Next week the House will consider Democrat legislation introduced today to allow House delegates from U.S. territories to vote on bills on the House floor. There is just one problem: it is unconstituional for delegates to vote in Congress. The most obnoxious part about this whole thing is that the Democrats tried to do this the last time the held the majority too...From The New York Times, Dec. 29, 1992:
From the Chicago Tribune, Dec. 30, 1992Have the House Democrats No Shame?
House Democrats have just awarded themselves five more votes. Unfazed by the crying need for Congressional reform, the Democratic caucus proposes to let non-voting delegates vote on the House floor. All five are, of course, Democrats.
Embarrassed by criticism of their greedy grab, the Democrats may try to water it down when the new Congress meets to adopt rules. But that's no answer. This maneuver is nothing but shameless political tyranny.
The Constitution says the House shall be composed of `Members chosen . . . by the People of the several States.' Delegates aren't members, and the places they represent--the District of Columbia , Puerto Rico, Guam, the Virgin Islands and American Samoa --aren't states.
Delegates are already permitted to vote in House committees; now the Democrats would let them vote in the Committee of the Whole. That's when the whole House sits as a `committee' and does most of its work on legislation.
The Republicans are justifiably furious, and want to take the issue to court. They have good ammunition. For example: Whatever happened to one person one vote? For the most part, each member represents about 520,000 constituents, but the Virgin Islands' delegate has only 95,000 while Puerto Rico 's has 3.5 million.
In 1970, Representative Thomas Foley--now Speaker--said `it is very clear . . . that a constitutional amendment would be required to give [delegates ] a vote in the Committee of the Whole, or in the full House.' What changed his mind? Very likely the mounting pressure to make Washington D.C. a state. Failing to deliver on statehood, the Democrats offer a half-measure that gives the D.C. delegate more clout--and gives the other four delegates the same because it would be politically awkward to leave them out.
All of which adds up to an outrageous power play, as if an 80-plus majority weren't enough for absolute control. It is a distressing sign that the leadership hasn't the slightest clue that people are fed up with Washington 's business as usual.
From USA Today, Jan. 4, 1993The Democrats' Greedy Power Grab
American voters trimmed the sails of the Democratic congressional leadership just a bit last month, reducing the party's House majority by 10 votes. Now the Democrats have concocted a little scheme to cut their losses in half.
The Democrats have given preliminary approval to rules changes that would give almost complete voting privileges to five congressional delegates who represent the District of Columbia and the territories of Guam , American Sam oa , the Virgin Islands and Puerto Rico . The five are Democrats.
This amounts to a blatant end-run around the Constitution, which allows full voting status only to the representatives of the states. The delegates are accorded floor privileges and allowed to vote in committees. But under the rules change, the provision for committee voting privileges would be extended to the Committee of the Whole, under which most substantive business of the entire House is conducted.
This is a power grab and a disservice to government. While it boosts Democratic congressional strength, it also damages the party's image and some of its long-term interests. It would be a setback for the laudable goal of establishing statehood for the District of Columbia through a constitutional amendment.
Republican opponents argue that the campaign for statehood has little to do with the right of D.C. residents to congressional representation and much to do with expanding the political muscle of the Democratic Party. When the Democrats stage such a messy show as this one on the delegates' voting rights, they lend credence to the GOP argument.
Some Democrats have begun to realize they're sitting on a public-relations disaster. They hope to soften the impact with an amendment that would limit the influence of the delegates' votes. If the delegates provided the difference in the outcome of any matter before the Committee of the Whole, the matter would be automatically sent to the House floor for another vote--in which the delegates couldn't participate.
That is a silly, convoluted and wholly unnecessary procedure. The Democrats' alternative plan, in effect, would subvert the Constitution to give the territorial delegates the power to vote, but guarantee that any time their votes really count . . . they won't be counted.
The Democrats can't finesse their way around this one. If they include the delegate voting rights next week when they take up the package of House rules that will govern the new Congress, they will seriously damage the cause of D.C. statehood and their own standing in the eyes of the public.
