted. In the event the ballot has been
improperly witnessed, that is the initials of two election
officials are not on the ballot envelope, then the ballot is deemed
invalid and not counted. When the ballot is returned to the county
clerk the ballot envelope is checked to ensure it is properly
witnessed. If so the ballot is forwarded to the precinct on
election day, removed from the ballot envelope, and counted with
all the other valid ballots. If the ballot has been improperly
witnessed it is retained by the county clerk, not sent to the
precinct, and is never counted.
During the course of the recount several improperly initialed,
confined absentee ballot envelopes were found at the precinct
level, indicating that invalid, confined absentee ballots had been
counted on election night. Since it is impossible to distinguish
those ballots from other ballots and therefore impossible to know
which candidate received those votes no adjustment was made to the
vote totals.
In addition, two confined absentee ballot envelopes containing
ballots (that is ballots that had never been counted) were found in
two precincts. It was determined that these envelopes would be
opened and the ballots counted. There are two underlying reasons
for this decision. First, the ballots had been sent to the
precincts and therefore, with the exception of not having been
counted, had been treated in a fashion identical to other valid
ballots. Second, each ballot was defective because the envelope
contained only one set of initials instead of two. Pursuant to the
view that failures of election officials should not disenfranchise
voters where the intent of the voter is clear and not questioned, I
felt these ballots should be counted. However, since our counting
rules provided only for counting ``otherwise valid ballots'' there
was a rationale for not counting those ballots. Both ballots were
counted for Rick McIntyre.
Besides the confined absentee envelopes that were found to have
been incorrectly sent to the precincts, opened unnotarized regular
absentee ballot envelopes were also found at the precincts. Under
Indiana law, after indicating his preferences on a regular absentee
ballot the voter is required to obtain notarization of the ballot
envelope to help insure that the person who applied to vote
absentee is also the person who voted. When the ballot is returned
to the county clerk the ballot envelope is checked for
notarization. If the envelope has been notarized it is sent to the
precinct where the voter is registered on election day and it is
counted with all other valid ballots. If the ballot envelope has
not been notarized the ballot is to be retained by the county
clerk, never forwarded to the precincts, and never counted. The
presence of the opened unnotarized ballot envelopes indicated that
regular absentee ballots, which should not have been counted, had
been counted on election night. However, since it was impossible to
distinguish those ballots from legitimate ballots and therefore
impossible to know who those ballots were counted for, no
adjustment was made to the vote totals.
Besides finding opened unnotarized absentee envelopes at the
precincts, nine unopened, unnotarized absentee ballot envelopes and
one opened but uncounted, unnotarized ballot envelope were found.
It was argued by one member of the task force that, since we had
counted improperly witnessed confined absentee ballots, we should
also count unnotarized regular absentee ballots. My view was that
we should not count those ballots. Whereas an improperly witnessed
ballot is due to failure on the part of election officials, it is
the responsibility of the voter to ensure that regular absentee
ballots are notarized. In my view it is entirely appropriate to
apply a stricter standard where the action of the voter has placed
the ballot in question than where the action of a second party has
jeopardized the ballot. Where the ability to ensure the ballot
would be valid lies wholly with the voter, the voter should be held
accountable for his actions. Those illegal ballots counted on
election night should never have been counted in the first
instance. I did not feel we should compound that error by counting
additional ballots of this kind. In addition, our counting rules
only provided for counting otherwise valid ballots.
On this issue I was overruled. It was evident that other
unnotarized absentee ballots sent to the precincts had been
counted. While the unnotarized, unopened absentee ballots had not
been counted, they had in every other way been treated in an
identical fashion to other valid ballots. It was decided by a
majority of the task force that the 10 uncounted, unnotarized
absentee ballots that had been found at the precincts would be
counted. As a result of counting those ballots Rick McIntyre
received six votes, Frank McCloskey received three votes and one
was a ``no'' vote.
It was then proposed that we count unnotarized absentee ballots
that had been retained by the county clerks. Having been against
counting the uncounted, unnotarized absentee ballots found at the
precincts, I opposed counting those unnotarized absentee ballots
retained by the county clerks. These ballots had never been counted
before, either on election night or during the recount. No one had
previously contended that these ballots should be counted. While I
do not feel that mistakes made by an election official should
disenfranchise the voter, mistakes made by the voter are another
matter. It was unfortunate that any unnotarized absentee ballots
had been counted. To count more of them merely compounded the
problem. Finally, and most importantly, never having been sent to
the precincts, these ballots had not been treated in a fashion
similar to other valid ballots. They most certainly were not
subjected to the same ballot security. On that basis, it was
decided by a 2-to-1 margin that unnotarized absentee ballots
retained by the county clerks would not be counted.
military ballots
At the last task force hearing held in Indiana it was proposed
that those absentee military ballots that had been received after
election day should be counted. The subject had not been raised
before. By a 2-to-1-margin the task force voted not to count those
ballots. While the debate for counting these ballots was not very
extensive, the argument for counting them rested on the premise
that through no fault of their own, military personnel stationed
overseas could have their ballots unduly delayed in the mails and
thereby be disenfranchised. If this is true it is even more true of
other Americans abroad as they must rely upon foreign mail systems
as their point of entry into our mail system. No one, however, has
suggested that an exception be made for these ballots. All absentee
voters are informed that ballots that have not been received in
time to transfer the ballot to the precinct on election day will
not be counted. When one registers to vote absentee one assumes the
obligation of ensuring that one's ballot is mailed early enough to
ensure it arrives in time to be counted. Elections must have a
conclusion. It would be unreasonable for an elected official to
have to give up an office because 4 months later three more
military ballots finally come in which change the outcome of the
election. For these reasons I voted to not count absentee military
ballots received after election day.
reconciliation
As a part of their duty of counting the votes the GAO auditors
were asked to track and compare the number of voters who signed the
poll books with the number of votes registered in the precinct.
Where these numbers did not agree, Mr. Shumway, the recount
supervisor, was asked to try to ascertain why this was the case. In
a perfect world the number of voters registered as having voted
would correspond exactly with the number of votes counted. In some
precincts in the Eighth District this actually occurred. However,
this is not a perfect world. In some precincts the number of voters
registered as having voted was greater than the number of votes
that were registered. This can be explained by the fact that not
every voter voted in every race. In rare cases a voter may have
signed the poll books, received a ballot, and then, deciding not to
vote, walked off with the ballot. In any case, I know of no methods
for adding votes to a total where one can find no evidence of the
actual vote ever having been cast.
In other precincts there were more votes counted than the
number of voters registered as having voted. In fact, in a total of
50 precincts there was a total of 103 more votes than voters
registered as having voted. Thirty-three of those precincts were
off by one vote, nine precincts were off by only two votes, and two
precincts were off by only three votes. In other words, in 44
precincts there was a discrepancy of three votes or less. While
there are many possible explanations for such discrepancies, by far
the most likely is human error. In two precincts there was a
discrepancy of four votes. Again, I think the error is very
probably the result of less than divine diligence on the part of
the poll clerks.
However, I would note that Mr. McIntyre carried both precincts
by margins of 55 and 56 percent. In one precinct there was a
discrepancy of five votes. Mr. McIntyre won 59 percent of the votes
in that precinct. In another precinct the discrepancy is six votes.
Mr. McIntyre also won that precinct by 59 percent. In two other
precincts, both in Spencer County, there were discrepancies of 12
and 15 votes. In these precincts it may be possible that the voting
machines malfunctioned. If that is the case, it is impossible to
know who those votes were counted for. It is known that Mr.
McIntyre carried both of those precincts by margins of 60 and 56
percent, respectively. One can imagine the cries of injustice if we
had sought to proportionately reduce the vote in those precincts.
Seventy percent of the overvotes occurred in precincts carried by
Mr. McIntyre.
We did not disallow votes based on discrepancies between votes
cast and voters registered as having voted. This is an imperfect
world and in every election of this size these kinds of errors will
occur. By far the most probable explanation for these discrepancies
is carelessness on the part of poll workers. Some voters apparently
were given ballots without signing the poll book. I do not believe
that such discrepancies discredit the vote totals. However, had we
sought to adjust the vote totals on the basis of these
discrepancies Mr. McCloskey would have a larger margin of victory
than we, in fact, reported.
seat mccloskey
Mr. Speaker, your task force has conducted its recount in the
open and on the record. Based upon that record, I do not believe
that it can be said that the rules we adopted sought to provide
undue advantage to either candidate. For myself, while I do not
pretend to be disappointed by the results of the recount, my
decisions on the issues which arose during the course of the
recount were not motivated by a desire to reach that end. My single
guiding principle was to ascertain as accurately as possible the
will of the citizens of the Eighth Congressional District of
Indiana as expressed by their votes. In my opinion the task force
has achieved that end.
There are those who from the beginning have indicated they
would not accept any decision that did not result in the seating of
their candidate. These individuals have largely ignored factual
issues surrounding this election. Instead they have contented
themselves with dogmatic assertions and bald-faced accusations that
the election was being stolen. I believe that if the College of
Cardinals had conducted the recount and found for someone not to
their liking, they would accuse God of stealing the election.
Partisan politics taken to such extremes serves neither Mr.
McIntyre nor Mr. McCloskey, the Republican Party nor the Democratic
Party, this body nor the country. If there is to be dispute, let it
be based on the facts.
A close election night result is a good reason to conduct a
recount. A close result in a recount is not justification for a new
election. Our recount rules were reasonable and were applied
uniformly. Mr. McCloskey won this election by four votes. In my
opinion, Mr. McCloskey deserves to be seated.
Mr. SHARP. Mr. Speaker, the problem arises of course, because
we have one of the closest elections n the history of this country,
but it is also no coincidence that the last major election dispute
in this country arose in Indiana in 1960.
The reason for that is because, unfortunately, in my State, we
have a very arcane and archaic election law, as virtually everyone
who has observed this election independently, and without a
partisan eye, has come to the conclusion.
Editorial writers in my own district and throughout the State
in the past have called for election reform and they are calling
for it with renewed intensity.
Indeed, a Republican newspaper in my own district not only on
April 26 called for the seating of Frank McCloskey, the Democrat,
it also called on April 30, using the words Congressman Tom Foley
here, for dramatic election reform in the State of Indiana.
Mr. Speaker, the House sent to Indiana a task force which
operated in the open, through great difficulty to all three members
of the task force. They went to Indiana to make sure ballots were
opened, counted, discussed in front of the public and the news
media of that State, and I appreciate that effort that they made.
I think that independent observers in Indiana and outside of
Indiana know that an honest and an honorable job was done in what
was an extremely difficult situation. Basically, the principle
followed was that they sought to count every ballot that was at the
polling place on election night last fall. So long as they could
consider the intent of that ballot, they counted it. And the only
ballots that are in question and being raised here that were not
counted were those that ever reached the polling places on election
night in Indiana because they were illegal from the outset and they
are illegal now, and everyone basically knows that who is willing
to examine the facts.
My colleague from Indiana [Mr. Jacobs] raised the question: But
weren't 10 ballots that went to the polling places that were not
counted on election night in Indiana but subsequently counted
because of the task force, weren't they illegal and wasn't that an
error?
I think possibly that was an error to have counted those in.
But, again, we all know the outcome that those 10 ballots had.
Those 10 ballots, if counted in error, inured to the benefit of Mr.
McIntyre, not Mr. McCloskey.
Had they been excluded, had that error that some of us believe
was made not been made, Mr. McCloskey's return in the end would not
have been just four votes, it would have been seven votes.
So if you believe that an error was made, then you can feel
more comfortable with the outcome that this task force engaged in,
because the return was actually higher than four votes.
Let us proceed to a conclusion and let Indiana fight this out
in the next election.
Mr. FRENZEL. Mr. Speaker, I yield 2 minutes to the
distinguished gentleman from Texas [Mr. Barton].
Mr. BARTON of Texas. Mr. Speaker, we began on January 3 by
refusing to seat the certified winner in the Indiana Eighth
Congressional District election race. Instead, we decided to
appoint a task force to investigate that election because the
original election was neither timely nor regular and there were
serious doubts about its fairness. Since that time we have been
engaged in a debate, in some semblance of a procedure to determine
the true outcome in the Eighth Congressional District race. The
task force that was appointed, instead of investigating the
original election, decided to hold its own recount. The guiding
principle of that task force, as it was enunciated at the time, was
to count all the ballots. Now, when they said ``Count all the
ballots,'' that is a little bit different than counting the ballots
that were counted in either the recount or the original election
results; in other words, count every ballot. In doing that, it
resulted in 345 ballots being counted that had never been counted
before. By definition, under Indiana election law, those were
illegal ballots. They had not been counted on election day, they
had not been counted in the State-certified recount. But 345
ballots were counted, 345 additional ballots were counted by the
task force.
Now, of those 345 ballots, all but 78 of them were counted by
the GAO auditors, but 78 had to be counted by Mr. Panetta, Mr.
Clay, and Mr. Thomas, of those 78, 54 were agreed upon by the 3
members of the task force, but 19 Mr. Thomas refused to vote on and
they were determined by Mr. Panetta and Mr. Clay.
Now, we have got an election outcome of four votes. There are
345 additional, 78 determined by the task force, of which at least
19 were determined on a straight party line vote. I ask the
question: Is this the result that can be considered reasonable and
fair? I think not. I think we should vote not to seat Mr. McCloskey
and let the people of Indiana determine who the true winner is.
Mr. FRENZEL. Mr. Speaker, I yield 5 minutes to the
distinguished gentleman from Kansas [Mr. Roberts], a member of the
Committee on House Administration.
Mr. [Charles] ROBERTS [of Kansas]. Mr. Speaker, I rise today to
speak not about the issue at hand; that is already a foregone
conclusion; you have won the Eighth District of Indiana. Rather, I
wish to share with my colleagues a keen sadness I feel regarding
the effect of this business upon this House as an institution--more
important, what we want it to be both as individual Members and as
Democrat and Republican partisans.
We all ran through partisan gauntlets of sorts to gain the
privilege of being here. You cannot find a more Republican Member
than this one from the standpoint of personal heritage and
commitment.
Yet the special fabric that binds this institution in purpose
and achievement is bipartisan. I am the first to admit that no
political party has an exclusive patent on common sense or can lay
claim to what is right. And, personally, I try very hard to work
with my good Democrat friends. We on the Agriculture Committee are
bound together with a special kind of commitment in behalf of our
farmers and ranchers. That's just the way it is in farm country. To
be sure we have our differences, but for the most part we work
together and try on the other fellow's boots--they pinch but we get
the foot to fit.
So, I try to be the best Member I know how to be--tempered by
18 years as a staff member and Member of this body. That, I say to
my friends in the majority, is the rub. Part of what we are is what
you allow us to be. And you folks have had us on short rein this
session.
Each time around the track we get nicked--a piece of flesh on
committee assignments, on funding, on what legislation is
considered, and how, and when, and who gets the credit--or blame.
But I knew that when I climbed into the ring. As a Member of
the minority in this House, I am accustomed to being treated
unfairly by some of you in the majority. That's part of the
penance. The other half of that is that others in the majority do
allow me the privilege of being a full partner in my duties--so the
privilege is worth the penance.
But I know this: On this issue you have torn that special
fabric that holds us together as a House of Representatives. Let me
make it clear I do not point the finger of blame or place the
charge of conspiracy at the doorstep of Mr. Panetta and Mr. Clay. I
stood yesterday and applauded when the majority leader said Leon
Panetta was a man of integrity. He is you in the leadership put him
in that box. And when the command is column left and you are the
lieutenant, you march--as best you can.
We ought to stand today, Mr. Speaker, and give the same due
credit to my friend and colleague, Mr. Thomas, whose aggressive
defense of what we think is right, and factual, and correct was
both fair and tough. It is one thing to climb between the ropes and
do battle against great odds but yet another to suffer the
subsequent agony of defeat when you enter into the fray knowing the
fight has been fixed.
What we are talking about is the kind of majority rule that has
led to resentment, frustration, anger, and retirement. We will lose
good Members because of this issue.
But, never mind--on to business as usual. After all, what
alternative do we have. This next vote is a fait accomplished; just
a little formal salt in the wound. What am I to do as an individual
Member? Disrupt the House? Abdicate my responsibilities to my
people? No; I will continue to work with my Democrat friends. After
all, it was just moments after the vote yesterday and after
personally watching the press conference by Rick McIntyre that one
of my Democrat colleagues, with a big smile on his face, said:
``When are you guys going to get us a farm bill?'' I guess I am a
``you guys'' Member. One of the back--rail troops, a committee
person if you will, not a floor expert in virtually every policy
area according to the Republican or Democrat holy grail.
But I can tell you this. This wound will not heal without a
terrible price and a scar that will be with this House for many
years. It would appear, Mr. Speaker, there are two kinds of Members
within your majority. We have those who listen and work with the
minority and those who do not believe we are full--fledged partners
in this House. In baseball terms, they are the ones who call for
their pitcher to stick it in the batter's ear. The unmitigated gall
occurs when once you make us hit the dirt, you take offense when we
come up swinging.
Yesterday I stood to underscore my belief that Leon Panetta is
an honorable man, only to be lectured by the majority leader that
somehow my additional expression of frustration, and anger, and
outrage was beneath the dignity of this body. I say this to the
majority leader--you folks dish it out daily, but you sure can't
take it. Oh, I know the majority leader and those that make up the
cabal that is responsible for this whole business will respond that
we shouldn't feel that way. They have argued their version of the
facts. But regardless of that attitude, we feel this case was
handled unfairly for the reasons so eloquently stated in the House
debate.
And, it is that sense of unfairness that will live long after
this dispute is over. Yes; Mr. Speaker, I will take off my ``Thou
shall not steal'' button. A slogan too harsh? I think not. I am
going back to work.
But for me and for my colleagues, this House is not the same.
The collective sense of unfairness symbolized by this button
remains in our hearts.
The sad, sad thing is that we did not have to go down this
road.
Mr. [Robert] MICHEL [of Illinois]. Mr. Speaker, yesterday, my
good friend, the distinguished majority leader, gave one of his
eloquent and articulate speeches on this controversial topic.
While I admire his gift of oratory, I must say I disagree with
much of his emphasis.
He devoted a great deal of his remarks to real or alleged
breaches of House etiquette on the part of certain Members of the
minority.
This is what is known as blaming the victim.
The issue here is not whether Members on our side have lost
their temper. It is whether Rick McIntyre has lost his seat.
The issue isn't whether during heated debate Members on both
sides have said things that Miss Manners would blush at hearing.
The issue is that Republicans and concerned Democrats feel, in the
words of a Democrat, that this race is tainted and has a cloud over
it.
So let's not play the old game of blame the victim. If there is
any indignation on our side, it arises from a universal sense of
frustration, anger, and yes, bitterness over the way this has been
handled by the majority from beginning to end.
The distinguished majority leader also said that the Republican
leadership, in a meeting in the Speaker's office, said we wouldn't
be asking for a reelection if McIntyre had won by four votes.
Yes, if Rick had won by four votes or one vote, we wouldn't be
asking for a rerun and we'd do the same with McCloskey--if we
thought the vote count was fair.
But we don't think it was fair. That's the central point of the
controversy.
So it is not accurate to come here and tell people we wouldn't
call for a rerun if McIntyre had won by four votes.
If the evidence showed--that he won by the device of having
cast aside legitimate ballots, I would give the other side a fair
shot at it with a rerun.
There is one ironic aspect to all this and I have to comment on
it.
Mr. Speaker, I mentioned yesterday that the issue here was not
one seat in Congress. It was one of fairness. It remains one of
fairness.
It is also an issue that strikes at the heart of the balance
between those powers given to the States and those given to the
Federal Government. The balance has been tipped--in the wrong
direction.
It is an issue of representative government and the difference
between democratic and autocratic rule in this House. We are
fighting for the rights of the minority and millions of Americans
whose rights have been entrusted to us. That is why this fight will
go on. That is why this cause will not die. That is why we will not
return to business as usual. The Rick McIntyre issue is more than
an election. It is unfair rules, unfair ratios, unfair staffing,
excessive spending and a hundred other abuses of this House and our
democratic processes.
The majority leadership seems incapable of understanding--the
deep feelings on this side. We are not angry because we lost.
We are angry because of the way we lost. We are not sore
losers.
Yes, we are sore. But we are sore winners. We won this thing
and it's been taken away.
The distinguished majority leader said that his side is not so
hard up that they would deprive Republicans of an extra seat by
devious means.
I say to the majority leader--we are not so hard up that we
will take any bone you choose to throw us.
We can't take this thing lying down, nor can we surrender
because we've just begun to fight.
Mr. [William] GOODLING [of Pennsylvania]. Mr. Speaker, we know
the facts, January 3, 1985, the Democrats in the House of
Representatives exercised their power of majority and refused to
sit a duly authorized winner of the race for Congress in Indiana's
Eighth District. We now know that the creation of a task force to
decide the winner was another exercise of their majority party
status, the task force reversed the nearly quarter--million voters
decision in Indiana and declared Democrat, Frank McCloskey the
winner.
Since Mr. McCloskey does not appear to be embarrassed to win in
this manner and speak out against such political maneuvering, the
fight for the rights of these voters must continue. If we do not
stand firm at this point, the Democrats sensing the public mood
toward the Republican Party will surely turn around many more seats
after the election in 1986.
It is a shame that this power play is not looked at by the
media, who are always seeking to fight for right, seem to be
unaware of the corrupt methods being used to determine the winner
of this election. Is that indicative of their distinctive bias?
I also find it puzzling as to why the more junior members of
the Democrat Party, who obviously understand the dangerous road
being taken by the Speaker and other leaders of their party, do not
stand up against what they know to be wrong. They have come here in
all probability to represent a newer attitude within the voters of
America, and they are hiding behind the party demagogy with fear.
In the long run, the people will vindicate the winner, Mr. Rick
McIntyre, but what the Democrats are doing to the Constitution of
the United States cannot be vindicated, excused, or condoned. I
believe the people will seek more honest Representatives in the
future. If Mr. McCloskey accepts the, title Representative of the
Eighth District of Indiana he does so without honor.
Mr. [Norman] SHUMWAY [of California]. Mr. Speaker, I am
vehemently opposed to this resolution, just as I have been opposed
to and appalled by the outrageous circumstances which have led up
to it. By its actions, the House has abrogated the States rights of
Indiana; it has trampled the voters' right in Indiana's Eighth
District, and, today, it is literally stealing a congressional seat
away from the duly elected choice of the people. Worst of all, we
are establishing a dangerous precedent--what is to prevent the
majority party in the House from stepping in and seizing every
close race in the future?
It is true that the race between Messrs. McIntyre and McCloskey
last November was a close one--but it is also true that McCloskey
lost. He was not the individual certified by the Indiana secretary
of state as the winner of the election. The House majority chose to
ignore that validation, a slap in the face to Indiana. It chose to
allow Mr. McCloskey to claim a congressional seat without using the
avenues of recourse available to him within his State. It chose to
leave the people of Indiana's Eighth District without
representation for months, and it chose to ignore two separate vote
counts, both of which made it clear that McIntyre had won.
We do not tolerate this type of election charade when it takes
place in emerging nations, nor should we. For us to sit by and
allow an election to be manipulated by our own membership is a
travesty. If the House majority leadership is to be permitted to
wield this arrogant and unresponsive abuse of power, what is the
point of having elections at all?
Mr. FRENZEL. Mr. Speaker, I yield my remaining time to myself.
Mr. Speaker, I yield to the gentleman from California [Mr.
Pashayan].
Mr. [Charles] PASHAYAN [of California]. Mr. Speaker, what the
task force did in Indiana stabs the very heart of the Constitution.
Article I, section 2, says: ``The House of Representatives shall be
composed of Members chosen * * * by the People * * * and the
Electors of each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State Legislature,''
and in article I, section 4, the Constitution says, ``The Times,
Places and Manner of holding Elections for * * * Representatives,
shall be prescribed in each State by the Legislature thereof * *
*,'' unless Congress shall by law regulate elections.
When the task force refused to count 32 absentee ballots that
were the same as other absentee ballots which they did count, it
acted in a manner repugnant and obnoxious to article I. It
certainly acted contrary to what the Supreme Court in a whole
series of cases has held, of which there is perhaps no more a clear
and brilliant articulation by the Court than its pronouncement in
1941 in U.S. versus Classic:
Obviously included within the right to choose, secured by the
Constitution, is the right of qualified voters within a state to cast their
ballots and have them counted at congressional elections. This court has
consistently held that this is a right secured by the Constitution * * *.
And since the constitutional command is without restriction or limitation
the right * * * is secured against the action of individuals as well as of
states.
The task force acted under its own rules, not under Federal law
passed under article I, section 4. What is worse, they applied
their own rules inconsistently. In the task force's counting rules,
No. 9, the task force provides that it will count ballots that * *
* a may not have been properly sealed election night.'' Likewise,
rule 21 provides for the counting of ballots that ``* * * may have
been improperly sealed election night.'' In other words, rules 9
and 21 contemplate counting votes that were not necessarily
perfectly secured.
Why then, but for latent political reasons, did the majority of
the task force refuse to count 32 absentee ballots that 4 Indiana
county clerks swore under perjury had been secured? There is no
consistency in the proceedings of a task force whose written rule
proclaims counting unsecured ballots and whose later ad hoc rule
proclaims not counting secured ballots.
Even worse, there is every likelihood that the task force acted
in violation of the tenets of the Voting Rights Act of 1965.
Perhaps section 11(a) of the act meant to echo the lofty
articulation of Classic in providing: ``No person acting under
color of law shall fail or refuse to permit any person to vote who
* * * is * * * qualified to vote, or willfully fail to refuse to
tabulate, count and report such person's vote.'' I find a cruel
irony indeed that the majority of the task force composed of the
majority party of this Chamber refused to follow the dictates and
spirit of the law that its party fought so hard for so many years
to realize. I find it a cruel irony that the very party that was
responsible for passing this legislation is responsible for
violating its most precious tenants: that of denying the right to
vote of people equally situated as the same class of voters.
I wonder how grievously disappointed that the people in America
whom the Voting Rights Act was designed to protect will be when
they shall come to understand that it was members of the Democratic
Party who violated the very tenet of the Voting Rights Act: ``Equal
people, equal votes.''
Article I, section 5, says, ``Each House shall be the judge of
the Elections, Returns, and Qualifications of its own Members * *
*,'' but is the power absolute? In Powell versus MacCormack, the
case of Adam Clayton Powell, the Supreme Court in 1969 said that
the House's power to be the judge the qualification of its Members
was not absolute but rather qualified by other provisions of the
Constitution, and I agree. I think it unconstitutional for a
committee or for even the House itself sitting as a judge of the
election not to be bound by other provisions of the Constitution.
Should the House have the power to judge elections unchecked by the
broad principles incorporated in the due process clause, the equal
protection clause, the privileges and immunities clause, and
especially article I, section 2, of the Constitution? Should the
House have the power to ignore these great constitutional
principles? The Democratic Party claims it does, and so it claims
an absolutist doctrine: that the ultimate power to elect the
Members of the House lies not in the people, but in the majority
party's caucus.
As a constitutional doctrine, the Democratic Party's claim
would absolutely permit the majority party, on January 3, 1987,
absolutely to determine the results of any House election. It would
absolutely permit them to refuse to accept the certification of the
secretary of state of any State, to order another task force to
recount the ballots, to have the task force issue written rules,
within the proceedings to have the task force issue ad hoc rules
inconsistent with the written, and then to unseat a properly
elected Member of the minority party by recounting only arbitrarily
selected ballots. Surely our Constitution cannot mean: ``The House
of Representatives shall be composed of Members chosen by the
majority party.''
The grand principle of the Constitution is that the people
shall choose. Once the task force decided to supplant Indiana law
by counting votes that would not be counted under Indiana law, it
was bound to do so evenly. To preclude 32 absentee ballots from
being counted while actually counting other absentee ballots
exactly alike but for a supposedly lesser degree of security is
fatuous in face of rules 9 and 21 that contemplates counting
ballots not necessarily secured.
The refusal to count all like ballots of the same substantive
class is arbitrary and unreasoned.
If this House shall act to seat McCloskey, then this House will
endorse a dark absolute power to determine elections, and the
entire Constitution will fall under a despotic shadow. Let us take
the only enlightened course: Let us order another election, open,
clean, and unbloodied by politics.
Mr. FRENZEL. Mr. Speaker, I wish that the gentleman from Kansas
[Mr. Roberts] could have closed the debate for our side, because I
think he speaks eloquently for every Republican in the House of
Representatives. We, who have been the ground beneath the tyrant's
heel, have become used to that kind of treatment. Perhaps our
spirit has been broken too much; I think perhaps we have spoiled
our friends in the majority by not being outraged nearly enough. I
hope that you will forgive us if we raise our voices once in a
century, when the peoples' right to determine who will represent
them has been taken away from them by a willful caucus, willing to
exercise ruthlessly whatever power it has by its sheer numbers.
Before I get overcome with the bitterness of past defeats, Mr.
Speaker, I do want to call particular attention to the service of
the committee chairman, our good friend, the gentleman from
Illinois [Mr. Frank Annunzio]. I believe he has handled himself and
his committee in the best traditions of the House and has been very
helpful in moving this process along in the best way that the House
can possibly move on any question this difficult.
Mr. Speaker, when the time has run its course for this debate,
I shall move to recommit House Resolution 146 to the Committee on
House Administration with instructions to that committee to count
the otherwise valid, unauthorized absentee ballots in the four
counties often discussed on the floor here so that we will have
some measure of rough justice.
As you will recall, the Democrat task force, by party line
votes, refused to count the remainder of the ballots after it had
counted 52 ballots that had been counted during the general
election, and 10 which have not. It refused to count 32 which could
be identified as having been carried under the same security as the
ballots which have been counted.
The task force, which is the real thrust of the Republican
attack here, simply found enough votes to elect its man, McCloskey,
and then stopped counting, leaving those 32 voters disenfranchised.
We heard tons of speeches on this floor that, by golly, we were
going to save those disenfranchised voters. Those bad, bad Indiana
clerks, and that bad Indiana law kept people from voting. This task
force is going to let those people vote.
Well, it did. It let 10 of the 42 we know of, but would not let
the other 32. Why not? Because they were afraid to risk losing the
four-vote advantage. Now, remember: McIntyre won the election. The
only way that McCloskey could win it was under a new set of rules.
When the new set of rules were drawn, we stopped counting under
those new rules. We abandoned them and we said: ``Oh, my goodness,
we are going to go back to Indiana law; those 32 ballots are
uncountable.''
Well, we could not find Indiana law because the task force
threw it in the trash can when it established its counting rules.
Now, I want to talk about the count a little bit. I hope that
the motion to recommit will be supported. The district court in
southern Indiana has granted a temporary injunction to protect the
ballots, so you need not worry whether they will be there or not.
They did that yesterday in response to a request.
Let me talk about the ballots. I have been led, or I think many
people have been led, to believe that for some reason mistabs have
decided who got elected here. Let me first tell you that mistabs
gave candidate McIntyre 75 more votes and candidate McCloskey 79
more votes. That is a four-vote increase for McCloskey. He did not
gain back 34 votes that he had on election night by mistabs.
Where he gained back his votes were on ballots not counted;
those 142 ballots that our valiant committee has saved to
enfranchised otherwise disenfranchised voters, even though their
ballots did not satisfy Indiana law. There his friends on the task
force found 22 more votes for McCloskey than they did for McIntyre.
Actually, McCloskey won the whole election by picking up 12 extra
votes on hanging chads.
Do you know what hanging chads are? When you have a punchcard
that does not go through, you get the little punch out and it is
hanging there. Nobody knows who they voted for. You have to be
Harry Houdini or the Almighty to know what the score is, but
somehow our task force was able to determine that 12 more of those
went for McCloskey and they found out who won.
I believe that McIntyre was beaten clearly and unmistakably by
the rules. He was beaten by subjective judgments of his Democrat
cronies. I did not say McCloskey won; I said McIntyre was defeated.
When the press asked me when I came in here today what the
House was going to do, I said: ``I think the Democrat Caucus is
going to seat the loser.'' And the basis for the seating is that
the king can do no wrong; king caucus decided on January 3 that it
was going to impose its will. King Democrat caucus was going to
impose its will on the people of Indiana. I do not think that any
other description can disguise the shame that our whole
representative process feels because this decision was made
unilaterally in that caucus, throwing aside the votes of more than
230,000 Indianans.
