Voting and Quorum Procedures in the House of Representatives

Summary

The Constitution requires that a quorum, defined as a majority of the House, be present on the floor when the House transacts business. The House, however, always presumes that a quorum is present unless and until its absence is demonstrated conclusively. The rules of the House strictly limit the occasions on which a Representative may make a point of order that a quorum is not present. In current practice, Members usually make such a point of order only when a vote is taking place. If a majority of the Members fails to respond to a quorum call or participate in an electronically recorded vote conducted in the House, the House must adjourn or take steps necessary to secure the attendance of enough Members to constitute a quorum.

Questions to be decided on the floor are usually first put to a voice vote. Such votes—in which those present on the floor respond by answering together "aye" (after the presiding officer asks how many are in favor) or "no" (after the presiding officer asks how many are opposed)—are very common in the House. For such votes, no public record shows how individual Members voted. In practice, such votes might be taken with few Members present on the floor. Before the final result of a voice vote is announced, however, any Member may demand a division vote or seek an electronically recorded vote. Members' positions on these votes are publicly recorded.

During a vote using the House's electronic voting system, Members have at least 15 minutes to come to the floor and cast their votes. The time for a vote by electronic device immediately following another vote by electronic device can be reduced to five minutes if the Speaker determines that Members will have an adequate opportunity to vote. The Speaker also has the authority to postpone record votes on certain questions identified in House Rules, including to approve a bill or resolution and to suspend the rules to pass a bill. Most postponed votes must be scheduled within two additional legislative days.

The procedures for securing a vote by electronic device differ based on whether the House is meeting as the House proper or instead in the Committee of the Whole (a parliamentary forum that the House, in current practice, uses to consider amendments to legislation). In the House proper, an electronic vote can be secured in one of three ways. First, one-fifth of the number of Members present on the floor can invoke their constitutional right to demand "the yeas and nays." Second, one-fifth of a quorum (usually 44 Members), can demand a "recorded vote" under House rules. Third, if a quorum is not present, a Member can make a point of order that a quorum is not present and object to a voice vote on the grounds that a quorum is not present. Most often, after such a point of order is made, the Speaker postpones further proceedings on the question being voted on. When the House resumes consideration of the question at a time designated by the Speaker, a quorum is typically present, and an electronic vote can be secured using one of the other two methods. (If, instead, the Speaker sustained a point of order against a voice vote on the grounds that a quorum was not present, an electronic vote would take place automatically to decide the question and establish the presence of a quorum.) To be clear, these three procedures result in votes that are indistinguishable from each other in how they are conducted; they differ in how they are ordered.

When instead the House is meeting in the Committee of the Whole, 25 members can secure an electronic vote on a pending amendment or motion. The chair has the authority to postpone a request for a recorded vote on an amendment, and usually does. This allows the request to be renewed at a time the floor is crowded and a member can likely receive the support of a sufficient second to take the vote by electronic device. In addition, if a quorum (100 members of the Committee of the Whole) is not present, a member first can require that a quorum call take place before the chair counts to determine if there is sufficient support to order an electronically recorded vote. This option is less frequently utilized, and proceedings can be postponed in this case as well.

In order to prepare for a catastrophic event, in 2005 the House created a procedure to determine a how many Members constitute a quorum when a large number are missing, incapacitated, or incapable of attending House proceedings. The House must hold two lengthy quorum calls and receive a report from the Sergeant at Arms before a quorum will be determined based on the "provisional number of the House." At the time the rule was approved, a Member raised a point of order that the provisional quorum mechanism was unconstitutional. The Speaker does not rule on constitutional questions; instead, the House determines the constitutionality of a proposition by voting to consider it or by adopting it. In this case, a question of consideration was raised, and the House voted to consider the resolution. Thereafter, the resolution was agreed to.

Introduction

The rules and practices of the House of Representatives governing quorums and voting on the floor are closely intertwined, and derive from two provisions of Article I of the Constitution. Regarding quorums, clause 1 of Section 5 states in part that "a Majority of each [House] shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide." Regarding voting, clause 3 of the same section provides in part that "the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those present, be entered on the Journal."

There are three ways to secure an electronic vote in the House. According to the former Parliamentarian¹¹

Clause 6(b) goes on to provide in part

If those voting on the question and those who are present and decline to vote together make a majority of the House, the Speaker shall declare that a quorum is constituted, and the pending question shall be decided as the requisite majority of those voting shall have determined. Thereupon further proceedings under the call shall be considered as dispensed with.

