Presidential Elections; Electoral College · Ch. 10 §1 DESCHLER’S PRECEDENTS has differed from the result of the popular vote. For example, in the Hayes-Tilden election of 1876,

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Commentary and editing by John R. Graham, Jr., J.D. and Roy Miller,LL.B.

CHAPTER 10

Presidential Elections; ElectoralCollege

§ 1. In General; Electoral Certificates§ 2. Joint Sessions to Count Electoral Votes§ 3. Counting Votes; Objections to Count§ 4. Presidential Nominations for Vice President

INDEX TO PRECEDENTS

Certificates ascertaining electorsgenerally, see § 3.5transmittal of, to the House, § 1.l

Certificates of electoral Votesconflicts relative to, § 3.5objections to vote count, § 3.6transmittal of, to the House, §§ 1.1 et

seq.Joint session to count electoral votes

concurrent resolution providing for,§ 2.1

convening of, § 2.4division of, to consider objections, § 3.6presiding officer for, § 2.5

Joint session to count electoral votes—Cont.

recesses in connection with, § § 2.2, 2.3statutory procedures relative to, § 2.6

Presidential nominations for VicePresident

confirmation of, § 4.3referral of, to committee, § 4.2transmission of, by message, § 4.1

Tellers to count electoral votesappointment of, in the House, § § 3.1,

3.2appointment of, in the Senate, § 3.4substitution for, in the House, § 3.3

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1. In the Presidential election of 1800,the electors produced a tie vote bycasting an equal number of votes forThomas Jefferson and Aaron Burr.Thus the election had to be deter-mined by the House of Representa-tives, which ultimately voted for Jef-ferson. See 3 Hinds’ Precedents§ 1931. For a general discussion ofearly electoral-count procedures, see3 Hinds’ Precedents §§ 1911–1980and 6 Cannon’s Precedents §§ 438–446.

2. There have been rare instances inwhich the result of the electoral vote

Presidential Elections; Electoral College§ 1. In General; Electoral

Certificates

Under the U.S. Constitution,both the House and Senate for-mally participate in the process bywhich the President and VicePresident are elected. Congress isdirected by the 12th amendmentto receive and, in joint session,count the electoral votes certifiedby the states. And if no candidatereceives a majority of the electoralvote, the House of Representativesis directed to elect the President,while the Senate is directed toelect the Vice President.(1)

This method of selecting aPresident, later to become knownas the ‘‘electoral college,’’ cameabout as the result of a com-promise after lengthy debate atthe Constitutional Convention of1787. The debate centered on

whether the President should bechosen by popular vote, by theCongress, or by some other meth-od. Election by direct popular votewas rejected because it was be-lieved that the people would haveinsufficient knowledge of the var-ious candidates, and because itwas assumed that the peoplewould be unable to agree on a sin-gle candidate. A plan that wouldgive Congress the power to selectthe President was also rejected,because of its potential threat toexecutive independence. Findingitself in disagreement on bothplans, the convention adopted acompromise under which eachstate was given the power to ap-point electors to be chosen in amanner specified by each statelegislature. The electors in eachstate, who were to be equal to thetotal number of that state’s Rep-resentatives and Senators, wouldthen meet and cast votes forPresident and Vice President.

Historically, the counting ofelectoral votes has been for themost part a mere formality, be-cause the result of the electoralvote has almost invariably beenthe same as the result of the pop-ular vote.(2)


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DESCHLER’S PRECEDENTSCh. 10 § 1

has differed from the result of thepopular vote. For example, in theHayes-Tilden election of 1876, deter-minations by the House and Senatewith respect to certain disputed elec-toral votes resulted in the election ofHayes, although Tilden had receiveda majority of the popular vote. See 3Hinds’ Precedents §§ 1953–1956.

3. 3 USC § 15.4. See § 2.4, infra.5. See § 2.5, infra.6. 3 USC 15.7. See § § 3.1–3.4, infra, for appoint-

ment of tellers.8. See § 2.1, infra.9. See § 2.1, infra.

The electoral vote has generallyfollowed the popular vote becauseelectors came to be chosen merelyas representatives of the politicalparties and because the state leg-islatures adopted a unit-rule sys-tem under which all of a state’selectoral votes are to be cast forthe party which wins a pluralityof popular votes statewide.

The 12th amendment states inpart:

The Electors shall meet in their re-spective states, and vote by ballot forPresident and Vice-President . . . theyshall name in their ballots the personvoted for as President, and in distinctballots the person voted for as VicePresident, and they shall make distinctlists of all persons voted for as Presi-dent, and of all persons voted for asVice-President, and the number ofvotes for each, which lists they shallsign and certify, and transmit sealed tothe seat of the government of theUnited States, directed to the Presi-dent of the Senate; [t]he President ofthe Senate shall, in presence of theSenate and House of Representatives,open all the certificates and the votesshall then be counted.

On the sixth day of Januaryafter the electors of the several

states have met to cast votes forPresident and Vice President, theCongress, in accordance with theprovisions of law,(3) convenes injoint session,(4) the Senate andHouse of Representatives meetingin the Hall of the House, to exer-cise its constitutional responsi-bility for counting the electoralvote.

At one o’clock in the afternoonon that day, the joint session ofthe two Houses is called to orderby the President of the Senate,(5)the individual designated by stat-ute (6) to serve as the joint ses-sion’s presiding officer. There-upon, the tellers,(7) who have pre-viously been appointed on thepart of each House,(8) take theirrespective places at the Clerk’sdesk. According to the alphabet-ical order of the states, all thepreviously transmitted certificatesand papers purporting to be cer-tificates of votes given by the elec-tors are then opened by the Presi-dent of the Senate and handed tothe tellers.(9) Each certificate soreceived is read by the tellers in


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PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 1

10. See § 3.6, infra.11. 3 USC § § 15, 17.

12. See 3 USC § 15.13. 3 USC § 15.14. See §§ 4.1–4.3, infra.

the presence and hearing of thetwo Houses. After the reading ofeach certificate, the President ofthe Senate calls for objections, ifany.

In the event that a written ob-jection should be raised, properlysigned by at least one Senator andone Member of the House of Rep-resentatives, and when all objec-tions so made to any vote or paperfrom a state have been receivedand read, the joint session divides,the Senate repairing to the SenateChamber, and all such objectionsare submitted to and consideredby each House meeting in sepa-rate session.(10)

Pursuant to the provisions ofthe U.S. Code, which govern theprocedures in both Houses in theevent they divide to consider anobjection, each Senator and Rep-resentative may speak to such ob-jection for five minutes, and notmore than once; and after suchdebate has lasted two hours, thepresiding officer of each House isrequired to put the main questionwithout further debate.(11) Whenthe two Houses have voted, theyimmediately again meet in jointsession, and the presiding officerthen announces the decision onthe objections submitted.

Once all objections to any cer-tificate or paper from a state have

been so decided, or immediatelyfollowing the reading of such cer-tificate or paper when no objec-tions thereto are raised, the tell-ers make a list of the votes asthey appear from the certifi-cates.(12) The result of the count isthen delivered to the President ofthe Senate who thereupon an-nounces the state of the vote. Thisannouncement is deemed by law asufficient declaration of the per-sons, if any, elected President andVice President of the UnitedStates. The announcement, to-gether with a list of the votes, isthen entered in the Journals ofthe two Houses.(13)

In addition to its responsibil-ities in ascertaining and countingthe electoral votes cast for Presi-dent and Vice President, the Con-gress has been delegated a furtherconstitutional duty relative to theselection of the Vice President.Pursuant to section 2 of the 25thamendment to the U.S. Constitu-tion, whenever there is a vacancyin the Office of Vice President thePresident nominates a Vice Presi-dent to take office upon confirma-tion by a majority vote of bothHouses.(14)

The House and Senate alsohave important responsibilities


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15. 107 CONG. REC. 288, 87th Cong. 1stSess.

16. Sam Rayburn (Tex.).

under the 20th and 25th amend-ments of the U.S. Constitutionwith respect to Presidential suc-cession and disability. The 20thamendment sets forth the proce-dure to be followed when thePresident-elect and Vice Presi-dent-elect fail to qualify at thecommencement of their terms.Congress also has the duty, underthe 25th amendment, of deter-mining disputes as to Presidentialdisability.f

Transmittal and Presentationof Certificates

§ 1.1 Copies of the certificatesidentifying the electors ap-pointed in a state forwardedby the Governor of eachstate to the Administrator ofGeneral Services are, pursu-ant to 3 USC § 6, transmittedin turn to the House; on oneoccasion, where a certificatewas received on the day re-served for the counting ofthe electoral votes, theSpeaker, in order that the re-ceipt of the certificate wouldappear in the Record beforethe proceedings of the jointsession to count the electoralvotes, laid the communica-tion before the House at thebeginning of the session.

On Jan. 6, 1961,(15) the Speak-er (16) laid before the House thefollowing communication whichwas read and, with accompanyingpapers, referred to the Committeeon House Administration:

GENERAL SERVICESADMINISTRATION,

Washington, D.C., January 6, 1961.Hon. SAM RAYBURN,Speaker of the House of Representa-

tives, Washington, D.C.

DEAR MR. SPEAKER: Transmittedherewith is a copy of the certificateof ascertainment received today fromthe State of Hawaii, in conformitywith the final clause of section 6,title 3, United States Code.

Sincerely yours,FRANKLIN FLOETE,

Administrator.STATE OF HAWAII.

TO THE ADMINISTRATOR OF GENERALSERVICES, PURSUANT TO THELAWS OF THE UNITED STATES.

