Returning to the role played by delegates in the House, today we will look at their history on committees.
In contrast to the initial debate over admitting territorial delegates to the House, there appears to have been little or no controversy in the early Congresses about allowing delegates to serve on committees. James White was appointed to a select committee in 1795, and William Henry Harrison, the first delegate from the Northwest Territory (and future president), also served on a number of select committees. Indeed, in December 1799, Harrison was appointed to chair a select committee established to inquire into any necessary alterations “in the laws relating to the sale of lands in the Territory Northwest of the Ohio.” 6 Annals of Cong. 527.
The most controversial issue has been whether these delegates may constitutionally cast votes in committee, and whether this would be inconsistent with the House’s longstanding view that delegates may debate, but not vote.
The 1841 Report
An 1841 report of the House Committee on Elections asserts that a delegate “can act as a member of a standing or special committee and vote on the business before such committees, and . . . may thus exercise an important influence on those initiatory proceedings by which business is prepared for the action of the House.” 2 Hinds Precedents § 1301. This remark was made “incidentally,” as Hinds puts it, in the course of the Election Committee’s consideration of whether a non-citizen was eligible to serve as a delegate. The quoted observation was made to buttress the conclusion that the privileges enjoyed by delegates in the House were similar enough to those of members so as to make citizenship a requirement.
However, the 1841 report only says that delegates “can” vote in committee, which might merely mean that there was no explicit House rule against the practice. Whether such voting actually occurred and, if so, how frequently, remains an open question. Apart from the 1841 report itself, there appears to be no documentary evidence of delegates voting in committee prior to the 1970s. See CRS Rep., Delegates to the U.S. Congress: History and Current Practice 8 (Jan. 6, 2011); see also Michel v. Anderson, 14 F.3d 623, 631 (D.C. Cir. 1994) (noting that the 1841 report “admittedly provides no direct documentary proof that delegates were permitted to vote in the standing committees in the first congresses”).
It is important to recognize that delegates were serving mainly, if not exclusively, on select or ad hoc committees. These committees were formed to investigate and report back to the House on specific questions. Presumably the members of such committees made their best efforts to reach consensus, and, if no consensus was reached, the House gave to the view of any particular committee member such weight as it felt was merited. The issue of formal voting may never have arisen.
When the overall record is considered, particularly the first instance in which the House explicitly addressed the question of delegate voting in committee (discussed next), we can say with reasonable assurance that the language of the1841 report was a mistake, an exaggeration, or a reflection of an informal practice that was not authorized by the House as a body.
The 1871 Debate
When delegate voting in committees was first considered by the House in 1871, it rejected the idea without any indication that its prior rules or practices had permitted such voting.
The question arose during consideration of a resolution to appoint a territorial delegate as an additional member of the Committee on the Territories and the DC delegate as an additional member of the Committee for the District of Columbia. The resolution specified that “said Delegates in their respective committees shall have the same privileges only as in the House.” Cong. Globe, 42d Cong., 2d Sess. 117 (Dec. 13, 1871).
Representative Randall, who offered the resolution on behalf of the Rules Committee, stressed that delegates would only be “advisory members” to their committees. In response to a question, Randall assured his colleagues that delegates would not have the right to vote in committee because their “rights in the House are limited to discussion and the making of motions.”
Randall noted that “this proposition” (apparently referring to their non-voting status) was “acceptable” to the delegates. This remark was apparently the basis for Judge Greene’s assertion in Michel v. Anderson, 817 F. Supp. 126, 135 (D.D.C. 1993), that “[t]he practice of allowing Delegates to vote in standing committees apparently continued until the middle of the nineteenth century at which time the Delegates relinquished this power in exchange for other concessions.” The court cited the 1871 debate (although erroneously placing it in February, rather than December) for this assertion, but nothing else in the pages cited even remotely supports the proposition. No one suggested that delegates had previously enjoyed the right to vote in committees, much less that they were “relinquishing” this power in exchange for seats on the specified committees.
