[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]
VOTING IN THE HOUSE OF REPRESENTATIVES--RULES, PROCEDURES, PRECEDENTS,
CUSTOMS AND PRACTICE
=======================================================================
HEARING
before the
SELECT COMMITTEE TO INVESTIGATE THE VOTING
IRREGULARITIES OF AUGUST 2, 2007
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 25, 2007
__________
WASHINGTON, DC
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SELECT COMMITTEE TO INVESTIGATE THE VOTING IRREGULARITIES OF AUGUST 2,
2007
WILLIAM D. DELAHUNT, Massachussetts, Chairman
ARTUR DAVIS, Alabama MIKE PENCE, Indiana, Ranking
STEPHANIE HERSETH SANDLIN, South Member
Dakota STEVEN C. LaTOURETTE, Ohio
KENNY C. HULSHOF, Missouri
C O N T E N T S
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Page
I. Opening Statements:
1. Delahunt, Hon. William, Chairman.......................... 1
2. Pence, Hon. Mike, Ranking Member.......................... 2
II. Appendix:
Speaker's Opening Day Announcement........................... 37
Letter of Resignation, Charlie Johnson....................... 40
VOTING IN THE HOUSE OF REPRESENTATIVES--RULES, PROCEDURES, PRECEDENTS,
CUSTOMS AND PRACTICE
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THURSDAY, OCTOBER 25, 2007
House of Representatives,
Select Committee to Investigate
the Voting Irregularities of
August 2, 2007,
Washington, D.C.
The committee met, pursuant to call, at 8:30 a.m., in Room
H-313, The Capitol, Hon. William D. Delahunt [Chairman of the
committee] presiding.
Present: Representatives Delahunt, Davis, Herseth-Sandlin,
Pence, LaTourette, and Hulshof.
The Chairman. The hearing of the select committee will come
to order. The subject of this hearing today is Voting in the
House of Representatives--Rules, Procedures, Precedents and
Customs.
Without objection, all Members' opening statements will be
made part of the record.
[The information follows:]
The Chairman. Let me begin with a brief statement. First,
let me say that I think that today's hearing is an important
hearing. One of the main things that I was struck by as I began
delving into the substantive aspects of this inquiry, which is
mentioned in the select committee's interim report and includes
the duties and discretion of the offices of the House and the
presiding officer related to voting and the duration of a vote,
is that the rules of the House, the House standing rules, that
is, that govern the conduct on an electronic vote only provide
illumination on certain aspects of these subjects.
I had previously been unaware of which electronic votes are
governed by precedents and customs that I daresay a few of us
were aware of and understand. Clause 2(a) of Rule 20 states,
and I am quoting, ``Except as otherwise permitted under Clause
8 or 9 of this rule or under Clause 6 of Rule 28--or rather 18,
the minimum time for our record vote, a quorum call by
electronic voting, shall be 15 minutes.'' Clause 1 of Rule 20
states that on the tie vote, a question fails. That seems to be
it.
So much of what occurs on the floor of the House is
governed by precedents, customs and practice. Therefore, much
of what dictates the sequence of events that comprise a floor
vote is not black letter law, and it would appear that some of
it is not even memorialized in writing.
So that is why today is a particularly important hearing,
the purpose of which is to inform the members of the committee,
and I daresay our colleagues outside of this committee, as well
as the American people, of the custom and practice, precedents
and influence, and in many ways, goes to the heart of this
institution. And I can't think of anyone more prepared to serve
as witnesses at this hearing than the two individuals who sit
before us and who I will introduce momentarily.
First let me say that I am confident that the information
that will emerge from this hearing will be integral in laying
the foundation for the factual inquiry with which we are
charged.
The subject of this hearing--institutional models--as with
the subjects of the committee's previous hearing, is not within
the immediate expertise of any members, and is therefore
critical for us to understand in fulfilling our charge.
However, I am also inquisitive as to how we may inform our
other responsibility, which is the recommendation of changes to
the House rules.
One of the most valuable things I think we will take away
from this experience is the understanding of the most integral,
innermost operations of the House of Representatives, the
institution, if you will, because the greater our understanding
of not only the meaning of the rules, customs and practice, but
also the reason and history behind them, and our determination
that their operation and purpose are generally fair and logical
if we so determine, the greater our commitment to preserving
their integrity.
Let me call on Mr. Pence for his opening statement.
Mr. Hulshof. Mr. Chairman before you yield to Mr. Pence,
you might want to supplement the record in that we have had a
meeting of the select committee that wasn't public when we met
on the floor through the walkthrough. Perhaps if you could give
a brief recitation in that the press is not allowed to
accompany us on the floor, that we actually saw for ourselves
the process.
The Chairman. That is a very good point, Mr. Hulshof. We
did, I think it was a week ago, have an opportunity to actually
observe and participate in a vote. Not a real vote obviously,
but a vote that was, I think, most illuminating, which ran
through the various sequences that the Clerk's office and a
Parliamentarian explained in some great detail. I think we all
left that floor having a greater appreciation for the
coordination that is required between the various individuals
that conduct, if you will, the operations that make the House
of Representatives function as a democratic institution.
I see the Clerk of the House, Lorraine Miller, has joined
us. And I want to commend and extend our collective
appreciation for that particular effort. It really was
illuminating. And again, I would say I think we all left with a
better appreciation of the complexity and the coordination that
is required. And now Mr. Pence.
Mr. Pence. Thank you, Chairman. Thank you for calling this
third hearing. I would agree with you that what we are about in
this third hearing, as we have been about in the first two is
institutional knowledge. And I am grateful for the manner with
which this committee has cooperated thus far and hope and trust
that we will remain cordial and collegial as we move out of
this background institutional knowledge phase into upcoming
hearings that will be exploring the facts and circumstances
around the vote of August 2, 2007.
As you said, this is the third in a series of educational
hearings about the voting process. We have heard from the
Clerk. As you just mentioned, we have been on the House floor.
We received a briefing on the voting process. And today our
hearing, I expect, will delve deeply into the rules,
procedures, precedents, customs and practices associated with
voting in the House.
Our witnesses are two individuals with extraordinary
experience and knowledge. And I might add extraordinary
reputations for integrity in this institution. I would love to
welcome them to the select committee and thank them for their
long careers of service to the United States and to this
institution. I will leave it to the Chair to introduce our two
witnesses. But when I think about the cumulative wake of the
years of experience assembled at this table, I am encouraged
that we will leave this hearing better informed and with a much
greater appreciation for the proper workings of the House of
Representatives in the tallying of the vote than we have even
up to this point.
Let me say again, I appreciate the collegial manner,
particularly the chairman and my Democratic colleagues who have
demonstrated to us on the Republican side we have serious
business to do here, and I am grateful that we are taking it
seriously. Because there are some tough questions at hand. The
reality is even in this educational background phase, questions
have been raised that need to be answered.
Today, I expect more questions will come to our minds as we
hear from these experts. But I remain confident that we are
building a good foundation of knowledge on which we will be
able to draw substantive conclusions about the events of the
night of August 2nd. And finding answers is really what we are
here to do.
Our select committee has been tasked with two jobs, getting
to the bottom of what happened on the night of August 2, 2007
during the roll call vote 814, and making recommendations to
the House regarding the protection of members voting franchise
and the House voting system. This is a solemn duty to
investigate the irregularities of August 2nd and we approach it
in that manner. The integrity of the House of Representatives
is completely dependent on the integrity of the vote that takes
place on the floor of the House. Every American is entitled to
have a voice in the people's House and to know that their
representative's vote counts. With our work today and over the
past few weeks, I believe we are taking proper foundational
steps to answer questions we have about that night and to
develop the kind of recommendations that will ensure the
fundamental integrity of this institution. Thank you, Mr.
Chairman, for calling this hearing and thank our witnesses and
look forward to the testimony.
The Chairman. Thank you, Mr. Pence, and let me proceed by
introducing our witnesses. And as you indicated, these are
individuals of great integrity and erudition. Their reputations
are well known to all of us. Mark O'Sullivan received his
bachelor of arts at the University of Massachusetts----
Mr. LaTourette. Everybody makes a mistake.
The Chairman [continuing]. In 1975. Mark is a member of the
Red Sox nation. He has served the House of Representatives
since 1977 in the House Post Office, Office of the Door Keeper
and Office of the Clerk and Legislative Operations. In 1978,
Mark was appointed assistant Tally Clerk and served in this
position until 1983. From 1983 to 1987 Mr. O'Sullivan served as
assistant general clerk. He returned to the position of Tally
Clerk until January of 2003 when he was appointed Chief Tally
Clerk, a position which he currently serves with great respect
from all members of the House.
And again, alluding back to the hearing that was conducted
on the floor of the House, I certainly, and I think I speak for
most of the members, have now a much more fully--well, I have a
much greater appreciation for the function of the Tally Clerk.
In this position, he is responsible for the electronic voting
system which records members' votes on the House floor and for
authorizing the release of roll call votes to the Clerk's Web
site and the Government Printing Office for printing in the
Congressional Record. He supervises a staff of four assistant
tally/floor action reporting system clerks. He has served under
six House Speakers, seven House Clerks, and three House
Parliamentarians.
We are also fortunate to have one of those distinguished
Parliamentarians here with us today, Charlie Johnson, who
received his bachelor of arts from Amherst College, also in
Massachusetts, which is obviously part of the Red Sox nation,
and his Juris Doctor from the University of Virginia Law School
in 1963. He is admitted to practice in the bars of the District
of Columbia and the United States Supreme Court. He served in
the Army National Guard Army Reserve from 1963 to 1966. And the
Navy JAG Reserve Commission from 1967 to 1971. He was appointed
to the Office of the Parliamentarian on the House of
Representatives in May of 1964. He served as assistant
Parliamentarian from 1964 to 1974. From 1974 to 1994 he served
as deputy Parliamentarian. He then served as Parliamentarian of
the House from September 16, 1994 through May 20, 2004--40
years, 40 years to the day after his first appointment.
He has served as an adjunct professor on congressional
procedure, political leadership and recent congressional
history at the University of Virginia Law School, and given
lectures and seminars at numerous institutions, including
Catholic University Law School, Georgetown University Law
School, and his alma mater, Amherst College. He has been the
editor and author of numerous publications. He was the editor
of House Rules Manual of the 104th 105th, 106th, 107th and
108th Congresses. He co-edited House Practice, the second
edition. He is currently consulting to the Parliamentarian on
writing of House precedents. He is also the co-author with Sir
William McKay, recently retired clerk of the House of Commons,
of an upcoming book on Parliament and Congress. And lastly, he
has been a batting practice pitcher with the L.A. Dodgers and
the Pittsburgh Pirates for the past 5 years. Congratulations.
Mr. Davis. The Atlanta Braves could use a middle reliever.
Mr. LaTourette. Mr. Chairman, before the witness, could I
say something about Mr. Johnson. Because of part of this
committee's assignment is to serve as an educational tool for
the Members, I just wanted to relay an experience that I had
when I was elected in 1994. I had never been in the legislature
and I got here and some of the old bulls, Ralphs, to then
Speaker Gingrich, asked, `why are they keeping the Democrats'
Parliamentarian, Mr. Johnson?' And they said, well, we are in
the majority now, we shouldn't be keeping the Democrats'
Parliamentarian. I think your introduction of Mr. Johnson is
right on the money. Over the 12 years that I had the pleasure
to present from time to time, he wasn't the Democrats'
Parliamentarian; he was the Parliamentarian of the House. And
his counsel was why I thought and Mr. Davis thought he was such
a valued witness. What he has to say about rules, practices and
precedents I think is unimpeachable and he is going to be fair.
