[Deschler's Precedents, Volume 1, Chapters 1 - 6] [Chapter 1. Assembly of Congress] [A. Meeting and Organization] [§ 5. Clerk as Presiding Officer; Authority] [From the U.S. Government Publishing Office, www.gpo.gov] [Page 32-36] CHAPTER 1 Assembly of Congress A. MEETING AND ORGANIZATION Sec. 5. Clerk as Presiding Officer; Authority On the opening day of the first session of a new Congress, the elected Clerk of the preceding Congress calls the House to order and presides until the election of a Speaker.(9) The main duties of the Clerk at the organization of the House are ascertaining a quorum through a call of the Clerk's roll, and presiding over the election of a Speaker.(10) In current practice, the organizational steps over which the Clerk presides consume only a small portion of opening day. The practice has not always been so, as Clerks have presided at some Congresses for a period of days and even weeks.(11) --------------------------------------------------------------------------- 9. 1 Hinds' Precedents Sec. Sec. 64-65. 10. For a description of the organizational steps over which the Clerk presides, see Sec. 5.1, infra. See also 1 Hinds' Precedents Sec. 81. For detail on the preparation of the Clerk's roll, see Ch. 2, infra. 11. 1 Hinds' Precedents Sec. Sec. 65, 67, 70, 204. In those instances, difficulties in the call of the roll and in the election of the Speaker kept the Clerk in the chair for long periods of time. --------------------------------------------------------------------------- [[Page 33]] The authority of the Clerk to preside at the assembly of a new Congress is derived from custom as well as statutory sources.(12) Unlike the Speaker, whose term ceases with the assembly of a new Congress, the Clerk continues in office by tradition until the election of new officers.(13) In early Congresses, the House provided by a special rule that the Clerk should continue in office until another should be chosen,(14) but later constructions determined that one House could not by rule bind its successor.(15) In requiring the Clerk of the preceding House to prepare the roll of Representatives-elect for the new Congress, Title 2 of the United States Code provides for the functioning of the Clerk beyond the term of office for which elected; similarly, the code provides for the Sergeant at Arms, and in his absence the Doorkeeper of the preceding House, to perform the Clerk's functions in the case of vacancy in his office.(16) The Code also enumerates duties of the Sergeant at Arms, under the direction of the Clerk of the preceding Congress, at the assembly of a new House.(17) --------------------------------------------------------------------------- 12. See also Rule III clause 1, House Rules and Manual Sec. 637 (1973). 13. 1 Hinds' Precedents Sec. Sec. 187, 188, 235, 244. 14. 1 Hinds' Precedents Sec. Sec. 187, 235; 5 Hinds' Precedents Sec. 6743. 15. 5 Hinds' Precedents Sec. 6747. 16. 2 USC Sec. 26. See also Sec. 5.2, infra. 17. See 2 USC Sec. 79. Like Rule III of the House Rules and Manual, Sec. 637 (1973), Rule IV clause 1, Sec. 648, pertaining to the Sergeant at Arms' duties pending the election of a Speaker, and Rule V clause 1 Sec. 651, relating to the Doorkeepers' duties pending the election, are not technically in effect at the time those duties are performed. --------------------------------------------------------------------------- At the beginning of early Congresses, the Clerk of the preceding House refused to decide many questions of order, referring them instead to the House.(18) Beginning in 1860, however, Rule III of the House rules(19) took on in substance its present form, authorizing the Clerk to decide questions of order subject to appeal; although not binding while the Clerk is presiding, the rule exerts persuasive effect on the construction of the Clerk's authority to decide points of order.(20) As pre [[Page 34]] presiding officer, the Clerk has consistently refused to entertain propositions not consistent with the organization of the House;(1) he has refused, for example, to entertain protests,(2) and has declined to hear motions referring a subject to committee(3) or relating to contested election cases.(4) --------------------------------------------------------------------------- 18. See 1 Hinds' Precedents Sec. Sec. 68-72. 19. Rule III clause 1, House Rules and Manual Sec. 637 (1973). 20. For the history and effect of the rule, see 1 Hinds' Precedents Sec. 64. When coupled with the former provision that rules of one House applied to the organization of its successor (5 Hinds' Precedents Sec. Sec. 6743-46), Rule III gave the Clerk explicit authority to decide points of order (1 Hinds' Precedents Sec. Sec. 76-77). In 1890, however, the theory that one House could by rule bind its successor was overthrown (5 Hinds' Precedents Sec. 6747). 1. See, in general, 1 Hinds' Precedents Sec. Sec. 68-80. As to the capacity of the House to transact general legislative business while the Clerk is presiding and before the election of a Speaker, the House has determined such procedure to be foreclosed by the Act of 1789, Ch. 1, Sec. 2, 1 Stat. 23, as amended, 2 USC Sec. 25 (1948), requiring the administration of the oath to the Speaker, Members, and the re- elected Clerk before the House enters into other business. See 1 Hinds' Precedents Sec. Sec. 6647-49 (rulings by the House that the Clerk could receive a message from the President but could not read it, as reading the message constituted business). For other rulings on the requirement that legislative business await the election of officers and the swearing in of Members and of the Clerk, see 1 Hinds' Precedents Sec. Sec. 130, 241, 243; contra (allowing business before the election of the Clerk), 1 Hinds' Precedents Sec. Sec. 242, 244, 245. 