We have heard a lot about honor in the last couple of days, and
I am all for honor. I believe everyone here is just dripping with
honor. I remember William Shakespeare spoke through Mark Anthony to
say that Brutus was an honorable man, but he was not above sticking
a broadsword between the ribs of Julius Caesar into some of his
more tender parts. I feel a little bit like Julius Caesar today
too. I have felt the sting of the Democrat broadsword.
I remember, too, a couple of lines from Tennyson, which go like
this:
His honor rooted in dishonor stood,
And faith unfaithful held him falsely true.
Now, if there is anyone being held falsely true because he
believes that to be a good Democrat you have to disenfranchise
Indianans, I beg you, you have only two more chances. You have a
chance to give the election process back to the people of Indiana.
You have a chance to go with the certification process. You have a
chance to prove that king caucus is not a ruthless wielder of
brutal political power that overwhelms the votes of the people of
Indiana.
You have a chance to prove that you really believe in the
Constitution and the election processes of the United States of
America. If you do not, you will simply exacerbate the difficulties
that we have gone through in the last few weeks. You will have
proved to the United States of America that it does not make any
difference who the people elect if king caucus, king Democrat
caucus decides that it wants to elect one of its cronies.
Your best way to prove that this House means something, that
your love of the institution and the processes are more improtant
than your love of the party, is to vote to recommit House
Resolution 146.
Mr. PANETTA. Mr. Speaker, I yield myself the balance of my
time.
Mr. [Ronald] COLEMAN of Texas. Mr. Speaker, will the gentleman
yield?
Mr. PANETTA. I yield to the gentleman from Texas.
Mr. COLEMAN of Texas. I thank the gentleman for yielding. As
one of those Members who has read every page of this document, I
rise in support of this resolution.
Mr. Speaker, today, the House of Representatives will be voting
to seat Frank McCloskey as the duly elected Representative of the
Eighth Congressional District of Indiana. The resolution before
this body is premised upon the recount sponsored by the House which
shows Mr. McCloskey with a four-vote margin over his Republican
challenger, Mr. McIntyre.
I believe that all of us present today understand the
seriousness of the task force before us in deciding what our
respective position will be relative to the resolution now before
this body. While there has been a swirl of partisan feelings and
emotions surrounding this issue which have, on some occasions,
obscured rational thought on the part of some Members, I feel
confident that the information now available from proponents of
both sides of this issue adequately provide a basis from which an
informed decision can be made.
I am going to vote in favor of accepting the recommendation of
the Committee on House Administration to seat Frank McCloskey, not
on the basis of my political affiliation, but upon a reasoned and
indepth analysis of the premises advanced by the committee in
support of its recommendation to this Chamber.
To begin with, let us not lose sight of the fact that the House
has the ultimate responsibility as well as primary jurisdiction,
under article I, section 5 of the U.S. Constitution, to judge
elections. Pursuant to this power, the House adopted a resolution,
on January 3, 1985, to investigate the McCloskey-McIntyre election.
While I will not review the unfolding of events from election
night, 1984, through the present, I believe that all of us can
agree that the many irregularities and inconsistencies in the
Eighth Congressional District of Indiana's election process
certainly justified this action by the House.
Given the inconsistencies which characterized the counting of
the ballots in Indiana that evening within the Eighth Congressional
District, the goals of the task force were to follow counting rules
which disenfranchised the smallest possible number of voters and to
apply uniform standards which would cover all counties and
precincts. These counting rules were adopted so that technical
errors made by election officials, as opposed to those made by
voters, would not invalidate a ballot.
What I will attempt to do is to isolate for my colleagues what
I have come to view as the crucial issues upon which I have made my
decision to support the committee's recommendation.
One point which I find critical in determining the ``winner''
is that the key difference between the State's certified election
result of 34 votes and the House recount process is directly
related to tabulation errors discovered by the task force auditors
on the part of election clerks in Indiana. It is important to note
that these changes in vote tabulations resulted not from the
counting rules adopted by the task force, but from this discovery
of tabulation errors in the initial counting which took place
election night.
The true crux of this controversy surrounds the nebulous nature
of the unnotarized absentee ballots. Under Indiana law, absentee
ballots must be signed by the voter, notarized, and returned to the
appropriate county clerk by election day. On election day, the
clerk then forward the absentee ballots for each precinct out to
the appropriate precinct, where the absentees are opened and
counted along with the ballots cast in a normal manner that day.
Also under Indiana law, any absentee ballots that are not signed
and notarized are supposed to be immediately rejected and not
forwarded to the precinct--these ballots are per se invalid.
The unfortunate fact discovered by the GAO auditors hired by
the task force to count the ballots was that some of these
unnotarized ballots had been sent out to the precincts. Of these
absentees sent to the precincts through clerical error, some were
recognized by precinct workers as invalid and were not opened up or
counted while others were opened as well as counted. The task force
was then confronted with absentee ballots, clearly invalid, which
were inadvertently forwarded to precinct workers and counted;
absentee ballots, clearly invalid, which were sent to the precincts
but not counted; and, absentee ballots, clearly invalid, which were
recognized as such and retained by the various county clerks and
not forwarded to the precincts. Of those invalid absentee ballots
which were erroneously sent to the precincts, counted, and then
mixed in with the other ballots, there was no way for the task
force to be able to distinguish them and thus not count them. Of
the second category, those absentee ballots which were
inadvertently sent to the precincts and not counted, these were
clearly able to be segregated by the task force. Of the third
category, those absentees which were retained by the county clerks,
it was easy for the task force to be able to identify and
segregate.
Since it was not possible for the task force to identify and
segregate those invalid absentee ballots counted erroneously, the
question became how to treat these ballots in an equitable manner.
In the House, there is no precedent for counting unnotarized and
unwitnessed absentee ballots. What precedent there is provides that
when it is possible to differentiate between valid absentee ballots
and invalid absentee ballots, the preferred method is to
proportionately reduce the vote totals for each candidate. In this
instance--and given the tabulation errors uncovered by the GAO
auditors which benefited Mr. McCloskey--had this proportional
reduction formula been followed, Mr. McIntyre would lose more votes
than Mr. McCloskey.
Despite the existence of this precedent, and at the request of
the Republican member of the task force, it was agreed that those
ballots already counted should remain in the active count.
Regarding those absentee ballots which, while clearly invalid, were
forwarded to the precincts yet not counted or integrated with the
other ballots, task force Chairman Panetta agree with the
Republican member to count this group as well which increase Mr.
McIntyre's vote total. Relative to the third group of absentee
ballots--those recognized as invalid by the county clerks and
withheld from the precincts--the task force, along party lines,
decided not to count them.
Despite my personal misgivings about the decision of the task
force chairman to count the second category of ballots, or to count
the first category and not proportionately reduce each candidate's
totals, neither decision would have changed the result of who
actually won this election.
I believe it significant to note that not one member of the
task force ever suggested that unnotarized or unwitnessed absentee
ballots ever be counted. It was not until the last meeting of the
task force, on April 18, after it was apparent that Mr. McIntyre
was losing by four votes, that the Republican task force member
first suggested that those invalid ballots retained by the county
clerks should be treated in a manner similar to valid ballots.
In another desperate attempt to erase Mr. McIntyre's four-vote
deficit, and in direct contravention of Indiana law, the Republican
task force member also requested that military absentee ballots
that had arrived after election day be counted. The task force
voted not to count late-arriving military or other absentee ballots
received after the election.
Mr. Speaker, Frank McCloskey, albeit narrowly, won this
election based upon what I sincerely believe was a credible
counting of the ballots by GAO auditors under the supervision of
the task force. While I disagree with the decision made by the task
force to count those invalid absentee ballots which were not
comingled with other valid ballots--a total of 10 ballots in all
which gave McIntyre the majority--it is apparent that either
through the means adopted by the task force or the concept of
proportional reduction or both, McCloskey would still be the
victor.
On the matter of a special election, several things disturb me
about the recent momentum for such an event. First of all, it is
the Republicans, after realizing that they had possibly lost the
election on the recount, who are demanding a special election. This
is a new claim raised by them at the 11th hour and lacks a sound
premise. Moreover, and despite Mr. McCloskey's small margin of
victory, closeness alone while it could justify a recount, does not
now, nor has it ever, constituted an adequate legal basis to call
for a special election. Absent a showing of irregularities which go
to the heart of the final result, there is no precedent for
demanding such a special election.
For the foregoing reasons, Mr. Speaker, I believe it legal and
proper to now seat Mr. McCloskey as the representative from the
Eighth Congressional District of Indiana and I would hope that the
House can now return its attention to the national issues pending
before it.
Mr. [William] FORD of Michigan. Mr. Speaker, will the gentleman
yield?
Mr. PANETTA. I yield to the gentleman from Michigan.
Mr. FORD of Michigan. I thank the gentleman for yielding.
Mr. Speaker, after an exhaustive and painstaking recount of
last November's election in Indiana's Eighth Congressional
District, I don't believe that any fair-minded person can deny that
incumbent Frank McCloskey is the winner.
The recount was federally supervised under a careful procedure
that ensured the utmost integrity and fairness. The results are now
before us. And they are conclusive.
There is little doubt that this was the closest congressional
election of this century, with the final outcome decided by only a
handful of votes.
The narrowness of Mr. McCloskey's victory, however, is not the
issue before us. Rather, it is whether, after one of the most
careful and diligent recount procedures in our history, he emerges
as the undisputed winner. On this score the record is now clear.
And it matters not whether he won by 4 or 400 votes.
While the central issue is indeed who won that photo-finish
race, it is not, in my mind, the most important consideration
before us. That, instead, is whether the recount procedure
established by the House to resolve this prickly dilemma can stand
the test of harsh scrutiny for openness, honesty, and fairness. I
am convinced it can.
It was a far more valid recount than the one ordered by the
State of Indiana. Why? Because it examined all the ballots and did
not selectively throw some out for minor technical reasons. If the
intent of the voter was clear--and it mattered not for whom the
ballot was cast--the vote was counted. Indiana, on the other hand,
excluded nearly 5,000 ballots because of technical, not
substantive, reasons, thereby willy-nilly disenfranchising
thousands of voters.
The federally supervised recount was conducted by teams of
independent auditors from the General Accounting Office whose
integrity and professionalism is beyond reproach. These teams of
auditors laboriously counted the ballots on site by hand, leaving
nothing to chance.
Moreover, the task force appointed by the House bent over
backward to ensure fairness to both sides and fidelity to the
Constitution and the people of Indiana's Eighth District.
It has been charged, unfairly, that the composition of the task
force guaranteed an outcome favorable to Mr. McCloskey. Nothing
could be further from the truth. First of all, as I said earlier,
it established a procedure for counting all the ballots, which were
not disqualified through voter error, the only democratic way to
determine the winner.
I would like to remind my colleagues that, under the
Constitution, Congress is the sole judge when it comes to deciding
the outcome of the election of its Members.
To have relied on the results of the Indiana recount would have
been a patent abdication of our constitutional duty as elected
Members of this body. There were more than 15 separate recount
commissions in Indiana evaluating the results with 15 separate and
irregular procedures. One group, for example, accepted ballots that
another group operating only a few miles away threw out for
technical reasons. The task force, on the other hand, applied
uniform rules to bring order out of chaos. To charge now, as some
of my colleagues on the other side of the aisle have done, that we
have attempted to ``steal'' this election is to ignore the facts
for political gain.
From the very outset of this case the House has acted in a
prudent and cautious manner to protect the parties involved and the
integrity of the system. Quite properly it refused to seat either
Mr. McCloskey or his challenger, Mr. McIntyre, until all the facts
were known. To have done otherwise would have flown in the face of
electoral justice and constitutional responsibility.
It was only fitting and proper for us to withhold a final
judgment pending the results of this thorough and eminently open
recount process--a procedure open to both sides and the media every
step of the way. For us to have acted hastily before all the facts
were on the table would have demeaned the process and created
distrust in the public mind.
But now we are in possession of all the facts. Nothing remains
hidden from public view. And now that we do have the facts, it is
our duty to act upon them fairly and decisively. And the only fair
and honest way to do that is by seating Mr. McCloskey according to
the will of the majority of the voters of Indiana's Eighth
District.
Mr. [William] ALEXANDER [of Arkansas]. Mr. Speaker, will the
gentleman yield?
Mr. PANETTA. I yield to the gentleman from Arkansas.
Mr. ALEXANDER. I thank the gentleman for yielding and I will
not take any time, although I would like to. I would like to
compliment the chairman and the task force for an excellent job and
an excellent report.
Mr. Speaker, the rhetoric and parliamentary antics of the other
side have reached an absurd, juvenile level in the past few weeks.
Obviously, this reflects the increasing role of the extremist
element in Republican policymaking.
Sadly, many senior Members on the Republican side have recently
been quoted publicly and privately as saying that they are planning
to leave this body--either through early retirement or seeking
other offices--because of the frustrations and embarrassment caused
by this extremist element which paralyzes those Republicans who
legitimately seek constructive solutions to our Nation's problems.
Mr. Speaker, today the Republican side plans to walk out of the
Chamber to protest the seating of the rightful winner of Eighth
Congressional District of Indiana. Judging from the assembling of
the media around the capitol, I can only conclude this planned walk
out is more for the purposes of good press, than good government. I
suppose they will use this opportunity to once again attack the
leaders of the Democratic Party as slime and thieves, and repeat
their threats of civil disobedience and, indeed, physical assaults
to prevent the House from swearing in the rightful Congressman from
the Eighth District.
Mr. Speaker, I know at this point the extremists on the
Republican side are not interested in substance. That quality was
abandoned in their speeches weeks ago. However, I would suggest to
them that they take a look at the position of the Reagan
administration on this matter. I think they will discover the shaky
legal ground upon which they have been making their allegations of
criminal and immoral behavior. Frankly, it seems to me that the
brief filed in the Supreme Court by the Reagan administration on
the Indiana question actually justifies the action of the House in
how it has proceeded on this matter.
On the Republican allegation that the House does not have the
right to assume jurisdiction over the Indiana race, the Reagan
administration argues--and I quote:
This cannot be right * * *. The House should be left to continue its
recount and judge the elections and returns of its own Members.
On the Republican allegation that there is no evidence of
fraud, the Administration said the absence of specific allegations
of election fraud or irregularity--and I again:
That * * * is beside the point. The election was extremely close and the
question the House must determine is, what was the vote?
On the charge by the Republican side that the House should have
honored the dubious certificate of election, the administration
argues that the validity of the certificate is ``really up to each
House as the judge of its election returns.''
And on the allegation by the Republican side that the House is
unfairly and illegally denying the people of Indiana their
constitutional right to representation, the Reagan administration
quoted the case of Barry versus the United States which said:
(There is no) merit In the suggestion that the effect of the refusal * *
* to seat (a member) pending investigation was to deprive the State of its
equal representation. The temporary deprivation of equal representation
which results from the refusal * * * to seat a member pending inquiry as to
his election or qualifications is the necessary consequence of the exercise
of a constitutional power, and no more deprives the State of its ``equal
suffrage'' in the constitutional sense than would a vote * * * vacating
the seat of a sitting member or a vote of expulsion.
Mr. Speaker, there are many issues in this case upon which
reasonable people might disagree. However, the other side has
repeatedly taken the issues of this case pounded and pounded again
their own interpretation of them to the point that they are no
longer willing to listen to reason.
While I know they will not listen to my arguments or those of
the Members who have so professionally and astutely guided this
procedure, I urge them to look at the arguments or President
Reagan's own Justice Department on this matter.
[In the Supreme Court of the United States, October Term, 1984,
No. 102, Original]
State of Indiana, Plaintiff v.United States of America, et al.
(On Motion for Leave To File Original Bill of Complaint)
brief for the united states in opposition
Jurisdiction
The jurisdiction of this Court is invoked under Article III, Sec. 12, Cl.
2, of the Constitution of the United States and 28 U.S.C. 1251(b)(2). The
question of jurisdiction is further dicussed in the Argument, infra.
Statement
1. The State of Indiana--in its own right and as parens patriae--has
filed a motion for leave to file an original complaint in this Court,
seeking an order requiring the seating (at least provisionally) of Richard
McIntyre as Representative for the Eighth Congressional District of
Indiana. The claim is that refusal to seat McIntyre in the Ninety-Ninth
Congress deprives Indiana and its citizens of constitutional rights
relating to representation and control over the election of Representatives
from the State. Named as defendants are the United States, the House of
Representatives, the Speaker, and various officers of the House. The House
and its officers are represented by the Counsel to the Clerk of the House
of Representatives, who is filing a separate response to Indiana's Motion
for Leave. The present brief is submitted on behalf of the United States
only.
2. In the general election of November 6, 1984, the seat for
Representative from Indiana's Eighth Congressional District was closely
contested between Richard D. McIntyre and Francis X. McCloskey. For some
five weeks, state officials withheld certification of either candidate.
Then, on December 13, the Indiana Secretary of State and the Governor
certified McIntyre as the winner. Nevertheless, when the House of
Representatives convened on January 3, 1985, it passed a resolution
declining to seat either candidate and referring the question to its
Committee on House Administration. That Committee is conducting a recount
and has not yet reported, though it appears to be close to doing so; the
result, whoever wins, will be extremely narrow. In the meantime, both
claimants have been tendered the salary of Representative.
3. Some weeks before Indiana filed the present Motion in this Court,
Richard McIntyre and a voter from his District commenced an action against
the Speaker of the House in the United States District Court for the
District of Columbia. McIntyre v. O'Neill, Civ. No. 85-0528. The relief
sought there was essentially the same as in this original action. On March
1, the suit was dismissed on grounds of non-justiciability, and an appeal
from that ruling is now pending on an expedited basis in the Court of
Appeals for the District of Columbia Circuit, No. 85-5212, where briefing
has been completed.
Argument
There are perhaps special objections to the joinder of the United States
as a defendant to this action.1
------------
1 It is arguable, first, that the United States--as
distinguished from the House of Representatives and its officers--is not a
``proper'' party, having no separate interest in the case. Presumably,
Powell v. McCormack 395 U.S. 486 (1969), establishes that the United States
is not an indispensable party, without whose joinder the suit could not
proceed. On the other hand, it is difficult to assert that the United
States is ever an improper party where any federal governmental matter is
in controversy. See, e.g., 28 U.S.C. 2322 (review of I.C.C. orders); 28
U.S.C. 2344 (orders of Hobbs Act agencies); 28 U.S.C. 2403
(constitutionality of Act of Congress drawn into question); 25 U.S.C. 201
(qui tam action for penalties in Indian cases); 40 U.S.C. 270b(b) (suit on
behalf of laborers or materialmen on public works contracts); 42 U.S.C.
1973h(b) (challenge to state poll taxes). There is, indeed, much to be said
for affording the Department of Justice an opportunity to participate in
such litigation. In sum, we see no ground for objecting to the joinder of
the United States as improper.
It is perhaps a more serious question whether sovereign immunity
prevents the suit against the United States. The basic rule, of course, is
that absent congressional consent, a suit for injunctive relief can be
maintained only against its officers if they are charged with acting ultra
vires or unconstitutionally. See Block v. North Dakota, 461 U.S. 273, 280-
282 (1983). Here, the only arguably relevant statutory provision effecting
the requisite waiver for joining the sovereign itself is 5 U.S.C. 702,
which permits joinder of the United States whenever ``agency'' action is
subject to judicial review and nonmonetary relief is sought. However,
assuming that it applies to original actions in this Court (cf. California
v. Arizona, 440 U.S. 59 (1979)), the provision expressly excludes
``Congress'' as an ``agency.'' Accordingly, the question is whether the
officers of one House are nevertheless covered. It is not apparent why
Congress should have wished to bar joinder of the United States in such a
case if the suit otherwise can be prosecuted against the officials.
------------
We do not stop to examine any such obstacles, however, because, given
that the United States is not an indispensable party, its dismissal would
not prevent continuation of the suit against some or all of the other
defendants. Cf. Fed. R. Civ. P. 19 and 21. For like reasons, there is no
need to determine whether the joinder of the Speaker is barred by the
Speech and Debate Clauses: that would not affect prosecution of the action
against the other officers of the House. See Powell v. McCormack, 395 U.S.
486, 501-506 (1969). And, finally, we accept without quibble that the case,
if justiciable in any federal court, falls within this Court's nonexclusive
original jurisdiction as a controversy to which a state is a proper
party.2
------------
2 Notwithstanding the failure of the Judicial Code to so
provide (28 U.S.C. 1251) and contrary indications in some of the Court's
opinions (e.g., California v. Southern Pacific Co., 157 U.S. 229, 261-262
(1895); New Mexico v. Lane, 243 U.S. 82, 58 (1917); Texas v. Interstate
Commerce Commission, 258 U.S. 158. 163 (1922)), we deem it clear that this
Court enjoys concurrent original jurisdiction of all cases within the
federal judicial power, not barred by sovereign immunity, where a state is
a party, including a suit founded on federal law by a state against its own
citizens. See United States v. Texas, 143 U.S. 621, 642-645 (1892); Monaco
v. Mississippi, 292 U.S. 313, 321, 329-330 (1934). An independent basis for
invoking the original jurisdiction of this Court is that the suit is
brought by a state against citizens of other states. 28 U.S.C. 1251(b)(3).
See South Carolina v. Katzenbach, 383 U.S. 301, 307 (1966); Oregon v.
Mitchell, 400 U.S. 112, 117 n.1, 152-153 n.1, 230-231 (1970). And if the
United States is permissibly joined, original jurisdiction also lies on the
ground that the suit is between a state and the United States. 28 U.S.C.
1251(b)(2). See California ex rel. State Lands Commission v. United States,
457 U.S. 273, 277 n.6 (1982). Whichever of the three bases is invoked, this
Court's original jurisdiction is only concurrent--given that a federal
question is presented. Compare Ohio v. Wyandotte Chemicals Corp., 401 U.S.
493, 498 n.3 (1971). Accordingly, it would not affect this Court's
jurisdiction if the United States were dismissed as a party.
It may be questioned whether Indiana, acting merely as parens patriae,
can maintain an original action against the United States or its officers.
See Massachusetts v. Mellon, 262 U.S. 447, 485-486 (1923); South Carolina
v. Katzenbach, 383 U.S. at 324. But the Court's precedents indicate that
Indiana here has sufficiently alleged injury to the State in its sovereign
capacity. South Carolina v. Kazenbach, supra; Oregon v. Mitchell, supra;
South Carolina v. Regan, No. 94, Orig. (Feb. 22, 1984). See also Hodel v.
Indiana, 452 U.S. 314 (1981); FERC v. Mississippi, 456 U.S. 742 (1982).
------------
We confine ourselves here to two submissions: (1) The case presents only
a nonjusticiable ``political question'' which no federal court can
entertain; and (2) in any event, this Court ought not exercise its original
jurisdiction, but should deny leave to file as a matter of discretion.
1. This matter is nonjusticiable, because it presents a political
question. There is no exception for cases otherwise within the Court's
original jurisdiction. ``The effect of [Art. III, Sec. 2, Cl. 3] is not to
confer jurisdiction upon the Court merely because the State is a party, but
only where it is a party to a proceeding of judicial cognizance.
Proceedings not of a justiciable character are outside the contemplation of
the constitutional grant.'' Massachusetts v. Mellon, 262 U.S. 447, 480
(1923). It would be difficult to overstate the degree to which this
controversy presents the defining instance of a political question. The
classic characteristics of textual commitment to another branch and
conspicuous separation of powers problems are present and pronounced.
Unsurprisingly, the Court's opinions in this area strongly suggest that
this precise controversy would be held nonjusticiable on political question
grounds.
a. There is, in the present context, ``a textually demonstrable
constitutional commitment of the issue to a coordinate political department
* * *.'' Baker v. Carr, 369 U.S. 186, 217 (1962). See Gilligan v. Morgan,
413 U.S. 1, 6-7 (1973). Article I, Sec. 15 of the Constitution begins:
``Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members * * *.'' This is specific and more
directed to the matter at hand than Article I, Sec. 4, on which plaintiff
relies. See Roudebush v. Hartke, 405 U.S. 15, 25-26 (1972). The House of
Commons and the legislatures of the colonies judged their own elections,
and jealously protected their right to do so against other governmental
entities. H. Remick, The Powers of Congress in Respect to Membership and
Elections 1-62 (1929); M. Clarke, Parliamentary Privilege in the American
Colonies 9-10, 132-172 (1971). So, also, the American Senate and House have
been deciding election questions involving their members for nearly 200
years--sometimes responsibly, sometimes not, but never with judicial
review, despite repeated requests. In light of this history and the express
provision of Article I, Sec. 5, it seems obvious the political question
doctrine applies here--all the more so given that judicial review has been
deemed barred where the commitment of the issue's resolution to another
entity is only implicit, e.g., Coleman v. Miller, 307 U.S. 433, 450 (1938);
Goldwater v. Carter, 444 U.S. 996, 1003 (1979) (Rehnquist, J., concurring,
joined by Burger, C.J., and Stewart and Stevens, JJ.).
It is no answer that courts regularly review other exercises of power
``textually committed'' to Congress. The commitment made by Article I,
Sec. 5, is different not only in degrees, but in kind. The Commerce Clause,
for example, makes a grant of lawmaking power, and it is entirely
unremarkable that there should be judicial review of the exercise of that
authority. Here, however, the grant is itself of an adjudicative sort, and
review by the judiciary is redundant and intrusive. Article I, Sec. 5
entails making specific decisions about particular disputes--not setting
broad, prospective policy. The Constitution charges the legislature in this
special instance with doing what courts usually do--and, logically,
excluding courts from that process.3
------------
3 See Barry v. United States ex rel. Cunningham, 279 U.S.
597, 613 (1029): ``Generally, the Senate is a legislative body, exercising
in connection with the House only the power to make laws. But is has had
conferred on it by the Constitution certain powers which are not
legislative but judicial in character. Among these is the power to judge of
the elections, returns and qualifications of its own members. Art. I,
Sec. 5, cl. 1.'' See also 279 U.S. at 616: ``In exercising the power to
judge the elections, returns and qualifications of its members, the Senate
acts as a judicial tribunal * * *.''
The Court again alluded to this special function in Buckley v. Valeo,
424 U.S. 1. 133 (1976): ``[Article I,] Section 5 confers * * * a power
`judicial in character' upon each House of the Congress [citation to Barry
v. Cunningham omitted].''
Finally, in Reed v. County Comm'rs, 277 U.S. 376, 388 (1928), the Court
concluded that, given the Senate's own established powers to compel
production of evidence in election disputes, it was unlikely that the
statute in question allowed the Senators there to ask the courts to do so:
``[The Senate] is the judge of the elections, returns, and qualifications
of its members. Art. I, Sec. 5. It is fully empowered, and may determine
such matters without the aid of the House of Representatives or the
Executive or Judicial Department.''
------------
b. This underscores some of the other criteria for political questions
set out in Baker v. Carr. Judicial review in this case would repeat
precisely the job which has been committed to the House of Representatives
in the first instance, thereby ``expressing lack of respect due coordinate
branches of government * * *'' 369 U.S. at 217. For the same reason,
judicial review here necessarily contains ``the potentiality of
embarrassment from multifarious pronouncements by various departments on
one question.'' Ibid. As the Court in Baker v. Carr pointed out, the
earmark of a classic political question is the presence of pronounced
separation of powers problems. 369 U.S. at 210.
Those separation of powers concerns are further dramatized here by the
remedies plaintiff seeks. They include forcing the Speaker of the House to
administer an oath of office, compelling the House of Representatives to
seat Mr. McIntyre, and requiring the officers of the House to provide him
all the ``rights, privileges, powers, emoluments, and services'' of a
Member. To say that the enforcement of such a decree would express ``lack
of respect'' for the House and create a ``potentiality for embarrassment''
is a gross understatement. The extent to which judicial relief would
necessitate unseemly judicial interference in the business of the political
branches is of course a valid consideration in justiciability matters
generally. Cf. Allen v. Wright, No. 81-757 (July 3, 1984), slip op. 22-23.
c. Plaintiff relies heavily on Powell v. McCormack, 395 U.S. 486 (1969),
for the general proposition that the political question doctrine is
inapplicable here. But the fact is that the Court there expressly reserved
the question whether a complaint seeking the sort of coercive relief now
sought would be justiciable. Id. At 517-518, 550. Moreover, the Court also
observed; ``[F]ederal courts might still be barred by the political
question doctrine from reviewing the House's factual determination that a
member did not meet one of the standing qualifications. This is an issue
not presented in this case and we express no view as to its resolution.''
Id. at 521 n.42. The same plainly applies to the House's review of
``Elections'' and ``Returns'' as well, listed together with
``Qualifications'' in Article I, Sec. 5.4
------------
4 In this concurrence in Powell, Justice Douglas wrote that
had the dispute there been over whether an elected candidate met one of the
qualifications set out in the Constitution, then ``the House is the sole
judge.'' 395 U.S. at 552, citing Baker v. Carr, 369 U.S. at 242 n.2 Again,
presumably the same would be true for ``Elections'' and ``Returns.''
------------
What Powell did deal with was whether the Court could define what the
Constitution meant in Article I, Sec. 5, when it said ``Qualifications.''
There is no like question in this case about the meaning of ``Elections''
and ``Returns.''
The other case relied upon by plaintiffs is Barry v. United States ex
rel. Cunningham, 279 U.S. 597 (1929). There again, however, it was not
ruled that scrutiny by a house of Congress of election returns was
judicially reviewable, On the contrary: the Court indicated repeatedly in
dicta that it would not be. In ruling that the Senate could subpoena
witnesses in the course of investigating an election, the Court said that
the judiciary could intervene in such cases only upon a clear showing that
due process was being denied--and stated that the Senate's ultimate
judgment on elections was ``beyond the authority of any other tribunal to
review.'' Id. at 613. Similarly, the Court wrote that, when a member-elect
to the Senate presented himself there (Id. At 614): ``the jurisdiction of
the Senate to determine the rightfulness of the claim was invoked and its
power to adjudicate such right attached by virtue of section 5 of Article I
of the Constitution. Whether, pending this adjudication, the credentials
should be accepted, the oath administered, and the full right accorded to
participate in the business of the Senate, was a matter within the
discretion of the Senate.''
The Court went on to give one example, ``[a]mong the typical cases in the
House, where that body refused to seat members in advance of the
investigation although presenting credentials unimpeachable in form * * *''
Id. at 615 n.*. Finally, the Court stated that ``the Senate [has] sole
authority under the Constitution to judge of the elections, returns, and
qualifications of its members * * *.'' Id. at 619 (emphasis added).
The Court made a similar statement, although again in dicta, in Roudebush
v. Hartke, 405 U.S. 15, 19 (1972) (citation omitted): ``Which candidate [of
the two in the disputed election] is entitled to be seated in the Senate
is, to be sure, a nonjusticiable political question--a question that would
not have been the business of this Court even before the Senate voted.
[Citation to Powell v. McCormack omitted.]'' Hartke presented the mirror
image of this case: the apparently victorious candidate was seeking to
prevent a recount by invoking the Senate's Article I, Sec. 5 power, and
arguing that a recount by the State would undercut the Senate's authority.
In allowing the recount, the Court acknowledged that the ``State's
verification of the accuracy of election results pursuant to its Art. I,
Sec. 4 powers is not totally separate from the Senate's power to judge
elections and returns,'' but made clear that the Senate could review those
returns, as the House is doing in the instant matter: ``The Senate is free
to accept or reject the apparent winner * * *, and, if it chooses, to
conduct its own recount'' (405 U.S. at 25-26) (footnote omitted). The Court
pointed out that ``[t]he Senate itself has recounted the votes in close
elections in States where there was not recount. Procedure'' (Id. at 26
n.24) (citation omitted).5
------------
5 Justices Douglas and Brennan dissented in part, on the
ground that the Court should have enjoined the state's recount so that the
Senate could be sure that the ballots were reviewed in pristine form. The
partial dissent stated (405 U.S. at 30), that `[t]he parties before the
Court are apparently in agreement that * * * there has been a ``textually
demonstrable constitutional commitment'' (Baker v. Carr, 369 U.S. 186, 217;
Powell v. McCormack, 395 U.S. 486, 518-549) to the Senate of the decision
[who] * * * I received more votes. Our case law agrees.'' The dissent then
went on to discuss Barry v. Cunningham, supra, and Reed v. County Comm'rs,
277 U.S. 376 (1928), concluding that ``where all that is at stake is a
determination of which candidates attracted the greater number of ballots,
each [house] has supreme authority to resolve such controversies'' (Id. at
32) (citation omitted).