When the Speaker announces the result of a voice vote or a division vote in the House, a Member may take advantage of the rules just quoted by rising and saying:¹³

Mr./Madam Speaker, I object to the vote on the ground that a quorum is not present and I make a point of order that a quorum is not present.

The Member making this statement is invoking the constitutional quorum requirement and challenging the validity of the voice or division vote by asserting that it does not comply with the Constitution because a quorum of the House was not present at the time.

In response, the Speaker counts to determine whether, in fact, a quorum (218 Members if there is no more than one vacancy) is present on the floor. If a quorum is present, the Speaker overrules the point of order. If the Representative still wants an electronically recorded vote, he or she may ask for the yeas and nays, and hope that one-fifth of the Members present rise to indicate their support for the request. Alternatively, the Member may ask for a recorded vote, invoking clause 1(b) of Rule XX which states, "If a Member, Delegate, or Resident Commissioner requests a recorded vote, and that request is supported by at least one-fifth of a quorum, the vote shall be taken by electronic device" unless the Speaker orders otherwise.

Notice that it takes 44 Members (one-fifth of a quorum) to order a recorded vote under this rule, compared to one-fifth of those present to order the yeas-and-nays. When a quorum is present on the floor, it may be easier to obtain sufficient support for a recorded vote than for a yea-and-nay vote, because the number of Members present will probably exceed the minimal quorum of 218 (in which case one-fifth of the number present will exceed 44). In either event, the vote will be taken by using the electronic voting system, regardless of whether it is technically a yea-and-nay vote or a recorded vote ordered under clause 1(b) of Rule XX.

If the Speaker discovers that a quorum is not present, the Speaker announces that fact and also states that, under clause 6(a) of Rule XX, an electronic vote is ordered on the question before the House. This vote accomplishes two purposes at once. First, it decides the question (for example, "Will a bill pass?"). Second, at the same time, it demonstrates the presence of a quorum (as Members use the 15 or more minutes given them to come to the floor and vote). If a quorum participates in the vote, the presence of a quorum is established, and the House can continue to transact business. (It is rarely necessary for the Sergeant at Arms to "bring in absent Members," because Members usually want to be recorded on all electronic votes.)

More often than not, however, the Speaker does not respond to such a point of order by counting for a quorum but instead by postponing further proceedings. As discussed fully in the section below, the Speaker has the authority to postpone votes on many questions under clause 8(a)(1) of Rule XX. When the Speaker postpones a vote after an objection to the lack of a quorum, the point of order is considered withdrawn. This is because the Speaker is effectively no longer putting the question to a vote, and it is therefore not in order to make a point of order that a quorum is not present. When proceedings are resumed on the question, the Speaker will put the question again, first by voice vote. In practice, the Speaker resumes proceedings at a time that a quorum is present on the floor. A Member, Delegate, or Resident Commissioner can, at that time, request either a recorded vote or a yea-and-nay vote, and if there is a sufficient second, the vote will be taken by electronic device.

The constitutional right to demand "the Yeas and Nays" applies to both the House and the Senate, but it does not extend to the Committee of the Whole. There is no constitutional right for one-fifth of the Members present to insist on a vote in Committee of the Whole by call of the roll or by use of the electronic voting system. In fact, before 1970, the votes of individual Members were never recorded on any question that was decided in Committee of the Whole, including all the votes on amendments to bills.

As part of the same 1970 Legislative Reorganization Act that authorized the electronic voting system, the House amended its rules to provide for recorded votes in Committee of the Whole. Especially with the installation of the new voting system, these votes became the functional equivalent of yea-and-nay votes in the House. However, the requirements and procedures for securing a record vote in Committee of the Whole are somewhat different from those used to obtain comparable votes in the House, even though all these votes are almost always conducted by use of the same electronic system.

Under clause 6(e) of House Rule XVIII, "In the Committee of the Whole House on the state of the Union, the chair shall order a recorded vote on a request supported by at least 25 Members, Delegates, and the Resident Commissioner." So before the final result of a voice or division vote is announced, all a Member need do is rise and request a recorded vote—so long as he or she is confident that at least 24 others will rise to support the request. Even when the floor is not crowded, Members typically request a recorded vote on an amendment in this fashion because the chair can postpone the request for a recorded vote on an amendment. The chair is likely to do this and resume proceedings at a time when more Members are present and a sufficient second is likely to support the request.

