Section 5. Clause 1. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each 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.
Clause 2. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Clause 3. Each House shall keep a Journal of its Proceedings and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and 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.
Clause 4. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Each House, in judging of elections under this clause, acts as a judicial tribunal, with like power to compel attendance of witnesses. In the exercise of its discretion, it may issue a warrant for the arrest of a witness to procure his testimony, without previous subpoena, if there is good reason to believe that otherwise such witness would not be forthcoming.390 It may punish perjury committed in testifying before a notary public upon a contested election.391 The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.392 Refusal to permit a person presenting credentials in due form to take the oath of office does not oust the jurisdiction of the Senate to inquire into the legality of the election.393 Nor does such refusal unlawfully deprive the State which elected such person of its equal suffrage in the Senate.394
390 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616 (1929).
391 In re Loney, 134 U.S. 372 (1890).
392 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 72–74, 180 (1936). Cf. Newberry v. United States, 256 U.S. 232, 258 (1921).
393 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614 (1929).
394 279 U.S. at 615. The existence of this power in both houses of Congress does not prevent a State from conducting a recount of ballots cast in such an election any more than it prevents the initial counting by a State. Roudebush v. Hartke, 405 U.S. 15 (1972).
For many years the view prevailed in the House of Representatives that it was necessary for a majority of the members to vote on any proposition submitted to the House in order to satisfy the constitutional requirement for a quorum. It was a common practice for the opposition to break a quorum by refusing to vote. This was changed in 1890, by a ruling made by Speaker Reed and later embodied in Rule XV of the House, that members present in the chamber but not voting would be counted in determining the presence of a quorum.395 The Supreme Court upheld this rule in United States v. Ballin,396 saying that the capacity of the House to transact business is “created by the mere presence of a majority,” and that since the Constitution does not prescribe any method for determining the presence of such majority “it is therefore within the competency of the House to prescribe any method which shall be reasonably certain to ascertain the fact.”397 The rules of the Senate provide for the ascertainment of a quorum only by a roll call,398 but in a few cases it has held that if a quorum is present, a proposition can be determined by the vote of a lesser number of members.399
In the exercise of their constitutional power to determine their rules of proceedings, the Houses of Congress may not “ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House ... The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.”400 Where a rule affects private rights, the construction thereof becomes a judicial question. In United States v. Smith,401 the Court held that the Senate’s attempt to reconsider its confirmation of a person nominated by the President as Chairman of the Federal Power Commission was not warranted by its rules and did not deprive the appointee of his title to the office. In Christoffel v. United States,402 a sharply divided Court upset a conviction for perjury in the district courts of one who had denied under oath before a House committee any affiliation with Communism. The reversal was based on the ground that inasmuch as a quorum of the committee, while present at the outset, was not present at the time of the alleged perjury, testimony before it was not before a “competent tribunal” within the sense of the District of Columbia Code.403 Four Justices, speaking by Justice Jackson, dissented, arguing that under the rules and practices of the House, “a quorum once established is presumed to continue unless and until a point of no quorum is raised” and that the Court was, in effect, invalidating this rule, thereby invalidating at the same time the rule of self-limitation observed by courts “where such an issue is tendered.”404
395 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2895–2905 (1907).
396 144 U.S. 1 (1892).
397 144 U.S. at 5–6.
398 Rule V.
399 4 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2910–2915 (1907); 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 645, 646 (1936).
400 United States v. Ballin, 144 U.S. 1, 5 (1892). The Senate is “a continuing body.” McGrain v. Daugherty, 273 U.S. 135, 181–182 (1927). Hence its rules remain in force from Congress to Congress except as they are changed from time to time, whereas those of the House are readopted at the outset of each new Congress.
401 286 U.S. 6 (1932).
402 338 U.S. 84 (1949).
403 338 U.S. at 87–90.
404 338 U.S. at 92–95.
Powers of the Houses Over Members
Congress has authority to make it an offense against the United States for a Member, during his continuance in office, to receive compensation for services before a government department in relation to proceedings in which the United States is interested. Such a statute does not interfere with the legitimate authority of the Senate or House over its own Members.405 In upholding the power of the Senate to investigate charges that some Senators had been speculating in sugar stocks during the consideration of a tariff bill, the Supreme Court asserted that “the right to expel extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a Member.”406 It cited with apparent approval the action of the Senate in expelling William Blount in 1797 for attempting to seduce from his duty an American agent among the Indians and for negotiating for services in behalf of the British Government among the Indians—conduct which was not a “statutable offense” and which was not committed in his official character, nor during the session of Congress nor at the seat of government.407
405 Burton v. United States, 202 U.S. 344 (1906).
406 In re Chapman, 166 U.S. 661 (1897).
407 166 U.S. at 669–70. See 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 836 (1833).
In Powell v. McCormack,408 a suit challenging the exclusion of a Member-elect from the House of Representatives, it was argued that inasmuch as the vote to exclude was actually in excess of two-thirds of the Members it should be treated simply as an expulsion. The Court rejected the argument, noting that the House precedents were to the effect that it had no power to expel for misconduct occurring prior to the Congress in which the expulsion is proposed, as was the case of Mr. Powell’s alleged misconduct, but basing its rejection on its inability to conclude that if the Members of the House had been voting to expel they would still have cast an affirmative vote in excess of two-thirds.409
The object of the clause requiring the keeping of a Journal is “to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents.”410 When the Journal of either House is put in evidence for the purpose of determining whether the yeas and nays were ordered, and what the vote was on any particular question, the Journal must be presumed to show the truth, and a statement therein that a quorum was present, though not disclosed by the yeas and nays, is final.411 But when an enrolled bill, which has been signed by the Speaker of the House and by the President of the Senate, in open session receives the approval of the President and is deposited in the Department of State, its authentication as a bill that has passed Congress is complete and unimpeachable, and it is not competent to show from the Journals of either House that an act so authenticated, approved, and deposited, in fact omitted one section actually passed by both Houses of Congress.412
408 395 U.S. 486 (1969).
409 395 U.S. at 506–512.
410 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 840 (1833), quoted with approval in Field v. Clark, 143 U.S. 649, 670 (1892).
411 United States v. Ballin, 144 U.S. 1, 4 (1892).
412 Field v. Clark, 143 U.S. 649 (1892); Flint v. Stone Tracy Co., 220 U.S. 107, 143 (1911). See the dispute in the Court with regard to the application of Field in an origination clause dispute. United States v. Munoz-Flores, 495 U.S. 385, 391 n. 4 (1990), and id. at 408 (Justice Scalia concurring in the judgment). A parallel rule holds in the case of a duly authenticated official notice to the Secretary of State that a state legislature has ratified a proposed amendment to the Constitution. Leser v. Garnett, 258 U.S. 130, 137 (1922); see also Coleman v. Miller, 307 U.S. 433 (1939).
Last modified: June 9, 2014