I, William F. Quinn, Governor ofthe State of Hawaii, do hereby cer-tify that the returns of votes cast forelectors of President and Vice Presi-dent of the United States of America,for the State of Hawaii, at an elec-tion held therein for that purpose, onthe Tuesday after the first Mondayin November, in the year of our Lord1960, agreeably to the provisions ofthe laws of the said State, and inconformity with the Constitution andlaws of the United States, for thepurpose of giving in their votes forPresident and Vice President of theUnited States, for the respectiveterms prescribed by the Constitutionof the United States, to begin on the20th day of January in the year of


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17. 107 CONG. REC. 288–91, 87th Cong.1st Sess.

18. Richard M. Nixon (Calif.).19. 119 CONG. REC. 30, 93d Cong. 1st

Sess. For additional recent examplessee 115 CONG. REC. 36, 91st Cong.1st Sess., Jan. 3, 1969; 111 CONG.

our Lord 1961, were, ascertained byjudgment of the circuit court of thefirst judicial circuit, State of Hawaii,in proceedings entitled Herman T. F.Lum et al., v. Gavien A. Bush et al.(Civil No. 7029), entered on the 30thday of December A.D. 1960, and thatthe list of persons voted for and thenumber of votes cast for each, pursu-ant to said judgment, respectively, isas follows:

Republican Party: Gavien A. Bush,92,295; J. Howard Worrall, 92,295;O. P. Soares, 92,295.

Democratic Party: William H.Heen, 92,410; Delbert E. Metzger,92,410; Jennie Wilson, 92,410.

And I further certify that: WilliamH. Heen, Delbert E. Metzger, andJennie Wilson were appointed elec-tors of President and Vice Presidentof the United States of America, forthe State of Hawaii, at said election.

Given under my hand and the sealof the State, this 4th day of January,in the year of our Lord 1961.

WILLIAM F. QUINN,Governor of Hawaii.

§ 1.2 Where certificates of elec-toral votes had been receivedfrom different slates of elec-tors from a state, and eachslate purported to be theduly appointed electors fromthat state, the Vice Presidentpresented the certificates,with all attached papers, inthe order in which they hadbeen received.On Jan. 6, 1961,(17) during pro-

ceedings in the joint session of thetwo Houses incident to the open-

ing of the certificates andascertaining and counting of thevotes of the electors of the severalstates for President and VicePresident, the presiding officer (18)handed to the tellers, in the orderin which they had been received,certificates of electoral votes, withall attached papers thereto, fromdifferent slates of electors fromthe State of Hawaii. Without ob-jection, the Chair instructed thetellers to count the votes of thoseelectors named in the certificate ofthe Governor of Hawaii dated Jan.4, 1961 (discussed more fully in§ 3.5, infra).

§ 2. Joint Sessions toCount Electoral Votes

Concurrent Resolution Pro-viding for Joint Session

§ 2.1 A concurrent resolutionproviding for a joint sessionto count the electoral votesfor President and Vice Presi-dent may be originated bythe Senate.On Jan. 3, 1973,(19) Mr. Thomas

P. O’Neill, Jr., of Massachusetts,


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REC. 26, 89th Cong. 1st Sess., Jan. 4,1965; and 107 CONG. REC. 26, 87thCong. 1st Sess., Jan. 3, 1961.

20. 119 CONG. REC. 30, 93d Cong. 1stSess. For further illustrations see115 CONG. REC. 36, 91st Cong. 1stSess., Jan. 3, 1969; 111 CONG. REC.26, 89th Cong. 1st Sess., Jan. 4,1965; and 107 CONG. REC. 26, 87thCong. 1st Sess., Jan. 3, 1961.

1. S. Con. Res. 1.

called up and asked for the imme-diate consideration of a Senateconcurrent resolution:

S. CON. RES. 1

Resolved by the Senate (the House ofRepresentatives concurring), That thetwo Houses of Congress shall meet inthe Hall of the House of Representa-tives on Saturday, the 6th day of Janu-ary 1973, at 1 o’clock postmeridian,pursuant to the requirements of theConstitution and laws relating to theelection of President and Vice Presi-dent of the United States, and thePresident of the Senate shall be theirPresiding Officer; that two tellers shallbe previously appointed by the Presi-dent of the Senate on the part of theSenate and two by the Speaker on thepart of the House of Representatives,to whom shall be handed, as they areopened by the President of the Senate,all the certificates and papers pur-porting to be certificates of the elec-toral votes, which certificates and pa-pers shall be opened, presented, andacted upon in the alphabetical order ofthe States, beginning with the letter‘‘A’’; and said tellers, having then readthe same in the presence and hearingof the two Houses, shall make a list ofthe votes as they shall appear from thesaid certificates; and the votes havingbeen ascertained and counted in themanner and according to the rules bylaw provided, the result of the sameshall be delivered to the President ofthe Senate, who shall thereupon an-nounce the state of the vote, which an-

nouncement shall be deemed a suffi-cient declaration of the persons, if any,elected President and Vice President ofthe United States, and, together with alist of the votes, be entered on theJournals of the two Houses.

The Senate concurrent resolu-tion was agreed to.

Recesses

§ 2.2 The Speaker may be au-thorized to declare a recessin connection with the con-vening of the two Houses injoint session to count theelectoral vote for Presidentand Vice President.On Jan. 3, 1973,(20) the House

considered and agreed to a Senateconcurrent resolution (1) providingfor the convening on Jan. 6, 1973,of a joint session of the twoHouses to count the electoral vote.Mr. Thomas P. O’Neill, Jr., ofMassachusetts, then made aunanimous-consent request, as fol-lows:

MR. O’NEILL: Mr. Speaker, I askunanimous consent that on Saturday,January 6, 1973, it may be in order forthe Speaker to declare a recess at anytime subject to the call of the Chair.


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2. Carl Albert (Okla.).3. 119 CONG. REC. 378, 93d Cong. 1st

Sess. For an additional example see115 CONG. REC. 145, 91st Cong. 1stSess., Jan. 6, 1969.

4. Carl Albert (Okla.).

5. 119 CONG. REC. 30, 93d Cong. 1stSess.

6. 119 CONG. REC. 378, 93d Cong. 1stSess. For other examples of joint ses-sions convened to count the electoralvote cast in recent elections see 115CONG. REC. 145, 91st Cong. 1stSess., Jan. 6, 1969; 111 CONG. REC.136, 89th Cong. 1st Sess., Jan. 6,1965; and 107 CONG. REC. 288, 87thCong. 1st Sess., Jan. 6, 1961.

7. Spiro T. Agnew (Md.).8. S. Con. Res. 1, agreed to by the

House at 119 CONG. REC. 30, 93dCong. 1st Sess., Jan. 3, 1973. For ad-ditional examples of House agree-ment to concurrent resolutions pro-viding for joint sessions to count

THE SPEAKER: (2) Is there objection tothe request of the gentleman fromMassachusetts?

There was no objection.

Parliamentarian’s Note: TheSpeaker declares a recess of theHouse to enable the Members toreconvene in joint session with theSenate in the House Chamber.

§ 2.3 On the day fixed by lawand concurrent resolutionfor the convening of the jointsession to count the electoralvotes for President and VicePresident, the Speaker de-clined to recognize for one-minute speeches or exten-sions of remarks beforerecessing the House subjectto the call of the Chair.On Jan. 6, 1973,(3) the Speak-

er (4) made an announcement tothe House:

THE SPEAKER: The Chair desires tomake a statement.

The Chair desires deferment ofunanimous-consent requests and also1-minute speeches until after the for-mal ceremony of the day, which is thecounting of the electoral votes forPresident and Vice President. There-fore, pursuant to the order adopted on

Wednesday, January 3, 1973,(5) theChair declares the House in recessuntil approximately 12:45 o’clock p.m.

Accordingly (at 12 o’clock and 3 min-utes p.m.), the House stood in recesssubject to the call of the Chair.

Convening of the Joint Session

§ 2.4 The two Houses convenein joint session to open thecertificates and ascertainand count the votes cast bythe electors of the severalstates for President and VicePresident.On Jan. 6, 1973,(6) the Presi-

dent of the Senate (7) called toorder a joint session of the Senateand the House of Representatives,convened pursuant to the provi-sions of a Senate concurrent reso-lution (8) to carry out Congress’


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electoral votes, see 115 CONG. REC.36, 91st Cong. 1st Sess., Jan. 3,1969; 111 CONG. REC. 26, 89th Cong.1st Sess., Jan. 4, 1965; and 107CONG. REC. 26, 87th Cong. 1st Sess.,Jan. 3, 1961.

9. 115 CONG. REC. 145, 91st Cong. 1stSess. See also 111 CONG. REC. 136,89th Cong. 1st Sess., Jan. 6, 1965.

10. On Jan. 6, 1969, the President of theSenate, Hubert H. Humphrey,(Minn.), who was the incumbent VicePresident and the losing candidatefor President in the 1968 election,declined to preside over the joint ses-sion to count the electoral votes. OnJan. 6, 1965, the office of the Presi-dent of the Senate was vacant, theformer Vice President, Lyndon B.Johnson (Tex.), having ascended tothe Presidency upon the death of hispredecessor, Nov. 22, 1963.

11. Richard B. Russell (Ga.).12. 115 CONG. REC. 145–47, 169–72,

91st Cong. 1st Sess.13. 13. S. Con. Res. 1.

constitutional and statutory re-sponsibilities relative to openingthe certificates and ascertainingand counting the votes of the elec-tors of the several states for Presi-dent and Vice President.

Presiding Officer

§ 2.5 In the absence of thePresident of the Senate, thePresident pro tempore of theSenate presides over thejoint session to count theelectoral votes for Presidentand Vice President.On Jan. 6, 1969,(9) in the ab-

sence of the President of the Sen-ate, (10) the President pro tempore

of the Senate (11) presided over thejoint session to count the electoralvotes for President and Vice Presi-dent of the United States.