------------
d. Indiana is asking more than that the House's determination of the
election be overturned; it seems to be praying that the House be precluded
even from reviewing the State of Indiana's determination of that election.
The assertion is apparently that the House must accept the State's
certification of the election returns, or it will violate Indiana's
constitutional right to determine the ``Times, Places, and Manner of
holding Elections for Senators and Representatives * * *.'' Art. I, Sec. 4,
Cl. 1. This cannot be right, for it would contradict the more specific
constitutional provision that ``[e]ach House shall be the Judge of the
Elections, Returns and Qualifications of its own Members * * *.'' See
Roudebush v. Hartke, 405 U.S. at 25-26. The Court said in Barry v. United
States, 279 U.S. at 613, that in ``exercising this power [of reviewing
elections], the Senate may, of course, devolve upon a committee of its
members the authority to investigate and report; and this is the general,
if not the uniform, practice.6
------------
6 With regard to plaintiff's claim that it is being
deprived of Its right to representation, Barry is also relevant (279 U.S.
at 615-616): ``Not is there merit in the suggestion that the effect of the
refusal of the Senate to seat (a member) pending investigation was to
deprive the state of its equal representation in the Senate * * * The
temporary deprivation of equal representation which results from the
refusal of the Senate to seat a member pending inquiry as to his election
or qualifications is the necessary consequence of the exercise of a
constitutional power, and no more deprives the state of its ``equal
suffrage'' in the constitutional sense than would a vote of the Senate
vacating the seat of a sitting member or a vote of expulsion.''
------------
Plaintiff insists that the state certification be afforded a
``presumption of validity,'' But that is really up to each house, as the
judge of its election returns. In any event, the House may well be
affording just such a presumption, albeit it is unwilling to risk seating
and then unseating the Representative from the Eighth Congressional
District of Indiana. Plaintiff also stresses that there have been no
allegations of election fraud or irregularity. That, however, is beside the
point: everyone agrees that the election was extremely close, and the
question which the House must determine is, what was the vote? It is
implicit that there is a chance for honest or dishonest error. Such
presumptions, in any event, are two-edged; as the Court said in Barry v.
United States, supra, ``[T]he presumption in favor of regularity, which
applies to the proceedings of courts, cannot be denied to the proceedings
of the Houses of Congress, when acting upon matters within their
constitutional authority.'' 279 U.S. at 619.
The clarity with which this controversy presents a political question is
remarkable. The House should be left to continue its recount and judge the
elections and returns of its own Members.
2. The political question issue aside, the Court should exercise its
discretion in favor of declining to hear the case. The Court's jurisdiction
here is neither exclusive, 28 U.S.C. 1251(b)(2), nor mandatory. It has
consistently been the Court's philosophy that its original jurisdiction
should be exercised ``sparingly.'' See, e.g., Arizona v. New Mexico, 425
U.S. 794, 796 (1976); United States v. Nevada, 412 U.S. 534, 538 (1973);
Illinois v. City of Milwaukee, 406 U.S. 91, 93 (1972); Ohio v. Wyandotte
Chemical Corp., 401 U.S. 493, 501 (1971); Utah v. United States, 394 U.S.
89, 95 (1969); and Massachusetts v. Missouri, 308 U.S. 1, 18-20 (1939). The
Court exercises this discretion in the light of Its increasing appellate
docket--Illinois v. City of Milwaukee, 406 U.S. at 93-94; Washington v.
General Motors Corp., 406 U.S. 109, 113 (1972); Arizona v. New Mexico, 425
U.S. at 797 and, more generally, ``with an eye to promoting the most
effective functioning of this Court within the overall federal system.''
Texas v. New Mexico, 462 U.S. 554, 570 (1983).
The Court noted in Illinois v. City of Milwaukee, 406 U.S. at 93, that
what is ``appropriate'' for the Court to hear in the exercise of its
original jurisdiction involves both ``the seriousness and dignity of the
claim'' and ``the availability of another forum where there is jurisdiction
over the named parties, where the issues may be litigated, and where
appropriate relief may be had.'' See Maryland v. Louisiana, 451 U.S. 725,
739-740 (1981); Arizona v. New Mexico, 425 U.S. at 796-797. This case fails
to meet either criterion. The immediacy of the claim--an important part of
its ``seriousness''--is undermined by the fact that the House is now in the
process of recounting the ballots, and it is very much in doubt what the
outcome will be. The Court cited similar ripeness problems in declining to
assert its original jurisdiction in United States v. Nevada, 412 U.S. at
540.
There are available, moreover, other judicial forums for this dispute. It
is, in fact, already being litigated in the District of Columbia Circuit,
where it has been heard by the District Court on an expedited basis, and
has now been briefed for the appellate court on an expedited schedule.
McIntyre v. O'Neill, dismissed, Civ. No. 85-0528 (D.D.C. Mar. 1, 1985),
appeal docketed, No. 85-5212 (D.C. Cir. Mar. 1, 1985). One plaintiff in
that case is suing as a voter from the Eighth District. Also, relief
against the House essentially identical to that sought here is asked for.
Indiana itself is not precluded from bringing an action in another forum;
nor does it appear to have been prevented from joining the action now in
progress in the District of Columbia Circuit. This Court could properly
decline to exercise its jurisdiction, in any event, so long as the
``issues'' are being litigated in another forum and Indiana's ``interests''
will be ``represented'' there. See Arizona v. New Mexico, 425 U.S. at 797;
Maryland v. Louisiana, 451 U.S. at 743. Given the relief sought and the
parties represented, that is the situation here.
As the Court said in United States v. Nevada, 412 U.S. at 538, ``We seek
to exercise our original jurisdiction sparingly and are particularly
reluctant to take jurisdiction of a suit where the plaintiff has another
adequate forum in which to settle his claim.'' See Maryland v. Louisiana,
451 U.S. at 744; Illinois v. City of Milwaukee, 406 U.S. at 93; Washington
v. General Motors Corp., 406 U.S. at 114; Massachusetts v. Missouri, 308
U.S. at 19-20. In sum, the State of Indiana has wholly failed to establish
the ``practical necessity'' required for invoking this Court's original
jurisdiction. Texas v. New Mexico, 462 U.S. 554, 570 (1983).
Conclusion
The motion for leave to file an original complaint in this Court should
be denied.
Respectfully submitted.
Rex E. Lee,
Solicitor General.
Richard K. Willard,
Acting Assistant Attorney
General.
Louis F. Claiborne,
Deputy Solicitor General.
Roger Clegg,
Attorney.
April 1985.
Mr. PANETTA. Mr. Speaker, I regret that there are obviously
larger issues that go beyond the Eighth District that are involved
here that relate to abuse of the minority and the feeling that that
is the case. Unfortunately, I think that poisons the atmosphere in
terms of being able to weigh the facts that are presented here in a
fair and objective way. I regret that, but that is the case.
Nevertheless, I urge Members to please look at the report and
please look at the facts that are involved here.
The issue that is raised on the recommittal will relate to the
ballot issue, the illegal ballots that were not counted. Let me
speak to that.
At no time--at no time--did the task force intend to count
illegal votes. At no time, under House precedent or under any other
rule. Our basic approach was not to count illegal votes. Absentee
ballots that are not authorized and not signed are illegal votes.
We never intended to count those votes.
What happened was, we found a mistake, an error, not by the
task force, not by the majority, but by the election officials in
Indiana who, by mistake, sent some 62 of those illegal ballots out
to the precincts. Fifty-two of those were counted. That was a
mistake. It should not have happened. Once those 52 were counted,
they were intermingled with other valid ballots. There was no way
to go back and correct that mistake. Ten were out there that were
also at the precinct level. One of those was open and not counted.
It was our feeling and, frankly, the gentleman from California
[Mr. Thomas], agreed with us, that there is the potential for
mischief when a precinct worker can look at the name on that
absentee ballot and decide whether or not that individual will be
counted. In particular, when an envelope is opened and that
particular vote has not been counted.
Mr. [Charles] PASHAYAN [of California]. Mr. Speaker, will the
gentleman yield?
Mr. PANETTA. Please let me finish my statement.
Mr. Speaker, as a result of that, it was our feeling that a
mistake had been made. Unfortunately, there were additional ballots
at the precinct level that were subject to mischief and, therefore,
that those votes ought to also be counted, and as you know, they
counted six, three, and one in favor of Mr. McIntyre.
The role of the task force, it seems to me, is to limit
mistakes, not compound mistakes. Those clerks were to serve--
Mr. THOMAS of California. Mr. Speaker, will the gentleman yield
on a point of error? On a point of error?
Mr. PANETTA. Allow me to complete my statement, please.
The clerks were supposed to act as a dam to prevent those
illegal ballots from going out to the precincts. A few of those
ballots seeped through the dam, and now what the Republicans argue
is that we ought to blow up the dam and let the rest of the illegal
ballots that were retained by the clerks be counted.
It is my view that we ought to respect the performance of those
clerks who held those illegal ballots and did not forward them on
to the precincts.
Yes, there were judgments made here. Let us make no question
about it. Every time you deal with an election, there are judgments
that have to be made on a variety of issues and we did that over 9
weeks. The GAO auditors went to 233,000 ballots. They had to make
judgments. The teams had to make judgments. We on the task force
had to make judgments.
Some of the ballots were counted, some were not, based on those
judgments. The question you have to ask as Members of this House
is: Were those judgments justified, reasonable, and supported by
House precedent? The House precedent, when it comes to counting
illegal votes, is that you do a proportional reduction on the ones
that are counted. That is what the House precedent is, if you want
to know what the law is with regard to those ballots. And if we did
a proportional reduction or took those 10 votes out, who would be
the winner? McCloskey would be the winner, because those ballots
inured to the benefit of Mr. McIntyre.
So for that reason, my view was that we do not do a
proportional reduction because I know what the attack would have
been. ``That is a very inexact tool, and you hurt our candidate.''
So we did not use that tool. In terms of the proportional
reduction, we counted the 10 and drew the line at that class with
regard to the ballots that were at the precinct, and that is
supported by House precedent and, incidentally, it is supported by
Mr. Shumway. There have been comments here that Mr. Shumway would
support a recount. Let me read to you from a letter that he sent to
me yesterday stating:
There have been remarks that I would have counted those absentee ballots.
I would like to have the record accurately reflect my position. I would say
invalid ballots, whether absentee or otherwise, should not be counted.
That is Mr. Shumway's position with regard to this issue.
One final reflection: If Mr. McIntyre had won this race, none
of this would have been an issue. Make no mistake about it. This
would not be an issue that would have been raised at this time. Had
we counted these illegal votes and McIntyre was not ahead, do you
think they would have stopped there? They would have argued that we
continue to count illegal votes, the deceased votes, the late-
arriving ballots, until Mr. McIntyre had somehow won.
The fact is that in looking at this election, the argument that
now we ought to count these illegal ballots, do we want this
election to turn on counting illegal votes? Would Mr. McCloskey or
Mr. McIntyre want this election to count based on counting illegal
votes? Is that something we want to justify? I do not think so.
The 10 votes made no difference. As I said, McCloskey, if we
took those 10 votes out, would still be the winner. Please look at
the facts. That is all I ask as chairman of this task force.
The decisions were justified. They were supported, and they
were right, and Mr. McCloskey ought to be seated.
Mr. Speaker, I yield back the balance of my time.
Mr. Speaker, I move the previous question on the
resolution. -------------------
MOTION TO RECOMMIT OFFERED BY MR. FRENZEL
Mr. FRENZEL. Mr. Speaker, I offer a motion to recommit with
instructions.
The SPEAKER pro tempore. Is the gentleman opposed to the
resolution?
Mr. FRENZEL. I am, Mr. Speaker.
The SPEAKER pro tempore. The Clerk will report the motion.
The Clerk read as follows:
Mr. Frenzel moves to recommit H. Res. 146 to the Committee on House
Administration with instructions that the Committee be directed to count
the otherwise valid unnotorized absentee ballots identified by the Task
Force on the Indiana Eighth Congressional District in Orange, Lawrence,
Daviess and Greene Counties and when that count is completed the Committee
will certify the winner and report their findings immediately to the House.
The SPEAKER pro tempore. Without objection, the previous
question is ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to
recommit.
The question was taken; and the Speaker pro tempore announced
that the noes appeared to have it.
Mr. FRENZEL. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
183, nays 246, not voting 4, as follows:
[Roll No. 90] . . .
Mr. MURPHY and Mr. MICA changed their votes from ``yea'' to
``nay.''
Mr. SCHAEFER changed his vote from ``nay'' to ``yea.''
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
The SPEAKER. The question is on the resolution.
The question was taken; and the Speaker announced that the ayes
appeared to have it.
Mr. FRENZEL. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
236, nays 190, answered ``present'' 2, not voting 5, as follows:
[Roll No. 91] . . .
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the
table. -------------------
MOTION TO ADJOURN
The SPEAKER.(16) For what purpose does the gentleman
from Illinois [Mr. Michel] rise?
---------------------------------------------------------------------------
16. Thomas O'Neill (MA).
---------------------------------------------------------------------------
Mr. MICHEL. Mr. Speaker, in view of that vote, the last vote, I
move that we adjourn.
The SPEAKER. Would the gentleman withhold until the Chair has
had an opportunity to swear in Mr. McCloskey?
Mr. MICHEL. No, Mr. Speaker. Our purpose is to adjourn
immediately in keeping with the precedent of the Democratic Party
back in 1890.
The SPEAKER. The gentleman appreciates the fact that the motion
is not debatable.
Mr. MICHEL. I understand, Mr. Speaker.
The SPEAKER. The question is on the motion to adjourn offered
by the gentleman from Illinois [Mr. Michel].
The question was taken; and the Speaker announced that the noes
appeared to have it.
Mr. MICHEL. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
179, nays 248, not voting 6, as follows:
[Roll No. 92] . . .
Mr. CONTE changed his vote from ``nay'' to ``yea.''
Mr. SMITH of Iowa and Mr. Breaux changed their votes from
``yea'' to ``nay.''
So the motion to adjourn was rejected.
The result of the vote was announced as above
recorded. -------------------
SWEARING IN OF THE HONORABLE FRANK McCLOSKEY OF INDIANA AS A
MEMBER OF THE HOUSE
The SPEAKER. It is the intention at this particular time to
have the Indiana delegation present to the House the elected
candidate.
Mr. McCLOSKEY appeared at the bar of the House and took the
oath of office.
The SPEAKER. The gentleman is a Member of the Congress of the
United States.
Sec. 20.2 Won Pat v Blaz
The general election for the office of Delegate to the House of
Representatives from Guam was conducted on November 6,
1984.(17) The general election candidates were Antonio B.
Won Pat (the Democratic candidate), and Ben Blaz (the Republican
candidate). The initial vote count by the Guam Election Commission
(GEC) indicated that Mr. Blaz had received 15,725 votes, and that Mr.
Won Pat had received 15,402 votes--a margin of 323 votes. After the GEC
ordered a computer recount, and then a hand count of paper ballots, the
margin had increased to 355 votes. The GEC certified Mr. Blaz as the
winner of the election on November 21, 1984.
---------------------------------------------------------------------------
17. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 99-220, 99th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 21, 1984, Mr. Won Pat (hereafter ``contestant'')
submitted a notice of contest to the Clerk of the House, which was
referred to the Committee on House Administration for disposition. The
contestant argued that Mr. Blaz (hereafter ``contestee'') did not
receive a majority of votes cast, as required by
statute.(18) Further, contestant argued that the GEC had
failed to issue absentee ballots in a timely manner, thus
constructively disenfranchising eligible voters.
---------------------------------------------------------------------------
18. 48 U.S.C. Sec. 1712.
---------------------------------------------------------------------------
On January 21, 1985, contestee filed a motion to dismiss the case.
Thereafter, on March 29, 1985, contestant filed a response in
opposition to the motion to dismiss, and contestee, on June 5, 1985,
filed a reply to the response.
The Committee on House Administration formed a task force of three
Members to review the various pleadings in the case. On June 5, 1985,
the task force met to hear oral arguments on the motion to dismiss. On
June 27, 1985, the task force voted to recommend that the contestee's
motion to dismiss be granted.
In its committee report, the Committee on House Administration
noted that a Federal statute provides that the Delegate to the House of
Representatives from Guam must be elected ``by a majority of the votes
cast.''(19) Contestant argued that ``overvotes'' (i.e.,
ballots cast for more than one candidate) and blank ballots (in which
no candidate was selected) should be included in the denominator for
determining ``a majority'' of the total number of votes cast. The
committee, however, found that the GEC's decision not to count such
ballots in the vote total was consistent with both prior practice and
House precedents, and was thus ``reasonable and
proper.''(20)
---------------------------------------------------------------------------
19. Id.
20. H. Rept. 99-220, 99th Cong. 1st Sess. p. 5.
---------------------------------------------------------------------------
The committee was also not persuaded by the contestant's second
claim that the late issuance of absentee ballots disenfranchised
voters. The committee argued that the late issuance of absentee ballots
was a known pre-election issue, and thus should have been addressed
before the election took place. The committee further noted that most
absentee ballots were returned on time to be counted, and that there
was no evidence presented that counting late ballots would have changed
the result of the election. Further, contestant's remedy that late-
arriving ballots be counted as part of the total votes cast, but not
for any candidate, was considered by the committee to be
``illogical.''(21) On this basis, the committee recommended
dismissal of the contest.
---------------------------------------------------------------------------
21. Id. at p. 6.
---------------------------------------------------------------------------
On July 24, 1985,(22) the committee called up House
Resolution 229 (dismissing the contest) as a privileged matter, and the
House agreed to the resolution by voice vote:
---------------------------------------------------------------------------
22. 131 Cong. Rec. 20180-81, 99th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST BEN BLAZ
Mr. [Ed] JONES of Tennessee. Mr. Speaker, by direction of the
Committee on House Administration, I call up a privileged
resolution (H. Res. 229) dismissing the election contest against
Ben Blaz, and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 229
Resolved, That the election contest of Antonio Borja Won Pat, contestant,
against Ben Blaz, contestee, relating to the office of Delegate from Guam,
is dismissed.
The SPEAKER.(23) The gentleman from Tennessee [Mr.
Jones] is recognized for 1 hour.
---------------------------------------------------------------------------
23. Thomas O'Neill (MA).
---------------------------------------------------------------------------
Mr. JONES of Tennessee. Mr. Speaker, I yield 30 minutes, for
the purpose of debate only, to the gentlewoman from Nevada
[Mrs.Vucanovich], and pending that, I yield myself such time as I
may consume.
Mr. Speaker, House Resolution 229 is a resolution to dismiss
the election contest regarding the position of Delegate from the
Territory of Guam.
Under the U.S. Constitution and the rules of the House, the
Committee on House Administration is charged with the
responsibility for investigating contested elections.
On July 10 the Committee on House Administration, by unanimous
voice vote, directed me to bring to the floor this resolution
dismissing the election contest of Antonio Won Pat against Ben
Blaz.
Pursuant to the Rules of the committee, Chairman Annunzio
established a task force to examine the documentary record, and to
receive oral arguments from contestant and contestee. I chaired the
task force, serving with me were Mr. Gejdenson and Mr. Badham.
After presentation of oral arguments, and examination of the
record, the task force determined that the contestant did not meet
his burden of presenting sufficient documentary and other evidence
to warrant further proceedings. The task force then unanimously
recommended dismissal of the contest, and the committee also by
unanimous vote, ordered this dismissal resolution reported to the
House.
Although contestant Won Pat raised a number of issues regarding
the administration of the election, which the committee hopes will
be addressed by the Guam Election Commission before the next
election, the committee concluded that the issues raised were not
sufficient to overturn the outcome of the election. The initial
count of ballots, and two subsequent recounts, provided
contesteeBlaz with a winning margin of approximately 350 votes out
of 31,000 cast.
The two principal issues raised by contestant were the late
mailing of absentee ballots, and an interpretation by the Guam
Election Commission of the election statute. Let me first address
the absentee ballot question.
The task force found that no absentee ballots were sent out
until October 16, 1984. Thereafter they were sent out as
applications were received, right up to the week before the
election.
The voters were instructed to return the absentee ballots as
soon as possible, and were also instructed that absentee ballots
received after election day would not be counted. Nearly two-thirds
of the ballots sent out were returned by election day, and were
included in the final tally. Late arriving ballots were not
counted.
Given the late date on which absentee ballots were sent out, 21
days before the election compared to the 45 days recommended by the
Voting Assistance Office of the Pentagon, some voters may not have
been able to timely return their ballots. The committee hopes that
the Guam Election Commission will establish procedures for future
elections which allow substantially more transit time than was
provided in the last general election, so as to avoid the possible
disenfranchisement of overseas voters. Nevertheless, the committee
does not believe contestant's claim requires that the election be
invalidated. Invalidating an election is a radical step. There is
no reason for believing that delay in sending out the absentee
ballots had an impact on the result of the election. If there were
a problem the contestant should have sought relief before the
election.
The contestant's second contention is that blank ballots and
over votes should be included in the total number of ``votes
cast.'' That would deprive contestee of the absolute majority,
required by the Guam statute.
In interpreting a similar statutory provision governing
elections in the Virgin Islands, a Federal court of appeals
rejected the argument that such ballots should be included in the
total of votes cast. The committee found the court's reasoning to
be persuasive and affirmed the decision of the Guam Election
Commission.
The committee reviewed the other arguments put forth by
contestant, but found that the various issues raised were not,
individually or collectively, sufficient to change the result of
the election.
Consequently the committee recommends that the House adopt the
resolution dismissing the election contest.
Mr. [Robert] BADHAM [of California]. Mr. Speaker, I yield
myself such time as I may consume.
Mr. Speaker, I rise in support of the resolution. As was stated
by the gentleman from Tennessee, the task force met and heard oral
arguments from the counsels for both parties and in a later meeting
voted unanimously to dismiss the contest.
Briefly, Mr. Speaker, the contestant's allegations were that
the rights of absentee voters were deprived by acts of election
officials and that the contestee did not receive a majority of the
votes cast in this election. Additionally, the contestant raised
certain other allegations of irregularities in the Guam election
process.
First, the allegation was made that the low rate of return of
the ballots was because the first ballots were not mailed to the
absentee voters until October 16 and that the mailing of the
absentee ballots were not completed until October 31. Therefore,
there was not enough time to complete and return the ballots in a
timely manner. Counsel for the contestee presented the task force
with an affidavit from the employee of the Guam Election Commission
who spoke with the Postal Service representative who had advised
her that if the absentee ballots were sent out by October 21 and if
they were expeditiously returned by the voter the ballots should be
back in time to be counted in the general election. In addition,
Mr. Speaker, the absentee voter was advised several times within
the absentee mailing to return the ballot immediately.
The contestant's second allegation that the contestee did not
receive a majority of the votes cast. They contend that the
``majority'' must be computed to include ballots cast that were
marked for both candidates--over-votes--or neither candidate--blank
ballots. Further, the contestant believes that the absentee ballots
which were postmarked prior to November 6, but received after the
close of the polls are ``votes cast.''
Mr. Speaker, there was a similar case decided in 1982 in an
election for Governor and Lieutenant Governor of the Virgin
Islands. The court was faced with the issue of whether blank and
spoiled ballots should be counted in determining the majority of
the votes cast. In the Totman versus Boschulte opinion, the Court
quoted an earlier decision (Euwema v. Todman, 8 V.I.224 (D.V.I.
1971)) which stated that ``The proper basis for computing a
majority'' was that ``voters not attending the election or not
voting on the matter submitted are presumed to assent to the
expressed will of those attending and voting and are not to be
taken into consideration in determining the result.'' Additionally,
the Guam Election Commission legal counsel advised the commission
of a legal opinion written 2 years ago that blank ballots and those
with voted too many should not be counted.
Mr. Speaker, I don't believe it is necessary to take any more
of the House's time on the resolution and would urge its adoption.
Mr. JONES of Tennessee. Mr. Speaker, I have no further requests
for time, and I yield back the balance of my time.
general leave
Mr. JONES of Tennessee. Mr. Speaker, I ask unanimous consent
that all Members may have 5 legislative days in which to revise and
extend their remarks on the resolution just agreed to.
The SPEAKER pro tempore (Mr. [Kenneth] GRAY of Illinois). Is
there objection to the request of the gentleman from Tennessee?
There was no objection.
Mr. Speaker, I move the previous question on the resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 20.3 Hansen v Stallings
The general election for the office of Representative to Congress
from the Second District of Idaho was conducted on November 6,
1984.(24) The general election candidates were Richard H.
Stallings (the Democratic candidate), and George V. Hansen (the
Republican candidate). The official canvass of votes by the State Board
of Governors showed that Mr. Stallings had received 101,266 votes, and
that Mr. Hansen had received 101,133 votes--a margin of 133 votes. On
November 21, 1984, a certificate of election was issued by the State
Board of Governors to Mr. Stallings. Mr. Stallings' credentials were
presented to the House of Representatives, and he appeared on January
3, 1985, to be administered the oath of office. Another Member-elect
(Rep. John Myers of Indiana) objected to the seating of Mr. Stallings,
and Mr. Stallings did not take the oath of office with other Members-
elect en masse. However, the Majority Leader (Rep. Jim Wright of Texas)
offered a privileged resolution authorizing the Speaker to administer
the oath of office to Mr. Stallings. That resolution was agreed to
unanimously (407 yeas, zero nays, one voting ``present,'' and 18
Members not voting). Mr. Stallings was then administered the oath of
office by the Speaker.(25)
---------------------------------------------------------------------------
24. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 99-290, 99th Cong. 1st Sess.
25. For the Congressional Record depiction of the challenge to the
seating of Mr. Stallings, and the subsequent offering of the
resolution authorizing the administration of the oath of
office, see Precedents (Wickham) Ch. 2 Sec. Sec. 4.1, 4.2.
---------------------------------------------------------------------------
A partial recount was conducted by state election officials
pursuant to a request by Mr. Hansen under state law. The results of the
partial recount showed an increase in Mr. Stallings' margin of victory
to 170 votes. Mr. Hansen requested that the Attorney General of Idaho
conduct a full recount at state expense, but the Attorney General
declined, citing Idaho law that required ``sufficient material
differences''(26) between the initial count and the partial
recount. This decision was affirmed by the Idaho Supreme Court.
---------------------------------------------------------------------------
26. H. Rept. 99-290, 99th Cong. 1st Sess. p. 5.
---------------------------------------------------------------------------
On December 21, 1984, Mr. Hansen (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was forwarded to
the Committee on House Administration for its review. In response, Mr.
Stallings (hereafter ``contestee'') filed a motion to dismiss the case.
The committee established a task force of three Members to review the
pleadings in the case. On June 7, 1985, the task force met to hear oral
arguments from the parties.
Contestant argued that illegal votes had been cast by individuals
who were not eligible to vote. Contestant further contended that state
officials had misrepresented the results of the recount. With regard to
the first claim, the task force examined Idaho election laws, and
concluded that state voter registration requirements were complied
with. Contestant produced no evidence to suggest that improperly
registered voters had voted in the election. The committee also cited
House and Idaho precedents for the proposition that mere technical
errors by local election officials (e.g., negligently accepting
incomplete voter registration cards) should not be the basis for
invalidating votes or overturning the results of an election.
With regard to the second claim, the committee relied on the
decisions of state officials and courts in making the decision not to
conduct a full recount under its own auspices. The committee noted that
the contestant had failed to avail himself of opportunities under state
law to expand the partial recount to include more precincts. Given that
the FCEA was designed, in part, to exclude ``[w]asteful investigations
of meritless claims,''(27) the committee concluded that the
contestant had not undertaken the required effort to develop the
necessary evidentiary record that would allow him to prevail against a
motion to dismiss. Absent such a record, there was no basis on which
the committee could conclude that any irregularities had occurred--
either with the election itself or the partial recount.
---------------------------------------------------------------------------
27. Id. at p. 6.
---------------------------------------------------------------------------
Contestant also argued (subsequent to the filing of the notice of
contest) that an impoundment order issued by the Idaho Secretary of
State prevented local election administrators from properly verifying
vote totals. The committee, however, found that claim to be ``without
merit'' and that the ``claimed impact on the election is merely
speculative.''(28)
---------------------------------------------------------------------------
28. Id. at p. 8.
---------------------------------------------------------------------------
Finally, the committee affirmed the House's inherent authority to
dismiss cases even where the contestee fails to file a motion to
dismiss, or where contestee's motion to dismiss is untimely. Whether or
not the contestee's motion to dismiss was timely under the statute is
immaterial to the issue of whether the contestant met his burdens under
the statute. The committee concluded that the contestant had not met
the substantial burden imposed by the FCEA, and therefore recommended
that the House dismiss the case.
On October 2, 1985,(29) the committee called up House
Resolution 272 (dismissing the contest) as a privileged matter, and the
House agreed to the resolution by voice vote:
---------------------------------------------------------------------------
29. 131 Cong. Rec. 25664-70, 99th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST RICHARD HOWARD
STALLINGS
Mr. [Jim] BATES [of California]. Mr. Speaker, by direction of
the Committee on House Administration, I call up a privileged
resolution (H. Res. 272) dismissing the election contest against
Richard Howard Stallings, and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 272
Resolved, That the election contest of George Vernon Hansen, contestant,
against Richard Howard Stallings, contestee, relating to the office of
Representative from the Second Congressional District of Idaho, is
dismissed.
The SPEAKER pro tempore.(30) The gentleman from
California [Mr. Bates] is recognized for 1 hour.
---------------------------------------------------------------------------
30. Chester Atkins (MA).
---------------------------------------------------------------------------
Mr. BATES. Mr. Speaker, I yield 30 minutes, for the purpose of
debate only, to the gentleman from Kansas [Mr. Roberts], and
pending that, I yield myself such time as I may consume.
Mr. Speaker, House Resolution 272 is a resolution to dismiss
the election contest regarding the seat of the Representative from
the Second Congressional District of Idaho.
Under the U.S. Constitution, title 2 of the United States Code,
and the Rules of the House of Representatives, the Committee on
House Administration is charged with the responsibility of hearing
contested election cases and recommending disposition of such cases
to the House.
Pursuant to the rules of the Committee on House Administration,
Chairman Frank Annunzio established a task force to examine the
documentary record, and to receive oral arguments from contestant
and contestee. I chaired the task force. Serving with me were Mr.
Swift and Mr. Roberts.
summary of proceedings
After presentation of oral arguments, and examination of the
record, the task force determined that the contestant did not meet
his burden of presenting sufficient documentary and other evidence
to warrant further proceedings. The task force then recommended
dismissal of the contest to the Committee on House Administration.
On July 24, the Committee on House Administration, by a vote of 12
ayes and 1 nay, directed me to bring to the floor this resolution
dismissing the election contest of George Hansen against Richard
Stallings.
Although contestant Hansen raised a number of issues regarding
the administration of the election, which the State of Idaho has
addressed for future elections, the committee concluded that the
issues raised were not adequately supported by documentary or other
materials as required by House precedent, and were in any case
insufficient to overturn the outcome of the election. The election
night canvass of the ballots, and a subsequent partial recount at
contestant Hansen's request, gave Stallings an initial winning
margin of 133 votes, which was increased to 170 votes after the
recount.
summary of primary grounds
There were two primary grounds upon which the contest was
based. First, Hansen claimed that a number of illegal votes were
cast for Mr. Stallings which, if removed, would change the outcome
of the election. The essence of this claim is that these allegedly
illegal votes were cast by voters who were not properly registered.
The second ground for the contest was that the results of a
partial recount, which was conducted at contestant Hansen's
request, required the House of Representatives to conduct a full
recount. Contestant Hansen also raised during oral argument,
various ancillary claims of irregularity, which I will address
later, even though they were not a part of contestant's original
notice of contest. For example, after filing the notice of contest,
contestant Hansen suggested that the canvass of votes by the State
on election night was not conducted in accordance with Idaho law,
and that an impoundment order, protecting the balloting materials,
was not properly issued by the secretary of state.
