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MICHEL v. ANDERSON

March 8, 1993

ROBERT H. MICHEL, et al., Plaintiffs,
v.
DONNALD K. ANDERSON, et al., Defendants.



The opinion of the court was delivered by: HAROLD H. GREENE

 I

 Background

 In this case, thirteen Republican Members of the House of Representatives, *fn1" led by Minority Leader Robert Michel (R-Ill.), *fn2" seek to enjoin enforcement *fn3" of House Rule XII which was amended on January 5, 1993 to authorize Delegates from the District of Columbia, Guam, American Samoa, and the Virgin Islands, as well as the Resident Commissioner from Puerto Rico to vote in the House's Committee of the Whole. The Committee of the Whole is comprised of all Members of the House, and it is where a substantial portion of the chamber's business is conducted. The House also amended House Rule XXIII to require a de novo vote on the House floor on any question decided by the Committee of the Whole where the vote of the Delegates *fn4" was decisive. The Delegates are prohibited from participating in this second vote.

 The plaintiffs moved for a preliminary injunction on the ground that these rules unconstitutionally vest the Delegates with legislative power, and that they dilute the legislative power of Members of the House. Alternatively, the plaintiffs claim that, by unilaterally modifying the Delegates' role, the House has violated the constitutional requirements of bicameralism and presentment of legislation to the President.

 The defendants, who are the Clerk of the House and the five House Delegates, *fn5" argue that the Court should refrain from deciding this case under various jurisdictional and prudential doctrines. Further, the defendants contend that, if the merits were to be reached, the Court should hold that the rule change does not vest the Delegates with legislative power and that the rule is not otherwise constitutionally defective. *fn6"

 Both parties have joined in requesting that the Court consolidate the plaintiffs' application for a preliminary injunction with final consideration of this issue on the merits pursuant to Federal Rules of Civil Procedure 65(a)(2). The Court grants this request, and the decision herein constitutes a final judgment.

 After discussing the history of the Committee of the Whole, the role it plays in the operations of the House, and the history of the position of territorial Delegate, the Court addresses the threshold issue of whether a judicial remedy with respect to this largely internal congressional dispute is appropriate. The Court then considers whether the changes in the House rules, as currently configured, run afoul of the Constitution.

 II

 Committee of the Whole

 In order to appreciate the constitutional issues implicated in this lawsuit and to evaluate the defenses raised, it is necessary to review the origins of the Committee of the Whole, the function it serves in the legislative process, and the traditional role of Delegates in the House of Representatives.

 A. History in England

 The Committee of the Whole has its origins in seventeenth century England during the reign of King James I where it was referred to as the grand committee. Demonstrating that neither "gridlock" nor disputes regarding taxes are contemporary phenomena, the concept of convening the legislature in a Committee of the Whole developed in response to antagonism, and sometimes deadlock, between Parliament and the monarchy, particularly on the issue of taxation.

 As the King and the legislature clashed over that issue, members of Parliament feared that the King's spies in the House of Commons, including the Speaker, would report "disloyal" votes to the crown. Such acts of betrayal could result in incarceration in jail or other sanctions against the particular member. See 139 Cong. Rec. at H27-28 (Wolfensberger Memorandum) (January 5, 1993).

 In order to avoid the perils of recorded voting, members of Parliament met in informal sessions, on a clandestine basis, to debate legislation. The proceedings of these sessions were not recorded, and the King could not learn who had proposed amendments which exhibited disloyalty to or defiance of the monarchy. The Committee reported only its ultimate recommendation to the official House of Commons for confirmation or rejection. Through such a process the members of Parliament could avoid the iron hand of the monarchy. Id.

 Other historians have noted that the Committee of the Whole was also used to circumvent the power of the standing committees which were often coopted by special interests or agents of the Crown. See Kenneth Bradshaw and David Pring, Parliament and Congress, at 209 (1981).

 B. Early American Practice

 The members of the colonial legislatures, no more trusting of the monarchy than their British ancestors, continued the practice of convening in informal Committees of the Whole to shield their deliberations and actions from the agents of King George III. See IV Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States 986-87 (1907).

 The same practice also continued in the Continental Congress, the Congress of the Confederation, and the Federal Convention in Philadelphia where the Framers convened to draft the Constitution. 139 Cong. Rec. at H28 (Wolfensberger Memorandum) (January 5, 1993). In fact, one of the first decisions made by the Framers was to resolve "into a Committee of the Whole House to consider of the state of the American Union." Hinds', supra, at 987. It was in this Committee of the Whole that the Constitution was debated and approved. 1 Records of the Federal Convention of 1787, 29-322 (M. Farrand rev. ed. 1966).

 With little fanfare or debate, the First Congress, comprised of many individuals from the Federal Convention and earlier American legislatures made provisions for the Committee of the Whole. In one of the first meetings of the United States House of Representatives on April 7, 1789, one of the first four fundamental rules initially adopted prescribed procedures for the conduct of Committees of the Whole. George Galloway, History of the United States House of Representatives 10 (1965). It was in this forum that bills were to be "twice read, twice debated by clauses, and subjected to amendment . . . . Conspicuous reliance was placed by the House, then as now, on the Committee of the Whole." Id.