And I would also like to tip my hat to you, Mr. Chairman,
and I see that you have sought counsel of one of his former
assistants, Muftiah McCartin; I had the pleasure of working
with her for 12 years. And I make the same statement about her
and what she said about rules, practices and procedures and I
believe and I trust that, so I look forward to this hearing.
Thank you.
The Chairman. Thank you, Mr. LaTourette. Let me just echo
that the people that are before us, the people that are sitting
in this audience who are part of the operations of this House
and the people that are behind us, while they might be
appointed by Democrats or Republicans, I think it is important
for the American people to understand that they are
Institutionalists and they care about this institution. I think
all of us are aware of that because in many cases, we have
personal relationships with these individuals. And they carry
out their duties in a nonpartisan way.
And I know that the testimony we will elicit from them will
be fair and accurate and will be made in a way that hopefully
will be reflected enough on the party which will enhance the
confidence of the American people and the integrity of this
institution. We have said that differently in different ways,
all of us, but that is why we are here. I know that neither one
of our witnesses have a written statement.
STATEMENTS OF CHARLES E. JOHNSON, FORMER PARLIAMENTARIAN OF THE
HOUSE OF REPRESENTATIVES; AND MARK O'SULLIVAN, CHIEF TALLY
CLERK OF THE HOUSE OF REPRESENTATIVES
The Chairman. So why don't we just simply go to questions
first. And let me pose a question to Mr. Johnson. Charlie, in
Chapter 50, Section 2 of your book entitled House Practice; A
Guide to Rules, Precedents and Procedures of the House, there
is this statement. Parliamentary law, a term that encompasses
both formal rules and usages has come to be recognized as
binding on the assembly and its Members. The formal rules,
which are our standing rules, are readily available in two
different House publications. The Chair's interpretation of
those standing rules has been compiled. We know where we can go
and get it, thanks to the dedication of the Office of the
Parliamentarian over an extensive period of time, many years,
to create a body of precedent that gives us some clarity and
predictability in the application of the standing rules
themselves. But when it comes to the usages or customs of the
House that govern procedure they are not completely captioned,
if you will, in the compilation of precedents or publications
setting forth the standard rules. As stated by Mr. Hinds, the
Parliamentarian, in the early 1990s, these customs are the
unwritten law. That is his term, unwritten law. There are
quotes around ``unwritten.'' And we hope to glean some of those
usages and customs of the House today.
But before we embark on that training, can you please
explain to the committee the relative importance of usage and
custom. When does a custom or usage become so well established
that it is elevated to be a binding procedural law? Is it as
binding as a well-settled rule of the Chair, a standing rule,
if you will? And would your answer be different if the Chair
had occasion to opine on a usage or custom? Can you discuss the
providence of custom and usage in the Morton House where the
majority of Members have only been here since 1999? I myself
came here in January 1997. How does the House go about changing
a usage or custom? I mean, can the Chair, by deviating from a
usage or custom, establish a new precedent? Or how do we go
about changing usage and custom? Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman. I think you started
this inquiry off correctly about practice as a general
proposition. Perhaps it is not totally accurate to say that all
usage and custom is not written. Because just in the last few
days, as I have tried to collect my thoughts in preparation for
this hearing, I went back into Hinds' and Cannon's precedents
beginning where you just did with our own House practice book,
which has a three-page chapter on precedent.
And the first citation in that chapter, which you cited,
brings you to Hinds' precedents, Volume I, the preface. Now,
what are Hinds' and Cannon's precedents? They are the
compilations respectively from 1789 until 1907, when Asher
Hinds, during his time as then-clerk to the Speaker's table,
(he didn't have the title of Parliamentarian, and then a Member
of Congress, took Speaker Thomas Reed's seat from Maine in the
late 1890s. But he had it within him, with whatever staff he
could summon, to publish those first five volumes. And they
``speak volumes.'' \1\
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\1\ Subsequently Clarence Cannon, who himself became a Member,
published Volumes 5-8; covering the period 1907-1936.
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You read briefly the unwritten law commentary in his
preface. But let me put this in a little more context, because
custom and usage is contextual. The people who have immediate
access to it are perhaps people like myself and Members and
staff on both sides. I see right here today distinguished staff
on both sides who have accessed and are interested in looking
at precedent, at black letter rule, precedent, custom, usage,
tradition. But there is more available than meets the eye. And
that is part of what the House realized in 1970 by enacting the
Reorganization Act of 1970. The law requires the
Parliamentarian, (who, by law, is appointed by the Speaker as a
nonpartisan attorney, together with all the assistant
Parliamentarians as nonpartisan attorneys) to compile the
procedural precedents of the House. At that time they had not
been published since Clarence Cannon finished his compilation
through 1936. They had been completed but had not been fully
published as precedent. There were citations in the House
Manual and in an abbreviated book called Cannon's Procedure.
And then with cryptic citations.
Just last week, you received once again your leather-bound
rule books, the small print which comprises up to date
citations to precedent for the most part, rulings of the
presiding officers, which perhaps have a little greater
standing because they are potentially subject to the will of
the House through appeal.
Now, when I retired in May, on May 20th of 2004, I
submitted a two-page resignation letter. That letter discussed
the importance of precedent and honored the Members and staff I
had been privileged to help advise. And it said that appeals
from rulings had traditionally not been taken in the House
because the Chair's competence and fairness has been honored as
a tradition and custom. I still think that is true and it has
to be true. But as you know, all six of you know, there have
been a proliferation of appeals from rulings, perhaps not so
much to have a vote of the House on the propriety of the
Chair's ruling, which after all is all that an appeal is about,
but rather from time to time to represent the issue as a vote
on the underlying merits of the proposition, which I think is
wrong as far as using appeals.
But let us face it, it has happened and it will continue to
happen. But when those rulings are made by the Speaker, and
nine out of 10 are not appealed, they are then incorporated in
the House Manual every 2 years. They then go into the House
Practice book. The second edition has been out since 2003. My
predecessor, Bill Brown, and I put it together with our staff.
But then there are traditions and customs. Let me just read
this paragraph from which you quoted. ``The value,'' and this
is out of Asher Hinds' introduction, ``the value of precedents
in guiding the action of a legislative body has been
demonstrated by the experience of the House of Representatives
for too many years to justify any arguments in their favor now.
We have no other means of building up parliamentary law, either
in the mother country or here, said a great lawyer who was also
an experienced legislator.'' And while the quote,
unfortunately, is of a Senator, so perhaps you can minimize the
precedential value, the Senator was speaking of precedent value
in both Houses.
Except by instances as they arise and treatment of them and
disposition of the law and of the good reasons that should
govern these considerations. And the great legislator who had
served a lifetime in the House of Representatives and the
Senate concluded that, as you quoted from, and this is another
Senator, John Sherman in the 44th Congress, concluded that,
``The great body of the rules of all parliamentary bodies are
unwritten law. They spring up by precedent and custom. These
precedents and customs are this day the chief law of both
Houses of Congress.'' So I think that really does properly
characterize the value of precedent and practice. The question
is----
The Chairman. If I can interrupt, do you agree with that
statement?
Mr. Johnson. Yes. But I don't agree that they are not
necessarily written. They are published often, not always but
often in the precedents in footnotes, in the House Practice
book as parliamentarian's notes, not as dispositive precedent
but as guides. And the reason they have value is because they
are prepared by an office which by law and unbroken custom has
the responsibility as nonpartisan attorneys of preparing them,
publishing them and advising all Members based on them. That
was the law in 1970. Ongoing publication.\2\
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\2\ Where they are not written, they are based on trust in the
Parliamentarian's advice articulated by that office or through the
Chair.
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The Chairman. If I can again interrupt. But is there a
discrete compilation or a compendium that is readily available
to Members?
Mr. Johnson. It is.
The Chairman. In other words--let me rephrase it. For
someone who is not particularly conversant with parliamentary
procedure, and that depends on the individual member, but I
dare say that there are many Members who fit that particular
description, but if, on occasion, they wanted to access without
going to the parliamentarian's office, how would you go about
it, how would you locate the precedent on a particular issue
that you were concerned about?
Mr. Johnson. Well, all the precedents from Hinds, Cannon,
Deschler, Deschler and Brown are on-line. Plus there are 11
volumes of Hinds' and Cannon's precedents from 1789 through
1936. Then there are now 16 volumes of Deschler and Deschler-
Brown. Lew Deschler was Parliamentarian for 46 years from 1928
to 1974. He hired me. And obviously being the Parliamentarian
for 46 years gave him some stature. He also for most of his
time was not required to permit uninhibited access to his
scrapbooks and precedents as he compiled them. The law came
along in 1970 and required publication and total public access,
which was right. But they are in print and online. The question
is how many people, number one, know they are there and know
how to access them and sometimes seek help in accessing them?
Which again, the parliamentarian's office is available to do
for all Members on a confidential basis in an attorney-client
relationship if necessary.
That is not to say Members and staff can't do their own
research, and they often do. They are well advised, I think, to
seek their interpretation of the results of that research from
the parliamentarian's office. There are sources that clearly
have expertise, both on committee staff, CRS, where help can
also be obtained. A couple of days ago I started looking for a
precedent in this general area of voting. Because I knew since
I was here in 1964, the voting system from 1964 through 1973
was the roll call. That was how the yeas and nays were
recorded; it was done on tally sheets. This is rather
fascinating. Because it is the only, that I could find, printed
discussion of the role of the clerks in preparing the result.
It was an occasion in 1918. And this is recorded in Cannon's
Volume VIII, Section 3162.
This is in print. This is usage, but it is also precedent
because the Chair was called upon to rule on an occasion when a
conference report was announced as defeated 149 to 150. The
next day it became apparent that the clerk's tally was wrong by
one vote and that the correct vote was 150 to 149, adopting the
conference report, clearly a decisive change. So the issue came
up about changing the Journal and, in effect, approving the
conference report, which the day prior, the Speaker declared to
have been rejected. Cannon wrote that, ``where an error of the
clerk in reporting the yeas and nays, the Speaker announces a
result, whereby an error of the clerk, the Speaker announces a
result different from that shown by the roll, the status of the
question must be determined by the vote as actually recorded.''
And then the House on motion amended the Journal of the prior
day's proceeding.
But let me just read a paragraph. This touches in a general
way on where the committee, I believe, is headed. The Chair,
and this is Speaker Champ Clark of Missouri, a distinguished
Speaker of the House in 1918. The Chair, with the consent of
the House, would like to make a few remarks about this matter.
These are ``remarks.'' This is not a ruling precisely. Because
the House did not challenge the amendment of the Journal,
because everyone knew that the revised tally sheet was a
correct one, the Speaker felt it necessary to make this
comment. This is the first time for a long while that this has
been done. And perhaps not a dozen men in the House ever saw
the thing done before. But this is not unprecedented.
Now, the way the Chair arrives at a yea and nay vote in the
House is by these tally clerks handing up the figures. Of
course, the Chair cannot go down there and count the votes. And
would not know how to do it if he did go down there. They have
some system of their own whereby when they get through with the
roll, they know the number of the yeas and nays and those
present. And then these clerks at the desk take the tally sheet
out and go over it, one of them a Democrat, and one of them a
Republican. And I never heard of anybody that disputed the
integrity of either.