When they reconvene next week, the Democratic majority would be wise to drop the clumsy power grab and worry about the real business of the nation.
From the Washington Times, Dec. 16, 1992:Wrong Way To Grant Voting Rights in Congress
Our view--The Democrats' first order of business is a power grab that short-circuits the Constitution.
House Democrats, always eager to grab more power, are expected to open Congress's new year Tuesday by making an end run around the Constitution.
After losing 10 seats in November, the Democrats have hatched a clever scheme to cut their losses.
The ploy calls for allowing five non-voting delegates --all Democrats--to vote in the Committee of the Whole, a meeting of the entire House where important bills can be debated and amended quickly, though not passed.
The Democrats claim noble intentions--new power for people in the District of Columbia and the territories of American Samoa , Guam, the U.S. Virgin Islands and Puerto Rico , which the delegates represent.
In fact, the Democrats are stretching the Constitution beyond its limits and inviting further partisan abuse.
The Constitution confines House membership to persons chosen by `the people of the various states.' Delegates aren't members, and they don't represent states.
The delegates already have enough power--a right to vote in committees on which they serve. Most of them have little claim to greater clout.
The average House member represents about 519,000 people, but American Samoa has only 43,000 citizens, Guam 140,000 and the Virgin Islands 102,000.
And since residents of the territories pay no taxes to the U.S. Treasury, their voting status would mean representation without taxation, a curious and unjust twist on American history.
There are exceptions, District of Columbia residents pay $1.5 billion yearly in federal taxes. And Puerto Rico has 3.5 million people.
But if they want full voting rights, they should play by the Constitution's rules.
One way is to seek statehood. The other is to amend the Constitution to give delegates votes, a course once suggest by House Speaker Thomas Foley.
Neither is easily achieved. But rules exist for a reason--to prevent abuse. When the full House votes Tuesday, it should stick to the Constitution.
From the Washington Post, December 17, 1992:Fodder for the Trough of Power (BY BRUCE FEIN)
On Dec. 8, 1992, the Democratic Caucus of the House of Representatives approved a proposed change in the House Rules that would empower delegates from the District of Columbia , the Virgin Islands, American Sam oa , and Guam and the resident commissioner from Puerto Rico to vote in the Committee of the Whole.
Next Jan. 5, the House will vote on the rule change. The measure is expected to pass via a Democrat steamroller, since all the delegates and the resident commissioner are Democrats. That shameless impending power grab, however, is blatantly unconstitutional, a conclusion conceded by House Speaker Thomas Foley, Washington Democrat, in 1970.
Article I, Section 1 of the Constitution entrusts all federal `legislative' power to the Senate and House of Representatives. Article 1, Section 2 confines membership in the House to persons chosen biannually `by the People of the several states.' In other words, the legislative powers of the House may be exercised only by persons elected by voters in the various states, which excludes persons representing territories of the United States, the District of Columbia, the president of the United States, foreign governments, the Vatican, or otherwise.
Under House Rules, the Committee of the Whole manifestly exercises legislative power. For example, if it declines to report an amendment to the House, that decision cannot be overruled by the House. Additionally, amendments to amendments considered in the Committee of the Whole are not separately reported to the House. If that committee defeats a motion to rise and report a general appropriation bill after its reading for amendment, then a limitation amendment is permitted in the House. If such a motion is agreed to in the Committee of the Whole, the House cannot consider a limitation amendment.
The Committee of the Whole further votes on appeals of certain procedural rulings of the Chair that could change a bill yet would be shielded from review by the House.
In sum, voting in the Committee of the Whole epitomizes the exercise of legislative power because of its immediate and direct impact on the enactment of laws. That conclusion is reinforced by Article I, Section 6 of the Constitution--the so-called `speech or debate clause.' It provides legal immunity for Members of Congress `for any speech or debate in either house.' The U.S. Supreme Court declared in Doe vs. McMillan (1973) that the immunity `reaches any conduct within the sphere of legislative activity.' That sphere, the high court had elaborated in Gravel v. U.S. (1972), includes conduct that is `an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage of rejection of proposed legislation.'