 Similarly, the first important pieces of legislation passed by the early Congresses were debated and significantly modified in the Committee of the Whole. For example, James Madison's bill calling for the establishment of executive departments passed through the Committee of the Whole which excised the President's removal power. See Myers v. United States, 272 U.S. 52, 112-114, 71 L. Ed. 160, 47 S. Ct. 21 (1926), (citing, 1 Annals of Cong. 585 (1789)). The Bill of Rights was likewise debated in the Committee of the Whole before it was referred to the full House for ultimate passage. See Lee v. Weisman, 120 L. Ed. 2d 467, 112 S. Ct. 2649, 2668-69 (1992) (Souter, J., concurring) (citing, 1 Annals of Cong. 731 (1789)).

 Over the years the House has deployed, at times, more than one Committee of the Whole to perform additional functions in the legislative process. See IV Hinds', supra, at 987-89, and see note 7, supra. In any event, by the late 1800s the central role of the Committee of the Whole on the state of the Union was firmly established in the operations of the House. Beginning in that era and continuing until the present, all significant legislation, particularly revenue and expenditure bills, are referred to the Committee of the Whole for debate and the consideration of amendments prior to being reported to the House floor. *fn8" See 139 Cong Rec. at H30 (Wolfensberger Memorandum) (January 5, 1993), and Plaintiffs' Motion for Preliminary Injunction, Exh. 3 (Affidavit of Representative Robert Michel) (hereinafter "Michel Affidavit"). *fn9"

 C. Current Functions

 The critical function played by the Committee of the Whole is evident from House Rule XIII which provides that "all bills raising revenue, general appropriation bills, and bills of a public character directly or indirectly appropriating money or property" are to be referred to the calendar of the Committee of the Whole. See also House Rule XIII, cl. 3. *fn10" Even though the historic secrecy justifications for convening in the Committee of the Whole are, of course, no longer present, the Committee continues to be the focus of legislative activity in the House. The Committee of the Whole is still heavily relied upon because it is less subject to parliamentary delaying tactics than the House itself, such as motions to table bills, proposals to adjourn, motions to reconsider votes cast, and other such procedures. See IV Hinds', supra, at 993-95.

 Moreover, in the Committee of the Whole a Member is limited to five minutes of debate per amendment as opposed to the one hour of debate time accorded each Representative on the floor of the House. See 139 Cong. Rec. at H30 (Wolfensberger Memorandum) (January 5, 1993). Lastly, the quorum requirement in the Committee is only 100 as compared to the constitutionally required quorum of 218 for the full House. *fn11" In short, it is simply more convenient and expedient for the House to continue to convene in the Committee of the Whole.

 Under the House Rules in effect prior to the January 5, 1993, amendments that were rejected in the Committee of the Whole could not be considered again on the House floor. The only exception to this general restriction was the "rarely successful" procedure by which a defeated coalition could make one motion to recommit. See Michel Affidavit at 7. This procedure basically involves an initiation of the legislative process all over again by a reference of the pertinent bill back to a standing committee. See 139 Cong. Rec. at H30 (Wolfensberger Memorandum) (January 5, 1993). *fn12"

 After the Committee of the Whole completes its work on a piece of legislation it "rises," and the bill is sent to the floor of the House for final approval. *fn13" Once the bill is so reported to the floor, no other amendments may be offered on that legislation. In fact, once a bill arrives on the House floor from the Committee of the Whole, the House usually conducts a straight "up or down" vote on the legislation as a whole, see Michel Affidavit at 7, and the bill considered by the full House is the legislation as it was amended during the deliberations of the Committee of the Whole.

 Upon a motion from the floor, each amendment to the bill approved by the Committee of the Whole can be subjected to a separate vote on the House floor. See Michel Affidavit at 7. However, as noted supra, an amendment that was defeated in the Committee of the Whole could not be resurrected in the House, at least not prior to the January 5, 1993 rules change. This was also true of amendments barred from consideration by rulings of the chair or effectively rejected through substitute or second degree amendments. Michel Affidavit at 5-6; Affidavit of Representative Gerald Solomon at 4-11.

 As is evident, the most significant portion of the House of Representatives' business is done in the Committee of the Whole. The "work of the Committee of the Whole is seldom reversed or recommitted by the House for the simple reason that the work was done by the same House under a different name and using different procedures." See 139 Cong. Rec. at H30 (Wolfensberger Memorandum) (January 5, 1993); see also, Charles Tiefer, Congressional Practice and Procedure 340, 386 (1989) (the Committee of the Whole is the "dominant phase in the chamber's consideration of a bill" and is "the heart of the chamber's operations").

 III

 Status of Delegates

 Before discussing the manner in which the recent changes in the House rules affect the legislative process just described, it is useful to provide a brief history of the office of "Delegate" and a review of the present status of that position. As indicated, there are currently five non-voting participants in the House of Representatives, representing the District of Columbia, Puerto Rico, the Virgin Islands, Guam, and American Samoa.

