Powers and Duties of the Houses

SECTION 5. Clause 1. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Clause 2. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Clause 3. Each House shall keep a Journal of its Proceedings and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Clause 4. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.


Power To Judge Elections

Each House, in judging of elections under this clause, acts as a judicial tribunal, with like power to compel attendance of witnesses. In the exercise of its discretion, it may issue a warrant for the arrest of a witness to procure his testimony, without previous subpoena, if there is good reason to believe that otherwise such witness would not be forthcoming.400 It may punish perjury committed in testifying before a notary public upon a contested election.401 The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.402 Refusal to permit a person presenting credentials in due form to take the oath of office does not oust the jurisdiction of the Senate to inquire into the legality of the election.403 Nor does such refusal unlawfully deprive the state that elected such person of its equal suffrage in the Senate.404

“A Quorum To Do Business”

For many years the view prevailed in the House of Representatives that it was necessary for a majority of the members to vote on any proposition submitted to the House in order to satisfy the constitutional requirement for a quorum. It was a common practice for the opposition to break a quorum by refusing to vote. This was changed in 1890, by a ruling made by Speaker Reed and later ember but not voting would be counted in determining the presence of a quorum.405 The Supreme Court upheld this rule in United States v. Ballin,406 saying that the capacity of the House to transact business is “created by the mere presence of a majority,” and that since the Constitution does not prescribe any method for determining the presence of such majority “it is therefore within the competency of the House to prescribe any method which shall be reasonably certain to ascertain the fact.”407 The rules of the Senate provide for the ascertainment of a quorum only by a roll call,408 but in a few cases it has held that if a quorum is present, a proposition can be determined by the vote of a lesser number of members.409

Rules of Proceedings

In the exercise of their constitutional power to determine their rules of proceedings, the Houses of Congress may not “ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house. . . . The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.”410 If a rule affects private rights, its construction becomes a judicial question. In United States v. Smith,411 the Court held that the Senate’s reconsideration of a presidential nominee for chairman of the Federal Power Commission, after it had confirmed him and he had taken the oath of office, was not warranted by its rules and did not deprive the appointee of his title to the office. In Christoffel v. United States,412 a sharply divided Court upset a conviction for perjury in a federal district court of a witness who had denied under oath before a House committee any affiliation with Communist programs. The reversal was on the ground that, because a quorum of the committee, although present at the outset, was not present at the time of the alleged perjury, testimony before it was not before a “competent tribunal” within the sense of the District of Columbia Code.413 Four Justices, in an opinion by Justice Jackson, dissented, arguing that, under the rules and practices of the House, “a quorum once established is presumed to continue unless and until a point of no quorum is raised” and that the Court was, in effect, invalidating this rule, thereby invalidating at the same time the rule of self-limitation observed by courts “where such an issue is tendered.”414

The Appointments Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . . .”415 The Constitution provides that “Each House may determine the Rules of its Proceedings,”416 and the Senate has enacted a cloture rule417 requiring a supermajority vote (60 votes) to close debate on any matter pending before the Senate. Absent the invocation of cloture or some other means of ending debate, matters can remain before the Senate indefinitely. The practice of preventing closure is known as a filibuster. Although no provision of the Constitution expressly requires that the Senate or House act by majority vote in enacting legislation or in exercising their other constitutional powers, the framers of the Constitution were committed to a majority rule as a general principle.418 These facts have given rise to disagreement as to the constitutionality of the filibuster as applied to judicial nominees— disagreement over whether the “Advice and Consent” of the Senate means the majority of the Senate and not a super-majority. The constitutionality of the filibuster has been challenged in court several times, but those cases have never reached the merits of the issue.419 More recently, the Senate interpreted its rules to require only a simple majority to invoke cloture on most nominations.420

Powers of the Houses Over Members

Congress has authority to make it an offense against the United States for a Member, during his continuance in office, to receive compensation for services before a government department in relation to proceedings in which the United States is interested. Such a statute does not interfere with the legitimate authority of the Senate or House over its own Members.421 In upholding the power of the Senate to investigate charges that some Senators had been speculating in sugar stocks during the consideration of a tariff bill, the Supreme Court asserted that “the right to expel extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a Member.”422 It cited with apparent approval the action of the Senate in expelling William Blount in 1797 for attempting to seduce from his duty an American agent among the Indians and for negotiating for services in behalf of the British Government among the Indians—conduct which was not a “statutable offense” and which was not committed in his official character, nor during the session of Congress nor at the seat of government.423

In Powell v. McCormack,424 a suit challenging the exclusion of a Member-elect from the House of Representatives, it was argued that, because the vote to exclude was actually in excess of two-thirds of the Members, it should be treated simply as an expulsion. The Court rejected the argument, noting that House precedents were to the effect that the House had no power to expel for misconduct occurring prior to the Congress in which the expulsion is proposed, as was the case of Mr. Powell’s alleged misconduct. The Court based its rejection on its inability to conclude that, if the Members of the House had been voting to expel, they would still have cast an affirmative vote in excess of two-thirds.425