Procedure

§ 2.6 Where the two Housesmeet to count the electoralvote, a joint session is con-vened pursuant to a concur-rent resolution of the twoHouses which incorporatesby reference the applicableprovisions of the UnitedStates Code; and the proce-dures set forth in those pro-visions are in effect con-stituted as a joint rule of thetwo Houses for the occasionand govern the proceduresin the joint session and inboth Houses in the eventthey divide to consider anobjection.On Jan. 6, 1969,(12) the two

Houses convened in joint sessionto count the electoral vote. Thejoint session was convened pursu-ant to a Senate concurrent resolu-tion (13) which incorporated thevotecounting procedures set forthin 3 USC §§ 15–18. A written ob-jection was made to the count of


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14. 119 CONG. REC. 30, 93d Cong. 1stSess. For further illustrations see115 CONG. REC. 36, 91st Cong. 1stSess., Jan. 3, 1969; 111 CONG. REC.26, 89th Cong. 1st Sess., Jan. 4,1965; and 107 CONG. REC. 27, 87thCong. 1st Sess., Jan. 3, 1961.

15. S. Con. Res. 1.16. Carl Albert (Okla.).

17. 115 CONG. REC. 36, 91st Cong. 1stSess.

18. John W. McCormack (Mass.).19. 95 CONG. REC. 89, 81st Cong. 1st

Sess.20. Sam Rayburn (Tex.).

North Carolina’s electoral vote.Thereupon, pursuant to the provi-sions of 3 USC §§ 15–18, the jointsession divided, the Senate repair-ing to the Senate Chamber, andthe objection was submitted toand considered in each House con-vened in separate sessions.

§ 3. Counting Votes; Objec-tions to Count

House Tellers

§ 3.1 Tellers on the part of theHouse to count the electoralvote are appointed by theSpeaker.On Jan. 3, 1973,(14) the House

had considered and agreed to aSenate concurrent resolution (15)providing for the convening of ajoint session of the two Houses tocount the electoral votes. TheSpeaker,(16) pursuant to the provi-sions of the concurrent resolution,appointed Mr. Wayne L. Hays, ofOhio, and Mr. Samuel L. Devine,of Ohio, as tellers on the part of

the House to count the electoralvotes.

§ 3.2 The Speaker has ap-pointed the Chairman andranking minority member ofthe Committee on House Ad-ministration as tellers on thepart of the House to countthe electoral votes.On Jan. 3, 1969,(17) the Speak-

er (18) appointed as tellers on thepart of the House to count theelectoral votes Mr. Samuel N.Friedel, of Maryland, and Mr.Glenard P. Lipscomb, of Cali-fornia, who were, respectively, theChairman and ranking minoritymember of the Committee onHouse Administration.

§ 3.3 Where a Member des-ignated as a teller for count-ing the electoral ballots wasunavoidably detained, theSpeaker designated anotherMember to take his place.On Jan. 6, 1949,(19) prior to the

announcement of the arrival ofthe Senate for the meeting of thejoint session of the two Houses tocount the electoral vote, theSpeaker (20) made an announce-ment to the House:


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1. 119 CONG. REC. 8, 93d Cong. 1stSess. For other recent examples see115 CONG. REC. 8, 91st Cong. 1stSess., Jan. 3, 1969; 111 CONG. REC.15, 89th Cong. 1st Sess., Jan. 4,1965; and 107 CONG. REC. 72, 87thCong. 1st Sess., Jan. 4, 1961.

2. S. Con. Res. 1.3. Spiro T. Agnew (Md.).

4. 107 CONG. REC. 288–91, 87th Cong.1st Sess.

5. Richard M. Nixon (Calif.).

THE SPEAKER: The gentleman fromNew York [Mr. Ralph A. Gamble] isunavoidably detained and is unable toserve as teller.

The Chair designates the gentlemanfrom Pennsylvania [Mr. Louis E.Graham] to act as teller in his stead.

Senate Tellers

§ 3.4 Tellers on the part of theSenate to count the electoralvotes are appointed by theVice President.

On Jan. 3, 1973,(1) following theSenate’s consideration of andagreement to a concurrent resolu-tion (2) providing for the conveningof a joint session of the twoHouses to count the electoralvotes, the Vice President,(3) in ac-cordance with the provisions ofthe concurrent resolution, ap-pointed the Senator from Ken-tucky, Marlow W. Cook, and theSenator from Nevada, Howard W.Cannon, as the tellers on the partof the Senate to count the elec-toral votes.

Conflicting Electoral Certifi-cates

§ 3.5 The two Houses, meetingin joint session to count theelectoral votes, may by unan-imous consent decide whichof two conflicting electoralcertificates from a state isvalid; and the tellers arethen directed to count theelectoral votes in the certifi-cate deemed valid.On Jan. 6, 1961,(4) during pro-

ceedings in the joint session of thetwo Houses incident to the open-ing of the certificates and count-ing of the votes of the electors ofthe several states for Presidentand Vice President, the Presidentof the Senate (5) handed to the tell-ers, in the order in which theyhad been received, certificates ofelectoral votes, with all attachedpapers thereto, from differentslates of electors from the State ofHawaii. The certificates were re-ceived and considered by the tell-ers, whereupon, the following pro-ceedings occurred:

THE VICE PRESIDENT: . . . The Chairhas knowledge, and is convinced thathe is supported by the facts, that thecertificate from the Honorable WilliamF. Quinn, Governor of the State of Ha-


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waii, dated January 4, 1961, receivedby the Administrator of General Serv-ices on January 6, 1961, and trans-mitted to the Senate and the House ofRepresentatives on January 6, 1961,being Executive Communication Num-ber 215 of the House of Representa-tives, properly and legally portrays thefacts with respect to the electors cho-sen by the people of Hawaii at the elec-tion for President and Vice Presidentheld on November 8, 1960. As readfrom the certificates, William H. Heen,Delbert E. Metzger, and Jennie Wilsonwere appointed as electors of Presidentand Vice President on November 8,1960, and did on the first Mondayafter the second Wednesday of Decem-ber, 1960, cast their votes for John F.Kennedy of Massachusetts for Presi-dent and Lyndon B. Johnson of Texasfor Vice President.

In order not to delay the furthercount of the electoral vote here, theChair, without the intent of estab-lishing a precedent, suggests that theelectors named in the certificate of theGovernor of Hawaii dated January 4,1961, be considered as the lawful elec-tors from the State of Hawaii.

If there be no objection in this jointconvention, the Chair will instruct thetellers—and he now does—to count thevotes of those electors named in thecertificate of the Governor of Hawaiidated January 4, 1961—those voteshaving been cast for John F. Kennedy,of Massachusetts, for President andLyndon B. Johnson, of Texas, for VicePresident.

Without objection the tellers will ac-cordingly count the votes of those elec-tors named in the certificate of theGovernor of Hawaii dated January 4,1961.

There was no objection.The tellers then proceeded to read,

count and announce the electoral votesof the remaining States in alphabeticalorder.

Parliamentarian’s Note: A re-count of ballots in Hawaii, whichwas concluded after the Governorof that state had certified the elec-tion of the Republican slate ofelectors, threw that state into theDemocratic column; the Governorthen sent a second communicationto the Administrator of GeneralServices which certified that theDemocratic slate of electors hadbeen lawfully appointed. Bothslates of electors met on the dayprescribed by law, cast theirvotes, and submitted them to thePresident of the Senate pursuantto 3 USC § 11. When the twoHouses met in joint session tocount the electoral votes, the votesof the electors were presented tothe tellers by the Vice President,and, by unanimous consent, theVice President directed the tellersto accept and count the lawfullyappointed slate.

Objections

§ 3.6 A formal objection wasmade to the counting of theelectoral vote of a state, andthe House and Senate di-vided to separately considerthe objection before pro-ceeding with the counting.


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6. 115 CONG. REC. 145, 146, 91st Cong.1st Sess. For further discussion andexcerpts from the debate, see § § 3.7,3.8, infra.

7. Richard B. Russell (Ga.).8. Senator Carl T. Curtis (Neb.) and

Senator B. Everett Jordan (N.C.) onthe part of the Senate; Mr. SamuelN. Friedel (Md.) and Mr. Glenard P.Lipscomb (Calif.) on the part of theHouse.

9. 115 CONG. REC. 146, 91st Cong. 1stSess., Jan. 6, 1969.

10. 3 USC § 15.

On Jan. 6, 1969,(6) the Presidentpro tempore of the Senate (7)called to order a joint session ofthe House and Senate for the pur-pose of counting the electoralvotes for President and Vice Presi-dent. When the tellers appointedon the part of the two Houses (8)had taken their places at theClerk’s desk, the President protempore handed them the certifi-cates of the electors and the tell-ers then read, counted, and an-nounced the electoral votes of thestates in alphabetical order. Thevote of North Carolina was statedto be 12 for Richard M. Nixon andSpiro T. Agnew for President andVice President respectively andone for George C. Wallace andCurtis E. LeMay for Presidentand Vice President respectively.Mr. James G. O’Hara, of Michi-gan, thereupon rose and sent tothe Clerk’s desk a written objec-tion signed by himself and Ed-mund S. Muskie, the Senator fromMaine, protesting the counting of

the vote of North Carolina asread. The President pro temporedirected the Clerk of the House toread the objection, which stat-ed: (9)

We object to the votes from the Stateof North Carolina for George C. Wal-lace for President and for Curtis E.LeMay for Vice President on theground that they were not regularlygiven in that the plurality of votes ofthe people of North Carolina were castfor Richard M. Nixon for President andfor Spiro T. Agnew for Vice Presidentand the State thereby appointed thir-teen electors to vote for Richard M.Nixon for President and for Spiro T.Agnew for Vice President and ap-pointed no electors to vote for anyother persons. Therefore, no electoralvote of North Carolina should becounted for George C. Wallace forPresident or for Curtis E. LeMay forVice President.

JAMES G. O’HARA, M.C.EDMUND S. MUSKIE, U.S.S.