If House Members act within the sphere of legislative activity when voting in the Committee of the Whole, then the same must be true regarding any others who cast votes in that forum, including delegates and resident commissioners. Votes cast by the latter, however, should not be counted because they derogate from the Constitution's exclusive assignment of federal legislative power to elected representatives from the several states. That conclusion was self-evident to Speaker Foley on Sept. 15, 1970, when the House was considering a proposal to confer the vote on the resident commissioner from Puerto Rico in standing committees. Mr. Foley categorically lectured: `Now it is very clear . . . that a constitutional amendment would be required to give the Resident Commissioner a vote in the Committee of the Whole or the full House.'
Congress, of course, may delegate legislative power to the executive branch or independent agencies, but only if it articulates reasonably specific standards to confine the discretion of the recipients of the power. Thus, the Supreme Court has invalidated a delegation to the executive lacking standards for its exercise, Schecter Poultry vs. U.S. (1935), but has upheld delegations that provide policy, guidance for the recipients, e.g., U.S. vs. Rock Royal Co-operatives (1939). The delegation doctrine cannot save the impending House rule change, however, because it leaves unfettered the voting discretion of the delegates and resident commissioner.
The chief arguments favoring the constitutionality of the rule change are feeble. It is said that since the Constitution does not expressly limit the substance of committee rules, then the House is free of any restraints so long as the full House is required to approve any legislative measures. But Article 1, Sections 1 and 2 expressly confine the exercise of any legislative power, preliminary or final, to members of Congress. There are no exceptions. Further, the argument exalts form over substance. There is no gainsaying that votes in the Committee of the Whole and other committees directly affect the substance of legislation. Indeed, that is the reason why that opportunity to vote is craved by the delegates and resident commissioner.
Manipulating committee voting rights to circumvent the Constitution's exclusive assignment of legislative power to Representatives is admittedly clever. But as the Supreme Court taught in Terry vs. Adams (1953), sophisticated evasions of the Constitution are as void as the simpleminded. The high court held unconstitutional the Texas Jaybird Democratic Association's exclusion of blacks from its primaries. Although the Association was simply a private organization with no recognized status under state law, its primaries, de facto, dictated the general election victor. The Association was, in effect, the State, the court reasoned, and thus was equally restrained by the 15th Amendment.
To accept the sweeping constitutional arguments of the rule's proponents would concede the power of a House majority to emasculate the legislative power of Representatives. The arguments place no limits on the number of non-Members who could vote in the Committee of the Whole under a House rule. That number, for instance, might reach 1,000. Additionally, the arguments would authorize a rule permitting the Speaker to endow family members and relatives, cronies, campaign contributors and representatives of foreign governments or political parties with committee voting rights. They would also permit a rule prohibiting a floor vote on a House bill that would override a District of Columbia city ordinance without the consent of the District of Columbia delegate. There is no constitutional text or purpose, however, that would justify such vast dilutions of the legislative powers of the elected Representatives of the people of the several states.
At present, House rules permit delegates and the resident commissioner to vote in standing committees, which exercise legislative power similar to that of the Committee of the Whole. Those voting privileges are thus unconstitutional, and should be challenged in federal court along with the impending Jan. 5 rule change regarding the Committee of the Whole. To avoid any speech or debate clause difficulties, the lawsuit should seek an injunction only against delegates and the resident commissioner, who are excluded from the protection of the clause.
Finley Peter Dunne would have sardonically quipped about this shameless abuse of power by House Democrats, `What's the Constitution between friends?'