So there is a description which captures until 1973, 184
years of practice that two tally clerks process the roll call
vote. Whether they are patronage, one Democrat and one
Republican, I don't think is particularly relevant. The
important thing is that the role of the tally clerks has
traditionally been nonpartisan as Speaker Champ Clark has said,
which commanded both, a usage or a custom of the House. When
the House went to electronic voting in 1973, that role was
never perceived to be changed, the role of the Tally Clerk in
compiling the result was not considered to be sufficiently
different to require a black letter rule on what the ongoing
role of the tally clerks was to be. The assumption, was that
traditional and custom was always, as Speaker Clark said, to be
controlling. Yes, sometimes errors occurred, but the Chair was
never guided by anything other than the proper role of clerks.
That was the custom and remains so, I believe.
Since electronic voting, and I saw it come in, it came in
gradually. The first one or two years \3\ of getting away from
the yeas and nays, which took 45 minutes, a system called
recorded tellers was used. It is still a fallback procedure in
the rules, whereby the yeas went up the left aisle and nays
went up the right aisle and the clerks separately read or give
them ballot cards tallied with two separate sheets the result.
That was when the House began to allow recorded voting in the
Committee of the Whole, number one, which was a major reform in
1970 in the Legislative Reorganization Act.
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\3\ 1971-1972
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Until then, amendments were not roll called in the
Committee of the Whole. And so defeated amendments were not a
matter of record since they were not reported to the House. And
so the House, in its wisdom, decided to allow recorded votes in
the Committee of the Whole. They did not have electronic
voting, but they knew that the call of the yeas and nays was
going to take a long time on amendments in the Committee on the
Whole, especially back when there were open rules and you had a
number of amendments and amendments to amendments voted on in
real-time.
So they come up with this temporary system, all the while
having a contract to find an electronic voting system that
worked. But in those few years, the tallies were kept
separately up each aisle and then the numbers were reported by
the Members who had been appointed tellers by the Speaker or
the Chairman of the Committee of the Whole and announced
separately the yeas and the nays. The names were printed in the
Record and the Journal, but once electronic voting was used,
the tally clerks again at the rostrum were expected and
invariably prepared that final result on a tally slip.
I assume that, in your walkthrough the other day you saw
that process in action. The tally clerk's role is
indispensable. You saw the preparation of that tally sheet
deriving from the electronic mechanism. There was one occasion
on June 21 and 22, 1995, and it is cited, again this is
precedent, in Volume XIV of Deschler-Brown Chapter 30 Sec.
31.18. It involved, as Congressman LaTourette may recall, a
situation that was very unfortunate where the Chair, on an
amendment of the Committee of the Whole, announced the result
from a slip showing 213 to 214.
Just as two minority Members were approaching down two
different aisles, the Chair with the slip in his hand, because
the Tally Clerk at that moment, when he handed up the slip, was
not aware that those Members were coming in, and as he handed
up the slip, two Members appeared and the Chair would not allow
those two Members to vote, and announced the result as 213 to
214. Well, the minority leader, Rep. Gephardt and the minority
were quite upset. The Committee rose immediately and the House
adjourned.
There was going to be a refusal to proceed the next day
until that vote was rescinded.
Speaker, Speaker Gingrich, and Majority Leader Armey
readily agreed that for the sake of the institution's getting
on with business to entertain unanimous consent in the House,
the vote was rescinded and taken again the next day. But that
is the only occasion of that kind of a problem that I can
remember.
The Chairman. There wasn't a select committee as a result
of it?
Mr. Johnson. There was no question of privilege, there was
no select committee as a result. It was worked out by a
rescission of the action the next day by unanimous consent.
The Chairman. I am going to go to my ranking member, my
friend from Indiana. I also am going to apologize to both
witnesses and to my colleagues because I have a very
significant meeting that I am already late for. So I am going
to excuse myself and hand the gavel over to Mr. Davis.
Mr. Pence. Thank you, Chairman. I have to confess that I
have not spent very much time in the former parliamentarian's
company. And I haven't been this challenged since my first day
of law school. I thank you for your thoughtful and careful
presentation of the assumptions, the precedents, traditions and
customs of the House of Representatives about voting. I also
want to say I appreciate you helping this committee and anyone
that might look into this hearing in the future to understand
the weight of history on this institution, which has been a
thus far successful unbroken commitment to democracy.
And again, I feel a little bit of an extra burden about
that weight of history at this moment by virtue of your
testimony. Let me, if I can, let me focus on a couple of big
picture issues. I am open to Rule 20. And Mr. Johnson, I
specifically wanted to ask you, Mr. O'Sullivan may have an
opportunity to jump into this, the express language here is,
unless the Speaker directs otherwise, the Clerk shall conduct a
recorded vote quorum call by electronic device in such cases,
et cetera, et cetera.
I guess the first and foundational question that I have is
what does the language, the Clerk shall conduct a record vote
mean. And I guess by that I want to get specifically to the
issue of who controls the floor, who conducts a vote, in the
plainest sense of the term. It seems to me that in your
testimony today, and reflecting on historical precedent, that
the Tally Clerks play a critical role. That, in fact, I was
amused at Speaker, is it Champ Clark in your testimony to, his
comment that the Chair does not go down to where the clerks are
tallying the vote and they wouldn't do it and wouldn't know how
to do it, to paraphrase the quote.
And so I guess the first question I have, and then I have a
couple follow-ups on your testimony Mr. Johnson. Could you just
speak in the very broadest terms to what that language of the
rule means and respond very broadly to the question, who
controls the floor? Who conducts a vote? And by that, I mean is
it the Chair? Is it the presiding officer? Is it the
Parliamentarian? Is it the Clerk or his or her designees? Mr.
Johnson, maybe you can respond.
Mr. Johnson. You ask who ``controls.'' Perhaps that is a
term slightly different from who ``conducts.'' But the rule
obviously and properly puts control in the presiding officer--
the Speaker--or by extension the chairman of the Committee of
the Whole by the rule that incorporates the Speaker's
responsibilities by reference. So the Chair, in his or her
nonpartisan capacity conducts the vote, and it can't be any
other way. The word ``controls'' the vote is perhaps a little
bit more subjective.
But ultimately, as I hope will be revealed, the conduct and
the control do and should remain in the Chair. Now, the
fallback, and you read, Mr. Pence, from what has been the rule
since electronic voting, that the presumption and the
expectation is that the electronic system will be utilized in
preference to the alternatives of roll call, or the standby
recorded tellers, because it is more accurate. The presumed
infallibility of the electronic system has been consistently
documented by rulings that are in the small print just below
the segment you read, which suggests that unlike old roll call
votes where Members could come in and ask unanimous consent to
change their votes after the vote was announced because they
claimed that the Tally Clerk had not heard their response.
There was the element of human fallibility that allowed the
Chair to entertain a unanimous consent request by Members, who
claimed that they were in the Chamber trying to vote and had
not been heard by the Tally Clerk.
Under the old roll call system, those votes were allowed to
be cast as long as they didn't change the result. Members were
allowed to come in the next day and say I am recorded as not
present, I voted aye, I want the permanent record changed to
show what the vote was. As you all know now, a Member can come
in and have his or her statement appear immediately following a
vote, but not to change the result. The correct interpretation
from Speaker Albert on forward was that the presumed
infallibility of the electronic system eliminates that fiction
of Members' claiming that they weren't heard. That has been
honored. Again, that is a usage. More than that, it is
precedent where chairs have relied invariably on the accuracy
of the system, coupled with the ability of members to verify
their votes at any and all voting stations. It is that
responsibility that the Speakers have imposed on Members.
Again, not black letter rules that the Speakers have
imposed on Members to verify their votes. Together that
practice has built up since 1973 to where the electronic vote
is conclusively presumed infallible. There was only one glitch
in all the time I can remember. It involved an anomaly where
Rep. Roybal-Allard's vote mysteriously appeared in a vote. But
she was clearly not there and she said so. As you probably
learned, you can trace stations and cards all the way through a
vote. They couldn't find that her card had ever been inserted,
yet there was her name shown electronically. Bill Thomas and
the House Administration Committee performed an informal
investigation and came back with a technical explanation that
the anomaly may have happened electronically for some very
strange reason, that it would not happen again, and the House
accepted that.
Mr. Pence. Let me interrupt, if I can. You started out by
responding that there have been controls and conducts in your
statement that obviously the Chair ultimately under our system
of government controls. I recognize that. But specifically, who
conducts the vote under the rule? Who in terms of the history,
the tradition, the express rules.
Mr. Johnson. Tally Clerks at the direction of the Chair.
Mr. Pence. The Tally Clerks at the direction of the Chair
conduct the vote?
Mr. Johnson. Yes.
Mr. Pence. And they conduct the vote in the manner as we
have heard in previous hearings and heard you describe?
Mr. Johnson. Yes.
Mr. Pence. By the assembling of the vote? You testified
that that has traditionally been a nonpartisan process. Was
there a time in history of the institution--I thought you
seemed to imply that there wasn't a time where there was a
Republican and a Democratic Tally Clerk, is that correct?
Mr. Johnson. I think there have always been two Tally
Clerks. More recently those old traditional patronage slots are
dispersed based on merit and not necessarily on patronage. But
even so, some of those old patronage Tally Clerks, I remember
them, were very competent and very dedicated, and you wouldn't
have known which was on whose patronage. I guess Mark and
Lorraine can speak better to the pedigree. But as far as I
know, the Tally Clerks were and continue to be appointed solely
to do business of conducting a vote.
Mr. Pence. So it wasn't on a patronage basis, but you are
saying as far back as you can see there has always been a
tradition of the Tally Clerk that conducts the vote operating
in a nonpartisan manner.
Mr. Johnson. Absolutely. And I say that not just as a
casual observer, but having been the Parliamentarian or Deputy
for many years, because there is a de facto relationship,
talking about conduct, where the Parliamentarian, as the agent
of the Chair working with the Tally Clerks, a further assurance
that the vote is being conducted correctly. While the elected
Clerks supervise, the Clerks of the House supervise the
operations of the Tally Clerk's Office, yet there has always
been a de facto tacit understanding, never contested, but
always amicable, that when those Tally Clerks are on the
rostrum and conducting a vote, they will be taking the advice
and working with the parliamentarians because the
parliamentarian's role derives as agent of the Chair.
Mr. Pence. Clerk, did you want to speak to that broad
question about who conducts the vote, what your understanding
is as the chief Tally Clerk?
Mr. O'Sullivan. Mr. Pence, at the direction of the Chair we
would initiate a vote. I guess we would use the term. We would
open up the electronic voting system for the vote on the
question at hand. And so we were at the direction of the Chair.
When do we initiate the vote and ultimately when to close it.
So I guess in a sense we would be, like Charlie said, sort of
an agent of the Chair to operate the system and be there to
make sure that all Members are recorded.
Mr. Pence. So if I may, Mr. O'Sullivan, at the direction of
the Chair, you conduct----
Mr. O'Sullivan. We would initiate the vote.
Mr. Pence. You initiate the vote, but then you conduct the
vote in a manner that--is it your understanding that the Chair
is in roll call or the conduct of the vote or do you perceive
that the conduct, the administration, the assembling of the
vote is the purview of the Clerk under the rules and under the
traditions?
Mr. O'Sullivan. We have to make sure Members are recorded,
that their votes are cast and recorded.
Mr. Pence. I want to be sensitive to the balance of our
panel, but let me ask you a couple of follow-up questions.
Thank you. If I can. Mr. Johnson, again, you were talking about
the electronic voting system during your previous testimony.