Another option for Members if a quorum is not present is to state

Mr./Madam Chair, I request a recorded vote and, pending that, I make a point of order that a quorum is not present.

If the chair orders a quorum call instead of postponing the vote, members of the Committee of the Whole then come to the floor to record their presence, giving the member who is seeking a recorded vote the chance to convince 24 or more allies to remain on the floor. When the quorum call is concluded and the presence of a quorum has been established, the chair returns to the pending request for a recorded vote. At this time, presumably, there are at least 25 members of the Committee of the Whole standing to support this request; if so, a recorded vote is ordered.

The key difference between these steps and those that occur in the House proper is that, under the rules, in the House, the quorum call and the electronically recorded vote are combined; the outcome of the automatic record vote demonstrates the presence of a quorum. In Committee of the Whole, on the other hand, there may be a quorum call that is soon followed by a recorded vote on the amendment or motion in question. In current practice, however, typically the chair of the Committee of the Whole postpones further proceedings when a point of no quorum is made, akin to the case when a point of no quorum is made in the House.

When an electronic vote or quorum call is ordered, either in the House or in Committee of the Whole, Representatives usually have at least 15 minutes to reach the floor and vote or record their presence. Clause 2(a) of Rule XX so provides "the minimum time for a record vote or quorum call by electronic device shall be 15 minutes."

Note that 15 minutes is "the minimum time"; it is not a fixed or maximum time. In practice, the time allowed is often extended to allow as many Members as possible to be recorded. Although the Speaker or chair of the Committee of the Whole may close a vote at any time after the 15 minutes have elapsed, he or she will sometimes allow at least several more minutes for any Members who are en route to the floor. For this reason, electronic votes frequently consume 20 minutes or longer.

The chair's discretion to decide how long to leave a vote open after 15 minutes has elapsed could be used to the majority party's advantage. In the case of a very close vote, the Speaker or chair may close the vote after 15 minutes as soon as his or her side enjoys a majority, especially when the outcome might be reversed if the vote were left open long enough for other Members to reach the floor. However, Speakers have announced that they would not close electronic votes when Members are in the chamber seeking to be recorded. Alternatively, the chair could leave a vote open for much more than 15 minutes if his or her side is losing a close vote and more time is needed to reverse that outcome by persuading Members to change their votes or by waiting for more Members to arrive and vote.

During an electronic vote or quorum call, Members may change their votes or record their presence at any time before the chair announces the result. However, a Member's vote or presence may not be recorded thereafter. The House Parliamentarian states, "Requests to correct the Congressional Record and the Journal on votes taken by electronic device are not entertained, it being the responsibility of each Member to utilize the safeguards of electronic system and to verify the proper recording of his vote." Also, "Following the announcement of the result of a call of the House conducted by electronic device ..., the Speaker declined to entertain requests by Members to record their presence."¹⁴ A Member who misses an electronic vote may announce from the floor how he or she would have voted and, by unanimous consent, have that statement inserted in the Record in proximity to the vote tally. Alternatively, Members can submit a signed statement stating how they would have voted, and if it is submitted the same day as the vote, it will appear in the Congressional Record right after the vote result in a distinctive type.¹⁵ Whether announced on the floor or submitted in writing, the statements can include explanations for why the Member was unavoidably detained.

Members may be allowed less than 15 minutes to vote by electronic device when one such vote follows shortly after another or when an electronically recorded vote immediately follows a quorum call. In such circumstances, Members do not need 15 minutes to participate in the second or subsequent vote because they are already on the floor.

1. on any question that follows another vote by electronic device; and

2. on any question that follows a report from the Committee of the Whole.

Clause 8 of Rule XX gives the Speaker the discretion to defer votes on some questions when an electronic vote has been ordered or when a point of order has been made against a voice or division vote on the grounds that a quorum was not present. The Speaker's authority applies to votes on

(1) adopting a resolution or passing a bill,

(2) agreeing to a conference report or a motion to instruct conferees,

(3) agreeing to an amendment,

(4) adopting a motion to recommit a bill,

(5) adopting a motion to concur in a Senate amendment, with or without amendment,

(6) ordering the previous question on any of the questions described in (1)-(5),

(7) agreeing to the Speaker's approval of the Journal,

(8) agreeing to a motion to suspend the rules, and

(9) agreeing to a motion to reconsider or to lay on the table a motion to reconsider.

