Ch. 30 § 4 DESCHLER-BROWN PRECEDENTS

MR. ALBERT: Mr. Speaker, on rollcall unless the Speaker directed that No. 54 there were listed as live pairs it be called. However, the Speaker the names of sundry Members. These can count himself on a division should have been listed as general vote, can submit his card where a pairs. vote is taken by tellers with Mr. Speaker, I ask unanimous con- clerks, and can exercise his re- sent that the permanent Record be cor- rected accordingly. sponsibility to be the decisive vote on a vote taken by electronic de- THE SPEAKER: (8) Is there objection to (10) the request of the gentleman from vice. Oklahoma? The majority required to pass There was no objection. an amendment to the Constitu- tion, to override a veto, or to adopt a motion to suspend the § 5. Tie Votes; Super- rules is two-thirds of the Members voting, a quorum being present.(11) majority Votes Under a rule in effect since the § 5.1 Before announcing the re- First Congress, a question which sult of a vote taken by elec- results in a tie vote is lost.(9) The tronic device, the Speaker Speaker, who ordinarily does not may cast a decisive vote by vote on all legislative propositions advising the tally clerk of his before the House, has the preroga- vote to break a tie and tive of voting; and in Rule I clause verifying that vote for the 6, he is ‘‘required to vote . . . record by submitting an ap- where his vote would be decisive.’’ propriate ballot card. In the days preceding the advent ( ) of electronic voting, when the yeas On Oct. 17, 1990, 12 Speaker and nays were taken by a call of Thomas S. Foley, of Washington, cast the decisive vote on an the roll, the Speaker’s name was amendment reported from the not on the roll and was not called Committee of the Whole. The pro- 8. John W. McCormack (Mass.). ceedings were as follows: 9. Rule I clause 6: He shall not be re- THE SPEAKER PRO TEMPORE: Under quired to vote in ordinary legislative the rule, the previous question is or- proceedings, except where his vote dered. would be decisive, or where the House is engaged in voting by ballot; 10. See § 5.1, infra. and in cases of a tie vote the ques- 11. See § 5.2, infra. tion shall be lost. House Rules and 12. 136 CONG. REC. 30229, 30230, 101st Manual § 632 (1995). Cong. 2d Sess.

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Is a separate vote demanded on any ment to the United States amendment? Constitution is, like the ma- MR. [HENRY J.] HYDE [of Illinois]: Mr. Speaker, I demand a separate vote jority required to pass a bill on the so-called Solarz amendment, as over the President’s veto (13) amended. and to adopt a motion to sus- HE PEAKER RO EMPORE T S P T : Is a (14) separate vote demanded on any other pend the rules, two-thirds amendment? of those Members voting ei- If not, the Chair will put them en ther in the affirmative or gros. negative, a quorum being The amendments were agreed to. THE SPEAKER PRO TEMPORE: The present, and Members who Clerk will report the amendment on only indicate that they are which a separate vote has been de- ‘‘present’’ are not counted in manded. The Clerk read as follows: the computation. (15) Amendment: Page 25, after line On Nov. 15, 1983, Mr. Robert 18, add the following: H. Michel, of Illinois, propounded

TITLE VI—INCENTIVES FOR PEACE IN a parliamentary inquiry per- ANGOLA ... taining to the vote required on an amendment to the Constitution, to THE SPEAKER PRO TEMPORE: The question is on the amendment. which Speaker Pro Tempore The question was taken; and the James C. Wright, Jr., of Texas, re- Speaker Pro Tempore announced that sponded. The proceedings were as the noes appeared to have it. follows: MR. [HAROLD L.] VOLKMER [of Mis- souri]: Mr. Speaker, on that I demand MR. MICHEL: In the short time avail- the yeas and nays. able to us, Mr. Speaker, I have re- The yeas and nays were ordered. viewed the precedents on the subject of The vote was taken by electronic de- the consideration by this House of a vice, and there were—yeas 207, nays proposed amendment to the Constitu- 206, not voting 21, as follows:... tion under a motion to suspend the THE SPEAKER: On this vote the yeas are 206, and the nays are 206. rules. The Chair votes ‘‘aye.’’ Mr. Speaker, precedents are rare on The yeas are 207. this question, although I believe it to So the amendment was agreed to. be of profound significance to the delib- THE SPEAKER: The question is on the erations we are about to embark upon. engrossment and third reading of the bill. 13. See 7 Cannon’s Precedents § 1111. 14. See Speaker Thomas P. O’Neill’s Two-thirds Votes Dec. 16, 1981, ruling at 127 CONG. REC. 31856, 97th Cong. 1st Sess. § 5.2 The majority required in 15. 129 CONG. REC. 32667, 32668, 98th the House to pass an amend- Cong. 1st Sess.