And you said the assumption and procedure, the tradition, the
custom, and then, I think, I have to look at the record, you
made a professorial sidebar but then you came back to, I think
your phrase was the Tally Clerks was the custom. Did I hear
correctly in your testimony that this business of the tally
clerks in their role in their assembling of the vote, that that
is the core of the way that a vote has been conducted and
essentially certified throughout the history of the
institution?
Mr. Johnson. Yes. That would reflect what I was trying to
say. I did not mean to engage in semantics between ``control''
and ``conduct.'' As you will discover if you haven't already, I
suppose there are always efforts to try to control timing of a
vote from various parts of the Chamber. Those efforts are
resisted properly by the Chair by use of the tally clerks'
slips. So the term ``control'' in that sense has a more loaded
meaning than I meant to convey.
I am not trying to say that the Chair is susceptible to any
kind of influence--which would diminish the accuracy of the
vote.
Mr. Pence. The last question was just specifically on the
incident referred to Deschler Brown, volume 14 that took place
in 1995. I think you testified that in that instance the Tally
Clerk had handed a slip to the Chair and using the slip the
Chair announced the result. And then the next day by unanimous
consent that vote was vacated and the vote was retaken; is that
correct?
Mr. Johnson. Yes.
Mr. Pence. The Chair had called the vote as a consequence
of what we would call the ordinary operation of the Tally
Clerk's roll?
Mr. Johnson. As I recall, I was there, the moment that the
Clerk handed off the tally slip at 213 to 214, those Members
were just beginning to emerge separately down the side aisles
into the well. The Clerk had processed every other vote up
until that moment and was handing up the slip when those
Members approached and the Chair finally announced the result
and said the amendment is not agreed to. But the Chair, with
the slip in his hand, which I think had been properly handed up
at that moment, relied upon the slip, although the new Members
were visible to the Chair.
Mr. Pence. This really is the last question and I will
yield back to the vice chairman.
You made a very interesting statement about there had been
a long period in the history of the institution where there had
not been appeals to the ruling of the Chair, if I heard you
correctly.
Mr. Johnson. Yes.
Mr. Pence. And that there has been in your words a
proliferation of appeals. I certainly wouldn't ask the Chief
Tally Clerk to respond to this. Why--why is this that
important? I mean, many people looking in--frankly many Members
on the floor will think, well, if you disagree with the Chair,
we will appeal the ruling of the Chair. But I thought that you
implied in your statement that there was something extremely
important that reflected in that time and history when people
did not appeal the rulings of the Chair, and I wondered if you
might elaborate on that.
Mr. Johnson. Mr. Pence, I was trying to make the point--
maybe it seems it is self-serving, but it shouldn't--that the
appeals began to proliferate not because Members were in
disagreement about the accuracy of the Chair's rulings, but
rather to establish voting records--this has gone on with
appeals from both sides--voting records on the merits of the
underlying proposition, for example, on the consideration of an
amendment which was not in order because the Rules Committee
prohibited it.
There have been several occasions where the Members have
offered such an amendment anyway knowing that it was going to
be ruled out of order. An appeal of the ruling of the Chair was
a demonstration of the frustration with a special rule that
might be governing that process. But the notion that appeals
would be used to establish voting records which could then be
perhaps spun in various circles, Members being for and against
a proposition was misguided because, where the real vote was on
the propriety of the Chair's ruling.
When the appeals began to creep back in, when Bob Michel
was minority leader, he would support the Chair. He would never
support an appeal from his side if he thought the Chair's
ruling was correct. I think the most institutionally minded
Members, regardless of party, would support the Chair.
There are precedents which say the Chair's count for a
quorum for the yeas and nays of a division cannot be appealed.
The Chair's statement of the numbers cannot be appealed
directly. There is that new rule which you may be asking
about--and I am not the expert on that--which says the Chair
cannot hold a vote open solely to change the outcome.
Mr. Pence. You are saying that what was included in the
history of the institution was only utilized when there was an
actual question about the tally of the vote or the
interpretation of the rules, which has turned into a more
substantive opportunity to record actual content, and that is a
helpful clarification.
I thank my colleagues and yield back.
Mr. Davis. Thank you, Mr. Pence. Let me actually pick up,
Mr. Johnson, on an observation that you made. You were in your
exchanges with the chairman, Mr. Delahunt; you were drawing
distinctions between custom, practices, precedents, and the
formal textual rules of the House of Representatives. I don't
want to dwell too much on the difference, but I want to make
one observation and perhaps get you to respond to it.
One of the issues whenever the House or a committee of the
House examines the propriety of a presiding officer's actions
is obviously whether or not there was a violation of the rules
or whether perhaps there was a violation of custom and
practice. And those of us who are lawyers are familiar with the
idea of notice. And one of the governing concepts in the civil
and criminal rule is that you are on notice as to whether your
conduct is actionable or in violation.
The strongest kinds of notice exist when someone violates a
textual rule; I assume you agree with that. Something that is
written down. If you are in a position of responsibility, you
are often presumed to know the written rules, the written
obligations. And it is possible for someone to take you through
the text and then through a history of interpretation of the
text.
If the allegation is that a custom and practice was
violated, it strikes me that might--by definition--raise some
problems from a notice standpoint. I think you would probably
agree with me that the body of custom, practice, precedent--
because it is not necessarily captured in one place because it
is based on the tendencies and given subjective
interpretations--it may be harder to flesh out a textual
definition of the violation.
We have a rule book in front of me right now. If I am
alleging that somebody violated a rule, I can point to a clause
and a page and a text and say that your actions don't comply
with them. If I am saying that you violated a custom or
practice or precedent, it strikes me that may be harder. Can
you react to my observations?
Mr. Johnson. I agree with all of those observations. It may
be harder to respond if compelled to look for text to put
something in context, but not necessarily impossible. That is
why I tried to anecdotally suggest that if the Chair would want
to know whether any Speaker had ever opined about the role of
the tally clerks, one could do some research, as I did
yesterday into Hinds' and Cannon's Index, volumes 9 through 11,
under the category ``the yeas and nays.'' There was a little
caption that led me to the actual precedent I just read from.
It wasn't as immediate as looking for a black letter
arrangement in the rule book.
Now, the small print that follows this and other rules are
citations either to the date volume and section citations to
printed precedents or if those are not yet published in the
precedents, they are citations to dates and to permanent record
pages. If it is the Speaker's own ruling, his or her name,
Speaker Pelosi or Speaker Hastert for example, will appear
parenthetically next to the citation. And if any other Member,
Speaker pro tem or Chairman of the Committee of the Whole,
there will not be a citation to the Member in the Chair.
But in any event, it is less frequent, I would dare say
there are fewer people, certainly fewer Members and perhaps
fewer staff who take the time and have the inclination to
research some of these small still usage and tradition
descriptions. It is not impossible, but I don't disagree with
your characterization.
Mr. Davis. The rules are much more available to Members and
presiding officers than the customs and practices and
precedents the House, as a general rule. I would assume you
agree with that. In terms of being able to resort to one as
opposed to the other.
Mr. Johnson. Readily resort to, yes.
Mr. Davis. And let me go back to the 1995 example, because
I think it is instructive for obvious reasons and it is one
that perhaps most of my colleagues were not familiar because
some of us on this panel have been here fairly recently. Some
Members were here in 1995--maybe perhaps one member of this
panel was here in 1995.
As I understand the scenario there was a Republican
majority control in 1995, after the '94 elections. The
presiding officer obviously was a Republican and as you
describe it, there was a tally sheet 214 to 213, properly
handed to the presiding officer. Apparently accurate reflection
of the recorded vote. As the presiding officer reaches out to
pick up the tally sheet, two Members of the minority, two
Democratic Members, come forward apparently manifesting their
intent to vote. Apparently their vote had not been recorded. It
was not a matter of a change. Their vote had not been recorded.
The presiding officer chose to not give them the courtesy of
recognizing them. There was consternation on the floor. There
was a motion to adjourn. Apparently some discussions back and
forth between the leadership, and the next day the vote was set
aside.
As I understand responses to Mr. Delahunt, there was no
privileged resolution. Did I understand that correctly? There
was no privileged resolution around the dispute?
Mr. Johnson. It did not seem necessary to either side of
the leadership. The minority leader, as aggrieved as he was,
used ``usual channels,'' you might say as a British
description, to get it reversed by unanimous consent.
Mr. Davis. Was there a textual rule that you understood to
have precluded the presiding officer's actions on that day?
Mr. Johnson. A textual rule? No, because he was announcing
the result based on at least a momentary certification from the
Clerk. So I don't think there was a textual rule. It was a
matter again of the custom and tradition of the Chair being
fair.
Mr. Davis. And just to stop you in that point for a moment,
you would certainly agree that in 1995, then as now, there was
no textual rule referring to the courtesy of recognizing
Members who wish to vote. None of that was covered by the text
then and now?
Mr. Johnson. Unless you point to the first clause of the
code of conduct, which says that all Members, including the
Chair, shall conduct themselves at all times in a manner
reflecting creditably on the House and within ``the spirit and
letter'' of the Rules. To me that reference to the spirit of
the Rules speaks volumes, and it is part of the code of
conduct. There is no precise rule on the case in point.
Mr. Davis. Then and now, there is no provision of the rules
that specifically states that if a Member manifests an intent
to change a vote, there is no rule that really governs that
scenario specifically?
Mr. Johnson. Let me point further to consistent opening day
announcements of policy by Speakers, going all the way back to
Speakers Foley and Gingrich. Through the early nineties, votes
were held open interminably because Members could signal
through the cloakrooms that they were on their way and the
Chair--a tradition grew that the Chair would honor Members who
had asked that the vote be held open and the business of the
House was being impacted adversely. Speaker Foley first
reversed this policy in 1993.
Then one of the first things on opening day in 1995 that
Speaker Gingrich announced was that he was going to adhere to a
strict 17-minute cutoff. They wanted to change Members'
behavior. And you have to do it with some consequence in mind.
You can't just urge them on opening day to be prompt. The
consequence was that if you were not there, the Chair was going
to have a tally slip and announce the result based on the vote
at that moment in time. But it would be based on a slip.
The Chair also said and has continued to say to this day,
Madam Speaker's statement on January 5th, 2007 was that the
Chair will never in effect disenfranchise a constituency by not
allowing a Member in the well to vote or change his or her
vote. So that consistent policy has electronic voting underlay,
and so that is ``black letter'' as a printed announcement that
has underlain every subsequent Congress since 1993, whether
under a Republican or Democratic Speaker.
Mr. Davis. Let me follow up on that before I move to my
other questions. In your experiences in the House, from what
you recall, how many instances were there privileged
resolutions involving alleged violations of custom and practice
and precedent?
Mr. Johnson. I would say they have begun to proliferate.
Perhaps one of the most memorable was the collateral challenge
to the 3-hour vote prescription drug vote by questions of
privilege from the Minority Leader on more than one occasion,
even going over into the next Congress by alleging recurring
violations of custom and practice. The questions of privilege--
you have to distinguish between what a question of privilege
can do and cannot do. It can't be a substitute for a rules
change. You can't have a question of privilege say that the
rules should have said something when they did not.
So questions of privilege have been ruled out of order when
they are attempts to change the rules or their interpretation.
Questions of privilege go to the dignity and integrity of
proceedings. The question was sometimes what the resolved
clause was trying to answer with regard to custom and
tradition, and in the case of the 3-hour vote it was to
conclude that a breach of custom had occurred and assert that
it should never happen again.
Mr. Davis. One quick question about that. How many
instances do you recall privileged resolutions challenging
action of a presiding officer in terms of calling a vote?