The committee reviewed these and other arguments put forth by
contestant, but found that the various issues raised were not,
individually, or collectively, sufficient to change the result of
the election, and were not supported by an evidentiary showing.
Consequently the task force, and the committee recommend that
the House adopt the resolution dismissing the election contest.
illegal votes
Mr. Hansen's first claim was that a number of illegal votes
were cast for Mr. Stallings, which, if invalidated, would change
the outcome of the election. The task force found that the claim
was without foundation.
Contestant Hansen claimed that approximately 2,500 voters were
illegally registered. Contestant based his claim on an
interpretation of an Idaho statute which specifies the information
to be gathered by State registrars in registering voters. In Idaho,
the State election official completes a voter registration form
based upon information provided to the election official by the
prospective voter. Based on that information, and any additional
information provided by the prospective voter, the election
official then makes a determination as to whether or not the
applicant is qualified to register and to vote.
In some instances, State election officials registered voters
whose addresses were listed as post office boxes, or were
incomplete or missing. Contestant Hansen argued that since these
registration forms, filled out by State election officials, lacked
some or all of the elements of a conventional address; for example,
street numbers and street names, that these citizens should be
declared ineligible to vote.
Election officials from urban and suburban areas can, by and
large, specifically locate eligible voters by street name and
street address. However citizens living in remote or rural areas
seldom live on a block or in a subdivision, and may live where
there are no streets, or where rural access roads are unpaved,
unnamed and unnumbered. These voters may receive their mail through
a post box, or by rural free delivery. The lack of a street address
is not a basis for depriving an otherwise eligible citizen of the
State of Idaho his or her opportunity and right to vote.
In this instance, contestant Hansen's complaint relates largely
to the rural areas of Blaine County, where many people live in
areas remote from any town. The election officials registering
these voters made determinations about their eligibility, even in
the absence of a street name or number. In making that
determination, that the applicants were residents and citizens
qualified to vote in the election, the election officials satisfied
themselves as to the fact. But notwithstanding the determinations
made by the State election officials, contestant Hansen complained
that these 2,500 voters should be disenfranchised, and their votes
thrown out.
Contestant Hansen did not challenge these voters on election
day as Idaho law provides. Rather he raised this complaint only
after the election result was announced. He sought investigations
by the county prosecutor, the State attorney general, the Justice
Department and the FBI. He also asked the State court to rule that
the results of the election were invalid, because of the
registration practices complained about.
The State attorney general's office, and the Blaine County
magistrate conducted independent investigations. At the conclusion
of the investigations, public reports were issued. The results were
that not a single voter was found to have been unqualified to vote.
These investigations fully supported the declared result of the
election.
Based on the results of these investigations, the task force
found that contestant's claim of a right to the seat, due to
registration irregularities, was without merit.
results of partial
Contestant Hansen's second ground for contesting the election
was based upon a partial recount. Contestant availed himself of an
Idaho statute which allows a disappointed candidate to obtain a
full or partial recount. The disappointed candidate posts a $100
bond for each precinct he chooses to have recounted. Obviously he
has multiple incentives to pick those precincts which he believes
will best support his position or claim. If the results of the
candidate-initiated recount demonstrate to the State officials that
a full recount is justified, then the State takes over and conducts
a district-wide recount at State expense, and refunds to the
disappointed candidate the entire bond posted in support of the
partial recount.
In this instance, contestant Hansen picked 45 precincts, posted
the necessary bond, and a partial recount was conducted. As a
result, contestant lost ground to contestee Stallings by an
additional 37 votes. Although this unfavorable trend did not
support contestant Hansen's position that he was entitled to the
seat, at the conclusion of the recount of the 45 precincts,
contestant Hansen petitioned the State attorney general for a full
State-paid recount, citing the results of the partial recount. The
State attorney general concluded that a full State-paid recount was
not justified by the results, and rejected Hansen's request for a
full State-paid recount, whereupon contestant Hansen appealed the
decision of the attorney general to the Idaho Supreme Court. The
Idaho Supreme Court reviewed the arguments of contestant Hansen and
the Idaho Attorney General, and rejected contestant Hansen's
argument that the results of the partial recount justified a full
recount at State expense. After a review of the written and oral
arguments presented by contestant Hansen, both the task force and
the Committee on House Administration came to the same conclusion.
Contestant Hansen's second claim was determined to be without
merit, and the committee, like the Idaho Attorney General and the
Idaho Supreme Court, rejected it.
conclusion regarding primary grounds
Hence, contestant's two principal claims, raised in his notice
of contest, were determined to be inadequate to change the result
of the election, or to justify a full recount by the State of Idaho
or the House of Representatives.
ancillary grounds
During the course of oral arguments, contestant raised some
additional issues which he suggested might serve as a basis for
throwing out the results of the election. For example, contestant
Hansen suggested that an impoundment order, issued after the
election night canvass, was not proper or in accordance with State
law, and that the proceedings prevented local election officials
from performing their duties in verifying the election totals.
Contestant made this claim unsuccessfully in the State court.
However, he did not make this claim in his notice of contest. He
raised it only after his claim of illegal voting had been
investigated and found to be without merit. Contestant's claim
identifies no errors, nor did contestant identify the types of
errors he believed may have occurred. He merely alleges
irregularity, and speculates as to the impact. Under House
precedent, bare allegations of irregularity do not overcome the
presumption that State election officials have acted in accordance
with law, nor do such allegations serve as a basis for imputing
errors. Contestant was unable to convince the courts of Idaho that
the election night canvass was in any sense defective, and the task
force and the committee found contestant Hansen's arguments
similarly unpersuasive.
Contestant raised various other matters which were not
contained in the notice of contest. But the task force and the
committee found that, both individually and collectively, these
claims were not sufficient nor specific enough to put into serious
question the propriety or accuracy of the canvass. This committee
found no reason to believe that there was anything illegal or
improper in the conduct of the canvass, and that these ancillary
claims do not provide a basis for changing the result of the
election.
dismissal recommendation
For the reasons given and upon recommendation of the task
force, the Committee on House Administration, by a vote of 12 ayes
and 1 nay, recommended to the House that the election contest be
dismissed.
Mr. [Charles] ROBERTS [of Kansas]. Mr. Speaker, I yield myself
such time as I may consume.
Mr. Speaker, we are here today to perform a most solemn
responsibility-judging the qualifications, returns and election of
one of our colleagues. The questions presented by this case are not
easy ones--especially in light of the precedent set in this House
earlier this year and in light of recent events.
The task force to determine the outcome of this election was
made up of myself, Mr. Bates and Mr. Swift. I While I do not agree
with the conclusion of the task force, I do wish to thank both
gentlemen for their demeanor during the proceedings.
As I stated, the questions presented by this case are not easy
ones and I would like to call to the attention of my colleagues the
four basic issues that we feel are both primary and pertinent to
this case.
First, there is the canvassing issue. The impoundment order
issued by the Secretary of State of Idaho resulted in the ballots
being impounded but it also resulted in an inconsistent and
defective canvass of the votes. The board of canvassers in the
largest county in Idaho, Bonneville County, was unable to verify
the accuracy of the count. They have so certified by means of an
affidavit filed with the notice of contest. In addition to having
no access to the ballots, the county commissioners in 14 of the 26
counties in the congressional district had a best limited access,
and in many cases, no access to the precinct poll books and tally
books when they conducted their canvass of the vote.
Now, under Idaho law, the impoundment of the ballot boxes is
authorized only upon a request for a recount. And, such a request
may only be made after the completion of the canvass by the county
commissioners. There was no complete canvass. There was no recount.
The Secretary of State's impoundment order was premature. It
interfered with the ordinary and necessary access to all election
materials.
Second, there was a recount of 10 percent of the precincts.
Yes, Mr. Hansen lost ground. That recount demonstrated a rate of
error in the total count of more than 3 1/2 times the margin of
victory. Mr. Hansen was denied a State-sponsored recount of the
remaining 90 percent of the precincts. And, I want to stress that
now, after the election and the partial recount and the impoundment
of ballots, Idaho's law has been changed. After the fact, State law
now provides for automatic State-conducted recounts in races as
close as this race.
Third, the address of the voters issue. Idaho law requires that
in order to be a qualified voter, an individual must include in his
or her voter registration application information which definitely
locates his or her residence. But, in Blaine County, some 5,400
voters failed to provide this information and approximately 1,000
voters listed only their post office boxes.
More to the point, this requirement was inconsistently applied
throughout the election district-13 counties accepted post office
box registrations to identify residences and the remaining 13 did
not.
Fourth, we do have an important precedent in this case and all
election disputes from this date forward.
Mr. Speaker, as I said during that debate earlier this year for
me and for my Republican colleagues, this House is not the same.
The collective sense of unfairness symbolized by the McIntyre
precedent remains in our hearts. There is in fact, a pall hanging
over contested election deliberations by the House.
You, in the majority changed the precedents we must follow by
your actions in McIntyre. As majority leader, Mr. Wright, stated on
the floor of this House on January 3, 1985, the results of an
election are called into question when ``the very ability of the
State election procedures to determine the outcome accurately is
put into serious question.''
The majority in the McIntyre election dispute decided to ignore
State law and adopt House mandated rules. But, in this case you
have decided to rely on State law and the doctrine of the
exhaustion of State remedies.
This is an inconsistent application of House precedents and
underscores the abuses served on this House and the American people
when you seated Mr. McCloskey. Inconsistent application of Indiana
law from county to county was alleged to be intolerable in
McIntyre-McCloskey while in Hansen-Stallings it is merely viewed as
the vagaries of the State system and is considered a virtue. I
suggest the record will clearly show you cannot have it both ways.
Mr. Hansen desires a recount to determine if the inconsistent
application of Idaho law denied him the election. On a similar
basis Mr. McCloskey was granted such a recount.
It appears as if the majority in this House once again is
willing to yield to State law, to continue the high threshold of
proof heretofore used in election disputes prior to the McIntyre
case. It appears as if like Halley's Comet, the McIntyre precedent
was no precedent at all. It has apparently gone. I can assure my
colleagues it has not been forgotten. Under the precedent set by
the majority in McIntyre, Mr. Hansen should be granted a recount.
Mr. Speaker, I reserve the balance of my time.
Mr. BATES. Mr. Speaker, I yield such time as he may require to
the gentleman from Washington [Mr. Swift].
Mr. [Allan] SWIFT [of Washington]. Mr. Speaker, the issue is
whether this contest should be dismissed. I believe it should, and
for the same reason this House has regularly recommended dismissing
contests, including most recently the Guam contest. Under our
precedents a contestant has a substantial burden. A contestant must
allege with specificity irregularities that, if proven, would
likely change the result of the election. This is the standard the
House has consistently applied. To my mind, the contestant, Mr.
Hansen, did not satisfy this test.
A contest is subject to dismissal at any time if the
contestant's claims are not sufficiently specific to put into
serious question the outcome of the election.
Are contestant's claims sufficiently specific in light of the
evidence presented to meet this test? In my opinion they are not.
Contestant's primary claim is that substantial illegal voting
marred and likely changed the result of the election. Allegedly,
nonresidents were allowed to vote. After a full investigation of
these charges, Idaho's attorney general found them meritless. Not a
single instance in which an unqualified person was permitted to
vote was discovered. The attorney general's findings stand
unrefuted by contestant. Consequently, I find no merit in
contestant's claim of illegal voting.
Do the results of the partial State recount justify, as
contestant claims that they do, a full House recount? Again, under
our precedents, I believe not. The State recount revealed no
material difference in the count. Although the recount was
conducted only in those precincts where the contestant felt a
mistake favorable to him was most likely, the recount only
increased Mr. Stallings' margin. Again Mr. Hansen does not dispute
the result of the State recount. Nor does he identify specific
problems in the count or the recount. His claim rests on no more
than mere speculation. If contestant had evidence of significant
irregularity, he was obliged to produce it. Without such evidence
his claim is to be dismissed.
Lastly, contestant claims that the canvass of votes was not
conducted in accordance with State law. Mr. Hansen made this claim
unsuccessfully in State court. This claim was not made in Mr.
Hansen's notice of contest. I suspect it is only now being raised
because all the other claims have proven to be unsupportable. There
is no reason to believe that there was anything illegal or improper
in the manner that the votes were canvassed.
For these reasons I would recommend that the contest be
dismissed.
Mr. ROBERTS. Mr. Speaker, I yield 10 minutes to my
distinguished colleague and friend, the gentleman from California
[Mr. Thomas].
Mr. [Williams] THOMAS of California. Mr. Speaker, on election
day in November of 1984, there was a very close election, but there
was a winner and the State certified that winner. Oh, there was a
State official involved in some questionable procedure. It was
challenged by county officials. There were election materials that
were handled differently in different counties. State election law
was not followed precisely in some counties in that congressional
district.
Are we back home again in Indiana? No; we are in Idaho's Second
District.
But the similarities between those two contests does not end
there. This House decided to send to the House Administration
Committee and a task force dominated 2 to 1 by Democrats the
question of how to resolve those elections.
And so, were there hearings in Idaho's Second District, as
there were in Indiana's Eighth District? No. Were there witnesses
brought forth to examine the information of individuals who
participated in the election, as was done in Indiana? No.
In fact, the motion filed by the Democrat to dismiss under the
laws by which he certainly has that privilege was not even filed in
a timely fashion. How was that handled? By a 2-to-1 vote.
I recall in the debate on Indiana's Eighth, a number of
Democrats pointing out that there was a bill in the Indiana
Legislature. It had been introduced, and the contents of that bill
that had been introduced has some change suggested in Indiana law
which was supportive of the Democrats' position, and on this floor
they touted how significant the fact was that the Indiana
Legislature was considering a possible change in Indiana State law.
It was evidence for them of a clear direction, not just of the
voters but of the State government of Indiana. What happened to the
bill? It did not even get out of one House.
In Idaho a bill was introduced, passed by the legislature, and
signed by the Governor. It is now the law of the State of Idaho,
repudiating the action that was taken by State election officials.
It is the law of the State of Idaho based upon what occurred in
this contest.
Did this task force consider what occurred in Idaho? No.
In Indiana the people elected a candidate in the Eighth
Congressional District. His name was Rick McIntyre. The State of
Indiana certified him as the winner, once during the election and a
second time after the recount. He came to this floor on January 3,
like any other Member-elect. He held a valid certificate from the
State of Indiana. Was that good enough for the Democratic majority
in this House? No.
Did we get to an investigation of Indiana's Eighth
Congressional District based upon a motion filed by the loser,
Frank McCloskey? No. That contest, that motion that was filed has
not been handled by the House Administration Committee. Perhaps it
is for the reason that the gentleman from Washington gave as to why
he believes we should now support the task force and the
committee's position, and that the motion is without merit. But
that did not stop the majority of Democrats in this House. They
sent it to the committee, and as a matter of fact, by a series of
2-to-1 votes, the choice of the people of Indiana was overturned,
the Indiana State election laws were trashed, and by a majority of
Democrats on the floor of the House Frank McCloskey was selected as
the Representative from the Eighth District of Indiana.
Now, in Idaho's Second District, we may have an individual who
was elected by the people. He was certified by the State. But
Idaho's election law was not followed in terms of a canvassing of
those votes to determine in fact if the initial count was an
accurate count. Idaho State law requires that. It was not done. The
presumption is that Mr. Stallings holds a valid State certificate.
But did the task force look behind the certificate, as they did
in Indiana? Did they examine the irregularities of Idaho law as
they did in Indiana? No.
By a series of 2-to-1 votes, they dismissed all of the
discrepancies and the inaccuracies and the inadvertent errors in
Idaho's Second District.
Now, Mr. and Mrs. America may be a little bit confused by what
has gone on over a span of 6 months. Why in the world would we
spend the time in Indiana to go behind the State certificate and
attempt to overturn and in fact, by a straight Democratic vote on
the floor of the House, overturn that certificate when in Idaho we
will not even hold one hearing to question any violation of State
law in Idaho? Well Mr. and Mrs. America, let me clarify it for you.
In Indiana the holder of the State certificate was a Republican; in
Idaho the holder of the State certificate is a Democrat.
So, Mr. and Mrs. America, if the wind shifts westward and you
notice a bit of a putrid smell on the wind, let me tell you what
that is. That is the House of Representatives writing chapter 2 in
their book of political arrogance.
I would ask the Members of this House to simply not participate
any longer in these kinds of charades unless and until the
Committee on House Administration and this House decide that
election contests are at least equal to ethics questions against
the Members and we treat election contests as we treat questions of
ethics, and that is that there be an equal number of Democrats and
an equal number of Republicans deciding what the truth is.
Unless and until that structural procedure is changed, I think
we can understand what every case coming to this floor from House
Administration and any task force formed by that committee is going
to be, and that will be by a series of 2-to-1 votes making sure
that the outcome is exactly as the majority wishes.
In Indiana's Eighth, it was to overturn the valid State
certificate, deny the election to the Republican and seat the
Democrat.
In Idaho, since the Democrat won, the Democratic majority
upholds State law, does not examine the changes taken place, and
somehow within a period of 6 months, the Democrats are attempting
to convince everyone that black is white and then white is black.
You do not believe it and I do not believe it, but it is going
to happen. It is going to happen when the majority, through sheer
arrogance, exercises the tyranny of the majority. Mr. Speaker, I
yield back the balance of my time.
Mr. BATES. Mr. Speaker, I have some final remarks that I would
make, and I now reserve the balance of my time.
Mr. ROBERTS. Mr. Speaker, I yield 1 minute to my friend and
colleague, the gentleman from Idaho [Mr. Craig].
Mr. [Larry] CRAIG [of Idaho]. Mr. Speaker, I would like to
associate myself with the remarks of my colleague from Nebraska and
my colleague from California as it relates to this issue.
In January when we convened to seat Members, I took the floor
hoping to convince my colleagues here in the House to uphold State
law, both in the instance of Indiana and in the instance of Idaho.
I stood and encouraged this House to seat Richard Stallings.
Although there was a question and a cloud in Idaho as to whether he
was officially elected, the State had certified as they had in
Indiana.
I am not sure yet whether I erred, but at least I was very
ignorant as to what would follow the proceedings in this House. Now
we know. The story has unraveled. There is no question as to how
the House planned to proceed at that time and then proceeded.
My ignorance was this: What I failed to recognize was that the
incumbent in the Indiana race, Mr. McCloskey, was a Democrat, and
the incumbent in the Idaho race, Mr. Hansen, was a Republican. In
that rests the whole question and, of course, in that is the result
of the outcome.
Mr. ROBERTS. Mr. Speaker, I yield 3 minutes to my friend and
colleague, the gentleman from Indiana [Mr. Myers].
Mr. [John] MYERS of Indiana. Mr. Speaker, I rise for
clarification. I thought I understood what was happening until I
came to the floor today. I have looked for the committee hearings.
Were the committee hearings printed, I ask the gentleman from
California [Mr. Bates] I have a committee print, but I mean the
hearings where they investigated the facts that I have heard
discussed here today.
I yield to the gentleman for his response.
Mr. BATES. As the House Administration Committee has done on
all contested elections, we have several this year. The task force
holds a hearing. If the gentleman is referring to field hearings,
there were none held in this case because the evidence was not
overwhelming to warrant such hearings.
Mr. MYERS of Indiana. No hearings held in Washington?
Mr. BATES. There were hearings in Washington.
Mr. MYERS of Indiana. Were there any hearings held in Idaho to
investigate the allegations and the facts as has been presented
here today?
Mr. BATES. Hearings held in Washington, none held in Idaho.
Mr. MYERS of Indiana. There were none held in Idaho?
Mr. BATES. None.
Mr. MYERS of Indiana. Were there any witnesses from Idaho that
appeared here to substantiate or to raise any further questions
about what happened in Idaho?
Mr. BATES. No. In order to go to the expense and hold those
hearings, we handled this the same as all the other contested
elections similar to the one in Guam. We did not go to Guam. We did
not go to Idaho. We did not go to all these other places. In fact,
the McCloskey-McIntyre is the only one in which the additional
effort and expense of holding the hearings in the District of
Columbia occurred, to my knowledge.
Mr. MYERS of Indiana. Well, the statement was made by the
gentleman from California, as I recall, today that the questionable
ballots of 2,500, or whatever they were, that they were valid
ballots. How does the gentleman know that?
Mr. BATES. How do we know that any-
Mr. MYERS of Indiana. How do we know that people exist who cast
those ballots? The gentleman said they lived on rural routes way
out so they got their mail at a post office box. How does the
gentleman know that without any hearings?
Mr. BATES. An investigation was conducted.
Mr. MYERS of Indiana. By whom?
Mr. BATES. The district attorney in Idaho.
Mr. MYERS of Indiana. Idaho's officials were accepted?
Indiana's officials were not valid? Why is Idaho acceptable and
Indiana was not?
Mr. BATES. I did not chair the task force.
Mr. MYERS of Indiana. I am asking the gentleman, the gentleman
chaired this one.
I yield to the gentleman for the response as to why Idaho's
officials were valid and Indiana's were not, the officials of that
State.
Mr. BATES. As the gentleman maybe aware, the contested election
procedure is under a different statute than the one which the
Indiana is under.
Mr. MYERS of Indiana. Indiana, action by this House, had no
contested election. There was not one.
Mr. BATES. There were two separate procedures.
Mr. MYERS of Indiana. As it has already been drawn out, the
Indiana case was instigated by this House.
Why was it not similar? Why was it handled entirely different?
There was a very close examination, in Indiana ballot by ballot,
which ignored Indiana law entirely, and yet we have not examined
Idaho law. As has been said, Idaho law has been changed because
they recognized it was wrong. Indiana examined theirs and said,
``We have a valid law. We did not change it.''
I am shocked today. I did not agree with what happened in the
Indiana case. I did not think the House had the right to come into
Indiana and rewrite the election laws. But if that was going to be
the precedent, if that was going to be the new rule that this House
decided for its membership, so be it.
But today we have gone back and said, ``Oh, we're going to
abolish all of that.''
Inconsistency, and I am shocked at this House and am very
disappointed in this task force and the House Administration
Committee and the leadership of this House.
Mr. ROBERTS. Mr. Speaker, to close debate on our side, I yield
such time as he may consume to my friend and colleague, the
gentleman from Minnesota [Mr. Frenzel].
Mr. [William] FRENZEL [of Minnesota]. Mr. Speaker, there is in
this specific case before us no bitterness, no allegation of
misconduct by either contestee or contestant or by the people who
are promoting either person.
The bitterness that has infected our debate today is a residual
of discussions and decisions made with respect to Indiana's Eighth
District earlier in the year. The reason that that bitterness
floods over, spreads over this whole Chamber today, is that the
cases are so similar.
As has already been pointed out, in the case of the Indiana
Eighth, the House decided that it had to upset the laws of the
State of Indiana. It said that the Indiana laws were no good, that
Indiana State officials were incompetent and that the election was
therefore invalid. We literally caused another election under rules
invented by the elections task force as it went along. Then, those
rules were changed on the last day of that subcommittee's work so
that it could declare the person it wanted as the winner, even
though he had not won the election.
In the Idaho case which is now before us, we have a very
similar situation. I recall our distinguished majority leader
saying that the laws of Indiana were not carried out in a timely,
regular, and fair manner.
What do we have in Idaho? Exactly the same kind of problem. The
gentleman from Kansas outlined the difficulty with canvassing, the
address problem, the error rate. But did the task force and the
committee make a similar decision? No. In this case the committee
decided by a 2-to-1 vote that the contestee's complaint was without
merit. In a similar case, the committee will back up Idaho law, but
it trashed Indiana law.
I submit that the difference between these actions was simply
the difference in the way it was handled; that is, the McIntyre-
McCloskey matter was not handled under the Federal Contested
Elections Act. It was handled under an exercise in pure cronyism.
The Hansen-Stallings matter was handled under the Federal
Contested Elections Act. It follows, in my judgment, the precedents
of the House; that is, the elections task force said that the State
did the best it could under the circumstances. The State ought to
be upheld.
The problem is not with Hansen-Stallings. The problem is the
atrocity wrought in the case of McIntyre versus McCloskey, the
egregious exercise in cronyism that I have already discussed.
The bottom line after all the exclusions, deductions, tax
credits, and carry-forwards, the net, net, net in that case, is
that we overturned Indiana. We discredited the State, its law and
its officials. Here we are going to uphold Idaho, its State law and
its officials.
There is clearly something wrong in this House of
Representatives. It is not with the matter before us today. It is
the matter which was stuffed down the throats of the minority by
the Democratic majority in our previous Indiana decision.
Now, my judgment is that the best way that the Republican
minority can express its absolute disgust with the previous
McIntyre-McCloskey matter and not befoul the matter that is before
us is to vote ``present'' on the rollcall which I expect will
follow.
If we are to follow the precedents of the House and good
procedures and the Federal Contested Elections Act, many Members
would be inclined, as I am inclined, to vote ``yes'' on the
recommendation of the House Administration Committee. It is pretty
straightforward. A ``yes'' vote means that we agree with the State
of Idaho.
If we are to follow the McIntyre precedent that you gave us,
that our friends in the Democrat majority inflicted on us, we would
have to vote ``no''. A ``no'' vote would say the State has not done
a good job, that it has not done its Job in a timely manner. I do
not believe that is the way Republicans should vote, either.
I think our only choice is to vote ``present'' and leave the
Democrat majority with its own mess, the mess of conflict of
precedent, and counter-precedent, which they have awarded to
themselves. Let them remain hoisted on their own petards, swinging
in the wind. They have justly earned that position of
embarrassment.
I will remind my Republican friends that we have already voted
to seat Congressman Stallings. On the previous January 3 vote to
seat him, no Republican voted against Mr. Stallings. He presented a
valid certificate presented to him by his State. We accepted it and
we voted to make him a Congressman, like all the rest of us.
It is only Mr. McIntyre who is the victim of partisan cronyism
in this House.
I think the good news in this matter is the information that I
started with. That is, whatever irregularities we have found in the
committee and in the task force, there was no allegation of fraud,
no intentional wrong doing. We do not know, as stated before,
whether the State did right or not. But, as should have been our
precedent in the McIntyre case, the committee decided that the
State's laws and its certificate should be upheld.
Mr. Speaker, I urge on my Republican colleagues a ``present''
vote and on my Democrat colleagues examination of their
consciences.
Mr. [Frank] ANNUNZIO [of Illinois]. Mr. Speaker, I want to take
this opportunity to compliment the members of the task force for
their thorough examination and review of this contested election.
Both majority and minority have expressed differing views as to
the conclusion of this contest. However, the hearing and the
meeting of the committee at which the matter was considered was
conspicuously without the rancor which has characterized
deliberations on earlier contests. Icongratulate Mr. Bates who
chaired the task force as well as Mr. Swift and Mr. Roberts who
served ably thereon. I congratulate Mr. Frenzel, the ranking
minority of the committee, for his objectivity and candor.
I look forward to a continued constructive relationship with
the minority and I believe that we are working in the right
direction.
Mr. ROBERTS. Mr. Speaker, I have no further requests for time,
and I yield back the balance of my time.
Mr. BATES. Mr. Speaker, just a few final remarks.
I would for the record want to clarify that there is no
similarity between this contested election and the McIntyre-
McCloskey issue which was under House Resolution 1 and was under a
different set of rules.
This particular resolution is brought up under Federal statute
of contested elections, quite similar to the one for the Territory
of Guam in which a Republican Delegate from Guam did have his
election challenged. He was seated unanimously by the task force,
dominated by Democrats and by the full committee which also has a
Democratic majority and by the full House.
So I think to make a comparison of the cases requires a
comparison of these two cases where we did without incident,
without bitterness, without hostility, seat the Member and followed
through with the recommendations, as I think we should do on this
one.
I might say that the members on the task force and the full
committee have conducted themselves quite properly in voting out a
12-to-1 bipartisan vote for approval; so I think we should not add
to the hostility and bitterness that has been brought about by
previous actions.
I call on the House of Representatives to support this
recommendation, House Resolution 272, and vote ``aye.''
Mr. Speaker, I move the previous question on the resolution.
The previous question was ordered.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken, and the Speaker pro tempore announced
that the ayes appeared to have it.
Mr. ROBERTS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
247, nays 4, answered ``present'' 169, not voting 14, as follows:
[Roll No. 326] . . .
Mr. McDADE changed his vote from ``yea'' to ``present.''
Mr. SWINDALL changed his vote from ``present'' to ``nay.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table. . .
-------------------
PERSONAL EXPLANATION
Mr. [Richard] STALLINGS [of Idaho]. Mr. Speaker, a few moments
ago, on rollcall No. 326, relating to the contested-election
contest in Idaho, I intended to vote ``present.'' As circumstances
developed on the floor, it became apparent that a present vote was
developing as a protest vote, one disapproving of the process
carried out by the Committee on House Administration. Thus, I voted
``aye,'' not wanting to have my vote thus construed. I reiterate
that I intended to vote ``present'' and that was my desire.
Sec. 21. One Hundredth Congress, 1987-1988
There were no election contests considered by the House during the
100th Congress.
Sec. 22. One Hundred First Congress, 1989-1990
There were no election contests considered by the House during the
101st Congress.
Sec. 23. One Hundred Second Congress, 1991-1992
There were no election contests considered by the House during the
102d Congress.
Sec. 24. One Hundred Third Congress, 1993-1994
Sec. 24.1 McCuen v Dickey
The general election for the office of Representative to Congress
from the Fourth District of Arkansas was conducted on November 3,
1992.(1) The general election candidates were Jay Dickey
(the Republican candidate), and Bill McCuen (the Democratic candidate).
Mr. McCuen was also the Arkansas Secretary of State, and therefore the
state official with the responsibility to issue a certificate of
election to the winner of the election. An unofficial canvass of votes
on December 5, 1992, showed that Mr. Dickey had received 113,004 votes,
and that Mr. McCuen had received 102,911 votes. A state circuit court,
following a petition by Mr. McCuen, instructed him to issue the
requisite certificate of election. On December 23, 1992, such
certificate was issued, with the final vote tallies indicating that Mr.
Dickey had received 113,009 votes and Mr. McCuen had received 102,918
votes. Mr. Dickey appeared on January 5, 1993, at the opening of the
103d Congress, and was administered the oath of office without
objection or challenge.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 103-109, 103d Cong. 1st Sess.
---------------------------------------------------------------------------
As noted, Mr. McCuen initially went to state court alleging
irregularities with the voting machines used in the election. The court
ordered the machines impounded, and the machines were then inspected,
with representatives of all parties in attendance. Following the
inspection, the court dismissed the complaint, citing lack of
jurisdiction over a contested House election.
On December 4, 1992, Mr. McCuen (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was referred to
the Committee on House Administration for its consideration. An amended
notice of contest was filed the following day, with additional
arguments and documents to support the claims made in the initial
notice of contest. Contestant alleged that voting machines and ballots
had misled voters, and that defective machines failed to properly
record or count votes. On January 4, 1993, Mr. Dickey (hereafter
``contestee'') filed an answer and a motion to dismiss the case. On
January 20, 1993, contestant filed a response to the answer and in
opposition to the motion to dismiss.
The Committee on House Administration established a task force of
three Members to review the pleadings in this case. On February 4,
1993, the task force met to hear oral arguments from the parties.
Contestant made four specific allegations: (1) that the form of certain
ballots was not in compliance with state law; (2) that the form of
certain ballots misaligned candidates' names, making it difficult for
voters to select the correct candidate; (3) that programming errors
caused incorrect tabulation of votes in some machines; and (4) that
voting machines were not properly secured.
The task force rejected each of these arguments as insufficient to
overcome the motion to dismiss. The task force considered it ``merely
conjectural''(2) that the lack of strict compliance with
state law affected any votes. Similarly, ``no irregularity, sufficient
to change the result of the election, could be reasonable
inferred''(3) from the form of the ballots used. An expert
witness testified that programming errors discovered during the
inspection did not affect the congressional races. The lack of proper
security for the voting machines was ``entirely speculative and without
any evidentiary basis.''(4) Ultimately, the committee agreed
with the assessment of its task force, and concluded that ``no credible
evidence of irregularities sufficient to change the result of the
election''(5) was presented. The committee thus recommended
granting contestee's motion to dismiss.