When an electronic vote is ordered on any one of these questions, the Speaker may announce that he or she is postponing the vote to a time he or she designates later on the same legislative day, in case of a Journal vote, or within two legislative days, in case of any of the other votes. The vote or votes are postponed to a certain point in the legislative schedule (for example, after disposition of another bill that is scheduled for consideration). When the House reaches that point, Members vote on the questions in the order in which the votes on them had been postponed.¹⁶ The first of these votes must be a regular 15-minute vote; before it begins, however, the Speaker may announce that each of the succeeding votes will be five-minute votes if no business intervenes.

This authority is regularly invoked when, on the same day, the House considers a series of motions to suspend the rules. If the Speaker was not able to postpone and cluster votes on these motions, there might be a series of electronic votes at no more than 40-minute intervals (the time allowed for debating each motion) on a Monday or Tuesday, when many Members are in the process of returning to Washington from their districts. The Speaker's authority under clause 8 allows votes to be scheduled later on Monday or "rolled over" until Tuesday or Wednesday, when they take place back-to-back with only the first vote in the series consuming at least 15 minutes. In similar fashion, the Speaker can postpone and cluster electronic votes that are ordered on suspension motions on Tuesdays and Wednesdays.

There are four circumstances in which the time for completing an electronic vote in Committee of the Whole may be reduced to a minimum of two minutes. They involve a vote occurring immediately after another vote or after a quorum call, or other circumstances when, in the discretion of the chair, two minutes will provide an adequate opportunity to vote.

First, clause 6(g) of Rule XVIII empowers the chair of the Committee of the Whole to postpone requests for a record votes on separate amendments to a bill until later during consideration of the bill, and also to cluster the votes on those amendments. That is, the Committee would vote on the amendments later, one right after the other. When the Committee of the Whole resumes proceedings at a time of the chair's choosing, the request for a recorded vote is made again, and a vote by electronic device will be taken if supported by a sufficient second (24 additional Members, Delegates, and the Resident Commissioner). In such cases, the chair may reduce the time for the second and each subsequent vote to no less than two minutes.

Second, if votes will occur in Committee of the Whole on two or more pending amendments, the chair may announce that there will be at least 15 minutes for the first vote but at least five minutes for each of the succeeding votes, so long as no business or debate intervenes between each vote (clause 6(f) of Rule XVIII). Suppose, for example, that a substitute for a first degree amendment has been offered. The Committee of the Whole will first vote on the substitute and then on the first degree amendment (as amended, if amended by the substitute). The chair may state that there will be a 15-minute vote on the substitute to be followed by a five-minute vote on the first degree amendment as long as no debate occurs and no other motions or amendments are offered between the two votes.

Third, if votes on amendments have been postponed, when the House resolves into the Committee of the Whole to resume proceedings, time for the votes can be reduced to two minutes if Members, Delegates, and the Resident Commissioner "would be afforded an adequate opportunity to vote." This provision of Rule XVIII, clause 6(g)(2), accounts for circumstances when, for example, the Committee of the Whole rises briefly during a series of votes. It also allows two-minute votes when amendments are postponed and scheduled for a time later in the day or the next day, perhaps after a vote series that begins with questions voted on in the House. In such a situation, a 15-minute vote might occur in the House and then, after the House resolves into the Committee of the Whole, the first amendment vote could be two minutes.

Fourth, as discussed above, a Member, Delegate, or Resident Commissioner may request a recorded vote in Committee of the Whole on an amendment and, pending that request, make a point of order that a quorum is not present. If the chair determines that a quorum is not present and orders a quorum call, he or she may also announce at that time that, if a recorded vote on the amendment is ordered after the completion of the 15-minute quorum call, the time for the amendment vote itself will be reduced to not less than two minutes (clause 6(b)(3) of Rule XVIII).

As noted above, clause 2(a) of Rule XX also provides not less than 15 minutes for Members to respond to quorum calls in the House, but this time may be reduced for quorum calls ordered in Committee of the Whole. The device is what is known informally as a "notice quorum." Clause 6(c) of Rule XVIII gives the chair the discretion to announce, before a quorum call begins, that he or she will declare that a quorum is constituted as soon as 100 members of the Committee of the Whole (which includes the Delegates and Resident Commissioner) have recorded their presence:

When ordering a quorum call in the Committee of the Whole House on the state of the Union, the Chair may announce an intention to declare that a quorum is constituted at any time during the quorum call when he determines that a quorum has appeared. If the Chair interrupts the quorum call by declaring that a quorum is constituted, proceedings under the quorum call shall be considered as vacated, and the Committee of the Whole shall continue its sitting and resume its business.