11479 Ch. 30 § 5 DESCHLER-BROWN PRECEDENTS

The question which I would like the separate and distinct from the one we Chair to address is the question as to have before us today. whether those Members voting present If the Chair were to examine that on any proposed constitutional amend- one precedent to which I refer, he will ment are included in determining find that it is based wholly on the lan- whether two-thirds have voted in the guage of article I, section 7 of the Con- affirmative. With the indulgence of the stitution, which states in part: Chair, I would like to review the appli- If after such Reconsideration two cable provision under which this ques- thirds of that House shall agree to tion is raised. pass the Bill, it shall be sent, to- gether with the Objections, to the Mr. Speaker, there are no prece- other House, by which it shall like- dents, at least none available to this wise be reconsidered, and if ap- Member, under the provisions of rule proved by two thirds of that House, XXVII of the rules of the House—the it shall become a Law. But in all such Cases the Votes of both Houses so-called suspension of the rules provi- shall be determined by Yeas and sions—which address the question of Nays, and the Names of the Persons counting those Members voting present voting for and against the Bill shall on the passage of a constitutional be entered on the Journal of each amendment. House respectively. There are no precedents under the Matters of law are measured and provisions of article V of the Constitu- judged on every word, comma, and pe- tion, the article which delineates the riod of our great Constitution. manner and mode of proposing and The provisions providing for the pas- ratifying amendments to the Constitu- sage of a vetoed bill and only those tion. voting for and against being entered upon the Journal of the House are sub- There is only one precedent which is stantially different from the provisions available on this question, Mr. Speak- of article V dealing with those in- er, and that precedent occurred on Au- stances ‘‘whenever two thirds of both gust 13, 1912. I refer specifically to Houses shall deem it necessary’’ to pro- section 1111 of volume 7, Cannon’s pose amendments to our Constitution. Precedents of the House of Representa- I think this question requires the tives, which states: closest examination, as do all matters The two-thirds vote required to involving our Constitution. pass a bill notwithstanding the ob- I will state my inquiry one more jections of the President is two- time, if I might, Mr. Speaker. thirds of the Members voting and On the question of the House of Rep- not two-thirds of those present. resentatives proposing an amendment to the Constitution, should those an- That precedent addressed the ques- swering ‘‘present’’ be taken into consid- tion of whether those answering eration in determining whether two- ‘‘present’’ should be taken into consid- thirds shall have deemed it necessary eration or excluded in determining to propose such an amendment? whether two-thirds have voted for And the most important language passing a bill over the President’s veto. upon which our only precedent is That question should be considered based is that which states:

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But in all such Cases the Votes of The two-thirds vote in each House the Houses shall be determined by which is required in proposing an Yeas and Nays, and the Names of amendment is a vote of two-thirds of the Persons voting for and against the members present—assuming the the Bill shall be entered on the presence of a quorum—and not a Journal... vote of two-thirds of the entire mem- bership, present and absent. That is a profound distinction from the procedure required under the pro- Now, as to the status of Members vision of article V dealing with con- who vote present on a rollcall vote on stitutional amendments. The one a proposition which requires a two- precedent is founded on the require- thirds majority for passage, the Chair ment of a yea and nay vote, and that has no doubt that under the rules and only those votes be entered on the under the practices and precedents of Journal. Article I, section 7, does not the House, and under parliamentary contemplate ‘‘present’’ votes, but article law in general, Members who indicate their presence only and do not vote ei- V is silent on this question, and be- ther yea or nay on a question of this cause we have no precedent, at least type are not to be counted, as they are that this Member could find, we need not counted on any other question, in a ruling that would apply to the situa- determining whether the proposition tion we are facing today. has been approved by the appropriate That is why, Mr. Speaker, I have or required majority. propounded this parliamentary in- Speaker Champ Clark delivered an quiry. extensive ruling in 1912, in the 62d THE SPEAKER PRO TEMPORE: The Congress, on that precise issue. It in- distinguished gentleman from Illinois, volved the passage of a bill over Presi- the minority leader, has requested the dential veto. Although the passage of a Chair to interpret the requirement of bill over Presidential veto requires a article V of the U.S. Constitution that vote by the yeas and nays, the two- a two-thirds vote of the House is nec- thirds majority which is required for essary to propose an amendment to the that action, under article II, section 7, Constitution. clause 2 of the Constitution is the It is a well-settled rule, as indicated same, identical two-thirds majority re- by the precedents cited in section 192 quired to propose a constitutional of the Constitution and House Rules amendment. In 1912 the issue before and Manual, that the vote required on the Chair was stated as follows: a joint resolution proposing a constitu- On a roll call on passing a bill over tional amendment is two-thirds of the President’s veto, in determining those voting, a quorum being present, whether two-thirds have voted for it, and not two-thirds of the entire mem- should those answering ‘‘present’’ be bership. taken into consideration or excluded therefrom? The Supreme Court of the United States has addressed the same issue Speaker Clark ruled as follows, and and concluded in 1920, in the National I quote from his ruling: Prohibition cases, volume 253 of the The Constitution does not provide U.S. Reports, page 386, that— for a Member voting ‘‘present,’’ but

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the rules of the House in order to requires that the yeas and nays of the eke out a quorum, have provided Members be entered on the Journal, that they can vote ‘‘present.’’ They and makes no mention of Members have to answer ‘‘aye’’ or ‘‘nay’’ on the who are present for the vote but do not roll call in order to be counted on passing a bill over the President’s cast their votes on one side or the veto. That is a requirement of the other. The fact that the House has de- Constitution, and if the contention termined to authorize Members to be were on a proposition which required present and record that fact without only a majority it would be the same taking a position affords no constitu- way. In fact, that is one unvarying tional status to such a decision except rule of procedure whenever the roll is called on any proposition. The to be counted for a quorum. Chair announces: ‘‘so many ayes, so The Chair would also point out that many nays, so many present; the the present Speaker, Mr. O’Neill, has ayes-or nays, as the case may be— ruled on the status of Members who have it.’’ Those voting ‘‘present’’ are vote ‘‘present’’ on a motion to suspend disregarded except for the sole pur- pose of making a quorum. the rules. On December 16, 1981, Speaker O’Neill ruled, in response to a Speaker Clark went on to say: parliamentary inquiry, following a roll- These gentlemen were here simply call vote on a motion to suspend the for the purpose of making a quorum. rules and pass H.R. 5274, that a mo- It is clear that to count them on this tion to suspend the rules may be vote would be to count them in the agreed to by two-thirds of the Members negative, and the Chair does not be- voting yea or nay, a quorum being lieve that any such contention as present, and Members voting ‘‘present’’ that is tenable. are only counted to establish a quorum Now, the distinguished gentleman and not to determine a two-thirds ma- from Illinois has emphasized the re- jority. quirement of article I, section 7, that Thus, as stated in chapter 21, sec- the names of the persons voting for tion 9.21 of Deschler’s Precedents of and against a bill over Presidential the House of Representatives, a motion veto be entered on the Journal, in to suspend the rules is an appropriate order to distinguish the status of Mem- parliamentary method for consider- bers only recording their presence on a ation of a constitutional amendment veto override as opposed to Members and has previously been utilized for only recording their presence on pas- that purpose. sage of a constitutional amendment. MR. MICHEL: Mr. Speaker, I thank It appears to the Chair that the re- the Chair for responding to my par- quirement of the Journal entry on veto liamentary inquiry and I am sure that override merely emphasizes that the will clarify much more clearly and vote in that circumstance must be demonstrate a precedent for the future. taken by the yeas and nays, with the I thank the Chair. names of the Members recorded. If the yeas and nays are ordered by one-fifth § 5.3 Debate on issues sur- of the Members present on any other rounding constitutionality of question, article I, section 5, clause 3 supermajority votes. 11482 VOTING Ch. 30 § 5

