[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 11. Questions of Privilege]
[B. Privilege of the House]
[§ 5. Time for Consideration; Precedence of the Question]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1593-1598]
CHAPTER 11
Questions of Privilege
B. PRIVILEGE OF THE HOUSE
Sec. 5. Time for Consideration; Precedence of the Question
Precedence of Motions to Adjourn
Sec. 5.1 A question of privilege is not entertained pending a vote on a
motion to adjourn.
On Apr. 15, 1970,(4) following a point of order
objecting to a vote on a motion to adjourn based on the absence of a
quorum, Mr. Louis C. Wyman, of New Hampshire, rose to a question of
``privilege.'' The Speaker pro tempore (5) indicated that
the pendency of the motion to adjourn precluded the entertainment of
the question.(6)
---------------------------------------------------------------------------
4. 116 Cong. Rec. 11940, 11941, 91st Cong. 2d Sess.
5. Charles M. Price (Ill.).
6. By explicit provision Rule IX, House Rules and Manual Sec. 661
(1973), mandates that questions of privilege ``shall have
precedence of all other questions, except motions to adjourn.''
---------------------------------------------------------------------------
Sec. 5.2 The House may adjourn pending a decision on a question of
privilege of the House.
On June 5, 1940,(7) Mr. Hamilton Fish, Jr., of New York,
offered a resolution (8) raising a question of the privilege
of the House. A point of order that a quorum was not present was then
made by Mr. William P. Cole, of Maryland. When the count of the House
by the Speaker (9) disclosed the absence of a quorum, the
House agreed to a motion offered by Mr. Sam Rayburn, of Texas,
adjourning until the following day.
---------------------------------------------------------------------------
7. 86 Cong. Rec. 7633, 76th Cong. 3d Sess.
8. H. Res. 510.
9. William B. Bankhead (Ala.).
---------------------------------------------------------------------------
Precedence of Question of Privilege
Sec. 5.3 Parliamentarian's Note: A question of privilege has priority
over all other questions except motions to adjourn,(10)
and supercedes the consideration of the original question
---------------------------------------------------------------------------
10. Rule IX, House Rules and Manual Sec. 661 (1973), and 3 Hinds'
Precedents Sec. 2521.
---------------------------------------------------------------------------
[[Page 1594]]
and must be disposed of first.(11)
---------------------------------------------------------------------------
11. House Rules and Manual, Jefferson's Manual Sec. 458, and annotation
to Rule IX, Sec. 664 (1973); and 3 Hinds' Precedents Sec. 2522.
---------------------------------------------------------------------------
Precedence of Prior Question of Privilege
Sec. 5.4 At a time when a question of privilege is pending in the
House, a Member will not be recognized to present another question
of privilege.
On May 28, 1936,(12) Mr. C. Jasper Bell, of Missouri,
offered a privileged resolution (13) raising a question of
the privileges of the House. Thereafter, Mr. Joseph P. Monaghan, of
Montana, sought recognition to raise a point of personal privilege and
of the privilege of the House. Declining to extend recognition, the
Speaker (14) stated: (15)
---------------------------------------------------------------------------
12. 80 Cong. Rec. 8222, 74th Cong. 2d Sess. For a similar example see
80 Cong. Rec. 5704-06, 74th Cong. 2d Sess., Apr. 20, 1936.
13. H. Res. 532.
14. Joseph W. Byrns (Tenn.).
15. 80 Cong. Rec. 8222, 74th Cong. 2d Sess., May 28, 1936.
---------------------------------------------------------------------------
The question now pending is a question of the privilege of the
House, and that takes precedence over the question of privilege of
the gentleman from Montana. There can be only one question of
privilege before the House at a time, and one is now pending.
Question of Privilege as Unfinished Business
Sec. 5.5 A question of the privilege of the House pending at the time
of adjournment becomes the unfinished business on the next day.
On Aug. 27, 1940,(16) the House adjourned during debate
on a resolution involving the question of the privilege of the House
offered by Mr. Jacob Thorkelson, of Montana. At the commencement of the
succeeding day's business the Speaker (17) stated:
---------------------------------------------------------------------------
16. 86 Cong. Rec. 11046-49, 76th Cong. 3d Sess. For an additional
example see 112 Cong. Rec. 27641, 89th Cong. 2d Sess., Oct. 19,
1966.
17. William B. Bankhead (Ala.).
---------------------------------------------------------------------------
The unfinished business before the House is the question of the
privilege of the House raised by the gentleman from Montana. Does
the gentleman from Montana desire to be recognized?
Precedence as to the Journal
Sec. 5.6 The Speaker indicated that, unlike a question of personal
privilege, a question of the privilege of the House could interrupt
the reading of the Journal.