Notice quorums are now uncommon. Quorum calls in Committee of the Whole do not usually take place, because if a recorded vote is requested on an amendment, further proceedings are typically postponed until a time when a series of amendment votes is expected, and a quorum is present.

The key rule governing attempts to secure the presence of a majority of Representatives on the floor during a meeting of the House is clause 7 of Rule XX, which states

(a) The Speaker may not entertain a point of order that a quorum is not present unless a question has been put to a vote.

(b) Subject to subparagraph (c) the Speaker may recognize a Member, Delegate, or Resident Commissioner to move a call of the House at any time. When a quorum is established pursuant to a call of the House, further proceedings under the call shall be considered as dispensed with unless the Speaker recognizes for a motion to compel attendance of Members under clause 5(b).

(c) A call of the House shall not be in order after the previous question is ordered unless the Speaker determines by actual count that a quorum is not present.

Under subparagraph (a), a Member only has the right to invoke the constitutional quorum requirement when a vote is taking place. At that time, any Representative "may object to the vote on the ground that a quorum is not present and make a point of order that a quorum is not present." At any other time, the equivalent of a quorum call may take place only at the discretion of the Speaker, when he or she recognizes a Member "to move a call of the House."¹⁷ In the former case, the Speaker responds to the point of order by counting to determine whether a quorum is present. If it is, the point of order is overruled and no quorum call ensues; if it is not, the point of order is sustained, and an automatic roll call vote is ordered, taken by electronic device. In the latter case (subparagraph (b)), a Member makes a motion for a call of the House, prompting what is in effect a quorum call to secure the presence of Members, regardless of whether or not a quorum was present when it began.¹⁸

Note that the purpose of a quorum call under subparagraph (a), or a call of the House under subparagraph (b), is to secure the presence of a quorum, not to require the attendance of all the Members of the House. Subparagraph (b) provides that, once a quorum responds to a call of the House, "further proceedings under the call"—which would be efforts by the Sergeant at Arms to secure the attendance of all the remaining Members—"shall be considered as dispensed with" unless the Speaker decides to entertain a motion for that purpose. Similarly, clause 6(b) of Rule XX, quoted earlier, provides for the same "further proceedings" to be dispensed with after a quorum call pursuant to subparagraph (a).

The corresponding rule governing quorums and quorum calls in Committee of the Whole is clause 6 of Rule XVIII. It is this rule that (1) sets the quorum in Committee of the Whole at 100 Members, Delegates, and the Resident Commissioner; (2) authorizes notice quorum calls at the discretion of the chair; and (3) provides for two-minute votes on amendments following regular quorum calls, again at the chair's discretion.¹⁹

In addition, the same rule controls when a point of order that a quorum is not present can be made in Committee of the Whole. (Calls of the House are not permitted in Committee of the Whole.) In brief, the rule states that

• the chair need not permit a point of order of no quorum to be made during general debate, and
• once a quorum in Committee of the Whole has been established on any day, a point of order of no quorum may be made only when "the Chair has put the pending proposition to a vote."

In the unlikely event that a majority of the House fails either to respond to a quorum call or to participate in an electronic vote, the House's failure to comply with the constitutional quorum requirement is demonstrated.²¹ Consequently, the House cannot resume legislative business until the presence of a quorum is recorded. The House has only two options: one is to adjourn; the other is to take steps necessary to secure the attendance of a quorum. In most cases, the House can be expected to adopt the second of these options by invoking clause 5(a) of Rule XX.

This clause provides in part that, "in the absence of a quorum, a majority comprising at least 15 Members, which may include the Speaker, may compel the attendance of absent Members."²² In this instance, the House can act without a quorum being present because the constitutional provision quoted at the beginning of this report authorizes it to do so. That provision states that, in the absence of a quorum, "a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide."

The situation and options in Committee of the Whole are comparable. "Where the Chair has announced the absence of a quorum in Committee of the Whole, no further business may be conducted until a quorum is established or the Committee rises."²³ For much the same reason that the Constitution authorizes the House to adjourn without a quorum being present, clause 6(d) of House Rule XVIII states that "a quorum is not required in the Committee of the Whole House on the state of the Union for adoption of a motion that the Committee rise." However, a quorum is necessary to adopt a motion that the Committee rise and report a measure for final passage in the House.

