Two lawmakers plan to introduce a resolution this week that would rescind the portion of the House rules package enacted at the beginning of the session that allows the Speaker to unilaterally reduce the quorum requirement during an emergency.
Reps. Brian Baird (D-Wash.) and Dana Rohrabacher (R-Calif.) led a fight against the so-called provisional quorum rule at the beginning of this Congress, but ultimately failed to get it removed from the GOP-drafted rules package. The two hope that lawmakers who were unwilling to vote against the entire package over this issue will now take a fresh look at a rule they — and many constitutional scholars — believe to be flatly unconstitutional.
“I think we have a responsibility to correct this,” Baird said. “A number of Members have concerns about its constitutionality and its wisdom.”
The rule in question allows the Speaker to revise downward the number of House Members required to conduct business from a majority of those “chosen, sworn and living” to a majority of those who present themselves after several lengthy quorum calls. Theoretically, that could be as few as two Members, or even one.
The change was drafted to allow the body to function if a catastrophe was to incapacitate large numbers of lawmakers. At least a dozen scholars have taken issue with the way the rule is written, however, and the vast majority of that group thinks the notion of redefining what constitutes a quorum by a rules change doesn’t pass constitutional muster.
But if recent history is any guide, Baird and Rohrabacher are going to have a tough time getting the attention and support of a majority of their colleagues, especially given the House GOP leadership’s commitment to the rule as it is written. Rohrabacher tried unsuccessfully to get the Republican Conference to change the provision before the rules package was sent to the floor in January.
Although the provisional quorum rule is somewhat obscure, Baird said he believes lawmakers are beginning to understand the implications. He said several colleagues approached him during last week’s evacuation of the Capitol to voice encouragement for his efforts to ensure an unquestionably constitutional Congress could be in place following a devastating attack. The mass exodus turned out to be a false alarm, but Baird said that one day such an evacuation might not be followed by an all-clear signal.
The Washington lawmaker said Members of both parties have consistently expressed strong reservations about the provisional quorum rule since Rules Chairman David Dreier (R-Calif.) began drafting the measure a year ago.
“Whether they will have the integrity and courage to step forward and challenge their leadership, I’m not sure,” Baird said.
All but one Democrat voted with Baird at the beginning of the session on his point of order regarding the provision’s constitutionality, but Republicans almost unanimously sided with their leadership.
Many Democrats opposed the rules change because it allows the Speaker to reduce the number of Members constituting the House without the consent of the minority party. The rule requires the Speaker only to consult with the Minority Leader and receive from the Sergeant-at-Arms a “catastrophic quorum failure report” advising that the House’s inability to garner a quorum is attributable to disastrous circumstances.
For his part, Dreier believes the rules change is not only constitutional but necessary. In a floor speech last year, he defended the change and cited Walter Dellinger, acting solicitor general during the Clinton administration. Dellinger testified before the Rules panel in April 2004 that it is “simply inconceivable” the Constitution “would leave the nation unable to act in precisely the moment of greatest peril.”
“No constitutional amendment is required to enact the proposed rule change because the Constitution as drafted permits the Congress to ensure the preservation of government,” Dellinger said at the hearing.
The House did not hear from any other expert. And Dellinger’s position appears to be shared by only a minority of constitutional scholars.
Five of six scholars from across the ideological spectrum contacted by Roll Call last year maintained that the change is clearly unconstitutional. Additionally, another half-dozen law professors and scholars asked by Sen. John Cornyn (R-Texas) to share their opinions in writing agreed that the rules change conflicts with Article I of the Constitution.
“No constitutional mechanism exists, and no procedure can be created unilaterally by the House without an amendment, to empower the Speaker simply to ignore a chosen, sworn and living Member of the House and to conduct House business,” wrote Howard Wasserman, an assistant professor at Florida International University who has testified before Congress.
Cornyn, like Baird and Rohrabacher, has sought a constitutional amendment to deal with the complex issues posed by continuity of Congress proposals.
As written in Article I, the Constitution only prescribes two circumstances in which either chamber can proceed in the absence of a quorum: to compel the attendance of absent Members and to adjourn from day to day.