On the legislative day of Oct. 8, 1968,(18) during the
reading of the
---------------------------------------------------------------------------
18. 114 Cong. Rec. 30214-16, 90th Cong. 2d Sess., Oct. 9, 1968
(calendar day).
---------------------------------------------------------------------------
[[Page 1595]]
Journal the following proceedings occurred:
Mr. [Robert] Taft [Jr., of Ohio]: Mr. Speaker----
The Speaker: (19) For what purpose does the
gentleman from Ohio rise?
---------------------------------------------------------------------------
19. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. Taft: Mr. Speaker, I have a privileged motion.
Mr. [Sidney R.] Yates [of Illinois]: A point of order, Mr.
Speaker. That is not in order until the reading of the Journal has
been completed.
The Speaker: Will the gentleman from Ohio state his privileged
motion?
Mr. Taft: Mr. Speaker, my motion is on a point of personal
privilege.
The Speaker: Will the gentleman from Ohio state whether it is a
point of personal privilege or a privileged motion?
Mr. Taft: It is a privileged motion, and a motion of personal
privilege.
Under rule IX questions of personal privilege are privileged
motions, ahead of the reading of the Journal.
The Speaker: The Chair will advise the gentleman that a
question of personal privilege should be made later after the
Journal has been disposed of.
If the gentleman has a matter of privilege of the House, that
is an entirely different situation.
Mr. Taft: I believe, Mr. Speaker, this involves not only
personal privilege as an individual, but also as a Member of the
House and also the privileges of all Members of the House.
The Speaker: The Chair does not recognize the gentleman at this
time on a matter of personal privilege.
But the Chair will, after the pending matter, the reading of
the Journal has been disposed of, recognize the gentleman if the
gentleman seeks recognition.
Precedence Over Calendar Wednesday Business
Sec. 5.7 A matter involving the privilege of the House takes precedence
over the continuation of the call of committees under the Calendar
Wednesday rule.
On Feb. 8, 1950,(20) during the call of committees
pursuant to the Calendar Wednesday rule,(1) the following
proceedings occurred:
---------------------------------------------------------------------------
20. 96 Cong. Rec. 1695, 81st Cong. 2d Sess.
1. Rule XXIV clause 7, House Rules and Manual Sec. 897 (1973).
---------------------------------------------------------------------------
Mr. [Vito] Marcantonio [of New York]: Mr. Speaker, a point of
order.
The Speaker.(2) The gentleman will state it.
---------------------------------------------------------------------------
2. Sam Rayburn (Tex.).
---------------------------------------------------------------------------
Mr. Marcantonio: Mr. Speaker, this is Calendar Wednesday, and I
ask that the business of Calendar Wednesday proceed. I submit that
the regular order is the continuation of the call of committees by
the Clerk.
The Speaker: The Chair at this time is going to lay before the
House a matter of highest privilege.
The Speaker then laid before the House as a matter involving the
privileges of the House a communication from the Clerk of the House
reporting the receipt of a
[[Page 1596]]
subpena duces tecum from a U.S. district court.
Precedence Over District of Columbia Business
Sec. 5.8 A resolution involving a question of the privilege of the
House takes precedence over District of Columbia business under
Rule XXIV clause 8.
On Dec. 14, 1970,(3) it being the day set aside by House
rule (4) for consideration of District of Columbia business,
the House nevertheless entertained a resolution (5)
concerning the printing and publishing of a report of the Committee on
Internal Security presented by Mr. Richard H. Ichord, of Missouri, as a
matter involving the question of the privilege of the House. Mr. Ichord
stated in part as follows:
---------------------------------------------------------------------------
3. 116 Cong. Rec. 41355, 41358, 91st Cong. 2d Sess.
4. Rule XXIV clause 8, House Rules and Manual Sec. 899 (1973).
5. H. Res. 1306.
---------------------------------------------------------------------------
I rise to a question of privilege in a matter affecting the
rights of the House collectively, the integrity of its proceedings,
and the rights of the Members in their respective capacity. See
House rule XI. As you know, this question comes before us as a
consequence of proceedings instituted on October 13, 1970, in the
U.S. District Court for the District of Columbia to enjoin the
filing, printing, publishing, and dissemination of a report of the
House Committee on Internal Security (No. 91-1607), titled
``Limited Survey of Honoraria Given Guest Speakers for Engagements
at Colleges and Universities,'' which I reported to the House on
October 14. On October 28, 1970, a single judge of that court . . .
entered a final order permanently enjoining the Public Printer and
the Superintendent of Documents from printing and distributing any
copy of the report, or any portion, restatement, or facsimile
thereof, and declared that any publication of the report at public
expense would be illegal. . . .