---------------------------------------------------------------------------
2. H. Rept. 103-109, 103d Cong. 1st Sess. p. 4.
3. Id. at p. 5.
4. Id. at p. 6.
5. Id. at p. 7.
---------------------------------------------------------------------------
On May 25, 1993,(6) the committee filed its privileged
report. By unanimous consent, the House agreed to take up House
Resolution 182 (dismissing the contest), which was agreed to by voice
vote:
---------------------------------------------------------------------------
6. 139 Cong. Rec. 11046-47, 103d Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST JAY DICKEY
Mr. KLECZKA, from the Committee on House Administration,
reported the following privileged resolution (H. Res. 182, Rept.
No. 103-109) dismissing the election contest against Jay Dickey,
which was referred to the House Calendar and ordered to be printed:
H. Res. 182
Resolved, That the election contest of Bill McCuen, contestant, against
Jay Dickey, contestee, relating to the office of Representative from the
Fourth Congressional District of Arkansas, is dismissed.
Mr. [Gerald] KLECZKA [of Wisconsin]. Mr. Speaker, I ask
unanimous consent for the immediate consideration in the House of
the resolution (H. Res. 182) dismissing the election contest
against Jay Dickey.
The SPEAKER pro tempore.(7) The Clerk will report
the resolution.
---------------------------------------------------------------------------
7. Michael McNulty (NY).
---------------------------------------------------------------------------
The Clerk read the resolution.
The SPEAKER pro tempore (Mr. McNulty). Is there objection to
the request of the gentleman from Wisconsin?
There was no objection.
The SPEAKER pro tempore. The gentleman from Wisconsin [Mr.
Kleczka] is recognized for 1 hour.
Mr. KLECZKA. Mr. Speaker, I yield the customary half hour, for
the purpose of debate only, to the ranking member of the contested
election task force and the full Committee on House Administration,
the gentleman from California [Mr.Thomas], pending which I yield
myself such time as I may consume.
Mr. Speaker, to provide the House with a little background, on
Tuesday, November 3, 1992, the general election for the Fourth
Congressional District in the State of Arkansas was held. This is a
largely rural district consisting of 26 counties in the southern
half of the State.
The initial results of this election had Jay Dickey, the
Republican candidate, leading Bill McCuen, the Democrat, by 10,093
votes.
On December 4, 1992, Mr. McCuen filed a notice of election
contest with the Clerk of the House, based on two contentions:
First, that the ballot and voting machines misled voters, and,
second, that defective voting machines produced inaccurate totals.
On December 5, 1992, Mr. McCuen filed an amended notice of
election contest with the Clerk, providing additional information
and arguments in support of his two initial contentions, and
providing documentary evidence and exhibits.
Mr. Speaker, on January 27, 1993, pursuant to House
Administration Committee rule 16, the chairman of the committee,
Mr. Rose, created a task force to review the election contest. This
task force was charged with reviewing the documentary record,
receiving oral arguments, and recommending to the committee the
disposition of an election contest filed pursuant to 2 U.S.C. 381
through 396, by Mr. McCuen.
The House is given its authority to judge election returns,
primarily from article I, section 5 of the Constitution which
provides that: ``Each House shall be the judge of the elections,
returns, and qualifications of its own members * * *.'' This
provision, taken with section 4 or article I, invest in Congress
near complete authority to establish procedures and render final
decisions relating to the election of its Members.
Although the House could assume complete responsibility for
resolving election contests, to date it has declined to do so.
Instead, both Chambers have recognized and relied upon State
contest and recount procedures to clarify and resolve issues
relating to election contests. The State of Arkansas, in this case,
however, has chosen not to assert its jurisdiction.
In fact, the Governor of Arkansas, in his letter to the Clerk
of the House, certifying the results of the Fourth Congressional
District race, stated:
The enclosed certification should not be interpreted as my position on
the merits of the contest. In fact, I am greatly disturbed by the apparent
defects in the voting machines in Garland County and by the finding of the
Garland County Circuit Court that the voting machines have errors and
faults.
Thus, it became the House's obligation to resolve this matter.
I was appointed to chair this task force, which also consisted
of Mr. Thomas of California and the gentleman from Michigan, Mr.
Kildee.
On Thursday, February 4, the task force met and heard testimony
on Mr. Dickey's motion to dismiss the contest. Upon review of the
arguments presented by contestant and the contestee, the task force
unanimously agreed to recommend dismissal, thus reaffirming Jay
Dickey as the duly elected Member of Congress from the Fourth
Congressional District of Arkansas.
Mr. Speaker, the members of the task force unanimously agreed
that the contestant's allegations were not sufficiently specific to
put into serious question either the results of the election, or
the propriety of the actions of election and other State and local
officials in the conduct of the election, so as to justify
proceeding further with an election contest.
It should be noted that in contested election proceedings in
the House, the contestant always has the burden of specifically
alleging, and supporting with documentation, irregularities
sufficient to change the outcome of the election. The contestant
must also demonstrate that he is entitled to the seat. If the
contestant fails to meet this burden, the Committee on House
Administration may suggest dismissal of the contest.
On Wednesday, March 17, the full Committee on House
Administration concurred in the task force's decision that the
contestant failed to sustain his burden with evidence sufficient to
overcome a motion to dismiss. It accordingly moved to favorably
report an original resolution dismissing this election contest.
It is therefore the finding of the committee that contestee Jay
Dickey received the highest number of votes cast in the election
and was duly elected by the voters of the Fourth Congressional
District of the State of Arkansas.
Mr. Speaker, I reserve the balance of my time.
Mr. [Williams] THOMAS of California. Mr. Speaker, I yield
myself such time as I may consume.
Mr. Speaker, about a decade ago I addressed the floor of the
House on another contested election. I think it is significant to
note the differences between the one we have before us today and
that one of a decade ago.
The gentleman from Wisconsin [Mr. Kleczka] correctly pointed
out that this was brought to the floor under the Contested Election
Act and that we examined the contention of irregularities in the
race according to Arkansas law. Over a decade ago, Mr. Speaker, we
did not do that. We examined a contest in Indiana brought to the
task force by resolution in which a set of rules that existed
nowhere in the world, in any State, and especially in the State of
Indiana, was used to examine a series of ballots, and that through
sheer force of partisan majority an election that had been
certified by the secretary of state of Indiana was overturned. I am
pleased to say that today we have an election in front of us that
was certified by the secretary of state of Arkansas who, by
coincidence, happened to be the opponent in this case, Mr. McCuen.
And we examined his contentions about whether or not there were
irregularities in the ballots, in the voting machines, and in the
manner in which people voted in those voting machines in particular
areas.
Mr. Speaker, there was an extensive hearing. Evidence was
presented. Numerous questions were asked. Followup information was
presented. And the chairman, the gentleman from Wisconsin [Mr.
Kleczka], the gentleman from Michigan [Mr. Kildee], and myself
exhausted our questions, and to our satisfaction none of the
allegations about irregularities in the election were proved. Under
the law of the State of Arkansas our colleague, Mr. Dickey, was
duly elected.
So, Mr. Speaker, it is with extreme pleasure that I come before
the Members today and support the majority in asking unanimous
consent to move forward House Resolution 182 which finally puts the
election contest against Mr. Dickey to rest, a contest that never
should have been presented, that never had credible evidence to
carry it forward, and that put a taint on his election by the
people in Arkansas.
The answer is: Mr. Dickey won the election day, he won on the
recount, he won on the challenge in the court, and he won in front
of the task force. It seems to me the gentleman from Arkansas [Mr.
Dickey] has been certified more than any other Member of the House,
that he truly won that election, and it is about time we move
forward with saying so formally, and so I am pleased to ask my
colleagues to support House Resolution 182.
Mr. Speaker, I yield back the balance of my time.
Mr. KLECZKA. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, after the last comments by the gentleman from
California [Mr. Thomas] I am thinking of withdrawing the
resolution. Let us keep the hype up for the gentleman from Arkansas
[Mr. Dickey]. But I will not do so, Mr. Speaker.
Mr. Speaker, I yield back the balance of my time, and I move
the previous question on the resolution.
The previous question was ordered.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 25. One Hundred Fourth Congress, 1995-1996
Sec. 25.1 Anderson v Rose
The general election for the office of Representative to Congress
from the Seventh District of North Carolina was conducted on November
8, 1994.(1) The general election candidates were Charlie
Rose (the Democratic candidate), and Robert Anderson (the Republican
candidate). The official election returns showed that Mr. Rose had
received 62,670 votes, and that Mr. Anderson had received 58,849 votes.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Oversight relating to this election contest. See H. Rept.
104-852, 104th Cong. 2d Sess.
---------------------------------------------------------------------------
On November 28, 1994, Mr. Anderson filed a complaint against
certain county election officials, alleging violations of election laws
and other irregularities. The State Board of Elections initially voted
to delay certification of the results, but later reversed that
decision. The State Bureau of Investigation began an investigation of
the alleged violations on November 18, 1994.
On December 28, 1994, Mr. Anderson (hereafter ``contestant'') filed
a notice of contest with the Clerk of the House, which was referred to
the Committee on House Oversight(2) for its consideration.
The committee appointed a task force of three Members to review the
matter. On February 8, 1995, Mr. Rose (hereafter ``contestee'') filed a
motion to dismiss and a memorandum in support thereof. The task force
met on June 9, 1995, and August 3, 1995, to hear testimony from the
parties. On August 3, the task force voted both to grant contestee's
motion to dismiss, and to refer allegations of Federal law violations
to the Department of Justice.
---------------------------------------------------------------------------
2. Parliamentarian's Note: During the 104th and 105th Congresses, the
Committee on House Administration was redesignated as the
Committee on House Oversight. House Rules and Manual Sec. 724
(2021).
---------------------------------------------------------------------------
In his notice of contest, the contestant alleged a variety of
irregularities in the election, including: illegal voting by those
ineligible to vote; tampering with voting machines; illegal conduct by
election officials; bribery of voters; harassment of poll workers; and
voter intimidation. Contestant also based his claim on the fact that
one county increased its turnout from the 1992 election while all other
counties saw a decrease in turnout (concluding that only fraud or error
explained the difference). Finally, contestant questioned whether
contestee fulfilled North Carolina's residency requirements, alleging
that contestee was actually an inhabitant of Virginia and therefore
ineligible to be elected to a North Carolina seat.
Contestee's motion to dismiss denied the allegations of the
contestant, stating that the claims were based on mere conjecture, and
that he had not met his burden under the statute to show how the
election results would have been changed. Alternatively, contestee
argued that contestant failed to take advantage of state remedies for
the alleged violations, and should therefore be precluded from
advancing those claims with the House.
In its committee report, the Committee on House Oversight
articulated a standard for determining whether or not a motion to
dismiss should be granted. The committee's standard focused on
``credibility,'' i.e., did the contestant provide ``specific, credible
allegations''(3) that either showed how the outcome of the
election would have been reversed, or that the election as a whole was
so tainted by fraud or error as to be inherently unreliable. The
committee report attempted to distinguish prior cases (decided when the
other party was in the majority) where the motion to dismiss presented
``an insurmountable barrier to election contestants.''(4) In
their report, the majority cited their own prior dissents, from when
they were in the minority, that took issue with standards used by the
previous majority.
---------------------------------------------------------------------------
3. H. Rept. 104-852, 104th Cong. 2d Sess. p. 7.
4. Id.
---------------------------------------------------------------------------
Despite these expressed differences in the standard for evaluating
motions to dismiss, the committee nevertheless concluded that the
contestant had not met his burden under the statute. The committee
report discussed each allegation, and dismissed each as either not
credible, insufficiently specific, or as having an uncertain effect on
the outcome of the election. The committee also relied heavily on the
state investigation and the conclusions of state authorities with
respect to the alleged irregularities. Ultimately, the committee agreed
that contestant's claims were insufficient to overcome the burdens
imposed by the statute, and thus recommended to the House dismissal of
the contest.
Minority party Members filed supplemental views to accompany the
majority's report. The minority criticized the majority's conduct in
all election contests during the 104th Congress, arguing that the
majority's standard for evaluating pre-answer motions under the statute
was flawed, and inevitably led to ``unnecessary and wasteful
proceedings.''(5) The supplemental views cited earlier
precedents that set the bar for contestants to prevail against motions
to dismiss very high, so as to deter meritless claims and avoid
unnecessary investigations. Ultimately, the disagreement centered on
the extent to which contestants must be able to support claims of
alleged irregularities in the election with substantive evidence in
order to proceed to the discovery stage under the statute. The
supplemental views argued that the committee report failed to strike
the correct balance between allowing credible claims to move forward
and turning aside claims that are unlikely to be substantiated.
Nevertheless, the minority ultimately agreed with the majority's
conclusion that the contestant in this case did not meet his burden
under the statute.
---------------------------------------------------------------------------
5. Id. at p. 18.
---------------------------------------------------------------------------
On September 26, 1996,(6) the committee filed its
privileged report. By unanimous consent, the House agreed to take up
House Resolution 538 (dismissing the contest), which was agreed to by
voice vote:
---------------------------------------------------------------------------
6. 142 Cong. Rec. 25242, 104th Cong. 2d Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST CHARLIE ROSE
Mr. THOMAS, from the Committee on House Oversight, submitted a
privileged report (Rept. No. 104-852) on the resolution (H. Res.
538) dismissing the election contest against Charlie Rose, which
was referred to the House Calendar and ordered to be printed.
Mr. [William] THOMAS [of California]. Mr. Speaker, I ask
unanimous consent for immediate consideration of the resolution
(House Resolution 538) dismissing the election contest against
Charlie Rose.
The Clerk read the title of the resolution.
The SPEAKER pro tempore.(7) Is there objection to
the request of the gentleman from California?
---------------------------------------------------------------------------
7. Mark Foley (FL).
---------------------------------------------------------------------------
Mr. [Victor] FAZIO of California. Reserving the right to
object, Mr. Speaker, and I obviously do not intend to object, but I
would like my colleague, the gentleman from California, to explain
the purpose of this resolution.
Mr. THOMAS. Mr. Speaker, will the gentleman yield?
Mr. FAZIO of California. I yield to the gentleman from
California.
Mr. THOMAS. I thank the gentleman for yielding, Mr. Speaker.
As was announced, this was a resolution dismissing the election
contest filed by Mr. Robert Anderson against the gentleman from
North Carolina, Mr. Charlie Rose, for the seat in the Seventh
Congressional District in North Carolina.
As chairman of the Committee on House Oversight, I appointed a
task force from the committee, comprised of the gentleman from
Ohio, John Boehner, as chairman, the gentleman from Louisiana,
William Jefferson, and the gentleman from Michigan, Vern Ehlers, to
hear the matter.
The task force heard allegations of election irregularities and
fraud but concluded that there were not sufficient credible
allegations that, if proven, would change the outcome of the
election.
The task force met on August 3, 1995, and voted unanimously to
dismiss the contest. I believe the House clearly should so indicate
to the gentleman from North Carolina [Mr. Rose], since October 25,
1995, the full committee agreed unanimously to recommend dismissal.
I do want to thank the minority for lifting the hold on
unanimous consents so we could present this resolution this
evening.
Mr. FAZIO of California. Further reserving the right to object,
Mr. Speaker, I simply want to join with the gentleman from
California [Mr. Thomas] in removing our colleague, the gentleman
from North Carolina [Mr. Rose], from his 2-year term in purgatory.
With that, Mr. Speaker, I withdraw my reservation of objection.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from California?
There was no objection.
The Clerk read the resolution, as follows:
H. Res. 538
Resolved, That the election contest of Robert Anderson, contestant,
against Charlie Rose, contestee, relating to the office of Representative
from the Seventh Congressional District of North Carolina, is dismissed.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 25.2 Haas v Bass
The general election for the office of Representative to Congress
from the Second District of New Hampshire was conducted on November 8,
1994.(8) This election contest, however, involved candidates
for the Republican primary rather than the general election. Joseph S.
Haas, Jr. (hereafter ``contestant'') lost to Charles F. Bass (hereafter
``contestee'') in that primary election. The contestee went on to win
the general election, and was seated by the House on opening day of the
104th Congress.
---------------------------------------------------------------------------
8. This summary is derived from the report filed by the Committee on
House Oversight relating to this election contest. See H. Rept.
104-853, 104th Cong. 2d Sess.
---------------------------------------------------------------------------
On December 6, 1994, contestant filed a notice of contest with the
Clerk of the House, which was forwarded to the Committee on House
Oversight(9) for its consideration. The committee formed a
task force of three Members to review the case. The only allegation
made by contestant was that New Hampshire law required all candidates
to file an affidavit attesting to the fact that they are not a
``subversive person,''(10) and that contestee had failed to
abide by this requirement.
---------------------------------------------------------------------------
9. Parliamentarian's Note: During the 104th and 105th Congresses, the
Committee on House Administration was redesignated as the
Committee on House Oversight. House Rules and Manual Sec. 724
(2021).
10. H. Rept. 104-853, 104th Cong. 2d Sess. p. 3.
---------------------------------------------------------------------------
Given that the contestant was only a candidate in the primary
election and not the general election, the task force first addressed
the question of whether contestant had standing to bring an election
contest under the Federal Contested Elections Act. The task force
concluded that New Hampshire law allows write-in candidates, and thus
the contestant was an eligible write-in candidate in the general
election.
The task force then turned to the specific allegation of the
violation of New Hampshire law. After investigating New Hampshire law,
the task force found both that this provision of law had not been
enforced in many decades (due to its apparent unconstitutionality), and
that it had in fact been formally repealed prior to the 1994 elections.
In its committee report, the committee agreed with the conclusions
of its task force that the contestant was unable to offer ``any
basis''(11) to contradict the presumption that contestee's
valid certificate of election entitled him to his seat. The committee
thus recommended dismissal of the contest.
---------------------------------------------------------------------------
11. Id. at p. 4.
---------------------------------------------------------------------------
On September 26, 1996,(12) the committee filed its
privileged report. By unanimous consent, the House agreed to take up
House Resolution 539 (dismissing the contest), which was agreed to by
voice vote:
---------------------------------------------------------------------------
12. 142 Cong. Rec. 25243, 104th Cong. 2d Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST CHARLES BASS
Mr. THOMAS, from the Committee on House Oversight, submitted a
privileged report (Rept. No. 104-853) on the resolution (H. Res.
539) dismissing the election contest against Charles F. Bass, which
was referred to the House Calendar and ordered to be printed.
Mr. [William] THOMAS [of California]. Mr. Speaker, I ask
unanimous consent for immediate consideration in the House of the
resolution (H. Res. 539) dismissing the election contest against
Charles F. Bass.
The Clerk read the title of the resolution.
The SPEAKER pro tempore.(13) Is there objection to
the request of the gentleman from California?
---------------------------------------------------------------------------
13. Mark Foley (FL).
---------------------------------------------------------------------------
Mr. [Victor] FAZIO of California. Reserving the right to
object, Mr. Speaker, I ask my friend, the gentleman from
California, to kindly explain the purpose of this resolution.
Mr. THOMAS. Mr. Speaker, will the gentleman yield?
Mr. FAZIO of California. I yield to the gentleman from
California.
Mr. THOMAS. I thank the gentleman for yielding to me, Mr.
Speaker.
This is, as the last was, a contested election. A task force
was appointed, as matter of fact, the identical task force to the
one that investigated the North Carolina allegations, the gentleman
from Ohio, John Boehner, as chairman, the gentleman from Louisiana,
William Jefferson, and the gentleman from Michigan, Vern Ehlers, as
members. It was in the State of New Hampshire, in the Second
District.
Mr. Haas's claim was based on the application of a New
Hampshire statute which required that a candidate file an oath
stating that they were not ``a subversive person.'' This statute
had not been applied to candidates in New Hampshire elections since
1966, when the State Attorney General notified the Secretary of
State that the United States Supreme Court had ruled such oaths
unconstitutional.
Therefore, on March 15, the task force voted unanimously to
dismiss the contest, and on May 10 the full committee agreed
unanimously to recommend dismissal.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from California?
There was no objection.
The Clerk read the resolution, as follows:
H. Res. 539
Resolved, That the election contest of Joseph Haas, contestant, against
Charles F. Bass, contestee, relating to the office of Representative from
the Second Congressional District of New Hampshire, is dismissed.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 25.3 Munster v Gejdenson
The election contest of Munster v Gejdenson (Second District of
Connecticut) was withdrawn by the contestant before the House could
complete its review of the case.(14) The Committee on House
Oversight did not issue a report.
---------------------------------------------------------------------------
14. See Contested Election Cases in the House of Representatives: 1933
to 2011, CRS Report 98-194 (Dec. 12, 2011).
---------------------------------------------------------------------------
Sec. 25.4 Brooks v Harman
The election contest of Brooks v Harman (36th District of
California) was withdrawn by the contestant before the House could
complete its review of the case.(15) The Committee on House
Oversight did not issue a report.
---------------------------------------------------------------------------
15. Id.
---------------------------------------------------------------------------
Sec. 26. One Hundred Fifth Congress, 1997-1998
Sec. 26.1 Dornan v Sanchez
The general election for the office of Representative to Congress
from the 46th District of California was conducted on November 5,
1996.(1) The general election candidates were Robert K.
Dornan (the Republican candidate), and Loretta Sanchez (the Democratic
candidate). The Orange County Registrar of voters certified the
election on November 22, 1996, declaring Ms. Sanchez the winner by 984
votes. Following a state recount requested by Mr. Dornan, Ms. Sanchez's
margin of victory was reduced to 979 votes.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Oversight relating to this election contest. See H. Rept.
105-416, 105th Cong. 2d Sess.
---------------------------------------------------------------------------
On December 4, 1997, state authorities (including the California
Secretary of State and the Orange County District Attorney) began
investigating alleged instances of vote fraud occurring in the
election.
On December 26, 1997, Mr. Dornan (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was forwarded to
the Committee on House Oversight(2) for its consideration.
On January 7, 1997, Ms. Sanchez (hereafter ``contestee'') appeared on
opening day of the new Congress and was administered the oath of office
without objection or challenge.(3)
---------------------------------------------------------------------------
2. Parliamentarian's Note: During the 104th and 105th Congresses, the
Committee on House Administration was redesignated as the
Committee on House Oversight. House Rules and Manual Sec. 724
(2021).
3. Parliamentarian's Note: Although no challenge was made to the
seating of Ms. Sanchez on opening day, parliamentary inquiries
were propounded by both majority party and minority party
Members, which established that an election contest was being
pursued under the Federal Contested Elections Act, that Ms.
Sanchez had appeared with valid credentials from the state of
California, and that her seating was without prejudice to the
final right to the seat.
---------------------------------------------------------------------------
On January 8, 1997, the committee formed a task force of three
Members to review the matter. On January 31, 1997, contestee filed a
motion to dismiss the case or, in the alternative, a motion for a more
definite statement. On February 10, 1997, the contestant filed an
opposition to the motion to dismiss and a response to the motion for a
more definite statement. On February 26, 1997, the task force agreed to
a request from the contestee to postpone consideration of the motion to
dismiss until a field hearing in Orange County could be conducted. The
field hearing was conducted on April 19, 1997.
Contestant's notice of contest identified a variety of grounds on
which the contest was based, including allegations that more total
votes were cast than could be accounted for in county records, that
illegal votes had been cast by those not eligible to vote, and that
election officials had made tabulation and other errors sufficient to
change the result of the election. At the April 19, 1997, hearing,
contestant narrowed this claims to: (1) alleged voting by noncitizens;
and (2) voting irregularities, including improper delivery of absentee
ballots, double voting, and phantom voting.
Contestee's motion to dismiss argued that contestant's notice of
contest was defective on a number of procedural grounds: that it was
not timely filed; that it failed to affirmatively claim a right to
contestee's seat; that it was insufficiently specific with regard to
its claims; and that contestant had failed to exhaust available state
remedies. Contestee's substantive arguments alleged that contestant had
failed to make credible allegations of fraud or irregularity sufficient
to change the result of the election, and that, with no indication for
which candidate illegal votes might have been cast, such illegal votes
would be deducted proportionally(4) from both candidates.
---------------------------------------------------------------------------
4. For more on the concept of proportional deduction of improper votes
in election contests, see Sec. 12, supra.
---------------------------------------------------------------------------
By postponing a decision on contestee's motion to dismiss, the task
force triggered the discovery process under the Federal Contested
Elections Act. On March 10, 1997, contestant's period of discovery
commenced, and on March 18, 1997, he issued 24 subpoenas signed by a
U.S. district court judge. Ultimately, 20 more subpoenas were issued
before May 20, 1997. Contestee's period for discovery commenced on
April 9, 1997, but she did not issue any subpoenas.
On April 16, 1997, the committee met to resolve motions to quash or
modify the subpoenas issued by contestant. The committee chose to hold
in abeyance some subpoenas, to enforce other subpoenas, and also to
issue protective orders to protect the privacy interests of
organizations or individuals who were issued subpoenas. On May 21,
1997, the committee again met and voted to hold certain subpoenas in
abeyance, while denying motions to quash other subpoenas. On September
24, 1997, the committee voted to quash certain subpoenas, modify and
enforce other subpoenas, and issue its own
interrogatories.(5) The committee also voted to recommend a
House resolution urging the U.S. Attorney for the Central District of
California to file criminal charges against an organization for failure
to comply with a subpoena.(6)
---------------------------------------------------------------------------
5. Parliamentarian's Note: Pursuant to a committee resolution, such
interrogatories would be issued by the chair of the committee
after consultation with the ranking minority member. For a one-
minute speech by the ranking minority member complaining that
such consultation did not take place, see 143 Cong. Rec. 21828-
29, 105th Cong. 1st Sess. (Oct. 8, 1997).
6. Parliamentarian's Note: Contestant had filed a criminal complaint
against the organization with the District Attorney in Los
Angeles. The committee wrote to the U.S. Attorney's office
twice in an attempt to spur action on the matter. Ultimately,
the House adopted the resolution recommended by the committee
on September 30, 1997. See H. Res. 244, 143 Cong. Rec. 20876-
85, 105th Cong. 1st Sess.
---------------------------------------------------------------------------
The committee also took an active role in the investigation by
issuing its own subpoenas to the Immigration and Naturalization Service
(INS). The committee requested that the INS match its data on
undocumented aliens to eligible voters lists from Orange County. The
committee also requested access to relevant INS databases. These
subpoenas were in addition to the interrogatories and protective orders
described above.
Using the data received from INS, the task force ``found clear and
convincing evidence that 748 invalid votes were cast'' in the
election.(7) The task force was unable to substantiate other
allegations of illegal voting by undocumented aliens. Because the
number of confirmed cases of illegal voting was ``substantially less
than the 979 vote margin''(8) the committee concluded that
contest should be dismissed.
---------------------------------------------------------------------------
7. H. Rept. 105-416, 105th Cong. 2d Sess. p. 15.
8. Id. at p. 16.
---------------------------------------------------------------------------
Members of the minority filed three separate ``minority'' or
``additional'' views to accompany the majority's report. These
additional views found fault with the majority's application of the
statute, and argued that contestee's motion to dismiss should have been
granted at the outset because contestant had failed to show
``credible'' evidence that the outcome of the election would have been
different.(9) The minority party Members also alleged that
committee procedures were not followed, that the majority failed to
provide documents to the minority, and that the majority failed to
consult with the minority as required. Finally, the minority views took
issue with the process for determining whether illegal votes had been
cast by noncitizens. Ultimately, the minority felt that the majority
had misconstrued the applicable burdens of proof under the statute and
House precedents, and would have reached the same conclusion (i.e.,
dismissal of the contest) prior to the extensive discovery that was
conducted.
---------------------------------------------------------------------------
9. Id. at p. 1026.
---------------------------------------------------------------------------
During the course of this election contest, some Members took issue
with the conduct of the contestant on the House floor.(10)
Ultimately, a resolution, offered as a question of the privileges of
the House under rule IX, was adopted barring the contestant from the
floor until the election contest was resolved.(11)
---------------------------------------------------------------------------
10. Parliamentarian's Note: Under clause 2(a)(2) of rule IV,
contestants in election cases are entitled to floor privileges
during the pendency of their cases. In this case, the
contestant was a former Member, and as such, he separately had
floor privileges pursuant to clause 2(a)(15) of rule IV. House
Rules and Manual Sec. 678 (2021). For parliamentary inquiries
regarding the behavior of the contestant in this case, and
whether he should be prohibited from the floor pursuant to
clause 4(a)(2) of rule IV, see 143 Cong. Rec. 19026, 105th
Cong. 1st Sess. (Sept. 17, 1997). For more on floor privileges
generally, see Precedents (Wickham) Ch. 4 Sec. 5.
11. H. Res. 233, 143 Cong. Rec. 19340-45, 105th Cong. 1st Sess. (Sept.
18, 1997).
---------------------------------------------------------------------------
As the contest proceeded further into the first session of the
105th Congress, and ultimately into the second session, the minority
party began to offer resolutions to dismiss the contest, raised as
questions of the privileges of the House. The first such resolution was
offered by the Minority Leader and tabled on October 23,
1997.(12) Additional resolutions were offered and laid on
the table on October 29, 1997,(13) October 30,
1997,(14) and November 5, 1997.(15) Members also
gave notice to offer additional resolutions that were never formally
called up for consideration.(16) On November 6, 1997, the
House adopted a resolution restricting the noticing and offering of
questions of privilege to the Majority Leader and the Minority Leader,
and eliminating the requirement that the Speaker designate a time
within the two-day period set forth in clause 2(a)(1) of rule IX for
consideration of existing resolutions noticed pursuant to rule
IX.(17) Before the contest was ultimately resolved, the
Minority Leader offered three additional resolutions to dismiss the
contest (on November 8, 1997,(18) November 9,
1997,(19) and January 28, 1998).(20)
---------------------------------------------------------------------------
12. H. Res. 276, 143 Cong. Rec. 23231-41, 105th Cong. 1st Sess.
13. H. Res. 287, 143 Cong. Rec. 23695-96, 105th Cong. 1st Sess.
14. Eight separate resolutions were offered on this day: H. Res. 290,
H. Res. 291, H. Res. 292, H. Res. 293, H. Res. 294, H. Res.
295, H. Res. 296, and H. Res. 297. See 143 Cong. Rec. 23959-67,
105th Cong. 1st Sess.
15. H. Res. 307, 143 Cong. Rec. 24645-53, 105th Cong. 1st Sess.
16. See 143 Cong. Rec. 24017-48, 105th Cong. 1st Sess. (Oct. 31, 1997);
143 Cong. Rec. 24410-13, 105th Cong. 1st Sess. (Nov. 4, 1997);
and 143 Cong. Rec. 24596-603, 105th Cong. 1st Sess. (Nov. 5,
1997).
17. H. Res. 305, 143 Cong. Rec. 24776-87, 105th Cong. 1st Sess.
18. H. Res. 315, 143 Cong. Rec. 25294-96, 105th Cong. 1st Sess.
19. H. Res. 318, 143 Cong. Rec. 25721-22, 105th Cong. 1st Sess.
20. H. Res. 341, 144 Cong. Rec. 175-76, 105th Cong. 2d Sess.
---------------------------------------------------------------------------
The Committee on House Oversight filed its privileged report to
dismiss the contest on February 11, 1998.(21) On February
12, 1998, House Resolution 355 (dismissing the contest) was offered as
a privileged matter by the direction of the committee. A motion to
recommit the resolution back to committee with instructions to strike
the preamble was rejected. The resolution was adopted by the House, by
a vote of 378 yeas, 33 nays, and 19 Members not voting.
---------------------------------------------------------------------------
21. 144 Cong. Rec. 1263, 105th Cong. 2d Sess.
---------------------------------------------------------------------------
The proceedings of February 12, 1998,(22) are as
follows:
---------------------------------------------------------------------------
22. 144 Cong. Rec. 1323-24, 1334, 105th Cong. 2d Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST AGAINST LORETTA SANCHEZ
Mr. [William] THOMAS [of California]. Mr. Speaker, by direction
of the Committee on House Oversight, I call up a privileged
resolution (H. Res. 355) and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 355
Whereas credible allegations by contestant Robert Dornan of election
fraud in the 46th Congressional District of California were received by the
House of Representatives and an investigation has been conducted under the
authority of the Federal Contested Election Act;
Whereas that investigation was repeatedly hindered and delayed by the
lack of cooperation by the Department of Justice, the Immigration and
Naturalization Service, and key witnesses;
Whereas the delay and lack of cooperation included the following:
(1) The refusal of the Immigration and Naturalization Service to provide
any information to the Committee on House Oversight until the Service was
subpoenaed and the failure 8 months after the subpoenas to provide the
accurate information needed by the Committee.