Article I, Section 5, clause 1 of the Constitution states that "a Majority of each [House] shall constitute a Quorum to do Business." A quorum has long been defined as a majority of the whole number of the House, and the whole number of the House has long been viewed as the number of Members elected, sworn, and living. Whenever the death, resignation, disqualification, or expulsion of a Member results in a vacancy, the whole number of the House is adjusted.²⁵

In the event of a catastrophe, however, it may not be immediately known whether a Member is alive or dead, thereby making it impossible to adjust the whole number of Members. Furthermore, if a Member is incapacitated but living, or unharmed but unable to attend the proceedings of the House, he or she would still count toward the whole number used to determine a quorum. Missing, injured, and stranded Members are still "elected, sworn, and living." If many such Members are affected, and the Congress needs to act, this situation could prove problematic because it may be impossible to establish a quorum.

In order to address this issue, in 2005 the House modified clause 5 of Rule XX to prepare for a catastrophic event that leaves a large number of Members missing, incapacitated, or incapable of attending the proceedings of the House. The rule establishes a method for establishing a "provisional quorum" in the case of a catastrophic event. This method did not provide a new means for determining the whole number of the House; on the contrary, it is a method to be used provisionally until a quorum can be constituted by a majority of the whole number of the House. Under the rule, if the House is without a majority of Members elected, sworn, and living due to catastrophic circumstances, then a quorum shall be a majority of the "provisional number" of the House.

The rule requires four steps to be taken in order, and without intervening adjournment, to establish that the House is without a quorum due to catastrophic circumstances. Only after the steps described below are taken will a new number required for a quorum be determined based on the provisional number of the House. A majority of Members present may terminate the proceedings by adopting the motion to adjourn.

If the absence of a quorum is demonstrated,²⁶ then under a House rule (dating to 1789) a Member can make a motion to compel the attendance of absent Members. This motion, described in House Rule XX, clause 5(a), must first be disposed of, either favorably or unfavorably, before any other steps are taken to establish that the House is without a quorum due to catastrophic circumstances.²⁷

The motion to compel the attendance of absent Members requires a majority vote for adoption, and that majority must comprise at least 15 Members. If the motion is adopted, then the call of the House occurs through Members presenting themselves, perhaps after receiving notification from the Sergeant at Arms and having their presence recorded by the Clerk. If the motion is not adopted, either because it failed to garner support from a majority of Members present or because the majority supporting it is fewer than 15 Members, then the motion is still considered "disposed of" and the other steps necessary to establish that the House is without a quorum due to catastrophic circumstances can occur.

After disposing of the motion to compel the attendance of absent Members, the House must have a call (or series of calls) of the House over a period of 72 hours, excluding time spent in recess.²⁸ The call could be the one that was ordered by adoption of the motion to compel the attendance of absent Members. The Speaker²⁹ could also entertain a motion for a call of the House under clause 7(b) of Rule XX. However ordered, if the call failed to produce a quorum based on the existing whole number of the House after 72 hours, then the call could be closed, and additional steps to establish that the House is without a quorum due to catastrophic circumstances could be taken.

After the call of the House is closed, the Speaker, with the majority and minority leaders, can then receive from the Sergeant at Arms (or designee) a "catastrophic quorum failure report" that states that the House cannot establish a quorum because of catastrophic circumstances such as an attack, natural disaster, or contagion. According to the rule, a catastrophic quorum failure report must contain

• the number of known vacancies,
• a list of former Representatives whose seats are vacant (this list would include any known dead Representatives as well as any Representatives who resigned or who were removed by action of the House if their seats had not yet been filled),
• a list of Representatives considered incapacitated,
• a list of Representatives not incapacitated but still incapable of attending the proceedings of the House, and
• a list of Representatives not accounted for.

The Sergeant at Arms is directed by the rule to prepare the report in consultation with the Attending Physician to the Congress (or a designee), the Clerk of the House (or a designee), and public health and law enforcement officials. The Speaker, after consultation with the two party leaders, is required to announce the content of the report to the House. This announcement is not subject to appeal.

Even after the Speaker's announcement, the House is not considered to be without a quorum due to catastrophic circumstances until the completion of a second extended call of the House. This call of the House can be ordered under the procedures described in clause 5(a) of Rule XX or by a motion for the call under clause 7(b). This second call of the House, or series of calls, could be closed after 24 hours, excluding the time spent in recess, if it does not produce a majority of the whole number of the House.