Following the President protempore’s finding that the objec-tion complied with the law (10) andhis subsequent inquiry as towhether there were any furtherobjections to the certificates fromthe State of North Carolina, thetwo Houses separated to considerthe objection, the Senate with-drawing to the Senate Chamber.

The legal basis for the objectionwas contained in 3 USC § 15,which provided in relevant part:


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11. 115 CONG. REC. 211, 91st Cong. 1stSess., Jan. 6, 1969.

12. Id. at pp. 159, 160.13. See remarks of Mr. Edward P. Bo-

land (Mass.), id. at pp. 165, 166, andremarks of Mr. O’Hara, id. at p. 169.

14. See, for example, the remarks ofSenator Frank Church (Idaho), id.atp. 214.

15. Id. at p. 212.

. . . [A]nd no electoral vote or votesfrom any State which shall have beenregularly given by electors whose ap-pointment has been lawfully certifiedto according to section 6 of this titlefrom which but one return has been re-ceived shall be rejected, but the twoHouses concurrently may reject thevote or votes when they agree thatsuch vote or votes have not been soregularly given by electors whose ap-pointment has been so certified.

Those supporting the objectionin the House and Senate con-tended that the votes of one NorthCarolina elector had not been‘‘regularly given’’ and shouldtherefore be rejected.

The background of the objectionwas explained by Senator Muskieduring his opening remarks in theSenate debate on the objection: (11)

In this case, a North Carolina electorwas nominated as an elector by a dis-trict convention of the RepublicanParty in North Carolina. He did not re-ject that nomination. His name wasnot placed on the ballot because underNorth Carolina law, as in the case of34 other States, only the names of theparty’s presidential and vice-presi-dential candidates appear, and electorsare elected for the presidential andvice-presidential candidates receivingthe plurality of the vote in North Caro-lina.

Dr. Bailey and 12 other North Caro-lina Republican electors were so elect-ed on November 5. The election was

certified. Dr. Bailey did not reject thatelection or that certification. So up tothat moment, so far as the people fromNorth Carolina understood, he wascommitted as an elector on the Repub-lican slate, riding under the names ofRichard M. Nixon and Spiro T. Agnew,to vote for that presidential and vice-presidential ticket.

On December 16, the electors ofNorth Carolina met in Raleigh to casttheir votes. . . . It was at that pointthat Dr. Bailey decided to cast his votefor the Wallace-LeMay ticket instead.

In the House, Mr. Roman C.Pucinski, of Illinois, made a simi-lar presentation.(12)

During debate on the objectionin both the House and the Senate,proponents of the objection fo-cused on several key arguments insupport thereof. It was arguedthat the elector had at least amoral commitment to vote for theRepublican candidates—a commit-ment made more compelling inthe light of custom and practicesince the adoption of the Constitu-tion,(13) and reliance by the voterson the elector’s conduct and ap-parent intentions.(14) SenatorMuskie stated: (15)


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16. See the remarks of Mr. William M.McCulloch (Ohio), id. at p. 148; Mr.Richard H. Poff (Va.), id. at p. 158;Senator Ralph W. Yarborough (Tex.),id. at p. 217; Senator Robert C. Byrd(W. Va.), id. at p. 245.

17. Relevant provisions are art. II, § 1,clause 3; and the 12th amendment.

18. See remarks of Mr. John B. Ander-son (Ill.), 115 CONG. REC. 151, 91stCong. 1st Sess., Jan. 6, 1969; Mr.Bob Eckhardt (Tex.), id. at p. 164;Senator Curtis, id. at pp. 219, 220;Senator Herman E. Talmadge (Ga.),id. at p. 223.

1. See remarks of Mr. Alton A. Lennon(N.C.), id. at pp. 149, 150. The Su-preme Court in Ray v Blair, 343U.S. 214 (1952), upheld the constitu-tionality of state laws requiring anelector to pledge to support thenominee of his political party.

[A]s I understand it, the Constitu-tion, as interpreted by the debates inthe Constitutional Convention, clearlymakes an elector a free agent. How-ever, from the beginning of the coun-try’s history, political parties devel-oped, and the political parties arrangedfor slates of electors assigned to theirpresidential and vice-presidential can-didates. That political party slate ofcandidates has always been regarded,with but five other exceptions, as bind-ing upon those who are electors onthat slate.

So I argue that in the light of thattradition, when an elector chooses togo on a party slate, he is indicating hischoice for President.

I say, secondly, that in the case ofNorth Carolina and this statute, whichis found also in 34 other States, thefact that only the presidential andvice-presidential names appear on theballot is confirmation of this tradition;that when an elector accepts a place ona slate under these circumstances, inthe light of this tradition, he knowsthat to the public at large he is saying,by his action, ‘‘I am for Nixon forPresident.’’ He is saying implicitly, inmy judgment, ‘‘If I am elected an elec-tor under these circumstances, I willvote for Richard Nixon for President.’’

I believe that is the tradition. I be-lieve that this undergirds the responsi-bility of an elector; and once he has setthat train of understanding in motion,he cannot, after election day, when itis too late for the voters to respond toany change of mind on his part, say, ‘‘Ichanged my mind, and I am going tovote for somebody else.’’ It is in the na-ture of estoppel.

Those opposed to the objectionargued that the electors were

‘‘free agents’’ (16) under the Con-stitution,(17) permitted to vote forwhomever they pleased. Accordingto such view, Congress, under theConstitution and 3 USC § 15, ex-ercised only a ministerial functionin counting the electoral ballots,and such ballots could be dis-counted only if the certificateswere not in regular form or werenot authentic.(18)

It was also noted that NorthCarolina had not adopted a law,as had a majority of states, re-quiring the electors to pledge tosupport their party’s nominee; (1)this raised, in the view of some,an implication that North Caro-lina did not intend its electors to


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2. Id. at p. 213.

3. See, for example, the remarks of Mr.Hamilton Fish, Jr. (N.Y.), id. at p.168.

Among those Members and Sen-ators who favored a constitutionalamendment to revise the electoralsystem were Mr. Hale Boggs (La.),id. at p. 151; Mr. Emanuel Celler(N.Y.), id. at p. 149; Mr. Phillip Bur-ton (Calif.), id. at p. 160; Mr.Charles A. Vanik (Ohio), id. at p.168; Senator Karl E. Mundt (S.D.),id. at p. 216; Senator Birch Bayh(Ind.), id. at p. 218; Senator Harry F.Byrd, Jr. (Va.), id. at p. 221; andSenator Robert C. Byrd (W. Va.), id.

be bound to support particularparty nominees. Senator EdwardM. Brooke, of Massachusetts,made the following remarks: (2)

In a system of constitutional govern-ment matters of procedure often be-come vital issues of substance. I sub-mit that such a case is now before us.There are strong constitutionalgrounds for the authority of a State tobind its electors to vote as they arepledged. If a State has so bound itselectors, I would contend that the Con-gress can properly act to see that theState’s legal requirements are fulfilled.This would be a reasonable construc-tion of the 1887 statute which providesthat Congress can reject an elector’svote which has not been regularlygiven.

But it is my considered opinion that,unless the State chooses to bind itselectors, Congress cannot do so afterthe fact.

Among the many serious implica-tions of this situation, one lesson inparticular stands out:

No official should ever be granteddiscretionary authority unless the peo-ple clearly understand that, undersome circumstances, he may actuallyuse it. And if such authority, oncegranted, is deemed excessive or un-wise, the people should explicitly andpromptly rescind it.

As I understand the relevant con-stitutional guidelines, the power toremedy this particular problem lieswith the people of North Carolina act-ing through their representative insti-tutions at the State level. . . .

In addition, however, there is a na-tional interest in removing so critical aloophole in our constitutional system.If the electoral college is to remain anelement in our political life, surely weshould move to design a constitutionalamendment which, once and for all,binds electors to vote for the can-didates to whom they are pledged. Ihasten to add that this possible changein our electoral system will certainlynot suffice. Indeed, one of the para-mount tasks of this Congress will be toexamine the full range of constitu-tional proposals to create a fair and se-cure procedure for presidential elec-tions.

In addition to the views statedabove by Senator Brooke, severalof those speaking to the objectionexpressed support for a constitu-tional amendment to reform theelectoral system, a remedy which,it was argued, would be preferableto ‘‘piecemeal’’ changes to beachieved under present law.(3)


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at pp. 244, 245. It was pointed outby Senator Muskie, however, thatover 500 resolutions had been intro-duced to reform the electoral systemby constitutional amendment duringthe history of the Republic. Id. at p.220.

4. See § 3.7, infra.5. 115 CONG. REC. 171, 91st Cong. 1st

Sess., Jan. 6, 1969.6. 115 CONG. REC. 145–47, 169–72,

91st Cong. 1st Sess. 7. John W. McCormack (Mass.).

At the conclusion of debate ineach House, the yeas and nayswere ordered and the House andSenate respectively rejected theobjection.(4) Thereupon, the Sen-ate reassembled in the Chamberof the House in joint session.(5)The President pro tempore calledthe meeting to order and directedthe Secretary of the Senate andthe Clerk of the House to reportthe action taken by the twoHouses. Following the report, thePresident pro tempore directedthe tellers to record and announcethe vote of the State of NorthCarolina, and the counting of theelectoral votes proceeded.

§ 3.7 Under the statute pre-scribing the procedure forconsideration by the respec-tive Houses of an objectionto a state’s electoral votecount, a motion to lay the ob-jection on the table is not inorder.On Jan. 6, 1969,(6) following the

raising of an objection to the

count of North Carolina’s electoralvote, the joint session of the twoHouses divided (the Senate re-pairing to the Senate Chamber),so that the objection could be con-sidered by each House meeting inseparate session. The House wascalled to order by the Speaker(7)and debate on the objection en-sued, at the conclusion of which amotion was made by Mr. GeraldR. Ford, of Michigan, to lay theobjection on the table.