(2) The refusal of key witnesses to provide evidence under the provisions
of the Federal Contested Election Act.
(3) The refusal of the Department of Justice, in complete disregard of a
resolution passed by the House of Representatives, to enforce the Federal
Contested Election Act by prosecuting any of the 11 witnesses who refused
to comply with the provisions of such Act which require production of
evidence on a timely basis;
Whereas despite the lack of full cooperation from witnesses and
government agencies, the investigation of the election contest in the 46th
Congressional District of California has resulted in evidence that over 700
illegal votes were cast in that election, including votes cast by persons
who were not citizens of the United States;
Whereas the evidence of illegal voting comes from the following sources:
(1) The Registrar of Voters of Orange County has indicated that 124
absentee ballots were cast illegally in the November 1996 General Election.
(2) The Committee on House Oversight's comparison of Immigration and
Naturalization Service records and Orange County voter registration records
provide evidence that more than 600 additional votes were illegally cast in
that election;
Whereas the number of votes shown to be illegal by clear and convincing
evidence is less than the post-recount 979 vote margin by which the
election was decided;
Whereas it is critical that the incidence of illegal voting be reduced
and eliminated in future elections and that the ability of investigators in
future election contests to detect and punish voter fraud be enhanced;
Whereas the Committee on House Oversight should continue its
investigation of illegal voting practices and recommend to the House of
Representatives legislative measures to reduce voter fraud and improve the
integrity of the voting process; and
Whereas the Committee on the Judiciary and the Committee on
Appropriations should closely examine the operations of the Department of
Justice and the Immigration and Naturalization Service to ensure that
proper steps are being taken to enforce the laws of the United States and
accurately provide information on the citizenship status of individuals, as
required by Federal law: Now, therefore, be it
Resolved, That the election contest of Robert Dornan, contestant, against
Loretta Sanchez, contestee, relating to the office of Representative from
the 46th Congressional District of California, is dismissed.
The SPEAKER pro tempore (Mr. [David] Camp [of Michigan]). The
reported resolution constitutes a question of the privileges of the
House and may be called up at any time.
The gentleman from California (Mr. Thomas) is recognized for 1
hour.
Mr. THOMAS. Mr. Speaker, for purposes of debate only, I yield
the customary 30 minutes to the gentleman from Maryland (Mr.
Hoyer), pending which I yield myself such time as I may consume.
Mr. Speaker, the resolution before us dismisses the contested
election in California's 46th District. That is clearly the
substance. The real story is that in the process of examining this
particular contested election, it is clear that voter rolls across
the country are suspect.
We all know that elections are fundamental to our democracy.
Free and fair elections are essential in selecting our
Representatives in this Republic. The belief on the part of people
who cast their ballot that their ballot may be negated by someone
who should not have been able to vote in an election erodes the
fundamental basis of our democracy and our Republic.
There have been attempts in this process to argue that our
concern about making sure that only those people who are eligible
to be registered and, therefore, eligible to vote, was not the
focus of our concern. Their arguments have been that, quite
frankly, what we are doing is ``racist;'' that we are on a ``witch
hunt.''
It is extremely difficult to understand why someone would not
want to make sure that voter rolls are accurate. It is without
contention, Mr. Speaker, that in those areas involving people who
wish to become naturalized citizens that there are enormous
problems today. We discovered just this week that the Immigration
and Naturalization Service has hired one of the big five accounting
firms to examine the way in which their process operates.
We have been accused of racism because we thought we needed
some firmer identification than is currently available from the
INS. The INS now admits that they are going to look at a proposal
which requires digitized photographs and fingerprints at the
beginning of the process, in the middle of the process, and at the
end of the process.
It just seems to me that if that system is admittedly flawed,
and that people have become citizens who should not have become
citizens, or, even more regrettably, those private organizations
who participated, ostensibly, in bringing this citizenship about,
utilized the opportunity to interact with these nascent citizens in
a way that put them on voter rolls illegally, has got to be
investigated until it is resolved.
Included in the Coopers & Lybrand report is the suggestion that
these private operations should be shut down. In the particular
contested election in front of us, one of those private
organizations, Hermandad Nacional, had 60 percent of the people it
registered flawed. That kind of a ratio either indicates sloppiness
or an unwillingness to follow the rules. Which clearly indicates we
should not use these private organizations. Now, whichever instance
it is, it simply means voter rolls are flawed.
Mr. Speaker, I yield 8 minutes to the gentleman from Michigan,
(Mr. Vern Ehlers), the chairman of the task force, to give my
colleagues an understanding of the details of this particular
examination of an election beyond the normal examination of
contested elections historically. And thank goodness we are finally
looking at the problems behind the surface.
Mr. [Vernon] EHLERS [of Michigan]. Mr. Speaker, I thank the
chairman of the committee for yielding me this time. I am pleased
to come to the House and report on the results of a very thorough
investigation of the Dornan-Sanchez contested election race.
I was given the following charge by the chairman of the
committee, when I took this task: I was asked to chair this task
force because of my reputation for integrity and honesty, and he
emphasized in the initial assignment that he wanted me to be fair,
honest, factual and thorough. This charge was reinforced by the
Republican leadership of the House several times during the course
of this investigation when certain issues came up, and once again I
was always encouraged to be fair, honest, factual and thorough in
the investigation. And I have certainly attempted to do that
because that is the way I want it to be.
It is regrettable that many false charges were made by the
minority party, even on the floor of the House, during the course
of this investigation. Because I felt it improper for anyone
involved in the investigation to comment, I restrained my comments
at that time.
Initially, there were several charges made in the contest
documents filed by former Representative Dornan. As we examined
these, we found that many of them simply could not be
substantiated. But what we did find was that charges of illegal
voting, specifically of fraudulent voting by noncitizens, could be
substantiated and, in fact, were true.
The initial examination by the registrar of voters of Orange
County discovered 124 absentee ballots which were invalid, and so
that reduced the 979 vote margin by 124. The California Secretary
of State did an independent investigation of the election, along
with the Los Angeles office of the Immigration and Naturalization
Service, and identified in their first pass 305 noncitizens who had
registered to vote and had voted.
Mr. [Steny] HOYER [of Maryland]. Mr. Speaker, will the
gentleman yield?
Mr. EHLERS. I yield to the gentleman from Maryland.
Mr. HOYER. Mr. Speaker, I do not want to interrupt the
gentleman's statement, but I want to ask him a question to clarify
what he just said.
When the gentleman indicated that reduced the margin by 124, am
I correct that in order to do that, we would have to assume that
all of those votes were cast for the gentlewoman from California
(Ms. Sanchez)?
Mr. EHLERS. Mr. Speaker, I thank the gentleman for calling that
to my attention. I did not mean to imply that. Reducing the margin
gets into another issue, but my point is that the reports from the
Registrar of Voters and the Secretary of State certainly indicated
substantial problems with the election.
Unfortunately, the national headquarters of the INS stopped the
process by telling the Los Angeles office they were no longer
allowed to cooperate with the California Secretary of State. At
that point, the House Oversight Committee asked the INS to
cooperate, and again we were told no. All this resulted in
approximately a 3-month delay, until the committee issued subpoenas
and the INS then responded to the subpoenas. The delay was most
unfortunate because we wanted to wrap up the investigation quickly.
Another delay occurred with the subpoenas issued by former
Congressman Dornan in an attempt to engage in the discovery process
and get more information. All of those subpoenas were ignored by
the recipients and no progress was made on that point.
Furthermore, the request by the House to the Department of
Justice to enforce the subpoenas resulted in no action and, again,
we incurred approximately a 3-month delay.
Finally, the Congress itself issued subpoenas to a few crucial
witnesses and organizations, and after considerable work on our
part and their part, they responded and we did get some
information, although it is still in question as to how thorough
that was.
I give this only by background to illustrate some of the
difficulties encountered by the task force in attempting to
ascertain the truth and, as I said, to be fair, honest, factual,
and thorough.
Let me give a very brief report of the process and of the
discoveries we made. This chart looks very complex because it is,
and it is very hard to read because there is a lot of information
on one sheet. I will not go through it in detail; I simply want to
illustrate that the process started by getting a computer tape of
the Orange County voter registration list, computer tapes of the
INS database, and running comparisons. And that is what we started
from.
The rest of the work primarily was going through the results of
the computer match because we wanted to determine to the maximum
extent possible what names had to be eliminated because they had
proof of citizenship at time of registration to vote. So most of
the work, contrary to what one might expect from a Republican
majority task force, was not devoted to finding additional
noncitizen voters but rather to prove that we could verify and
document the results presented here.
Let me report now on what we discovered in terms of number of
votes. After doing the computer check, eliminating obvious
mismatches, we had an original number of 7,841 suspect votes. Upon
further examination, going through not just the INS computer tapes
but also through the INS written records and trying to clear up the
many discrepancies we encountered, we discovered that 5,303 of the
7,841 actually were citizens and were legitimate registrants. So we
subtracted that from the 7,841 and that indicated we still had
2,538 suspect registrants. Then, checking the voter records
carefully, we determined that 1,718 of them, even though they had
registered illegally, did not vote and so, therefore, had no impact
on the election.
But it does illustrate the point that the chairman of the
committee made a moment ago, this is definitely a matter of
concern. Altogether, we have approximately 2,500 illegal
registrants discovered in our process; and that has to be taken
care of as a separate issue, through further legislation. That
indicated that there were still 820 suspect registrants who did
vote in the November 1996 election.
At that point we went into extensive examination of the data to
try to document in the best possible way those that we could be
certain were illegal noncitizens who voted, and the number that
emerged was 624. We had circumstantial evidence that an additional
196 had voted but were unable to document it to my and our
satisfaction; and, therefore, we decided not to include those in
the total of questionable votes.
If we add to the 624 illegal noncitizen voters that we have
identified the 124 absentee ballots that had previously been
disallowed by the Orange County Registrar of Voters, then we
discover 748 illegal votes. And that is the total that we had
emerge as the number of illegal votes cast in that election. If one
were to include those votes with circumstantial evidence of
illegality, there would be 944.
Let me remind my colleagues again, the margin of victory was
979. Let me also remind my colleagues, the three options open to
the committee and the task force were, number one, to dismiss the
election, simply saying there is not sufficient proof to change the
result of the election; number two, to say the evidence was so
overwhelming in favor of the contestant that we had to overthrow
the election and seat Mr. Dornan; and number three, to simply say,
we cannot tell the result of the election, no one can tell the
result of the election, and we vacate the seat and the State must
call a new election.
It is our recommendation to the committee, and its recommended
to the Congress, that we dismiss the election in view of the fact
that the number of illegal votes we identified is less than the
margin of victory that was previously determined . . .
The SPEAKER pro tempore (Mr. Camp). The question is on the
resolution.
The question was taken; and the Speaker pro tempore announced
that the ayes appeared to have it.
Mr, HOYER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas
378, nays 33, not voting 19, as follows:
[Roll No. 16] . . .
Mr. WATTS of Oklahoma changed the vote from ``nay'' to ``yea.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Sec. 27. One Hundred Sixth Congress, 1999-2000
There were no election contests considered by the House during the
106th Congress.
Sec. 28. One Hundred Seventh Congress, 2001-2002
There were no election contests considered by the House during the
107th Congress.
Sec. 29. One Hundred Eighth Congress, 2003-2004
Sec. 29.1 Tataii v Case
The general election for the office of Representative to Congress
from the Second District of Hawaii was conducted on November 2,
2002.(1) On September 21, 2002, the Hawaii Democratic party
held a primary election to choose a candidate for the general election.
Rep. Patsy Mink won the primary over Mr. Steve Tataii by over 50,000
votes. On September 27, 2002, Mr. Tataii filed a state election contest
with the Hawaii Supreme Court, arguing that Rep. Mink's poor health
required either that she withdraw from the contest or that she be
disqualified by state election officials or party officials. The Hawaii
Supreme Court ruled against Mr. Tataii, noting that the statute
``allows, but does not mandate''(2) a candidate's
disqualification under such circumstances.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 108-207, 108th Cong. 1st Sess.
2. H. Rept. 108-207, 108th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
On September 28, 2002, prior to the general election, Rep. Mink
died.(3) Nevertheless, her name remained on the ballot, and
she received 56 percent of the votes cast. Her death thus caused a
vacancy in the Second District of Hawaii, both for the remainder of her
term for the 107th Congress, and for the seat in the 108th Congress.
Mr. Tataii was a candidate in the special election to fill the seat for
the remainder of 107th Congress, but received only 28 votes as compared
to Mr. Ed Case, who received over 23,000 votes. Mr. Tataii was also a
candidate in the special election to fill the vacancy for the 108th
Congress. In that election, Mr. Tataii received only nine votes, as
compared to Mr. Case, who received over 33,000 votes.
---------------------------------------------------------------------------
3. See Deschler's Precedents Ch. 38 Sec. 2.5.
---------------------------------------------------------------------------
On January 31, 2003, Mr. Tataii (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was forwarded to
the Committee on House Administration for its consideration. Mr. Case
(hereafter ``contestee'') did not file an answer to the notice of
contest nor any other pleadings.
The committee first addressed the issue of standing, noting that
the Federal Contested Elections Act applies to general or special
elections, but not partisan primary elections. Nevertheless, the
committee chose not to recommend dismissal of the case based on this
procedural consideration. Instead, the committee addressed the merits
of the contestant's argument, which was centered on the activities of
the Democratic party in conducting its primary election. Contestant
presented no evidence of any kind regarding the primary election,
claiming only that a victory in the primary would have assured victory
in any subsequent general election because of ``Hawaii's traditional
Democratic voting for this seat.''(4) The committee did not
find this reasoning persuasive, reiterating that the burden for
contestants under the Federal Contested Elections Act is high, as they
must show with substantial evidence that the results of the election
would have been different absent any irregularities. The committee
concluded that contestant had not met this burden, and thus recommended
that the House dismiss the case.
---------------------------------------------------------------------------
4. H. Rept. 108-207, 108th Cong. 1st Sess. p. 4.
---------------------------------------------------------------------------
On July 15, 2003,(5) the committee filed its privileged
report. By unanimous consent, the House agreed to take up House
Resolution 317 (dismissing the contest), which was agreed to by voice
vote:
---------------------------------------------------------------------------
5. 149 Cong. Rec. 18031, 108th Cong. 1st Sess.
---------------------------------------------------------------------------
RESOLUTION DISMISSING ELECTION CONTEST AGAINST ED CASE OF
HAWAII
Mr. NEY, from the Committee on House Administration, submitted
a privileged report (H. Rept. 108-207) on the resolution (H. Res.
317) dismissing the election contest against Ed Case, which was
referred to the House Calendar and ordered to be printed.
Mr. [Robert] NEY [of Ohio]. Mr. Speaker, I ask unanimous
consent for the immediate consideration of the resolution (H. Res.
317) dismissing the election contest relating to the office of
Representative from the Second Congressional District of Hawaii.
The Clerk read the title of the resolution.
The SPEAKER pro tempore.(6) The Clerk will report
the resolution.
---------------------------------------------------------------------------
6. Eugene Shaw, Jr. (FL).
---------------------------------------------------------------------------
The Clerk read as follows:
H. Res. 317
Resolved, That the election contest relating to the office of
Representative from the Second Congressional District of Hawaii is
dismissed.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Ohio?
Mr. [John] LARSON of Connecticut. Mr. Speaker, reserving my
right to object, I yield to the distinguished chairman to explain
the purpose of this resolution.
Mr. NEY. Mr. Speaker, I want to thank the gentleman from
Connecticut, our ranking member, for yielding.
I rise in support of House Resolution 317, a bill to dismiss an
election contest filed against Representative Ed Case of Hawaii's
Second Congressional District. There is bipartisan and complete
agreement that the contest fails to state grounds sufficient to
change the result of the election and therefore should be
dismissed.
The contestant challenged the late Representative Patsy Mink in
the 2002 Democrat primary, where he received 15 percent of the
vote. The contestant argues that Representative Mink, who was
seriously ill at the time of the primary and passed away 1 week
later, should have been disqualified as a primary candidate, that
he should have been declared the Democrat nominee by default and
that as the nominee he therefore would have been the inevitable
general election winner.
The Federal Contested Elections Act does not contemplate
considering Notices of Contest that are based on the conduct of
primary elections. Consequently, the committee concludes that the
basis for the contestant's Notice of Contest falls outside the
scope of the FCEA, and it was totally agreed to without any
dissension.
Mr. LARSON of Connecticut. Mr. Speaker, further reserving my
right to object, I rise in support of the resolution reported
unanimously by the Committee on House Administration to dismiss
this frivolous election contest against our colleague from Hawaii
Ed Case.
Representative Case won a special election with 44 candidates
on the ballot on January 4, 2003, by an overwhelming margin; and I
want to commend the gentleman from Ohio (Chairman Ney) for the
bipartisan cooperation that has been demonstrated throughout this
process.
Mr. Speaker, I withdraw my reservation of objection.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Ohio?
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 29.2 Lyons v Gordon
The general election for the office of Representative to Congress
from the Sixth District of Tennessee was conducted on November 5,
2002.(7) The general election candidates were Bart J. Gordon
(the Democratic candidate), Robert L. Garrison (the Republican
candidate), and J. Patrick Lyons (an Independent candidate). The
results provided by the Tennessee Secretary of State indicated that Mr.
Gordon had received 117,034 votes, Mr. Garrison had received 57,401
votes, and Mr. Lyons had received 3,065 votes. On December 2, 2002, the
Tennessee Secretary of State certified the results of the election, and
credentials were issued to Mr. Gordon. Mr. Gordon's credentials were
presented to the House of Representatives, and on January 7, 2003, he
was duly administered the oath of office without objection or
challenge.
---------------------------------------------------------------------------
7. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 108-208, 108th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 5, 2002, Mr. Lyons (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was referred to
the Committee on House Administration for its review. Mr. Gordon
(hereafter ``contestee'') did not submit formal pleadings in this case,
but did submit a letter to the committee relating to the matter.
Contestant's basis for contesting the election centered on two
constitutional claims. The first is that incumbent Members of Congress
are ineligible to be elected to the following Congress without first
resigning their seats. The second is that retaining membership in the
Tennessee Bar made contestee a ``judicial officer of the courts of
Tennessee''(8) and thus his election to a legislative seat
would violate the constitutional principle of separation of powers. The
latter violation, in contestant's view, rendered contestee an
``insurrectionist'' under the 14th Amendment.(9)
---------------------------------------------------------------------------
8. H. Rept. 108-208, 108th Cong. 1st Sess. p. 2.
9. Id.
---------------------------------------------------------------------------
In its committee report, the Committee on House Administration did
not find contestant's claims persuasive. The contestant ``does not
advance a single allegation of irregularity or fraud in the conduct of
the election.''(10) Instead, contestant's constitutional
arguments only addressed the issue of contestee's ineligibility and
provided no ``nexus''(11) between this allegation and
contestant's right to the seat in question. Ultimately, the committee
concluded that the alleged controversy should be viewed more properly
as a qualifications case rather than an election
contest.(12) The committee thus recommended dismissal of the
case.
---------------------------------------------------------------------------
10. Id. at p. 4.
11. Id. at p. 3.
12. For similar cases, see Mack v Stokes, Sec. 15.4, supra; Lyons v
Gordon, Sec. 30.1, infra.; and Cox v McCrery, Sec. 31.5, infra.
See also Sec. 5, supra. For qualifications generally, see
Precedents (Smith) Ch. 7 Sec. 3.
---------------------------------------------------------------------------
On July 15, 2003,(13) the committee filed its privileged
report. By unanimous consent, the House adopted House Resolution 318
(dismissing the contest):
---------------------------------------------------------------------------
13. 149 Cong. Rec. 18032, 108th Cong. 1st Sess.
---------------------------------------------------------------------------
RESOLUTION DISMISSING ELECTION CONTEST AGAINST BART GORDON OF
TENNESSEE
Mr. Ney, from the Committee on House Administration, submitted
a privileged report (H. Rept. 108-208) on the resolution (H. Res.
318) dismissing the election contest against Bart Gordon, which was
referred to the House Calendar and ordered to be printed.
Mr. [Robert] NEY [of Ohio]. Mr. Speaker, I ask unanimous
consent for the immediate consideration of the resolution (H. Res.
318) dismissing the election contest relating to the office of
Representative from the Sixth Congressional District of Tennessee.
The Clerk read the title of the resolution.
The SPEAKER pro tempore.(14) The Clerk will report
the resolution.
---------------------------------------------------------------------------
14. Eugene Shaw, Jr. (FL).
---------------------------------------------------------------------------
The Clerk read as follows:
H. Res. 318
Resolved, That the election contest relating to the office of
Representative from the Sixth Congressional District of Tennessee is
dismissed.
The SPEAKER pro tempore (Mr. Shaw). Is there objection to the
request of the gentleman from Ohio?
Mr. [John] LARSON of Connecticut. Mr. Speaker, reserving the
right to object, I yield to the distinguished chairman, the
gentleman from Ohio (Mr. Ney), to explain the purpose of this
resolution.
Mr. NEY. Mr. Speaker, I thank the ranking member for yielding.
In keeping with the tradition of the dismissal of ``Election
Contest Day'' here in the U.S. House, I rise in support of House
Resolution 318, a bill to dismiss an election contest filed against
the gentleman from Texas (Mr. Gordon) in Tennessee's Sixth
District.
The contestant, a candidate on the November 2002 ballot against
the gentleman from Tennessee (Mr. Gordon), filed a notice of
contest under the Federal Contested Elections Act contending that
the gentleman from Tennessee (Mr. Gordon) is unqualified for the
office because the Constitution bars an incumbent from running for
reelection without first resigning his or her seat and being an
inactive member of the State Bar Association. The contestant makes
no allegations of irregularities, fraud, or wrongdoing in respect
to the election of the sixth congressional seat.
The committee finds that challenges to the qualifications of a
Member-elect to serve in the Congress fall outside the purview of
the FCEA, which was designed to consider allegations relating to
the actual conduct of an election. Consequently, the committee
concludes that the contestant's arguments regarding the
qualifications of the gentleman from Tennessee (Mr. Gordon) to
serve in Congress do not constitute grounds sufficient to change
the results of the election and, therefore, recommends that this
election contest be dismissed.
Again, in the frame of the other resolution, we had full
support on this and deem it to be frivolous.
Mr. LARSON of Connecticut. Mr. Speaker, further reserving my
right to object, I rise in support of this resolution reported
unanimously by the Committee on House Administration, dismissed as
a frivolous election contest against our colleague, the gentleman
from Tennessee (Mr. Gordon). The gentleman from Tennessee (Mr.
Gordon) was reelected with 66 percent of the vote.
Again, I would like to commend the gentleman from Ohio
(Chairman Ney) for his fair-handed and fair-minded bipartisan
cooperation that has been demonstrated throughout this process.
Mr. NEY. Mr. Speaker, if the gentleman will yield again briefly
under his reservation, I would like to thank our ranking member,
the gentleman from Connecticut (Mr. Larson), and members of the
committee for their work on these two issues.
Mr. LARSON of Connecticut. Mr. Speaker, I withdraw my
reservation of objection.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Ohio?
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 30. One Hundred Ninth Congress, 2005-2006
Sec. 30.1 Lyons v Gordon
The general election for the office of Representative to Congress
from the Sixth District of Tennessee was conducted on November 2,
2004.(1) The general election candidates were Bart J. Gordon
(the Democratic candidate), Nick Demas (the Republican candidate), and
Norman R. Saliba (an Independent candidate). Another Independent
candidate, J. Patrick Lyons, was also on the ballot. The results
provided by the Tennessee Secretary of State indicated that Mr. Gordon
had received 167,448 votes, Mr. Demas had received 87,523 votes, Mr.
Saliba had received 1,802 votes, and Mr. Lyons had received 3,869
votes. On December 7, 2004, the Tennessee Secretary of State certified
the results of the election, and credentials were issued to Mr. Gordon.
Mr. Gordon's credentials were presented to the House of
Representatives, and on January 4, 2005, he was duly administered the
oath of office without objection or challenge.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 109-57, 109th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 28, 2004, Mr. Lyons (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was forwarded to
the Committee on House Administration for its consideration. The
arguments made by contestant in this case were identical to those
raised by the same individual, with respect to the same seat, in the
prior Congress.(2) In both cases, contestant argued that Mr.
Gordon (hereafter ``contestee'') was not qualified to take a seat in
the House of Representatives. In neither case did the contestant allege
any fraud or irregularities in the election, nor did the contestant
dispute the vote totals as reported by state and local officials.
---------------------------------------------------------------------------
2. See Lyons v Gordon, Sec. 29.2, supra.
---------------------------------------------------------------------------
In its committee report, the Committee on House Administration
concluded that ``as a general matter, challenges to the qualifications
of a member-elect to serve in the Congress fall outside the purview of
the Federal Contested Elections Act, which was designed to consider
allegations relating to the actual conduct of an
election.''(3) As a result, the contestant had not presented
any evidence that would show that the result of the election would have
been different. Accordingly, the committee recommended dismissal of the
case.
---------------------------------------------------------------------------
3. H. Rept. 109-57, 109th Cong. 1st Sess. p. 4.
---------------------------------------------------------------------------
On April 27, 2005,(4) the committee filed its privileged
report:
---------------------------------------------------------------------------
4. 151 Cong. Rec. 7990, 109th Cong. 1st Sess.
---------------------------------------------------------------------------
REPORT ON RESOLUTION DISMISSING ELECTION CONTEST RELATING TO
OFFICE OF REPRESENTATIVE FROM TENNESSEE'S SIXTH CONGRESSIONAL
DISTRICT
Mr.Ney, from the Committee on House Administration, submitted a
privileged report (Rept. No. 109-57) on the resolution (H. Res.
239) dismissing the election contest relating to the office of
Representative from the Sixth Congressional District of Tennessee,
which was referred to the House Calendar and ordered to be printed.
The same day,(5) by unanimous consent, the House adopted
House Resolution 239 (dismissing the contest):
---------------------------------------------------------------------------
5. 151 Cong. Rec. 7994, 109th Cong. 1st Sess. (Apr. 27, 2005).
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE SIXTH CONGRESSIONAL DISTRICT OF
TENNESSEE
Mr. [Robert] NEY [of Ohio]. Mr. Speaker, I offer a resolution
(H. Res. 239) dismissing the election relating to the office of
Representative from the Sixth Congressional District of Tennessee,
and ask unanimous consent for its immediate consideration in the
House.
The Clerk read the title of the resolution.
The SPEAKER pro tempore.(6) Is there objection to
the request of the gentleman from Ohio?
---------------------------------------------------------------------------
6. Michael Simpson (ID).
---------------------------------------------------------------------------
There was no objection.
The Clerk read the resolution, as follows:
H. Res. 239
Resolved, That the election contest relating to the office of
Representative from the Sixth Congressional District of Tennessee is
dismissed.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 31. One Hundred Tenth Congress, 2007-2008
Sec. 31.1 Gonzalez v Diaz-Balart
The general election for the office of Representative to Congress
from the 21st District of Florida was conducted on November 7,
2006.(1) The general election candidates were Frank J.
Gonzalez (the Democratic candidate), and Lincoln Diaz-Balart (the
Republican candidate). On November 20, 2006, the Florida Elections
Canvassing Commission certified the following results: 66,784 votes for
Mr. Diaz-Balart, and 45,522 votes for Mr. Gonzalez. On November 22,
2006, the Florida Secretary of State issued credentials to Mr. Diaz-
Balart. Mr. Diaz-Balart's credentials were presented to the House of
Representatives, and on January 4, 2007, he was duly administered the
oath of office without objection or challenge.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 110-175, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 20, 2006, Mr. Gonzalez (hereafter ``contestant'') filed
a notice of contest, which was received in the House on December 28 and
officially delivered to the Clerk on January 3, 2007. In the notice of
contest, contestant alleged that the voting machines used in the
elections had been ``hacked or had their data tabulations altered by
electronic means.''(2) Contestant further argued that the
lack of a verified paper trail made any recount based on the original
electronic totals inherently inaccurate. On January 17, 2007, Mr. Diaz-
Balart (hereafter ``contestee'') filed a motion to dismiss the contest
based on the failure to file a timely notice of contest pursuant to the
Federal Contested Elections Act (FCEA).
---------------------------------------------------------------------------
2. H. Rept. 110-175, 110th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
In its committee report, the Committee on House Administration
noted that the primary argument advanced by the contestant was that
voting machines in a neighboring congressional district registered
inaccurate totals, and the same type of voting machines were used in
the 21st District. The committee viewed this evidence as irrelevant, as
it presented no direct evidence that the machines in the 21st District
were affected. The committee also concluded that contestant's
allegation of misconduct and insufficient testing of voting equipment
by election officials was not persuasive, absent some evidence that
such irregularities affected the outcome of the election. ``For the
Committee to come to any other conclusion would be to remove the
presumption of regularity that attaches to the state certification and
would make all elections open to contest and investigation based on
mere conjecture or speculation.''(3) The committee thus
recommended dismissal of the case.
---------------------------------------------------------------------------
3. H. Rept. 110-175, 110th Cong. 1st Sess. p. 4.
---------------------------------------------------------------------------
In the minority view filed with the committee's report, Members
from the minority party agreed with the ultimate conclusion, but would
have dismissed the case on procedural grounds. The minority views
focused on the temporal requirements of the FCEA. Specifically, they
argued that the notice of contest, though dated December 20, 2006
(i.e., within the 30-day time frame laid out by the statute), was not
actually received by the Clerk until January 3, 2007. Thus, the
minority would have found the filing of that initial pleading untimely,
and would have dismissed the case on that basis.
On June 6, 2007,(4) the committee filed its privileged
report:
---------------------------------------------------------------------------
4. 153 Cong. Rec. 14661, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
REPORT ON HOUSE RESOLUTION 459, DISMISSING ELECTION CONTEST
RELATING TO OFFICE OF REPRESENTATIVE FROM 21ST CONGRESSIONAL
DISTRICT OF FLORIDA
Mr. BRADY of Pennsylvania, from the Committee on House
Administration, submitted a privileged report (Rept. No. 110-175)
on the resolution (H. Res. 459) dismissing the election contest
relating to the office of Representative from the Twenty-first
Congressional District of Florida, which was referred to the House
Calendar and ordered to be printed.
On June 12, 2007,(5) by unanimous consent, the House
adopted House Resolution 459 (dismissing the contest):
---------------------------------------------------------------------------
5. 153 Cong. Rec. 15453, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE TWENTY-FIRST CONGRESSIONAL DISTRICT OF
FLORIDA
Mr. [Robert] BRADY of Pennsylvania. Mr. Speaker, I ask
unanimous consent for the immediate consideration of House
Resolution 459 in the House.
The Clerk read the title of the resolution.
The text of the resolution is as follows:
H. Res. 459
Resolved, That the election contest relating to the office of
Representative from the Twenty-first Congressional District of Florida is
dismissed.
The SPEAKER pro tempore.(6) Is there objection to
the request of the gentleman from Pennsylvania?
---------------------------------------------------------------------------
6. John Salazar (CO).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 31.2 Curtis v Feeney
The general election for the office of Representative to Congress
from the 24th District of Florida was conducted on November 7,
2006.(7) The general election candidates were Clint Curtis
(the Democratic candidate), and Tom Feeney (the Republican candidate).
On November 20, 2006, the Florida Elections Canvassing Commission
certified the following results: 123,795 votes for Mr. Feeney, and
89,863 votes for Mr. Curtis. Consequently, the Florida Secretary of
State issued credentials to Mr. Feeney. Mr. Feeney's credentials were
presented to the House of Representatives, and on January 4, 2007, he
was duly administered the oath of office without objection or
challenge.
---------------------------------------------------------------------------
7. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 110-176, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 20, 2006, Mr. Curtis (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was forwarded to
the Committee on House Administration for its consideration. In his
notice of contest, contestant alleged that voting machines did not
record accurate vote totals, and that they had been ``hacked and the
software manipulated.''(8) Contestant also alleged that
election officials did not take ``necessary procedural
safeguards''(9) to ensure that voting machines were not
tampered with.
