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ArtI.S5.C1.2 Quorums in Congress

Article I, Section 5, Clause 1:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

The quorum principle—that a certain number of members of a governing body be present at a given meeting for the body to exercise its powers—was well established in parliamentary practice by the time of the Constitutional Convention.1 The debate then was not over whether to have a quorum requirement, but instead where to set it.2 Some felt a majority requirement was too high and would result in “great delay” and “great inconvenience” if either house consistently struggled to obtain a quorum.3 But others, including George Mason, believed that setting the quorum requirement any lower would be “dangerous to the distant parts to allow a small number of members of the two Houses to make laws,” as the “Central States could always take care to be on the Spot and by meeting earlier than the distant ones . . . .” 4 The Framers, apparently recognizing that too high a quorum requirement could debilitate Congress, but that too low a requirement would risk undue influence by the states in close proximity to the capital, set the quorum requirements at a majority of Members. In the Federalist Papers, James Madison explained the Framers’ choice of a majority as balancing the risk of either requiring too many or too few Members of Congress to establish a quorum.5 He noted:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.6

For many years the view prevailed in the House of Representatives that it was necessary for a majority of the members to vote on any proposition submitted to the House in order to satisfy the constitutional requirement for a quorum. It was a common practice for the opposition to break a quorum by refusing to vote. This was changed in 1890, by a ruling made by Speaker Thomas Brackett Reed of Maine and later embodied in Rule XV of the House, that Members present in the chamber but not voting would be counted in determining the presence of a quorum.7

After an 1890 law was adopted with a majority of Members present in the chamber, but not a majority voting, Speaker Reed’s rule was challenged. The case, United States v. Ballin, provided the Supreme Court with an opportunity to construe not just the Constitution’s quorum requirement, but also the breadth of the House’s authority to determine how the presence of a quorum is determined.8 After establishing that it had authority to consider the rule’s “validity,” the Court examined the quorum requirement, holding that “[a]ll that the Constitution requires is the presence of a majority, and when that majority are present the power of the house arises.” 9 The Court then granted significant deference to the House in deciding how to determine the presence of a majority, concluding that because “[t]he Constitution has prescribed no method of making this determination,” it is “within the competency of the house to prescribe any method which shall be reasonably certain to ascertain . . . the presence of a majority, and thus establishing the fact that the house is in a condition to transact business.” 10 Thus, under Ballin, each chamber may determine a method for counting a quorum provided that method is “reasonably certain to ascertain” the “presence of a majority” such that the chamber is, constitutionally speaking, “in a condition to transact business.” 11

While Ballin established that the Court should generally defer to House and Senate rules on when a quorum exists, the Court’s 1949 case Christoffel v. United States12 suggest that such deference is not proper when the existence of a quorum is made an element of a cirminal offense.13 In Christoffel, a witness who denied under oath before the House Committee on Education and Labor that he was a Communist was subsequently convicted of perjury in federal court. The Court reversed his conviction because the Committee did not have a quorum at the time the witness made the perjurious statements, and consequently, the witness’s testimony had not been before a “competent tribunal,” as required by the District of Columbia Code.14 Although the Committee had a quorum when the hearing commenced, some of the Members had stepped away during the hearing so that the number of Members in attendance at the time the witness testified was below the number required to establish a quorum.15 Under House practice, a quorum once established is presumed to continue until a Member raises “a point of no quorum and a count [reveals] the presence of less than a majority.” 16 No such point of order had been raised during the hearing. Nevertheless, the Court held that in order “to convict, the jury had to be satisfied beyond a reasonable doubt that there were ‘actually physically present’ a majority of the committee.” 17 To hold that the quorum requirement was satisfied “by a finding that there was a majority present two or three hours before the defendant offered his testimony, in the face of evidence indicating the contrary, is to rule as a matter of law that a quorum need not be present when the offense is committed.” 18 “This,” the Court concluded, “not only seems to us contrary to the rules and practice of the Congress, but denies petitioner a fundamental right. That right is that he be convicted of crime only on proof of all the elements of the crime charged against him.” 19

2 Joseph Story, Commentaries on the Constitution of the United States § 832 (1833) back
2 Records of the Federal Convention of 1787, at 251–52 (Max Farrand ed., 1911). back
Id. at 251 (statement of Nathaniel Gorham of Massachusetts). See also id. at 251 (statement of John Mercer of Maryland). back
Id. at 251–52 (statement of George Mason). See also id. at 253 (statement of Oliver Ellsworth of Connecticut). back
The Federalist No. 58 (James Madison). back
Id. back
Hinds’ Precedents of the House of Representatives §§ 2895–2905 (1907). back
144 U.S. 1 (1892). back
Id. at 6. back
Id. (emphasis added). back
Id. back
338 U.S. 84 (1949). back
ArtI.S5.C2.1 Congressional Proceedings and the Rulemaking Clause. back
Christoffel, 338 U.S. at 87–90. back
Id. at 89–90 ( “An element of the crime charged in the instant indictment is the presence of a competent tribunal . . . . [T]o charge, however, that such a requirement is satisfied by a finding that there was a majority present two or three hours before the defendant offered his testimony, in the face of evidence indicating the contrary, is to rule as a matter of law that a quorum need not be present when the offense is committed. . . . A tribunal that is not competent is no tribunal, and it is unthinkable that such a body can be the instrument of criminal conviction.” ). back
Id. at 88. back
Id. at 89. back
Id. at 90. back
Id. back