A point of order against the mo-tion was made by Mr. James G.O’Hara, of Michigan, assertingthat the motion to table such anobjection was inconsistent withthe requirement of 3 USC § 17,that after two hours of debate ineach House on the objection to thecount of a state’s electoral vote, ‘‘itshall be the duty of the presidingofficer of each House to put themain question without further de-bate.’’

After further debate, the Speak-er sustained the point of order. Hestated:

It seems to the Chair that the law [3USC § 17] is very plain with respect tothe 5-minute rule and time of debate.With respect to the problem, the sec-tion states, and I quote:

It shall be the duty of the pre-siding officer of each House to putthe main question without furtherdebate.


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8. 115 CONG. REC. 210, 91st Cong. 1stSess.

9. According to Minority Leader Ever-ett McK. Dirksen (Ill.), this was alsothe first time the Senate had oper-ated under the five-minute rule. Id.at p. 223.

10. Id. at p. 211.11. Id. at p. 223.

In the opinion of the Chair the mainquestion is the objection filed by thegentleman from Michigan (Mr. O’Hara)and the Senator from Maine, SenatorMuskie.

The Chair is of the opinion that thelaw plainly governs the situation; thatthe Chair must put the main questionand that the motion to table is not inorder.

Accordingly, the Chair sustains thepoint of order.

The question on agreeing to theobjection was taken; the objectionbeing rejected—yeas 170, nays228, not voting 32, not sworn 4. Amotion to reconsider was laid onthe table.

A similar situation arose in theSenate, during proceedings relat-ing to the objection to the NorthCarolina vote. The Senate hadbeen called to order by Presidentpro tempore Richard B. Russell, ofGeorgia, who then directed theClerk to read the objection, as fol-lows: (8)

We object to the votes from the Stateof North Carolina for George C. Wal-lace for President and for Curtis E.LeMay for Vice President on theground that they were not regularlygiven in that the plurality of votes ofthe people of North Carolina were castfor Richard M. Nixon for President andfor Spiro T. Agnew for Vice Presidentand the State thereby appointed 13electors to vote for Richard M. Nixon

for President and for Spiro T. Agnewfor Vice President and appointed noelectors to vote for any other persons.Therefore, no electoral vote of NorthCarolina should be counted for GeorgeC. Wallace for President or for CurtisE. LeMay for Vice-President.

Following a statement by thePresident pro tempore that thiswas an unusual parliamentary sit-uation in that it was the first timean objection to an electoral votehad been filed,(9) and a reading bythe Clerk of the provisions of 3USC § 17, the Senate agreed to aunanimous-consent request by Ed-mund S. Muskie,(10) the Senatorfrom Maine, that the time be di-vided equally between proponentsand opponents of the objection,with time for the proponents to beallotted under the direction of theMajority Leader, Michael J. Mans-field, of Montana, and time for theopponents to be allotted under thedirection of Senator Dirksen. De-bate on the objection then pro-ceeded.

During the debate on the objec-tion, Edward M. Kennedy, theSenator from Massachusetts, in-quired as to whether a motion tolay the objection on the tablewould be in order: (11)


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12. Id. at p. 246.

13. See § 3.6, supra.14. 3 USC § 17.15. 115 CONG. REC. 210, 91st Cong. 1st

Sess., Jan. 6, 1969.

MR. KENNEDY: Mr. President, may Ipropound a parliamentary inquirywhether the motion to table is in orderor is not in order?

THE PRESIDENT PRO TEMPORE: TheChair would rule that it is not inorder. The statute under which we arenow proceeding states the main ques-tion shall be put. Let the Chair readthe last clause of section 17 of title 3:

But after such debate shall havelasted two hours it shall be the dutyof the presiding officer of each Houseto put the main question withoutfurther debate.

At the conclusion of the twohours of debate, the question onagreeing to the objection wastaken; and the objection was re-jected (yeas 33 and nays 58). Amotion to reconsider was laid onthe table.(12) Subsequently, at theresumption of the joint session,the Presiding Officer directed thetellers to announce and record theelectoral votes of North Carolinaas submitted.

§ 3.8 During consideration ofan objection to the electoralvote count of a state, unani-mous consent was sought forpurposes of modifying theprocedures prescribed bystatute for consideration ofsuch objections; after discus-sion and rejection of such re-quest, a subsequent unani-mous-consent request was

agreed to which qualified theterms of the statute.During proceedings arising from

an objection to the count of elec-toral votes of North Carolina,(13)the following statutory provi-sion (14) was read in the Senate: (15)

When the two Houses separate to de-cide upon an objection that may havebeen made to the counting of any elec-toral vote or votes from any State, orother question arising in the matter,each Senator and Representative mayspeak to such objection or question fiveminutes, and not more than once; butafter such debate shall have lasted twohours it shall be the duty of the pre-siding officer of each House to put themain question without further debate.

Senator Edmund S. Muskie, ofMaine, then made the followingunanimous-consent request:

. . . I ask unanimous consent thatdebate on objections to the electoralvote of North Carolina for George C.Wallace and Curtis LeMay shall belimited to 2 hours, as provided by lawin section 17, title 3, United StatesCode, and that the time be equally di-vided and controlled by the majorityleader and the minority leader.

Discussion ensued as to the ef-fect of the request and the appro-priateness of adopting proceduresthat, in the view of some Sen-


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16. U.S. Const. art. I, § 5.

17. 115 CONG. REC. 210, 211, 91st Cong.1st Sess., Jan. 6, 1969.

18. Richard B. Russell (Ga.).

ators, would constitute a depar-ture from the terms of the statute.

As background to the discus-sion, it may, of course, be notedthat, under the Constitution,(16)‘‘Each House may determine theRules of its Proceedings,’’ so thatthere was no absolute legal obsta-cle to the Senate’s adoption ofwhatever procedures seemed ap-propriate at the time. It may alsobe noted that the terms of theunanimous-consent request didnot on their face necessarily con-travene the statute. But it will beobserved that the Chair declinedto pass upon the effect or legalityof the unanimous-consent request,and stated that a single objectionto the request would preserve pro-cedures under the statute.

The Chair did remark thatunanimous-consent requests areentertained that are seemingly ‘‘inconflict with’’ both statutes andthe Constitution. Citing the con-stitutional requirement of thequorum, he said:

. . . We see suggestions of the ab-sence of a quorum made several timesduring the day and withdrawn byunanimous consent. . . .

It may perhaps be implied fromthe Chair’s remarks here andthroughout the debate that a pro-posed departure from statutory

provisions such as those in ques-tion is in any event permissible ifno point of order or objection israised.

The proceedings relating to Sen-ator Muskie’s unanimous-consentrequest were in part as follows: (17)

Mr. [CARL T.] CURTIS [of Nebraska]:Is a unanimous-consent request inorder which, by its terms, is not in ac-cord with a duly enacted statute?

THE PRESIDENT PRO TEMPORE: (18)The Chair will state that unanimous-consent requests can also be receivedand entertained here that are in con-flict with the statutes. Sometimes theyare in conflict with the Constitution.

We have three sets of rules in theSenate. Some of them are spelled outin the Constitution, others are spelledout in the Senate rule book, and thegreat majority of them are embraced inthe precedents of the Senate.

For example, one of the constitu-tional rules had to do withascertaining the presence of a quorum.We see suggestions of the absence of aquorum made several times during aday, and withdrawn by unanimousconsent. That can be done only byunanimous consent. If the proposal ofthe Senator from Maine can be madeonly by unanimous consent, any singleSenator who thinks it is improper, andthat we should follow the statute inthis particular case—has a right to de-stroy it completely by uttering twowords—‘‘I object,’’ and the proposal willfall.


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MR. [EDWARD W.] BROOKE [of Mas-sachusetts]: Mr. President, reservingthe right to object, do I understand theonly difference between the unani-mous-consent request and the statuteto be that the time would be controlledby the Chair and not by the majorityand minority leaders, under the stat-ute?

MR. MUSKIE: As the unanimous-con-sent request is worded, time would beunder the control of the majority andminority leaders.

MR. BROOKE: That is the only thingthat was intended to be achieved bythe unanimous-consent agreement?

MR. MUSKIE: Plus liberalizing the 5-minute requirement. The statute re-quires that each Senator may speak for5 minutes, and not more than once.This was discussed quite extensively,and it was felt that the ideal arrange-ment would be to have full and free de-bate, with the time controlled and freeexchange between Senators. It was feltthat this could be done, unless a Sen-ator objected; so we decided to makethe effort. . . .

MR. [FRANK] CHURCH [of Idaho]: Mr.President, I have no desire to object,but I do not understand how this canbe a proper proceeding.

THE PRESIDENT PRO TEMPORE: TheChair is not permitted to enter anyruling that purports to pass upon thelegality of a unanimous-consent re-quest, any more than is any otherMember of this body.

Is there objection?MR. BROOKE: Mr. President, it seems

to me that the intent of the statute isto give as many Senators as possiblean opportunity to be heard on this im-portant issue. As I understand the dis-

tinguished Senator from Maine, underthe unanimous-consent request, con-ceivably the distinguished Senatormight use 1 hour of the time, and oneSenator from the minority side use 1hour of the time, which in my opinionwould certainly frustrate the intent ofthe statute. I feel so strongly about it,Mr. President, that as much as I dis-like to do so, I hereby object.

THE PRESIDENT PRO TEMPORE: TheSenator from Massachusetts objects.The Chair, having tolerated consider-able discussion and parliamentary in-quiries, now asks of the Senate unani-mous consent that that time not becharged against the 2 hours. If there isno objection, it will not be charged; andthat leaves the matter open for theChair to recognize Senators who wishto speak on this subject.

The Chair recognizes the Senatorfrom Maine for 5 minutes.