 Article I of the United States Constitution vests "all legislative Powers . . . in a Congress of the United States." U.S. Const. art. I, § 1. Article I goes on to require that "the House of Representatives shall be composed of Members chosen . . . by the People of the several States . . . ." U.S. Const. art. I, § 8, cl. 1.

 Obviously the five Delegates do not represent "States" nor are they chosen by "People of the several States." These Delegates are also not subject to the age, citizenship, and residency qualifications for membership set forth in the Constitution for all Members of the House of Representatives. *fn14" For example, unlike Members of Congress who, by Article I of the Constitution, are required to be American citizens, the Delegate from American Samoa is only required to "owe allegiance to the United States." See 48 U.S.C. § 1733 (1988). *fn15" Moreover, American Samoa, the Virgin Islands, Guam, and Puerto Rico are generally self-funded, retaining their own tax collections. See 26 U.S.C. §§ 876(a), 931, 932(c)(4), 933, and 7654 (1988). *fn16"

 Beyond that, these five individuals represent areas and constituents with vastly different political, cultural, geographic, and economic ties to the rest of the United States. The populations of these areas range from 47,000 in American Samoa to 3.6 million in Puerto Rico. By comparison, the average population of the congressional districts represented by the thirteen Member plaintiffs here is approximately 569,864. *fn17"

 Each of these five non-voting Delegate positions was created through a different statute. The common theme in all these statutes is that the particular Delegate is given a seat in Congress with the "right of debate, but not of voting." See, e.g., 2 U.S.C. § 25a(a) (1988) (statute creating D.C. Delegate). *fn18"

 The concept of permitting non-voting Delegates to serve in the House of Representatives is well-rooted in the history of the American Congress. The Constitution vests Congress with plenary power to regulate and manage the political representation of the territories. *fn19" A similar vesting of power is conferred on Congress to govern the District of Columbia. *fn20" The Supreme Court has consistently affirmed the broad authority of Congress to take action with respect to the territories and the District of Columbia pursuant to these clauses. See Sere & Laralde v. Pitot, 10 U.S. 332, 336-37, 3 L. Ed. 240 (1810) ("we find Congress possessing and exercising absolute and undisputed power of governing and legislating for the territories"); Binns v. United States, 194 U.S. 486, 491, 48 L. Ed. 1087, 24 S. Ct. 816 (1904) ("Congress, in the government of the territories as well as the District of Columbia, has plenary power, save as controlled by the provisions of the Constitution"). On the specific question of Congress' power to prescribe the political rights of the territories, the Supreme Court has stated that "in ordaining government for the Territories, and the people who inhabit them, all the discretion which belongs to legislative power is vested in Congress." Murphy v. Ramsey, 114 U.S. 15, 44, 29 L. Ed. 47, 5 S. Ct. 747 (1885).

 Although the territorial and other Delegates have never before been granted authority to vote in the Committee of the Whole, they have, intermittently over the past two centuries and consistently over the past two decades, been given significant authority in standing and select committees of the House.

 For example, the Northwest Ordinance of 1787 created the post of territorial Delegate who was given a "seat" in Congress with the right to debate, but not the right to vote. 1 Stat. 50, 52 (1789). The second Delegate from the Northwest Territories was a future President, William Henry Harrison. During his service as a Delegate in Congress, at a time when numerous Framers of the Constitution served in the national legislature, Harrison was allowed to chair an important public lands committee and play a significant role in the passage of legislation. See Dorothy Burne Goebel, William Henry Harrison 44 (1926); 6 Annals of Congress, col. 209-10 (December 24, 1799); 6 Annals of Congress, col. 529 (February 19, 1800). *fn21" Other Delegates followed Harrison's example and served on various standing committees of the House. See II Hinds', supra, Precedents of the House of Representatives of the United States at 864-65.

 The frequency of this practice in the early Congress was noted by an 1840 House Committee report which observed that:

 
With the single exception of voting, the Delegate enjoys every other privilege and exercises every other right of a Representative. He can act as a member of a standing or special committee and vote on the business before said committees, and he may thus exercise an important influence on those initiatory proceedings by which business is prepared for the action of the House.

 II Hinds', supra, at 865 (quoting, H.R. Rep. No. 10, 27th Cong., 1st Sess. 4-5 (1841)). See also, II Deschler's Precedents of the United States House of Representatives (1978) ch. 7, § 3, at 39 ("in early Congresses, Delegates and Resident Commissioners were entitled to vote in the committees to which they were assigned") (citations omitted).

 The 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. See Cong. Globe 42nd Cong., 2d Sess. 117-118 (February 13, 1871). *fn22"

 For the next century, until 1970, Delegates no longer possessed the right to vote in standing committees. That year, as part of the 1970 Legislative Reorganization Act, Congress expanded the powers of the Resident Commissioner from Puerto Rico to include the right to vote in standing committees. And over the next three years, the House periodically amended its rules, so that by 1973 all Delegates had once again the power to vote in standing ...


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