If all four of these steps are completed, then the House has established that it is without a quorum due to catastrophic circumstances. A quorum for conducting business can then be determined based on the "provisional number of the House." The number of Members who respond to the 24-hour call of the House will be the provisional number of the House, and a majority of the provisional number will constitute a quorum for doing business. If Members arrive after the call of the House, the provisional number is increased accordingly. If any Member counted under the 24-hour call of the House to determine the provisional number later ceases to be a Representative due to death, resignation, or action by the House, then the provisional number of the House would also be reduced accordingly.³⁰

The catastrophic quorum failure report must be updated each legislative day; in other words, it must be updated each time the House reconvenes after an adjournment. The Speaker is required to make these updates available to the House. If at any time a sufficient number of Members arrive to constitute a quorum of the whole number of the House, then the provisional number would no longer be in effect.

Some Members expressed concern that the catastrophic quorum rule was unconstitutional. When H.Res. 5 was called up for consideration, a Representative made a constitutional point of order. The Speaker declined to entertain the constitutional point of order, citing numerous earlier precedents barring the Speaker from ruling on the constitutionality of a pending proposal.³¹ Instead, typically, the House determines for itself the constitutionality of a proposition either by voting to consider it or voting to adopt it. The Representative then raised the question of consideration, and the House by a vote of 224-192 agreed to consider H.Res. 5 and the provisions in it dealing with the new quorum procedure. Thereafter, H.Res. 5 was agreed to by a vote of 220-195. Whether an attempt will be made to challenge in court the constitutionality of the rule is not yet certain. Neither is it certain that a Member has legal standing to bring such a suit without the new quorum rule ever having been implemented.³²

In general, every Representative is expected to vote on every question, but House rules make an exception for the Speaker. Under clause 7 of Rule I, the Speaker "is not required to vote in ordinary legislative proceedings, except when such vote would be decisive or when the House is engaged in voting by ballot." Although this rule does not prevent Speakers from voting, they usually do not.

Every other Member "shall vote on each question put, unless having a direct personal or pecuniary interest in the event of such question" (Rule III, clause 1). Each Representative is expected to apply this clause to himself or herself. The House Parliamentarian observes that "it has been found impracticable to enforce the provision requiring every Member to vote."³³ Also, in recent practice, "the Speaker has held that the Member and not the Chair should determine" whether a Representative has "a direct personal or pecuniary interest" in the outcome of a vote; "the Speaker has denied the Speaker's own power to deprive a Member of the constitutional right to vote."³⁴ In the same vein, clause 10 of Rule XXIII, the Code of Official Conduct, states that a Member, Delegate, or Resident Commissioner who has been convicted of a crime for which he or she may be sentenced to two years or more in prison "should refrain" from voting in the House or in Committee of the Whole.

Voting is an individual right and responsibility that cannot be delegated or exercised by anyone else. In response to concerns about the possibility of "ghost voting," in which a Member would be recorded as having voted even when there was evidence that he or she could not have done so, the House voted in 1981 to add what is now clause 2 of Rule III:

(a) A Member may not authorize any other person to cast the vote of such Member or record the presence of such Member in the House or the Committee of the Whole House on the state of the Union.

(b) No other person may cast a Member's vote or record a Member's presence in the House or the Committee of the Whole House on the state of the Union.

All questions are to be decided on the House floor by simple majority vote unless some constitutional provision or House rule provides otherwise. A simple majority vote is defined as at least one-half-plus-one of the Members voting, provided that a quorum is present; clause 1(c) of Rule XX provides that "in case of a tie vote, a question shall be lost."

The Constitution requires a two-thirds vote of the Members voting for various purposes:

• to expel a Member,
• to override a presidential veto,
• to propose a constitutional amendment,
• to remove political disabilities (now obsolete), and
• to determine that a President remains disabled.

In addition, for other purposes House rules require the support of either two-thirds or three-fifths of the Members voting:

• Two-thirds: to agree to a motion to suspend the rules (clause 1(a) of Rule XV),
• Two-thirds: to agree to a motion to dispense with the call of the Private Calendar (clause 5(a) of Rule XV), and
• Two-thirds: to consider a special rule on the same day the Rules Committee reports it (clause 6(a) of Rule XIII).

Author Contact Information

Acknowledgments

This report was written by Stanley Bach, a former Senior Specialist in the Legislative Process.

Key Policy Staff