Mr. MUSKIE: Mr. President, I antici-pated that this might result, and Ifully understand the reservations ex-pressed by Senators. I have anotherunanimous-consent request to propose.I ask unanimous consent that debatebe limited to 2 hours, as provided bystatute, that the time be equally di-vided and controlled by the majorityleader and the minority leader, andthat the statutory limitation of 5 min-utes per Senator be included, but thatthe 5 minutes available to any Senatormay be used to ask or answer ques-tions.

The purpose of this request, Mr.President, is to do two things: First, toinsure that both sides of the debateshall have equal access to the attentionof the Senate; second, that the use ofthe 5 minutes shall not be so rigid that


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19. 119 CONG. REC. 34032, 93d Cong. 1stSess. For proceedings incident to theSenate’s receipt of a similar messagesee 119 CONG. REC. 34111, 93dCong. 1st Sess., Oct. 13, 1973.

See 120 CONG. REC. 29366, 93dCong. 2d Sess., Aug. 20, 1974, forsimilar proceedings relating to thenomination of Nelson A. Rockefelleras Vice President.


1. 119 CONG. REC. 34032, 93d Cong. 1stSess. See 119 CONG. REC. 34111, 93dCong. 1st Sess., Oct. 13, 1973,where, in the Senate, the nominationwas referred to the Senate Com-mittee on Rules and Administration.

Similarly, on Aug. 20, 1974, thenomination by President Gerald R.Ford of Nelson A. Rockefeller as VicePresident was referred in the Houseto the Committee on the Judiciary.See 120 CONG. REC. 29366, 93dCong. 2d Sess.


there cannot be the kind of exchangethat would permit the answering ofquestions on the minds of Senators.The Parliamentarian has advised methat, in his judgment, this is consistentwith the statute. It touches uponpoints not covered by the statute, andit embraces the limitations of the stat-ute. . . .

THE PRESIDENT PRO TEMPORE: Isthere objection to the unanimous-con-sent request? The Chair hears none,and the request is agreed to.

§ 4. Presidential Nomina-tions for Vice President

Transmittal Message

§ 4.1 When the President, pur-suant to section 2 of the 25thamendment to the Constitu-tion, nominates a Vice Presi-dent to take office upon con-firmation by a majority voteof both Houses, a messagetransmitting his nominationis laid before the House bythe Speaker.On Oct. 13, 1973,(19) the Speak-

er (20) laid before the House the

following message from the Presi-dent of the United States:

To the Congress of the United States:

Pursuant to the provisions of Section2 of the Twenty-fifth Amendment tothe Constitution of the United States,I hereby nominate Gerald R. Ford, ofMichigan, to be the Vice President ofthe United States.

RICHARD NIXON,THE WHITE HOUSE,

October 13, 1973.

Referral to Committee

§ 4.2 The Speaker referred thePresident’s nomination of aVice President to the Com-mittee on the Judiciary,which has jurisdiction overmatters relating to Presi-dential succession.

On Oct. 13, 1973,(1) the Speak-er (2) referred to the Committee onthe Judiciary a message from the


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3. 119 CONG. REC. 39899, 39900, 93dCong. 1st Sess.

4. See 119 CONG. REC. 39807, 39812,39813, 93d Cong. 1st Sess., Dec. 6,1973, for proceedings incident to theHouse’s agreement to a resolution,H. Res. 738, making in order consid-eration of the confirmation resolu-tion.

5. For proceedings incident to the Sen-ate’s confirmation of the nominationsee 119 CONG. REC. 38224, 38225,93d Cong. 1st Sess., Nov. 27, 1973.

6. 120 CONG. REC. 41516, 41517, 93dCong. 2d Sess.

7. See id. at pp. 41419–516, for text ofH. Res. 1519 and debate on H. Res.1511.

8. For proceedings incident to the Sen-ate’s confirmation of the nomination,see 120 CONG. REC. 38918–36, 93dCong. 2d Sess., Dec. 10, 1974.

President of the United Statesnominating a Vice President.

Confirmation

§ 4.3 The House agreed to aresolution confirming a Pres-idential nomination for VicePresident of the UnitedStates and then received amessage from the Senate an-nouncing that body’s con-firmation of the nomination.On Dec. 6, 1973,(3) pursuant to

a special order,(4) the House con-sidered and agreed to a resolution(H. Res. 735) reported from theCommittee of the Whole House onthe state of the Union confirminga Presidential nomination for VicePresident of the United States:

Resolved, That the House of Rep-resentatives confirm the nomination ofGerald R. Ford, of the State of Michi-gan, to be Vice President of the UnitedStates.

A motion to reconsider was laidon the table.

Thereupon, the House receiveda message from the Senate an-nouncing that body’s confirma-tion (5) of the nomination.

Similarly, on Dec. 19, 1974,(6)pursuant to a special order, HouseResolution 1519,(7) the House con-sidered and agreed to a resolution(H. Res. 1511) reported from theCommittee of the Whole House onthe state of the Union confirminga Presidential nomination for VicePresident of the United States:

Resolved, That the House of Rep-resentatives confirm the nomination ofNelson A. Rockefeller, of the State ofNew York, to be Vice President of theUnited States.

A motion to reconsider was laidon the table.

Thereupon, the House receiveda message from the Senate an-nouncing that body’s confirma-tion (8) of the nomination.


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Commentary and editing by John R. Graham, Jr., J.D.

CHAPTER 11

Questions of Privilege

A. Introductory§ 1. In General

B. Privilege of the House§ 2. In General; Definition§ 3. Effecting Changes in House Rules or Orders§ 4. Raising and Presenting the Question§ 5. Time for Consideration; Precedence of the Ques-

tion§ 6. Recognition to Offer; Determinations as to Validity§ 7. Consideration and Debate; Referral to Committee

C. Basis of Questions of Privilege of the House§ 8. General Criticism of Legislative Activity§ 9. Charges Involving Members

§ 10. Charges Involving House Officers or Employees§ 11. Correcting the Record; Expungement of Words Ut-

tered in Debate§ 12. Enforcement of Committee Orders and Subpenas§ 13. Invasion of House Jurisdiction or Prerogatives§ 14. Service of Process on Members§ 15. Service of Grand Jury Subpena§ 16. Service of Process on House, Its Officers, or Em-

ployees§ 17. Service of Process on Committee Chairmen and

Employees§ 18. Authorization to Respond to Process§ 19. Providing for Legal Counsel

VerDate 18-JUN-99 11:59 Jul 02, 1999 Jkt 010199 PO 00000 Frm 00001 Fmt 8890 Sfmt 8890 E:\RENEE\52093C11.TXT txed02 PsN: txed02

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D. Personal Privilege of Member§ 20. In General; Definition§ 21. Raising the Question; Procedure§ 22. Debate on the Question; Speeches§ 23. Precedence of the Question; Interrupting Other

Business

E. Basis of Questions of Personal Privilege§ 24. Introductory; General Opinion or Criticism§ 25. Charges Before a Governmental Agency or Com-

mittee§ 26. Charges by Fellow Member§ 27. Words Uttered in Debate; Charges Inserted in the

Record§ 28. Published Charges of Impropriety§ 29. Published Charges of Illegality§ 30. Published Charges Involving Legislative Conduct§ 31. Published Charges Involving Patriotism§ 32. Published Charges Impugning Veracity§ 33. Criticism of Members Collectively

Ch. 11 DESCHLER’S PRECEDENTS

INDEX TO PRECEDENTS

Abuse of House powers or institu-tions, § 30.8

Adjournment, questions of privilegepending at, § 5.5

Alteration of official transcript,charge of, § 25.2

Appeal from Speaker’s ruling, § 6.3Calendar Wednesday business, prec-

edence of questions of privilegeover, § 5.7

Character of Member, charges con-cerning

atomic secrets, divulging, § 26.2Communist Party affiliation, § 25.1ethnic slur, § 28.4hearing transcripts, altered, submit-

ting, § 25.2

Character of Member, charges con-cerning—Cont.

making oneself a ‘‘damn fool’’ § 26.1questionable business affiliations,

§§ 26.3, 28.3‘‘vote selling,’’ § 28.1

Charges concerning Congress, reso-lution for investigation of, § 8.3

Charges concerning the House, reso-lution for investigation of, § 8.4

Charges made against other Mem-bers, § 9.2

Charges or criticism involvingunnamed Members, §§ 26.1, 26.2,33.1, 33.2

Committee chairman, improprietiesas, § 30.11


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Ch. 11DECSCHLER’S OF PRECEDENTS

Committee employee, criticism of,§ 10.3

Committee of the Wholequestions of personal privilege raised

in, § 21.4questions of the privilege of the House

raised in, § 4.3Committee reports relating to ques-

tions of privilegeapplicability of three-day rule con-

cerning, § 5.10witness’ refusal to be sworn, § 12.2witness’ refusal to respond to subpena

duces tecum, § 12.3Committee responsibilities, avoid-

ance of, § 30.14Committee witnesses, warrants de-

taining, § 12.1Communist Party affiliation, charge

of, § 25.1Congress, criticism of, § 8.1Congressional Record, expurgations

offensive articles, documents, orspeech, inserted in, § § 11.4, 11.5

offensive House debate in, § § 11.2, 11.3offensive Senate debate in, § 11.1remarks inserted in, through abuse of

leave to print, § 11.7remarks inserted without authoriza-

tion in, § 11.8unparliamentary language inserted in,

under leave to extend, § 11.6Congressional Record, resolution to

correct inaccuracies in, § 11.9Congressional Record, resolution to

restore remarks previously ex-punged from, § 11.10

Congressional Record, transcript of,submitted to the Speaker, § 21.2

Counsel, appointment ofby Clerk, § 19.3by House committee, § 19.2by Speaker, § 19.1