In the 104th Congress, the THE SPEAKER PRO TEMPORE: The House adopted a new provision in Chair does not recognize the gentle- Rule XXI which required a three- woman at this time for an amendment. The gentleman from Pennsylvania [Mr. fifths vote of the Members voting Fox] is recognized for 10 minutes. to pass any bill, joint resolution, amendment, or conference report PARLIAMENTARY INQUIRY (16) carrying a tax rate increase. MS. WATERS: Parliamentary inquiry, Under the provisions of House Mr. Speaker. Resolution 5, 104th Congress, pro- THE SPEAKER PRO TEMPORE: The viding for the consideration of gentlewoman will state her inquiry. House Resolution 6, establishing MS. WATERS: Mr. Speaker, I have an the rules for that Congress, sec- amendment at the desk in this section. tion 106 of the rules package, This is a section that increases the which contained the new require- vote requirement for raising taxes from a simple majority to a three-fifths ma- ment for the supermajority vote of jority. I wish to protect Social Security three-fifths, was subject to sepa- from being cut by a simple majority. rate debate and a separate Why can I not add this amendment at vote.(17) When this provision was this time? reached during the consideration THE SPEAKER PRO TEMPORE: The of House Resolution 6, questions gentlewoman should be advised that regarding the constitutionality of under the rule that amendment is not the provision were raised in the in order at this time.... debate. The proceedings related to MR. [JON D.] FOX [of Pennsylvania]: . . . Mr. Speaker, I yield 2 minutes to this constitutional issue were as the gentleman from New Jersey [Mr. (18) follows: Saxton]. THE SPEAKER PRO TEMPORE: (19) Sec- MR. [JIM] SAXTON [of New Jersey]: tion 106 of the resolution is now debat- Mr. Speaker, I commend the gen- able for 20 minutes. The gentleman tleman for bringing this amendment to from Pennsylvania [Mr. Fox] will be our attention. recognized for 10 minutes, and the As you know, this amendment to the gentleman from Georgia [Mr. Lewis] House Rules provides for a three-fifths will be recognized for 10 minutes. or 60 percent vote as a necessity to MS. [MAXINE] WATERS [of Cali- pass any income tax increase. I first fornia]: Mr. Speaker, I have an amend- introduced this concept in the form of ment at the desk. a rule change on Tax Freedom Day, May 8, 1991. I recognized then, as I do 16. Rule XXI clause 5(c), House Rules now, that our choices in methods used and Manual § 846c (1995). to balance the budget involve two very 17. 141 CONG. REC. p. , 104th Cong. difficult types of decisions. First, do we 1st Sess., Jan. 4, 1995. raise taxes, or second, do we hold down 18. Id. at p. . spending to bring the budget into bal- 19. Jim Kolbe (Ariz.). ance.