From the Washington Post, Dec. 20, 1992:Power Grab in the House BY GEORGE F. WILL
No wide-awake American will be startled by redundant evidence that power corrupts. Still, there is something notably brassy about what Speaker Tom Foley and his flock of lock-step House Democrats--another herd of independent minds--have decided to do regarding the five delegates to the House of Representatives from Guam , American Samoa , the U.S. Virgin Islands, Puerto Rico and the District of Columbia .
Most Americans have better things to do than monitor decisions of the House Democratic caucus, so most Americans do not know that their representation in the House is soon to be diluted. Democrats have decided to use their control of the House to give those five delegates --all Democrats, of course--the right to vote on the floor when the House is functioning as a `Committee of the Whole,' in which mode most significant decisions are taken.
Pending an appeal to the Supreme Court, the Constitution is a mere parchment barrier to such majoritarian abuse. Article I, Section Two uses the word `state' seven times in referring to the only entity from which members of the House may be chosen. But now House Democrats have decided they can use control of House rules to confer virtually full voting privileges on those five delegates .
Welcome to the 1990s, a `Decade of Greed' in the Democrats' style. There is greed for power as well as money, and evidently an 82-seat advantage in the House is not enough for the Democrats.
Roll Call is the feisty newspaper that covers Congress and can be called, somewhat oxymoronically, the conscience of Capitol Hill. It knows abuse of power when it sees it and sees it in the Democrats' `outrageous behavior' and `power grab' regarding the delegates .
Roll Call notes that in November Democrats lost 10 House seats but in December decided to seize half that number of new seats without consulting any voters--other than themselves, in their caucus. Henceforth, in the Committee of the Whole--which as Roll Call rightly says `is where the important stuff gets done, except the final passage of a bill'--the 47,000 people of American Sam oa, who do not pay income taxes, will have as much say as 800,000 Montanans about raising taxes and spending the revenues. Someone should explain to Sam oans--and Democrats--the principle `No representation without taxation.' The average congressional district has more than 500,000 residents. The U.S. Virgin Islands have 102,000; Guam has 133,000. Democrats suddenly have a, well, relaxed attitude about the hitherto sacred `one man, one vote' rule.
Roll Call, unable to contain its sarcasm (and unable to stop giving Democrats ideas for more mischief), says Puerto Rico, with 3.5 million residents and just one delegate, is getting gypped: `If Democrats became truly creative, they could divide Puerto Rico up into seven delegate districts, giving each a vote,' or they could give a delegate to each of the three U.S. Virgin Islands, or to the four quadrants of the District of Columbia.
The Congressional Research Service was asked by its employers to examine the constitutionality of the sort of decision the Democratic caucus has vowed to take when Congress convenes. The CRS came up with a remarkably mushy analysis affirming the propriety of its employers' desire. CRS does so in language that would be laughable were the Constitution not being trashed. The analysis concludes with this tortured locution:
`* * *[A]llowing a delegate to vote in the Committee of the Whole is apparently consistent with present Congressional interpretation of its constitutional authority.'
That is: Doing what the Democratic majority is determined to do is `apparently' compatible with what the Democratic majority says it has authority to do.
For perspective on the arrogance and tendentiousness of today's rulers of Congress, consider a change from 22 years ago.
On Sept. 15, 1970, the House was debating a change in its rules that would allow the resident commissioner to the United States from Puerto Rico to serve on standing committees `in the same manner as Members of the House and shall possess in such committees the same powers and privileges as the other Members.' A young congressman then in his third term said he supported that measure, even though `we clearly cannot give him a vote in the House.'
Committee service, said this congressman, is one thing, and a much lesser thing, than voting on the House floor. Committees are mere creatures of the House, not of the Constitution, and `can be extinguished at will and created at will', without even the concurrence of the Senate.
Furthermore, said this congressman, service on committees involves only `preliminary advisory votes.' Therefore such service does not involve a constitutional issue, as would votes cast in the Committee of the Whole or the full House. And, said this same congressman, `It is very clear, as the resident commissioner has said, that a constitutional amendment would be required to give the resident commissioner a vote in the Committee of the Whole of the full House.'