Court orderspublication of committee report re-

strained by, § 13.3service of, on Members, §§ 14.9, 14.10

Criticism of Membersgenerally, § 8.2resolution for investigation of, § 9.2

Debate, offensive remarks utteredduring

in relation to questions of personalprivilege, § 27.1

Debate, scope ofin relation to questions of personal

privilege, § 22.5response to Member who raises ques-

tion, § 22.2Deceptive conduct, charge of, § 30.2Deposition, notice of, served on

Clerk, § 16.18Discovery orders

issuance of, for committee papers,§ 17.9

service of, on committee employees,§ 17.10

District of Columbia business, prece-dence of question of privilege over,§ 5.8

Doorkeeper, criticism of, § 10.2Employees, committee, service of in-

terrogatories on, § 17.10Executive invasion of House prerog-

atives, § 13.2Executive officer, improper attempt

by, to influence Member, § 9.1Fascist sympathies, charge of, § 31.4Grounds for question of personal

privilege, statement of, § 21.1Hour rule on debate, applicability of

to questions of personal privilege,§ 22.1

to questions of the privilege of theHouse, § 7.1

House floor, control of, when ques-tions of personal privilege arise,§§ 23.2, 23.3


1584

Ch. 11 DESCHLER’S PRECEDENTS

House orders, collateral attack on,§ 3.2

House rules, effecting changes in,§ 3.1

Illegality, charges of, concerningMembers

criminal conspiracy, perjury, and taxevasion, § 29.5

fees, receipt of, § 29.3forgery, § 29.2sedition, § 29.6tax irregularities, § 29.4unspecified illegal acts, § 29.1

Innuendos as raising question ofprivilege, § 31.1

Interrogatories, service of, on com-mittee employees, § 17.10

Journalinterruption of reading of, for ques-

tions of privilege, § 5.6precedence of reading of, over ques-

tions of personal privilege, § 23.1Judicial invasion of House preroga-

tives, § 13.3Legislative actions or record, criti-

cism of, § 24.1Motion for adjournment, precedence

of, over questions of privilege,§§ 5.1, 5.2

Motion for the previous questionapplicability of, to questions of the

privilege of the House, § 7.3precedence of questions of privilege

over, § 5.9Official conduct of Members, charges

concerningabuse of franking privilege, § 30.18abuse of powers or rank, §§ 30.8–30.10accusation of traitorous acts, § 26.5conflicts of interest, §§ 30.6, 30.7‘‘cynical politicking’’ and ‘‘shabby con-

duct,’’ § 27.7dereliction of duties, § 30.3

Official conduct of Members, chargesconcerning—Cont.

‘‘disgraceful’’ conduct, §§ 30.15, 30.16evidence, confiscating, § 30.4improper conduct in agency dealings,

§ 30.17irresponsibility, § 30.12making ‘‘intemperate, vituperative and

libelous’’ attack, § 27.9‘‘making suckers’’ out of the taxpayers,

§ 27.8misuse of public funds, § 30.1placing ‘‘scurrilous’’ matter in the

Record, § 27.4‘‘pork barrel’’ provisions, § 27.6promoting religious strife, § 27.5‘‘sneaking’’ something over on the

House, § 30.2war controls, actions detrimental to,

§ 30.5Official conduct of Members, criti-

cism of, §§ 8.2, 24.1 et seq.One-minute speech, use of, as related

to questions of personal privilege,§ 22.4

Patriotism of Members, charges con-cerning

activities detrimental to national secu-rity, §§ 31.12 et seq.

collaborating with a foreign enemy,§§ 31.14 et seq.

fascist sympathies, §§ 31.4 et seq.generalized allegations, §§ 31.1–31.3innuendos reflecting on patriotism,

§§ 31.1 et seq.sedition, § 29.6

Political influence, exercise of, asimproper, § 26.3

Prima facie showing as to questionof privilege, § 4.1

Procedure, effecting changes in, § 3.3Process, response to, authorization

for, § 18.1


1585

Ch. 11DECSCHLER’S OF PRECEDENTS

Questions of the privilege of theHouse

appeal from Speaker’s determinationof, § 6.3

consideration of, by House committee,57.4

determination of, by Speaker, §§ 6.1,6.2

prima facie showing necessary for,§ 4.1

Recognition of Member on questionof privilege, Speaker’s power as to,§ 6.1

Religious strife, promotion of, § 27.5Resolution, questions of the privi-

lege of the House raised by, § 4.2Resolutions relating to critical publi-

cations, §§ 8.3, 8.4Response to Member who raises

question, § 22.2Revenue legislation, interference

with House power to originate,§ 13.1

Rude conduct, allegations of, on thepart of House employees, § 10.2

Security risk, charging Member asbeing, § 31.12

Senate debate, expungement of. byHouse resolution, § 11.1

Senate invasion of House preroga-tives, § 13.1

Senator’s criticism of House Mem-ber, § 27.6

Special-order speech as alternativeto question of personal privilege,§ 22.3

Strike-breaking activities, charge of,§ 27.3

Subpenaauthorization for response to, §§ 18.1–

18.4court-martial issuance of, to Clerk,

§ 16.17executive agency, issuance by, to Mem-

ber, § 14.8

Subpena—Cont.modification of, after service, § 14.3

Subpena, issuance of, toClerk, §§ 16.7–16.9committee chairmen, §§ 17.2–17.4committee employees, §§ 17.5. 17.6Doorkeeper, § 16.10House employee, § 16.13Members, §§ 14.2 et seq.Sergeant at Arms, §§ 16.11, 16.12

Subpenas issued by grand jury toClerk, § 16.14committee chairman, § 17.7committee employee, § 17.8House employee, § 16.16Members, §§ 15.1, 15.2Sergeant at Arms, § 16.15

Summons, service of, onCapitol Architect, § 16.6chairman of committee, § 17.1Clerk, § 16.3House, § 16.1Member, § 15.2Sergeant at Arms, § 16.4Speaker, § 16.2

Traitorous acts, allegation of, § 26.5Unauthorized action by committee

employee, allegation of, § 10.3Unnamed Members. criticism of.

§§ 26.1. 33.1Veracity of Members, charges con-

cerningcharge of distorting the President’s

words, by fellow Member, § 27.10echoing a fascist lie, § 27.11misleading the public, § 33.1presenting falsehoods, § 32.1stating a ‘‘lie,’’ §§ 26.7, 27.12, 32.2

Vote, improper attempt to influence,§ 9.1


1587

1. House Rules and Manual § 661(1973). For pre-1936 rulings on ques-tions of privilege, see 3 Hinds’ Prece-dents § § 2521-2725, and 6 Cannon’sPrecedents § § 553–622.

2. See 3 Hinds’ Precedents § 2521, not-ing that the object of Rule IX was to

prevent the loss of time which hadtheretofore resulted from Members’obtaining the floor for a speechunder the pretext of raising a ques-tion of privilege.

3. Precedence of the question, see § 5,infra.

Questions of Privilege

A. INTRODUCTORY

§ 1. In General

The tradition of Anglo-Americanparliamentary procedure recog-nizes the privileged status ofquestions related to the honor andsecurity of a deliberative body andits members. The House has ac-corded privileged status to suchquestions by Rule IX,(1) which pro-vides:

Questions of privilege shall be, first,those affecting the rights of the Housecollectively, its safety, dignity, and theintegrity of its proceedings; second, therights, reputation, and conduct ofMembers, individually, in their rep-resentative capacity only; and shallhave precedence of all other questions,except motions to adjourn.(2)

Pursuant to the rule, questionsof privilege are divided into twoclasses—the first pertaining to theHouse collectively, the second per-taining to the Members individ-ually. Whenever a question ofprivilege is properly raised on thefloor by a Member, the Speakermust entertain the question andrule on its admissibility. And thedisposition of such questions mustprecede the consideration of anyother question except the motionto adjourn.(3)


1588


4. House Rules and Manual § 661(1973).

5. See § § 6.1, 6.2, infra.6. See § 6.3, infra.7. See § 7.1, infra.8. See § 7.3, infra.

9. See § 7.4, infra.10. 118 CONG. REC. 18675, 92d Cong. 2d

Sess. For an additional example see79 CONG. REC. 14667–69, 74th Cong.1st Sess., Aug. 24, 1935.

B. PRIVILEGE OF THE HOUSE

§ 2. In General; Definition

Under Rule IX,(4) a question ofthe privilege of the House ariseswhenever its safety, dignity, orthe integrity of its proceedings, isin issue. The question havingbeen properly raised by the offer-ing of a resolution, the Speakerinitially decides whether the ques-tion presented constitutes a ques-tion of the privilege of the House.And, as the presiding officer of theHouse, it is customary for him tomake a preliminary determinationas to the validity of the questionraised.(5) Appeal may be takenfrom the Chair’s ruling, however,since the final determination re-garding the validity of such aquestion of privilege rests withthe House.(6)

Debate in the House on a ques-tion of privilege is limited to onehour(7) and may, like debate onother matters, be terminated bythe adoption of a motion for theprevious question.(8) Of course, theHouse may choose not to under-take consideration of a question ofthe privilege of the House, prefer-

ring instead to table or to committhe matter to a designated Housecommittee for its study and rec-ommendations before debate be-gins.(9)

§ 3. Effecting Changes inHouse Rules or Orders

Change in House Rules

§ 3.1 A question of the privi-lege of the House may not beraised to effect a change inthe rules of the House.On May 24, 1972,(10) during pro-

ceedings incident to the receipt ofa report from the Committee ofthe Whole House on the state ofthe Union, Ms. Bella S. Abzug, ofNew York, as a ‘‘question of privi-lege of rule IX’’ submitted the fol-lowing resolution:

H. RES. 1003

Resolved, That on May 24, 1972, atthe hour of three forty-fivepostmeridian the House shall stand inrecess for fifteen minutes in order thatit may hear and receive petition for re-dress of grievances relative to the warin Indochina to be presented by a cit-


1589

QUESTIONS OF PRIVILEGE Ch. 11 § 3


12. 87 CONG. REC. 979, 980, 77th Cong.1st Sess.

13. Sam Rayburn (Tex.).

izen of the United States and furtherresolved that in order to present suchpetition, the said citizen be permittedon the floor of the House during suchrecess.