Mr. Johnson. I don't know that I have seen any, other than
in the aftermath of what happened August 2nd there were other
such questions of privilege.
Mr. Davis. I am asking prior to August 2nd.
Mr. Johnson. I can furnish that for the record. One I can
remember, Tip O'Neill was in the Chair, on whether a roll call
vote--the television should cover the floor during a vote as
unedited coverage. That was offered as a question of privilege.
Mr. Davis. But with respect to the very narrow question, I
take it your answer is that you don't have any recollection
today of an instance where a presiding officer's calling of the
vote was challenged?
Mr. Johnson. No, because the avenue is there most of the
time for an immediate confirmation.
Mr. Davis. And just to clarify, a Member can stand up and
move for reconsideration of the vote if they so choose?
Mr. Johnson. Yes, in the full House.
Mr. Davis. And you mentioned the other avenue, informal
discussion between the leadership to move by unanimous consent
to set the vote aside.
Mr. Johnson. Yes.
Mr. Davis. Let me turn to the rule that was added by the
new majority in the House in January of this year. It is a one-
sentence addition to the clause 2(a), rule XX. This is a quote:
A record vote by electronic device shall not be held open for
the sole purpose of reversing the outcome of such vote.
The language is interesting because frankly in my
experience a lot of Members don't actually know the language.
They know that we did something to address the lengthy vote
delay regarding the 2003 Medicare bill. And by way of anecdote,
even in discussing this provision, a number of Members will say
that my understanding is that the vote can't be held open for
purposes of influencing the vote. That is not written here. Not
only is the word ``influencing'' not used, the word ``purpose''
is not used without the modifier ``sole.''
A number of Members have said you cannot hold open the vote
for the purpose of changing the vote. That is an inaccurate
statement of the rule. Many formulations that I have heard
anecdotally do not accurately state the rule.
The rule says ``for the sole purpose of reversing the
outcome.'' Let me raise two scenarios to both of you and get
reaction. By definition ``sole purpose'' seeks to inquire as to
the presiding officer's intent. And as all of us know there can
be multiple intents behind action. Someone could decide to
leave a vote open with one possible intent being influencing
the outcome or reversing the outcome. One could have another
intent of leaving a vote open to allow Members to think about
changing their votes or to reconsider on both sides.
Obviously both sides are sitting there capable of being
lobbied by the Members and capable of changing and a Member
could leave a vote open for those two reasons--or the presiding
officer could leave a vote open for those two reasons and have
a third in mind. Perhaps there is a Member who is not here and
we don't know where that Member is and that Member could be en
route. That Member could be in Maryland or in the tunnels.
A Member--a presiding officer could have a fourth instinct,
uncertain whether or not there are Members who are attempting
to change their vote, could see motion in the well, not sure if
people are moving around or if they are moving towards the well
to change their votes.
All of that to say, the rules seem to focus very clearly on
exclusivity of purpose and they preclude and exclusively forbid
a particular kind of purpose. But by definition it seems to me
that the rules contemplate that a presiding officer could be
motivated by multiple factors. Let me get you to respond to
that. Does that make sense to you?
Mr. Johnson. Yes, it is the mens rea of the Chair that is
the test of whether this rule is violated. Who rules on what?
The Chair, him or herself. The Chair presumably knows its
intent. Others can claim to know because they have seen
pressures brought to bear externally, but it is the Chair's
intent as discerned by the Chair at that moment in time as the
vote is being kept open. I think that there have been several
parliamentary inquiries in this Congress under this rule during
the pendency of a vote, to which in two or three cases that I
have seen the Chair has responded to the parliamentary inquiry
that either the Tally Clerk has not yet finished processing
changes or the Chair is aware that other Members are on their
way to vote.
Those are statements of public record showing that the
Chair can, and does, have other considerations in mind, more
than reversing the result.
Mr. Davis. And as you understand the rules, Mr. Johnson,
there is no provision of the rule which requires the Chair to
declare or the presiding officer to declare his reason for
delaying the vote. There is no provision that anywhere requires
a statement of intent on the part of the Chair?
Mr. Johnson. To the contrary. I think that would be
inappropriate for the Chair.
Mr. Davis. And certainly if there is no custom, practice or
rule to the contrary, it would be enormously unusual.
Mr. Johnson. Let me point out, Mr. Davis, as the Chairman
said, I am under contract as a consultant with the
Parliamentarian to work on the precedents. But I am very close
to the Parliamentarian and his staff and I honor them and they
are dear friends, and I would do everything appropriate to tell
people, when asked, that they are doing the right thing in the
interpretation of this rule and they should be supported in
their advice.
But the question of how you challenge an alleged point of
order on this rule is very difficult because it could come
during a vote which is in progress. And if the Chair overrules
the point of order because that was not his sole intent and
some Member appeals the ruling of the Chair, the system is
incapable, as I understand it, of allowing another recorded
vote to be conducted within a pending vote. So the system would
not allow a dispositive vote on the appeal from the Chair's
ruling if it ever comes to that. And hopefully it won't.
So when, if at all, is a point of order cognizable? Is it
immediately following the announcement of the result? I think
it does constitute a question of order from which an appeal can
be taken. Now, there is some----
Mr. Davis. Let me stop you one second. I want to move and
give other Members a chance to ask questions. Let me pose one
question before I go to Mr. LaTourette. It deals again with the
text of clause 2(a) of rule XX. As I said earlier, a number of
Members mistakenly believe that it says changing the outcome,
influencing the outcome, altering the outcome. It says
``reversing the outcome.''
So let me give you a scenario as my last question and you
can react to it. I could imagine a vote being kept open, let's
say the number is 214 to 213. That is the number on the board.
That is the number as far as the presiding officer knows. I
could imagine a scenario where the presiding officer leaves
that vote open for an extended period of time. There is an
outcome that is on the board that has not yet been rendered
final. One side is leading 214 to 213. The presiding officer
keeps the vote open. I can certainly imagine that there might
be a challenge in that instance on the theory that the numbers
are up, there is no one attempting to change their vote. Mr.
Presiding Officer, you are keeping the vote open simply for the
purpose of reversing the outcome. That is one scenario. That
kind of scenario seems to be expressly covered by this rule.
You can't reverse something which has not yet occurred.
There is another scenario where the vote is tied, that
there is no outcome one way or the other in either situation.
Mr. Johnson. There is an outcome.
Mr. Davis. That is right. The motion does not carry if it
is tied. But there is also a tradition and custom, as I
understand it, of giving Members a chance--what I understand,
the preference is for there to be a margin one way or another.
You can react to that. I understand that the rules don't
require that, but I want to get your reaction as to whether or
not that is the custom.
If for whatever reason the vote is tied, and that seems to
be a different scenario than if there is a one-vote margin one
way or another. Can you comment on that?
Mr. Johnson. I believe I can. Because the rules say, in the
case of a tie, the question shall be lost. So that is a result
dictated by black letter rule. And I don't think there is a
custom or tradition that says, well, let's just wait and see if
someone changes so it is not a tie because it is more decisive.
I don't think--I have never advised an occupant of the Chair to
wait and see if someone will change from a tie.
Mr. Davis. But at 213 to 213 that would mean hypothetically
the motion to recommit would not carry.
Mr. Johnson. Yes.
Mr. Davis. Therefore, someone who keeps the vote open to
reverse the outcome, you would have to create a scenario that
it was a motion to carry. 213 to 213, the motion fails.
Mr. Johnson. A reversal is the key, you are right.
Mr. Davis. 213 to 213, the outcome would be that the motion
fails. To reverse the outcome would mean that the motion would
have to carry. Correct?
Mr. Johnson. That is correct.
Mr. Davis. And the other scenario of it being 214 to 213
the vote being kept open for the purpose of someone flipping
votes and turning it the other way?
Mr. Johnson. Or someone else coming in. In either scenario
you do not have 435 Members voting. On November 21st, 2003, all
Members were there.
Mr. Davis. Let me go to Mr. LaTourette.
Mr. LaTourette. Thank you very much, Mr. Davis, and thank
you, Mr. Johnson, for your testimony. I have three lines of
inquiry but before I get to those three lines I want to follow
up on some items that Mr. Davis mentioned in his questioning.
Specifically, Speaker Pelosi at the beginning of this Congress,
I think that is what you are referring to, the relevant part of
her announcement, was that: Members will be given a reasonable
amount of time to accurately record their votes. No occupant of
the Chair will prevent a Member who is in the well before the
announcement a chance to cast his or her vote.
That is what you are referring to?
Mr. Johnson. Yes.
Mr. LaTourette. And again going back to the unfortunate
event of 1995 that was included in the Speaker Gingrich's
opening statement as well.
Mr. Johnson. Yes.
Mr. LaTourette. So it could be argued that what the then
occupant of the Chair did was violate the Speaker's opening
statement by not allowing those two Members of the minority who
appeared in the Chamber and were trying to vote from casting
their vote.
Mr. Chairman, I ask unanimous consent that Speaker Pelosi's
opening day announcement be included in the record.
Mr. Davis. No objection.
[The Speaker's opening day announcement may be found in the
Appendix.]
Mr. Johnson. One little nuance. The Members were
approaching the well, they were in the Chamber. And the use of
the word ``well'' means that they are in the Chair's immediate
view as perhaps opposed to coming down an aisle.
Mr. LaTourette. In my mind, as a Member, that is a
distinction without a difference. You have people trying to
vote.
Mr. Johnson. I don't dispute that.
Mr. LaTourette. And the other one on the remedy for a
violation of rule XX. If a point of order is made during the
course of the roll call vote, there is no opportunity to appeal
the ruling of the Chair. Isn't the answer because it is
hortatory and the remedy is a question of privilege?
Mr. Johnson. That is a precise question the Parliamentarian
is looking at right now. Another argument might be that it is
subject to a point of order immediately following the vote,
after which if the Chair is overruled on appeal, that could
vitiate the vote. It does not necessarily change the result
back to what it might otherwise have been. I don't think anyone
would suggest that if the Chair is overruled in his decision
that he wasn't holding the vote up solely to reverse the result
and the House disagreed, that that would immediately change the
result. It may vitiate the vote by operation of the rule.
That is a matter of new interpretation. But the question of
privilege could be another approach to it.
Mr. LaTourette. And I would have to say, having this new
rule in place, Mr. Davis's questions really point to the fact
that it is a rule that does not mean anything because how are
we ever going to call on the person in the Chair unless he or
she admitted it? It is a rule change that leaves me puzzled.
Mr. Johnson. It does not mean anything unless and until the
House, if permitted, reverses the Chair. Then it may mean
something.
Mr. LaTourette. This isn't a question, but a statement--but
you almost have to have the occupant of the Chair saying yes, I
did it.
Mr. Johnson. Yes.
Mr. LaTourette. I want to talk to you about the role of the
presiding officer. On page 804, in reference to the Speaker pro
tem's obligation on the count of the division.
I think this applies to all. One of the suppositions on
which parliamentary law is founded is that the Speaker will not
betray his duty to make an honest count of the division.
Is that reference to your letter of May 20, 2004? On page
2, the first full paragraph you write: ``I believe that the
long-standing tradition and role of the Chair in rendering
impartial and proper decisions has been maintained and
appreciated despite the switch in party majorities and despite
occasional efforts to appeal various rulings. It has been
reassuring when bipartisan majorities understand and support
the rulings of the Chair solely on the basis of their propriety
as nonpartisan institutional standards with precedential
significance.''
And I think that is the paragraph you were discussing
earlier and I would ask unanimous consent that that be made
part of the record as well.
Mr. Davis. Without objection.