Thus spoke Tom Foley, before unbridled power made him more flexible and casual about his convictions concerning the Constitution.
From the Washington Post, December 29, 1992:Foley on a D.C. Tightrope BY DAVID S. BRODER
Early next month when Congress reconvenes, if all goes according to plan, the Democrats who control the House of Representatives will vote themselves five extra votes on the floor of the House. They will do that by amending the rule to allow the delegates from the District of Columbia, American Sam oa, Guam and the Virgin Islands and the resident commissioner from Puerto Rico, all of whom happen to be Democrats, to vote for the first time when the House is sitting as `the committee of the whole.'
Most of the time the House is in session it is sitting as `the committee of the whole.' Custom and convenience dictate that's where virtually all debate and amending of legislation take place. So this proposal would give the five delegates parity with the 435 members elected from the states on all but the final votes on each piece of legislation.
Naturally, the Republicans are screaming foul and claiming that the Democrats are attempting a power play that would, at a stroke, wipe out half the 10-seat gain the GOP scored in last month's House elections. They are making enough of a racket that Speaker of the House Thomas S. Foley (D-Wash.) is showing some nervousness about attempting to ram the plan through on opening day. `The issue will be revisited,' his spokesman, Jeffrey Biggs, told me when I asked about Foley's reaction to a letter of protest he had received from Minority Leader Robert H. Michel (R-Ill.).
For those of us on the sidelines, without a partisan horse to ride, the issue is intriguing both substantively and politically. It sheds light on a largely unexamined corner of the Constitution and reveals much about the tensions on Capitol Hill awaiting President-elect Clinton and his administration.
The move to get floor votes for the delegates began with Eleanor Holmes Norton, the highly capable lawyer who represents the District of Columbia in Congress. For many years, the District's and the territories' delegates have been allowed to vote in House committees, where legislation is shaped before being sent to the floor, in a legal memo last September, Norton argued that law and equity supported extending the same privilege to `the committee of the whole,' i.e., the House floor. She argued that was especially true for the District, whose citizens, she noted, now `are subject to every obligation of citizenship--most notably federal taxation--but remain barred from sending voting representatives to Congress.'
Foley and the other House Democratic leaders agreed to Norton's plea for the District and decided that the four territories should be given the same status. The decision was ratified early this month in the House Democratic caucus--a move which brought the Republicans up in protest.
Norton told me in an interview the other day that `Republicans are making it a political issue when there is no legal or constitutional issue.' But it is not quite that simple. Her brief supports the case for floor voting by delegates , but several authorities are not convinced.
A Congressional Research Service memo last November found that such a rules change might controvert an 1817 statute providing territorial delegates with `the right of debating but not of voting.' As to the Constitution, the same memo said that `although delegates have had the authority to participate in the legislative process for years, no court appears to have addressed the question as to the constitutional implications of these practices.'
When House parliamentarian William Holmes Brown was asked for his opinion last October, he said. `The proposal has been discussed before, and several basic arguments against giving delegates this authority remain persuasive to me.'
Somewhat to Foley's embarrassment, the research on legal precedents turned up this comment from him during the 1970 debate on letting Puerto Rico's resident commissioner vote in House committees: `Now it is very clear, as the resident commissioner has said, that a constitutional amendment would be required to give the resident commissioner a vote in the committee of the whole or the full House.'
Asked about the comment this week, Foley's spokesman Biggs said simply; `He's changed his mind.'
Republicans make other arguments. The one-man-one-vote principle is basic to the apportionment of House seats, they note. But while the average member of the House represents 519,235 people, American Sam oa 's delegate has only 32,395 constituents, Virgin Islands' 95,214, and Guam 's 105,816. Residents of those territories and Puerto Rico pay taxes into territorial treasuries, but not to the U.S. Treasury.