Indeed, even Randall’s assurance that the delegates would be non-voting did not satisfy all of his colleagues. Representative Farnsworth protested that the proposed resolution tread upon “dangerous ground.” He allowed that delegates could constitutionally be permitted to speak on the House floor and be heard in committees, but he questioned whether they could exercise prerogatives that triggered formal House action:
Now every committee of this House has vested in it to some extent legislative powers. It takes the initiative, it originates bills. Any Delegate from any Territory becomes in the committee-room a committee-man, like any other, unless his power is particularly defined. He may report a bill to the House as a member of a committee, and it becomes the duty of the Speaker to recognize him on the floor as a member of that committee. If he may report a bill, he may ask for its passage.
Cong. Globe, 42d Cong., 2d Sess. 117 (Dec. 13, 1871).
It was pointed out to Farnsworth that existing House rules permitted delegates to make any motion except the motion to reconsider (which was viewed as dependent on the right to vote), but Farnsworth insisted that this was unconstitutional because “the making of motions on this floor is equivalent to voting, and it is in fact voting.” Supporters of the resolution denied this equivalence, however, contending that a motion was no more than a petition or a suggestion. Representative Banks argued that “we can if we choose extend the power of making suggestions, of presenting an argument, and even submitting propositions to the House for decision by a vote to any citizen of the country who may ask to be heard on any question.”
Representative Cox cited precedent for the resolution in the fact that delegates had previously served on committees including a delegate from Missouri who was “appointed chairman of a committee to inquire into the advisability of the admission of that Territory as a State into the Union.” Cong. Globe, 42d Cong., 2d Sess. 118 (Dec. 13, 1871). No one, however, alluded to previous voting by delegates on committees, nor suggest that the proposed resolution would impose new restrictions on delegates. To the contrary, Banks stressed that the resolution “does not change the relation in any degree of the Delegates from the Territories.” Id.
As a side note, Cox had opposed the proposal to give heads of departments seats on the House floor, and he was asked whether this resolution was not the same thing. He responded “there is no analogy and no comparison between the two cases.” One “relates to the executive department” and the other “to the legislative department.” This presumably meant that his objection to the earlier proposal was based on separation of powers concerns relating to executive influence in Congress, rather than a general problem with non-members participating in congressional debates. That appears to be true. See Congressional Globe, 38th Cong., 2d Sess. 437-43 (Jan. 26, 1865).
In the end the resolution was adopted by the House, with the clear understanding that delegates would serve as non-voting members of committees.
The 1884 Proposal
On February 23, 1884, Representative Belford offered a resolution that delegates “be allowed to vote and have their votes recorded” on any question arising before a committee on which they serve. Cong. Rec., 48th Cong., 1st sess. 1334 (Feb. 23, 1884). The speaker, however, replied that the resolution was “contrary to law” and in his view “the House could not, by a simple resolution, change the law upon the subject.” This presumably referred to the law providing that delegates could debate, but not vote.
It is unclear whether Belford had any support for his resolution, but it was referred to the Committee on Rules and no further action was taken. 2 Hinds Precedents § 1300.
The 1932 Report
In 1932 a subcommittee of the Committee of Indian Affairs studied the question of whether a delegate had or should be accorded the right to vote in committee. Cong. Rec., 72d Cong., 1st Sess. 2163-64 (Jan. 18, 1932). The committee’s report made clear its view that such a vote would be constitutionally dubious at best:
Manifestly, the House could not elect to one of its standing committees a person not a Member of the House. The designation “additional member” applied to a Delegate clearly indicates the character of the assignment. Expressly the Delegate shall exercise in the committee to which he becomes an additional member the same powers and privileges as in the House, to wit, the “right of debating, but not the right of voting.”
The report also dismisses the 1841 report, noting that no action was taken on that report and the delegate was not disqualified; moreover, the 1841 report and the abortive 1884 resolution were the only two incidents found by the committee that “squint at the right of a Delegate to vote in a standing committee.”
The 1970 Amendment
As of 1970, the practice of delegate voting on committees, if it had ever occurred, had never been explicitly condoned by the House and had been clearly understood to be forbidden for at least a century. But while some members had expressed the view that such a practice would be unconstitutional, the House itself had never clearly addressed the constitutional issue. One could argue that its pre-1970 practice merely reflected a literal application of the statutory prohibition against delegate voting.
This changed on September 15, 1970, when the Resident Commissioner Cordova of Puerto Rico offered an amendment to the House Rules and the Legislative Reorganization Act of 1970 to permit the Resident Commissioner’s appointment as a voting member of House committees. Cong. Rec., 91st Cong., 2d Sess. H8717 (Sept. 15, 1970).