[The letter from Mr. Johnson, Congressional Record, May 20,
2004, may be found in the Appendix.]
Mr. LaTourette. We all know the Speaker of the House is
elected by the majority party. The occupants of the Chair are
representatives of the Speaker, appointed by the Speaker. And
so for the past 12 years the occupants of the Chair have all
been Republicans and since the beginning of this Congress they
have all been Members of the Democratic Party.
Could you describe from an institutional standpoint, what
is the role of the presiding officer? Is he or she a partisan?
Is he or she a Democrat in the way they conduct business? Are
they combatants in debate or are they above the fray?
Mr. Johnson. They are above the fray. They should be.
They are not combatants. They don't participate in debate.
They are not supposed to.
Regardless of the partisanship of the person appointed--we
have always been very insistent with the Speaker's staff when
asked, regardless of who the Speaker happens to be, the staff
requests from all Members asked to preside that they adhere to
certain guidelines. Whether the Member is on the committee
handling the bill; whether the Member is competent in the
Chair. That is not information to be published, but the fact
that so-and-so is in the Chair and so-and-so is not might be an
indication that the Speaker's staff believe that our advice
about who is being called on to preside should be heeded.
That is not always the case. on occasion there are Members
who appear and disappear into and out of the Chair without
advice from the Parliamentarian. The important point is once
that Member is in the Chair, that an immediate conversation
becomes appropriate between the Parliamentarian and the
presiding officer, whether it is someone brand new or someone
who has partisan stripes or whatever, to try to assure fairness
and anticipate problems.
So that if the Member feels that he or she cannot be
nonpartisan or detached going forward, anticipation in this
role is absolutely essential. You have to be able to look
forward to see what might be happening on the particular issue
and whether the person in the Chair can be impartial.
I have asked people, I was not embarrassed to ask some
Members in the Chair, ``Do you feel you are appropriately in
the Chair at this point?'' And usually they say yes, but
sometimes they will not even be aware that there is a potential
perceived conflict, much less an actual conflict.
And that conversation is in confidence. On your walkthrough
the other day you probably saw the mute button.
Did John demonstrate? The button along the edge of the
rostrum allows the Chair and the Parliamentarian to have a
conversation unheard by the two audio systems, in-house or
public. The proper utilization of that button, the light will
show if the microphone is on, and the ability to have that
conversation is essential.
I have to believe that occupants of the Chair should be
advised if they are not inclined to be above the fray.
Mr. LaTourette. Let me get to something else you talked
about in preparation of tally slips and some observations made
by the Speaker in 1918. The staff pointed out during the
walkthrough the press and public was not with us, so we have
purloined some tally slips and I just wanted to have a tally
slip displayed as I ask you some questions.
Is that something you recognize?
Mr. Johnson. Yes.
Mr. LaTourette. That is the tally slip that is currently in
use by the House of Representatives.
Mr. O'Sullivan. We refer to that--we would call that a page
from a yea-nay pad.
Mr. Johnson. Slip.
Mr. O'Sullivan. When we refer to the tally slip, it is the
preparation for the call of the roll. It is another document
that we use traditionally for the election of the Speaker. But
if we have to call the roll we would use the tally sheet.
Mr. LaTourette. What do you call this? A slip?
Mr. O'Sullivan. I always call that a slip from the yea-nay
pad. If it is tally sheets people are familiar with, that is
fine.
Mr. LaTourette. So whatever it is called, this is the
document that the standing Tally Clerk prepares at the
conclusion of the vote?
Mr. O'Sullivan. That is correct.
Mr. LaTourette. And Charlie--Mr. Johnson, during our
walkthrough the other day we had the opportunity to speak with
the current Parliamentarian of the House, Mr. Sullivan, and he
indicated on page 43 of the transcript, not in response to any
question, he said, ``May I say something about the production
of this slip? This is probably the most important quality
assurance process step in the process because when I get that
slip I know that the numbers that are written on that slip came
from a voting system that was closed to further input at the
time those numbers were written down.''
I have two questions: One, do you agree with Mr. Sullivan's
observation about the importance of the slip?
Mr. Johnson. Yes.
Mr. LaTourette. And what is your understanding of the
significance of that slip in a vote?
Mr. Johnson. It is a de facto certification from the Tally
Clerk, from the entire Clerk's operation, transmitted to the
Chair, that there are no more changes being processed into the
system. As far as that Clerk is certifying at that moment--and
those moments change, that the slip handed up is the result as
the system has absorbed it with voting stations closed and no
other cards being processed at that moment.
Mr. LaTourette. So it is the Clerk's certification pursuant
to rule XX to the Chair through to the Parliamentarian that is
the accurate count on the vote?
Mr. Johnson. Yes.
Mr. LaTourette. In your 40 years as Parliamentarian or in
the Parliamentarian's office, including the 1995 episode that
we have talked about, are you aware of any recorded vote
conducted in the House of Representatives where a slip or a
tally sheet has not been transmitted by the Clerk to the Chair?
Mr. Johnson. No. There have been some belated simultaneous
transfers as the Chair is reading, and this has happened--the
Clerk is handing up the slip, the Parliamentarian is handing it
to the Chair, perhaps as the Chair may be reading from the
board, because the board says ``final'' on it. And if there is
any discrepancy--Mark, you will have to correct me--where if
the Chair is reading numbers that for whatever reason don't
coincide with what is on the slip, the Parliamentarian can use
the mute button and say this is not being corroborated by the
slip.
Mr. LaTourette. And let me ask you that. If there were an
instance where a slip is never transmitted by the Clerk through
the Parliamentarian's chair, how could the Chair call the vote?
Mr. Johnson. How could in fact or how could properly?
Mr. LaTourette. Properly.
Mr. Johnson. Well, I would urge that there would be no
other proper alternative to the announcement of the numbers and
the announcement of the result. And I think--I hope John made
it clear that it is the announcement of the procedural result,
not necessarily the characterization as final on the board--and
not necessarily the recitation of numbers. I can't count the
number of times when the Chair has read numbers from a slip
only to have the Tally Clerk hand up another slip. Those are
the up-to-the-moment numbers and that can happen several times
in one vote.
But I can't imagine a way, because the machine -- unless
the machine is inoperable somehow at the last second, the Tally
Clerk reports an inoperability, I can't imagine the Chair's
doing anything other than following a certification from the
Clerk.
Mr. Davis. If you would yield for a moment let me inform
the panelists and the Members there has been one vote that has
been called on a motion to adjourn. Obviously we are at the
very beginning of a 15-warning and I expect the vote to be on
at least 20 minutes or so. I would propose that Mr. LaTourette,
if you are near the end of your questions, that we go to you,
that we stop so that we can cast this vote, adjourn for about
5, 10 minutes or so and reconvene.
Mr. LaTourette. I appreciate that. I have one more line of
questioning. I hope I can complete it in 10 minutes.
The issue of pressure on the occupant of the Chair. And
during your testimony you indicated that--the note that I made
is that it is not uncommon for influence within or without the
Chamber to be attempted to be placed on the occupants of the
Chair. And I wrote down you said ``properly rejected.'' What do
you mean by that?
Mr. Johnson. I mean there is a distinction between when the
Chair receives a signal from leadership, it is usually a
signal, either verbal or some other way communicated from the
majority leadership. The Chair has obviously been appointed by
the majority, that as they view their monitor, from their
perspective, if the Chair can close the vote, he should. Not
that he must. Not that he is going to be excoriated by the
Speaker if he does not. From the leadership's perspective they
would prefer that the vote either stay open or close. There are
signals that have been used over time--that suggest to the
Chair what the leadership would like to see consistent with a
proper call of the result.
Mr. LaTourette. What do you mean--you indicated that that
is not uncommon. I have seen it, we have all seen it. What did
you mean by the phrase ``properly rejected'' and what I took
you to mean----
Mr. Johnson. It means if the Chair knew that the vote was
not fully processed, he would properly reject the importuning
of the leadership to shut the vote down.
Mr. LaTourette. And on the issue of pressure, Mr. Davis in
his question talked about the difference between black letter
laws and the rules and precedent and the notion--I don't know
if all of us are lawyers--that there is notice. You can't be
punished for conduct that you did not know was wrong.
When there is a person in the Chair, what interaction
between the person in the Chair and the Parliamentarian in
terms of advising the occupant of the Chair that they are
comporting with the rules, customs, and traditions of the
House? Is there one?
Mr. Johnson. Yes, and I think I alluded to it earlier.
Preferably it is a constant interaction. It is a confidential
interaction. And it is an anticipatory interaction. Because the
Parliamentarian wants the Chair to be doing the right thing and
being perceived to be doing the right thing. The conversation
is ongoing, and the conversation can begin before the person is
appointed. The best occupants of the Chair, I think if they are
doing it for the first or second time, come for advice in
advance, for a private tutorial if you will.
Or new Members may be asked to preside during Special
Orders during which time any of the Parliamentarians may talk
to those Members and find out if they are interested in
returning to the Chair in a more difficult role in some future
time, and to answer any and all questions. Not to be a
lecturer, but to answer any and all questions.
Mr. LaTourette. And then my last question, you indicated
during the 1995 vote that we have been discussing. Were you the
Parliamentarian on the floor at that moment in time?
Mr. Johnson. I think so.
Mr. LaTourette. And did you offer advice to the occupant of
the Chair that he was engaged in behavior that was, if not a
violation of the Speaker's announcement on opening day,
certainly----
Mr. Johnson. It happened so quickly during that
announcement that I believe I did say there are Members that
haven't been recorded. I did not hit the button and say to the
Chair you are wrong, doing the wrong thing, you are going to be
criticized. I did not have that much presence of mind. I wish I
had.
Mr. LaTourette. Would that have been an appropriate role
for the Parliamentarian?
Mr. Johnson. I think so.
Mr. Davis. What we will do is temporarily adjourn and
reconvene, and it is the Chair's understanding that there is
only one vote and the Members can quickly cast it and return so
that Ms. Herseth-Sandlin and Mr. Hulshof have a chance to
question. The hearing is adjourned for 10 minutes.
[Recess.]
Mr. Davis. The Chair reconvenes the Select Committee. I
recognize Ms. Herseth-Sandlin.
Ms. Herseth-Sandlin. Thank you, Mr. Chairman. And Mr.
Johnson, thank you. It was 24 days after you retired that I
arrived to the Congress, and it has been fascinating to listen
to your responses to the Members this morning. We have learned
an awful lot. I think my colleagues have, and I look forward to
sharing information with others of my colleagues.
I do want to pick up on the line of questioning that Mr.
LaTourette was pursuing as it relates to the interaction
between the Parliamentarians and the presiding officer as time
is drawing down. And it looks as though in terms of the steps
prior to calling the vote.
Could you talk a little bit about--you had mentioned that
there had been times that the Chair is starting to read or has
read the numbers and then another tally slip is presented. Can
you talk about what leads to multiple tally slips being
prepared and presented to a presiding officer?
Mr. Johnson. Yes. As the vote winds down, there are cue
cards available. Some Chairs really read them, others have
enough experience or at least think they know what is on the
cards. The Chair first asks are there any other Members who
wish to be recorded. You have all experienced that. And only
after that does the Chair inquire are there any other Members
who wish to change their votes? That question from the Chair is
often the signal to the Tally Clerk potentially to shut down
the voting stations. When the Chair asks for changes.
Mr. O'Sullivan. In practice, though now it is a cue, but we
don't immediately--if other Members are appearing to vote we
don't immediately close the voting stations.