With Clinton hoping for a smooth start next month and even some bi-partisan support for his key economic measures, Foley is not eager for a knockdown fight with the Republicans about this issue. He knows some of his own moderate and conservative Democrats have qualms about the move. But he is under pressure from Norton and other liberals not to back down.
The search is on for a compromise but, as with much bigger issues that will come along after Clinton 's Inaugural the speaker is walking a tightrope.
It was wrong in 1992 and it is wrong now. It is amazing that the Democrats failed to learn the lessons of 1994...this sort of thing gets remembered by the American People. The American People remembered the Democrat treachery in 1994...will they remembere again in 2008? Will the 527 Media play along this time???Norton Proposal Under Fire BY KENT JENKINS JR.
House Democrats are having second thoughts about a proposal to give Del. Eleanor Holmes Norton (D-D.C.) a vote on the House floor, and several said yesterday that the plan could face a last-minute challenge when Congress convenes next week.
Several senior Democrats said opposition to the proposal has been brewing since it was overwhelmingly approved by the House's Democratic majority three weeks ago, adding that some members have expressed a desire to overturn the decision.
The plan is expected to be the subject of additional debate when Congress begins its session next Tuesday because some Democrats have begun to question whether it would unconstitutionally elevate the status of people who are not full-fledged representatives.
`This is very controversial with some members,' said Rep. Charles W. Stenholm (D-Tex.), who heads the House's Conservative Democratic Forum. `It was a sleeper issue when it came through, and nobody was focusing on it. There's been a lot of concern since it was passed * * *. It could be explosive.'
Jeffrey Biggs, press secretary to House Speaker Thomas S. Foley ( Wash. ), said that House Democrats `are going to revisit' the issue before Congress convenes and that `some members of the caucus may have political concerns' about it, Norton conceded that the plan `is not a done deal.'
The proposal would give the District's clout on Capitol Hill a historic boost by granting its delegate a vote on the House floor for the first time. The plan also would give floor votes to the resident commissioner from Puerto Rico and to delegates from Guam , American Sam oa and the Virgin Islands .
The delegates and the resident commissioner have been allowed to vote only in committee. The Constitution restricts full House membership to representatives of the states.
But Norton put forward a proposal that would allow the delegates to vote on virtually all substantive matters by exploiting an arcane parliamentary device called the `committee of the whole.' Norton, a former law professor, argued that if the delegates could vote in smaller committees, they could vote in the most important committee as well.
The House does most of its important business while sitting as the committee of the whole and rarely alters legislation when it subsequently votes on final passage.
All the delegates and the resident commissioner are Democrats, and House Republicans have expressed strong opposition to Norton's idea.
The GOP picked up 10 House seats in the November election. But giving five additional Democrats a vote on the House floor would cut into that gain.
Some House members also have argued that allowing the delegates to vote on virtually all important matters violates the Constitution by making the delegates the equivalent of full House members.
To address those constitutional concerns, Democrats plan to make one change that would limit the power conferred on Norton and the other four. under the amendment, if those five cast decisive votes on any matter in the committee of the whole, their votes, in effect, would not count. Norton supports the change, because it probably would apply to no more than one or two votes a year.
Several House members are considering amendments that would weaken the proposal further. Rep. David E. Skaggs (D-Colo.) said he might introduce a plan that would give Norton, but not the other four, a vote on the House floor.
Another proposal being discussed by the House leadership would give Republicans a better chance to kill the idea altogether.
Norton's plan is part of a package of House rules approved by the Democratic majority, and all Democrats customarily vote for the entire package.But Rep. Steny H. Hoyer (D-Md.), chairman of the House Democratic Caucus, said House leaders have considered separating the floor-vote idea from the package because it is so controversial.
If Norton's plan goes before the full House separately, some Democrats could join with Republicans to defeat it. Hoyer said the House leaders have not decided how to handle the issue.
Norton said yesterday that although opposition to her proposal remains, she is still confident it will be approved. `I think we have made our case, and in the end we will prevail,' Norton said.
Hugh was right: If it's not close, they can't cheat...