Never in the constitutional history of this Nation . . . has
any court of the United States . . . sustained any such final
restraint upon the printing and dissemination of a report of a
committee of the Congress.
Precedence Over Motion for the Previous Question
Sec. 5.9 A resolution properly asserting a question of the privilege of
the House could take precedence over a motion for the previous
question on a bill already reported from the Committee of the
Whole.
On May 24, 1972,(6) the Committee of the Whole House on
the state of the Union rose and reported to the House a bill
(7) con
[[Page 1597]]
cerning certain appropriations for the Department of Transportation.
Thereafter, prior to consideration of the motion for the previous
question on the bill made by Mr. John J. McFall, of California, Ms.
Bella S. Abzug, of New York, submitted a resolution (8)
asserting as a question of privilege of the House that the House recess
for the purpose of receiving a petition for the redress of certain
grievances. After the resolution was read, the Speaker (9)
sustained a point of order that the resolution did not state a question
of the privileges of the House.(10)
---------------------------------------------------------------------------
6. 118 Cong. Rec. 18675, 92d Cong. 2d Sess.
7. H.R. 15097.
8. H. Res. 1003.
9. Carl Albert (Okla.).
10. See Sec. 3.1, supra.
---------------------------------------------------------------------------
Application of Three-day Rule Regarding Committee Reports
Sec. 5.10 A committee report submitted as a matter involving the
privileges of the House, as distinguished from a report merely
privileged under the rules, may be considered on the same day
reported notwithstanding the requirement by House rule that
committee reports be available to Members at least three calendar
days prior to their consideration.
On July 13, 1971,(11) Mr. Harley O. Staggers, of West
Virginia, rising to a question of the privilege of the House, sought to
submit and call up for immediate consideration a report (12)
of the Committee on Interstate and Foreign Commerce on the contemptuous
conduct of a witness in refusing to respond to a subpoena duces tecum
issued by the committee. A point of order was then raised by Mr. Sam M.
Gibbons, of Florida, that consideration of the matter violated a House
rule (13) requiring committee reports to be available to
Members for at least three calendar days prior to their consideration.
Following some debate, the Speaker (14) in overruling the
point of order stated:
---------------------------------------------------------------------------
11. 117 Cong. Rec. 24720-23, 92d Cong. 1st Sess.
12. H. Rept. No. 92-349.
13. House Rules and Manual Sec. 735 (1973).
14. Carl Albert (Okla.).
---------------------------------------------------------------------------
The Chair has studied clause 27(d)(4) of rule XI and the
legislative history in connection with its inclusion in the
Legislative Reorganization Act of 1970. That clause provides that
``a matter shall not be considered in the House unless the report
has been available for at least 3 calendar days.''
The Chair has also examined rule IX, which provides that:
Questions of privilege shall be, first, those affecting the
rights of the
[[Page 1598]]
House collectively, its safety, dignity, and the integrity of
its proceedings . . . and shall have precedence of all other
questions, except motions to adjourn.
Under the precedents, a resolution raising a question of the
privileges of the House does not necessarily require a report from
a committee. Immediate consideration of a question of privilege of
the House is inherent in the whole concept of privilege. When a
resolution is presented, the House may then make a determination
regarding its disposition.
When a question is raised that a witness before a House
committee has been contemptuous, it has always been recognized that
the House has the implied power under the Constitution to deal
directly with such conduct so far as is necessary to preserve and
exercise its legislative authority. However, punishment for
contemptuous conduct involving the refusal of a witness to testify
or produce documents is now generally governed by law--Title II,
United States Code, sections 192-194--which provides that whenever
a witness fails or refuses to appear in response to a committee
subpoena, or fails or refuses to testify or produce documents in
response thereto, such fact may be reported to the House. Those
reports are of high privilege.
When a resolution raising a question of privilege of the House
is submitted by a Member and called up as privileged, that
resolution is also subject to immediate disposition as the House
shall determine.
The implied power under the Constitution for the House to deal
directly with matters necessary to preserve and exercise its
legislative authority; the provision in rule IX that questions of
privilege of the House shall have precedence of all other
questions; and the fact that the report of the committee has been
filed by the gentleman from West Virginia as privileged--all refute
the argument that the 3-day layover requirement of clause 27(d)(4)
applies in this situation.
The Chair holds that the report is of such high privilege under
the inherent constitutional powers of the House and under rule IX
that the provisions of clause 27(d)(4) of rule XI are not
applicable.
Therefore, the Chair overrules the point of order.