Mr. Johnson. That is right. If the Chair has asked that and
knowing that there are going to be a number of Members voting,
clearly it is a signal for the stations to be kept open even
after the Chair's first inquiry. But once the slip is handed up
and the Chair begins to read from it, many times the Tally
Clerk will say to the Parliamentarian, ``here is another slip,
because someone else has just come in.'' The Tally Clerk won't
have given a slip initially until he feels that everyone is in
the system that they know about. Either electronically or by
voting cards that have been submitted at the rostrum, the red
or green or amber cards which are either submitted because a
Member may have forgotten his electronic voting card or because
it is a vote change within the last 5 minutes of a 15-minute
vote.
And until the Tally Clerk correctly compiles a list of
changes, because changes are always announced, as I recall, by
the Reading Clerk, who is given the list of changes by the
Tally Clerk and read just prior to the announcement. That list
of changes obviously goes into the Record and it is considered
important contemporaneously because it shows leadership and
other Members who are changing. And changes made electronically
within the first 10 minutes of a vote are not going to be on
that list. Or if it is a 5-minute vote and a Member has changed
their vote electronically that Member will not be on that list.
But if a Member submits a card at the well, he or she will be
on the list. And it is appropriate I think for changes to be
shown.
But even so, I don't think the Tally Clerk prematurely
hands a slip up knowing there is still some processing to enter
into the system. I don't ever recall that. But at certain
moments where the Tally Clerk feels that he has cleared all the
cards that are in his possession and marked them and preserved
them, then a slip comes up. And very often Members will then
appear to change votes or to vote initially. They may have been
in the Chamber but just choosing not to vote until they are
certain of their vote. And so all of those reasons perhaps
account for new slips coming up. Is that responsive?
Ms. Herseth-Sandlin. Yes, and so perhaps both you, Mr.
Johnson and Mr. O'Sullivan can answer the next question, we
talked about a proliferation of things here in the last few
years. Have you seen incidences in which Members are going to
the well to change their votes in far more frequency over the
last few years than previously or has it always been the case
that there are a lot of last minute changes of votes in the
well?
Mr. O'Sullivan. Ms. Herseth, that is a little bit difficult
to answer. It depends on the roll call and the issue at hand.
In general, I think the number of Members voting in the well
have come down a little bit.
In 1995, there was a change in Congress from the Democrats
to the Republicans. In the beginning of that Congress for some
reason we had an incredible number of well votes the first few
months. And to the point where it was being questioned, was
this sort of coordinated? We were having 40, 50 well votes per
vote.
Ms. Herseth-Sandlin. Let me clarify. I am asking
specifically--and you mentioned it is difficult to answer, it
depends on the vote. Let me clarify, have you seen within the
last couple of years increased incidences of Members who have
voted on the EVS or even in the well who change their vote in
the final moments or even after time has run out when voting on
a motion to recommit?
Mr. O'Sullivan. I would--probably say no. But with this
caveat. Usually if a vote is going to create well votes at the
end, it would be that type of motion, a motion to recommit. If
we were going to have a vote that would cause a lot of well
voting, it would probably be a motion to recommit or a motion
where you get into sort of a double negative. If you vote yes,
you are against it or if you vote no you are for it. One of
those things.
Ms. Herseth-Sandlin. And is it in those instances where
there may be multiple tally sheets that are prepared and
submitted but ripped up?
Mr. O'Sullivan. Slips, yes, could be.
Ms. Herseth-Sandlin. And would it be your advice, Mr.
Johnson, as the Parliamentarian--you said earlier that
anticipation is the key and conversations between the
Parliamentarian and the presiding officer--would it be your
opinion that there should be a conversation between the
presiding officer and the Parliamentarian in anticipating an
incidence of changing votes in the final moments or after time
has run out on a particular motion whether it is a motion to
recommit or other type of----
Mr. Johnson. I would urge that conversation if the Chair is
uncertain or hesitant to take an initiative. But hopefully, and
I can say from experience, the best occupants of the Chair are
very accustomed to viewing the scenario directly in front of
them, with the Tally Clerk only a few feet away and they know
that it is the Tally Clerk standing in the well who is talking
to the Tally Clerk at the machine and then filling out the
slip. The Chair sees that and the best occupants of the Chair
don't need the Parliamentarian to tell them to wait for the
slip or wait for another slip because they will see and react
to the dynamic of that situation. Or at least they see Members
coming into the well, or if they see a dynamic where they think
that the result may not be final on that slip, they will look
potentially for another slip.
But that is not to say that there aren't occasions and
there probably should have been more occasions where the
Parliamentarian's conversation with the Chair would have been
helpful, if not necessary.
Ms. Herseth-Sandlin. And you had said in response to
questions of Mr. LaTourette that while you couldn't recall
another situation where the presiding officer called the vote
before the certification of the tally slip, you don't recall
these simultaneous transfers where the Chair was reading from
the board because the board had ``final'' on it.
Does the Parliamentarian advise the presiding officer that
he or she should not refer to the board at any point in the
proceeding, but wait until the tally slip is presented?
Mr. Johnson. Yes. Yes, I would say, having been through so
many of those votes, there are times when you are either
distracted or not as attentive as you should be to that precise
moment. But the most important thing for the Parliamentarian,
talking about acting with anticipation, is to prioritize what
is most important at that time. Because there are many times
where there may be a potential for distraction as Members and
staff approach the Chair and the Parliamentarian is trying to
keep them at a distance. At that moment the priority is to pay
attention and to the advise the Chair.
There may be a glance at the board and at the slip. If they
don't jibe and if the Chair happens to be reading from the
board and you are handing him up a slip that does not jibe with
it, you would stop him. But almost always what he is saying
from off the board, assuming he is not reading from the slip,
does jibe with what he is being given in his hands.
So to talk about the contemporaneousness of that transfer,
it is usually not a problem. But it can potentially be a
problem. So when there is any doubt if it is brought to the
Parliamentarian's attention or the Tally Clerk's attention or
to the Chair's attention, they could stop and indicate to
everyone that they are relying solely on the slip.
Ms. Herseth-Sandlin. So if a presiding officer began to
call a vote reading numbers from the electronic board and the
Parliamentarian did not yet have a tally slip in hand, you
would hit the mute button and advise the presiding officer that
a tally slip had not been prepared, ``final'' did not occur yet
on the board?
Mr. Johnson. That would be the proper role of the
Parliamentarian. Whether it is done in all cases, you know,
there are so many mitigating factors and they are not excuses
but that should be the role of the Parliamentarian.
Ms. Herseth-Sandlin. And then Mr. O'Sullivan, how again is
it, I know we talked some about this in the walkthrough, but
given that Mr. Johnson did make reference specifically that
there had been simultaneous transfers and the presiding officer
may be looking up at the board and seeing ``final.'' How is it,
again, that the seated Tally Clerk makes the decision to put
``final''? Is it because a tally slip has been prepared?
Mr. O'Sullivan. Ms. Herseth, no. The word ``final'' should
appear after the presiding officer has announced the tally and
has disposed of the issue at hand. Either the motion to
reconsider is laid on the table or if there is no motion to
reconsider, in the case of an amendment, the amendment is not
agreed to and they move on. At that point the word ``final''
normally appears.
Now, there have been instances where, as I think John
Sullivan mentioned, you get to that final period where a Member
presents himself in the well, and the presiding officer many
times will allow that Member to be recorded. So then at that
point the word ``final'' may have appeared because the Tally
Clerk hit the key to begin to exit the system. You hit final
and exit--and then you release the displays, by which, in
effect, you exit the system. And if you hit the word ``final''
you still can input votes. That is sort of the situation
sometimes.
Ms. Herseth-Sandlin. Which occurred on roll call 814,
because I believe that there were still cards that the seated
Tally Clerk was entering, processing into the system after
``final'' appeared.
Mr. O'Sullivan. I wasn't there that evening, so I don't
want to speak for the person who was there.
Ms. Herseth-Sandlin. And we will revisit, but you have
explained how that could occur.
Mr. O'Sullivan. It is possible.
May I say something? I would say it is rare. It is really--
it happens rarely, but it can happen where the word ``final''
appears and votes are still entered. But the normal 98, 99
percent of the time, even higher, is to wait until the final
disposition of the question and then the word ``final'' and
then release the displays.
Ms. Herseth-Sandlin. Mr. Johnson, do you recall what year
rule XIX, section 2 on motions following the amendment stage of
the motion to recommit was added to the rules?
Mr. Johnson. The guarantee--I am sorry; would you repeat
that question?
Ms. Herseth-Sandlin. In rule XIX, motions following the
amendment stage, motion to recommit, do you recall what year a
motion to recommit, that section was added to the written
rules?
Mr. Johnson. Well, an iteration of the current rule became
a rule as of 1909.\4\ That was the Joe Cannon revolt.\5\ That
was a huge issue because the Speaker was not only Speaker but
he was Chairman of the Rules Committee, which had been
reporting rules denying recommittal motions \6\ and going right
to final passage, probably as large a watershed moment as the
House has faced in its procedural history.
---------------------------------------------------------------------------
\4\ The rule was adopted in 1880, then an iteration of the current
rule restricting the authority of the Rules Committee became a rule as
of 1909.
\5\ The revolt against Speaker Joe Cannon.
\6\ To the minority.
---------------------------------------------------------------------------
Until that time in 1909, when motions to recommit were
being offered, they were being offered by the chairman of the
committee to make so-called sweetheart corrections in order to
deny the minority opposition the right to offer a substantive
motion.
So after the amendment was adopted in 1909, it stood until
1995, when the current rule was put in place. That was the
result of a series of motions to recommit which were restricted
by the Rules Committee in the late 80's and early 90's. The
Rules Committee, relying upon a 1934 ruling,\7\ even in the
face of the 1909 rule that guaranteed one motion to recommit,
rule did not say ``which \8\ shall always be allowed to contain
proper instructions.'' And so Speaker Foley, I think correctly,
but certainly in difficult rulings, which were appealed, which
are all listed in here,\9\ ruled that it was within the
authority of the Rules Committee to report a rule that limited,
as long as it did not totally deny a straight motion to
recommit. Those eight rulings were based on a 1934 precedent
which was the only precedent in all those years. But it was a
proper basis, even though there were appeals.\10\
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\7\ By Speaker Rainey
\8\ ``Which, if offered by the Minority Leader or his designee..''
\9\ Section 859 of the House Manual.
\10\ They were unsuccessful appeals which set further precedent.
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Appeals have proliferated. 1990-1994 was a watershed period
in the incidence of appeals. But there was a real dispute, the
Republican minority felt that they were aggrieved, that the
Rules Committee was shutting down proper motions to recommit.
So the Hamilton-Dreier Committee on Congressional Reform in
its 1993-94 bipartisan recommendation, and then the Republican
rules package in January of 1995 presented the current rule
that focused on the minority leader or his designee that they
could not be denied instructions in a motion to recommit if
they were proper. That is the current form of the rule, I
believe.
Ms. Herseth-Sandlin. Thank you. Back to the tally slip.
Some of what we have heard about the circumstances regarding
roll call 814 is that no tally slip was ever prepared. Can you
recall any instance, Mr. O'Sullivan, in which a tally slip was
never prepared for a roll call vote?
Mr. O'Sullivan. No. Like Charlie said, there may have been
a situation where a Member jumped the gun and read the board as
we were sending up a tally slip. It was just proceeded to
finalize, close the vote on that basis. But off the top of my
head I cannot recall a tally being announced without a slip.