2. 1 Hinds' Precedents Sec. 80. 3. 1 Hinds' Precedents Sec. 78. 4. See 1 Hinds' Precedents Sec. 67. According to Alexander, History of Procedure of the House of Representatives 14 (1916), the Clerk of the House attempted in one instance (cited at 1 Hinds' Precedents Sec. 67) to use his powers and duties at the opening of the new Congress to determine which political party would control the House of Representatives. In 1839, Clerk Hugh A. Garland ``discovered that by omitting the names of contestants from New Jersey the roll would stand 118 in favor of his own party, a sufficient number to elect a Speaker. Accordingly, when New Jersey was reached in the roll call, Garland cunningly explained that as he had no authority to settle contests he would complete the call and then submit the New Jersey matter to the House for its decision.'' --------------------------------------------------------------------------- The House may, in lieu of having the Clerk preside, choose one of the Members-elect to preside as Chairman until the election of a Speaker.(5) This method has been taken by the House when organizational business was impeded by the refusal of the Clerk to entertain certain questions or motions.(6) --------------------------------------------------------------------------- 5. 1 Hinds' Precedents Sec. Sec. 66-67. 6. See 1 Hinds' Precedents Sec. 67. --------------------------------------------------------------------------- The Clerk may preside at the opening of a new session of an existing Congress, or even at the beginning of a daily meeting during a session, when the Speaker has died in office,(7) since the authority of the Speaker pro tempore [[Page 35]] terminates upon the death of the Speaker.(8) If the Clerk presides in that situation, he first ascertains the presence of a quorum, and then proceeds immediately to the election of a Speaker.(9) --------------------------------------------------------------------------- 7. See 1 Hinds' Precedents Sec. 234. 8. See Sec. Sec. 6.6, 6.7, infra. 9. For the procedure of the election of the Speaker, both at a new Congress and at a new session of the same Congress, see Sec. 6, infra. --------------------------------------------------------------------------- Clerk as Presiding Officer; Organizational Procedure Sec. 5.1 Following opening prayer and before the election of the Speaker at the opening of a new Congress, the Clerk of the preceding Congress takes the following organizational steps: announces the receipt of credentials; causes the roll to be called alphabetically by states to establish a quorum; announces the establishment of a quorum; announces vacancies in the House occurring since national elections. On Jan. 10, 1967,(10) the Clerk of the 89th Congress, Ralph R. Roberts, of Indiana, announced as follows after the House had been called to order and had heard prayer: --------------------------------------------------------------------------- 10. 113 Cong. Rec. 11, 12, 90th Cong. 1st Sess. --------------------------------------------------------------------------- Representatives-elect for the 90th Congress . . . this is the day fixed for the meeting of the 90th Congress. As the law directs, the Clerk of the House has prepared the official roll of the Representatives-elect. Credentials covering the 435 seats in the 90th Congress have been received and are now on file with the Clerk of the 89th Congress. The names of those persons whose credentials show they were regularly elected in accordance with the laws of the several States and of the United States will be called; and as the roll is called, following the alphabetical order of the States, beginning with the State of Alabama, Representatives-elect will answer to their names to determine whether or not a quorum is present. The reading clerk will call the roll. The Clerk called the roll by States and the following Representatives-elect answered to their names: . . . The Clerk: The roll call discloses that 434 Representatives- elect have answered to their names. A quorum is present. The Clerk will state that credentials are on file showing the election of the Honorable Santiago Polanco-Abreu as Resident Commissioner from the Commonwealth of Puerto Rico. The Clerk also wishes to announce there is a vacancy in the Second District of Rhode Island occasioned by the recent death of the Honorable John E. Fogarty. Presiding Officer in Absence of Clerk Sec. 5.2 In the absence of both the Clerk of the House and the Sergeant at Arms, the Doorkeeper of the preceding Con [[Page 36]] gress calls the House to order on the opening day of a new Congress. On Jan. 3, 1947,(11) the assembly date of the first session of the 80th Congress, following the death of the Clerk of the House and in the absence of the Sergeant at Arms, the Doorkeeper of the House of Representatives of the 79th Congress, Ralph R. Roberts, of Indiana, called the House to order and directed the call of the roll.(12) --------------------------------------------------------------------------- 11. 93 Cong. Rec. 33, 80th Cong. 1st Sess. 12. 2 USC Sec. 26 appoints the Sergeant at Arms and in his absence the Doorkeeper of the preceding House to assume the Clerk's functions at the opening of Congress, if the Clerk's office should become vacant between Congresses. ---------------------------------------------------------------------------