Duty To Keep a Journal

The object of the clause requiring the keeping of a Journal is “to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents.”426 When the Journal of either House is put in evidence for the purpose of determining whether the yeas and nays were ordered, and what the vote was on any particular question, the Journal must be presumed to show the truth, and a statement therein that a quorum was present, though not disclosed by the yeas and nays, is final.427 But when an enrolled bill, which has been signed by the Speaker of the House and by the President of the Senate, in open session receives the approval of the President and is deposited in the Department of State, its authentication as a bill that has passed Congress is complete and unimpeachable, and it is not competent to show from the Journals of either House that an act so authenticated, approved, and deposited, in fact omitted one section actually passed by both Houses of Congress.428

400 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616 (1929).

401 In re Loney, 134 U.S. 372 (1890).

402 6 Cannon’sprecedents Of The House Of Representatives §§ 72–74, 180 (1936). Cf. Newberry v. United States, 256 U.S. 232, 258 (1921).

403 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614 (1929).

404 279 U.S. at 615. The existence of this power in both houses of Congress does not prevent a state from conducting a recount of ballots cast in such an election any more than it prevents the initial counting by a state. Roudebush v. Hartke, 405 U.S. 15 (1972).

405 Hinds’ Precedents Of The House Of Representatives §§ 2895–2905 (1907).

406 144 U.S. 1 (1892).

407 144 U.S. at 5–6.

408 Rule V.

409 4 Hinds’ Precedents Of The House Of Representatives §§ 2910–2915 (1907); 6 Cannon’sprecedents Of The House Of Representatives §§ 645, 646 (1936).

410 United States v. Ballin, 144 U.S. 1, 5 (1892). The Senate is “a continuing body.” McGrain v. Daugherty, 273 U.S. 135, 181–82 (1927). Hence its rules remain in force from Congress to Congress except as they are changed from time to time, whereas those of the House are readopted at the outset of each new Congress.

411 286 U.S. 6 (1932).

412 338 U.S. 84 (1949).

413 338 U.S. at 87–90.

414 338 U.S. at 92–95.

415 Art. II, § 2, cl. 2.

416 Art. I, § 5, cl. 2.

417 Rule XXII, par. 2.

418 See, e.g., Federalist No. 58, p. 397 (Cooke ed.; Wesleyan Univ. Press: 1961) (Madison, responding to objections that the Constitution should have required “more than a majority . . . for a quorum, and in particular cases, if not in all, more than a majority of a quorum for a decision,” asserted that such requirements would be inconsistent with majority rule, which is “the fundamental principle of free government”); id., No. 22, p. 138–39 (Hamilton observed that “equal suffrage among the States under the Articles of Confederation contradicts that fundamental maxim of republican government which requires that the sense of the majority should prevail”).

419 See, e.g., Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014); Judicial Watch, Inc. v. United States Senate, 432 F.3d 359 (D.C. Cir. 2005); Page v. Shelby, 995 F. Supp. 23 (D.D.C. 1998). The constitutionality of the filibuster has been a subject of debate for legal scholars. See, e.g., Josh Chafetz & Michael J. Gerhardt, Debate, Is the Filibuster Constitutional?, 158 U. Pal. Rev. Pennumbra 245 (2010).

420 159 Cong. Rec. S8416–S8418 (daily ed. Nov. 21, 2013).

421 Burton v. United States, 202 U.S. 344 (1906).

422 In re Chapman, 166 U.S. 661 (1897).

423 166 U.S. at 669–70. See 2 J. Story, Commentaries On The Constitution Of The United States § 836 (1833).

424 395 U.S. 486 (1969).

425 395 U.S. at 506–12.

426 2 J. Story, Commentaries On The Constitution Of The United States § 840 (1833), quoted with approval in Field v. Clark, 143 U.S. 649, 670 (1892).

427 United States v. Ballin, 144 U.S. 1, 4 (1892).

428 Field v. Clark, 143 U.S. 649 (1892); Flint v. Stone Tracy Co., 220 U.S. 107, 143 (1911). See the dispute in the Court with regard to the application of Field in an origination clause dispute. United States v. Munoz-Flores, 495 U.S. 385, 391 n.4 (1990), and id. at 408 (Justice Scalia concurring in the judgment). A parallel rule holds in the case of a duly authenticated official notice to the Secretary of State that a state legislature has ratified a proposed amendment to the Constitution. Leser v. Garnett, 258 U.S. 130, 137 (1922); see also Coleman v. Miller, 307 U.S. 433 (1939).

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