Ms. Herseth-Sandlin. But is it your understanding that the
circumstances regarding roll call 814, even after there was an
initial call by the Chair almost simultaneous with the
``final'' appearing on the board, and then Members who were in
the well changing votes that continued to be entered after
``final'' was there, is it your understanding that even after
all of that there was no tally slip----
Mr. O'Sullivan. That is right. That is right.
Ms. Herseth-Sandlin. One final question, Mr. Johnson. After
we integrated the electronic voting system in 1974 and the roll
of the Tally Clerks, as you stated at the outset of today's
hearing, was never perceived to change once the electronic
voting system was adopted. And I think you joined the Clerk's
office, Mr. O'Sullivan, 4 years later in 1978.
Mr. O'Sullivan. Right.
Ms. Herseth-Sandlin. Do either of you ever recall any
discussions, either within the Clerk's office or in the
Parliamentarian's office, or in consultation with prior
Speakers, or Speaker Pelosi as she assumed the Speakership this
year--again going back to the issue of the infallibility of the
electronic voting system, but recognizing the quality assurance
Mr. Sullivan pointed out in our hearing last week--has there
ever been a discussion about changing the manner in which the
Tally Clerks or their responsibilities and the need for a tally
slip or addressing the situation of multiple tally slips in
light of the electronic voting system and what it can provide
the presiding officer?
Mr. Johnson. Early in the history of the electronic voting,
there were--I guess it was Carl Albert. The first 1 or 2 years
of electronic voting permitted Members to change their votes as
often as possible from voting stations even up to the very
final moment. And that, as you can imagine, was leading to all
kinds of uncertainty. Yet, there was still a slip. The
uncertainty of the result with no instant accountability--there
was going to be accountability the next day when people read
the Record, but they were not going to see who was making the
last-minute changes from terminal X in the last row. And votes
would flip-flop unpredictably to the point where the Speaker--
it was Carl Albert's Speakership--with the minority leader
agreed, that in the last 5 minutes of the 15 vote changes had
been to be controlled in the well so that the Tally Clerks
could get the changes--number one, and that there would be
changes announced. They imposed that kind of discipline. The
Members were not going to get a free ride so as not to show
changes, as some were doing for that brief time, and the Tally
Clerk was going to have some time to prepare that list of
changes as well as to submit a tally slip to the Chair.
There was never the absence of a slip. Initially, those
slips changed rather quickly because votes would flip-flop two
or three times within seconds before that adjustment was made
by the Speaker. But otherwise, I don't think the role of the
Tally Clerk over time has ever been under discussion.
Mr. O'Sullivan. The whole procedure of conducting votes and
the closing of votes is almost the same since I have been here.
Every vote has little permutations, a little different, a
Member's arrival, and things like that. But the whole idea is
basically done the same.
Ms. Herseth-Sandlin. And I said--I apologize, Mr. Hulshof,
one final clarification. Mr. Johnson, you had stated that you
thought it would have been a proper action that you think it
would be a proper action for a Parliamentarian, in the event a
presiding officer starts to prematurely call a vote in the
absence of a tally slip, to hit the mute button and advise the
presiding officer of that. Would it also be proper action of
the Parliamentarian to converse with the Tally Clerks to ensure
that the tally slip was ultimately prepared and presented?
Mr. Johnson. Yes.
Mr. Davis. Before the Chair recognizes Mr. Hulshof, it
appears that maybe another vote is being called which
apparently is a motion to adjourn. So let me ask you, how many
minutes do you think your questions will take? Obviously we
have not enforced time limits today. The Chair would like to be
fair.
Mr. Hulshof. I will attempt to conclude questioning to give
us the opportunity to walk downstairs and vote. If you let me
go forward, perhaps I can conclude.
Mr. Davis. The Chair recognizes Mr. Hulshof.
Mr. Hulshof. Thank you, Mr. Chairman. Bringing up the rear,
so to speak, a lot of these questions have been asked. I am
hoping to tie up some loose ends. I guess the first one--I know
Mr. Delahunt had another commitment--is to submit for the
record Speaker Champ Clark, whose home county is now in the
Ninth Congressional District that I am privileged to represent.
I don't have this on firsthand authority but my guess would be
that he would be part of Cardinal Nation, not Red Sox Nation.
Let me get that out early on.
Mr. O'Sullivan, a lot of our focus has been on custom,
precedent, usage, and Mr. Johnson has received I think the bulk
of the inquiries. Let me, again just tying up a loose end, you
were extremely helpful during our walkthrough last week. You
spent over an hour with us. That has not been part of the
record per se. But demonstrating for us specifically all of the
procedures, the safeguards that the Clerk's office has put in
place in order to get to that certification. That was extremely
helpful.
And, again, while you haven't had a lot of questions just a
couple of follow-up questions. You now, as I heard you in the
last response, you now have adopted our verbiage, that the
tally slip, even though the tally slip as you designed is
something other than this diagram that is just to your right,
correct?
Mr. O'Sullivan. We have the official tally sheet which we
would use to call the roll, if we had to.
Mr. Hulshof. But for the presiding officer, this tally slip
is the certification for the presiding officer?
Mr. O'Sullivan. Yes.
Mr. Hulshof. And reading from the board is not
certification by the Clerk; is that also true?
Mr. O'Sullivan. I would think, yes. This is what we would
say is the tally.
Mr. Hulshof. And as you stated before, roll call vote 814
you were not present?
Mr. O'Sullivan. That is right.
Mr. Hulshof. This was during one of the appropriations
bills, there were a lot of amendments.
Mr. O'Sullivan. Right.
Mr. Hulshof. And I think you had already gone home for the
night recognizing that the next day was going to be another day
full of votes and to keep a fresh Clerk in the chair, you had
gone home for the evening and you were not there that evening;
is that right?
Mr. O'Sullivan. That is correct. That is correct.
Mr. Hulshof. Mr. Johnson, I want to just supplement the
record in some of the things that you have referenced. For
instance, one of the things that you referenced was Speaker
Gingrich--the practice of receiving signals from the outside,
that Speaker Gingrich changed the policy and in fact in our
rule book that is reflected, is it not, on page 808, for those
who choose to avail themselves of this, that in essence about
two-thirds of the way down--I am reading now: Starting in the
104th Congress, the Speaker has announced that each occupant of
the Chair would have the Speaker's full support in striving to
close each electronic vote at the earliest opportunity and that
Members should not rely on signals relayed from outside the
Chamber to assume that votes will be held open until they
arrive.
And every subsequent Speaker, including Ms. Pelosi, has
adopted that condition; true?
Mr. Johnson. Yes.
Mr. Hulshof. In fact, you also just referenced under Ms.
Herseth-Sandlin's question this practice of in the last flurry
of votes being switched, I think that is also referenced as
precedent on page 109--I'm sorry--on page 807: In 1975, Speaker
Albert announced that changes could no longer be made at the
electronic stations, but would have to be made by ballot card
in the well. And further, that changes may be made
electronically during the first 10 minutes, but changes during
the last 5 minutes would have to be made by ballot card in the
well.
Mr. Johnson. That was the reference I made earlier to
Speaker Albert. That confirms the 1975.
Mr. Hulshof. Yes. There has been some back and forth
between my friends Mr. Davis and Mr. LaTourette about the new
clause in the rules about the reversal--reversing the outcome.
And, in fact, at the bottom of page 807, there have been some
parliamentary inquiries concerning the rule on holding votes
open solely for the purpose of reversing the outcome. And it
says at the top of 808: The Chair is constrained to
differentiate between activity between the establishment of an
outcome on the one hand and activity that might have as its
purpose the reversal of an already established outcome on the
other.
And so that is the quandary, is it not, as we determine,
try to determine the state of mind of the presiding officer?
Mr. Johnson. Those three dates, Mr. Hulshof, are the sole
precedents in this Congress up to the time of publication of
the Manual. There may have been some subsequently, I don't
know. But those three are worth examining to see whether all of
them were just responses to parliamentary inquiries or any of
them were points of order. None of them were appealed at that
point, but that is the body of precedent such as there is under
this new rule.
Mr. Hulshof. Again, to clarify a few points raised by
previous questions, in this vote in 1995 there was
certification by the Clerk, was there not, a written tally
sheet prepared prior to the presiding officer announcing the
vote? You are nodding.
Mr. Johnson. Yes, I am sorry. The first of what should have
been several tally slips, or at least another one had been
handed to him. That is my recollection. Where it said 213 to
214, and he immediately read from that slip as Members--two
Members were coming into the well.
Mr. Hulshof. There also has been some reference to the vote
on November 21st of 2003, known as the Medicare vote. And I
think you stated--again let me underscore this--that all
Members were present in the Chamber; correct? In fact you
recall, as I do, and I had the occasion to personally examine
that vote in great detail in another forum, that even after the
period of 3 hours or nearly 3 hours had passed not all Members
had recorded their votes. Do you recall that specifically?
Mr. Johnson. No, I would say it stood at 216 to 218 for
most of that 3-hour period with only one Member who was present
abstaining, who had not yet voted. I remember who it was and
where he was.
Mr. Hulshof. As do I.
Mr. Johnson. He drew attention.
Mr. Hulshof. In the interest of time, let me get to the
final couple of questions that I have, and again on the role of
the presiding officer. In legal jargon what comes to my mind is
the neutral and detached magistrate that the law contemplates.
I am talking about civil law, criminal law and perhaps that
doesn't necessarily fit concisely our own rules but that we are
looking for that presiding officer to be that fair, that
neutral and detached magistrate. Would you agree with me?
Mr. Johnson. Yes.
Mr. Hulshof. You mentioned competency in the Chair. Again
just as a point of reference, when I used to work in the radio
station, I had come from a campus station, I got stuck in the
overnight time slot, midnight to 6, until I became a little
more conversant putting sentences together and what have you.
In a similar way, I think both parties have done this.
Newly elected Members often get the Special Order times because
there it is often not controversial rulings that they would
have to make, but it allows them to log time in the Chair and
gain some experience and then perhaps they are prepared to be
in the Chair during more difficult times. Is that a fair
assessment?
Mr. Johnson. Yes.
Mr. Hulshof. There is something to the competence of the
presiding officer. Is there a confidence level that you had as
a Parliamentarian with certain Members? Probably as we can all
acknowledge that Mr. LaTourette logged a lot of time, probably
more than anyone on the select committee. Is there a confidence
level that comes with the Parliamentarian depending upon who is
in fact in the Chair?
Mr. Johnson. Yes.
Mr. Hulshof. Again, why is that?
Mr. Johnson. I suppose it is human nature and experience as
much as anything. It is not only a personal friendship that may
have developed, but it is a respect that, for example, if a
Parliamentarian is temporarily distracted or not attentive or
whatever, that that occupant of the Chair will presumably have
had enough experience and incentive to take an initiative.
Mr. Hulshof. And given a presiding officer who had
extensive experience presiding over the body, even during some
difficult times, would most certainly--maybe not understanding
all the precedents or the written precedent, but would
certainly understand the custom, the usage, the normal
practice, the ebb and flow, if you will, even during a very
difficult vote; would he not?
Mr. Johnson. I would assume so, certainly hope so.
Mr. Davis. Mr. Hulshof, are you near?
Mr. Hulshof. Yes, sir. In the interest of time, Mr. Chair,
I would yield back.
Mr. Davis. Thank you, Mr. Hulshof. I think we have 3
minutes left in the vote. Let me thank our two very able
witnesses for being here and enlightening us today. Our
witnesses will have 5 days to supplement the record.
The Select Committee is adjourned.
[Whereupon, at 11:09 a.m., the committee was adjourned.]
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