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History shows quite clearly that shared sense of bounds, of what is when faced with those two difficult op- within the rules. Each of us must be tions, this House has historically opted able to expect of the others that we to increase taxes. Why? Simply be- will play by the rules, and not play cause it has always been the easier of with the rules. the two.... The proposed rule does violence to Some have indicated a concern re- this essential aspect of a civil society. garding the constitutionality of this It is a proposal to go beyond the measure. Let me put those concerns to bounds, to play with the rules, instead rest. I would like to quote from an arti- of by them. And in a most uncivil way, cle that appeared in the Washington it would abuse the discretion given this Times on December 20, 1994 by Bruce House by the Constitution to deter- Fein. mine the rules of its proceedings, by Supermajority voting rules are using the rules of the House to subvert constitutional and legislative part of the Constitution: the principle commonplaces. of majority rule that is central to the The U.S. Supreme Court blessed operation of the legislative branch. the constitutionality of supermajority restraints on the tax and spending ... propensities of government in Gor- The Constitution is the most funda- don vs. Lance (1971). At issue were mental statement of American values, provisions of West Virginia laws that the very charter of our democracy. The prevented political subdivisions from incurring bonded indebtedness or in- oath of office we took this afternoon creasing tax rates beyond limits was to support and defend the Con- fixed in the West Virginia Constitu- stitution and to bear true faith and al- tion without the approval of 60 per- legiance to it. The first responsibility of cent of the voters in a referendum our job in Congress is to honor that election. Writing for the majority, Chief Justice Warren Burger charter and remain true to its basic stressed the political incentive for principles. prodigality when the cost can be sad- The gentleman from New York, the dled on future generations without new chairman of the Rules Committee, any political voice: ‘‘It must be re- has written that the Constitution says membered that in voting to issue bonds voters are committing, in part, the House may write its own rules. the credit of infants and of genera- Yes. And the gentleman has quoted an tions yet unborn, and some restric- 1892 Supreme Court decision, United tion on such commitment is not an States versus Ballin, which says this unreasonable demand.’’ . . . rulemaking power ‘‘is absolute and be- MR. [JOHN] LEWIS of Georgia: Mr. yond the challenge of any other body Speaker, for the purposes of debate or tribunal’’ so long as it does ‘‘not ig- only, I yield 21/2 minutes to the gen- nore constitutional constraints or vio- tleman from Colorado [Mr. Skaggs]. late fundamental rights.’’ MR. [DAVID E.] SKAGGS [of Colorado]: But there’s the rub. The rulemaking Mr. Speaker, civilization depends upon power of the House does not give us a civility, and civility rests upon an im- license to steal other substantive provi- plicit trust that we each abide by a sions of the Constitution, especially not

11484 VOTING Ch. 30 § 5 one so central as the principle of ma- majority and a simple majority. They jority rule. met in Philadelphia against the histor- The gentleman from New York con- ical backdrop of the Articles of Confed- veniently failed to point out that a eration, which required a super- unanimous Supreme Court in that majority in Congress for many actions, very same case determined that one including the raising and spending of constitutional constraint that limits money. It was the paralysis of national the rulemaking power is the require- government caused by the super- ment that a simple majority is suffi- majority requirement, more than any cient to pass regular legislation in Con- other single cause, that led to the con- gress. To quote the Court: vening of the Constitutional Conven- The general rule of all parliamen- tion. tary bodies is that, when a quorum In that Philadelphia Convention, the is present, the act of a majority of delegates repeatedly considered, and the quorum is the act of the body. This has been the rule for all time, rejected, proposals to require a super- except so far as in any given case the majority for action by Congress, either terms of the organic act under which on all subjects or on certain subjects. the body is assembled have pre- In only five instances did they specify scribed specific limitations. *** No something more than a majority vote. such limitation is found in the Fed- These are for overriding a veto, ratify- eral Constitution, and therefore the general law of such bodies obtains. ing a treaty, removing officials from of- The Court expressed the same un- fice, expelling a Representative or Sen- derstanding as recently as 1983, ator, and proposing amendments to the when, in Immigration and Natu- Constitution. Amendments to the Con- ralization Service v. Chadha, it stat- stitution later added two others: re- ed: storing certain rights of former rebels, *** Art. II, sect. 2, requires that and determining the existence of a two-thirds of the Senators present concur in the Senate’s consent to a Presidential disability.... treaty, rather than the simple major- Some argue that a three-fifths re- ity required for passage of legisla- quirement to raise taxes would be like tion. a two-thirds vote requirement to sus- This principle, while not written pend the rules and pass a bill, or the into the text of the Constitution, was explicitly adopted by the Constitu- 60-vote requirement to end debate in tional Convention. It was explicitly the Senate. Wrong. Those rules ad- defended in The Federalist, the dress procedural steps. A bill not ap- major contemporary explanation of proved under suspension of the rules the Framer’s intent. It was followed in the House can be reconsidered and by the first Congress on its first day, passed by a simple majority. After de- and by every Congress for every day since then. And, as I’ve already indi- bate is over in the Senate, only a sim- cated, this principle has been explic- ple majority is required to pass any itly found by the Supreme Court to bill. be part of our constitutional frame- So this proposed rule is not like any work. rule adopted in the 206 years in which The Framers were very much aware we have operated under our Constitu- of the difference between a super- tion. As 13 distinguished professors of