Anticipating a constitutional objection, Cordova relied on the 1841 report as showing that delegates had previously been allowed to vote on committees and argued that this fact showed “this House drew a distinction between the action of the House, which can be taken only by its Members, and the steps taken in preparation for action by the House, wherein persons other than Members of the House may, and often do, play very vital roles.” Id. He urged his colleagues to grant Puerto Rico “as full a measure of representation as it is within your power to grant,” i.e., “short of a vote on the floor.” Id.
Representative Sisk objected to the amendment on constitutional grounds. He contended that “[i]n view of the fact that the committees are merely the creatures of the House and are an extension of the House, and in view of the fact that—as I understand by the statement of the distinguished Resident Commissioner—there is no question he could not vote on the floor of the House, as a constitutional matter, therefore it certainly is my position, and I know that of many scholars, then to vote in a committee would raise the same constitutional question.” Id. at H8718.
Representative Foley, however, supported the constitutionality of the amendment, turning Sisk’s argument around on him:
The committees of the House of Representatives are creatures of the House of Representatives. They can be extinguished at will and created at will. It does not even require concurrence of the other body when we take such an action. Depriving members of the right to vote in a committee is fully within the power of the House, by abolishing the committee. Giving them additional rights to vote is within the power of the House by creating a new committee. The point is that the constitutional issue does not touch preliminary advisory votes which is what standing committee votes are, but only the votes which are cast in the committee of the Whole or the full House. These votes can be cast only by Members of Congress.
Id.
After some further discussion, mostly directed at praising Puerto Rico rather than the constitutional issue, the amendment was agreed to. Id. at H8721. This represented the first time that the House endorsed delegate voting in committee.
Conclusion and Analysis
One important takeaway from this history is that the House has never determined that delegates have a special constitutional status entitling them to either serve or vote on a committee. As far as I know, no one has even argued for such a proposition, and it is not clear what constitutional text or principle could be used if one wanted to make that argument.
The relevant question then is whether the Constitution forbids the House from permitting non-members, whether delegates or anyone else, from serving or voting on committees. To some, such as the authors of the 1932 report, it has seemed self-evident that only members of the House can be true members of its standing committees. But while it is true that neither the House nor Senate have allowed outsiders to serve on their standing committees, it is not obvious that this is a constitutionally mandated rule.
To the extent that legislative committees merely collect information and issue reports and recommendations to their legislative body, it is difficult to see why they must be composed solely of members of the body. Congress frequently has established congressional commissions composed of members and non-members (or just the latter) to perform just this function.
What about Farnsworth’s concern that the actions of House standing committees have privileged status under the rules? This would be a concern if the Constitution forbade Congress from giving privileged status to the views of non-members, but where does it say that? As a constitutional matter, the House presumably could refer bills to the Justice Department, rather than (or in addition) to the Judiciary Committee, and accord privileged status to the former’s recommendations. See Michel v. Anderson, 14 F.3d 623, 632 (D.C. Cir. 1994) (pointing out that fast-track authority gives the President’s trade proposals privileged status in both houses). The privilege enjoyed by a House committee derives not from the status of its members, but from rules established by the House pursuant to the Rules of Proceedings Clause.
Admittedly it is not easy to draw a clear line between the “preliminary advisory votes” of a House committee, as Foley put it, and those votes that must be taken by the House itself. However, the House itself necessarily draws this distinction when it establishes a committee. As Foley suggests, no member has the right to be on a committee and, in fact, most members are excluded from the decisions made by any particular committee. Thus, by definition any decision that is delegated to a committee is one that need not be made by the House and thus need not be made, as a constitutional matter, by the members of the House.
So while the matter is not free from doubt and one wishes that it had given the constitutional issues more serious consideration in 1970, I think the House was correct in concluding that delegates or other non-members are constitutionally permitted to serve and vote on its standing committees. A caveat is required, though, with respect to a committee’s exercise of powers that are quasi-judicial and/or immediately affect the rights of third parties (e.g., those relating to contempt, ethics, elections and impeachment). A delegate’s role in the exercise of these powers may raise different constitutional considerations than his or her participation in the committee’s purely legislative activities.
For a moment, I was hoping you were analyzing staff designees on committees. This was very interesting.