---------------------------------------------------------------------------
8. H. Rept. 110-176, 110th Cong. 1st Sess. p. 2.
9. Id.
---------------------------------------------------------------------------
On January 19, 2007, Mr. Feeney (hereafter ``contestee'') filed a
motion to dismiss the contest. The motion to dismiss argued that
contestant had not claimed a right to the seat in question, and had not
supported his allegations with evidence sufficient to change the result
of the election.
In its committee report, the Committee on House Administration
addressed five separate categories of alleged errors, fraud, or voting
machine irregularities. The committee found that the contestant did not
provide substantial evidence to support his claims, relying instead on
historical trends, polls, and other data to conclude that the election
must have been poorly administered. Even if the contestant's claims of
errors and irregularities were taken as true, no direct evidence was
presented that would have shown how the outcome of the election would
have been reversed. The committee concluded that contestant's claims
were ``built on shifting sands of speculation and
conjecture.''(10) It therefore recommended dismissal of the
contest.
---------------------------------------------------------------------------
10. Id. at p. 4.
---------------------------------------------------------------------------
On June 6, 2007,(11) the committee filed its privileged
report:
---------------------------------------------------------------------------
11. 153 Cong. Rec. 14661, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
REPORT ON HOUSE RESOLUTION 461, DISMISSING ELECTION CONTEST
RELATING TO OFFICE OF REPRESENTATIVE FROM 24TH CONGRESSIONAL
DISTRICT OF FLORIDA
Mr. BRADY of Pennsylvania, from the Committee on House
Administration, submitted a privileged report (Rept. No. 110-176)
on the resolution (H. Res. 461) dismissing the election contest
relating to the office of Representative from the Twenty-fourth
Congressional District of Florida, which was referred to the House
Calendar and ordered to be printed.
On June 12, 2007,(12) by unanimous consent, the House
adopted House Resolution 461 (dismissing the contest):
---------------------------------------------------------------------------
12. 153 Cong. Rec. 15453, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE TWENTY-FOURTH CONGRESSIONAL DISTRICT OF
FLORIDA
Mr. [Robert] BRADY of Pennsylvania. Mr. Speaker, I ask
unanimous consent for the immediate consideration of House
Resolution 461 in the House.
The Clerk read the title of the resolution.
The text of the resolution is as follows:
H. Res. 461
Resolved, That the election contest relating to the office of
Representative from the Twenty-fourth Congressional District of Florida is
dismissed.
The SPEAKER pro tempore.(13) Is there objection to
the request of the gentleman from Pennsylvania?
---------------------------------------------------------------------------
13. John Salazar (CO).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 31.3 Russell v Brown-Waite
The general election for the office of Representative to Congress
from the Fifth District of Florida was conducted on November 7,
2006.(14) The general election candidates were Virginia
Brown-Waite (the Republican candidate), and John Russell (the
Democratic candidate). On November 20, 2006, the Florida Elections
Canvassing Commission certified the following results: 162,421 votes
for Mrs. Brown-Waite, and 108,959 votes for Mr. Russell. On November
22, 2006, the Florida Secretary of State issued credentials to Mrs.
Brown-Waite. Mrs. Brown-Waite's credentials were presented to the House
of Representatives, and on January 4, 2007, she was duly administered
the oath of office without objection or challenge.
---------------------------------------------------------------------------
14. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 110-178, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
On January 3, 2007, Mr. Russell (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was referred to
the Committee on House Administration for its review. Contestant argued
that votes were not accurately recorded by the voting machines used in
the election because ``their data tabulations [had been] altered by
electronic means.''(15) Because the voting machines did not
provide a verified paper trail, contestant alleged that no accurate
recount could be conducted. On January 17, 2007, Mrs. Brown-Waite
(hereafter ``contestee'') filed a motion to dismiss the contest.
Contestee argued that contestant's notice of contest was not timely
filed pursuant to statutory requirements, and should be rejected on
that basis.
---------------------------------------------------------------------------
15. H. Rept. 110-178, 110th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
In its committee report, the Committee on House Administration
noted that the only direct evidence of discrepancies in the voting
process were affidavits submitted by the contestant alleging that six
votes in one precinct were different than those recorded. Given that
the margin of victory in the election was over 50,000 votes, the
committee concluded that the contestant had not demonstrated how the
alleged irregularities would have changed the result of the election.
The committee further found that ``contestant's musing'' about the
possibility of software error or manipulation of the electronic voting
machines ``does not form the basis for a cognizable
claim.''(16)
---------------------------------------------------------------------------
16. Id. at p. 4.
---------------------------------------------------------------------------
Members of the minority party submitted minority views to accompany
the committee's report. Those views agreed with the decision to dismiss
the case, but would have done so for procedural reasons. Specifically,
the minority would have considered the contestant's notice of contest
as not timely filed under the statute, and would have thus dismissed
the case on that basis.
On June 6, 2007,(17) the committee filed its privileged
report:
---------------------------------------------------------------------------
17. 153 Cong. Rec. 14661, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
REPORT ON HOUSE RESOLUTION 463, DISMISSING ELECTION CONTEST
RELATING TO OFFICE OF REPRESENTATIVE FROM FIFTH CONGRESSIONAL
DISTRICT OF FLORIDA
Mr. BRADY of Pennsylvania, from the Committee on House
Administration, submitted a privileged report (Rept. No. 110-178)
on the resolution (H. Res. 463) dismissing the election contest
relating to the office of Representative from the Fifth
Congressional District of Florida, which was referred to the House
Calendar and ordered to be printed.
On June 12, 2007,(18) by unanimous consent, the House
adopted House Resolution 463 (dismissing the contest):
---------------------------------------------------------------------------
18. 153 Cong. Rec. 15453, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE FIFTH CONGRESSIONAL DISTRICT OF FLORIDA
Mr. [Robert] BRADY of Pennsylvania. Mr. Speaker, I ask
unanimous consent for the immediate consideration of House
Resolution 463 in the House.
The Clerk read the title of the resolution.
The text of the resolution is as follows:
H. Res. 463
Resolved, That the election contest relating to the office of
Representative from the Fifth Congressional District of Florida is
dismissed.
The SPEAKER pro tempore.(19) Is there objection to
the request of the gentleman from Pennsylvania?
---------------------------------------------------------------------------
19. John Salazar (CO).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 31.4 Jennings v Buchanan
The general election for the office of Representative to Congress
from the 13th District of Florida was conducted on November 7,
2006.(20) The general election candidates were Christine
Jennings (the Democratic candidate), and Vern Buchanan (the Republican
candidate). In that election, Mr. Buchanan received 119,105 votes and
Mrs. Jennings received 118,737 votes, giving Mr. Buchanan a margin of
victory of 368 votes. A recount ordered by the Florida Elections
Canvassing Commission pursuant to state law increased the margin of
victory by one vote. On November 20, 2006, the Florida Elections
Canvassing Commission certified these results as final. Mr. Buchanan's
credentials were presented to the House of Representatives and on
January 4, 2007, he was duly administered the oath of office without
objection or challenge.(21)
---------------------------------------------------------------------------
20. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 110-528, 110th Cong. 2d Sess.
21. Parliamentarian's Note: Although no challenge was made to the
seating of Mr. Buchanan on opening day, parliamentary inquiries
were propounded by both majority party and minority party
Members, which established that an election contest was being
pursued under the FCEA, that Mr. Buchanan had appeared with
valid credentials from the state of Florida, and that his
seating was without prejudice to the final right to the seat.
See 153 Cong. Rec. 5, 110th Cong. 1st Sess. (Jan. 4, 2007).
---------------------------------------------------------------------------
Florida officials discovered a potential undercount in the vote in
Sarasota County, and on November 9, 2006, an audit was conducted at the
behest of the Florida Secretary of State. The final audit report,
released on February 23, 2007, concluded that there was no evidence to
suggest that the electronic voting machines used in the election failed
to properly record votes.
Mrs. Jennings filed a contested election suit in state court,
arguing that votes cast in Sarasota County were not properly recorded
due to malfunctioning voting machines. Mrs. Jennings sought access to
the machines and their software in order to test their accuracy. On
December 29, 2006, a state judge denied this request. This decision was
upheld at the appellate level on June 18, 2007, and no further state
court proceedings occurred before Mrs. Jennings ultimately withdrew her
challenge in the courts on November 26, 2007.
On December 20, 2006, Mrs. Jennings (hereafter ``contestant'')
filed a notice of contest with the Clerk of the House, which was
forwarded to the Committee on House Administration for its
consideration. Contestant took issue with the state recount, calling it
a ``meaningless exercise''(22) because there was no separate
paper trail to verify the results. Contestant also presented
statistical evidence of the undervote in Sarasota County, and provided
affidavits from individuals who claimed to have had difficulty
registering votes for the congressional seat at issue. On January 19,
2007, Mr. Buchanan (hereafter ``contestee'') filed a motion to dismiss
the contest, citing the findings of the state audit of the voting
machines.
---------------------------------------------------------------------------
22. H. Rept. 110-528, 110th Cong. 2d Sess. p. 6.
---------------------------------------------------------------------------
On February 7, 2007, the chair of the committee (Rep. Millender-
McDonald of California) reached an agreement with Sarasota County
officials to safeguard half of the voting machines for further testing.
On March 23, 2007, the committee established a task force to review the
matter. The task force first met on May 2, 2007, and voted to retain
the services of the Government Accountability Office to conduct an
inspection of the machines. The final Government Accountability Office
report, delivered to the task force on February 8, 2008, determined
that ``the voting systems used in Sarasota County did not contribute to
the undervote.''(23) The task force thus voted to recommend
dismissal of the case.
---------------------------------------------------------------------------
23. Id.
---------------------------------------------------------------------------
In its committee report, the Committee on House Administration
agreed with the conclusions of the task force, noting that ``only clear
and convincing evidence can provide the basis to overcome the
presumption of the regularity accorded a State's certified
results.''(24) The committee thus concluded that the contest
should be dismissed.
---------------------------------------------------------------------------
24. Id. at p. 12.
---------------------------------------------------------------------------
On February 25, 2008,(25) the House adopted a special
order of business by unanimous consent and immediately considered House
Resolution 989 (dismissing the contest) pursuant to such order. The
resolution was agreed to by voice vote:
---------------------------------------------------------------------------
25. 154 Cong. Rec. 2426-28, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE 13TH CONGRESSIONAL DISTRICT OF FLORIDA
Mr. [Charles] GONZALEZ [of Texas]. Madam Speaker, I ask
unanimous consent that it shall be in order at any time to consider
in the House, House Resolution 989; that the resolution shall be
considered as read; and that the previous question shall be
considered as ordered on the resolution to its adoption without
intervening motion except 10 minutes of debate equally divided and
controlled by the chairman and the ranking minority member of the
Committee on House Administration, or their designees.
The SPEAKER pro tempore.(26) Is there objection to
the request of the gentleman from Texas?
---------------------------------------------------------------------------
26. Tammy Baldwin (WI).
---------------------------------------------------------------------------
There was no objection.
Mr. GONZALEZ. Madam Speaker, pursuant to the previous order, I
call up House Resolution 989 and ask for its immediate
consideration in the House.
The Clerk read the title of the resolution.
The text of the resolution is as follows:
H. Res. 989
Resolved, That the election contest relating to the office of
Representative from the Thirteenth Congressional District of Florida is
dismissed.
The SPEAKER pro tempore. Pursuant to the order of the House of
today, the gentleman from Texas (Mr. Gonzalez) and the gentleman
from California (Mr. McCarthy) each will control 5 minutes.
The Chair recognizes the gentleman from Texas.
general leave
Mr. GONZALEZ. Madam Speaker, I would ask unanimous consent that
all Members have 5 legislative days to revise and extend their
remarks in the Record on this resolution.
The SPEAKER pro tempore. Is there objection to the request of
the gentleman from Texas?
There was no objection.
Mr. GONZALEZ. Madam Speaker, I yield myself as much time as I
may consume.
On February 12, the Committee on House Administration
unanimously recommended dismissal of the election contest relating
to the 13th Congressional District of Florida.
The late chairwoman, Juanita Millender-McDonald, established a
task force to investigate this contested election in which over
18,000 ballots did not show a vote cast in the United States
congressional race in Sarasota County, Florida. The task force
consisted of Representative Zoe Lofgren and Representative Kevin
McCarthy of California, and I had the honor of serving as the Chair
of the task force.
After the task force established the need to conduct an
investigation, every vote by the task force to determine the scope
and direction in the investigation was, in fact, unanimous.
I want to thank the members of the task force for their
dedication to the investigation and the Government Accountability
Office for a systematic investigation of the voting equipment. I
would also like to thank both the majority and the minority staffs,
along with the House recording studio.
The task force authorized the GAO to investigate whether the
voting machines used in Sarasota County contributed to the
unusually high number of undervotes. The task force also directed
the GAO to evaluate whether additional testing was needed. After
the GAO recommended further testing in October, the task force
directed the GAO to design and execute testing to determine the
reliability of the Sarasota voting equipment.
The GAO presented its final findings to the task force on
February 8, 2008, when the GAO reported the Sarasota County voting
machines did not contribute to the large undervote in the
congressional race for the 13th District of Florida.
The GAO acknowledged that the undervote could have been caused
by other elements, such as voters who intentionally did not vote in
the race or voters who unintentionally did not cast their ballots
because of poor ballot design.
However, because the contestant's central argument claimed
voting machine malfunction caused the abnormal undervote, the GAO's
analysis was limited to the voting machine malfunction issue. Due
to the GAO's determination with a high degree of certainty that the
voting machines did not cause the undervote, the task force
unanimously recommended to the full committee, and the full
committee has unanimously recommended to the House, that the
contest be dismissed.
I urge Members to vote in favor of this resolution.
Madam Speaker, I reserve the balance of my time.
Mr. [Kevin] McCARTHY of California. Madam Speaker, I yield 3
minutes to the ranking Republican on the full committee, the
gentleman from Michigan (Mr. Ehlers).
Mr. [Vernon] EHLERS [of Michigan]. I thank the gentleman for
yielding.
Madam Speaker, this is the third time I have served or been
involved with a task force dealing with contested elections, and I
believe this is by far the best procedure that has been developed
and can help serve as a model for future decisions of this sort.
I congratulate the two gentlemen before you, who, representing
the majority and the minority, did the yeoman's work on
investigating the issue, deciding to pull in the Government
Accountability Office, which I think was a good addition to the
entire process. A careful examination has made it very clear that
there was nothing wrong with the voting machines in this particular
election; and, therefore, the contestant's claims that the
undervote was caused by faulty machines is just not valid.
What the real reasons were, we will never know. It could have
been ballot design. It could be several other factors that we have
considered.
But the simple fact is that Mr. Buchanan did win the election,
and the results of our vote tonight will demonstrate that. He did,
in fact, win the election and will remain as a Member of the
Congress.
I want to once again compliment the individuals here. Chairman
Gonzalez of the task force was eminently fair, thorough, and
complete in all his evaluations and discussions. Mr. McCarthy, in
his first time on an assignment of this sort, has carried it out
very carefully, very thoroughly and contributed a great deal to the
discussions and the decisions.
I am just very proud that the House Administration Committee
has completed this task which can be, I can assure you, a very
onerous and difficult task; but the committee has completed it very
competently, thoroughly and fairly; and the result, I believe, is
beyond question.
This will serve as a model for future situations of this sort.
Mr. GONZALEZ. Madam Speaker, I reserve the balance of my time.
Mr. McCARTHY of California. Madam Speaker, I rise today in
support of this resolution to dismiss the election contest related
to the results of the 13th Congressional District of Florida race
in 2006.
Madam Speaker, I want to congratulate the chairman of this task
force, Mr. Gonzalez. It was a three-member task force with
Congresswoman Zoe Lofgren and myself. Every bit of this contest, as
we went through studying it and spent the hours on it, was a
unanimous decision. This was a bipartisan movement, a bipartisan
investigation; and I just want to thank the chairman for his
professionalism, his respect and the ethics in which he carried
this out.
In my former life, I was actually a staff member to a former
chairman of House Administration, and I was an individual that
investigated some contestant elections. I will tell you this is
probably the most thorough investigation we have seen.
We knew after the last election that there were races in this
body that were even closer, within 100 votes; and we did not
contest those as they went. But we wanted to make sure, as
Christine Jennings moved this debate and this argument, as we were
going through, that we looked at every single one.
I want to thank the State of Florida. Before we even went to
study it, they went through analyzing all the machines. We had the
GAO look at every ability of the machines, even miscalculating the
machines as they came forward to make sure they were still correct.
The American public can be very proud to know that every vote
in the 13th District was counted. The outcome was correct, and
Congressman Vern Buchanan was elected on that day and still elected
today. I want to congratulate the work that was done by the task
force.
Madam Speaker, I yield back the balance of my time.
Mr. GONZALEZ. Madam Speaker, I just do want to have some
parting words to the members of the task force, Congresswoman Zoe
Lofgren, and, of course, my colleague from California, Congressman
McCarthy, because they really worked very hard. As indicated, all
decisions were unanimous, which made the process go smoothly.
I also want to recognize Congressman Dan Lungren from
California, who is not an official member of the task force but was
present during some of the briefings and was very instructive.
The last thought is, of course, that the task force and the
full committee simply were acknowledging the responsibility that is
laid before this body, and that is to determine the qualifications
and who actually will sit and take the oath and have the great
privilege of joining us here in what is often referred to as the
people's House.
Mr. BRADY of Pennsylvania. Madam Speaker, I rise in support of
House Resolution 989.
Madam Speaker, on February 12th the Committee on House
Administration unanimously recommended dismissal of the election
contest relating to the 13th Congressional district of Florida. The
late Chairwoman Juanita Millender-McDonald had established a task
force to investigative this contest election in which over 18,000
ballots did not show a vote cast for the U.S. Congressional race in
Sarasota County, Florida. Former judge, and our colleague,
Representative Charles Gonzalez was appointed Chair, along with
Representatives Lofgren and McCarthy as members of the task force.
After the task force established the need to investigate, every
vote to determine the scope and direction of the investigation was
unanimous.
The task force engaged the Government Accountability Office
(GAO) to explore whether the voting machines used in Sarasota
County contributed to the unusually high number of undervotes. GAO
also was instructed to assess whether additional voting machines
testing was needed. When GAO recommended further testing in October
2007, the task force directed the GAO to design and execute testing
protocols to determine the reliability of the Sarasota County
voting equipment.
Last week, the GAO presented its findings and conclusions to
the task force. They found that the Sarasota County voting machines
did not contribute to the large undervote in the Congressional race
for the 13th District of Florida. The GAO acknowledged that the
undervote could have been caused by voters who chose not vote for
that race, or by voters who did not properly cast their ballots
because of poor ballot design. In any case, the machines were not
the culprits. Since that time, some groups have attacked the GAO
study as imprecise for a host of speculative reasons. However, the
Contestant's central argument in the election contest before the
committee was that voting machine malfunction caused the abnormal
undervote, and GAO's focus of analysis was directed solely to the
voting machine malfunction issue.
Under the Federal Contested Election Act, a Contestant must
submit allegations that, if proven, would have altered the election
outcome. The task force and the Committee on House Administration
have conducted a thorough investigation and believe that the
findings of the GAO are compelling. Therefore, the Contestant's
argument that malfunctioning electronic voting machines caused the
18,000 undervote in Sarasota County was not supported. For this
reason, I urge members to support to passage of House Resolution
989 to dismiss this election contest.
Mr. GONZALEZ. Madam Speaker, I yield back the balance of my
time.
The SPEAKER pro tempore. All time for debate has expired.
Pursuant to the order of the House of today, the resolution is
considered read and the previous question is ordered.
The question is on the resolution.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 31.5 Cox v McCrery
The general election for the office of Representative to Congress
from the Fourth District of Louisiana was conducted on November 7,
2006.(27) The general election candidates were Jim McCrery
(a Republican candidate), Artis R. Cash (a Democratic candidate), Patti
Cox (a Democratic candidate), and Chester T. Kelley (a Republican
candidate). In that election, Mr. McCrery received 77,078 votes, Mr.
Cash received 22,757 votes, Mrs. Cox received 17,788 votes, and Mr.
Kelley received 16,649 votes. Based on these results, Mr. McCrery was
certified as the winner of the election on November 20, 2006.
---------------------------------------------------------------------------
27. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 110-177, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 20, 2006, Mrs. Cox (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was referred to
the Committee on House Administration for its consideration. Contestant
did not allege any fraud or mistake in the election itself, but claimed
that Mr. McCrery was not an inhabitant of the state of Louisiana (as
required by the Constitution) and was therefore not qualified to serve
as a Member of Congress from the Fourth District. On January 18, 2007,
Mr. McCrery (hereafter ``contestee'') filed an answer and a motion to
dismiss the case. Contestee's response included an affidavit from the
property owner of his Louisiana residence indicating that he had
maintained that residence during the requisite period.
In its committee report, the Committee on House Administration
stated unequivocally that ``this contest should not have been brought
before the House under the FCEA'' and that ``a challenge to the
qualifications of a Member is not treated as an election
contest.''(28) It therefore concluded that the contestant
had not made a proper claim of a right to the seat in question, and
that the contest should therefore be dismissed.
---------------------------------------------------------------------------
28. H. Rept. 110-177, 110th Cong. 1st Sess. p. 3.
---------------------------------------------------------------------------
On June 6, 2007,(29) the committee filed its privileged
report:
---------------------------------------------------------------------------
29. 153 Cong. Rec. 14661, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
REPORT ON HOUSE RESOLUTION 462, DISMISSING ELECTION CONTEST
RELATING TO OFFICE OF REPRESENTATIVE FROM FOURTH CONGRESSIONAL
DISTRICT OF LOUISIANA
Mr. BRADY of Pennsylvania, from the Committee on House
Administration, submitted a privileged report (Rept. No. 110-177)
on the resolution (H. Res. 462) dismissing the election contest
relating to the office of Representative from the Fourth
Congressional District of Louisiana, which was referred to the
House Calendar and ordered to be printed.
On June 12, 2007,(30) by unanimous consent, the House
adopted House Resolution 462 (dismissing the contest):
---------------------------------------------------------------------------
30. 153 Cong. Rec. 15453, 110th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE FOURTH CONGRESSIONAL DISTRICT OF
LOUISIANA
Mr. [Robert] BRADY of Pennsylvania. Mr. Speaker, I ask
unanimous consent for the immediate consideration of House
Resolution 462 in the House.
The Clerk read the title of the resolution.
The text of the resolution is as follows:
H. Res. 462
Resolved, That the election contest relating to the office of
Representative from the Fourth Congressional District of Louisiana is
dismissed.
The SPEAKER pro tempore.(31) Is there objection to
the request of the gentleman from Pennsylvania?
---------------------------------------------------------------------------
31. John Salazar (CO).
---------------------------------------------------------------------------
There was no objection.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 32. One Hundred Eleventh Congress, 2009-2010
Sec. 32.1 Tataii v Abercrombie
The general election for the office of Representative to Congress
from the First District of Hawaii was conducted on November 4,
2008.(1) (The general election candidates were Neil
Abercrombie (the Democratic candidate), and Steve Tataii (the
Republican candidate). In that election, Mr. Abercrombie received
154,208 votes and Mr. Tataii received 38,115 votes. Mr. Abercrombie was
certified by the Office of Elections for the State of Hawaii as the
winner on November 24, 2008, though the certification was not received
by the Clerk of the House until December 16, 2008. Mr. Abercrombie's
credentials were presented to the House of Representatives, and on
January 6, 2009, he was duly administered the oath of office without
objection or challenge.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 111-68, 111th Cong. 1st Sess.
---------------------------------------------------------------------------
On January 16, 2009, Mr. Tataii (hereafter ``contestant'') filed a
notice of contest with the Clerk of the House, which was forwarded to
the Committee on House Administration for its review. Contestant also
filed an election contest with the Supreme Court of Hawaii. Mr.
Abercrombie (hereafter ``contestee'') did not file any pleadings in
this case.
The sole basis for contestant's challenge was that contestee
refused to engage in a televised debate with the contestant. Had voters
been given the opportunity to see the candidates debate one another,
contestant argued, the result of the election would have been
different.
In its committee report, the Committee on House Administration
noted, as a threshold matter, that contestant's notice of contest
appeared to have been untimely filed. However, given that ``contestant
may have been given inaccurate advice on exhausting state remedies and
timely filing''(2) the committee chose to review the case on
its merits rather than dismiss the case solely on procedural grounds.
---------------------------------------------------------------------------
2. H. Rept. 111-68, 111th Cong. 1st Sess. p. 3.
---------------------------------------------------------------------------
With respect to contestant's claims, the committee was not
persuaded that contestant had carried his burden under the statute.
Contestant offered no direct evidence that votes would have been
changed had the public debate occurred. Contestant provided only
``unsupported speculation''(3) and nothing that would
``remove the presumption of regularity that attached to the state
certification of the election.''(4) Thus, the committee
recommended dismissal of the case.
---------------------------------------------------------------------------
3. Id. at p. 4.
4. Id.
---------------------------------------------------------------------------
On March 31, 2009,(5) the committee filed its privileged
report, and by unanimous consent, the House adopted House Resolution
303 (dismissing the contest):
---------------------------------------------------------------------------
5. 155 Cong. Rec. 9207, 111th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE FIRST CONGRESSIONAL DISTRICT OF HAWAII
Mr. BRADY of Pennsylvania, from the Committee on House
Administration, submitted a privileged report (Rept. No. 111-68) on
the resolution (H. Res. 303) dismissing the election contest
relating to the office of Representative from the First
Congressional District of Hawaii, which was referred to the House
Calendar and ordered to be printed.
Mr. [Robert] BRADY of Pennsylvania. Mr. Speaker, I call up
House Resolution 303 and ask unanimous consent for its immediate
consideration in the House.
The Clerk read the title of the resolution.
The SPEAKER pro tempore.(6) Is there objection to
the request of the gentleman from Pennsylvania?
---------------------------------------------------------------------------
6. Elijah Cummings (MD).
---------------------------------------------------------------------------
There was no objection.
The text of the resolution is as follows:
H. Res. 303
Resolved, That the election contest relating to the office of
Representative from the First Congressional District of Hawaii is
dismissed.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 33. One Hundred Twelfth Congress, 2011-2012
There were no election contests considered by the House during the
112th Congress.
Sec. 34. One Hundred Thirteenth Congress, 2013-2014
Sec. 34.1 Hayward v Cuellar
The general election for the office of Representative to Congress
from the 28th District of Texas was conducted on November 6,
2012.(1) The general election candidates were William
Hayward (the Republican candidate), and Henry Cuellar (the Democratic
candidate). In that election, Mr. Cuellar received 112,456 votes and
Mr. Hayward received 49,309 votes. The Texas Secretary of State
certified Mr. Cuellar as the winner of the election on December 6,
2012, and credentials were issued on December 7, 2012. Mr. Cuellar's
credentials were presented were presented to the House of
Representatives, and on January 3, 2013, he was duly administered the
oath of office without objection or challenge.
---------------------------------------------------------------------------
1. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 113-22, 113th Cong. 1st Sess.
---------------------------------------------------------------------------
On December 11, 2012, Mr. Hayward (hereafter ``contestant'') filed
a notice of contest with the Clerk of the House, which was referred to
the Committee on House Administration for its review. On January 15,
2013, Mr. Cuellar (hereafter ``contestee'') filed a motion to dismiss
the contest. Contestant argued that fraud and vote tampering marred the
election, and that voters who supported the contestant were intimidated
from going to the polls. Contestee's motion to dismiss argued that the
contestant did not support his claims with evidence that the result of
the election would have been changed.
In its committee report, the Committee on House Administration
first addressed the threshold question of whether contestant's notice
of contest conformed to the statutory requirements. In particular, the
committee questioned whether contestant had properly claimed a right to
contestee's seat. The notice of contest requested that a new election
be held so that the will of the voters (absent the alleged fraud and
intimidation) could be ascertained. The committee ultimately chose to
assume that contestant had proper standing to pursue the case, and
turned to the merits of contestant's argument.
With respect to contestant's allegations of voter fraud, machine
tampering, voter intimidation, vote-buying, and other irregularities,
the committee found that contestant offered only ``hearsay of unnamed
sources and his own testimony.''(2) Absent specific,
credible evidence of fraud or irregularity, the committee felt bound to
recommend granting contestee's motion to dismiss.
---------------------------------------------------------------------------
2. H. Rept. 113-22, 113th Cong. 1st Sess. p. 4.
---------------------------------------------------------------------------
On March 19, 2013,(3) the committee filed its privileged
report, and by unanimous consent, the House adopted House Resolution
127 (dismissing the contest):
---------------------------------------------------------------------------
3. 159 Cong. Rec. 3946, 113th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE TWENTY EIGHTH CONGRESSIONAL DISTRICT OF
TEXAS
Mrs. MILLER of Michigan, from the Committee on House
Administration, submitted a privileged report (Rept. No. 113-22) on
the resolution (H. Res. 127) dismissing the election contest
relating to the office of Representative from the Twenty Eighth
Congressional District of Texas, which was referred to the House
Calendar and ordered to be printed.
Mrs. [Candice] MILLER of Michigan. Mr. Speaker, I call up House
Resolution 127 and ask unanimous consent for its immediate
consideration in the House.
The Clerk read the title of the resolution.
The SPEAKER pro tempore (Mr. [Rob] Woodall [of Georgia]). Is
there objection to the request of the gentlewoman from Michigan?
There was no objection.
The text of the resolution is as follows:
H. Res. 127
Resolved, That the election contest relating to the office of
Representative from the Twenty Eighth Congressional District of Texas is
dismissed.
Mr. [Robert] BRADY of Pennsylvania. Mr. Speaker, I agree with
the majority that this election contest should be dismissed and
that it stands before us without merit. The Contestant notified the
House that he should be the winner of the election not based on the
finding of any solid evidence but based on rumors, conjecture and
hearsay.
Contestant also raises accusations of misconduct by law
enforcement and election officials without proof. The Contestant
does not support any of his arguments with specific creditable
evidence. Based on this, I am voting to grant the Contestee relief
by disposing of this contest.
My only regret is that the House was not able to dismiss this
frivolous contest earlier in the 113th Congress.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 34.2 Project Hurt v Cohen
The general election for the office of Representative to Congress
from the Ninth District of Tennessee was conducted on November 6,
2012.(4) Project Hurt (hereafter
``contestant'')(5) was not a candidate in the election, and
did not dispute the election results, in which Steve Cohen (hereafter
``contestee'') was certified as the winner. No claims of fraud or other
election irregularities were made by the contestant. Instead, in its
notice of contest (filed on March 27, 2013), contestant argued that
contestee had failed to respond to contestant's allegations of
impeachable offenses committed by the President, and that therefore
contestee was ``complicit in those massive criminal
activities.''(6) Absent such activities, contestant alleges
that it would have been able to recruit a candidate to successfully
challenge contestee in the election.
---------------------------------------------------------------------------
4. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 113-132, 113th Cong. 1st Sess.
5. Parliamentarian's Note: Project Hurt was a 501(c)(3) not-for-profit
organization.
6. H. Rept. 113-132, 113th Cong. 1st Sess. p. 2 (internal quotations
omitted).
---------------------------------------------------------------------------
In its committee report, the Committee on House Administration
noted that Project Hurt is not an individual, and therefore does not
meet the definition of a contestant under the Federal Contested
Elections Act. Even assuming that Project Hurt was qualified to file a
notice of contest, the committee further noted that it was not a
candidate in the election, and had not formally claimed a right to the
seat in question. For these reasons, the committee concluded that
``Project Hurt does not have standing to pursue a
contest.''(7) The committee report also concluded that
contestant's notice of contest was not timely filed under the statute.
---------------------------------------------------------------------------
7. Id. at p. 3. The committee reiterated that its analysis would have
been the same had the organization's founder, Dwayne Anderson,
filed the contest in his individual capacity.