Mr. Hale Boggs, of Louisiana,then made the point of order thatthe resolution was not a privi-leged resolution. Following debateon the point of order, the Speak-er (11) in his ruling on the point oforder said:

The gentlewoman is out of order.The Chair cannot permit the gentle-woman to speak out of order.

The Chair has been very lenient inpermitting the gentlewoman to debateher point of order, but the point oforder is obviously in order.

The gentlewoman undertakes tochange the rules of the House or tomake an exception without unanimousconsent and without a special order ofthe House.

The point of order is sustained, andthe gentlewoman is out of order.

Change in House Orders

§ 3.2 It is not in order by wayof a point of personal privi-lege or by raising a questionof the privilege of the Houseto collaterally attack anorder properly adopted bythe House at a previous time,the proper method of reopen-ing the matter being by mo-tion to reconsider the vote

whereby such action wastaken.On Feb. 13, 1941,(12) Mr. Clare

E. Hoffman, of Michigan, rose to aquestion of the privilege of theHouse and submitted a resolutionrequesting the restoration to theRecord of certain remarks madeby him and Mr. Samuel Dickstein,of New York, during the previousday’s proceedings. Such remarkshad been deleted by the Housepursuant to the adoption of a mo-tion to expunge made by Mr. JohnE. Rankin, of Mississippi. Fol-lowing debate, an inquiry washeard from Mr. Hoffman as towhether the Chair had ruled onthe question of the privilege of theHouse. Responding to the inquiry,the Speaker (13) stated:

The House would have to decidethat, and, in the opinion of the Chair,the House did decide the matter whenit expunged the remarks from theRecord. The Chair thinks, under thecircumstances, that the proper way toreopen the question would be by a mo-tion to reconsider the vote whereby themotion of the gentleman from Mis-sissippi [Mr. Rankin] was adopted. TheChair is of the opinion that inasmuchas the question raised by the gen-tleman from Michigan was decided bya vote of the House on a proper mo-tion, that he does not now present aquestion of privilege of the House or ofpersonal privilege.


1590


14. 114 CONG. REC. 30214, 30215, 90thCong. 2d Sess. (calendar day Oct. 9,1968).

15. John W. McCormack (Mass.).

16. 79 CONG. REC. 12007–13, 74th Cong.1st Sess. For further examples see104 CONG. REC. 12690, 12691, 85thCong. 2d Sess., June 30, 1958; 103CONG. REC. 14737–39, 85th Cong.1st Sess., Aug. 14, 1957; and 84CONG. REC. 1367–70, 76th Cong. 1stSess., Feb. 14, 1939.

Parliamentarian’s Note: On thelegislative day of Oct. 8, 1968,(14)after repeated quorum calls andother delay pending approval ofthe Journal, a motion was adoptedordering a call of the House upondisclosure of the absence of aquorum. Thereupon another mo-tion was adopted (before thequorum call commenced) directingthat those Members who were notthen present be returned to theChamber and not permitted toleave until the pending business(approval of the Journal) be com-pleted. No point of order wasraised against that motion, al-though it was agreed to by lessthan a quorum, and no motion toreconsider was subsequently en-tered against the motion. Subse-quently, during the continuedreading of the Journal, Mr. RobertTaft, Jr., of Ohio, as a matter bothof personal privilege and of theprivileges of the House, movedthat he and all other Members inthe Chamber who had been thereat the time of the last quorum callbe permitted to leave the Cham-ber at their desire. While theSpeaker (15) declined to entertainthe motion as a question of privi-lege based upon Mr. Taft’s conten-

tion that under the Constitutionand rules the freedom of Memberswho were present should not berestricted, the specific argumentwas not made that the order hadbeen agreed to by less than aquorum or that it was directedonly to the attendance of absen-tees and not to those present inthe Chamber. This precedent doesnot, then, stand for the propo-sition that an improper order ofthe House or the manner of execu-tion of an order of the House cannever be collaterally attacked as amatter of the privilege of theHouse—it merely suggests thatthe proper contention was notmade when the question of privi-lege was raised.

Change in Conference Proce-dure

§ 3.3 A question of the privi-lege of the House may not beraised to criticize or effect achange in conference proce-dure.On July 29, 1935,(16) Mr. George

Huddleston, of Alabama, sub-


1591


17. H. Res. 311.18. Joseph W. Byrns (Tenn.).19. 79 CONG. REC. 12013, 74th Cong. 1st

Sess.

20. 80 CONG. REC. 2312, 2313, 74thCong. 2d Sess. For further illustra-tion see 88 CONG. REC. 2005, 77thCong. 2d Sess., Mar. 6, 1942.

mitted as a question of the privi-lege of the House, a resolution (17)instructing certain House con-ferees to insist upon the exclusionfrom subsequent conference com-mittee meetings of several expertsand counsel who were presentduring a previous committeemeeting at the insistence of theSenate conferees. A point of orderwas then made by Mr. John E.Rankin, of Mississippi, that theresolution did not state a questionof the privilege of the House andfurther said:

To say that the Senate committee,when it brings its experts to advisethem and to assist them in workingout the parliamentary or the legisla-tive problems involved, is a matterthat goes to the integrity of the pro-ceedings of the House of Representa-tives I submit does not meet the re-quirement; and therefore the resolu-tion is not privileged. If they want tocome in and ask new instructions, andgive the House the right to vote on theinstructions or what those instructionsare to be, that might be a differentproposition, but that would not be aquestion of the privilege of the House.

Debate ensued, at the conclu-sion of which the Speaker (18) insustaining the point of order, stat-ed:(19)

The Chair does not wish to be under-stood as passing on the merits of the

question, because that is not withinthe province of the Chair, but theChair thinks there is a distinction be-tween an assault upon a member of aconference committee, as the gen-tleman from Alabama has suggested,and the attendance at a session of aconference committee of an employee ofthe Government upon the invitation ofthe conferees of one House. The Chairthinks that that is a matter of proce-dure that should be determined by theconferees. In the event that the con-ferees are unable to agree, it seems tothe Chair that the remedy is providedin rule XXVIII. The Chair does not be-lieve that under the facts stated aquestion of privilege is involved. TheChair, therefore, sustains the point oforder.

§ 4. Raising and Pre-senting the Question

Prima Facie Showing

§ 4.1 The mere statement thatthe privilege of the Househas been violated and trans-gressed, unsupported by afurther showing of a primafacie violation or breach ofthe privilege of the House,does not properly present aquestion of privilege.On Feb. 18, 1936,(20) Mr. Mar-

ion A. Zioncheck, of Washington,


1592


Note: The resolution quoted abovewas apparently in response to re-marks by Mr. John Taber [N.Y.],made on the preceding day, in whichhe criticized an alleged abuse by Mr.Zioncheck of the privilege of extend-ing remarks in the Record. See 80CONG. REC. 2201, 74th Cong. 2dSess., Feb. 17, 1936.

21. Joseph W. Byrns (Tenn.).22. 86 CONG. REC. 11552, 11553, 76th

Cong. 3d Sess. For further illustra-tions see 86 CONG. REC. 5111, 5112,5114, 76th Cong. 3d Sess., Apr. 26,1940; 80 CONG. REC. 2201, 74thCong. 2d Sess., Feb. 17, 1936; 79

CONG. REC. 5454, 5455, 74th Cong.1st Sess., Apr. 11, 1935.

1. William B. Bankhead (Ala.).2. 118 CONG. REC. 18675, 92d Cong. 2d

Sess.3. John M. Murphy (N.Y.).

submitted as a question of privi-lege the following resolution:

Resolved, That the gentleman fromNew York, Mr. Taber, violated andtransgressed the privileges of theHouse Monday, February 17, 1936.

A point of order was then madeby Mr. Frederick R. Lehlbach, ofNew Jersey, asserting that theresolution did not raise a questionof the privilege of the House. Inhis ruling, sustaining the point oforder, the Speaker (21) stated:

The Chair thinks the point of orderis well taken. The resolution does notset out a question of privilege.

Raised by Resolution

§ 4.2 Questions of privilege ofthe House are raised by reso-lution.On Sept. 5, 1940,(22) Mr. Clare

E. Hoffman, of Michigan, rising to

a question of the privilege of theHouse, sought recognition to makea statement. A point of order wasmade by Mr. John E. Rankin, ofMississippi, that in order to ob-tain recognition on a question ofthe privilege of the House a Mem-ber must first offer a resolution.Following the subsequent par-liamentary inquiry by Mr. Hoff-man inquiring whether in fact hewas required to offer a resolutionbefore stating his question, theSpeaker (1) stated:

The gentleman must offer his resolu-tion first, under the rule.

In Committee of the Whole

§ 4.3 A question of the privi-lege of the House based uponproceedings in the Housemay not be raised in theCommittee of the Whole.On May 24, 1972,(2) after the

House had gone into the Com-mittee of the Whole, the followingproceedings occurred:

THE CHAIRMAN: (3) For what purposedoes the gentlewoman from New Yorkrise?

MRS. [BELLA S.] ABZUG: Mr. Chair-man, I rise to make a resolution con-


1593


4. 116 CONG. REC. 11940, 11941, 91stCong. 2d Sess.

5. Charles M. Price (Ill.).6. By explicit provision Rule IX, House

Rules and Manual § 661 (1973),

mandates that questions of privilege‘‘shall have precedence of all otherquestions, except motions to ad-journ.’’

7. 86 CONG. REC. 7633, 76th Cong. 3dSess.

8. H. Res. 510.9. William B. Bankhead (Ala.).

10. Rule IX, House Rules and Manual§ 661 (1973), and 3 Hinds’ Prece-dents �

Documents

Presidential Elections; Electoral College · Ch. 10 §1 DESCHLER’S PRECEDENTS has differed from the result of the popular vote. For example, in the Hayes-Tilden election of 1876,