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constitutional law recently said in urg- (‘‘Every Bill which shall have passed ing the House to reject this rule: the House of Representatives and the Senate, shall, before it becomes a This proposal violates the explicit Law, be presented to the President intentions of the Framers. It is in- of the United States’’).... consistent with the Constitution’s language and structure. It departs Robin H. Carle, the Clerk of the sharply from traditional congres- House, moved to dismiss the complaint sional practice. It may generate con- pursuant to Federal Rules of Civil Pro- stitutional litigation that will en- cedure 12(b)(1) and 12(b)(6). The dis- courage Supreme Court intervention in an area best left to responsible trict court granted the motion, con- congressional decision.... cluding that prudence counsels against What is at stake here is the Con- deciding the merits of a partisan polit- stitution. Have respect for this foun- ical dispute: dation document of our democracy. Whether expressed in terms of a Don’t return us to the failed ap- failure of standing, or ‘‘equitable’’ or proach of the Articles of Confed- ‘‘remedial’’ discretion, the funda- eration. Don’t subvert the Constitu- mental consideration underlying tion’s basic principles. And don’t ask those decisions is one of prudent self- us to break the oath of office we just restraint: federal courts should gen- took. erally refrain, as a matter of policy, Mr. Speaker, I call on my colleagues from intruding in the name of the to support and defend the Constitution Constitution upon the internal af- fairs of Congress at the behest of of the United States. lawmakers who have failed to pre- The provision was adopted on a vail in the political process.... separate vote by a majority of The appellants call upon the court to 279–152.(20) consider the constitutionality of two rules governing the internal workings Representative Skaggs and other of a coordinate branch of the Govern- Members filed a suit in the U.S. Dis- ment.... The Clerk responds, among trict Court challenging the constitu- other things, that the appellants lack tionality of the supermajority require- standing because they have suffered no ment contained in section 106 of the concrete injury. rules. (See Skaggs v Carle, 898 F A. Rule XXI(5)(c) Supp. 1, DDC, 1995). The court con- cluded that the appellants lacked According to the appellants, the pre- standing to challenge Rule XXI clause sentment clause establishes that a 5(c), stating, in part: simple majority of the Members voting in each House of the Congress is all They [the appellants] argued that that is needed to pass a bill. Therefore, the three-fifths majority required by Rule XXI(5)(c) is repugnant to the we are told, by providing that legisla- principle of majority rule they see tion carrying an income tax increase embodied in the presentment clause will not be considered to have passed of Article I, § 7 of the Constitution in the House even if it receives the support of a majority (but not of a 20. 141 CONG. REC. p. , 104th three-fifths majority), Rule XXI(5)(c) Cong. 1st Sess., Jan. 4, 1995. runs afoul of the presentment clause.

