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GOP Blocks Efforts to Halt Change to Quorum Rule

Just before the House considered the rules package for the 109th Congress this afternoon, Rep. Brian Baird (D-Wash.) attempted to engage the chamber in a discussion about the constitutionality of a proposed quorum provision but was ultimately rebuffed by Speaker Dennis Hastert (R-Ill.) and a party-line vote.

The so-called provisional quorum rule would allow the Speaker (or his designee) to revise downward the number of Members required to conduct business to a majority of the those who present themselves after several lengthy quorum calls. Theoretically, that could be as few as two Members, or even one.

The change was designed to allow the House to function if a catastrophe was to incapacitate large numbers of lawmakers, but it is written in such a way as to allow the majority party to unilaterally, if temporarily, change the number of Members constituting the House.

Baird said on the floor that the proposed rule is completely antithetical to the Constitution, as it would allow the chamber to conduct business without a majority of the whole body being present.

Quoting Article I, Section 5, Baird asserted that the Constitution allows the House to conduct business with less than a majority of the whole chamber only in two instances: when compelling the attendance of absent lawmakers or adjourning from day-to-day activity.

At least a dozen constitutional scholars spanning the ideological spectrum agree with Baird, and Reps. Jerrold Nadler (D-N.Y.) and Gene Taylor (D-Miss.) rose to support Baird’s point of order. Nadler suggested that the rule, if enacted as expected, could provoke a court challenge.

Longstanding House precedent directs that the chairman of the Committee of the Whole, who today was Hastert, does not rule on questions of constitutionality but rather puts the matter before the House to determine indirectly by voting on the measure to which the objection was made.

Rep. Dana Rohrabacher (R-Calif.) attempted to get the change stripped from the GOP rules package Monday night but failed to persuade the majority of his Republican colleagues to remove the leadership-backed provision.

Rohrabacher was the only Republican who didn’t vote to move to consideration of the rules package after Baird’s point of order, instead voting present. All but one Democrat voted against the question of consideration provoked by Baird’s objection.

“We don’t believe the House has the authority to change the quorum by a House rule,” said Rick Dykema, Rohrabacher’s chief of staff. He added that his boss believes the proposed rules change is “blatantly unconstitutional.”

Rules Chairman David Dreier (R-Calif.) has repeatedly maintained the provision’s constitutionality, stating that the framers designed the Constitution to allow for its preservation during unforeseen circumstances and that his rules change simply embodies Alexander Hamilton’s assertion that “every government ought to contain in itself the means of its own preservation.”

On the floor this afternoon, Dreier defended the change by quoting Walter Dellinger, the former acting solicitor general during the Clinton administration who testified last year before the Rules panel that such a change would not be subject to constitutional challenge. Dellinger was the only scholar who testified before the committee, however, and his views are not in line with the vast majority of scholars contacted by Roll Call.

“I don’t think you can effectively reduce the quorum by a rule,” said Steven Smith, a professor at Washington University in St. Louis, author of six books on Congress and a former Hill staffer. “Under emergency circumstances the House might get away with it, but … the quorum has to be constitutionally determined, and the House shouldn’t pretend otherwise.”

At the Rules hearing on the change in May 2004, Dellinger was also very pointed in his advice to the panel to proceed with such a rule only with bipartisan support and input. Democrats on the rules panel have complained they have been left out of the process, although Dreier has insisted that his panel has worked in a bipartisan fashion on this issue.

As it is written, the proposed rule requires only consultation with — but not the consent of — the minority party to begin the process of revising the quorum requirement after a disaster.

In his rebuttal to Baird’s floor speech, Dreier also promised to hold hearings on continuity of Congress this year and work with the Continuity of Government Commission, a joint private venture of the American Enterprise Institute and the Brookings Institution, whose report on the subject was virtually ignored in the few hearings the House held on the subject in the 108th Congress.

Rohrabacher, Baird and others insist any change to the quorum requirement be embodied in some kind of constitutional amendment giving the House the authority to conduct business with less than a majority of the whole body.

“The quorum is established in the Constitution as a majority of the House, not a majority of those who show up after four days,” Dykema added. “The proper way of changing that is to amend the Constitution to allow each house to establish a provisional quorum under what circumstances they believe are constitutionally appropriate.”

Baird asserted on the House floor that the revision, as written into the rules package, directly contradicts a constitutional mandate. “The proposed rule seeks to allow ‘a small number’ not merely to adjourn or compel attendance, as the Constitution stipulates, but to enact laws, declare war, impeach the president and fulfill all other Article I responsibilities,” he said.

Sen. John Cornyn (R-Texas) solicited more than a half-dozen letters from law professors and other experts across the ideological spectrum about the House proposal, none among those interviewed by Roll Call.

Cornyn supports a constitutional amendment to solve the complex problem of Congressional continuity if a disaster struck the legislative branch.

“While compelling justifications may sometimes salvage the constitutionality of otherwise unconstitutional acts, I do not believe they can save the House proposal,” wrote Michael Gerhardt, a law professor at the College of William & Mary. “The problem is that the proposal seeks to do nothing less than to re-define the requisite conditions for lawmaking.”

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