---------------------------------------------------------------------------
For these various procedural defects, the committee was persuaded
that contestee's motion to dismiss should be granted. It concluded that
contestant's claims ``do not in any way speak to whether or not
[contestee] was validly elected.''(8)
---------------------------------------------------------------------------
8. Id. at p. 3.
---------------------------------------------------------------------------
On June 26, 2013,(9) the committee filed its privileged
report, and by unanimous consent, the House adopted House Resolution
277 (dismissing the contest):
---------------------------------------------------------------------------
9. 159 Cong. Rec. 10425, 113th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE NINTH CONGRESSIONAL DISTRICT OF
TENNESSEE
Mrs. MILLER of Michigan, from the Committee on House
Administration, submitted a privileged report (Rept. No. 113-132)
on the resolution (H. Res. 277) dismissing the election contest
relating to the office of Representative from the Ninth
Congressional District of Tennessee, which was referred to the
House Calendar and ordered to be printed.
Mrs. [Candice] MILLER of Michigan. Madam Speaker, I call up
House Resolution 277 and ask unanimous consent for its immediate
consideration in the House.
The Clerk read the title of the resolution.
The SPEAKER pro tempore.(10) Is there objection to
the request of the gentlewoman from Michigan?
---------------------------------------------------------------------------
10. Virginia Foxx (NC).
---------------------------------------------------------------------------
There was no objection.
The text of the resolution is as follows:
H. Res. 277
Resolved, That the election contest relating to the office of
Representative from the Ninth Congressional District of Tennessee is
dismissed.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 34.3 Project Hurt v Waters
The general election for the office of Representative to Congress
from the 43rd District of California was conducted on November 6,
2012.(11) Project Hurt (hereafter
``contestant'')(12) was not a candidate in the election, and
did not dispute the election results, in which Maxine Waters (hereafter
``contestee'') was certified as the winner. In its notice of contest
filed on March 27, 2013, contestant made similar accusations against
contestee as it made in another election contest in the 113th
Congress.(13) Specifically, contestant claimed that Ms.
Waters was complicit in ``massive criminal activities''(14)
engaged in by the President, and that such activities negatively
affected the recruitment of other candidates.
---------------------------------------------------------------------------
11. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 113-133, 113th Cong. 1st Sess.
12. Parliamentarian's Note: Project Hurt was a 501(c)(3) not-for-profit
organization.
13. See Project Hurt v Cohen, Sec. 34.2, supra.
14. H. Rept. 113-133, 113th Cong. 1st Sess. p. 2.
---------------------------------------------------------------------------
As with the earlier case,(15) the Committee on House
Administration found that Project Hurt: (1) was not a legitimate
contestant under the Federal Contested Election Act; (2) was not a
candidate in the preceding election (and thus did not have standing to
pursue an election contest under the statute); (3) had failed to claim
a right to the seat in question; and (4) had failed to file the notice
of contest before the deadline imposed by the statute. It therefore
recommended dismissal of the case.
---------------------------------------------------------------------------
15. See Project Hurt v Cohen, Sec. 34.2, supra.
---------------------------------------------------------------------------
On June 26, 2013,(16) the committee filed its privileged
report, and by unanimous consent, the House adopted House Resolution
278 (dismissing the contest):
---------------------------------------------------------------------------
16. 159 Cong. Rec. 10426, 113th Cong. 1st Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE FORTY THIRD CONGRESSIONAL DISTRICT OF
CALIFORNIA
Mrs. MILLER of Michigan, from the Committee on House
Administration, submitted a privileged report (Rept. No. 113-133)
on the resolution (H. Res. 278) dismissing the election contest
relating to the office of Representative from the Forty Third
Congressional District of California, which was referred to the
House Calendar and ordered to be printed.
Mrs. [Candice] MILLER of Michigan. Madam Speaker, I call up
House Resolution 278 and ask unanimous consent for its immediate
consideration in the House.
The Clerk read the title of the resolution.
The SPEAKER pro tempore.(17) Is there objection to
the request of the gentlewoman from Michigan?
---------------------------------------------------------------------------
17. Virginia Foxx (NC).
---------------------------------------------------------------------------
There was no objection.
The text of the resolution is as follows:
H. Res. 278
Resolved, That the election contest relating to the office of
Representative from the Forty Third Congressional District of California is
dismissed.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Sec. 35. One Hundred Fourteen Congress, 2015-2016
There were no election contests considered by the House during the
114th Congress.
Sec. 36. One Hundred Fifteenth Congress, 2017-2018
There were no election contests considered by the House during the
115th Congress.
Sec. 37. One Hundred Sixteenth Congress, 2019-2020
There were no election contests considered by the House during the
116th Congress.
Sec. 38. One Hundred Seventeenth Congress, 2021-2022
Sec. 38.1. Hart v Miller-Meeks
The election contest of Hart v. Miller-Meeks (Second District of
Iowa) was withdrawn by the contestant before the House could complete
its review of the case. The Committee on House Administration did not
issue a report, but the chair of the committee submitted a letter to
the Speaker describing the case for inclusion in the Congressional
Record. That letter of April 28, 2021,(1) is as follows:
---------------------------------------------------------------------------
1. 167 Cong. Rec. E464-E465 [Daily Ed.], 117th Cong. 1st Sess.
---------------------------------------------------------------------------
LETTER FROM CHAIRPERSON LOFGREN TO SPEAKER PELOSI ON THE
DISPOSITION OF THE ELECTION CONTEST IN IOWA'S SECOND
CONGRESSIONAL DISTRICT
HON. ZOE LOFGREN
OF CALIFORNIA
IN THE HOUSE OF REPRESENTATIVES
Wednesday, April 28, 2021
Ms. LOFGREN. Madam Speaker, I include the following letter in
the Record:
House of Representatives,
Committee on House Administration,
Washington, DC, April 28, 2021.
Hon. Nancy Pelosi,
Speaker of the House,
Washington, DC.
Dear Speaker Pelosi: I hereby report to the House the
disposition of the election contest in Iowa's Second Congressional
District. Contestant Rita Hart properly filed a notice of contest
under the Federal Contested Election Act (FCEA) on December 22,
2020. Contestee Mariannette Miller-Meeks filed motion to dismiss on
January 21, 2021. On February 19, 2021, the Committee adopted a
resolution to establish procedures in contested election cases
properly filed under the FCEA in the 117th Congress. After
reviewing additional filings from the parties, including a response
to the Contestee's motion filed by the Contestant and a reply filed
by the Contestee, the Committee on House Administration voted on
March 10, 2021, to postpone disposition of the motion to dismiss.
On March 31, 2021,Contestant Hart announced she would withdraw her
contest. A letter of withdrawal from Contestant Rita Hart, mailed
on March 31, 2021, was transmitted to the Committee on House
Administration by the Clerk of the House on April 8, 2021.
After a review of House and Committee precedent in contested
elections cases in which the contestant withdraws, I have
determined no further House or Committee action is required to
dismiss the contest. The contestant's letter of withdrawal was
entered into the record of the Committee on House Administration's
Markup on April 28, 2021, and the Committee will take no further
action on this contest.
Sincerely,
Zoe Lofgren,
Chairperson.
Sec. 38.2. Oberweis v Underwood
The general election for the office of Representative to Congress
from the 14th District of Illinois was conducted on November 3,
2020.(2) The general election candidates were Lauren
Underwood (the Democratic candidate) and James Oberweis (the Republican
candidate). In that election, Ms. Underwood received 203,209 votes and
Mr. Oberweis received 197,835 votes (a difference of 5,347 votes). On
December 4, 2020, the Illinois State Board of Elections certified the
vote totals. Ms. Underwood's credentials were presented to the House of
Representatives, she appeared on January 3, 2021, and was administered
the oath of office without objection or challenge.(3)
---------------------------------------------------------------------------
2. This summary is derived from the report filed by the Committee on
House Administration relating to this election contest. See H.
Rept. 117-28, 117th Cong. 1st Sess.
3. Parliamentarian's Note: On January 3, 2021, when the seating of
Members-elect from six different states was challenged by
another Member-elect, the House subsequently adopted a
privileged resolution to authorize the Speaker to administer
the oath of office to all Members-elect (including Ms.
Underwood). Due to social distancing protocols adopting in
light of the COVID-19 pandemic, Members-elect were administered
the oath in groups. See 167 Cong. Rec. H7-H8 [Daily Ed.], 117th
Cong. 1st Sess. (Jan. 3, 2021).
---------------------------------------------------------------------------
On January 4, 2021, Mr. Oberweis (hereafter the ``contestant'')
filed a notice of contest with the Clerk of the House, which was
referred to the committee on House Administration for its review. On
February 3, 2021, Ms. Underwood (hereafter the ``contestee'') filed a
motion to dismiss the contest.(4) Contestant argued that the
election was marred by fraud and irregularities (particularly in the
use of mail-in ballots), violations of Illinois election law, and
inconsistent administration of the election by local authorities. The
contestee maintained that contestant did not provide evidence
sufficient to change the outcome of the election, as required by the
Federal Contested Elections Act (FECA).
---------------------------------------------------------------------------
4. Pursuant to a committee resolution, both parties were permitted to
file additional briefs in support of and in opposition to the
motion to dismiss. See H. Rept. 117-28, 117th Cong. 1st Sess.,
p. 3 (fn. 6).
---------------------------------------------------------------------------
In its committee report on the case, the Committee on House
Administration concluded that contestant had ``failed to make a
credible and specific claim that he is entitled to
office.''(5) Contestant claimed that certain county clerks
had mailed vote-by-mail applications to registered voters in those
counties--something not provided to voters in other counties.
Contestant further argued that this disparate treatment violated the
14th Amendment's Equal Protection Clause, and thus all mailed in
ballots from the affected counties should be invalidated. The committee
did not consider the invalidation of votes a ``constitutionally
appropriate remedy,'' even if the factual and legal claims made by the
contestant were accepted.(6) Relying on prior election
contests, the committee noted the ``longstanding practice of counting
all ballots validly cast by eligible voters where the voters' intent is
clear.''(7) Regarding contestant's additional claims, it was
conceded by the contestant that the ``number of votes in contention . .
. are insufficient, by themselves, to change the outcome of the
election.''(8) The committee concluded its report by
recommending dismissal of the contest for failure to allege facts
sufficient to alter the outcome of the election.
---------------------------------------------------------------------------
5. H. Rept. 117-28, 117th Cong. 1st Sess., p. 4.
6. Id.
7. H. Rept. 117-28, 117th Cong. 1st Sess., p. 5.
8. Id.
---------------------------------------------------------------------------
Members of the minority party on the committee filed separate views
in this case that came to the same conclusion as the majority. However,
in the minority's view, the case should have dismissed on procedural
grounds alone. The minority concluded that the contestant ``failed to
effect proper and timely service of process''(9) as required
under the Federal Contested Elections Act (FECA). This constituted a
``fatal procedural error''(10) and thus the analysis of
contestant's substantive claims was unnecessary.
---------------------------------------------------------------------------
9. H. Rept. 117-28, 117th Cong. 1st Sess., p. 8.
10. Id.
---------------------------------------------------------------------------
On May 11, 2021,(11) the Committee on House
Administration filed its report in the House recommending dismissal of
the case:
---------------------------------------------------------------------------
11. 167 Cong. Rec. H2192 [Daily Ed.], 117th Cong. 1st Sess.
---------------------------------------------------------------------------
REPORTS OF COMMITTEES ON PUBLIC BILLS AND RESOLUTIONS
Under clause 2 of rule XIII, reports of committees were
delivered to the Clerk for printing and reference to the proper
calendar, as follows:
Ms. LOFGREN: Committee on House Administration. House Resolution 379.
Resolution dismissing the election contest relating to the office of
Representative from the Fourteenth Congressional District of Illinois
(Rept. 117-28). Referred to the House Calendar.
On May 12, 2021,(12) the House adopted a special order
of business resolution providing, inter alia, that House Resolution 379
(dismissing the contest) be adopted:
---------------------------------------------------------------------------
12. H. Res. 380, 167 Cong. Rec. H2235 [Daily Ed.], 117th Cong. 1st
Sess.
---------------------------------------------------------------------------
DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF
REPRESENTATIVE FROM THE FOURTEENTH CONGRESSIONAL DISTRICT OF
ILLINOIS
The SPEAKER pro tempore.(13) Pursuant to section 7
of House Resolution 380, House Resolution 379 is hereby adopted.
---------------------------------------------------------------------------
13. Henry Cuellar (TX).
---------------------------------------------------------------------------
The text of the resolution is as follows:
H. Res. 379
Resolved, That the election contest relating to the office of
Representative from the Fourteenth Congressional District of Illinois is
dismissed.
PRECEDENTS OF THE HOUSE
Ch. 9
INDEX TO PRECEDENTS
Ad Hoc Task Forces
see Committee Investigations
Affidavits
use of, Sec. Sec. 10, 10.2, 17.2
Amended Notice of Contest
see Notice of Contest
Anderson v Rose, Sec. 25.1
Answer
failure by contestee to file, Sec. Sec. 9, 11
response by contestant, Sec. 9
statutory requirements regarding, Sec. 9
Archer v Packard, Sec. 19.1
Ballots
absentee ballots, Sec. 20.2
instructions to election officials to safeguard, Sec. Sec. 10.5,
20.1
irregularities in offered as grounds, Sec. Sec. 16.5, 19.1, 19.2,
24.1
proportionate reduction, Sec. Sec. 12, 26.1
review of, Sec. Sec. 10, 10.4, 12, 12.1-12.3, 15.1, 15.2
voter intent, standards for evaluating, Sec. Sec. 12, 20.1
Brooks v Harman, Sec. 25.4
Burden of Proof
generally, Sec. Sec. 9, 11, 11.1, 16.2, 20.3, 26.1
standards of proof, Sec. 11
Certificates of Election
presentation to Clerk, Sec. 1
presumption of regularity attaches to, Sec. Sec. 11, 11.3, 15.1,
15.5, 16.2, 16.3, 31.1, 32.1
Clerk of the House
deposition transcription filed with, Sec. 10
notice of contest received by, Sec. 4, 13
Committee Investigations
ad hoc task forces, use of, Sec. 13
ballots, instructions to safeguard, Sec. Sec. 10.5, 20.1
ballots, review of by committee, Sec. Sec. 10, 10.4, 12, 12.3,
15.2, 20.1
committee reports, see Committee Reports
funding, Sec. 13
generally, Sec. 10
interrogatories, use of, Sec. Sec. 10, 10.1, 10.5, 26.1
observers, use of, Sec. Sec. 10, 10.3, 12, 16.5, 16.6, 16.7, 26.1
protective orders, use of, Sec. Sec. 10, 10.5, 26.1
recounts conducted by committee, Sec. Sec. 10, 12, 20.1
reports, see Committee Reports
subcommittees, use of, Sec. 13
subpoenas, use of Sec. Sec. 10, 26.1
Committee Reports
additional or supplemental views, Sec. Sec. 13, 16.2, 16.3, 16.4,
17.4, 19.2, 20.1, 25.1, 26.1, 31.1, 31.3, 38.2
generally, Sec. 13
lack of, Sec. Sec. 16.8, 25.3, 25.4, 38.1
minority or dissenting views, Sec. Sec. 13, 16.2, 16.3, 16.4, 17.4,
19.2, 20.1, 25.1, 26.1, 31.1, 31.3, 38.2
privilege, Sec. 13
Committee on Elections
see Former Committee on Elections
Committee on House Administration
ad hoc task forces, use of, Sec. 13
election contests, jurisdiction over, Sec. Sec. 4, 13
history, Sec. 4
investigations by, see Committee Investigations
jurisdiction over election contests, Sec. Sec. 4, 13
referrals to, Sec. 4
reports, see Committee Reports
subcommittees on elections, Sec. Sec. 4, 13
Congress
authority regarding election of Members, Sec. Sec. 1, 3, 4
Congressional Record
insertion regarding disposition of case, Sec. 38.1
Consideration of Resolution Resolving Contest
amendment, Sec. 13
debate, right to close, Sec. 13
debate time, Sec. 13
division of the question for voting, applicability, Sec. 13
hour rule, Sec. 13
question of consideration, Sec. 20.1
reconsideration, see Motion to Reconsider
right to close debate, Sec. 13
unanimous consent, Sec. 13
Constitution
election of Members, provisions regarding, Sec. 1
Contestant
definition, Sec. 1
floor privileges, Sec. Sec. 13, 26.1
salary payment pending resolution of case, Sec. Sec. 13, 20.1
Contested Elections
see Election Contests
Contestee
definition, Sec. 1
salary payment pending resolution of case, Sec. Sec. 13, 20.1
Cox v McCrery, Sec. 31.5
Curtis v Feeney, Sec. 31.2
Defenses
change the result, failure to state grounds sufficient to,
Sec. Sec. 6, 6.3
death of contestant, effect on contest, Sec. 6
failure to claim right to seat, Sec. Sec. 6, 6.4
lack of, Sec. Sec. 6, 6.7
motion to dismiss, relation to, Sec. 9
notice of contest, defects in, Sec. 8
notice of contest not properly served, Sec. Sec. 6, 6.2, 17.1,
17.3, 38.2
notice of contest untimely filed, Sec. Sec. 6, 6.1, 17.3, 26.1,
31.1, 31.3, 32.1, 34.2, 34.3
particularity, failure to state grounds with, Sec. Sec. 5, 5.1, 6,
6.5, 8, 15.3, 15.4, 16.1, 16.7, 19.2, 26.1
pre-election issues not timely addressed, Sec. Sec. 6, 19.2, 20.2
prima facie case, failure to make, Sec. Sec. 6, 6.6
recount as improper relief, Sec. Sec. 6, 6.4, 12, 15.1, 15.5
service of process, deficiencies in, Sec. Sec. 6, 6.2, 17.1, 17.3,
38.2
standing, lack of, Sec. 6
state remedies, failure to exhaust, Sec. Sec. 6, 32.1
statutory defenses, Sec. 6
timeliness, Sec. 6
withdrawal by contestant, effect on contest, Sec. Sec. 6, 13.1,
25.3, 25.4, 38.1
Dehr v Leggett, Sec. 16.5
Delegates and Resident Commissioners
election contests involving, Sec. Sec. 7, 20.2
Depositions
Clerk of the House, transcripts filed with, Sec. 10
cross-examination of witnesses, Sec. 10
evidence obtained by, Sec. 10
motion to suppress, Sec. Sec. 9, 10
oath requirements, Sec. 10
objections raised during, Sec. 10
signature requirement, Sec. Sec. 9, 10
statutory authority to take, Sec. 9
testimony gathered by, Sec. 10
transcripts filed with Clerk, Sec. 10
transcripts generally, Sec. 10
transcripts, right to review, Sec. 10
waiver of right to review transcript, Sec. 10
Discovery
committee-initiated motions and requests, Sec. Sec. 9, 26.1
depositions, statutory authority to take, Sec. Sec. 9, 10
enlarge time for, requests to, Sec. Sec. 9, 10, 16.2, 17.2
evidence, determinations as to relevancy, Sec. 11
evidence obtained by special committee, Sec. 11
evidence, procedures to obtain, Sec. Sec. 9, 11, 26.1
evidence regarding prior congresses, Sec. Sec. 11, 11.2, 15.3, 16.7
generally, Sec. Sec. 9, 10
interrogatories issued by committee, Sec. Sec. 9, 10, 10.1, 26.1
interrogatories issued by parties, Sec. 10
motion to dismiss, effect of, Sec. Sec. 10, 11, 26.1
motions regarding, Sec. Sec. 9, 10, 26.1
subpoenas, statutory authority to issue, Sec. Sec. 9, 10
timeliness of motions, Sec. 10
Disposition of Contests
committee report, lack of, Sec. Sec. 16.8, 25.3, 25.4, 38.1
Congressional Record insertion in lieu of committee report,
Sec. 38.1
generally, Sec. 13
resolution, contests resolved by, Sec. 13
withdrawal of notice of contest, Sec. Sec. 13.1, 15.2, 25.3, 25.4,
38.1
Division of the Question for Voting
applicability to resolution resolving election contests, Sec. 13
Dornan v Sanchez, Sec. 26.1
Election Contests
committee jurisdiction over, Sec. 4
referrals, Sec. 4
statutory provisions regarding, Sec. 2
style, Sec. 1
Election of Members
Congress, authority regarding, Sec. Sec. 1, 3, 4
constitutional provisions regarding, Sec. 1
states, authority regarding, Sec. Sec. 1, 3, 4
Election Officials
misconduct by used as grounds, Sec. Sec. 5, 5.5, 17.3, 19.1, 20.1,
20.3, 31.1, 31.2, 38.2
presumption of good faith, Sec. Sec. 11, 11.3
Electronic Voting Machines
see Voting Equipment
Evidence
see Discovery
Exclusion
election contests, relationship to, Sec. 5
Federal Contested Elections Act (FCEA)
burden of proof under, Sec. Sec. 9, 11
former Contested Elections Act, Sec. 2
generally, Sec. 2
history, Sec. 2
jurisdiction pursuant to, Sec. 13
pleadings under, Sec. 9
recounts not proper relief under, Sec. Sec. 6, 6.4, 12, 15.1, 15.5
Floor Privileges
contestant prohibited from exercising, Sec. 26.1
contestants, privileges extended to, Sec. Sec. 13, 26.1
Former Committee on Elections
history, Sec. 4
Fraud
presumptions regarding, Sec. Sec. 11, 11.2, 11.4, 16.7
Freeman v Mitchell, Sec. 17.2
Gonzalez v Diaz-Balart, Sec. 31.1
Government Accountability Office (GAO)
recounts, use of during, Sec. Sec. 10, 12, 20.1
voting equipment, analysis of by, Sec. Sec. 10, 10.4
Grounds
ballot irregularities offered as, Sec. Sec. 5, 5.3, 16.5, 19.1,
19.2
campaign law, violations offered as, Sec. Sec. 5, 5.7, 15.1, 15.2,
15.3
generally, Sec. 5
illegal voting offered as, Sec. Sec. 5, 5.4, 12, 16.2, 16.6, 16.8,
20.3, 25.1, 26.1
improper conduct by contestee offered as, Sec. Sec. 5, 5.6
intimidation of contestant offered as, Sec. Sec. 5, 5.10
misconduct by election officials offered as, Sec. Sec. 5, 5.5,
17.3, 19.1, 20.1, 20.3, 31.1, 31.2, 38.2
misuse of official position offered as, Sec. Sec. 5, 5.9, 15.3
particularity, requirement to state with, Sec. Sec. 5, 5.1, 6, 6.5,
15.3, 15.4, 16.1, 16.7, 19.2, 26.1
primary election, fraud or error in offered as, Sec. Sec. 5, 5.11,
16.5, 25.2, 29.1
qualifications, Sec. Sec. 5, 5.8, 15.4, 16.1, 16.7, 25.1, 25.2,
29.2, 30.1, 31.5
refusal to debate offered as, Sec. Sec. 5, 5.11
vote buying or bribery offered as, Sec. Sec. 17.4, 25.1
voter confusion offered as, Sec. Sec. 5, 5.3, 16.5, 19.1
voter intimidation offered as, Sec. Sec. 5, 25.1, 34.1
voting equipment malfunction offered as, Sec. Sec. 5, 5.2, 16.5,
16.6, 17.2, 19.1, 19.2, 24.1, 25.1, 31.1, 31.2, 31.3, 31.4,
34.1
Haas v Bass, Sec. 25.2
Hansen v Stallings, Sec. 20.3
Hart v Miller-Meeks, Sec. 38.1
Hayward v Cuellar, Sec. 34.1
Hendon v Clarke, Sec. 19.2
Hill and Panlasigui v Clay, Sec. 16.6
Hour Rule
resolution resolving election contest considered under, Sec. 13
House Administration
see Committee on House Administration
Interrogatories
committee-issued, Sec. Sec. 9, 10, 10.1, 10.5, 26.1
parties may issue, Sec. 10
Investigations and Inquiries
see Committee Investigations
Jennings v Buchanan, Sec. 31.4
Kyros v Emery, Sec. 15.2
Legislative Reorganization Act of 1946
election contest provisions, Sec. 4
Lowe v Fowler, Sec. 16.7
Lyons v Gordon (108th Congress), Sec. 29.2
Lyons v Gordon (109th Congress), Sec. 30.1
Mack v Stokes, Sec. 15.4
McCloskey v McIntyre, Sec. 20.1
McCuen v Dickey, Sec. 24.1
Moreau v Tonry, Sec. 16.8
Motion for a More Definite Statement
statutory requirements regarding, Sec. 9
timeliness, Sec. 9
use of, Sec. Sec. 9, 15.5, 16.1, 26.1
Motion to Dismiss
defenses raised in opposition to, Sec. 9
discovery, effect on, Sec. Sec. 10, 10.5, 11
generally, Sec. 9
memoranda or appendices to, Sec. 9
pleadings in opposition to, Sec. 9
postponement, Sec. Sec. 9, 10, 10.5, 26.1
supplemental filings, Sec. 9
timeliness, Sec. Sec. 9, 20.3
Motion to Quash Subpoenas
statutory procedures, Sec. Sec. 9, 10
use of, Sec. Sec. 10.1, 17.2, 26.1
Motion to Recommit
resolution resolving election contests, applicability to,
Sec. Sec. 13, 20.1, 26.1
Motion to Reconsider
use of, Sec. 9
Motion to Stay Proceedings
use of, Sec. Sec. 9, 9.2, 16.2, 17.2
Motion to Suppress a Deposition
statutory authority, Sec. Sec. 9, 10
Munster v Gejdenson, Sec. 25.3
Notice of Contest
addenda, Sec. Sec. 9, 9.1
amended notice of contest, Sec. Sec. 8, 9, 9.1, 15.2, 15.5, 24.1
Clerk, received by, Sec. Sec. 4, 13
deadline for filing, Sec. Sec. 8, 8.1, 17.3, 26.1, 31.1, 31.3,
32.1, 34.2, 34.3
defects in used as defense, Sec. 8
form, Sec. Sec. 8, 8.2
particularity, grounds must be stated with, Sec. Sec. 5, 5.1, 6,
6.5, 8, 15.3, 15.4, 16.1, 16.7, 19.2, 26.1
service of process requirements, Sec. Sec. 8, 8.3, 17.1, 17.3, 38.2
signature requirement, Sec. 8
timeliness, Sec. Sec. 8, 8.1, 17.3, 26.1, 31.1, 31.3, 32.1, 34.2,
34.3
withdrawal of claims contained in, Sec. Sec. 9.1, 15.2
Oaths
administration to Members-elect, Sec. 1
challenging the right to be sworn, Sec. Sec. 4, 20.1, 20.3
depositions, requirement to take, Sec. 10
Oberweis v Underwood, Sec. 38.2
Organizations
election contests initiated by, Sec. Sec. 7, 34.2, 34.3
Particularity
grounds must be stated with, Sec. Sec. 5, 5.1, 6, 6.5, 8, 15.3,
15.4, 16.1, 16.7, 19.2, 26.1
notice of contest must state grounds with, Sec. Sec. 5, 5.1, 6,
6.5, 8, 15.3, 15.4, 16.1, 16.7, 19.2, 26.1
Paul v Gammage, Sec. 16.2
Perkins v Byron, Sec. 17.1
Pierce v Pursell, Sec. 16.4
Postponement
motion to dismiss, effect of, Sec. Sec. 9, 10, 10.5, 26.1
Primary Candidates
election contests initiated by, Sec. Sec. 7, 7.2, 16.5, 25.2, 29.1
Privileged Reports
see Committee Reports
Project Hurt v Cohen, Sec. 34.2
Project Hurt v Waters, Sec. 34.3
Qualifications
grounds for initiating a contest, Sec. Sec. 5, 5.8, 15.4, 16.1,
16.7, 25.1, 25.2, 29.2, 30.1, 31.5
Question of Consideration
applicability, Sec. 20.1
Questions of Privilege
floor privileges of contestant address via, Sec. 26.1
resolution regarding election contests constitutes, Sec. Sec. 13,
20.1
Rayner v Stewart, Sec. 17.3
Reconsideration
see Motion to Reconsider
Recounts
committee-conducted, Sec. Sec. 10, 12, 20.1
Government Accountability Office (GAO), use of during,
Sec. Sec. 10, 12, 20.1
improper relief under FCEA, Sec. Sec. 6, 6.5, 12, 15.1
observers from committee sent to monitor, Sec. Sec. 10, 10.3, 12,
16.5
standard for requesting, Sec. Sec. 11, 11.4, 15.5, 16.4, 17.5,
19.2, 20.1, 20.3
state authority and procedures, Sec. Sec. 2, 12, 12.1, 12.2, 15.1,
15.2, 15.5, 16.3, 16.4, 16.5, 17.5, 20.1, 20.3
Referrals
election contests, referrals to committee, Sec. 4
Resident Commissioners
see Delegates and Resident Commissioners
Resignation
effect on case, Sec. 16.8
Russell v Brown-Waite, Sec. 31.3
Saunders v Kelly, Sec. 16.1
Service of Process
notice of contest, Sec. Sec. 8, 8.3, 17.1, 17.3, 38.2
subpoenas, Sec. 10
Specificity
see Particularity
Standing
general or special election candidates, Sec. Sec. 7, 7.1, 29.1
generally, Sec. 7
organizations, Sec. Sec. 7, 34.2, 34.3,
primary election candidates, Sec. Sec. 7, 7.2, 16.5, 25.2, 29.1
write-in candidates, Sec. Sec. 7, 7.2, 16.5, 25.2
State and Local Election Procedures
authority regarding election of Members, Sec. Sec. 1, 3, 4
deference accorded, Sec. Sec. 12, 12.1, 15.2, 20.1, 20.3
directory laws distinguished from mandatory laws, Sec. Sec. 12,
15.2
generally, Sec. Sec. 12, 12.1, 12.2
mandatory laws distinguished from directory laws, Sec. Sec. 12,
15.2
recounts under, Sec. Sec. 12, 12.1, 12.2, 15.1, 15.2, 15.5, 16.3,
16.4, 16.5, 17.5, 20.1, 20.3
straight-ticket voting, Sec. Sec. 12, 19.2
Subcommittee on Elections
see Committee on House Administration
Subpoenas
committee, issued by, Sec. Sec. 10, 26.1
evidence obtained by, Sec. Sec. 10, 26.1
held in abeyance, Sec. Sec. 10, 10.1, 26.1
modification of, Sec. Sec. 9, 10, 10.1, 26.1
parties, issued by, Sec. Sec. 10, 10.1, 17.2, 26.1
penalties for failure to respond, Sec. Sec. 10, 26.1
quash, motions to, Sec. Sec. 9, 10, 10.1, 17.2, 26.1
service of process, Sec. 10
statutory authority to issue, Sec. 9
Tataii v Abercrombie, Sec. 32.1
Tataii v Case, Sec. 29.1
Testimony
affidavits, Sec. Sec. 10, 10.2, 17.2
depositions to obtain, Sec. 10
stipulations, Sec. 10
witnesses, Sec. Sec. 10, 13
Thorsness v Daschle, Sec. 17.5
Timeliness
discovery motions, statutory deadlines regarding, Sec. 10
motion for a more definite statement, statutory deadlines
regarding, Sec. 9
motion to dismiss, statutory deadlines regarding, Sec. Sec. 9, 20.3
notice of contest, statutory deadlines regarding, Sec. Sec. 8, 8.1,
31.1, 31.3, 32.1, 34.2, 34.3
Unanimous Consent
resolution resolving election contest considered by, Sec. 13
Voting Equipment
Government Accountability Office (GAO), analysis by, Sec. Sec. 10,
10.4
malfunction of offered as grounds, Sec. Sec. 16.5, 16.6, 17.2,
19.1, 19.2, 24.1, 25.1, 31.1, 31.2, 31.3, 31.4, 34.1
Waiver
deposition transcript, waiver of right to review, Sec. 10
Wilson v Hinshaw, Sec. 15.3
Wilson v Leach, Sec. 17.4
Withdrawal
claims in a notice of contest, Sec. Sec. 9, 15.2
evidence, Sec. 10
notice of contest, Sec. Sec. 13.1, 15.2, 25.3, 25.4, 38.1
Witnesses
cross-examination, Sec. 10
depositions issued to, Sec. 10
fees and travel expenses of, Sec. 13
testimony gathered from, Sec. 10
Won Pat v Blaz, Sec. 20.2
Write-in Candidates
standing to initiate election contest, Sec. Sec. 7, 7.2, 25.2
voter intent regarding, Sec. Sec. 12, 16.5, 19.1
Young v Mikva (94th Congress), Sec. 15.1
Young v Mikva (95th Congress), Sec. 16.3
Ziebarth v Smith, Sec. 15.5