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The Clerk contends that the appel- affirmative vote requirement lants lack standing to raise this chal- for passage. lenge because they have suffered no in- jury by reason of Rule XXI(5)(c) and On June 20, 1995,(1) the House are unlikely ever to do so. The House adopted House Resolution 168 to has never failed to deem passed a bill create an expedited procedure that has received the support of a sim- ple majority and it is unclear whether which, according to the chairman ( ) the House will ever do so.... of the Rules Committee, 2 ‘‘would In sum, the appellants claim that repeal or correct laws, rules, and they face imminent injury because a regulations that are obsolete, ludi- simple majority of the House of Rep- crous, duplicative, burdensome, or resentatives cannot commit the House to raising income tax rates. We are costly.’’ unpersuaded, however, that Rule The amended Rule XIII clause XXI(5)(c) prevents a simple majority 4,(3) governing the Corrections from doing just that. At most the ap- Calendar, provides the Speaker pellants have shown that Rule XXI(5)(c) could, under conceivable cir- the authority, in consultation with cumstances, help to keep a majority the Minority Leader, to place bills from having its way—perhaps, for ex- already on the House or Union ample, because a simple majority in Calendars on the Corrections Cal- favor of an income tax increase might endar and to call the Corrections not be prepared, for its own political reasons, to override the preference of Calendar at his discretion on the the House leadership against sus- second or fourth Tuesday of each pending or waiving the Rule in a par- month. The rule provides for con- ticular instance. But that prospect ap- sideration in the House for one pears to be, if not purely hypothetical, neither actual nor imminent. We con- hour equally divided between the clude therefore that the appellants chair and ranking member of the lack standing to challenge Rule primary committee of jurisdiction. XXI(5)(c). It restricts amendments to those recommended by the committee or Corrections Calendar; Three- offered by its chairman; provides fifths Vote Requirement for one motion to recommit with § 5.4 The House amended its or without instructions; and re- rules to create a Corrections Calendar. Measures called up 1. 141 CONG. REC. p. , 104th Cong. 1st Sess. from the Corrections Cal- 2. Gerald B. H. Solomon (New York) at endar are considered in the Id. House under special proce- 3. House Rules and Manual § 745a dures including a three-fifths (1995). 11487 Ch. 30 § 5 DESCHLER-BROWN PRECEDENTS quires a three-fifths affirmative A motion to reconsider was laid on vote for passage. the table.

Corrections Calendar Proce- Federal Income Tax Rate In- dure First Used crease Requires Three-fifths Vote § 5.5 The Speaker ordered the call of the Corrections Cal- § 5.6 As part of its first-day endar and the House adopted proceedings, the House a bill under the three-fifths adopted a requirement that affirmative vote passage re- any bill or joint resolution, quirement. amendment, or conference On July 25, 1995,(4) the Speaker report carrying a federal in- Pro Tempore (5) directed the Clerk come tax rate increase shall to call the Corrections Calendar not be considered as passed and H.R. 1943, the San Diego or agreed to unless three- Coastal Corrections Act of 1995, fifths of the Members vote in was considered as the first item the affirmative. During the on the calendar. The conclusion of debate over adoption of this the proceedings on that bill follow: provision, the constitu- THE SPEAKER PRO TEMPORE: The tionality of such a require- question is on the passage of the bill. ment was contested. The question was taken; and the (6) Speaker pro tempore announced that On Jan. 4, 1995, the House the noes appeared to have it. considered and adopted House Resolution 6, section 106 of which RECORDED VOTE provided for the tax rate increase MR. [NORMAN Y.] MINETA [of Cali- voting requirement. fornia]: Mr. Speaker, I demand a re- corded vote. The question of the require- ( ) A recorded vote was ordered. ment’s constitutionality 7 was The vote was taken by electronic de- taken to the District Court for the vice, and there were—ayes 269, noes District of Columbia. Mr. David E. 156, not voting 9, as follows:... Skaggs, of Colorado, several other So—three-fifths having voted in favor thereof—the bill was passed. Members, six of their constituents The result of the vote was an- and the League of Women Voters nounced as above recorded. filed suit against Robin E. Carle,

4. 141 CONG. REC. p. , 104th 6. 141 CONG. REC. p. , 104th Cong. 1st Sess. Cong. 1st Sess. 5. Scott McInnis (Colo.). 7. See § 5.3, supra.

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Clerk of the House, to invalidate Responsibility Act. During consid- the rule on Feb. 8, 1995.(8) The eration of the bill, the following court granted a motion filed on transpired: Ms. Carle’s behalf to dismiss the suit concluding that prudence AMENDMENT IN THE NATURE OF A SUB- STITUTE OFFERED BY MRS. MINK OF counseled against deciding the HAWAII merits of a partisan political dis- pute. MRS. [PATSY] MINK of Hawaii: Mr. Mr. Skaggs and his fellow com- Chairman, pursuant to the rule, I offer an amendment in the nature of a plainants, appealed the decision of susbstitute. the district court to the Court of THE CHAIRMAN: (12) The Clerk will Appeals for the District of Colum- designate the amendment in the na- bia Circuit. The appellate court ture of a substitute. affirmed the lower courts decision The text of the amendment in the on a 2–1 vote finding that the ap- nature of a substitute is as follows: ( ) pellants lacked standing. 9 Amendment in the nature of a The requirement for a three- substitute offered by Mrs. Mink of fifths vote is contained in Rule Hawaii: ( ) Strike all after the enacting clause XXI clause 5(c). 10 and insert: § 5.7 The three-fifths affirma- SECTION 1. SHORT TITLE. tive vote requirement for This Act may be cited as the ‘‘Family Stability and Work Act of federal income tax rate in- 1995’’.... creases was first applied to SEC. 501. INCREASE IN TOP MARGINAL an amendment in the nature RATE UNDER SECTION 11. of a substitute containing a (a) IN GENERAL.—The following provision to raise the top provisions of the Internal Revenue corporate income tax rate. Code of 1986 are amended by strik- ing ‘‘35’’ and inserting ‘‘36.25’’: . . . . On Mar. 24, 1995,(11) the Com- mittee of the Whole had under During the debate, Mrs. Mink consideration H.R. 4, the Personal inserted a statement into the record, a section of which follows: 8. Skaggs v Carle, Action No. 95–00251 Corporate America benefits from bil- (D.D.C.). lions of dollar [sic] worth of corporate 9. Skaggs v Carle, Action No. 95–5323 welfare—subsidies, tax breaks, credits, (D.C. Cir.). direct federal spending—every major 10. House Rules and Manual § 846c corporation and business receives some (1995). kind of benefit from the Federal gov- 11. 141 CONG. REC. p. , 104th Cong. 1st Sess. 12. John Linder (Ga.).

11489 Ch. 30 § 5 DESCHLER-BROWN PRECEDENTS

ernment. Corporations must do their On Oct. 26, 1995,(13) the Speak- share in investing in our nation’s most er Pro Tempore,(14) responded to a vulnerable in our society. parliamentary inquiry regarding The Mink bill is financed through raising the top corporate income rate the application of Rule XXI clause (15) by 1.25% to 36.25 percent. This is esti- 5(c) to H.R. 2491, Seven-Year mated to raise $20.25 billion over 5 Balanced Budget Reconciliation years. Act of 1995, being considered After further debate, the Chair under the provisions of House put the question, as follows: Resolution 245, a special order re- ported by the Committee on THE CHAIRMAN: All time has expired. Rules. The inquiry and the Speak- The question is on the amendment er Pro Tempore’s response follow: in the nature of a substitute offered by the gentlewoman from Hawaii [Mrs. MR. [MICHAEL D.] WARD [of Ken- Mink]. tucky]: My inquiry is, I have studied The question was taken; and the the rules and rule XXI applies to bills. Chairman announced that three-fifths This is a bill, and it is a tax increase. of those present not having voted in Why does rule XXI not apply to this the affirmative, the noes appeared to bill? have it. THE SPEAKER PRO TEMPORE: The Chair will state that the House, by RECORDED VOTE adopting House Resolution 245, has MRS. MINK of Hawaii: Mr. Chair- waived that requirement of the rule. man, I demand a recorded vote. Therefore, the Chair’s response at this A recorded vote was ordered. point would be purely hypothetical, and the Chair cannot respond further The vote was taken by electronic de- at this point. vice, and there were—ayes 96, noes 336, not voting 2,.... So, three-fifths of those present not having voted in the affirmative, the § 6. Finality of Votes Once amendment in the nature of a sub- Cast stitute was rejected. The result was announced as above When a vote is cast by a system recorded. where there is human interven- § 5.8 A special order reported tion in recording the result, such by the Committee on Rules, as a vote cast by a roll call or by adopted by a majority vote, 13. 141 CONG. REC. p. , 104th may waive the three-fifths Cong. 1st Sess. requirement for passage of a 14. Dan Burton (Ind.). measure containing a federal 15. House Rules and Manual § 846c income tax rate increase. (1995). 11490